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CRALaw Labor Law Pre Week 2019
CRALaw Labor Law Pre Week 2019
UPDATED
LAST-MINUTE
PRE-WEEK NOTES
FOR THE
2019 BAR EXAM IN LABOR LAW
MAJOR TOPIC 1
GENERAL
PROVISIONS
A.
BASIC POLICY ON LABOR
B.
CONSTRUCTION IN FAVOR OF LABOR
“Article 1702. In case of doubt, all labor legislation and all labor contracts
shall be construed in favor of the safety and decent living for the laborer.”
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UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW
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This provision is invoked by the Supreme Court when it affirms the interest,
rights and welfare of labor. Example: When the SC nullifies a patently illegal
provision in an employment contract or when it invalidates a Quitclaim executed
by a worker because of unconscionably low consideration.
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3
4
SYLLABUS
MAJOR TOPIC
2
PRE-EMPLOYMENT
A.
ILLEGAL RECRUITMENT
What are illegal recruitment acts that can be committed by No. 1 above
(NON-LICENSEE or NON- HOLDER OF AUTHORITY)?
When what is committed by such NON-LICENSEES or NON-HOLDERS OF
AUTHORITY is any of the acts of recruitment allowed only to be done by
licensees or holders of authority such as the act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers and
includes referring, contract services, promising or advertising for
employment abroad, whether for profit or not.
In other words, had they possessed of license or authority, their commission
of any of the foregoing acts could have been valid and not constitutive of illegal
recruitment.
NOTE: The non-licensee or non-holder of authority is presumed to be
engaged in such recruitment if he, in any manner, offers or promises for a fee
employment abroad to two or more persons.
What are acts of illegal recruitment when committed by ANY PERSON,
whether a NON-LICENSEE, NON-HOLDER OF AUTHORITY or even by a
LICENSEE or HOLDER OF AUTHORITY?
(a) To charge or accept, directly or indirectly, any amount greater than that
specified in the schedule of allowable fees prescribed by the DOLE
Secretary, or to make a worker pay or acknowledge any amount greater
than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in
relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or
commit any act of misrepresentation for the purpose of securing a
license or authority under the Labor Code, or for the purpose of
documenting hired workers with the POEA, which include the act of
reprocessing workers through a job order that pertains to non-existent
work, work different from the actual overseas work, or work with a
different employer whether registered or not with the POEA;
(d) To induce or attempt to induce a worker already employed to quit his
employment in order to offer him another unless the transfer is designed to
liberate a worker from oppressive terms and conditions of employment;
(e) To influence or attempt to influence any person or entity not to employ any
worker who has not applied for employment through his agency or who has
formed, joined or supported, or has contacted or is supported by any union
or workers' organization;
(f) 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;
(g) To fail to submit reports on the status of employment, placement
vacancies, remittance of foreign exchange earnings, separation from
jobs, departures and such other matters or information as may be
required by the Secretary of Labor and Employment;
(h) To substitute or alter to the prejudice of the worker, employment
contracts approved and verified by the DOLE from the time of actual
signing thereof by the parties up to and including the period of the
expiration of the same without the approval of the DOLE;
(i) For an officer or agent of a recruitment or placement agency to become an
officer or member of the Board of any corporation engaged in travel
agency or to be engaged directly or indirectly in the management of
travel agency;
(j) To withhold or deny travel documents from applicant workers before
departure for monetary or financial considerations, or for any other reasons,
other than those authorized under the Labor Code and its implementing
rules and regulations;
(k) Failure to actually deploy a contracted worker without valid reason as
determined by the Department of Labor and Employment;
(l) Failure to reimburse expenses incurred by the worker in connection with
his documentation and processing for purposes of deployment, in cases
where the deployment does not actually take place without the worker's
fault. Illegal recruitment when committed by a syndicate or in large
scale shall be considered an offense involving economic sabotage;
and
(m) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.”
PROHIBITED ACTIVITIES
IN RELATION TO ILLEGAL RECRUITMENT
UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW
Prof. Joselito Guianan Chan
CHAN ROBLES ONLINE BAR REVIEW
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What are the PROHIBITED ACTIVITIES in connection with recruitment for overseas employment?
Besides illegal recruitment, the law additionally provides that it shall also be
unlawful for any person or entity to commit the following prohibited acts:
(1)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 migrant worker issue, either personally or through a
guarantor or accommodation party, post-dated checks in relation to the said loan;
(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is
required to avail of a LOAN only from specifically designated institutions, entities
or persons;
(3) Refuse to condone or renegotiate a LOAN incurred by an overseas Filipino worker
after the latter's employment contract has been prematurely terminated through no fault
of his or her own;
(4) 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
principal/shipowner;
(5) Impose a 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;
(6) For a SUSPENDED RECRUITMENT/MANNING AGENCY to engage in any kind of
recruitment activity including the processing of pending workers' applications; and
(7) For a recruitment/manning agency or a foreign principal/employer 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 worker's INSURANCE coverage.
(1) The offender has no valid license or authority required by law to enable
one to lawfully engage in recruitment and placement of workers; and
(2) He undertakes either any activity within the meaning of “recruitment and
placement” defined under Article 13(b), (see above enumeration) or any
prohibited practices (see above enumeration) under Article 34 of the Labor
Code.
Yes.
What are some relevant principles on illegal recruitment?
1. Mere impression that a person could deploy workers overseas is sufficient to
constitute illegal recruitment. But if no such impression is given, the accused should
not be convicted for illegal recruitment.
2. Mere promise or offer of employment abroad amounts to recruitment.
3. There is no need to show that accused represented himself as a licensed recruiter.
4. Referrals may constitute illegal recruitment.
5
UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW
Prof. Joselito Guianan Chan
CHAN ROBLES ONLINE BAR REVIEW
www.chanroblesbar.com
SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED
5. It is illegal recruitment to induce applicants to part with their money upon false
misrepresentations and promises in assuring them that after they paid the placement
fee, jobs abroad were waiting for them and that they would be deployed soon.
6. Recruitment whether done for profit or not is immaterial.
7. The act of receiving money far exceeding the amount as required by law is not
considered as “recruitment and placement” as this phrase is contemplated under the
law.
8. Actual receipt of fee is not an element of the crime of illegal recruitment.
9. Conduct of interviews amounts to illegal recruitment.
10. Absence of receipt is not essential to hold a person guilty of illegal recruitment.
11. Conviction for illegal recruitment may be made on the strength of the testimonies of the complainants.
12. Absence of documents evidencing the recruitment activities strengthens, not
weakens, the case for illegal recruitment.
13. Only one person recruited is sufficient to convict one for illegal recruitment.
14. Non-prosecution of another suspect is immaterial.
15. Execution of affidavit of desistance affects only the civil liability but has no effect on
the criminal liability for illegal recruitment.
16. Defense of denial cannot prevail over positive identification. Positive identification
where categorical and consistent and not attended by any showing of ill motive on
the part of the eyewitnesses on the matter prevails over alibi and denial. Between
the categorical statements of the prosecution witnesses, on the one hand, and bare
denials of the accused, on the other hand, the former must prevail.
If it is carried out by a group of three (3) or more persons conspiring or confederating with one another.
Elements of illegal recruitment by a syndicate.
The essential elements of the crime of illegal recruitment committed by a syndicate are as follows:
1. There are at least three (3) persons who, conspiring and/or confederating with
one another, carried out any unlawful or illegal recruitment and placement
activities as defined under Article 13(b) or committed any prohibited activities
under Article 34 of the Labor Code; and
2. Said persons are not licensed or authorized to do so, either locally or overseas.
The law does not require that the syndicate should recruit more than one (1)
person in order to constitute the crime of illegal recruitment by a syndicate.
Recruitment of one (1) person would suffice to qualify the illegal recruitment act as
having been committed by a syndicate.
The elements of illegal recruitment in large scale, as distinguished from simple illegal recruitment, are as
follow
s: 1. The accused engages in the recruitment and placement of workers as
defined under Article 13(b) or committed any prohibited activities under Article
34 of the Labor Code; and
2. The accused commits the same against three (3) or more persons, individually or as a group.
Distinguished from illegal recruitment by a syndicate.
As distinguished from illegal recruitment committed by a syndicate, illegal recruitment in large scale may be
committed by only one (1) person. What is important as qualifying element is that there
should be at least three (3) victims of such illegal recruitment, individually or as a group.
Recruitment in large scale or by a syndicate is malum prohibitum and not malum in se.
Yes. It is clear that conviction under the Labor Code does not preclude conviction
for estafa or other crimes under other laws.
Some relevant principles:
Same evidence to prove illegal recruitment may be used to prove estafa.
Conviction for both illegal recruitment and estafa is not double jeopardy.
What is the nature of the liability between local recruiter and its foreign principal?
The nature of their liability is “solidary” or “joint and several” for any and all
claims arising out of the employment contract of OFWs.
Is the solidary liability of corporate officers with the recruitment agency “automatic” in character?
No. In order to hold the officers of the agency solidarily liable, it is required that
there must be proof of their culpability therefor. Thus, it was held in the 2013 case of
Gagui v. Dejero,1 that while it is true that R.A. 8042 and the Corporation Code provide
for solidary liability, this liability must be so stated in the decision sought to be
implemented. Absent this express statement, a corporate officer may not be impleaded
and made to personally answer for the liability of the corporation.
What are some relevant principles on the persons liable for illegal recruitment?
Knowledge of the agent is deemed knowledge of the principal but not the other way around.
The theory of imputed knowledge is a rule that any information material to the
transaction, either possessed by the agent at the time of the transaction or acquired by
him before its completion, is deemed to be the knowledge of the principal, at least
insofar as the transaction is concerned, even though the knowledge, in fact, is not
communicated to the principal at all.
Sunace International Management Services, Inc. v. NLRC2 - The High Court
here has the opportunity to discuss the application of the theory of imputed knowledge.
The OFW (Divina), a domestic helper in Taiwan, has extended her 12-month contract,
after its expiration, for two (2) more years after which she returned to the Philippines. It
was established by evidence that the extension was without the knowledge of the local
recruitment agency, petitioner Sunace. The Court of Appeals, however, affirmed the
Labor Arbiter’s and NLRC’s finding that Sunace knew of and impliedly consented to the
extension of Divina’s 2-year contract. It went on to state that “It is undisputed that
[Sunace] was continually communicating with [Divina’s] foreign employer.” It thus
concluded that “[a]s agent of the foreign principal, ‘petitioner cannot profess ignorance
of such extension as obviously, the act of the principal extending complainant (sic)
employment contract necessarily bound it.’”
In finding that the application by the CA of this theory of imputed knowledge was
misplaced, the High Court ruled that this theory ascribes the knowledge of the agent,
Sunace, to the principal, employer Xiong, not the other way around. The knowledge of the
principal-foreign employer cannot, therefore, be imputed to its agent, Sunace. There
being no substantial proof that Sunace knew of and consented to be bound under the 2-
year employment contract extension, it cannot be said to be privy thereto. As such,
Sunace and its owner cannot be held solidarily liable for any of Divina’s claims arising
from the 2-year employment extension. As the New Civil Code provides: “Contracts take
effect only between the parties, their assigns, and heirs, except in case where the
rights and obligations arising from the contract are not transmissible by their nature, or
by stipulation or by provision of law.”
No. The prevailing rule is that OFWs are contractual (fixed-term only), not regular,
employees. In fact, they can never attain regularity of employment. The nature of their
employment is always fixed-term.
What are some relevant principles?
1. Indefinite period of employment of OFWs is not valid as it contravenes the
explicit provision of the POEA Rules and Regulations on fixed-period
employment.
2. OFWs do not become regular employees by reason of nature of work, that is,
that they are made to perform work that is usually necessary and desirable in
the usual business or trade of the employer. The exigencies of their work
necessitate that they be employed on a contractual basis. This notwithstanding
the fact that they have rendered more than twenty (20) years of service.
3. Regular employment does not result from the series of re-hiring of OFWs.
4. The fixed-period employment of OFWs is not discriminatory against them nor
does it favor foreign employers. It is for the mutual interest of both the seafarer
and the employer why the employment status must be contractual only or for a
certain period of time.
5. The expiration of the employment contracts of OFWs marks its ending.
What is the effect of hiring a seafarer for overseas employment but assigning him to local vessel?
Yes. In the absence of proof of applicable foreign law, OFWs are entitled to due
process in accordance with Philippine laws.
Is the Agabon doctrine applicable to OFWs who are dismissed for cause but without due process?
Yes. The Agabon doctrine of awarding indemnity in the form of nominal damages in
cases of valid termination for just or authorized cause but without procedural due process
also applies to termination of OFWs.
Who has the burden of proof to show that the dismissal of the OFW is legal?
Burden of proof devolves on both recruitment agency and its foreign principal.
Are OFWs entitled to the reliefs under the Labor Code?
No. They are not entitled to such reliefs under Article 279 as reinstatement or
separation pay in lieu of reinstatement or full backwages. REASON: Because their
employment is fixed-term in nature. The nature of their claim therefore is purely
monetary, such as the payment of the salary for the unexpired portion of the employment
contract in case their dismissal is declared illegal.
What are the reliefs to which OFWs are entitled?
They are entitled to the reliefs provided under Section 10 of R.A. No. 8042, as amended, to wit:
“Direct Hiring” refers to the process of directly hiring workers by employers for overseas employment as authorized by
Yes. If upon preliminary examination or surveillance, the DOLE Secretary, the POEA Administrator or DOLE Regional D
Does the DOLE Secretary have the power to issue warrant of arrest and search and seizure orders?
No. Salazar v. Achacoso,2 declared that the exercise by the DOLE Secretary of his twin powers to issue arrest warrant a
B.
EMPLOYMENT OF NON-RESIDENT ALIENS
“Gainful employment” refers to a state or condition that creates an employer-employee relationship between
the
Philippine-based company and the foreign national where the former has the power to hire or dismiss the
foreign national from employment, pays the salaries or wages thereof and has authority to
control the performance or conduct of the tasks and duties.
What are the categories of foreign nationals EXEMPTED from securing AEP?
a. All members of the diplomatic service and foreign government officials accredited
by and with reciprocity arrangement with the Philippine government;
b. Officers and staff of international organizations of which the Philippine
government is a member, and their legitimate spouses desiring to work in the
Philippines;
c. Owners and representatives of foreign principals whose companies are accredited
by the POEA, who come to the Philippines for a limited period and solely for
the purpose of interviewing Filipino applicants for employment abroad;
d. Foreign nationals who come to the Philippines to teach, present and/or conduct
research studies in universities and colleges as visiting, exchange or adjunct
professors under formal agreements between the universities or colleges in the
Philippines and foreign universities or colleges; or between the Philippine
government and foreign government, provided that the exemption is on a
reciprocal basis;
e. Permanent resident foreign nationals and probationary or temporary resident visa holders under Section 13 (a-
f) of the Philippine Immigration Act of 1940 and Section 3 of the Alien Social
Integration Act of 1995 (R.A. 7917);
f. Refugees and Stateless Persons recognized by DOJ pursuant to Article 17 of the UN
Convention and Protocol Relating to status of Refugees and Stateless Persons; and
g. All foreign nationals granted exemption by law.
What are the categories of foreign nationals EXCLUDED from securing AEP?
a. Members of the governing board with voting rights only and do not intervene in
the management of the corporation or in the day to day operation of the
enterprise.
b. President and Treasurer, who are part-owners of the company.
c. Those providing consultancy services who do not have employers in the Philippines.
d. Intra-corporate transferee who is a manager, executive or specialist as defined
below in accordance with Trade Agreements and an employee of the foreign
service supplier for at least one (1) year continuous employment prior to
deployment to a branch, subsidiary, affiliate or representative office in the
Philippines.
i. an Executive: a natural person within the organisation who primarily directs
the management of the organisation and exercises wide latitude in decision-
making and receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the business; an
executive would not directly perform tasks related to the actual provision of
the service or services of the organisation;
ii. a Manager: a natural person within the organisation who primarily directs
the organisation/department/subdivision and exercises supervisory and
control functions over other supervisory, managerial or professional staff;
does not include first-line supervisors unless employees supervised are
professionals; does not include employees who primarily perform tasks
necessary for the provision of the service; or
iii. a Specialist: a natural person within the organisation who possesses
knowledge at an advanced level of expertise essential to the
establishment/provision of the service and/or possesses proprietary
knowledge of the organisation's service, research equipment, techniques or
management; may include, but is not limited to, members of a licensed
profession.
All other intra-corporate transferees not within these categories as defined above
are required to secure an AEP prior to their employment in the Philippines.
e. Contractual service supplier who is a manager, executive or specialist and an
employee of a foreign service supplier which has no commercial presence in the
Philippines:
i. who enters the Philippines temporarily to supply a service pursuant to a
contract between his/her employer and a service consumer in the Philippines;
ii. must possess the appropriate educational and professional qualifications; and
iii. must be employed by the foreign service supplier for at least one year prior to
the supply of service in the Philippines.
f. Representative of the Foreign Principal/Employer assigned in the Office of
Licensed Manning Agency (OLMA) in accordance with the POEA law, rules and
regulations.
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UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW
Prof. Joselito Guianan Chan
CHAN ROBLES ONLINE BAR REVIEW
www.chanroblesbar.com
SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED
SYLLABUS
MAJOR
TOPIC 3
LABOR STANDARDS
A.
CONDITIONS OF EMPLOYMENT
1.
COVERAGE
Who are covered by the labor standards provisions of the Labor Code?
The following are excluded from the coverage of the law on labor standards:
a. Government employees;
b. Managerial employees;
c. Other officers or members of a managerial staff;
d. Workers paid by results;
e. Non-agricultural field personnel; and
f. Members of the family of the employer.
2.
HOURS OF WORK
a.
PRINCIPLES IN DETERMINING HOURS WORKED
“Fair day’s wage for a fair day’s labor,” remains the basic factor in
determining the employees’ wages and backwages.
b.
NORMAL HOURS OF WORK
Any work in excess of said eight (8) normal hours is considered overtime work.
May normal working hours be reduced?
11
UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW
Prof. Joselito Guianan Chan
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SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED
Under R.A. No. 8972, otherwise known as “The Solo Parents’ Welfare Act of 2000,”
solo parents are allowed to work on a flexible schedule. The phrase “flexible work
schedule” is defined in the same law as the right granted to a solo parent employee to
vary his/her arrival and departure time without affecting the core work hours as defined
by the employer.
i.
POWER INTERRUPTIONS/BROWNOUTS
Every employer is required to give his employees, regardless of sex, not less than
one (1) hour (or 60 minutes) time-off for regular meals.
Being time-off, it is not compensable hours worked. In this case, the employee is free to
do anything he wants, except to work. If he is required, however, to work while eating,
he should be compensated therefor.
d.
NIGHT SHIFT DIFFERENTIAL
(Article 86, Labor Code)
Night shift differential is equivalent to 10% of employee's regular wage for each
hour of work performed between 10:00 p.m. and 6:00 a.m. of the following day.
What is the distinction between night shift differential pay and overtime pay?
When the work of an employee falls at night time, the receipt of overtime pay shall
not preclude the right to receive night differential pay. The reason is the payment of the
night differential pay is for the work done during the night; while the payment of the
overtime pay is for work in excess of the regular eight (8) working hours.
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UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW
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SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED
b.On a rest day or special day or regular holiday. Plus 10% of 130% of
regular hourly rate on said days or a total of 110% of 130% of the applicable
regular hourly rate.
e.
OVERTIME
(Article 87, Labor Code)
What are some basic principles on overtime work?
1. Work rendered after normal eight (8) hours of work is called “overtime work.”
2. In computing overtime work, "regular wage" or "basic salary" means "cash" wage only without deduction for
facilities provided by the employer.
3. "Premium pay" means the additional compensation required by law for work
performed within eight (8) hours on non-working days, such as regular holidays,
special holidays and rest days.
4. "Overtime pay" means the additional compensation for work performed beyond eight (8) hours.
5. Illustrations on how overtime is computed:
a. For overtime work performed on an ORDINARY DAY, the overtime pay
is plus 25% of the basic hourly rate.
b. For overtime work performed on a REST DAY OR ON A SPECIAL
DAY, the overtime pay is plus 30% of the basic hourly rate which includes
30% additional compensation as provided in Article 93 [a] of the Labor
Code.
c. For overtime work performed on a REST DAY WHICH FALLS ON A
SPECIAL DAY, the overtime pay is plus 30% of the basic hourly rate
which includes 50% additional compensation as provided in Article 93 [c]
of the Labor Code.
d. For overtime work performed on a REGULAR HOLIDAY, the overtime
pay is plus 30% of the basic hourly rate which includes 100% additional
compensation as provided in Article 94 [b] of the Labor Code.
e. For overtime work performed on a REST DAY WHICH FALLS ON A
REGULAR HOLIDAY, the overtime pay is plus 30% of the basic
hourly rate which includes 160% additional compensation.
“Premium pay” refers to the additional compensation required by law for work
performed within the eight (8) normal hours of work on non-working days, such as rest
days and regular and special holidays.
“Overtime pay” refers to the additional compensation for work performed beyond
the eight (8) normal hours of work on a given day. An employee is entitled to both
premium pay and overtime pay if he works on a non-working day and renders overtime
work on the same day.
What is built-in overtime pay?
In case the employment contract stipulates that the compensation includes built-in
overtime pay and the same is duly approved by the DOLE, the non-payment by the
employer of any overtime pay for overtime work is justified and valid.
What is emergency overtime work? (Article 89, Labor Code).
a. General rule.
The general rule is that no employee may be compelled to render overtime work
against his will. The reason is that this will constitute involuntary servitude.
b. Exceptions when employee may be compelled to render overtime work:
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 overtime work is necessary to prevent loss of life or property or in case
of imminent danger to public safety due to actual or impending emergency in
the locality caused by serious accident, fire, floods, typhoons, earthquake,
epidemic or other disasters or calamities;
3. When there is urgent work to be performed on machines, installations or
equipment, or in order to avoid serious loss or damage to the employer or some
other causes of similar nature;
4. When the work is necessary to prevent loss or damage to perishable goods;
5. When the completion or continuation of work started before the 8th hour is
necessary to prevent serious obstruction or prejudice to the business or
operations of the employer; and
6. When overtime work is necessary to avail of favorable weather or
environmental conditions where performance or quality of work is dependent
thereon.
May an employee validly refuse to render overtime work under any of the afore-said circumstances?
No. When an employee refuses to render emergency overtime work under any of
the foregoing conditions, he may be dismissed on the ground of insubordination or
willful disobedience of the lawful order of the employer.
13
UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW
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No. The right to claim overtime pay is not subject to a waiver. Such right is
governed by law and not merely by the agreement of the parties.
f.
COMPUTATION OF ADDITIONAL
COMPENSATION (RATES ONLY)
How is premium pay for SPECIAL (NON-WORKING) DAYS OR SPECIAL HOLIDAYS computed?
If the employee did not work, the “no work, no pay” principle shall apply, unless there is a favorable company polic
If the employee worked, he/she shall be paid an additional 30 percent of his/her daily rate on the first eight hours of
If the employee worked in excess of eight hours (overtime work), he/she shall be paid an additional 30 percent
If the employee worked during a special day that also falls on his/her rest day, he/she shall be paid an addition
If the employee worked in excess of eight hours (overtime work) during a special day that also falls on his
Simplified Computation:
a. If unworked -
No pay, except if there is a company policy, practice, or collective bargaining
agreement (CBA) which grants payment of wages on special days even if
unworked.
b. If worked -
First 8 hours – plus 30% of the daily rate of 100%
Work in excess of 8 hours – plus 30% of hourly rate on said day
c. If falling on the employee’s rest day and if worked -
First 8 hours – plus 50% of the daily rate of 100%
Work in excess of 8 hours – plus 30% of hourly rate on said day
1. Employees on leave of absence with pay - entitled to holiday pay when they
are on leave of absence with pay.
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UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW
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SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED
g.
REST PERIODS
1.
WEEKLY REST DAY
It shall be the duty of every employer, whether operating for profit or not, 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.
Is the employer’s prerogative to determine the rest period of its employees subject to limitations?
Yes. The employer shall determine and schedule the weekly rest day of his
employees subject to CBA and to such rules and regulations as the DOLE Secretary may
provide. However, the employer shall respect the preference of employees as to their
weekly rest day when such preference is based on religious grounds.
2.
EMERGENCY REST DAY WORK
When can an employer require work on a rest day?
The employer may require any of its employees to work on their scheduled rest
day for the duration of the following emergency and exceptional conditions:
a. 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 in case of force majeure or imminent danger to
public safety;
b. In case of urgent work to be performed on machineries, equipment, or
installations, to avoid serious loss which the employer would otherwise suffer;
c. In the event of abnormal pressure of work due to special circumstances,
where the employer cannot ordinarily be expected to resort to other measures;
d. To prevent serious loss of perishable goods;
e. Where the nature of the work is such that the employees have to work
continuously for seven (7) days in a week or more, as in the case of the crew
members of a vessel to complete a voyage and in other similar cases; and
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h.
HOLIDAYS
1 Insular Bank of Asia and America Employees’ Union (IBAAEU) v. Inciong, G.R. No. L-52415, Oct. 23, 1984, 132 SCRA 663; Chartered Bank Employees Association v. Ople, G.R.
No. L-44717, Aug. 28, 1985, 138 SCRA 273; Mantrade/FMMC Division Employees and Workers Union v. Bacungan, G.R. No. L-48437, Sept. 30, 1986, 144 SCRA 510.
2 No. 2 [A], Id.; Section 3, Rule IV, Book III, Rules to Implement the Labor Code; DOLE Memorandum Circular No. 01, March 8, 2004.
3 No. 2 [C], Id.; Section 4, Rule IV, Book III, Rules to Implement the Labor Code.
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6. Field personnel and other employees whose time and performance are
unsupervised by the employer, including those who are engaged on task or
contract basis, purely commission basis or those who are paid a fixed amount for
performing work irrespective of the time consumed in the performance thereof.1
i.
SERVICE INCENTIVE LEAVE
1. What is service
incentive leave?
Every covered employee who has rendered at least one (1) year of service is
entitled to a yearly service incentive leave of five (5) days with pay.
The term “at least one year of service” should mean service within twelve (12)
months, whether continuous or broken, reckoned from the date the employee started
working, including authorized absences and paid regular holidays, unless the number of
working days in the establishment as a matter of practice or policy, or that provided in
the employment contract, is less than twelve (12) months, in which case, said period
should be considered as one (1) year for the purpose of determining entitlement to the
service incentive leave benefit.
ding those employed in government-owned and/or controlled corporations with original charters or created under special laws;
ereof;
ons as to hiring, firing, and promotion, or any other change of status of other employees are given particular weight.
t or subdivision thereof in which he or she is employed; or (b) execute, under general supervision, work along specialized or technical lines requiring spec
irectly and closely related to the performance of the work described in paragraphs 4.1, 4.2, and 4.3 above;
re engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed
Yes. The service incentive leave is commutable to its money equivalent if not used or exhausted at the end of
the
year.
j.
SERVICE CHARGE
1. What is the newest law on service charges?
1 No. 2 [B], 2019 Handbook on Workers’ Statutory Monetary Benefits, issued by the Bureau of Working Conditions, DOLE.
2 No. 7 [A], 2019 Handbook on Workers’ Statutory Monetary Benefits, issued by the Bureau of Working Conditions, DOLE; See also Article 82, Labor Code; Section 1, Rule V, Book
III, Rules to Implement the Labor Code.
3 Section 1 (d), Rule V (Service Incentive Leave), Book III, Rules to Implement the Labor Code.
4 No. 7 [A], 2019 Handbook on Workers’ Statutory Monetary Benefits, issued by the Bureau of Working Conditions, DOLE; See also Article 82, Labor Code; Section 1, Rule V, Book
III, Rules to Implement the Labor Code.
5 Otherwise known as “Domestic Workers Act” or “Batas Kasambahay” and approved by President Benigno S. Aquino III on January 18, 2013.
6 See Section 7, Rule IV, Implementing Rules and Regulations of R.A. No. 10361 which provides: “SECTION 7. Service Incentive Leave. - A Kasambahay who has rendered at least
one (1) year of service shall be entitled to an annual service incentive leave of at least five (5) days with pay.
“Any unused portion of said annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves shall not be convertible to cash.”
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R.A. No. 11360 which was approved on August 07, 2019. It amended Article 96 of
the Labor Code. It thus now states:
"In the event that the minimum wage is increased by law or wage
order, service charges paid to the covered employees shall not be
considered in determining the employer's compliance with the
increased minimum wage.
2.What are the kinds of establishment covered by the law on service charge?
The rules on service charge apply only to establishments collecting service charges,
such as hotels, restaurants, lodging houses, night clubs, cocktail lounges, massage clinics,
bars, casinos and gambling houses, and similar enterprises, including those entities
operating primarily as private subsidiaries of the government.
3.Who are the employees covered by this law?
With the latest amendatory law cited above, all service charges collected by hotels,
restaurants and similar establishments shall be distributed completely and equally among
the covered workers except managerial employees.
4.Who are not covered?
13th month pay which is in the nature of additional income, is based on wage but not part of wage.
What is the minimum amount of the 13th month pay?
The minimum 13th month pay should not be less than one-twelfth (1/12) of the
total basic salary earned by an employee within a calendar year.
What is meant by “basic salary” or “basic wage”?
“Basic salary” or “basic wage” contemplates work within the normal eight (8) working
hours in a day. This means that the basic salary of an employee for purposes of computing
the 13th month pay should include all remunerations or earnings paid by the employer for
services rendered during normal working hours.
For purposes of computing the 13th month pay, “basic salary” should be interpreted to
mean not the amount actually received by an employee, but 1/12 of their standard
monthly wage multiplied by their length of service within a given calendar year.
B.
WAGE
S
1.
PAYMENT OF WAGES
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3.
WAGE DISTORTION; CONCEPT
a.
WAGE
ORDER
What is a Wage
Order?
The term “Wage Order” refers to the order promulgated by the Regional
Tripartite Wages and Productivity Board (Regional Board) pursuant to its wage fixing
authority.
When is it proper to issue a Wage Order?
Whenever conditions in the region so warrant, the Regional Board shall investigate
and study all pertinent facts and based on the prescribed standards and criteria, shall
proceed to determine whether a Wage Order should be issued. Any such Wage Order shall
take effect after fifteen (15) days from its complete publication in at least one (1)
newspaper of general circulation in the region.
What are the standards/criteria for minimum wage fixing?
In the determination of regional minimum wages, the Regional Board shall,
among other relevant factors, consider the following:
(1) Needs of workers and their families
1) Demand for living wages;
2) Wage adjustment vis-à-vis the consumer price index;
3) Cost of living and changes therein;
4) Needs of workers and their families;
5) Improvements in standards of living.
(2) Capacity to pay
1) Fair return on capital invested and capacity to pay of employers;
2) Productivity.
(3) Comparable wages and incomes
1) Prevailing wage levels.
(4) Requirements of economic and social development
1) Need to induce industries to invest in the countryside;
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legal anchor for the declaration of the invalidity of so many acts of employers deemed to
have eliminated or diminished the benefits of employees.
The 2014 case of Wesleyan University-Philippines v. Wesleyan University-
Philippines Faculty and Staff Association,1 succinctly pointed out that the Non-
Diminution Rule found in Article 100 of the Labor Code explicitly prohibits employers
from eliminating or reducing the benefits received by their employees. This rule, however,
applies only if the benefit is based on any of the following:
(1) An express policy;
(2) A written contract; or
(3) A company practice.
There is not much controversy if the benefit involved is provided for under Nos. 1
and 2 above. Thus, if it is expressly laid down in a written policy unilaterally promulgated
by the employer, the employer is duty-bound to adhere and comply by its own policy. It
cannot be allowed to renege from its commitment as expressed in the policy.
4.1.
COMPANY PRACTICE
What is company
practice?
Company practice is a custom or habit shown by an employer’s repeated, habitual
customary or succession of acts of similar kind by reason of which, it gains the status of
a company policy that can no longer be disturbed or withdrawn.
To ripen into a company practice that is demandable as a matter of right, the giving
of the benefit should not be by reason of a strict legal or contractual obligation but
by reason of an act of liberality on the part of the employer.
What are the criteria that may be used to determine existence of company practice?
Since there is no hard and fast rule which may be used and applied in determining
whether a certain act of the employer may be considered as having ripened into a
practice, the following criteria may be used to determine whether an act has ripened into
a company practice:
(1) The act of the employer has been done for a considerable period of time;
(2) The act should be done consistently and intentionally; and
(3) The act should not be a product of erroneous interpretation or construction of
a doubtful or difficult question of law or provision in the CBA.
(See the 2013 case of Vergara, Jr. v. Coca-Cola Bottlers Philippines, Inc.2)
What is the new 105-DAY EXPANDED MATERNITY LEAVE LAW (R.A. NO. 11210)?
On February 20, 2019, President Rodrigo Duterte approved R.A. No. 11210, otherwise known as the “105-Day Expanded Ma
1 G.R. No. L-57636, May 16, 1983, 122 SCRA 267; 207 Phil. 2235.
2 G.R. No. 74156, June 29, 1988, 163 SCRA 71.
3 G.R. No. 163419, Feb. 13, 2008.
4 G.R. No. 117394, Feb. 21, 1997.
5 This law is entitled “An Act Increasing the Maternity Leave Period to One Hundred Five (105) Days for Female Workers with an Option to Extend for an Additional Thirty (30) Days
without Pay, and Granting an Additional Fifteen (15) Days for Solo Mothers and For Other Purposes.”
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Period of maternity leave 105 days of paid leave 60 days of paid leave
FREQUENCY OF THE GRANT In every instance of live childbirth, In every instance of pregnancy,
regardless of frequency miscarriage or emergency
termination of pregnancy,
regardless of frequency
NOTE: This discussion on the 2019 new maternity benefits law is being made here only for
academic purposes. It is highly unlikely that a question will be asked on this in the 2019 bar
exam because this law was passed way beyond the cut-off date of June 30, 2018.
4.
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SOLO PARENT
LEAVE (R.A.
What is the solo No. 8972)
parent leave?
This is the leave benefit granted to a male or female solo parent to enable
him/her to perform parental duties and responsibilities where his/her physical presence is
required.
How many days may be availed of as solo parent leave?
The solo parent leave shall not be more than seven (7) WORKING days every
year to a solo parent who has rendered service of at least one (1) year, to enable
him/her to perform parental duties and responsibilities where his/her physical presence
is required. This leave shall be non-cumulative.
It bears noting that this leave privilege is an additional leave benefit which is
separate and distinct from any other leave benefits provided under existing laws or
agreements.
Who is a solo parent?
The term "solo parent" refers to any individual who falls under any of the following categories:
(1) A woman who gives birth as a result of rape and other crimes against
chastity even without a final conviction of the offender: Provided, That the
mother keeps and raises the child;
(2) Parent left solo or alone with the responsibility of parenthood due to death of spouse;
(3) Parent left solo or alone with the responsibility of parenthood while the spouse
is detained or is serving sentence for a criminal conviction for at least one (1)
year;
(4) Parent left solo or alone with the responsibility of parenthood due to physical
and/or mental incapacity of spouse as certified by a public medical practitioner;
(5) Parent left solo or alone with the responsibility of parenthood due to legal
separation or de facto separation from spouse for at least one (1) year, as long
as he/she is entrusted with the custody of the children;
(6) Parent left solo or alone with the responsibility of parenthood due to declaration
of nullity or annulment of marriage as decreed by a court or by a church as
long as he/she is entrusted with the custody of the children;
(7) Parent left solo or alone with the responsibility of parenthood due to
abandonment of spouse for at least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear her/his
child/children instead of having others care for them or give them up to a
welfare institution;
(9) Any other person who solely provides parental care and support to a child or children;
(10)Any family member who assumes the responsibility of head of family as
a result of the death, abandonment, disappearance or prolonged absence of
the parents or solo parent.
What is the effect of change of status of the solo parent?
A change in the status or circumstance of the parent claiming benefits under the
law, such that he/she is no longer left alone with the responsibility of parenthood, shall
terminate his/her eligibility for these benefits.
Who are considered children under this law?
"Children" refer to those living with and dependent upon the solo parent for
support who are unmarried, unemployed and not more than eighteen (18) years of age,
or even over eighteen (18) years but are incapable of self- support because of mental
and/or physical defect/disability.
Is an unavailed parental leave convertible to cash?
No. In the event that the parental leave is not availed of, said leave shall not be
convertible to cash unless specifically agreed upon previously.
5.
LEAVE BENEFITS FOR WOMEN
WORKERS UNDER R.A. 9710 AND R.A.
9262
a.
SPECIAL LEAVES FOR WOMEN
WORKERS (R.A. No. 9710)
What is this special leave benefit?
A special leave benefit for women was granted under R.A. No. 9710, otherwise
known as “The Magna Carta of Women” [August 14, 2009]. Thus, any female employee in
the public and private sector regardless of age and civil status shall be entitled to a special
leave of two (2) months with full pay based on her gross monthly compensation
subject to existing laws, rules and regulations due to surgery caused by gynecological
disorders under the following terms and conditions:
1. She has rendered at least six (6) months continuous aggregate employment
service for the last twelve (12) months prior to surgery;
2.In the event that an extended leave is necessary, the female employee may use her earned leave credits; and
3.This special leave shall be non-cumulative and non-convertible to cash.
“Gynecological disorders” refer to disorders that would require surgical
procedures such as, but not limited to, dilatation and curettage and those involving
female reproductive organs such as the vagina, cervix, uterus, fallopian
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tubes, ovaries, breast, adnexa and pelvic floor, as certified by a competent physician.
Gynecological surgeries shall also include hysterectomy, ovariectomy, and mastectomy.
Is this leave similar to maternity leave?
No. This leave should be distinguished from maternity leave benefit, a separate and
distinct benefit, which may be availed of in case of childbirth, miscarriage, complete
abortion or emergency termination of pregnancy.
A woman, therefore, may avail of this special leave benefit in case she
undergoes surgery caused by gynecological disorder and at the same time maternity
benefit as these two leaves are not mutually exclusive.
b.
LEAVE FOR VICTIMS OF
VIOLENCE AGAINST WOMEN
AND CHILDREN (R.A. No.
What is this kind 9262)
of leave?
This special leave is granted to a woman employee who is a victim under this law. It is for a total of ten (10)
days of paid leave of absence, in addition to other paid leaves under the law. It is extendible when the necessity arises a
What is the requirement for its entitlement?
At any time during the application of any protection order, investigation, prosecution and/or trial of the criminal case, a
b.
STIPULATION AGAINST MARRIAGE
What are the prohibited acts against women under the Labor Code?
Article 137 of the Labor Code and its implementing rule consider unlawful the followings acts of the employer:
1. To discharge any woman employed by him for the purpose of preventing such
woman from enjoying maternity leave, facilities and other benefits
provided under the Labor Code;
2. To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her
pregnancy;
3. To discharge or refuse the admission of such woman upon returning to her
work for fear that she may again be pregnant;
4. To discharge any woman or any other employee for having filed a complaint
or having testified or being about to testify under the Labor Code; or
5. To require as a condition for or continuation of employment that a woman
employee shall not get married or to stipulate expressly or tacitly that upon
getting married, a woman employee shall be deemed resigned or
separated, or to actually dismiss, discharge, discriminate or otherwise
prejudice a woman employee merely by reason of marriage.
d.
SEXUAL HARASSMENT
(ANTI-SEXUAL HARASSMENT
ACT)
(R.A. No. 7877)
What are the 3 situations contemplated under this law?
R.A. No. 7877 declares sexual harassment unlawful only in three (3) situations, namely:
(1) employment;
1 G.R. No. 118978, May 23, 1997, 272 SCRA 596, 605.
2 G.R. No. 164774, April 12, 2006.
3 G.R. No. 162994, Sept. 17, 2004.
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(c) No child below 15 years of age shall be allowed to work between eight (8) o’clock in the evening and six
(6) o’clock in the morning of the following day and no child 15 years of age
but below 18 shall be allowed to work between ten (10) o’clock in the
evening and six (6) o’clock in the morning of the following day.
What is the prohibition of employing minors in certain undertakings and advertisements?
No child below 18 years of age is allowed to be employed as a model in any
advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks,
tobacco and its by-products, gambling or any form of violence or pornography.
3.
KASAMBAHAY
(R.A. No. 10361, otherwise known as
“Domestic Workers Act” or “Batas Kasambahay” )
What is the coverage of the Kasambahay Law?
R.A. No. 10361 applies to all domestic workers employed and working within the
country. It shall cover all parties to an employment contract for the services of the
following Kasambahay, whether on a live-in or live-out arrangement, such as, but not
limited to:
(a) General househelp;
(b) Yaya;
(c) Cook;
(d) Gardener;
(e) Laundry person; or
(f)Any person who regularly performs domestic work in one household on an occupational basis.
Who are EXCLUDED from its coverage?
The following are not covered:
(a) Service providers;
(b) Family drivers;
(c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally or sporadically and not on an occupational basis.
Who is a domestic worker or kasambahay?
“Domestic worker” or “kasambahay” refers to any person engaged in domestic
work within an employment relationship, whether on a live-in or live-out arrangement,
such as, but not limited to, general househelp, "yaya", cook, gardener, or laundry person,
but shall exclude service providers, family drivers, children who are under foster family
arrangement, or any person who performs domestic work only occasionally or sporadically
and not on an occupational basis.
This term shall not include children who are under foster family arrangement
which refers to children who are living with a family or household of relative/s and are
provided access to education and given an allowance incidental to education, I.e.,
"baon", transportation, school projects, and school activities.
Because of these new terminologies prescribed in the law, the use of the term
“househelper” may no longer be legally correct.
Is the employment contract required to be in writing?
Yes. The employment contract must be in writing and should contain the conditions set by law.
What are the rights and privileges of a kasambahay?
The rights and privileges of the Kasambahay are as follows:
(a) Minimum wage;
(b) Other mandatory benefits, such as the daily and weekly rest periods, service
incentive leave, and 13th month pay;
(c) Freedom from employers' interference in the disposal of wages;
(d) Coverage under the SSS, PhilHealth and Pag-IBIG laws;
(e) Standard of treatment;
(f) Board, lodging and medical attendance;
(g) Right to privacy;
(h) Access to outside communication;
(i) Access to education and training;
(j) Right to form, join, or assist labor organization;
(k) Right to be provided a copy of the employment contract;
(I) Right to certificate of employment;
(m) Right to terminate the employment; and
(n) Right to exercise their own religious beliefs and
cultural practices. The foregoing rights and
privileges are discussed below.
What is the minimum wage of kasambahay?
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The minimum wage1 of the kasambahay as of December 2017 shall not be less than the following:
b. Normal daily hours of work. – Because R.A. No. 10361 does not contain any
provision on the number of normal hours of work that a Kasambahay should
render in a day but merely prescribes said daily rest period of eight (8) hours
per day, it may be concluded that the Kasambahay should work for at least a
total of sixteen (16) hours per day as normal hours of work. However, it must
be noted that the Labor Code does not contain any provision on the normal
hours of work of househelpers. Article 1695 of the Civil Code, however,
specifically provides that househelpers shall not be required to work for more
than ten (10) hours a day. Since R.A. No. 10361, a special law, is the most
recent piece of legislation, it should prevail over the general provision of the
Civil Code.
c. Normal daily hours of work for working child-kasambahay is eight (8) hours per day.
d. 13th month pay. - The Kasambahay who has rendered at least one (1) month
of service is entitled to a 13th month pay which shall not be less than one-
twelfth (1/12) of his/her total basic salary earned in a calendar year. The 13th
month pay shall be paid not later than December 24 of every year or upon
separation from employment.
e. Daily rest period. – The Kasambahay shall be entitled to an aggregate daily
rest period of eight (8) hours.
l. Board, lodging and medical attendance. - The employer shall provide for
the basic necessities of the Kasambahay, to include the following:
(1) At least three (3) adequate meals a day, taking into consideration the
Kasambahay's religious beliefs and cultural practices;
(2) Humane sleeping condition that respects the person's privacy for live-in arrangement; and
(3) Appropriate rest and medical assistance in the form of first-aid medicines,
in case of illnesses and injuries sustained during service without loss of
benefits.
m.Opportunities for education and training. - The Kasambahay shall be
afforded the opportunity to finish basic education, which shall consist of elementary and
secondary education. He/she may be allowed access to alternative learning systems and,
as far as practicable, higher education or technical vocational education and training.
n.Membership in labor organization. - The Kasambahay shall have the right to
join a labor organization of his/her own choosing for purposes of mutual aid and
collective negotiation.
r.Health and safety. - The employer shall safeguard the safety and health of the
Kasambahay in accordance with the standards which the DOLE shall develop through
the Bureau of Working Conditions (BWC) and the Occupational Safety and Health
Center (OSHC) within six (6) months from the promulgation of this IRR. The said
standards shall take into account the peculiar nature of domestic work.
s. Prohibition on debt bondage. - It shall be unlawful for the employer or any
person acting on his/her behalf to place the Kasambahay under debt bondage. “Debt
bondage” refers to the rendering of service by the Kasambahay as security or payment
for a debt where the length and nature of service is not clearly defined or when the value
of the service is not reasonably applied in the payment of the debt.
t.Assignment to non-household work. - 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.
If so assigned, the Kasambahay will no longer be treated as such but as a
regular employee of the establishment.
What are the rules on termination of Kasambahay?
a.Pre-termination of employment. – The following rules shall be observed:
(1)In case the duration of employment is specified in the contract, the
Kasambahay and the employer may mutually agree upon notice to terminate the
contract of employment before the expiration of its term.
(2) In case the duration is not determined by stipulation or by nature of
service, the employer or the Kasambahay may give notice to end the
employment relationship five (5) days before the intended termination of
employment.
b. Termination of employment initiated by the Kasambahay. - The
Kasambahay may terminate the employment relationship at any time before the
expiration of the contract for any of the following causes:
(1) Verbal or emotional abuse of the Kasambahay by the employer or any member of the household;
(2)Inhuman treatment including physical abuse of the Kasambahay by the
employer or any member of the household;
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5
NIGHT
WORKERS
(R.A. No.
What is the new law on 10151)
night work?
6.
APPRENTICES AND LEARNERS
What are important apprenticeship-related terms?
“Apprenticeship” means practical training on the job supplemented by
related theoretical instructions involving apprenticeable occupations and trades as may
be approved by the DOLE Secretary. It is a training within employment with compulsory
related theoretical instructions involving a contract between an apprentice and an
employer or an enterprise on an approved apprenticeable occupation.
An “apprentice” is a worker who is covered by a written apprenticeship
agreement with an individual employer or any of the entities recognized under the
law. He is a person undergoing training for an approved apprenticeable occupation
during an established period and covered by an apprenticeship agreement.
An “apprenticeable occupation” means any trade, form of employment or
occupation approved for apprenticeship by the DOLE Secretary, which requires for
proficiency, more than three (3) months of practical training on the job
supplemented by related theoretical instructions. It is an occupation officially
endorsed by a tripartite body and approved for apprenticeship by TESDA.
An “apprenticeship agreement” is an employment contract wherein the employer
binds himself to train the apprentice and the apprentice in turn accepts the terms of the
training and agrees to work for the employer for a recognized apprenticeable occupation,
emphasizing the rights, duties and responsibilities of each party.
What are important learnership-related terms?
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Duration of training Practical training on the job for Practical training on the job of more
a period not exceeding three than three (3) months but not over
(3) months six (6) months
Option to employ The enterprise is obliged to hire The enterprise is given only an
the learner after the lapse of “option” to hire the apprentice as an
the learnership period employee.
written instructions.
7.
PERSONS WITH DISABILITIES
What is the applicable law to PWDs?
R.A. No. 7277,4 otherwise known as the “Magna Carta for Disabled Persons.” The
provisions on handicapped workers found in the Labor Code (Articles 78 to 81) are no
longer applicable.
What are important definitions related to PWDs?
1. “Persons with Disability” or “PWD” 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.
2. “Impairment” refers to any loss, diminution or aberration of psychological,
physiological, or anatomical structure or function.
3. “Disability” means (1) a physical or mental impairment that substantially limits
one or more psychological, physiological or anatomical functions of an individual
or activities of such individual; (2) a record of such an impairment; or (3) being
regarded as having such an impairment.
4. “Handicap” refers to a disadvantage for a given individual, resulting from an
impairment or a disability that limits or prevents the function or activity that is
considered normal given the age and sex of the individual.
5. “Marginalized Persons with Disability” refer to persons with disability
who lack access to rehabilitative services and opportunities to be able to
participate fully in socio-economic activities and who have no means of livelihood
and whose incomes fall below the poverty threshold.
What is meant by EQUAL OPPORTUNITY FOR EMPLOYMENT?
Under the law,5 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.
1Entitled “AN ACT PROVIDING FOR THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR AND AFFORDING STRONGER PROTECTION FOR THE WORKING
CHILD, AMENDING FOR THIS PURPOSE REPUBLIC ACT NO. 7610, AS AMENDED, OTHERWISE KNOWN AS THE ‘SPECIAL PROTECTION OF CHILDREN AGAINST
CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT’ approved on December 19, 2003.
2 The exceptions, as enumerated in Section 12 of R.A. No. 7610, as amended by Section 2 of R.A. No. 9231 are as follows:
(1) When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed: Provided, however, That
his/her employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development: Provided, further, That the parent or legal guardian shall
provide the said child with the prescribed primary and/or secondary education; or
(2) Where a child's employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: Provided, That
the employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the
Department of Labor and Employment: Provided, further, That the following requirements in all instances are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal development of the child;cralaw
(b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and
arrangement of working time; and
(c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.
In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and
Employment which shall ensure observance of the above requirements.
3 Article 59, Labor Code; Section 11, Rule VI, Book II, Rules to Implement the Labor Code.
4 Approved on March 24, 1992.
5 Under R.A. No. 7277, otherwise known as the “Magna Carta for Disabled Persons” [now known as “Magna Carta for Persons with Disability”.
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Five percent (5%) of all casual emergency and contractual positions in the
Departments of Social Welfare and Development, Health, Education and other
government agencies, offices or corporations engaged in social development shall be
reserved for PWDs.1
Are PWDs eligible for apprenticeship and learnership?
Yes. Under R.A. No. 7277, it is provided that subject to the provisions of the Labor
Code, as amended, PWDs shall be eligible as apprentices or learners; provided that their
handicap is not as much as to effectively impede the performance of job operations in
the particular occupation for which they are hired and provided further that after the
lapse of the period of apprenticeship, if found satisfactory in the job performance, they
shall be eligible for employment.
What is the applicable wage rate to PWDs?
Under R.A. No. 7277, the wage rate of PWDs is 100% of the applicable minimum wage.
a.
DISCRIMINATION
What are the forms of prohibited discriminatory acts against PWDs in terms of employment?
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. The following constitute acts of discrimination:
(a) Limiting, segregating or classifying a job applicant with disability in such a
manner that adversely affects his work opportunities;
(b) Using qualification standards, employment tests or other selection criteria that
screen out or tend to screen out a PWD unless such standards, tests or other
selection criteria are shown to be job-related for the position in question and
are consistent with business necessity;
(c) Utilizing standards, criteria, or methods of administration that:
(1) have the effect of discrimination on the basis of disability; or
(2) perpetuate the discrimination of others who are subject to common administrative control.
(d) Providing less compensation, such as salary, wage or other forms of
remuneration and fringe benefits, to a qualified employee with disability, by
reason of his disability, than the amount to which a non-disabled person
performing the same work is entitled;
(e) Favoring a non-disabled employee over a qualified employee with disability
with respect to promotion, training opportunities, and study and scholarship
grants solely on account of the latter’s disability;
(f) Re-assigning or transferring an employee with a disability to a job or position he
cannot perform by reason of his disability;
(g) Dismissing or terminating the services of an employee with disability by reason
of his disability unless the employer can prove that he impairs the satisfactory
performance of the work involved to the prejudice of the business entity;
provided, however, that the employer first sought to provide reasonable
accommodations for persons with disability;
(h) Failing to select or administer in the most effective manner employment tests
which accurately reflect the skills, aptitude or other factor of the applicant or
employee with disability that such tests purports to measure, rather than the
impaired sensory, manual or speaking skills of such applicant or employee, if
any; and
(i) Excluding PWD from membership in labor unions or similar organizations.
b.
INCENTIVES FOR EMPLOYERS
------------oOo------------
SYLLABUS
MAJOR
TOPIC 4
orders, rules and regulations or parts thereof inconsistent with this Act are hereby repealed, modified or amended accordingly: Provided, That no person shall be deemed to be
vested with any property or other right by virtue of the enactment or operation of this Act.”
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C.
DISABILITY AND DEATH BENEFITS
1.
LABOR CODE1
What is the State Insurance
Fund [SIF]?
The State Insurance Fund (SIF) is built up by the contributions of employers
based on the salaries of their employees as provided under the Labor Code.
There are two (2) separate and distinct State Insurance Funds: one established
under the SSS for private sector employees; and the other, under the GSIS for public
sector employees. The management and investment of the Funds are done separately and
distinctly by the SSS and the GSIS. It is used exclusively for payment of the
employees’ compensation benefits and no amount thereof is authorized to be used for any
other purpose.
What are the agencies involved in the implementation of the Employees Compensation Program (ECP)?
There are three (3) agencies involved in the implementation of the Employees’
Compensation Program (ECP). These are: (1) The Employees’ Compensation
Commission (ECC) which is mandated to initiate, rationalize and coordinate policies of
the ECP and to review appealed cases from (2) the Government Service Insurance
System (GSIS) and (3) the Social Security System (SSS), the administering agencies
of the ECP.
Who are covered by the ECP?
a.General coverage. – The following shall be covered by the Employees’ Compensation Program (ECP):
1. All employers;
2. Every employee not over sixty (60) years of age;
3. An employee over 60 years of age who had been paying contributions to the
System (GSIS/SSS) prior to age sixty (60) and has not been compulsorily retired;
and
4. Any employee who is coverable by both the GSIS and SSS and should be
compulsorily covered by both Systems.
b.Sectors of employees covered by the ECP. - The following sectors are covered under the ECP:
1. All public sector employees including those of government-owned and/or
controlled corporations and local government units covered by the GSIS;
2. All private sector employees covered by the SSS; and
3. Overseas Filipino workers (OFWs), namely:
a. Filipino seafarers compulsorily covered under the SSS.
b. Land-based contract workers provided that their employer, natural or
juridical, is engaged in any trade, industry or business undertaking in the
Philippines; otherwise, they shall not be covered by the ECP.
When is the start of coverage of employees under the ECP?
The coverage under the ECP of employees in the private and public sectors starts
on the first day of their employment.
What are the benefits under the ECP?
The following are the benefits provided under the Labor Code:
a. Medical Benefits
b.Disability Benefits
1.Temporary total disability
2.Permanent total disability
3.Permanent partial disability
c.Death Benefit
d.Funeral Benefit
1 Relevant provisions: Articles 172 [166] to 215 [208-A], Title II, Book IV of the Labor Code.
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2.
POEA-STANDARD EMPLOYMENT CONTRACT
(POEA-SEC)
I.
MONETARY CLAIMS OF SEAFARERS
FOR SICKNESS AND DISABILITY BENEFITS
II.
EXISTENCE AND EXTENT OF SEAFARER’S DISABILITY,
HOW DETERMINED AND DECLARED
1 Elburg Shipmanagement Phils., Inc. v. Quiogue, Jr., G.R. No. 211882, July 29, 2015, 764 SCRA 431.
2 Such as Gere v. Anglo-Eastern Crew Management Phils., Inc., G.R. Nos. 226656 & 226713, April 23, 2018; Magsaysay Mitsui OSK Marine, Inc. v. Buenaventura, G.R. No. 195878,
Jan. 10, 2018.
3 An example of uncooperativeness is the case of Marlow Navigation Philippines, Inc. v. Osias, supra, where Osias, based on the evidence presented, did not fully comply with the
prescribed medical therapy.
4 G.R. No. 215471, Nov. 23, 2015.
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c.Conditions required for the claim for total and permanent disability benefits to prosper.
In sum, according to the 2019 case of Torillos,1 in order for a seafarer’s claim
for total and permanent disability benefits to prosper, any of the following conditions
should be present:
(a) The company-designated physician failed to issue a declaration as to his fitness
to engage in sea duty or disability even after the lapse of the 120-day period
and there is no indication that further medical treatment would address his
temporary total disability, hence, justify an extension of the period to 240
days;
(b) 240 days had lapsed without any certification issued by the company designated physician;
(c) The company-designated physician declared that he is fit for sea duty within
the 120-day or 240-day period, as the case may be, but his physician of choice
and the doctor chosen under Section 20 (B) (3) of the POEA-SEC are of a
contrary opinion;
(d) The company-designated physician acknowledged that he is partially
permanently disabled but other doctors who he consulted, on his own and
jointly with his employer, believed that his disability is not only permanent but
total as well;
(e) The company-designated physician recognized that he is totally and
permanently disabled but there is a dispute on the disability grading;
(f) The company-designated physician determined that his medical condition is not
compensable or work- related under the POEA-SEC but his doctor-of-choice and
the third doctor selected under Section 20 (B) (3)2 of the POEA-SEC found
otherwise and declared him unfit to work;
(g) The company-designated physician declared him totally and permanently
disabled but the employer refuses to pay him the corresponding benefits; and
(h) The company-designated physician declared him partially and permanently
disabled within the 120-day or 240-day period but he remains incapacitated to
perform his usual sea duties after the lapse of said periods.
3.POST-EMPLOYMENT MEDICAL EXAMINATION.
a.Mandatory submission for post-employment medical examination
by a company-designated physician.
Section 20 (A) (3) of the 2010 POEA-SEC, reads:
“COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS
“The liabilities of the employer when the seafarer suffers work-related injury
or illness during the term of his contract are as follows:
xxx
“For this purpose, the seafarer shall submit himself to a post-employment
medical examination by a company-designated physician within three
working days upon his return except when he is physically incapacitated to do
so, in which case, a written notice to the agency within the same period is
deemed as compliance. In the course of the treatment, the seafarer shall also report
regularly to the company-designated physician specifically on the dates as prescribed
by the company-designated physician and agreed to by the seafarer. Failure of the
seafarer to comply with the mandatory reporting requirement shall result in his
forfeiture of the right to claim the above benefits.”
It is clear from the foregoing that for a seafarer’s claim for disability to prosper, it
is mandatory and must be strictly observed that within three (3) working days
from his repatriation, he is examined by a company- designated physician. Non-
compliance with this mandatory requirement results in the forfeiture of the right to claim
for compensation and disability benefits. Consequently, the complaint filed by a non-
compliant seafarer should be dismissed outright.
b.Exceptions.
This rule is not absolute, however. It admits of exception as (1) when the seafarer is
incapacitated to report to the employer upon his repatriation; and (2) when the
employer inadvertently or deliberately refused to submit the seafarer to a post-
employment medical examination by a company-designated physician.
4.RIGHT OF SEAFARER TO SEEK A SECOND OPINION.
a. When right to seek second opinion accrues.
The seafarer has the right to seek a second opinion once the company-designated
physician makes a definitive and final assessment within the 120-day period; otherwise,
no such obligation devolves on the seafarer to consult his own doctor.
5. THE THIRD DOCTOR RULE - MANDATORY PROCEDURE IN JOINTLY
ENGAGING A THIRD DOCTOR.
a. Referral to a third-party doctor, when required.
The conflicting findings of the company's doctor and the seafarer's physician
often stir suits for disability compensation. As an extrajudicial measure of settling their
differences, the POEA-SEC gives the parties the option of agreeing jointly on a third
doctor whose assessment shall break the impasse and shall be the final and binding
diagnosis.3
While it is the company-designated doctor who is given the responsibility to make a
conclusive assessment on the degree of the seafarer's disability and his capacity to resume
work within 120/240 days, the parties, however, are free
1 Torillos v. Eastgate Maritime Corporation, G.R. Nos. 215904 & 216165, Jan. 10, 2019.
2 Id.
3 C.F. Sharp Crew Management, Inc. v. Castillo, G.R. No. 208215, April 19, 2017.
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to disregard the findings of the company doctor as well as the chosen doctor of the
seafarer, in case they cannot agree on the disability gradings issued and jointly seek the
opinion of a third-party doctor pursuant to Section 20 (A) (3) of the 2010 POEA-SEC which
states:
“SECTION 20. COMPENSATION AND BENEFITS
“COMPENSATION AND BENEFITS FOR INJURY OR
ILLNESS
“The liabilities of the employer when the seafarer suffers work-related injury
or illness during the term of his contract are as follows:
3. xxx
“If a doctor appointed by the seafarer disagrees with the assessment, a
third doctor may be agreed jointly between the Employer and the seafarer.
The third doctor's decision shall be final and binding on both parties.”
In other words, the referral to a third doctor is mandatory when:
(1) there is a valid and timely assessment by the company-designated physician; and
(2) the appointed doctor of the seafarer refuted such assessment.
6.MEDICAL ABANDONMENT AND PREMATURE FILING OF COMPLAINT
FOR DISABILITY CLAIM.
The act of a seafarer in refusing to undergo medical treatment or in refusing to
continue his medical treatment with the company-designated physician is called “medical
abandonment” which would result in the denial of his disability claim. Moreover, the
filing of a complaint for disability claim before the lapse of the 120-day/240-day treatment
period will result in its dismissal on the ground of prematurity as at that point, the cause
of action may be said to have not yet accrued as a matter of right.
7.RULE IN CASE OF CONFLICT OF OPINIONS.
In any case, the Supreme Court underscored in Nazareno1 that “the bottomline is
this: In a situation where the certification of the company-designated physician would
defeat the OFW’s claim while the opinion of the independent physicians would uphold
such claim, the Court adopts the findings favorable to the OFW. The law looks tenderly on
the laborer. Where the evidence may be reasonably interpreted in two divergent
ways, one prejudicial and the other favorable to him, the balance must be tilted in his
favor consistent with the principle of social justice.”
8.EFFECT OF MISREPRESENTATION ON DISABILITY CLAIMS.
Misrepresentation on the part of the claimant would defeat the claim for total
permanent disability. In Ayungo,2 petitioner did not disclose that he had been suffering
from hypertension and/or had been actually taking medications therefor (i.e., Lifezar)
during his PEME. As the records would show, the existence of Ayungo’s hypertension was
only revealed after his repatriation, as reflected in the Medical Report dated March 26,
2008 and reinforced by subsequent medical reports issued by Metropolitan Medical
Center. To the Court’s mind, Ayungo’s non-disclosure constitutes fraudulent
misrepresentation which, pursuant to Section 20 (E) of the 2000 POEA-SEC, disqualifies
him from claiming any disability benefits from his employer.
III.
MONETARY CLAIMS OF SEAFARERS
FOR DEATH BENEFITS
1. RE
QUISITES.
To be entitled to death compensation benefits from the employer, the death of the seafarer:
(1) must be work-related; and
(2) must happen during the term of the employment contract.
1.1. 1ST REQUISITE: DEATH MUST BE WORK-RELATED.
a. Meaning of work-related death.
While the 2010 and the earlier 2000 POEA-SEC do not expressly define what a
“work-related death” means, it is evident from Part B (4) as above-quoted that the said
term refers to the seafarer’s death resulting from a work- related injury or illness.
This denotation complements the definitions accorded to the terms “work-related injury”
and “work-related illness” under the 2010 POEA-SEC as follows:
“Definition of Terms:
“For purposes of this contract, the following terms are defined as follows:
xxx
“16. Work-Related Illness - any sickness as a result of an occupational disease listed under
Section 32~A of this Contract with the conditions set therein satisfied.
“17. Work-Related Injury - injury arising out of and in the course of employment.
What is clear from the foregoing is that work-related injury is one resulting in
disability or death arising out of and in the course of employment. Thus, there is a
need to show that the injury resulting to disability or death must arise (1) out of
employment; and (2) in the course of employment.
1.2. 2ND REQUISITE: DEATH MUST OCCUR DURING TERM OF EMPLOYMENT.
a.The death should happen during employment.
of a work-related injury or illness constitutes an exception thereto. This is based on a liberal construction of the 2000 POEA-SEC2 as impelled by the p
k.
s cabin.
------------oOo------------
1 Anita Canuel v. Magsaysay Maritime Corporation, G.R. No. 190161, Oct. 13, 2014.
2 Now 2010 POEA-SEC.
3 G.R. No. 198225, Sept. 27, 2017.
4 G.R. No. 192993, Aug. 11, 2014.
5 G.R. No. 183646, Sept. 18, 2009, 616 Phil. 758.
6 G.R. No. 151993, Oct. 19. 2011.
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SYLLABUS
MAJOR TOPIC
5
LABOR RELATIONS
A.
RIGHT TO SELF-ORGANIZATION
1.
COVERAGE
a.
PERSONS WHO CAN EXERCISE
RIGHT TO SELF-ORGANIZATION
Who are eligible to join, form or assist a labor organization for purposes of collective bargaining?
In the private sector:
1. All persons employed in commercial, industrial and agricultural enterprises;
2. Employees of government-owned and/or controlled corporations without
original charters established under the Corporation Code;
3. Employees of religious, charitable, medical or educational institutions,
whether operating for profit or not;
4. Front-line managers, commonly known as supervisory employees [See discussion below];
5. Alien employees [See discussion below];
6. Working children [See discussion below];
7. Homeworkers [See discussion below];
8. Employees of cooperatives [See discussion below]; and
9. Employees of legitimate contractors not with the principals but with the contractors
In the public sector:
All rank-and-file employees of all branches, subdivisions, instrumentalities, and
agencies of government, including government-owned and/or controlled
corporations with original charters, can form, join or assist employees’
organizations of their own choosing.
Are front-line managers or supervisors eligible to join, form or assist a labor organization?
Yes, but only among themselves. They cannot join a rank-and-file union.
Do alien employees have the right to join a labor organization?
No, except if the following requisites are complied with:
(1) He should have a valid working permit issued by the DOLE; and
(2)He is a national of a country which grants the same or similar rights to Filipino
workers OR which has ratified either ILO Convention No. 87 or ILO
Convention No. 98 (ON THE RIGHT TO SELF- ORGANIZATION OF
WORKERS) as certified by the Philippine Department of Foreign Affairs (DFA).
Do members of cooperatives have the right to join, form or assist a labor organization?
No, because they are co-owners of the cooperative.
What about employees of a cooperative?
Yes, because they have employer-employee relationship with the cooperative.
What about members who are at the same time employees of the cooperative?
No, because the prohibition covers employees of the cooperative who are at the same time members thereof.
Can employees of job contractors join, form or assist a labor organization?
Yes, but not for the purpose of collective bargaining with the principal but with
their direct employer – the job contractor.
Are self-employed persons allowed to join, form or assist a labor organization?
Yes, for their mutual aid and protection but not for collective bargaining
purposes since they have no employers but themselves. BUT AS AND BY WAY OF
DISTINCTION, THEIR LABOR ORGANIZATION IS CALLED “WORKERS’
ASSOCIATION.”
This rule applies as well to ambulant, intermittent and other workers, rural workers and those without any
definite employers.
The reason for this rule is that these persons have no employers with whom they can collectively bargain.
b.
PERSONS WHO CANNOT EXERCISE
RIGHT TO SELF-ORGANIZATION
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Who are the persons that are not allowed to form, join or assist labor organizations?
a. In the private sector.
1. Top and middle level managerial employees; and
2. Confidential employees.
b. In the public sector.
The following are not eligible to form employees’ organizations:
1. High-level employees whose functions are normally considered as policy-
making or managerial or whose duties are of a highly confidential nature;
2. Members of the Armed Forces of the Philippines;
3. Police officers;
4. Policemen;
5. Firemen; and
6. Jail guards.
The two (2) criteria above are cumulative and both must be met if an employee is to be considered a
“confidential employee” that would deprive him of his right to form, join or assist a labor organization.
What is the doctrine of necessary implication?
Under the confidential employee rule, a rank-and-file employee or a supervisory
employee, is elevated to the position of a managerial employee, under another doctrine
called the DOCTRINE OF NECESSARY IMPLICATION, hence, he is treated as if
he is a managerial employee because of his access to confidential information related
to labor relations. THE DOCTRINE OF NECESSARY IMPLICATION IS THEREFORE
THE LEGAL BASIS FOR INELIGIBILITY OF CONFIDENTIAL EMPLOYEE TO JOIN A
UNION.
For example, not all secretaries to top officials of the company may be considered
as confidential employees, unless they have access to confidential information related
to labor relations, such as when they transcribe or type/encode the counter-proposals
of management on the proposals of the SEBA in a CBA negotiation. That access to such
counter-proposals is the type of access contemplated under this rule.
2.
INELIGIBILITY OF MANAGERIAL
EMPLOYEES; RIGHT OF SUPERVISORY
EMPLOYEES
Are managerial employees allowed unionize?
There are 3 types of managerial employees:
1.Top Management
2.Middle Management
3.First-Line Management (also called supervisory level)
The first two above are absolutely prohibited; but the third, being supervisors,
are allowed but only among themselves.
Are confidential employees allowed to join, form or assist a labor organization?
No, under the confidential employee rule.
“Confidential employees” are those who meet the following criteria:
(1) They assist or act in a confidential capacity;
(2) To persons or officers who formulate, determine, and effectuate management
policies specifically in the field of labor relations. If not related to labor
relations, an employee can never be considered as confidential employee as
would deprive him of his right to self-organization.
The two (2) criteria are cumulative and both must be met if an employee is to be
considered a “confidential employee” that would deprive him of his right to form, join
or assist a labor organization.
3.
EFFECT OF INCLUSION AS MEMBERS OF
EMPLOYEES OUTSIDE OF THE BARGAINING
UNIT
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No. It is not allowed. However, it bears noting that in case there is commingling
or mixed membership of supervisors and rank-and-file employees in one union, the new
rule enunciated in Article 256 [245-A] of the Labor Code, unlike in the old law, is that it
cannot be invoked as a ground for the cancellation of the registration of the union. The
employees so improperly included are automatically deemed removed from the list of
members of said union. In other words, their removal from the said list is by operation of
law.
4.
NON-ABRIDGEMENT1
(OF RIGHT TO SELF-ORGANIZATION)
1. LEG
AL BASIS.
Article 257 [246] speaks of the principle of non-abridgment of the right to self-organization as follows:
“Article 257 [246]. Non-Abridgment of Right to Self-Organization. – It
shall be unlawful for any person to restrain, coerce, discriminate against or unduly
interfere with employees and workers in their exercise of the right to self-
organization. Such right shall include the right to form, join, or assist labor
organizations for the purpose of collective bargaining through
representatives of their own choosing and to engage in lawful concerted
activities for the same purpose or for their mutual aid and protection, subject
to the provisions of Article 279 [264] of this Code.”
More aptly, Article 257 [246] describes the legal concept of the “right to self-
organization,” which, as a legal proposition, includes two (2) basic rights, namely:
(1) “To form, join, or assist labor organizations for the purpose of collective bargaining through
representatives of their own choosing;” and
(2) “To engage in lawful concerted activities for the same purpose or for
their mutual aid and protection, subject to the provisions of Article 279
[264] of [the Labor] Code.”
5.
AFFILIATION AND DISAFFILIATION
es not change the principal-agent relationship between them. Such inclusion of the acronym is merely to indicate that the local union is affiliated with the fe
said act of disaffiliation, the employees who are members of the local union did not form a new union but merely exercised their right to register their local un
f the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. It may also refer to the
(a)
TEST TO DETERMINE
AN APPROPRIATE BARGAINING UNIT
What are the four tests to determine appropriate bargaining unit?
Based on jurisprudence, there are certain tests which may be used in determining
the appropriate collective bargaining unit, to wit:
(1) Community or mutuality of interest doctrine;
(2) Globe doctrine or will of the members;
(3) Collective bargaining history doctrine; and
2.GLOBE DOCTRINE.
This principle is based on the will of the employees. It is called Globe doctrine
because this principle was first enunciated in the United States case of Globe Machine
and Stamping Co.,5 where it was ruled, in defining the appropriate bargaining unit,
that in a case where the company’s production workers can be considered either as a
single bargaining unit appropriate for purposes of collective bargaining or as three (3)
separate and distinct bargaining units, the determining factor is the desire of the
workers themselves. Consequently, a certification election should be held separately to
choose which representative union will be chosen by the workers.
International School Alliance of Educators [ISAE] v. Quisumbing.6 - The
Supreme Court ruled here that foreign-hired teachers do not belong to the bargaining
unit of the local-hires because the former have not indicated their intention to be grouped
with the latter for purposes of collective bargaining. Moreover, the collective bargaining
history of the school also shows that these groups were always treated separately.
3.COLLECTIVE BARGAINING HISTORY DOCTRINE.
This principle puts premium to the prior collective bargaining history and
affinity of the employees in determining the appropriate bargaining unit. However, the
existence of a prior collective bargaining history has been held as neither decisive nor
conclusive in the determination of what constitutes an appropriate bargaining unit.
National Association of Free Trade Unions v. Mainit Lumber
Development Company Workers Union.7 - It was ruled here that there is mutuality of
interest among the workers in the sawmill division and logging division as to justify their
formation of a single bargaining unit. This holds true despite the history of said two
divisions being treated as separate units and notwithstanding their geographical distance
from each other.
4.EMPLOYMENT STATUS DOCTRINE.
The determination of the appropriate bargaining unit based on the employment
status of the employees is considered an acceptable mode. For instance, casual employees
and those employed on a day-to-day basis, according to
the Supreme Court in Philippine Land-Air-Sea Labor Union v. CIR, 1 do not have the
mutuality or community of interest with regular and permanent employees. Hence, their
inclusion in the bargaining unit composed of the latter is not justified. Confidential
employees, by the very nature of their functions, assist and act in a confidential capacity
to, or have access to confidential matters of, persons who exercise managerial functions in
the field of labor relations. As such, the rationale behind the ineligibility of managerial
employees to form, assist or join a labor union equally applies to them. Hence, they cannot
be allowed to be included in the rank-and-file employees’ bargaining unit. The rationale
for this inhibition is that if these managerial employees would belong to or be affiliated
with a union, the latter might not be assured of their loyalty to the union in view of
evident conflict of interest. The union can also become company- dominated with the
presence of managerial employees in its membership.
C.
BARGAINING REPRESENTATIVE
(A.K.A. SEBA OR BARGAINING AGENT)
What is a SEBA?
A Sole and Exclusive Bargaining Agent (SEBA) or commonly referred to as
“exclusive bargaining representative” or “exclusive bargaining agent” refers to a
legitimate labor organization duly certified as the sole and exclusive bargaining
representative or agent of all the employees in a bargaining unit.
What are the modes of determining the sole and exclusive bargaining agent?
(a)
REQUEST FOR SEBA CERTIFICATION
(Repealed and Replaced “VOLUNTARY RECOGNITION”)
If the requesting union or local fails to complete the requirements for SEBA
certification during the conference, the Request should be referred to the Election Officer
for the conduct of certification election.1
b.Action on the submission – when SEBA Certification should be issued.
If the DOLE Regional Director finds the requirements complete, he/she should
issue, during the conference, a Certification as SEBA enjoying the rights and privileges
of an exclusive bargaining agent of all the employees in the covered bargaining unit.2
The DOLE Regional Director should cause the posting of the SEBA Certification for
15 consecutive days in at least 2 conspicuous places in the establishment or covered
bargaining unit.
c.Effect of certification.
Upon the issuance of the Certification as SEBA, the certified union or local shall
enjoy all the rights and privileges of an exclusive bargaining agent of all the employees
in the covered CBU.
SECOND SCENARIO: Request for certification in unorganized establishment
with more than one (1) legitimate labor organization.
If the DOLE Regional Director finds the establishment unorganized with more than one (1) legitimate labor organization,
THIRD SCENARIO: Request for certification in organized establishment.
If the Regional Director finds the establishment organized, he/she should refer the same to the Mediator- Arbiter for the
Under this rule, a petition for certification election (PCE) may not be filed within one (1) year:
1.From the date a union is certified as SEBA by virtue of a REQUEST FOR SEBA CERTIFICATION; or
2.From the date a valid certification, consent, run-off or re-run election has
been conducted within the bargaining unit.
If after this one year period, the SEBA did not commence collective bargaining
with the employer, a PCE may be filed by a rival union to challenge the majority status of
the certified SEBA.
3.NEGOTIATIONS BAR RULE.
Under this rule, no PCE should be entertained while the sole and exclusive
bargaining agent (SEBA) and the employer have commenced and sustained negotiations
in good faith within the period of one (1) year from the date of a valid certification,
consent, run-off or re-run election or from the date of voluntary recognition.
Once the CBA negotiations have commenced and while the parties are in the
process of negotiating the terms and conditions of the CBA, no challenging union is
allowed to file a PCE that would disturb the process and unduly forestall the early
conclusion of the agreement.
4.BARGAINING DEADLOCK BAR RULE.
Under this rule, a PCE may not be entertained when a bargaining deadlock to which
an incumbent or certified bargaining agent is a party has been submitted to conciliation or
arbitration or has become the subject of a valid notice of strike or lockout.
Kaisahan ng Manggagawang Pilipino [KAMPIL-KATIPUNAN] v. Trajano. -
The bargaining deadlock- bar rule was not applied here because for more than four (4)
years after it was certified as the exclusive bargaining agent of all the rank-and-file
employees, it did not take any action to legally compel the employer to comply with its
duty to bargain collectively, hence, no CBA was executed. Neither did it file any unfair
labor practice suit against the employer nor did it initiate a strike against the latter.
Under the circumstances, a certification election may be validly ordered and held.
5.CONTRACT BAR RULE.
Under this rule, a PCE cannot be filed when a CBA between the employer and a
duly recognized or certified bargaining agent has been registered with the Bureau of
Labor Relations (BLR) in accordance with the Labor Code. Where the CBA is duly
registered, a petition for certification election may be filed only within the 60-day freedom
period prior to its expiry. The purpose of this rule is to ensure stability in the relationship
of the workers and the employer by preventing frequent modifications of any CBA earlier
entered into by them in good faith and for the stipulated original period.
When contract bar rule does not apply.
The contract-bar rule does not apply in the following cases:
1. Where there is an automatic renewal provision in the CBA but prior to the
date when such automatic renewal became effective, the employer seasonably
filed a manifestation with the Bureau of Labor Relations of its intention to
terminate the said agreement if and when it is established that the bargaining
agent does not represent anymore the majority of the workers in the bargaining
unit.
2. Where the CBA, despite its due registration, is found in appropriate
proceedings that: (a) it contains provisions lower than the standards fixed by
law; or (b) the documents supporting its registration are falsified, fraudulent
or tainted with misrepresentation.
3. Where the CBA does not foster industrial stability, such as contracts where the
identity of the representative is in doubt since the employer extended direct
recognition to the union and concluded a CBA therewith less than one (1) year
from the time a certification election was conducted where the “no union” vote
won. This situation obtains in a case where the company entered into a CBA
with the union when its status as exclusive bargaining agent of the employees
has not been established yet.
4. Where the CBA was registered before or during the last sixty (60) days of a
subsisting agreement or during the pendency of a representation case. It is
well-settled that the 60-day freedom period based on the original CBA should
not be affected by any amendment, extension or renewal of the CBA for purposes
of certification election.
What are the requisites for the validity of the petition for certification election?
The following requisites should concur:
1. The union should be legitimate which means that it is duly registered and listed
in the registry of legitimate labor unions of the BLR or that its legal personality
has not been revoked or cancelled with finality.
2. In case of organized establishments, the petition for certification election is filed
during (and not before or after) the 60-day freedom period of a duly
registered CBA.
3. In case of organized establishments, the petition complied with the 25%
written support of the members of the bargaining unit.
4. The petition is filed not in violation of any of the four (4) bar rules [See above discussion thereof].
What are the two (2) kinds of majorities (DOUBLE MAJORITY RULE)?
The process of certification election requires two (2) kinds of majority votes, viz.:
1. Number of votes required for the validity of the process of certification
election itself. In order to have a valid certification election, at least a majority
of all eligible voters in the appropriate bargaining unit must have cast
their votes.
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b.1.
CERTIFICATION ELECTION
IN AN UNORGANIZED ESTABLISHMENT
What is meant by “unorganized establishment”?
As distinguished from “organized establishment,” an “unorganized establishment” is
an employer entity where there is no recognized or certified collective bargaining union or
agent.
A company or an employer-entity, however, may still be considered an unorganized
establishment even if there are unions in existence therein for as long as not one of
them is duly certified as the sole and exclusive bargaining representative of the
employees in the particular bargaining unit it seeks to operate and represent.
Further, a company remains unorganized even if there is a duly recognized or
certified bargaining agent for rank-and-file employees, for purposes of the petition for
certification election filed by supervisors. The reason is that the bargaining unit composed
of supervisors is separate and distinct from the unionized bargaining unit of rank-and-file
employees. Hence, being unorganized, the 25% required minimum support of employees
within the bargaining unit of the supervisors need not be complied with.
How should certification election be conducted in an unorganized establishment?
In case of a petition filed by a legitimate organization involving an unorganized
establishment, the Med- Arbiter is required to immediately order the conduct of a
certification election upon filing of a petition for certification election by a legitimate labor
organization.
b.2.
CERTIFICATION ELECTION
IN AN ORGANIZED ESTABLISHMENT
What are the requisites for the conduct of a certification election in an organized establishment?
The Med-Arbiter is required to automatically order the conduct of a certification
election by secret ballot in an organized establishment as soon as the following requisites
are fully met:
1. That a petition questioning the majority status of the incumbent bargaining agent
is filed before the DOLE within the 60-day freedom period;
2. That such petition is verified; and
3. That the petition is supported by the written consent of at least twenty-five
percent (25%) of all the employees in the bargaining unit.
c.
RUN-OFF
ELECTION
What is a run-off
election?
A “run-off election” refers to an election between the labor unions receiving
the two (2) highest number of votes in a certification election or consent election
with three (3) or more unions in contention, where such certification election or
consent election results in none of the contending unions receiving the majority
of the valid votes cast; provided, that the total number of votes for all contending
unions, if added, is at least fifty percent (50%) of the number of valid votes cast.
When is it conducted?
If the above conditions that justify the conduct of a run-off election are
present and there are no objections or challenges which, if sustained, can
materially alter the election results, the Election Officer should motu proprio
conduct a run-off election within ten (10) days from the close of the election
proceeding between the labor unions receiving the two highest number of votes.
ILLUSTRATION.
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d.
RE-RUN ELECTION
1. MEANINF OF RE-RUN ELECTION.
“‘Re-run election’ refers to an election conducted to break a tie
between contending unions, including between ‘no union’ and one of
the unions. It shall likewise refer to an election conducted after a
failure of election has been declared by the Election Officer
and/or affirmed by the Mediator-Arbiter.”
2. GROUNDS CITED IN THE RULES FOR RE-RUN ELECTION.
Based on the above-quoted rule, there are 2 situations contemplated
thereunder that justify the conduct of a re-run election, to wit:
(1) To break a tie; or
(2) To cure a failure of election.
3. RULE IN CASE OF FAILURE OF ELECTION.
In failure of election, the number of votes cast in the certification or
consent election is less than the majority of the number of eligible voters and
there are no challenged votes that could materially change the results of the
election. For example, in a CBU composed of 100 employees, the majority of 100,
which is 51, should validly cast their votes in the election; otherwise, if less than
51 employees have validly cast their votes, there is here a failure of election.
e.
CONSENT
ELECTION
What is consent
election?
A “consent election” refers to the process of determining through secret
ballot the sole and exclusive bargaining agent (SEBA) of the employees in an
appropriate bargaining unit for purposes of collective bargaining and negotiation. It is
voluntarily agreed upon by the parties, with or without the intervention of the DOLE.
What are the distinctions between consent election and certification election?
Consent election is but a form of certification election. They may be distinguished
from each other in the following manner:
(1) The former is held upon the mutual agreement of the contending unions; while the
latter does not require the mutual consent of the parties as it is conducted upon
the order of the Med-Arbiter (Mediator-Arbiter).
(2) The former may be conducted with or without the control and supervision of the
DOLE; while the latter is always conducted under the control and supervision of
the DOLE.
(3) The former is being conducted as a voluntary mode of resolving labor dispute;
while the latter, although non- adversarial, is a compulsory method of adjudicating
a labor dispute.
(4) The former is given the highest priority; while the latter is resorted to only when
the contending unions fail or refuse to submit their representation dispute through
the former. This is so because under the Implementing Rules, as amended, even in
cases where a PCE is filed, the Med-Arbiter (Mediator-Arbiter), during the
preliminary conference and hearing thereon, is tasked to determine the
“possibility of a consent election.” It is only when the contending unions fail to
agree to the conduct of a consent election during the preliminary conference that
the Med-Arbiter (Mediator-Arbiter) will proceed with the process of certification
election by conducting as many hearings as he may deem necessary up to its actual
holding. But in no case shall the conduct of the certification election exceed 15
days from the date of the scheduled preliminary conference/hearing after which
time, the PCE is considered submitted for decision.
(5) The former necessarily involves at least two (2) or more contending unions; while the latter may only involve one
(1) petitioner union.
(6) The former may be conducted in the course of the proceeding in the latter or during its pendency.
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D.
RIGHTS OF LABOR ORGANIZATION
1.
CHECK-OFF, ASSESSMENT, AGENCY FEES
AGENCY FEES
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(2) It should be equivalent to the dues and other fees paid by members of the
recognized collective bargaining agent.
Thus, any agency fee collected in excess of this limitation is a nullity.
3.NON-MEMBERS OF THE SEBA NEED NOT BECOME MEMBERS THEREOF.
The employees who are not members of the certified bargaining agent which
successfully concluded the CBA are not required to become members of the latter. Their
acceptance of the benefits flowing from the CBA and their act of paying the agency fees
do not make them members thereof.
4.CHECK-OFF OF AGENCY FEES.
“Check-off” of agency fees is a process or device whereby the employer, upon
agreement with the bargaining union, deducts agency fees from the wages of non-
bargaining union members who avail of the benefits from the CBA and remits them
directly to the bargaining union.
5. ACCRUAL OF RIGHT OF BARGAINING UNION TO DEMAND CHECK-OFF OF AGENCY FEES.
The right of the bargaining union to demand check-off of agency fees accrues
from the moment the non- bargaining union member accepts and receives the benefits
from the CBA. This is the operative fact that would trigger such liability.
6. NO INDIVIDUAL WRITTEN AUTHORIZATION BY NON-BARGAINING
UNION MEMBERS REQUIRED.
To effect the check-off of agency fees, no individual written authorization from
the non-bargaining union members who accept the benefits resulting from the CBA is
necessary.
7.EMPLOYER’S DUTY TO CHECK-OFF AGENCY FEES.
It is the duty of the employer to deduct or “check-off” the sum equivalent to the
amount of agency fees from the non-bargaining union members' wages for direct
remittance to the bargaining union.”
8. MINORITY UNION CANNOT DEMAND FROM THE EMPLOYER TO GRANT IT
THE RIGHT TO CHECK-OFF OF UNION DUES AND ASSESSMENTS FROM
THEIR MEMBERS.
The obligation on the part of the employer to undertake the duty to check-off
union dues and special assessments holds and applies only to the bargaining agent and
not to any other union/s (called “Minority Union/s”).
2.
COLLECTIVE BARGAINING
a.
DUTY TO BARGAIN COLLECTIVELY
DUTY TO BARGAIN
COLLECTIVELY WHEN THERE
IS ABSENCE OF A CBA
1. HOW DUTY SHOULD BE DISCHARGED WHEN THERE IS NO CBA YET.
The duty to bargain collectively when there has yet been no CBA in the bargaining
unit where the bargaining agent seeks to operate should be complied with in the following
order:
First, in accordance with any agreement or voluntary arrangement between the
employer and the bargaining agent providing for a more expeditious manner of collective
bargaining; and
Secondly, in its absence, in accordance with the provisions of the Labor Code,
referring to Article 250 thereof which lays down the procedure in collective bargaining.
DUTY TO BARGAIN COLLECTIVELY
WHEN THERE IS A CBA
1. CONCEPT.
When there is a CBA, the duty to bargain collectively shall mean that neither party
shall terminate nor modify such agreement during its lifetime. However, either party
can serve a written notice to terminate or modify the
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agreement at least sixty (60) days prior to its expiration date. It shall be the duty of
both parties to keep the status quo and to continue in full force and effect the terms and
conditions of the existing agreement during the 60-day period and/or until a new
agreement is reached by the parties.
2.FREEDOM PERIOD.
The last sixty (60) days of the 5-year lifetime of a CBA immediately prior to its
expiration is called the “freedom period.” It is denominated as such because it is the only
time when the law allows the parties to freely serve a notice to terminate, alter or modify
the existing CBA. It is also the time when the majority status of the bargaining agent may
be challenged by another union by filing the appropriate petition for certification election.
3.AUTOMATIC RENEWAL CLAUSE.
a. Automatic renewal clause deemed incorporated in all CBAs.
Pending the renewal of the CBA, the parties are bound to keep the status quo
and to treat the terms and conditions embodied therein still in full force and effect during
the 60-day freedom period and/or until a new agreement is negotiated and ultimately
concluded and reached by the parties. This principle is otherwise known as the
“automatic renewal clause” which is mandated by law and therefore deemed incorporated
in all CBAs.
For its part, the employer cannot discontinue the grant of the benefits embodied in the CBA which just expired as it is duty-
KIOK LOY DOCTRINE.
This doctrine is based on the ruling In Kiok Loy v. NLRC, 1 where the petitioner, Sweden Ice Cream Plant, refused to sub
The Kiok Loy case epitomizes the classic case of negotiating a CBA in bad faith consisting of the employer’s refusal to bar
OTHER CASES AFTER KIOK LOY.
Divine Word University of Tacloban v. Secretary of Labor and Employment, Sept. 11, 1992.
General Milling Corporation v. CA, Feb. 11, 2004.
CBA.
A “Collective Bargaining Agreement” or “CBA” for short, refers to the negotiated contract between a duly recognized
Ratification of the CBA by majority of all the workers in the bargaining unit makes the same
binding on all
employees therein.
Employees entitled to CBA benefits. The following are entitled to the benefits of the CBA:
(1) Members of the bargaining union;
(2) Non-members of the bargaining union but are members of the bargaining unit;
(3) Members of the minority union/s who paid agency fees to the bargaining union; and
(4) Employees hired after the expiration of the CBA.
Pendency of a petition for cancellation of union registration is not a
prejudicial question before CBA negotiation may proceed.
CBA should be construed liberally. If the terms of a CBA are clear and there is no
doubt as to the intention of the contracting parties, the literal meaning of its
stipulation shall prevail.
1.
MANDATORY PROVISIONS OF CBA
1. MANDATORY STIPULATIONS OF THE CBA.
The Syllabus mentions 4 provisions that are mandatorily required to be stated in the CBA, to wit:
1.Grievance Procedure;
2.Voluntary Arbitration;
3.No Strike-No Lockout Clause; and
4.Labor-Management Council (LMC).
If these provisions are not reflected in the CBA, its registration will be denied by the BLR.
E.
UNFAIR LABOR
PRACTICE (ULP)
1.
NATURE,
ASPECTS
1. WHEN AN ACT
CONSTITUTES ULP.
At the outset, it must be clarified that not all unfair acts constitute ULPs.
While an act or decision of an employer or a union may be unfair, certainly not every
unfair act or decision thereof may constitute ULP as defined and enumerated under the
law.
The act complained of as ULP must have a proximate and causal connection with any of the following 3
right
s:
1. Exercise of the right to self-organization;
2.Exercise of the right to collective bargaining; or
3.Compliance with CBA.
Sans this connection, the unfair acts do not fall within the technical signification of the term “unfair labor
practice.”
2. THE ONLY ULP WHICH MAY OR MAY NOT BE RELATED TO THE
EXERCISE OF THE RIGHT TO SELF-ORGANIZATION AND COLLECTIVE
BARGAINING.
The only ULP which is the exception as it may or may not relate to the exercise of
the right to self-organization and collective bargaining is the act described under Article
248 [f], i.e., to dismiss, discharge or otherwise prejudice or discriminate against an
employee for having given or being about to give testimony under the Labor Code.
3.LABOR CODE PROVISIONS ON ULP.
Under the Labor Code, there are only five (5) provisions related to ULP, to wit:
1. Article 258 [247] which describes the concept of ULPs and prescribes the procedure for their prosecution;
2. Article 259 [248] which enumerates the ULPs that may be committed by employers;
3. Article 260 [249] which enumerates the ULPs that may be committed by labor organizations;
4. Article 274 [261] which considers violations of the CBA as no longer ULPs
unless the same are gross in character which means flagrant and/or malicious
refusal to comply with the economic provisions thereof.
5. Article 278(c) [263(c)] which refers to union-busting, a form of ULP,
involving the dismissal from employment of union officers duly elected in
accordance with the union constitution and by-laws, where the existence of the
union is threatened thereby.
4.PARTIES WHO/WHICH MAY COMMIT ULP.
A ULP may be committed by an employer or by a labor organization. Article 259
[248] describes the ULPs that may be committed by an employer; while Article 260 [249]
enumerates those which may be committed by a labor organization.
On the part of the employer, only the officers and agents of corporations,
associations or partnerships who have actually participated in or authorized or ratified
ULPs are criminally liable.
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On the part of the union, only the officers, members of governing boards,
representatives or agents or members of labor associations or organizations who have
actually participated in or authorized or ratified the ULPs are criminally liable.
5.ELEMENTS OF ULP.
1. There should exist an employer-employee relationship between the offended party and the offender; and
2. The act complained of must be expressly mentioned and defined in the Labor
Code as an unfair labor practice.
Absent one of the elements aforementioned will not make the act an unfair labor practice.
6.ASPECTS OF ULP.
Under Article 258 [247], a ULP has two (2) aspects, namely:
1.Civil aspect; and
2.Criminal aspect.
The civil aspect of an unfair labor practice includes claims for actual, moral and
exemplary damages, attorney’s fees and other affirmative reliefs. Generally, these civil
claims should be asserted in the labor case before the Labor Arbiters who have
original and exclusive jurisdiction over unfair labor practices. The criminal aspect, on
the other hand, can only be asserted before the regular court.
2.
ULP BY EMPLOYERS
I.
INTERFERENCE WITH, RESTRAINT OR COERCION OF
EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO
SELF-ORGANIZATION
1. TEST OF INTERFERENCE, RESTRAINT OR COERCION.
The terms “interfere,” “restrain” and “coerce” are very broad that any act of
management that may reasonably tend to have an influence or effect on the exercise by
the employees of their right to self-organize may fall within their meaning and coverage.
According to the Supreme Court in Insular Life Assurance Co., Ltd., Employees
Association-NATU v. Insular Life Assurance Co., Ltd.,1 the test of whether an
employer has interfered with or restrained or coerced employees within the meaning of
the law is whether the employer has engaged in conduct which may reasonably tend to
interfere with the free exercise of the employees’ rights. It is not necessary that there
be direct evidence that any employee was in fact intimidated or coerced by the
statements or threats of the employer if there is a reasonable inference that the anti-
union conduct of the employer does have an adverse effect on the exercise of the right to
self- organization and collective bargaining.
2.TOTALITY OF CONDUCT DOCTRINE.
In ascertaining whether the act of the employer constitutes interference with,
restraint or coercion of the employees’ exercise of their right to self-organization and
collective bargaining, the “totality of conduct doctrine” may be applied.
The totality of conduct doctrine means that expressions of opinion by an employer,
though innocent in themselves, may be held to constitute an unfair labor practice
because of the circumstances under which they were uttered, the history of the
particular employer’s labor relations or anti-union bias or because of their connection with
an established collateral plan of coercion or interference. An expression which may be
permissibly uttered by one employer, might, in the mouth of a more hostile employer, be
deemed improper and consequently actionable as an unfair labor practice. The past
conduct of the employer and like considerations, coupled with an intimate connection
between the employer’s action and the union affiliation or activities of the particular
employee or employees taken as a whole, may raise a suspicion as to the motivation for
the employer’s conduct. The failure of the employer to ascribe a valid reason therefor may
justify an inference that his unexplained conduct in respect of the particular employee or
employees was inspired by the latter’s union membership and activities.
In General Milling,2 the Supreme Court considered the act of the employer in
presenting the letters from February to June 1993, by 13 union members signifying
their resignation from the union clearly indicative of the employer’s pressure on its
employees. The records show that the employer presented these letters to prove that the
union no longer enjoyed the support of the workers. The fact that the resignations of the
union members occurred during the pendency of the case before the Labor Arbiter shows
the employer’s desperate attempt to cast doubt on the legitimate status of the union. The
ill-timed letters of resignation from the union members indicate that the employer had
interfered with the right of its employees to self-organization. Because of such act, the
employer was declared guilty of ULP.
3.INTERFERENCE IN THE EMPLOYEE’S RIGHT TO SELF-ORGANIZATION.
a. Interference is always ULP.
The judicial dictum is that any act of interference by the employer in the exercise by
employees of their right to self-organization constitutes an unfair labor practice. This is
the very core of ULP.
In Hacienda Fatima v. National Federation of Sugarcane Workers – Food
and General Trade,3 the Supreme Court upheld the factual findings of the NLRC and
the Court of Appeals that from the employer’s refusal to bargain to its acts of economic
inducements resulting in the promotion of those who withdrew from the union, the use
of armed guards to prevent the organizers to come in, and the dismissal of union officials
and members, one cannot but conclude that the employer did not want a union in its
hacienda - a clear interference in the right of the workers to self- organization. Hence, the
employer was held guilty of unfair labor practice.
It was likewise held in Insular Life1 that it is an act of interference for the
employer to send individual letters to all employees notifying them to return to work at
a time specified therein, otherwise new employees would be engaged to perform their
jobs. Individual solicitation of the employees or visiting their homes, with the employer or
his representative urging the employees to cease their union activities or cease striking,
constitutes ULP. All the above- detailed activities are ULPs because they tend to
undermine the concerted activity of the employees, an activity to which they are entitled
free from the employer's molestation.
b. Formation of a union is never a valid ground to dismiss.
c. It is ULP to dismiss a union officer or an employee for his union activities.
II.
YELLOW DOG CONTRACT
1. WHAT IS A YELLOW DOG CONTRACT?
It is one which exacts from workers as a condition of employment that they shall
not join or belong to a labor organization, or attempt to organize one during
their period of employment or that they shall withdraw therefrom in case they are
already members of a labor organization.
2.COMMON STIPULATIONS IN A YELLOW DOG CONTRACT.
A typical yellow dog contract embodies the following stipulations:
(1) A representation by the employee that he is not a member of a labor organization;
(2) A promise by the employee that he will not join a union; and
(3) A promise by the employee that upon joining a labor organization, he will quit his employment.
The act of the employer in imposing such a condition constitutes unfair labor
practice under Article 248(b) of the Labor Code. Such stipulation in the contract is null
and void.
III.
CONTRACTING OUT OF SERVICES AND
FUNCTIONS
1. GENE
RAL RULE.
As a general rule, the act of an employer in having work or certain services or
functions being performed by union members contracted out is not per se an unfair labor
practice. This is so because contracting-out of a job, work or service is clearly an
exercise by the employer of its business judgment and its inherent management rights
and prerogatives. Hiring of workers is within the employer’s inherent freedom to regulate
its business and is a valid exercise of its management prerogative subject only to special
laws and agreements on the matter and the fair standards of justice. The employer
cannot be denied the faculty of promoting efficiency and attaining economy by a study of
what units are essential for its operation. It has the ultimate right to determine whether
services should be performed by its personnel or contracted to outside agencies.
2.WHEN CONTRACTING-OUT BECOMES ULP.
It is only when the contracting out of a job, work or service being performed by
union members will interfere with, restrain or coerce employees in the exercise of their
right to self-organization that it shall constitute an unfair labor practice. Thus, it is not
unfair labor practice to contract out work for reasons of business decline, inadequacy
of facilities and equipment, reduction of cost and similar reasonable grounds.
IV.
COMPANY
3 USLegal.com at http://definitions.uslegal.com/y/yellow-dog-contract/; Last accessed: February 14, 2017.
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UNION
1. COMPANY INITIATED, DOMINATED OR ASSISTED UNION.
Paragraph [d] of Article 259 [248] considers it an unfair labor practice to initiate,
dominate, assist or otherwise interfere with the formation or administration of any labor
organization, including the giving of financial or other support to it or its organizers
or supporters. Such union is called “company union” as its formation, function or
administration has been assisted by any act defined as unfair labor practice under the
Labor Code.
V.
DISCRIMINATI
ON
1. COVERAGE OF PROHIBITION.
1 Insular Life Assurance Co., Ltd., Employees Association-NATU v. Insular Life Assurance Co., Ltd., G.R. No. L-25291, Jan. 30, 1971, 37 SCRA 244.
2 Joel I. Seidman, The Yellow Dog Contract, The Johns Hopkins Press, 1932, Ch. 1, pp.11-38.
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VI.
FILING OF CHARGES OR GIVING OF TESTIMONY
1. C
ONCEPT.
Under paragraph [f] of Article 259 [248] of the Labor Code, it is an unfair labor
practice for an employer to dismiss, discharge or otherwise prejudice or discriminate
against an employee for having given or being about to give testimony under the Labor
Code.
2.THE ONLY ULP NOT REQUIRED TO BE RELATED TO EMPLOYEE’S
EXERCISE OF THE RIGHT TO SELF-ORGANIZATION AND COLLECTIVE
BARGAINING.
It must be underscored that Article 259(f) [248 (f)] is the only unfair labor practice
that need not be related to the exercise by the employees of their right to self-organization
and collective bargaining.
In Itogon-Suyoc Mines, Inc. v. Baldo,3 it was declared that an unfair labor
practice was committed by the employer when it dismissed the worker who had testified
in the hearing of a certification election case despite its prior request for the employee
not to testify in the said proceeding accompanied with a promise of being reinstated if
he followed said request.
VII.
CBA-RELATED
1. THREE (3) CBA-RELATED ULPs
ULPs.
Article 259 [248] enunciates three (3) CBA-related unfair labor practices, to wit:
1. To violate the duty to bargain collectively as prescribed in the Labor Code.
2. To pay negotiation or attorney’s fees to the union or its officers or agents
as part of the settlement of any issue in collective bargaining or any
other dispute.
3. To violate a collective bargaining agreement.
VII-A.
PAYMENT OF NEGOTIATION AND
ATTORNEY’S FEES
1. WHEN PAYMENT CONSIDERED ULP.
Article 259 (h) [248(h)] of the Labor Code considers as an unfair labor practice
the act of the employer in paying negotiation fees or attorney’s fees to the union or its
officers or agents as part of the settlement of any issue in collective bargaining or any
other dispute.
VII-B.
VIOLATION OF THE
CBA
1. CORR
ELATION.
Article 259 (i) [248(i)] of the Labor Code should be read in relation to Article 261
thereof. Under Article 261, as amended, violations of a CBA, except those which are
gross in character, shall no longer be treated as an unfair labor practice and shall be
resolved as grievances under the CBA. Gross violations of CBA shall mean flagrant
and/or malicious refusal to comply with the economic provisions of such agreement.
2.CASE LAW.
The act of the employer in refusing to implement the negotiated wage increase
stipulated in the CBA, which increase is intended to be distinct and separate from any
3 G.R. No. L-17739, Dec. 24,
1964. 64
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other benefits or privileges that may be forthcoming to the employees, is an unfair labor
practice.
Refusal for a considerable number of years to give salary adjustments according to
the improved salary scales in the CBA is an unfair labor practice.
3.
ULP OF LABOR ORGANIZATIONS
I.
RESTRAINT AND COERCION OF EMPLOYEES
IN THE EXERCISE OF THEIR RIGHT TO SELF-
ORGANIZATION
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II.
DISCRIMINATI
ON
Under Article 260(b) [249 (b)], it is ULP for a labor organization, its officers, agents or representatives:
(1)To cause or attempt to cause an employer to discriminate against an employee,
including discrimination against an employee with respect to whom membership in such
organization has been denied.
(2) To terminate an employee’s union membership on any ground other than the usual terms and conditions under which m
CONCEPT.
Under Article 260(c) [249 (c)], it is ULP for a duly certified sole and exclusive bargaining union, its officers, agents or rep
PURPOSE.
The obvious purpose of the law is to ensure that the union will negotiate with management in good faith and for the purpos
IV. FEATHERBEDDING DOCTRINE
CONCEPT.
Article 260(d) [249 (d)] is the “featherbedding” provision in the Labor Code. Patterned after a similar provision in the Taft-H
This is resorted to by the union as a response to the laying-off of workers occasioned by their obsolescence because of the
Because of these lay-offs, the unions are constrained to resort to some featherbedding practices. Accordingly, they usually
REQUISITES.
The requisites for featherbedding are as follows:
(1) The labor organization, its officers, agents or representatives have caused or
attempted to cause an employer either:
(a) to pay or agree to pay any money, including the demand for fee for union negotiations; or
(b) to deliver or agree to deliver any things of value;
(2) Such demand for payment of money or delivery of things of value is in the nature of an exaction; and
(3) The services contemplated in exchange for the exaction are not actually
performed or will not be performed.
V.
DEMAND OR ACCEPTANCE
OF NEGOTIATION FEES OR
ATTORNEY’S FEES
1.
CONCEPT.
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1 It is the Labor Management Relations Act of 1947, better known as the “Taft–Hartley Act,” which was enacted on June 23, 1947. It amended the National Labor Relations Act, 29
U.S. Code § 158 - Unfair labor practices, Sec. 8[b] [6] thereof, which states: “to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or
other thing of value, in the nature of an exaction, for services which are not performed or not to be performed[.]”
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Under Article 260(e) [249 (e)], it is ULP for a labor organization, its officers, agents
or representatives to ask for or accept negotiation fees or attorney’s fees from
employers as part of the settlement of any issue in collective bargaining or any other
dispute.
VI.
VIOLATION OF THE
1. C CBA
ONCEPT.
Under Article 260(f) [249 (f)], it is ULP for a labor organization, its officers, agents or representatives to violate
a
CBA.
2.COUNTERPART PROVISION.
This is the counterpart provision of Article 259(i) [248 (i)] regarding the employer’s
act of violating a CBA. But it must be noted that under Article 261 of the Labor Code,
violation of the CBA is generally considered merely a grievable issue. It becomes an
unfair labor practice only if the violation is gross in character which means that there is
flagrant and/or malicious refusal to comply with the economic (as distinguished from non-
economic) stipulations in the CBA. This principle applies not only to the employer but to
the labor organization as well.
VII.
CRIMINAL LIABILITY FOR ULPs OF LABOR
ORGANIZATION
1. PERSONS LIABLE.
Article 260 [249] is explicit in its provision on who should be held liable for
ULPs committed by labor organizations. It states that only the officers, members of
governing boards, representatives or agents or members of labor associations or
organizations who have actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable.
F.
PEACEFUL CONCERTED ACTIVITIES
A.
FORMS OF CONCERTED ACTIVITIES
1. FORMS OF CONCERTED ACTIVITIES.
There are three (3) forms of concerted activities, namely:
1. Strike;
2. Picketing; and
3. Lockout.
1.
BY LABOR
ORGANIZATION
1. Strike; and
1. 2. Picketing.
STRIKE.
“Strike” means any temporary stoppage of work by the concerted action of the employees as a result of an
industrial or labor dispute.
2.PICKETING.
“Picketing” is the act of workers in peacefully marching to and fro before an
establishment involved in a labor dispute generally accompanied by the carrying and
display of signs, placards and banners intended to inform the public about the
dispute.
2.
BY EMPLOYER
1.
LOCKOUT.
“Lockout” means the temporary refusal by an employer to furnish work as a result of an industrial or labor
dispu
te.
It consists of the following:
1. Shutdowns;
2. Mass retrenchment and dismissals initiated by the employer.
3. The employer’s act of excluding employees who are union members.
a.
REQUISITES FOR A VALID STRIKE
1. PROCEDURAL BUT MANDATORY REQUISITES FOR A VALID STRIKE.
A strike, in order to be valid and legal, must conform to the following procedural requisites:
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All the foregoing requisites, although procedural in nature, are mandatory and
failure of the union to comply with any of them would render the strike illegal.
I.
FIRST REQUISITE:
EXISTENCE OF VALID AND FACTUAL
GROUND/S
1. VALID
GROUNDS.
The law recognizes only 2 grounds in support of a valid strike, viz.:
III.
THIRD REQUISITE:
SERVICE OF A 24-HOUR PRIOR NOTICE
In Capitol Medical Center, Inc. v. NLRC, it was imposed as additional requisite
that a 24-hour notice must be served to the NCMB-DOLE prior to the taking of the strike
vote by secret balloting, informing it of the union’s decision to conduct a strike vote as
well as the date, place, and time thereof.
IV.
FOURTH REQUISITE:
CONDUCT OF A STRIKE VOTE
1. MAJORITY APPROVAL OF THE STRIKE.
No labor organization shall declare a strike without the necessary strike vote first
having been obtained and reported to the NCMB-DOLE. A decision to declare a strike
must be approved by a majority of the total union membership in the bargaining unit
concerned, obtained by secret ballot in meetings or referenda called for that purpose.
This process is called “strike vote balloting.”
A STRIKE WITHOUT THE MAJORITY SUPPORT OF THE UNION MEMBERS IS CALLED A
“WILDCAT STRIKE.”
2.PURPOSE.
The purpose of a strike vote is to ensure that the decision to strike broadly rests
with the majority of the union members in general and not with a mere minority.
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GENERAL RULE.
The cooling-off periods provided under the law before the intended date of the actual mounting of the strike are as follows:
In case of bargaining deadlock, the cooling-off period is thirty (30) days from the filing of the notice of strike; or
In case of unfair labor practice, the cooling-off period is fifteen (15) days from the filing of the notice of strike.
EXCEPTION: IN CASE OF UNION-BUSTING.
In case of dismissal from employment of union officers (not ordinary members) duly elected in accordance with the unio
In cases of union-busting, only the 15-day cooling-off period need not be observed; all the other requisites must be fully
RECKONING OF THE COOLING-OFF PERIODS.
The start of the cooling-off periods should be reckoned from the time the notice of strike is filed with the NCMB-DOLE, a
PURPOSE OF THE COOLING-OFF PERIODS.
The purpose of the cooling-off periods is to provide an opportunity for mediation and conciliation of the dispute by the N
The 7-day waiting period or strike ban is a distinct and separate requirement
from the cooling-off period prescribed by law. The latter cannot be substituted for the
former and vice-versa.
The cooling-off period is counted from the time of the filing of the notice of
strike. The 7-day waiting period/strike ban, on the other hand, is reckoned from the
time the strike vote report is submitted to the NCMB- DOLE.
Consequently, a strike is illegal for failure to comply with the prescribed mandatory
cooling-off period and the 7-day waiting period/strike ban after the submission of the
report on the strike vote.
3.BOTH MUST BE COMPLIED WITH SEPARATELY AND DISTINCTLY FROM EACH OTHER.
The requirements of cooling-off period and 7-day waiting period/strike ban must
both be complied with. The labor union may take the strike vote and report the same to
the NCMB-DOLE within the statutory cooling-off period. In this case, the 7-day waiting
period/strike ban should be counted from the day following the expiration of the cooling-
off period. A contrary view would certainly defeat and render nugatory the salutary
purposes behind the distinct requirements of cooling-off period and the waiting
period/strike ban.
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The NCMB Primer on Strike, Picketing and Lockout,1 issued by the NCMB, the
agency of government directly tasked with the implementation and enforcement of this
particular legal provision and requirement, is very clear on this point, thus:
“In the event the result of the strike/lockout vote ballot is filed
within the cooling-off period, the 7-day requirement shall be
counted from the day following the expiration of the cooling-off
period.”2
In other words, the seven (7) days should be added to the cooling-off period of
fifteen (15) days, in case of unfair labor practice, or thirty (30) days, in case of collective
bargaining deadlock and it is only after the lapse of the total number of days after adding
the two (2) periods that the strike/lockout may be lawfully and validly staged.
Example: In a case where the notice of strike grounded on ULP is filed on March 1,
2018, and the strike vote is taken within the cooling-off period, say, on March 5, 2018 and
the strike vote report showing majority support for the intended strike is submitted to the
NCMB-DOLE the following day, March 6, 2018, the question is when can the union legally
stage the strike?
Following the above principle, the answer obviously is on March 24, 2018 or any
day thereafter. This is so because the 15-day cooling-off period for ULP expires on March
16 and adding the 7-day strike ban which “should be counted from the day following the
expiration of the cooling-off period,” the 7th day would be on March 23, 2018.
Obviously, the strike cannot be conducted on the 7th day but rather after the lapse of the 7-
day period; hence, it is only on MARCH 24, 2018 onwards that the union may lawfully
conduct the strike.
b.
REQUISITES FOR A VALID LOCKOUT
1. SUBSTANTIALLY SIMILAR REQUISITES AS IN STRIKE.
With a slight, insignificant variation, the procedural but mandatory requisites for a
valid strike discussed above are substantially similar to those applicable for valid lockout.
For purposes of ease and clarity, the same are presented as follows:
1st requisite - It must be based on a valid and factual ground;
2nd requisite - A notice of lockout must be filed with the NCMB-DOLE;
3rd requisite - A notice must be served to the NCMB-DOLE at least twenty-four
(24) hours prior to the taking of the lockout vote by secret balloting, informing
said office of the decision to conduct a lockout vote, and the date, place, and
time thereof;
4th requisite - A lockout vote must be taken where a majority of the members of
the Board of Directors of the corporation or association or of the partners in a
partnership obtained by secret ballot in a meeting called for the purpose, must
approve it;
5th requisite - A lockout vote report should be submitted to the NCMB-DOLE
at least seven (7) days before the intended date of the lockout;
6th requisite - The cooling-off period of 15 days, in case of unfair labor practices
of the labor organization, or 30 days, in case of collective bargaining deadlock,
should be fully observed; and
7th requisite - The 7-day waiting period/lockout ban reckoned after the
submission of the lockout vote report to the NCMB-DOLE should also be fully
observed in all cases.
c.
REQUISITES FOR LAWFUL PICKETING
1. THE REQUISITES FOR A VALID STRIKE ARE NOT APPLICABLE TO PICKETING.
The seven (7) requisites for a valid strike discussed above do not apply to picketing.
4.EFFECT OF THE USE OF FOUL LANGUAGE DURING THE CONDUCT OF THE PICKET.
In the event the picketers employ discourteous and impolite language in their
picket, such may not result in, or give rise to, libel or action for damages.
5.PICKETING VS. STRIKE.
(a) To strike is to withhold or to stop work by the concerted action of employees as a
result of an industrial or labor dispute. The work stoppage may be accompanied by
picketing by the striking employees outside of the company compound.
(b) While a strike focuses on stoppage of work, picketing focuses on publicizing
the labor dispute and its incidents to inform the public of what is happening in the
company being picketed.
(c) A picket simply means to march to and fro in front of the employer’s premises,
usually accompanied by the display of placards and other signs making known the facts
involved in a labor dispute. It is but one strike activity separate and different from the
actual stoppage of work.
Phimco Industries, Inc. v. Phimco Industries Labor Association (PILA).1 -
While the right of employees to publicize their dispute falls within the protection of
freedom of expression and the right to peaceably assemble to air grievances, these rights
are by no means absolute. Protected picketing does not extend to blocking ingress
to and egress from the company premises. That the picket was moving, was
peaceful and was not attended by actual violence may not free it from taints of
illegality if the picket effectively blocked entry to and exit from the company
premises.
6.WHEN PICKET CONSIDERED A STRIKE.
In distinguishing between a picket and a strike, the totality of the circumstances
obtaining in a case should be taken into account.
Santa Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Phils.,
Inc.2 - Petitioners contend that what they conducted was a mere picketing and not a
strike. In disagreeing to this contention, the High Court emphasized that it is not an
issue in this case that there was a labor dispute between the parties as petitioners had
notified the respondent of their intention to stage a strike, and not merely to picket.
Petitioners’ insistence to stage a strike is evident in the fact that an amended notice of
strike was filed even as respondent moved to dismiss the first notice. The basic elements
of a strike are present in this case: 106 members of petitioner Union, whose respective
applications for leave of absence on September 21, 1999 were disapproved, opted not to
report for work on said date, and gathered in front of the company premises to hold a
mass protest action. Petitioners deliberately absented themselves and instead wore red
ribbons and carried placards with slogans such as: “YES KAMI SA STRIKE,”
“PROTESTA KAMI,” “SAHOD, KARAPATAN NG MANGGAGAWA IPAGLABAN,” “CBA-’WAG
BABOYIN,”
“STOP UNION BUSTING.” They marched to and fro in front of the company’s
premises during working hours. Thus, petitioners engaged in a concerted activity which
already affected the company’s operations. The mass concerted activity obviously
constitutes a strike. Moreover, the bare fact that petitioners were given a Mayor’s permit
is not conclusive evidence that their action/activity did not amount to a strike. The
Mayor’s description of what activities petitioners were allowed to conduct is
inconsequential. To repeat, what is definitive of whether the action staged by petitioners
is a strike and not merely a picket is the totality of the circumstances surrounding the
situation.
Petitioner union in the 2011 case of Leyte Geothermal Power Progressive Employees Union-ALU-TUCP
v.Philippine National Oil Company – Energy Development Corporation,3 contends
that there was no stoppage of work; hence, they did not strike. Euphemistically,
petitioner union avers that it “only engaged in picketing,” and maintains that “without
any work stoppage, [its officers and members] only engaged in xxx protest activity.”
The Supreme Court, however, ruled that it was a strike and not picketing or protest
activity that petitioner union staged. It found the following circumstances in support of
such finding:
(1) Petitioner union filed a Notice of Strike on December 28, 1998 with the DOLE
grounded on respondent’s purported unfair labor practices, i.e., “refusal to bargain
collectively, union busting and mass termination.” On even date, petitioner Union
declared and staged a strike.
(2)The DOLE Secretary intervened and issued a Return-to-Work Order dated
January 4, 1999, certifying the labor dispute to the NLRC for compulsory arbitration. The
Order indicated the following facts: (1) filing of the notice of strike; (2) staging of the
strike and taking control over respondent’s facilities of its Leyte Geothermal Project on
the same day petitioner union filed the notice of strike; (3) attempts by the NCMB to
forge a mutually acceptable solution proved futile; (4) in the meantime, the strike
continued with no settlement in sight placing in jeopardy the supply of much needed
power supply in the Luzon and Visayas grids.
(3) Petitioner union itself, in its pleadings, used the word “strike.”
(4) Petitioner union’s asseverations are belied by the factual findings of the NLRC,
as affirmed by the CA thus: “The failure to comply with the mandatory requisites for the
conduct of strike is both admitted and clearly shown on record. Hence, it is undisputed
that no strike vote was conducted; likewise, the cooling-off period was not observed and
that the 7-day strike ban after the submission of the strike vote was not complied with
since there was no strike vote taken.”
In fine, petitioner union’s bare contention that it did not hold a strike cannot trump
the factual findings of the NLRC that petitioner union indeed struck against respondent. In
fact, and more importantly, petitioner union failed to comply with the requirements set by
law prior to holding a strike.
d.
WHEN IS A STRIKE CONSIDERED ILLEGAL?
A strike is illegal if it is declared and staged:
1) Without complying with the procedural but mandatory requisites (See 7 requisites above).
2) For unlawful purpose such as to compel the dismissal of an employee or to
force recognition of the union or for trivial and puerile purpose or to circumvent
contracts and judicial orders.
3) Based on non-strikeable or invalid grounds such as:
a) Inter-union or intra-union disputes.
Simple violation of CBA in contrast to gross violation thereof which is deemed ULP.
Violation of labor standards.
Legislated wage orders (wage distortion).
Without first having bargained collectively.
In violation of the “no strike, no lockout” clause in the CBA.
Without submitting the issues to the grievance machinery or voluntary arbitration or failing to exhaust the steps provided t
While conciliation and mediation proceeding is on-going at the NCMB.
Based on issues already brought to voluntary or compulsory arbitration.
During the pendency of a case involving the same ground/s cited in the notice of strike.
In defiance of an assumption or certification or return-to-work order.
In violation of a temporary restraining order or an injunction order.
After the conversion of the notice of strike into a preventive mediation case.
Against the prohibition by law.
By a minority union.
By an illegitimate union.
By dismissed employees.
In violation of the company code of conduct which prohibits “inciting or participating in riots, disorders, alleged strikes or
As protest rallies in front of government offices such as in the following cases:
Toyota Motor Phils. Corp. Workers Association [TMPCWA] v. NLRC,1 where the Supreme Court ruled that the protes
The ruling in Toyota was cited in Solidbank Corporation v. Gamier, 2 as basis in declaring the protest action of the emp
19) As welga ng bayan which is in the nature of a general strike as well as an extended sympathy strike.
3.
ASSUMPTION OF JURISDICTION
(BY THE DOLE SECRETARY OR ALTERNATIVELY, AT HIS DISCRETION, CERTIFICATION OF THE LABOR
DISPUTE TO THE NLRC FOR COMPULSORY ARBITRATION)
1. WHEN DOLE SECRETARY MAY ASSUME OR CERTIFY A LABOR DISPUTE.
Article 278(g) [263(g)] of the Labor Code provides that when in the opinion of
the DOLE Secretary, the labor dispute causes or will likely to cause a strike or
lockout in an industry indispensable to the national interest, he is empowered to
do either of 2 things:
1.He may assume jurisdiction over the labor dispute and decide it himself; or
1 G.R. Nos. 158786 &158789, Oct. 19, 2007.
2 G.R. No. 159460, Nov. 15, 2010.
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2.He may certify it to the NLRC for compulsory arbitration, in which case, it will
be the NLRC which shall hear and decide it.
This power may be exercised by the DOLE Secretary even before the actual
staging of a strike or lockout since Article 278(g) [263(g)] does not require the
existence of a strike or lockout but only of a labor dispute involving national interest.
2.WHAT CONSTITUTES A NATIONAL INTEREST CASE?
The Labor Code vests in the DOLE Secretary the discretion to determine what
industries are indispensable to the national interest. Accordingly, upon the determination
by the DOLE Secretary that such industry is indispensable to the national interest, he has
authority to assume jurisdiction over the labor dispute in the said industry or certify it to
the NLRC for compulsory arbitration.
Past issuances of the DOLE Secretary have not made nor attempted to mention
specifically what the industries indispensable to the national interest are. It was only in
Department Order No. 40-H-13, Series of 2013, that certain industries were specifically
named, thus:
“Section 16. Industries Indispensable to the National Interest. – For the
guidance of the workers and employers in the filing of petition for assumption of
jurisdiction, the following industries/services are hereby recognized as deemed
indispensable to the national interest:
a. Hospital sector;
b. Electric power industry;
c. Water supply services, to exclude small water supply services such
as bottling and refilling stations;
d. Air traffic control; and
e. Such other industries as may be recommended by the National
Tripartite Industrial Peace Council (TIPC).”
Obviously, the above enumerated industries are not exclusive as other industries
may be considered indispensable to the national interest based on the appreciation and
discretion of the DOLE Secretary or as may be recommended by TIPC.
3.DIFFERENT RULE ON STRIKES AND LOCKOUTS IN HOSPITALS, CLINICS
AND MEDICAL INSTITUTIONS.
As a general rule, strikes and lockouts in hospitals, clinics and similar medical institutions should be avoided.
In case a strike or lockout is staged, it shall be the duty of the striking union or
locking-out employer to provide and maintain an effective skeletal workforce of medical
and other health personnel whose movement and services shall be unhampered and
unrestricted as are necessary to insure the proper and adequate protection of the life and
health of its patients, most especially emergency cases, for the duration of the strike or
lockout.
The DOLE Secretary may immediately assume, within twenty four (24) hours
from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same
or certify it to the NLRC for compulsory arbitration.
4.SOME PRINCIPLES ON ASSUMPTION/CERTIFICATION POWER OF THE DOLE SECRETARY.
Prior notice and hearing are not required in the issuance of the assumption or certification order.
The DOLE Secretary may seek the assistance of law enforcement agencies like the
Philippine National Police to ensure compliance with the provision thereof as well as
with such orders as he may issue to enforce the same.
5.RETURN-TO-WORK ORDER.
a.It is a STATUTORY PART AND PARCEL of assumption/certification order
even if not expressly stated therein.
The moment the DOLE Secretary assumes jurisdiction over a labor dispute
involving national interest or certifies it to the NLRC for compulsory arbitration, such
assumption or certification has the effect of automatically enjoining the intended or
impending strike or, if one has already been commenced, of automatically prohibiting its
continuation. The mere issuance of an assumption or certification order automatically
carries with it a return-to-work order, even if the directive to return to work is not
expressly stated therein. It is thus not necessary for the DOLE Secretary to issue
another order directing the strikers to return to work.
It is error therefore for striking workers to continue with their strike alleging
absence of a return-to-work order since Article 263(g) is clear that once an
assumption/certification order is issued, strikes are enjoined or, if one has already taken
place, all strikers should immediately return to work.
b. Nature of return-to-work order.
Return-to-work order is compulsory and immediately executory in character. It
should be strictly complied with by the parties even during the pendency of any petition
questioning its validity in order to maintain the status quo while the determination is
being made. Filing of a motion for reconsideration does not affect the enforcement
of a return-to-work order which is immediately executory.
c. Some principles on return-to-work order.
The issue of legality of strike is immaterial in enforcing the return-to-work order.
Upon assumption or certification, the parties should revert to the status quo
ante litem which refers to the state of things as it was before the labor dispute
or the state of affairs existing at the time of the filing of the case. It is the last
actual, peaceful and uncontested status that preceded the actual controversy.
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Example:
3.1.
NATURE OF ASSUMPTION
ORDER OR CERTIFICATION
ORDER
1. A POLICE POWER MEASURE.
The power to issue assumption or certification orders is an extraordinary
authority granted to the President and to his alter ego, the DOLE Secretary, the exercise
of which should be strictly limited to national interest cases. It is in the nature of a
police power measure. This is done for the promotion of the common good
considering that a prolonged strike or lockout can be inimical to the national
economy. It is to protect the NATIONAL INTEREST and not for the protection of labor
nor of capital.
3.2.
EFFECT OF DEFIANCE OF
ASSUMPTION OR CERTIFICATION
ORDERS ON EMPLOYMENT OF
DEFIANT WORKERS
3.3.
LIABILITY OF UNION OFFICERS
FOR DECLARATION OF ILLEGALITY OF STRIKE
3.4.
LIABILITY OF ORDINARY WORKERS
FOR COMMISSION OF ILLEGAL ACTS IN THE COURSE OF STRIKE
Union officers may be dismissed despite the fact that the illegal strike
was staged only for 1 day or even for less than 10 hours. This holds true
in cases of defiance of the assumption/ certification order issued in national
interest cases.
If the dispositive portion of the decision failed to mention the names
of union officers, resort should be made to the text of the decision.
No wholesale dismissal of strikers allowed. The employer cannot just
unceremoniously dismiss a hundred of its employees in the absence of clear
and convincing proof that these people were indeed guilty of the acts charged
and then, afterwards, go to court to seek validation of the dismissal it
whimsically executed. That certainly cannot be allowed.
1 G.R. Nos. 154113, 187778, 187861 & 196156, Dec. 7, 2011, 661 SCRA 686.
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vidual identity of the union members who participated in the commission of illegal acts may be proved thru affidavits and photographs. Simply referrin
le. Those who did not participate should not be blamed therefor.
cts must not only be identified but the specific illegal acts they each committed should be described with particularity.
o declare the strike illegal.
------------oOo------------
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SYLLABUS
MAJOR
TOPIC 6
POST EMPLOYMENT
A. EMPLOYER-
EMPLOYEE RELATIONSHIP
1.
TESTS TO DETERMINE
EXISTENCE OF EMPLOYER-
EMPLOYEE RELATIONSHIP
Four-Fold Test
What is the 4-fold test of existence of employer-employee relationship?
1.Selection and engagement of the employee;
2.Payment of wages or salaries;
3.Exercise of the power of dismissal; or
4.Exercise of the power to control the employee’s conduct.
These tests, however, are not fool-proof as they admit of exceptions.
What is the control test or also known as the MEANS AND METHOD CONTROL TEST?
The 4th test above, the control test, is the controlling test which means that
the employer controls or has reserved the right to control the employee not only as to
the result of the work to be done but also as to the means and methods by which the
same is to be accomplished.
The three (3) terms: (1) means, (2) methods and (3) results are the critical
elements of the control test, thus:
Situation 1: If the employer controls the means and methods of performing the
job, work or service, including the results thereof, then the arrangement is one of
employer-employee relationship.
Situation 3: If the so-called employer does not control such means and methods
but is only interested in the results thereof, then the arrangement is called “independent
job contracting” or “contractualization”, the party controlling the means and methods is
called the independent contractor and the party interested only in the results is called
the principal/client/indirect employer/statutory employer.
Two-Tiered Test
What is the 2-tiered test of employment relationship?
The two-tiered test enunciated in Francisco v. NLRC,1 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].2
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.”3
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.4
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,5 who is a columnist in the Philippine Daily
Inquirer (PDI), not an employee of PDI but an 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.”
1 G.R. No. 170087, Aug. 31, 2006.
2 Id.
3 Id.
4 Id.
5 G.R. No. 155207, Aug. 13, 2008.
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2.
KINDS OF EMPLOYMENT
1. Probationary
2. Security guards
3. Floating status
a.
PROBATIONARY EMPLOYMENT
The distinction lies in the intention of the parties. If the parties intend to make their
relationship regular after the lapse of the period, say of 6 months, then what is
contemplated is probationary employment; if there is no such intention of the parties,
then, what they have entered into is simply a fixed-term contract.
What are the grounds to terminate probationary employment?
Under Article 281, a probationary employee may be terminated only on three (3) grounds, to wit:
1. For a just cause; or
2. For authorized cause; or
3. When the probationary employee fails to qualify as a regular
employee in accordance with reasonable standards made known by the
employer to the employee at the start of the employment.
Is procedural due process required in termination of probationary employment?
Yes, but only in the case of Numbers 1 and 2 above.
Due process for Number 3 is different and unique in the sense that it requires
simply the service of a written notice of termination, not verbal, informing the
probationary employee of the termination of his probationary employment and
attaching thereto the result of the performance evaluation conducted on him. As clearly
pointed out above, it is a fundamental requirement that the reasonable standards
expected of the employee during his probationary employment was made known to him
at the time of his engagement. Necessarily, at the termination thereof, the supposed
performance evaluation should be presented to him. As a matter of due process, an
employee has the right to know whether he has met the standards for which his
performance was evaluated. Should he fail, he also has the right to know the reasons
therefor.
When should termination of probationary employment be made?
Termination to be valid must be done prior to lapse of probationary period.
Termination a day or a few days after the lapse of the probationary period cannot be
done without just or authorized cause as he has already become a regular employee by
that time.
b.
REGULAR EMPLOYMENT
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Yes. Fixed-term employment is the only exception to the rule that one becomes
regular if he is made to perform activities directly related to the principal business of the
employer (Regularity by virtue of nature of work)
Thus, it was ruled in Philippine Village Hotel v. NLRC,1 that the fact that private
respondents were required to render services necessary or desirable in the operation of
petitioner’s business for the duration of the one-month dry-run operation period, did not
in any way impair the validity of their contracts of employment which specifically
stipulated that their employment was only for one (1) month.
When does a fixed-term employee become regular?
The 555 Doctrine is a scheme of the employer in hiring workers on a uniformly fixed
5-month basis and replacing them upon the expiration of their contracts with other
workers with the same employment status circumvents their right to security of
tenure.
g.
FLOATING STATUS
1. A NEW
TOPIC.
The “Floating Status” Doctrine is a new topic prescribed in the 2019 Syllabus.
This topic is included in the enumeration therein as one of the kinds of employment. This
may bring about confusion since this doctrine, in no way, has anything to do with the
main topic of “Kinds of Employment.”
2.LACK OF APPLICABLE PROVISION IN THE LABOR CODE.
At the outset, it bears reiterating that although placing an employee like a security
guard on “floating” status (or sometimes called temporary “off-detail” status) is
considered a temporary retrenchment measure, the Supreme Court, in Exocet v.
Serrano,2 recognized the fact that there is similarly no provision in the Labor Code
which treats of a temporary retrenchment or lay-off. Neither is there any provision
which provides for its requisites or its duration. Nevertheless, since an employee
cannot be laid-off indefinitely, the Court has applied Article 301 [286] of the Labor Code
by analogy to set the specific period of temporary lay-off to a maximum of six (6) months.
This provision states:
“Article 301 [286]. When Employment Not Deemed Terminated. – The bona-
fide suspension of the operation of a business or undertaking for a period not
exceeding six (6) months, or the fulfillment by the employee of a military or civic
duty shall not terminate employment. In all such 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.”
Clearly from the foregoing article, the concept of “floating status” does not find any
direct connection or relation, except for the six (6)-month period provided therein which
has been held as the defining cut-off period that can be used as a consonant basis in
determining the reasonableness of the length of time when an employee could be
deprived of work under this doctrine.
3.“FLOATING” STATUS DOCTRINE AS APPLIED TO SECURITY GUARDS.
Applying Article 301 [286] by analogy, the Supreme Court has consistently
recognized that security guards may be temporarily sidelined by their security agency as
their assignments primarily depend on the contracts entered into by the latter with third
parties. This is called the “floating status” doctrine which is based on and justified under
the said article. This status, as applied to security guards, is the period of time when
security guards are in between assignments or when they are made to wait after being
relieved from a previous post until they are transferred to a new one. In security agency
parlance, being placed “off-detail” or on “floating” status means “waiting to be posted.”
4.INSTANCES WHICH JUSTIFY APPLICATION OF DOCTRINE.
“Floating status” takes place under any of the following circumstances:
(1) When the security agency’s clients decide not to renew their contracts with
the agency, resulting in a situation where the available posts under its
existing contracts are less than the number of guards in its roster; or
(2) When contracts for security services stipulate that the client may request the
agency for the replacement of the guards assigned to it even for want of cause
and there are no available posts under the agency’s existing contracts to which
the replaced security guards may be placed.
As far as No. 2 above is concerned, the Supreme Court has recognized the fact
that clients of the security agency have the right to request for the removal of any of
the security guards supplied by the latter to the former without need to justify the
same. The reason for this is the lack of any employment relationship between the security
guards and the client.
Also, under No. 2 above, a relief and transfer order may be issued by the security
agency to the security guard concerned in order to effect it. This order in itself does not
sever employment relationship between a security guard and
his agency. And the mere fact that the transfer would be inconvenient for the former does
not by itself make the transfer illegal.
5.APPLICABILITY TO OTHER EMPLOYEES.
While the “floating status” rule is traditionally applicable to security guards who
are temporarily sidelined from duty while waiting to be transferred or assigned to a new
post or client,1 Article 301 [286] has been applied as well to other industries when, as a
consequence of the bona-fide suspension of the operation of a business or undertaking,
an employer is constrained to put employees on “floating status” for a period not
exceeding six (6) months.2
Thus, it may also be applied to employees of legitimate contractors or
subcontractors under a valid independent contracting or subcontracting arrangement
under Article 106 of the Labor Code. The same form of dislocation and displacement
also affects their employees every time contracts of services are terminated by their clients
or principals. In the meantime that the dislocated employees are waiting for their next
assignment, they may be placed on “off detail” or “floating” status following the same
concept applicable to security guards.
For example, in JPL Marketing Promotions v. CA,3 this principle was applied to
merchandisers hired by petitioner company which is engaged in the business of
recruitment and placement of workers. After they were notified of the cancellation of the
contract of petitioner with a client where they were assigned and pending their
reassignment to other clients, the merchandisers are deemed to have been placed under
“floating status” for a period of not exceeding six (6) months under Article 301 [286].
Such notice, according to the Court, should not be treated as a notice of termination but
a mere note informing them of the termination of the client’s service contract with
petitioner company and their reassignment to other clients. The 30-day notice rule under
Article 298 [283] does not therefore apply to this case.
This was likewise applied to the case of:
(1) A bus driver in Valdez v. NLRC4 who was placed on floating status after the air-
conditioning unit of the bus he was driving suffered a mechanical breakdown;
and
(2) A Property Manager in Nippon Housing Phil., Inc. v. Leynes,5 pending her
assignment to another project for the same position.
6.SOME PRINCIPLES ON “FLOATING STATUS” DOCTRINE.
(1) When an employee like a security guard is placed on a “floating” status, he is not
entitled to any salary, financial benefit or financial assistance provided by law during
the 6-month period thereof.
(2) As a general rule, “floating status” beyond 6 months amounts to illegal/constructive
dismissal. This is so because “floating status” is not equivalent to dismissal so long
as such status does not continue beyond a reasonable time which means six (6)
months. After 6 months, the employee should be recalled for work, or for a new
assignment; otherwise, he is deemed terminated.
(3) The security guard who refused to be re-assigned may be dismissed for insubordination.
(4) Multiple “floating status” amount to constructive dismissal.
(5) “Floating status” is distinct from preventive suspension. In the case of “floating
status,” the employee is out of work because his employer has no available work or
job to assign him to. He is thus left with no choice but to wait for at least six (6)
months before he could claim having been constructively dismissed, should his
employer fail to assign him to any work or job within said period. In the case of
preventive suspension, the employee is out of work because he has committed a
wrongful act and his continued presence in the company premises poses a serious
and imminent threat to the life or property of the employer or of his co-workers.
Without this kind of threat, preventive suspension is not proper. Further, the
period of preventive suspension under the said provisions of the Implementing
Rules should not exceed thirty (30) days.
(6) A complaint filed before the lapse of the 6-month period of floating status is
premature, the employee not having been deemed constructively dismissed at that
point. Thus, a complaint filed twenty-nine (29) days after the security guard was
placed on floating status was declared as having been prematurely filed.
(7) However, the filing of a complaint for constructive dismissal prior to the lapse of the
6-month period of “floating status” will not be held premature in cases where the
intent to terminate the employee is evident even prior to the lapse of said period.
(8) No procedural due process is required before an employee is placed under “floating
status.” The reason is that there is no termination of employment to speak of at that
point.
h.
SECURITY GUARDS
1. NE
W TOPIC.
The topic of Security Guards is newly introduced in the 2019 Syllabus. There is no
single provision in the Labor Code on security guards; hence, it is a source of wonder
for the Syllabus to consider this topic under “Kinds of Employment” alongside such
topics as regular, casual, probationary, project, seasonal and fixed-term employments.
Perhaps, the reason for its inclusion therein is for the bar candidate to be able to address
the issue of the employment status of security guards and other private security personnel
in relation to their employer, the security agency, and to the principal/client, to whom they
have been assigned or farmed out.
2.DEPARTMENT ORDER NO. 150, SERIES OF 2016.
1 Nippon Housing Phil., Inc. v. Leynes, G.R. No. 177816, Aug. 3, 2011.
2 JPL Marketing Promotions v. CA, G.R. No. 151966, July 8, 2005.
3 G.R. No. 151966, July 8, 2005.
4 G.R. No. 125028, Feb. 9, 1998, 286 SCRA 87.
5 G.R. No. 177816, Aug. 3, 2011, 655 SCRA 77.
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In any case, there is one issuance on security guards which may be relevant for
purposes of preparing for the bar exams and that is, Department Order No. 150, Series
of 2016, entitled “Revised Guidelines Governing the Employment and Working
Conditions of Security Guards and other Private Security Personnel in the Private
Security Industry” issued by the DOLE Secretary on February 09, 2016.
More specifically, this Department Order was issued for the purpose of ensuring
compliance with mandated employment benefits and working conditions for security
guards and other private security personnel in the private security industry. It applies to
all private security, detective, investigative agencies or operators, their principals or
clients, and all companies employing security guards and other private security personnel.
3.EMPLOYMENT OF SECURITY GUARDS – PERFECT EXAMPLE OF JOB CONTRACTING.
The employment of security guards is the perfect example of job contracting
or commonly known as “contractualization” where the following trilateral relationship
between the following parties exists:
(1) “Principal” refers to any individual, company, cooperative, or
establishment, including government agencies and government-owned and
controlled-corporations, who or which puts out or farms out a security and/or
detective job, service, or work to a private Security Service Contractor (SSC).
Contractor called “Security Service Contractor (SSC)” or “Private Security Agency (PSA)” which
refers to any person, association, partnership, firm, or private corporation engaged in contracting, recruitment, training,
Contractor’s employees supplied or farmed out to the Principal called:
"Security Guard" which refers to any person who offers or renders personal service to watch or secure a residence, bu
“Private Security Personnel” which refers to natural persons, including private detectives, security consultants and
Consequently, the following terms of job contracting equally apply to the employment of security guards:
"Trilateral Relationship" which refers to the relationship in contracting or subcontracting arrangement where there i
“Service Agreement” which refers to the contract between the principal and the SSC/PSA containing the terms and
To avoid duplication and for simplicity in the discussion of this topic, the more
comprehensive discussion of job contracting below shall apply to and cover the
employment of security guards. Consequently, we shall no longer belabor the readers of
this material with a separate disquisition of this topic.
3.
LEGITIMATE SUBCONTRACTING VS. LABOR-ONLY CONTRACTING
3. The contractor’s workers engaged by the contractor and farmed out to the
principal to accomplish the job, work or service.
What are the contracts involved in this trilateral relationship?
Only two (2) contracts are involved, namely:
1) Service Agreement between the principal and the contractor wherein the obligation arising therefrom is
civil in nature and thus cognizable by the regular courts.
2)Employment contract between the contractor and its workers supplied to the principal.
Is there any employment relationship and/or contractual relationship
between the principal and the contractor’s workers farmed out to the
principal?
None. There is no employment relationship nor any form of contractual
relationship of whatsoever nature between the principal and the workers supplied
by the contractor. Hence, the principal can ask the contractor to remove any of
the latter’s employees assigned or farmed out to it anytime without need to
observe due process.
a.
LEGITIMATE JOB CONTRACTING
Example:
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3. Jose Mel Bernarte v. Philippine Basketball Association3 - Basketball referee is an independent contractor.
5. Escasinas v. Shangri-la’s Mactan Island Resort5 - A doctor may be engaged as an independent contractor.
b.
LABOR-ONLY CONTRACTING
or
(b) The contractor does not exercise the right to control over the
performance of the work of the employee.
NOTE: There is labor-only contracting even if only one of the two (2) elements
above is present. Further, an unregistered contractor is presumed to be a labor-only
contractor. Registration as independent contractor should be made with the DOLE.
What are the EFFECTS of labor-only contracting?
a) When the principal farms out work to a “Cabo” which term refers to a person or
group of persons or to a labor group which, under the guise of a labor
organization, cooperative or any entity, supplies workers to an employer, with or
without any monetary or other consideration, whether in the capacity of an agent
of the employer or as an ostensible independent contractor.
b) Contracting out of job or work through an “In-house Agency” which term refers
to a contractor which is owned, managed, or controlled, directly or indirectly, by
the principal or one where the principal owns/represents any share of stock, and
which operates solely or mainly for the principal.
c) Contracting out of job or work through an “In-house Cooperative” which
merely supplies workers to the principal. An “In-house Cooperative” refers to
a cooperative which is managed, or controlled directly or indirectly by the
principal or one where the principal or any of its officers owns/represents any
equity or interest, and which operates solely or mainly for the principal.
d) Contracting out of a job or work by reason of a strike or lockout, whether actual or imminent.
e) Contracting out of a job or work being performed by union members and
such will interfere with, restrain or coerce employees in the exercise of
their rights to self-organization as provided in Article 259 [248] of the Labor
Code, as amended.
f) Requiring the contractor's/subcontractor's employees to perform functions
which are currently being performed by the regular employees of the
principal.
g) Requiring the contractor's/subcontractor's employees to sign, as a
precondition to employment or continued employment, an antedated
resignation letter; a blank payroll; a waiver of labor standards including
minimum wages and social or welfare benefits; or a quitclaim releasing
the principal or contractor from liability as to payment of future
claims; or require the employee to become member of a cooperative.
h) Repeated hiring by the contractor/subcontractor of employees under an
employment contract of short duration.
i) Requiring employees under a contracting/subcontracting arrangement to sign
a contract fixing the period of employment to a term shorter than the
term of the Service Agreement, unless the contract is divisible into phases for
which substantially different skills are required and this is made known to the
employee at the time of engagement.
j) Such other practices, schemes or employment arrangements designed to
circumvent the right of workers to security of tenure.
The foregoing illicit acts do not constitute labor-only contracting but the effect
is similar to labor-only contracting in that the principal is deemed the direct employer of
the contractor's employees.
B.
TERMINATION BY
EMPLOYER
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1. Substantive aspect which means that the dismissal must be for any of the (1)
just causes provided under the Labor Code or the company rules and
regulations promulgated by the employer; or (2) authorized causes under the
Labor Code; and
2. Procedural aspect which means that the employee must be accorded both
STATUTORY DUE PROCESS AND CONTRACTUAL DUE PROCESS.
What is the distinction between JUST CAUSES and AUTHORIZED CAUSES?
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.
a.
JUST CAUSES
1. REQUISITES.
I SERIOUS
. MISCONDUCT
For misconduct or improper behavior to be a just cause for dismissal, the following requisites must concur:
1. It must be serious; and
2. It must relate to the performance of the employee’s duties; and
3. It must show that he has become unfit to continue working for the employer.
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II.
INSUBORDINATI
ON
OR WILLFUL DISOBEDIENCE OF LAWFUL ORDERS
1. REQUISITES.
One of the fundamental duties of an employee is to obey all reasonable rules,
orders and instructions of the employer. In order to validly invoke this ground, the
following requisites must be complied with, to wit:
1. The employee’s assailed conduct must have been willful or intentional, the
willfulness being characterized by a wrongful and perverse attitude; and
2. The order violated must be based on a reasonable and lawful company rule,
regulation or policy and made known to the employee and must pertain to the
duties for which he has been engaged to discharge.
III.
GROSS AND HABITUAL NEGLECT OF DUTIES
1. REQUISITES.
The following are the requisites:
(1) There must be negligence which is gross and/or habitual in character; and
(2) It must be work-related as would make him unfit to work for his employer.
2.SOME PRINCIPLES ON GROSS AND HABITUAL NEGLECT OF DUTIES.
Simple negligence is not sufficient to terminate employment.
The negligence must be gross in character which means absence of that diligence that
an ordinarily prudent man would use in his own affairs.
As a general rule, negligence must be both gross and habitual to be a valid ground to dismiss.
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IV.
ABANDONMENT OF
WORK
1. C
ONCEPT.
Abandonment is not provided for in the Labor Code but it is jurisprudentially
considered a form of neglect of duty; hence, a just cause for termination of employment
under Article 297(b) [282(b)] of the Labor Code.
2.REQUISITES.
To constitute abandonment, two (2) elements must concur, namely:
1) The employee must have failed to report for work or must have been absent
without valid or justifiable reason; and
2) There must have been a clear intention on the part of the employee to sever
the employer-employee relationship manifested by some overt act.
3.SOME PRINCIPLES ON ABANDONMENT.
Mere absence is not enough to constitute abandonment.
Clear intention to sever employment relationship is necessary.
Due process in abandonment cases consists only of the service of 2 notices to the employee, viz.:
a.First notice directing the employee to explain why he should not be declared as having abandoned his job; and
b.Second notice to inform him of the employer’s decision to dismiss him on the ground of abandonment.
No hearing is required to validly dismiss an employee for abandonment.
Notices in abandonment cases must be sent to employee’s last known address per
record of the company. The employer need not look for the employee’s current
whereabouts.
Immediate filing of a complaint for illegal dismissal praying for reinstatement negates abandonment.
Lapse of time between dismissal and filing of a case is not a material indication of
abandonment. Hence, lapse of 2 years and 5 months or 20 months or 9 months or 8
months before filing the complaint for illegal dismissal is not an indication of
abandonment. Under the law, the employee has a 4-year prescriptive period within
which to institute his action for illegal dismissal.
Filing of a case to pre-empt investigation of the administrative case is tantamount to abandonment.
When what is prayed for in the complaint is separation pay and not
reinstatement, the filing of complaint does not negate abandonment.
It is abandonment when what is prayed for in the complaint is separation pay and it
was only in the position paper that reinstatement was prayed for.
Employment in another firm coinciding with the filing of complaint does not indicate abandonment.
Offer of reinstatement by employer during proceedings before Labor Arbiter and
refusal by employee does not indicate abandonment but more of a symptom of
strained relations between the parties.
An employee may be absolved from the charge of abandonment of work but adjudged
guilty of AWOL. These two grounds are separate and distinct from each other.
An employee who failed to report for work after the expiration of the duly approved
leave of absence is considered to have abandoned his job.
An employee who failed to comply with the order for his reinstatement is deemed to have abandoned his work.
An employee who, after being transferred to a new assignment, did not report for work
anymore is deemed to have abandoned his job.
An employee who deliberately absented from work without leave or permission from his
employer for the purpose of looking for a job elsewhere is deemed to have abandoned
his work.
Imprisonment or detention by military does not constitute abandonment.
Absence to evade arrest is not a valid justification. To do so would be to place an
imprimatur on the employee’s attempt to derail the normal course of the
administration of justice.
QUISITES.
1. RE
V
FRAU
.
D
The following are the requisites of this ground:
1. There must be an act, omission, or concealment;
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2. The act, omission or concealment involves a breach of legal duty, trust, or confidence justly reposed;
3. It must be committed against the employer or his/her representative; and
4. It must be in connection with the employees' work.1
VI.
WILLFUL BREACH OF TRUST AND CONFIDENCE
1. REQUISITES.
For the doctrine of loss of trust and confidence to apply, the following requisites must be satisfied:
(1) The employee holds a position of trust and confidence;
(2) There exists an act justifying the loss of trust and confidence, which means that
the act that betrays the employer’s trust must be real, i.e., founded on clearly
established facts;
(3) The employee’s breach of the trust must be willful, i.e., it was done intentionally,
knowingly and purposely, without justifiable excuse; and
(4) The act must be in relation to his work which would render him unfit to perform it.
2.GUIDELINES.
As a safeguard against employers who indiscriminately use “loss of trust and
confidence” to justify arbitrary dismissal of employees, the Supreme Court, in addition to
the above elements, came up with the following guidelines for the application of the
doctrine:
(1) The loss of confidence must not be simulated;
(2) It should not be used as a subterfuge for causes which are illegal, improper or unjustified;
(3) It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and
(4) It must be genuine, not a mere afterthought, to justify earlier action taken in bad faith.
The foregoing guidelines have been prescribed by the Supreme Court due to the
subjective nature of this ground which makes termination based on loss of trust and
confidence prone to abuse.
1 Per latest DOLE Department Order No. 147-15, series of 2015, September 07, 2015.
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Full restitution does not absolve employee of offense which resulted in the loss of trust and confidence.
VII.
COMMISSION OF CRIME OR OFFENSE
1. RE
QUISITES.
The following are the requisites for the valid invocation of this ground:
1.A crime or offense was committed by the employee;
2.It was committed against any of the following persons:
(a) His employer;
(b) Any immediate member of his employer’s family; or
(c) His employer’s duly authorized representative.
2.SOME PRINCIPLES ON THE COMMISSION OF CRIME OR OFFENSE.
Because of its gravity, work-relation is not necessary. Neither is it necessary to show
that the commission of the criminal act would render the employee unfit to perform
his work for the employer.
VIII.
OTHER ANALOGOUS CAUSES
1. ANALOGOUS CAUSES UNDER ESTABLISHED JURISPRUDENCE.
The following may be cited as analogous causes:
1) Violation of company rules and regulations.
2) Theft of property owned by a co-employee, as distinguished from theft of property owned by the employer.
3) Incompetence, inefficiency or ineptitude.
4) Failure to attain work quota.
5) Failure to comply with weight standards of employer.
6) “Attitude problem” is analogous to loss of trust and confidence.
IX.
TERMINATION DUE TO
ENFORCEMENT OF UNION
SECURITY CLAUSE
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(3) There is sufficient evidence to support the union’s decision to expel the
employee from the union. (Alabang Country Club, Inc. v. NLRC,1).
All the foregoing requisites should be complied with to justify the termination of employment.
Is the employer required to observe due process before terminating an
employee who is recommended by the SEBA for termination due to violation
of the union security clause?
Yes, the employer should afford both substantive and procedural due process to
the employee. It cannot terminate his employment merely on the basis of the
recommendation of the union.
Can the employer adopt the due process afforded by the SEBA to the
employee in expelling him from his membership in the SEBA?
No. The employer cannot adopt the due process afforded by the SEBA as its own
due process for the simple reason that such due process concerns the termination of
membership of the employee from the SEBA. The due process in above-cited Alabang
Country Club, Inc. v. NLRC,2 is required for a different purpose - to terminate his
employment.
OTHER PRINCIPLES `ON TERMINATION
Per Department Order No. 147-15,
Series Of 2015 (07 September
2015)
3
An employee found positive for use of dangerous drugs shall be dealt with
administratively which shall be a ground for suspension or termination.4
An employee shall not be terminated from work based on actual, perceived or suspected HIV status.5
An employee shall not be terminated on basis of actual, perceived or suspected Hepatitis B status.6
An employee who has or had tuberculosis shall not be discriminated against. He/she
shall be entitled to work for as long as they are certified by the company's accredited
health provider as medically fit and shall be restored to work as soon as his/her illness
is controlled.7
An employee may also be terminated based on the grounds provided for under the CBA.
b.
AUTHORIZED CAUSES
(2) Health-related causes. – Referring to disease covered by Article 299 [284] of the Labor Code.
What are the two (2) kinds of requisites in the case of business-related causes?
The following are the five (5) common requisites applicable to the ALL the business-related causes:
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.
NOTE: SENIORITY is not the principal nor the only criterion. The other criteria
mentioned above which are lifted from jurisprudence, are of equal
importance.
In addition to the COMMON REQUISITES above, the following are the UNIQUE
REQUISITES of each of the authorized causes:
I.
INSTALLATION OF LABOR-SAVING DEVICE
III.
RETRENCHMEN
T
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.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 business-related cause under Article 298 [283] which requires
proof of losses or imminent losses. The other grounds of closure or cessation of business
operations may be resorted to with or without losses.
What are some relevant principles on retrenchment?
1 Per latest DOLE Department Order No. 147-15, series of 2015, September 07, 2015.
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The fact that there has been economic or other crisis besetting a particular sector
or the country as a whole is not sufficient justification for retrenchment.
The phrase “retrenchment to prevent losses” means that retrenchment may be
undertaken by the employer before the losses anticipated are actually sustained or
realized. The employer need not keep all his employees until after his losses shall
have materialized. Otherwise, the law could be vulnerable to attack as undue taking
of property for the benefit of another.
Best evidence of losses - financial statements audited by independent
auditors (not by internal auditors).
Best evidence of losses in a government-controlled corporation - financial statements audited by COA.
Income tax returns, not valid since they are self-serving documents.
Mere affidavit on alleged losses is not sufficient.
Retrenchment effected long after the business losses is not valid.
Profitable operations in the past do not affect the validity of retrenchment.
Retrenchment due to liquidity problem is not valid.
Sharp drop in income is not a ground to justify retrenchment. A mere decline in
gross income cannot in any manner be considered as serious business losses. It
should be substantial, sustained and real.
Litany of woes, in the absence of any solid evidence that they translated into specific
and substantial losses that would necessitate retrenchment, will not suffice to justify
retrenchment.
Rehiring of retrenched employees does not necessarily indicate illegality of retrenchment.
In an enterprise which has several branches nationwide, profitable
operations in some of them will not affect the validity of the retrenchment if
overall, the financial condition thereof reflects losses.
IV.
CLOSURE OR CESSATION OF BUSINESS
OPERATIONS
Can an employer close its business even if it is not suffering from business losses?
Yes. In fact, closure involves two (2) situations:
(a)When NOT due to serious business losses or financial reverses; or
(b) When due to serious business losses or financial reverses
It is only in the first that payment of separation pay is required. No such requirement is imposed in the
second.
V.
DISEAS
E
Deoferio, finally pronounced the rule that the employer must furnish the employee
two (2) written notices in terminations due to disease, namely:
(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.
In other words, due process in termination due to disease is similar to
due process for just cause termination but different from authorized cause
termination under Article 298 [283].
1 Fuji Television Network, Inc. v. Arlene S. Espiritu, G.R. Nos. 204944-45, Dec. 03, 2014.
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During the hearing or conference, the employee is given the chance to defend
himself personally, with the assistance of a representative or counsel of his choice.
Moreover, this conference or hearing could be used by the parties as an opportunity to
come to an amicable settlement.
After determining that termination of employment is justified, the employer shall serve the employees a
written notice of termination indicating that:
1) all circumstances involving the charge/s against the employee have been considered; and
2) grounds have been established to justify the severance of his employment.
1) First notice asking the employee to explain why he should not be declared as
having abandoned his job; and
2) Second notice informing him of the employer’s decision to dismiss him on the ground of abandonment.
What are the seven (7) standard situations in termination cases?
The rules on termination of employment in the Labor Code and pertinent jurisprudence are applicable to seven
(7) different situations, namely:
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1.The dismissal was for a just cause under Article 282, for an authorized cause under
Article 283, or for health reasons under Article 284, and due process was observed
– This termination is LEGAL.
2.The dismissal was without a just or authorized cause but due process was observed – This termination is
ILLEGAL.
3.The dismissal was without a just or authorized cause and due process was not observed – This termination is
ILLEGAL.
4.The dismissal was for a just or authorized cause but due process was not observed – This termination is
LEGAL.
5.The dismissal was for a non-existent cause – This termination is ILLEGAL.
6.The dismissal was not supported by any evidence of termination – This termination
is NEITHER LEGAL NOR ILLEGAL as there is no dismissal to speak of.
Reinstatement is ordered not as a relief for illegal dismissal but on equitable
ground.
7.The dismissal was brought about by the implementation of a law – This termination is LEGAL.
C.
TERMINATION BY
EMPLOYEE
i.
RESIGNATION
What are the two (2) kinds of resignation under the Labor Code (Article 300 [285])?
(a) Voluntary resignation - without just cause; or
(b) Involuntary resignation - with just cause.
What are the distinctions between the two?
(a) On service of written notice (resignation letter).
Voluntary Resignation requires the submission of a written resignation letter at
least thirty (30) days before its effectivity date; while in Involuntary Resignation, no
such written resignation letter is required since it is being made by the employee for
just cause (see just causes below).
(b) On the consequence of failure to serve a written notice.
In Voluntary Resignation, the failure to serve the written resignation letter within the
said 30-day period would make the resigning employee liable for damages; while in
Involuntary Resignation, since there is no similar requirement of service of prior
written notice, hence, there is no adverse consequence for such failure to the
involuntarily resigning employee.
(c) On whether there is illegal or constructive dismissal.
There can be no constructive dismissal in the case of Voluntary Resignation, the
same having been voluntarily and freely tendered by the employee; however, it is
different in the case of Involuntary Resignation, since it always amounts to
constructive dismissal. (See discussion below).
ii.
CONSTRUCTIVE DISMISSAL
When is there constructive dismissal?
Constructive dismissal contemplates any of the following situations:
1) An involuntary resignation resorted to when continued employment is
rendered impossible, unreasonable or unlikely;
2) A demotion in rank and/or a diminution in pay; or
3) A clear discrimination, insensibility or disdain by an employer which
becomes unbearable to the employee that it could foreclose any choice by him
except to forego his continued employment.
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D.
PREVENTIVE
SUSPENSION
When is preventive suspension proper to be imposed?
Preventive suspension may be legally imposed against an errant employee only
while he is undergoing an investigation for certain serious offenses. Consequently, its
purpose is to prevent him from causing harm or injury to the company as well as to his
fellow employees, hence, his actual presence in the workplace would not be desirable for
the meaningful conduct of the investigation of his case. Its imposition is thus justified
only in cases where the employee’s continued presence in the company
premises during the investigation poses a serious and imminent threat to the
life or property of the employer or of the employee’s co-workers. Without this
threat, preventive suspension is not proper.
What are some relevant principles in preventive suspension?
Preventive suspension is not a penalty. This is different from PUNITIVE
SUSPENSION which is imposed as a penalty less harsh than dismissal.
Preventive suspension, by itself, does not signify that the company has already
adjudged the employee guilty of the charges for which she was asked to answer
and explain.
Preventive suspension is neither equivalent nor tantamount to dismissal.
If the basis of the preventive suspension is the employee’s absences and tardiness,
the imposition of preventive suspension on him is not justified as his presence in
the company premises does not pose any such serious or imminent threat to the
life or property of the employer or of the employee’s co-workers simply “by
incurring repeated absences and tardiness.”
Preventive suspension does not mean that due process may be disregarded.
Preventive suspension should only be for a maximum period of thirty (30) days.
After the lapse of the 30-day period, the employer is required to reinstate the
worker to his former position or to a substantially equivalent position.
During the 30-day preventive suspension, the worker is not entitled to his wages
and other benefits. However, if the employer decides, for a justifiable reason, to
extend the period of preventive suspension beyond said 30- day period, he is
obligated to pay the wages and other benefits due the worker during said period of
extension. In such a case, the worker is not bound to reimburse the amount paid
to him during the extension if the employer decides to dismiss him after the
completion of the investigation.
Extension of period must be justified. During the 30-day period of preventive
suspension, the employer is expected to conduct and finish the investigation of the
employee’s administrative case. The period of thirty (30) days may only be
extended if the employer failed to complete the hearing or investigation within said
period due to justifiable grounds. No extension thereof can be made based on
whimsical, capricious or unreasonable grounds.
Preventive suspension lasting longer than 30 days, without the benefit of valid
extension, amounts to constructive dismissal.
Indefinite preventive suspension amounts to constructive dismissal.
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E.
RELIEFS FOR ILLEGAL DISMISSAL
What are the reliefs under the Labor Code, particularly under Article 294 [279] thereof?
Under this article, an illegally dismissed employee is entitled to the following reliefs:
(1) Reinstatement without loss of seniority rights and other privileges;
(2) Full backwages, inclusive of regular allowances; and
(3) Other benefits or their monetary equivalent.
What are the other reliefs that are not provided in the Labor Code but are granted in
illegal dismissal cases?
The following reliefs that are awarded in illegal dismissal cases are missing in Article 279:
(1) Award of separation pay in lieu of reinstatement.
(2) Award of penalty in the form of nominal damages in case of termination
due to just or authorized cause but without observance of procedural due
process.
(3) Reliefs to illegally dismissed employee whose employment is for a fixed period.
The proper relief is only the payment of the employee’s salaries corresponding
to the unexpired portion of the employment contract.
(4) Award of damages and attorney’s fees.
(5) Award of financial assistance in cases where the employee’s dismissal is
declared legal but because of long years of service, and other considerations,
financial assistance is awarded.
(6) Imposition of legal interest on separation pay, backwages and other monetary awards.
1.
REINSTATEMENT
What are the Labor Code’s provisions on reinstatement?
The Labor Code grants the remedy of reinstatement in various forms and situations.
Its provisions recognizing reinstatement as a relief are as follows:
1. Article 229 [223] which provides for reinstatement of an employee whose
dismissal is declared illegal by the Labor Arbiter. This form of reinstatement is self-
executory and must be implemented even during the pendency of the appeal that may be
instituted by the employer. (NOTE: See discussion of this topic under Major Topic “VIII. Jurisdiction and Reliefs; A. Labor
Arbiter”, infra).
2. Article 278(g) [263(g)] which provides for automatic return to work of all
striking or locked-out employees, if a strike or lockout has already taken place, upon the
issuance by the DOLE Secretary of an assumption or certification order in national
interest cases. The employer is required to immediately resume operation and readmit all
workers under the same terms and conditions prevailing before the strike or lockout.
3. Article 292(b) [277(b)] which empowers the DOLE Secretary to suspend
the effects of termination pending the resolution of the termination dispute in the event
of a prima facie finding by the appropriate official of the DOLE before whom such
dispute is pending that the termination may cause a serious labor dispute or is in
implementation of a mass lay-off. Such suspension of the effects of termination would
necessarily results in the reinstatement of the dismissed employee while the illegal
dismissal case is being heard and litigated.
4. Article 294 [279] which grants reinstatement as a relief to an employee whose
dismissal is declared illegal in a final and executory judgment.
5. Article 301 [286] which involves bona-fide suspension of operation for a period
not exceeding six (6) months or the rendition by an employee of military or civic duty. It
is required under this provision that the employer should reinstate its employees upon
resumption of its operation which should be done before the lapse of said six-month
period of bona-fide suspension of operation or after the rendition by the employees of
military or civic duty.
b.
SEPARATION PAY IN LIEU OF
REINSTATEMENT
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(c)When there has been long lapse or passage of time that the employee was
out of employer’s employ from the date of the dismissal to the final
resolution of the case or because of the realities of the situation.
(d)By reason of the injury suffered by the employee.
(e)The employee has already reached retirement age under a Retirement Plan.
(f) When the illegally dismissed employees are over-age or beyond the
compulsory retirement age and their reinstatement would unjustly prejudice
their employer.
(3) Where the employee decides not to be reinstated as when he does not pray
for reinstatement in his complaint or position paper but asked for separation
pay instead.
(4) When reinstatement is rendered moot and academic due to supervening events, such as:
(a)Death of the illegally dismissed employee.
(b)Declaration of insolvency of the employer by the court.
(c)Fire which gutted the employer’s establishment and resulted in its total destruction.
(d)In case the establishment where the employee is to be reinstated has closed or ceased operations.
(5) To prevent further delay in the execution of the decision to the prejudice of private respondent.
(6) Other circumstances such as (a) when reinstatement is inimical to the
employer’s interest; (b) reinstatement does not serve the best interests of the
parties involved; (c) the employer is prejudiced by the workers’ continued
employment; or (d) that it will not serve any prudent purpose as when
supervening facts transpired which made execution unjust or inequitable.
What is the amount of separation pay in lieu of reinstatement?
Per prevailing jurisprudence, the following are the components of separation pay in lieu of reinstatement>
(1) The amount equivalent to at least one (1) month salary or to one (1) month
salary for every year of service, whichever is higher, a fraction of at least six (6)
months being considered as one (1) whole year.
(2) Allowances that the employee has been receiving on a regular basis.
What is the period covered?
From start of employment up to the date of finality of decision except when the
employer has ceased its operation earlier, in which case, the same should be computed
up to the date of closure.
What is the salary rate to be used in computing it?
The salary rate prevailing at the end of the period of putative service should
be the basis for computation which refers to the period of imputed service for which
the employee is entitled to backwages.
What are some important principles on separation pay in lieu of reinstatement?
1. Award of separation pay and backwages 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 backwages.
2. Reinstatement cannot be granted when what is prayed for by employee is
separation pay in lieu thereof.
BACKWAGES
What is the Bustamante
doctrine?
In 1996, the Supreme Court changed the rule on the reckoning of backwages. It
announced a new doctrine in the case of Bustamante v. NLRC,1 which is now known as
the Bustamante doctrine. Under this rule, the term “full backwages” should mean
exactly that, i.e., without deducting from backwages the earnings derived elsewhere by
the concerned employee during the period of his illegal dismissal.
What are the components of backwages?
The components of backwages are as follows:
1. Salaries or wages computed on the basis of the wage rate level at the time of the illegal dismissal and not
in accordance with the latest, current wage level of the employee’s position.
2. Allowances and other benefits regularly granted to and received by the
employee should be made part of backwages.
If the illegally dismissed employee has reached the optional retirement age of 60
years, his backwages should only cover the time when he was illegally dismissed up
to the time when he reached 60 years. Under Article 287, 60 years is the optional
retirement age.
If the employee has reached 65 years of age or beyond, his full backwages should
be computed only up to said age. The contention of the employer that backwages
should be reckoned only up to age 60 cannot be sustained.
If employer has already ceased operations, full backwages should be computed
only up to the date of the closure. To allow the computation of the backwages to
be based on a period beyond that would be an injustice to the employer.
Any amount received during payroll reinstatement is deductible from backwages.
LIMITED BACKWAGES
When is the award of backwages limited?
(1) When the dismissal is deemed too harsh a penalty;
(2) When the employer acted in good faith; or
(3) Where there is no evidence that the employer dismissed the employee.
Thus, the backwages will not be granted in full but limited to 1 year, 2 years or 5 years [per jurisprudence].
F.
MONEY CLAIMS ARISING FROM
EMPLOYER-EMPLOYEE RELATIONSHIP
G.
RETIREME
NT
Who are covered under the retirement pay law?
The following employees are eligible to avail of retirement benefits under Article 302 [287] of the Labor Code:
1) All employees in the private sector, regardless of their position, designation or
status and irrespective of the method by which their wages are paid;
2) Part-time employees;
3) Employees of service and other job contractors;
4) Domestic workers/kasambahays or persons in the personal service of another;
5) Underground mine workers;
1 Otherwise known as the “Wage Rationalization Act.”
2 Signed into law by President Rodrigo Duterte on February 07, 2019.
3 The provisions of this law are now part of the Labor Code as its Article 302 [287].
4 Approved by President Rodrigo Duterte on February 20, 2019.
5 Otherwise known as the “Home Development Mutual Fund Law of 2009, otherwise known as Pag-IBIG (Pagtutulungan sa kinabukasan: Ikaw, Bangko, Industriya at Gobyerno)
Fund.”
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required by law in granting an early retirement age option to the employee. The law
demanded more than a passive acquiescence on the part of the employee, considering
that his early retirement age option involved conceding the constitutional right to
security of tenure.
Having thus automatically become a member of the retirement plan through his
acceptance of employment as Chief Legal Officer of respondent bank, the petitioner could
not withdraw from the plan except upon his termination from employment.
Further, the retirement plan, having been established for respondent bank and
approved by its president more than five years prior to petitioner's employment, was in
the nature of a contract of adhesion, in respect to which the petitioner was reduced to
mere submission by accepting his employment, and automatically became a member of
the plan. With the plan being a contract of adhesion, to consider him to have voluntarily
and freely given his consent to the terms thereof as to warrant his being compulsorily
retired at the age of 60 years is factually unwarranted.
To stress, company retirement plans must not only comply with the standards set by
the prevailing labor laws but must also be accepted by the employees as commensurate
to their faithful services to the employer within the requisite period. Although the
employer could be free to impose a retirement age lower than 65 years for as long its
employees consented, the retirement of the employee whose intent to retire was not
clearly established, or whose retirement was involuntary is to be treated as a discharge.
In another 2018 case, Manila Hotel Corporation v. Rosita De Leon,1 the same ruling
was made that an employee, in this case a managerial employee, cannot be compulsorily
retired at an earlier age without her express assent thereto. In this case, respondent was
retired under the retirement provision of the rank-and-file CBA which provides that an
employee's retirement is compulsory when he or she reaches the age of 60 or has rendered
20 years of service, whichever comes first. Respondent was only 57 at the time she was
compulsorily retired but had already rendered 34 years of service as Assistant Credit
and Collection Manager/Acting General Cashier. Besides holding that as managerial
employee, she is not covered by the CBA, the Court noted that there was nothing in
petitioner hotel’s submissions showing that respondent had assented to be covered by
the CBA's retirement provisions. Thus, in the absence of an agreement to the contrary,
managerial employees cannot be allowed to share in the concessions obtained by the
labor union through collective negotiation.
Moreover, the rulings in Laya and Cercado were invoked in holding that
respondent De Leon was in effect, illegally dismissed. All told, an employee in the private
sector who did not expressly agree to an early retirement cannot be retired from the
service before he reaches the age of 65 years. "Acceptance by the employee of an early
retirement age option must be explicit, voluntary, free and uncompelled." "The law
demanded more than a passive acquiescence on the part of the employee, considering
that his early retirement age option involved conceding the constitutional right to security
of tenure."
b.Retiring at an earlier age will amount to illegal dismissal if employee did not consent thereto.
In accordance with Jaculbe, Cercado, Laya and De Leon, the employee’s retirement
at an earlier age based solely on a provision of a retirement plan which was not freely
assented to by him would be tantamount to illegal dismissal.
c.By mutual agreement, employers may be granted the sole and
exclusive prerogative to retire employees at an earlier age or after
rendering a certain period of service.
Cainta Catholic School v. Cainta Catholic School Employees Union [CCSEU],2
where the Supreme Court upheld the exercise by the school of its option to retire
employees pursuant to the existing CBA where it is provided that the school has the
option to retire an employee upon reaching the age limit of sixty (60) or after
having rendered at least twenty (20) years of service to the school, the last three
(3) years of which must be continuous. Hence, the termination of employment of the
employees, arising as it did from an exercise of a management prerogative granted by the
mutually-negotiated CBA between the school and the union is valid.
What is the minimum years of service required for entitlement under the law?
Five (5) years is the minimum years of service that must be rendered by the
employee before he can avail of the retirement benefits upon reaching optional or
compulsory retirement age under Article 287.
What is the retirement age of underground mine workers?
The rule is different. The optional retirement age of underground mine workers is 50 years of age; while the
compulsory retirement age is 60 years old.
What is the minimum number of years of service required of underground mine workers?
Minimum years of service is also 5 years.
Are the retirement benefits of underground mine workers similar to ordinary retirees?
Yes. In fact, other than the retirement age, all other requirements as well as
benefits provided in the law are applicable to underground mine workers.
a.
AMOUNT OF RETIREMENT PAY
What is the amount of retirement pay under the law?
a. One-half (½) month salary.
In the absence of a retirement plan or agreement providing for retirement
benefits of employees in the establishment, an employee, upon reaching the optional or
compulsory retirement age specified in Article 287, shall be entitled to retirement pay
equivalent to at least one-half (½) month salary for every year of service, a fraction of at
least six (6) months being considered as one (1) whole year.
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c.
ENTITLEMENT OF EMPLOYEES
DISMISSED FOR JUST CAUSE TO RETIREMENT BENEFITS
General rule – Entitled because employee has acquired vested right over the retirement benefits.
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�Razon, Jr. v. NLRC, May 7, 1990.
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In this 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
It is provided in the retirement plan that the retirement, death and disability
benefits paid in the plan are considered integrated with and in lieu of
termination benefits under the Labor Code, thus, the retirement fund
may be validly used to pay such termination or separation pay because of
closure of business.
The retirement plan provides that the employee shall be entitled to either
the retirement benefit provided therein or the separation pay provided by
law, whichever is higher, the employee cannot be entitled to both benefits.
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SYLLABUS
MAJOR
TOPIC 7
MANAGEMENT PREROGATIVE
For example, an employer cannot prescribe more than 8 hours as normal working hours in a day because there is a law whi
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C.
PRODUCTIVITY
STANDARD
How may productivity standards be imposed?
The employer has the prerogative to prescribe the standards of productivity
which the employees should comply. The productivity standards may be used by the
employer as:
1.an incentive scheme; and/or
2.a disciplinary scheme.
As an incentive scheme, employees who surpass the productivity standards or
quota are usually given additional benefits.
As a disciplinary scheme, employees may be sanctioned or dismissed for failure
to meet the productivity standards or quota.
Illustrative cases:
In International School Manila v. International School Alliance of Educators
(ISAE),1 the teacher was held guilty of gross inefficiency meriting her dismissal on the
basis of the Court’s finding that she failed to measure up to the standards set by the
school in teaching Filipino classes.
In Reyes-Rayel v. Philippine Luen Thai Holdings Corp.,2 the validity of the
dismissal of petitioner who was the Corporate Human Resources (CHR) Director for
Manufacturing of respondent company, on the ground of inefficiency and ineptitude, was
affirmed on the basis of the Court’s finding that petitioner, on two occasions, gave
wrong information regarding issues on leave and holiday pay which generated
confusion among employees in the computation of salaries and wages.
In Realda v. New Age Graphics, Inc.,3 petitioner, a machine operator of
respondent company, was dismissed on the ground, among others, of inefficiency. In
affirming the validity of his dismissal, the Supreme Court reasoned:
“xxx (T)he petitioner’s failure to observe Graphics, Inc.’s work standards
constitutes inefficiency that is a valid cause for dismissal. Failure to observe
prescribed standards of work, or to fulfill reasonable work assignments due to
inefficiency may constitute just cause for dismissal. Such inefficiency is understood to
mean failure to attain work goals or work quotas, either by failing to complete the
same within the allotted reasonable period, or by producing unsatisfactory results.”
D.
BONU
S
What is the rule on its demandability and enforceability?
Bonus, as a general rule, is an amount granted and paid ex gratia to the employee.
It cannot be forced upon the employer who may not be obliged to assume the
onerous burden of granting bonuses or other benefits aside from the employees’ basic
salaries or wages. If there is no profit, there should be no bonus. If profit is reduced,
bonus should likewise be reduced, absent any agreement making such bonus part of the
compensation of the employees.
When is bonus demandable and enforceable?
It becomes demandable and enforceable:
(2) If it has ripened into a company practice;
(3) If it is granted as an additional compensation which the employer agreed to
give without any condition such as success of business or more efficient or
more productive operation, hence, it is deemed part of wage or salary.
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E.
CHANGE OF WORKING HOURS
F.
BONA FIDE OCCUPATIONAL QUALIFICATIONS
I.
THE BFOQ RULE
1.CONCEP
T.
The employer has the prerogative to impose certain qualifications based on such
criteria as race, sex, age, national origin, civil or marital status, physical appearance
(such as a requirement on “pleasing personality” or height and weight) and the like.
2.MEIORIN TEST.
This three-step test is used to determine whether an employment policy is
justified. Under this test, an employer can justify the impugned standard by establishing
on the balance of probabilities:
a. That the employer adopted the standard for a purpose rationally connected to the performance of the job;
b. That the employer adopted the particular standard in an HONEST AND GOOD
FAITH BELIEF that it was necessary to the fulfilment of that legitimate work-
related purpose; and
c. That the standard was REASONABLY necessary to the accomplishment of that
legitimate work-related purpose.
3.STAR PAPER TEST.
Consequently, in Star Paper Corp. v. Simbol, April 12, 2006, the Supreme Court
held that in order to justify a BFOQ, the employer must prove two (2) factors:
(1) The employment qualification is reasonably related to the essential operation of the job involved; and
(2) There is factual basis for believing that all or substantially all persons
meeting the qualification would be unable to properly perform the duties of
the job.
In short, the test of reasonableness of the company policy is used because it is
parallel to BFOQ.2 BFOQ is valid “provided it reflects an inherent quality reasonably
necessary for satisfactory job performance.”3 This is otherwise known as the
“Reasonable Business Necessity Rule.”
4.SPECIFIC TOPICS.
I. CIVIL STATUS/MARITAL STATUS QUALIFICATION
II. PHYSICAL APPEARANCE QUALIFICATION
III. AGE QUALIFICATION
NT CASES.
1. RELEVA
I CIVIL STATUS/MARITAL STATUS QUALIFICATION
.
As far as the qualification of civil status or marital status is concerned, the following cases are relevant:
(1) PT & T v. NLRC;4
(2) Duncan Association of Detailman-PTGWO v. Glaxo Welcome Philippines, Inc.;1 and
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II.
PHYSICAL APPEARANCE QUALIFICATION
1. THE
YRASUEGUI CASE.
This case involves the physical appearance or attribute of an employee which, in
this case, is petitioner’s weight. For several times spanning a total period of five (5) years,
petitioner, an international flight steward of respondent PAL, was given the opportunity to
reduce his weight to the acceptable level in accordance with the weight standards but he
failed to measure up therewith. He was thus terminated for his continued obesity. In his
illegal dismissal case, one of the issues raised is whether petitioner’s dismissal for obesity
can be predicated on the BFOQ defense.
1.1. APPLICATION OF THE BFOQ RULE in the YRASUEGUI CASE.
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Citing Star Paper Corp. and Duncan, the Court ruled that BFOQ is a proper
defense that justified petitioner’s dismissal grounded on his obesity.
The business of PAL is air transportation. As such, it has committed itself to safely
transport its passengers. In order to achieve this, it must necessarily rely on its
employees, most particularly the cabin flight deck crew who are on board the aircraft.
The weight standards of PAL should be viewed as imposing strict norms of discipline
upon its employees. In other words, the primary objective of PAL in the imposition of the
weight standards for cabin crew is flight safety. It cannot be gainsaid that cabin
attendants must maintain agility at all times in order to inspire passenger confidence on
their ability to care for the passengers when something goes wrong.
III.
AGE QUALIFICATION
G.
POST-EMPLOYMENT RESTRICTIONS
I.
NON-COMPETE CLAUSE
Is a non-compete
clause valid?
Yes. The employer and the employee are free to stipulate in an employment
contract prohibiting the employee within a certain period from and after the termination
of his employment, from:
(1) starting a similar business, profession or trade; or
(2) working in an entity that is engaged in a similar business that might compete with the employer.
The non-compete clause is agreed upon to prevent the possibility that upon an
employee’s termination or resignation, he might start a business or work for a
competitor with the full competitive advantage of knowing and exploiting confidential and
sensitive information, trade secrets, marketing plans, customer/client lists, business
practices, upcoming products, etc., which he acquired and gained from his employment
with the former employer. Contracts which prohibit an employee from engaging in
business in competition with the employer are not necessarily void for being in restraint
of trade.
“More significantly, since petitioner was the Senior Assistant Vice-President and
Territorial Operations Head in charge of respondent’s Hongkong and Asean operations,
she had been privy to confidential and highly sensitive marketing strategies of
respondent’s business. To allow her to engage in a rival business soon after she leaves
would
“Thus, as held by the trial court and the Court of Appeals, petitioner is bound to pay
respondent P100,000 as liquidated damages. While we have equitably reduced
liquidated damages in certain cases, we cannot do so in this case, since it appears that
even from the start, petitioner had not shown the least intention to fulfill the non-
involvement clause in good faith.”
II.
OTHER POST-EMPLOYMENT PROHIBITIONS
orship, formulas, processes, compositions of matter, computer software programs, databases, mask works and trade secrets, whether or not patentable, copyr
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SYLLABUS
MAJOR
TOPIC 8
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
Actions between employers and employees where the employer-employee relationship is merely incidental are within the e
REASONABLE CAUSAL CONNECTION RULE – THE RULE IN CASE OF CONFLICT OF JURISDICTION BETWEEN L
Under this rule, if there is a reasonable causal connection between the claim asserted and the employer- employee rela
In the absence of such nexus, it is the regular courts that have jurisdiction.
THE POWER TO DETERMINE EXISTENCE OF EMPLOYMENT RELATIONSHIP.
Under labor laws, it is not only the Labor Arbiters and the NLRC who/which are vested with the power to determine the e
The following have also the power to make similar determination:
DOLE Secretary and the DOLE Regional Directors;
Med-Arbiter;
Social Security Commission (SSC).
IN CASES FILED BY OFWs, LABOR ARBITERS MAY EXERCISE JURISDICTION EVEN ABSENT THE EMPLOYMEN
In Santiago v. CF Sharp Crew Management, Inc.,1 it was held that a seafarer who has already signed a POEA-approv
LABOR ARBITERS HAVE JURISDICTION EVEN IF THE CASE IS FILED BY THE HEIRS OF THE OFW.
This was the ruling in Medline Management, Inc. v. Roslinda.3 As heirs, the wife and son of Juliano Roslinda, the de
A.
LABOR
ARBITER
1
Refers to appeals from decisions of DOLE Regional Directors in certain cases which should be made to the BLR Director and not to the DOLE Secretary.
2
Refers to appeals from decisions of Med-Arbiters in certification election cases which should be made to the DOLE Secretary and not to the BLR Director.
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2. Under Article 124 of the Labor Code, as amended by R.A. No. 6727:
Disputes involving legislated wage increases and wage distortion in
unorganized establishments not voluntarily settled by the parties pursuant to
R.A. No. 6727.
3. Under Article 128(b) of the Labor Code, as amended by R.A. No. 7730:
Contested cases under the exception clause in Article 128(b) of the Labor Code.
I.
JURISDICTION OVER UNFAIR LABOR PRACTICE
CASES
1. SOME PRINCIPLES ON JURISDICTION OVER ULPs.
The Labor Arbiter has jurisdiction over all ULPs whether committed by the employers or the labor organizations.
The Labor Arbiter has jurisdiction only over the civil aspect of ULP, the criminal
aspect being lodged with the regular courts.
II.
JURISDICTION OVER ILLEGAL DISMISSAL CASES
1. SOME PRINCIPLES ON JURISDICTION OVER TERMINATION CASES.
The validity of the exercise of jurisdiction by Labor Arbiters over illegal dismissal
cases is not dependent on the kind or nature of the ground cited in
support of the dismissal; hence, whether the dismissal is for just cause or
authorized cause, it is of no consequence.
In case of conflict of jurisdiction between Labor Arbiter and the Voluntary
Arbitrator over termination cases, the former’s jurisdiction shall prevail for
the following reasons:
(1) Termination of employment is not a grievable issue that must be submitted to
the grievance machinery or voluntary arbitration for adjudication. The
jurisdiction thereover remains within the original and exclusive ambit of the
Labor Arbiter and not of the Voluntary Arbitrator.
(2) Even if the CBA provides that termination disputes are grievable, the same is
merely discretionary on the part of the parties thereto.
(3) Once there is actual termination, jurisdiction is conferred upon Labor Arbiters by operation of law.
(4) Interpretation of CBA and enforcement of company personnel policies are
merely corollary to an illegal dismissal case.
(5) Article 217 is deemed written into the CBA being an intrinsic part thereof.
In other words, the Voluntary Arbitrator will only have jurisdiction over illegal
dismissal cases when there is express agreement thereon by the parties to
the CBA, i.e., the employer and the bargaining agent, to submit the
termination case to voluntary arbitration. Absent the mutual express agreement
of the parties, Voluntary Arbitrator cannot acquire jurisdiction over termination
cases.
The express agreement must be stated in the CBA or there must be
enough evidence on record unmistakably showing that the parties have agreed
to resort to voluntary arbitration.
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III.
JURISDICTION OVER MONEY CLAIMS CASES
1. CLASSIFICATION OF MONEY CLAIMS.
Money claims falling within the original and exclusive jurisdiction of the Labor Arbiters may be classified as
follow
s:
1. Any money claim, regardless of amount, when asserted in an illegal
dismissal case (where the remedy of reinstatement is proper). Here, the
money claim is but an accompanying remedy subordinated to the principal cause
of action, i.e., illegal dismissal; or
(a)
JURISDICTION OF LABOR ARBITER VS. DOLE REGIONAL
DIRECTOR
workers without control or supervision and also supplied with tools and apparatus
pertaining to their job.” In its position paper, respondent again insisted that petitioners
were not its employees. It then questioned the Regional Director’s jurisdiction to
entertain the matter before it, primarily because of the absence of an employer-
employee relationship. Finally, it raised the same arguments before the Secretary of
Labor and the appellate court. It is, therefore, clear that respondent contested and
continues to contest the findings and conclusions of the labor inspector. To resolve the
issue raised by respondent, that is, the existence of an employer-employee relationship,
there is a need to examine evidentiary matters.
IV.
JURISDICTION OVER CLAIMS FOR DAMAGES
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President. - The President of the Philippines is not precluded from intervening in a
national interest case by exercising himself the powers of his alter ego, the DOLE
Secretary, granted under Article 278(g) [263(g)] by assuming jurisdiction over the same
for purposes of settling or terminating it.
7.Submission of a national interest case to voluntary arbitration. - Despite
the pendency of the assumed or certified national interest case, the parties are allowed to
submit any issues raised therein to voluntary arbitration at
1 G.R. No. 183335, Dec. 23, 2009; See also Hotel Employees Union-NFL v. Waterfront Insular Hotel Davao, G.R. Nos. 174040-41, Sept. 22, 2010.
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any stage of the proceeding, by virtue of Article 278(h) [263(h)] which provides that
“(b)efore or at any stage of the compulsory arbitration process, the parties may opt to
submit their dispute to voluntary arbitration.”
The foregoing interplay explains why Article 278(i) [263(i)] makes specific
reference to the President of the Philippines, the Secretary of Labor and Employment,
the Commission (NLRC) or the Voluntary Arbitrator in connection with the law on
strike, lockout and picketing embodied in Article 278 [263]. The only labor official not so
mentioned therein but who has a significant role to play in the interaction of labor
officials and tribunals in strike or lockout cases, is the Labor Arbiter. This is
understandable in the light of the separate express grant of jurisdiction to the Labor
Arbiters under Article 224(a)(5) [217(a)(5)] as above discussed.
VI.
JURISDICTION OVER CASES INVOLVING
LEGISLATED WAGE INCREASES AND WAGE
DISTORTION
VII.
JURISDICTION OVER ENFORCEMENT OR
ANNULMENT OF COMPROMISE AGREEMENTS
1. LEG
AL BASIS.
Article 233 [227] clearly embodies the following provisions on compromise agreements:
“Article 233 [227]. Compromise Agreements. - Any compromise settlement,
including those involving labor standard laws, voluntarily agreed upon by the parties
with the assistance of the Bureau or the regional office of the Department of Labor,
shall be final and binding upon the parties. The National Labor Relations
Commission or any court shall not assume jurisdiction over issues involved
therein except in case of non-compliance thereof or if there is prima facie
evidence that the settlement was obtained through fraud,
misrepresentation, or coercion.”
Clear from the foregoing provision that, although the compromise agreement may
have been entered into by the parties before the Bureau of Labor Relations (BLR) or the
DOLE Regional Office, it is the Labor Arbiter who has jurisdiction to take cognizance of
the following issues related thereto, to the exclusion of the BLR and the DOLE
Regional Directors:
(1) To enforce the compromise agreement in case of non-compliance therewith by any of the parties thereto; or
(2) To nullify it if there is prima facie evidence that the settlement was obtained
through fraud, misrepresentation, or coercion.
VIII.
JURISDICTION OVER EXECUTION AND
ENFORCEMENT OF DECISIONS OF VOLUNTARY
ARBITRATORS
IX.
JURISDICTION OVER CASES OF OFWs
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3.OFW-RELATED CASES OVER WHICH THE POEA, AND NOT THE LABOR
ARBITERS, HAS JURISDICTION.
The Philippine Overseas Employment Administration (POEA) has original and exclusive jurisdiction to hear and
decid
e: (a) All cases which are administrative in character, involving or arising out of
violation of rules and regulations relating to licensing and registration of
recruitment and employment agencies or entities, including refund of fees
collected from workers and violation of the conditions for the issuance of
license to recruit workers.
(b) Disciplinary action cases and other special cases which are administrative in
character, involving employers, principals, contracting partners and Filipino
migrant workers.
No. 1 above covers recruitment violations or violations of conditions of license; while No. 2 above involves (a)
disciplinary action cases against foreign principals or employers, and (a) disciplinary
action cases against land-based OFWs and seafarers.
X.
OTHER ISSUES OVER WHICH
LABOR ARBITERS HAVE
JURISDICTION
1. JURISDICTION OVER CERTAIN ISSUES AS PROVIDED IN JURISPRUDENCE.
In accordance with well-entrenched jurisprudence, the issues, claims or cases of
the following fall under the jurisdiction of the Labor Arbiters:
(a) Employees in government-owned and/or controlled corporations;
(b) Alien parties;
(c) Priests and ministers;
(d) Employees of cooperatives;
(e) Counter-claims of employers against employees.
X-1.
JURISDICTION OVER CASES INVOLVING
EMPLOYEES
OF GOVERNMENT-OWNED AND/OR CONTROLLED CORPORATIONS
1. PREVAILING RULE.
The hiring and firing of employees of government owned and/or controlled
corporations without original charters are covered by the Labor Code and, therefore, the
Labor Arbiters have jurisdiction over illegal dismissal and other cases that may be filed
under this law; while those with original charters are basically governed by the Civil
Service Law, rules and regulations and, therefore, jurisdiction on any of the cases that
may be initiated under this law is vested in the Civil Service Commission (CSC)1
X-2.
JURISDICTION OVER DISPUTES
INVOLVING ALIEN PARTIES
The terms thereof shall be construed and governed by the laws of Pakistan; and
Only the courts of Karachi, Pakistan shall have jurisdiction to consider any
matter arising out of or under the agreement.
HELD: Philippine law should apply and that the Philippine court has jurisdiction:
Philippine labor laws and regulations apply to the subject matter of this
case, i.e., the employer- employee relationship between petitioner PIA and
private respondents. The relationship is much affected with public interest
and cannot be subject of agreement that what should apply thereto should be
some other law.
Philippine court has jurisdiction because:
The contract was executed and performed partially in the Philippines;
Private respondents are Philippine citizens and residents and based in the
Philippines in between their assigned flights to the Middle East and
Europe.
Petitioner, although a foreign corporation, is licensed to do business (and is
actually doing business in the Philippines) and hence, is a resident in the
Philippines.
X-3.
JURISDICTION OVER LABOR
CASES INVOLVING PRIESTS
AND MINISTERS
WHEN LABOR ARBITERS HAVE JURISDICTION.
The fact that a case involves as parties thereto the church and its religious minister does not ipso facto give the case a reli
The religious minister in Austria v. Hon. NLRC,1 was not excommunicated or expelled from the membership of the church b
ECCLESIASTICAL AFFAIR, MEANING.
An “ecclesiastical affair” is one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforc
1. EMPLOYERS MAY ASSERT COUNTER-CLAIMS AGAINST EMPLOYEES FILED BY THE LATTER BEFORE THE L
Almost all labor cases decided by labor courts involve claims asserted by the workers. The question that may be propounded
Bañez v. Hon. Valdevilla.4 - The jurisdiction of Labor Arbiters and the NLRC is comprehensive enough to include claims
But such counter-claim, being a factual issue, must be asserted before the Labor Arbiter; otherwise, it can no longer be pas
XI.
ISSUES AND CASES OVER WHICH
LABOR ARBITERS HAVE NO
JURISDICTION
1
. LABOR ARBITERS HAVE NO JURISDICTION OVER CERTAIN ISSUES AND CASES.
The following issues or cases do not fall under the jurisdiction of Labor Arbiters:
(a) Claims for damages arising from breach of a non-compete clause and
other post-employment prohibitions;
(b) Claims for payment of cash advances, car, appliance and other loans of employees;
(c) Dismissal of corporate officers and their monetary claims;
1 Austria v. Hon. NLRC, G.R. No. 124382, Aug. 16,
1999.
2 Black’s Law Dictionary, 5th Ed., [1979], p. 460.
3 Id.
XI-A.
CLAIMS FOR DAMAGES ARISING FROM BREACH OF NON-COMPETE
CLAUSE AND OTHER POST-EMPLOYMENT
PROHIBITIONS
XI-C.
DISMISSAL OF DIRECTORS AND CORPORATE OFFICERS
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RTC has jurisdiction in case of dismissal. Labor Arbiter has jurisdiction in case of dismissal.
Reason: INTRA-CORPORATE Reason: LABOR CASE
3.MATLING DOCTRINE.
Matling Industrial and Commercial Corp. v. Ricardo R. Coros, G.R. No. 157802, Oct. 13, 2010
After his dismissal by Matling as its Vice President for Finance and Administration,
respondent Coros filed on August 10, 2000, a complaint for illegal dismissal against
Matling and some of its corporate officers (petitioners). The petitioners moved to dismiss
the complaint, raising the ground, among others, that the complaint pertained to the
jurisdiction of the SEC due to the controversy being intra-corporate inasmuch as the
respondent was a member of Matling’s Board of Directors aside from being its Vice-
President for Finance and Administration prior to his termination. The respondent
opposed petitioners’ motion to dismiss, insisting that his status as a member of Matling’s
Board of Directors was doubtful, considering that he had not been formally elected as
such; that he did not own a single share of stock in Matling, considering that he had been
made to sign in blank an undated indorsement of the certificate of stock he had been
given in 1992; that Matling had taken back and retained the certificate of stock in its
custody; and that even assuming that he had been a Director of Matling, he had been
removed as the Vice President for Finance and Administration, not as a Director, a fact
that the notice of his termination dated April 10, 2000 showed.
In ruling that Coros’ dismissal was not an intra-corporate dispute but a labor case,
the Court employed the following two-tiered test to determine whether a dispute
constitutes an intra-corporate controversy or not, namely:
(1) The status or relationship of the parties (Relationship Test); and
(2) The nature of the question that is the subject of their
controversy (Nature of Controversy Test).
This test simply dictates that before the RTC can take cognizance of a case, the
controversy must pertain to any of the following relationships:
a) between the corporation, partnership or association and the public;
b) between the corporation, partnership or association and its stockholders, partners, members or officers;
c) between the corporation, partnership or association and the State as far as its
franchise, permit or license to operate is concerned; and
d) among the stockholders, partners or associates themselves.1
The fact that in Matling, the parties involved are the corporation and Coros, its
director and stockholder and at the same time its Vice President, does not necessarily
place the dispute within the ambit of the jurisdiction of the RTC. The better policy to be
followed in determining jurisdiction over a case should be to consider concurrent factors
such as the status or relationship of the parties OR the nature of the question that
is the subject of their controversy. In the absence of any one of these factors, the RTC
will not have jurisdiction. Furthermore, it does not necessarily follow that every conflict
between the corporation and its stockholders would involve such corporate matters as only
the RTC can resolve in the exercise of its judicial powers.
Matling thus prescribes that the criteria for distinguishing between corporate
officers who may be ousted from office at will, on one hand, and ordinary corporate
employees who may only be terminated for just cause, on the other hand, do not depend
on the nature of the services performed, but on the manner of creation of the office. In
respondent Coros’ case, he was supposedly at once an employee, a stockholder, and a
director of Matling. The circumstances surrounding his appointment to office must be
fully considered to determine whether the dismissal constituted an intra- corporate
controversy or a labor termination dispute. It must also be considered whether his
status as director and stockholder had any relation at all to his appointment and
subsequent dismissal as Vice President for Finance and Administration. Obviously
enough, the respondent was not appointed as Vice President for Finance and
Administration because of his being a stockholder or director of Matling. He had started
working for Matling on September 8, 1966, and had been employed continuously for 33
years until his termination on April 17, 2000, first as a bookkeeper, and his climb in
1987 to his last position as Vice President for Finance and Administration had been
gradual but steady.2 Even though he might have become a stockholder of Matling in
1992, his promotion to the position of Vice President for Finance and Administration in
1987 was by virtue of the length of quality service he had rendered as an employee of
Matling. His subsequent acquisition of the status of director/stockholder had no relation to
his promotion. Besides, his status of director/stockholder was unaffected by his dismissal
from employment as Vice President for Finance and Administration.
1 See also Reyes v. Hon. RTC, Branch 142, G.R. No. 165744, Aug. 11, 2008, 583 Phil. 591.
2 The following is the sequence of respondent Coros’s rising from the ranks: 1966– Bookkeeper; 1968–Senior Accountant; 1969 –Chief Accountant; 1972–Office Supervisor; 1973–
Assistant Treasurer; 1978–Special Assistant for Finance; 1980–Assistant Comptroller; 1983–Finance and Administrative Manager; 1985–Asst. Vice President for Finance and
Administration; 1987 to April 17, 2000–Vice President for Finance and Administration.
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(1) The mere fact that a person was a stockholder and an officer of the
company at the time the subject controversy developed does not necessarily
make the case an intra-corporate dispute.
(2) A person, although an officer of the company, is not necessarily a corporate officer thereof.
(3) General Information Sheet (GIS) submitted to SEC neither governs nor establishes the nature of
office.
(4) The Nature of the Controversy Test: The mere fact that a person was a
stockholder at the time of the filing of the illegal dismissal case does not make
the action an intra-corporate dispute.
b. Malcaba v. Prohealth Pharma Philippines, G.R. No. 209085, June 6, 2018.
XI-D.
LABOR CASES INVOLVING ENTITIES IMMUNE FROM SUIT
1. IMMUNE ENTITIES CANNOT BE SUED FOR LABOR LAW VIOLATIONS.
In this jurisdiction, the generally accepted principles of international law are
recognized and adopted as part of the law of the land. Immunity of a State and
international organizations from suit is one of these universally recognized principles. It is
on this basis that Labor Arbiters or other labor tribunals have no jurisdiction over immune
entities.
2.ILLUSTRATIVE CASE.
In Department of Foreign Affairs v. NLRC,1 involving an illegal dismissal case
filed against the Asian Development Bank (ADB), it was ruled that said entity enjoys
immunity from legal process of every form and therefore the suit against it cannot
prosper. And this immunity extends to its officers who also enjoy immunity in respect of
all acts performed by them in their official capacity. The Charter and the
Headquarters Agreement granting these immunities and privileges to the ADB are
treaty covenants and commitments voluntarily assumed by the Philippine government
which must be respected.
3.EXCEPTION TO THE RULE.
There is an exception to the immunity rule as exemplified by the case of United
States v. Hon. Rodrigo,2 where it was held that when the function of the foreign entity
otherwise immune from suit partakes of the nature of a proprietary activity, such as the
restaurant services offered at John Hay Air Station undertaken by the United States
Government as a commercial activity for profit and not in its governmental capacity, the
case for illegal dismissal filed by a Filipino cook working therein is well within the
jurisdiction of Philippine courts. The reason is that by entering into the
1 G.R. No. 113191, Sept. 18, 1996, 262 SCRA 39, 43-
44.
2 G.R. No. 79470, Feb. 26, 1990, 182 SCRA 644, 660.
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employment contract with the cook in the discharge of its proprietary functions, it
impliedly divested itself of its sovereign immunity from suit.
4.ESTOPPEL DOES NOT CONFER JURISDICTION OVER AN IMMUNE ENTITY.
An entity immune from suit cannot be estopped from claiming such diplomatic
immunity since estoppel does not operate to confer jurisdiction to a tribunal that has none
over a cause of action.
XI-E.
DOCTRINE OF FORUM NON CONVENIENS
1. REQUISITES.
This doctrine is an international law principle which has been applied to labor
cases. The following are the requisites for its applicability:
(1) That the Philippine court is one to which the parties may conveniently resort;
(2) That the Philippine court is in a position to make an intelligent decision as to the law and the facts; and
(3) That the Philippine court has or is likely to have power to enforce its decision.
2.APPLICATION TO LABOR CASES.
a. Case where doctrine was rejected.
Petitioners’ invocation of this principle was rejected in Pacific Consultants
International Asia, Inc. v. Schonfeld.1 Petitioners’ insistence was based on the fact
that respondent is a Canadian citizen and was a repatriate. In so rejecting petitioners’
contention, the Supreme Court cited the following reasons that do not warrant the
application of the said principle: (1) the Labor Code does not include forum non
conveniens as a ground for the dismissal of the complaint; and (2) the propriety
of dismissing a case based on this principle requires a factual determination;
hence, it is properly considered as a defense.
b. Case where doctrine was applied.
This doctrine was applied in the case of The Manila Hotel Corp. and Manila
Hotel International Limited v. NLRC,2 where private respondent Marcelo Santos was
an overseas worker employed as a printer in a printing press in the Sultanate of Oman
when he was directly hired by the Palace Hotel, Beijing, People’s Republic of China to
work in its print shop. This hotel was being managed by the Manila Hotel International
Ltd., a foreign entity registered under the laws of Hong Kong. Later, he was terminated
due to retrenchment occasioned by business reverses brought about by the political
upheaval in China (referring to the Tiananmen Square incident) which severely
affected the hotel’s operations.
In holding that the NLRC was a seriously inconvenient forum, the Supreme Court
noted that the main aspects of the case transpired in two foreign jurisdictions and the
case involves purely foreign elements. The only link that the Philippines has with the case
is that the private respondent employee (Marcelo Santos) is a Filipino citizen. The Palace
Hotel and MHICL are foreign corporations. Consequently, not all cases involving Filipino
citizens can be tried here. Respondent employee was hired directly by the Beijing Palace
Hotel, a foreign employer, through correspondence sent to him while he was working at
the Sultanate of Oman. He was hired without the intervention of the POEA or any
authorized recruitment agency of the government. Hence, the NLRC is an inconvenient
forum given that all the incidents of the case - from the time of recruitment, to
employment to dismissal - occurred outside the Philippines. The inconvenience is
compounded by the fact that the proper defendants, the Palace Hotel and MHICL, are not
nationals of the Philippines. Neither are they “doing business in the Philippines.” Likewise,
the main witnesses, Mr. Shmidt (General Manager of the Palace Hotel) and Mr. Henk
(Palace Hotel’s Manager) are non-residents of the Philippines.
Neither can an intelligent decision be made as to the law governing the
employment contract as such was perfected in foreign soil. This calls to fore the
application of the principle of lex loci contractus (the law of the place where the contract
was made). It must be noted that the employment contract was not perfected in the
Philippines. Private respondent employee signified his acceptance thereof by writing a
letter while he was in the Sultanate of Oman. This letter was sent to the Palace Hotel in
the People’s Republic of China. Neither can the NLRC determine the facts surrounding
the alleged illegal dismissal as all acts complained of took place in Beijing, People’s
Republic of China. The NLRC was not in a position to determine whether the Tiananmen
Square incident truly adversely affected the operations of the Palace Hotel as to justify
respondent employee’s retrenchment.
Even assuming that a proper decision could be reached by the NLRC, such would
not have any binding effect against the employer, the Palace Hotel, which is a corporation
incorporated under the laws of China and was not even served with summons.
Jurisdiction over its person was not acquired. This is not to say that Philippine courts
and agencies have no power to solve controversies involving foreign employers. Neither
could it be said that the Supreme Court does not have power over an employment
contract executed in a foreign country. If the respondent employee were an “overseas
contract worker”, a Philippine forum, specifically the POEA, not the NLRC, would protect
him. He is not an “overseas contract worker”, a fact which he admits with conviction.
XI-F.
CONSTITUTIONALITY OF LABOR CONTRACT STIPULATIONS
2000.
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flight attendants of respondent Philippine Airlines (PAL) and are members of the Flight
Attendants and Stewards Association of the Philippines (FASAP), the sole and exclusive
bargaining representative of the flight attendants, flight stewards and pursers of
respondent. The July 11, 2001 CBA between PAL and FASAP provides that the compulsory
retirement for female flight attendants is fifty-five (55) and sixty (60) for their male
counterpart.
Claiming that said CBA provision is discriminatory against them, petitioners filed
against respondent a Special Civil Action for Declaratory Relief with Prayer for the
Issuance of Temporary Restraining Order and Writ of Preliminary Injunction with the
Regional Trial Court (RTC) of Makati City.
In ruling that the RTC has jurisdiction, the Supreme Court cited the following reasons:
(1) The case is an ordinary civil action, hence, beyond the jurisdiction of labor tribunals.
(2) The said issue cannot be resolved solely by applying the Labor Code. Rather, it
requires the application of the Constitution, labor statutes, law on contracts and
the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW). The power to apply and interpret the constitution and
CEDAW is within the jurisdiction of trial courts, a court of general jurisdiction.
(3) Not every controversy or money claim by an employee against the employer
or vice-versa is within the exclusive jurisdiction of the Labor Arbiter. Actions
between employees and employer where the employer- employee relationship is
merely incidental and the cause of action proceeds from a different source of
obligation are within the exclusive jurisdiction of the regular courts. Here,
the employer-employee relationship between the parties is merely incidental
and the cause of action ultimately arose from different sources of obligation,
i.e., the Constitution and CEDAW.
2.
REQUIREMENTS TO PERFECT APPEAL TO
NLRC
I.
APPEAL IN GENERAL
1. APPEAL, MEANING AND NATURE.
The term “appeal” refers to the elevation by an aggrieved party to an agency
vested with appellate authority of any decision, resolution or order disposing the
principal issues of a case rendered by an agency vested with original jurisdiction,
undertaken by filing a memorandum of appeal.
2.SOME PRINCIPLES ON APPEAL.
Appeals under Article 223 apply only to appeals from the Labor Arbiter’s decisions,
awards or orders to the Commission (NLRC).
There is no appeal from the decisions, orders or awards of the NLRC. Clearly,
therefore, Article 223 of the Labor Code is not the proper basis for elevating the case
to the Court of Appeals or to the Supreme Court. The proper remedy from the
decisions, awards or orders of the NLRC to the Court of Appeals is a Rule 65 petition
for certiorari and from the Court of Appeals to the Supreme Court, a Rule 45 petition
for review on certiorari.
Appeal from the NLRC to the DOLE Secretary and to the President had long been abolished.
Appeal is not a constitutional right but a mere statutory privilege. Hence, parties
who seek to avail of it must comply with the statutes or rules allowing it.
A motion for reconsideration is unavailing as a remedy against a decision of the Labor
Arbiter. The Labor Arbiter should treat the said motion as an appeal to the NLRC.
A “Petition for Relief” should be treated as appeal.
Affirmative relief is not available to a party who failed to appeal. A party who
does not appeal from a decision of a court cannot obtain affirmative relief other than
the ones granted in the appealed decision.
To reiterate, the perfection of an appeal shall stay the execution of the decision of the Labor Arbiter except
execution for reinstatement pending appeal.
2.PERFECTION OF APPEAL, MANDATORY AND JURISDICTIONAL.
The perfection of appeal within the period and in the manner prescribed by law
is jurisdictional and non- compliance with the legal requirements is fatal and has the
effect of rendering the judgment final and executory, hence, unappealable.
3.REQUISITES.
The requisites for perfection of appeal to the NLRC are as follows:
(1) Observance of the reglementary period;
(2) Payment of appeal and legal research fee;
(3) Filing of a Memorandum of Appeal;
(4) Proof of service to the other party; and
(5) Posting of cash, property or surety bond, in case of monetary awards.
The foregoing are discussed below.
III.
REGLEMENTARY
PERIOD
1. THREE (3) KINDS OF REGLEMENTARY PERIOD.
The reglementary period depends on where the appeal comes from, viz.:
1.Ten (10) calendar days – in the case of appeals from decisions of the Labor
Arbiters under Article 223 of the Labor Code;
2.Five (5) calendar days – in the case of appeals from decisions of the Labor Arbiters in contempt cases; and
3. Five (5) calendar days – in the case of appeals from decisions of the DOLE
Regional Director under Article 129 of the Labor Code.
Calendar days and not working days.
The shortened period of ten (10) days fixed by Article 223 contemplates calendar
days and not working days. The same holds true in the case of the 5-day reglementary
period under Article 129 of the Labor Code. Consequently, Saturdays, Sundays and
legal holidays are included in reckoning and computing the reglementary period.
2.EXCEPTIONS TO THE 10-CALENDAR DAY OR 5-CALENDAR DAY
REGLEMENTARY PERIOD RULE.
The following are the specific instances where the rules on the reckoning of the
reglementary period have not been strictly observed:
1) 10th day (or 5th day) falling on a Saturday, Sunday or holiday, in which case, the
appeal may be filed in the next working day.
2) When NLRC exercises its power to “correct, amend, or waive any error, defect
or irregularity whether in substance or form” in the exercise of its appellate
jurisdiction, as provided under Article 218(c) of the Labor Code, in which case,
the late filing of the appeal is excused.
3) When technical rules are disregarded under Article 221.
4) When there are some compelling reasons that justify the allowance of the appeal
despite its late filing such as when it is granted in the interest of substantial
justice.
3.SOME PRINCIPLES ON REGLEMENTARY PERIOD.
The reglementary period is mandatory and not a “mere technicality.”
The failure to appeal within the reglementary period renders the judgment
appealed from final and executory by operation of law. Consequently, the prevailing
party is entitled, as a matter of right, to a writ of execution and the issuance thereof
becomes a ministerial duty which may be compelled through the remedy of mandamus.
The date of receipt of decisions, resolutions or orders by the parties is of no moment.
For purposes of appeal, the reglementary period shall be counted from receipt of
such decisions, resolutions, or orders by the counsel or representative of record.
Miscomputation of the reglementary period will not forestall the finality of the
judgment. It is in the interest of everyone that the date when judgments become final
and executory should remain fixed and ascertainable.
Date of mailing by registered mail of the appeal memorandum is the date of its filing.
Motion for extension of time to perfect an appeal is not allowed. This kind of motion is a prohibited pleading.
Motion for extension of time to file the memorandum of appeal is not allowed.
Motion for extension of time to file appeal bond is not allowed.
IV.
APPEAL FEE AND LEGAL RESEARCH FEE
V.
MEMORANDUM OF
APPEAL
1. RE
QUISITES.
The requisites for a valid Memorandum of Appeal are as follows:
1. The Memorandum of Appeal should be verified by the appellant himself in
accordance with the Rules of Court, as amended;
2. It should be presented in three (3) legibly typewritten or printed copies;
3. It shall state the grounds relied upon and the arguments in support thereof, including the relief prayed for;
4. It shall contain a statement of the date the appellant received the appealed decision, award or order; and
5.It shall be accompanied by:
(i) proof of payment of the required appeal fee and legal research fee;
(ii) posting of a cash or surety bond (in case of monetary awards); and
(iii) proof of service upon the other party.
2.REQUIREMENTS NOT JURISDICTIONAL.
The aforesaid requirements that should be complied with in a Memorandum of
Appeal are merely a rundown of the contents of the required appeal memorandum to be
submitted by the appellant. They are not jurisdictional requirements.
3.SOME PRINCIPLES ON MEMORANDUM OF APPEAL.
Mere notice of appeal without complying with the other requisites aforestated
shall not stop the running of the period for perfecting an appeal.
Memorandum of appeal is not similar to motion for reconsideration.
Lack of verification in a memorandum of appeal is not a fatal defect. It
may easily be corrected by requiring an oath.
An appeal will be dismissed if signed only by an unauthorized representative.
Only complainants who signed the memorandum of appeal are deemed to
have appealed the Labor Arbiter’s decision. The prevailing doctrine in labor cases
is that a party who has not appealed cannot obtain from the appellate court any
affirmative relief other than those granted, if any, in the decision of the lower tribunal.
VI.
PROOF OF SERVICE TO ADVERSE PARTY
1. FAILURE TO SERVE COPY TO ADVERSE PARTY, NOT FATAL.
While it is required that in all cases, the appellant shall furnish a copy of the
Memorandum of Appeal to the other party (appellee), non-compliance therewith,
however, will not be an obstacle to the perfection of the appeal; nor will it amount to a
jurisdictional defect on the NLRC’s taking cognizance thereof.
VII.
POSTING OF
BOND
1. WHEN POSTING OF BOND REQUIRED.
Only in case the decision of the Labor Arbiter or the DOLE Regional Director (under
Article 129 of the Labor Code) involves a monetary award, that an appeal by the
employer may be perfected only upon the posting of a bond, which shall either be in the
form of (1) cash deposit, (2) surety bond or (3) property bond, equivalent in amount to
the monetary award, but excluding the amount of damages (moral and exemplary)
and attorney’s fees. In other words, only monetary awards (such as unpaid
wages, backwages, separation pay, 13th month pay, etc.) are required to be
covered by the bond. Moral and exemplary damages and attorney’s fees are
excluded.
2.SOME PRINCIPLES ON POSTING OF BOND.
Posting of bond is mandatory and jurisdictional.
The cash or surety bond required for the perfection of appeal should be
posted within the reglementary period. If a party failed to perfect his appeal by
the non-payment of the appeal bond within the 10-calendar day period provided by
law, the decision of the Labor Arbiter becomes final and executory upon the expiration
of the said period.
In case the employer failed to post a bond to perfect its appeal, the remedy of
the employee is to file a motion to dismiss the appeal and not a petition for
mandamus for the issuance of a writ of execution.
Surety bond must be issued by a reputable bonding company duly accredited by the
Commission (NLRC) or the Supreme Court.
The bond shall be valid and effective from the date of deposit or posting, until the case
is finally decided, resolved or terminated, or the award satisfied.
Posting of a bank guarantee or bank certification is not sufficient compliance with the bond requirement.
It is not equivalent to nor can be considered compliance with the cash, surety or property bond.
Cooperatives are not exempted from posting bond.
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VII-A.
RULE ON REDUCTION OF APPEAL BOND
1. REQUISITES WHEN THE AMOUNT OF APPEAL BOND MAY BE REDUCED.
(1) The motion should be filed within the reglementary period;
(2) The motion to reduce bond should be based on meritorious grounds; and
(3) The motion should be accompanied by a partial bond, the amount of which
should be reasonable in relation to the monetary awards.
3.
REINSTATEMENT PENDING APPEAL
1. PIONEER TEXTURIZING DOCTRINE: REINSTATEMENT ASPECT OF
LABOR ARBITER’S DECISION, IMMEDIATELY EXECUTORY EVEN PENDING
APPEAL; NO WRIT OF EXECUTION REQUIRED.
According to the Pioneer Texturizing doctrine,3 an order of reinstatement issued
by the Labor Arbiter under Article 229 [223] of the Labor Code is self-executory or
immediately executory even pending appeal. This means that the perfection of an appeal
shall stay the execution of the decision of the Labor Arbiter except execution of the
reinstatement pending appeal.
1 G.R. Nos. 178034, 178117, 186984 and 186985, Oct. 17, 2013.
2 Andrew James Mcburnie v. Eulalio Ganzon, G.R. Nos. 178034, 178117, 186984 and 186985, Oct. 17, 2013.
3 Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, Oct. 16, 1997, 280 SCRA 806.
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The failure of employee ordered reinstated pending appeal to report back to work as
directed by the employer does not give the employer the right to remove him,
especially when there is a reasonable explanation for his failure.
When former position is already filled up, the employee ordered reinstated pending
appeal should be reinstated to a substantially equivalent position.
Reinstatement to a position lower in rank is not proper.
In case of two successive dismissals, the order of reinstatement pending appeal
under Article 223 issued in the first case shall apply only to the first case and
should not affect the second dismissal. According to Sevilla v. NLRC, the
Labor Arbiter was correct in denying the third motion for reinstatement filed by
the petitioner because what she should have filed was a new complaint based
on the second dismissal. The second dismissal gave rise to a new cause of
action. Inasmuch as no new complaint was filed, the Labor Arbiter could not
have ruled on the legality of the second dismissal.
Reinstatement pending appeal is not affected by the reinstated employee’s employment elsewhere.
Effect of grant of achievement award during reinstatement pending appeal.
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B.
NATIONAL LABOR RELATIONS COMMISSION (NLRC)
1. N
ATURE.
The NLRC is an administrative quasi-judicial body. It is an agency attached to the
DOLE solely for program and policy coordination only. It is in charge of deciding labor
cases through compulsory arbitration.
2.COMPOSITION OF THE NLRC.
The NLRC is composed of a Chairman and twenty-three (23) members called “Commissioners.”
The NLRC has tripartite composition. Eight (8) members thereof should be
chosen only from among the nominees of the workers sector and another eight (8) from
the employers sector. The Chairman and the seven (7) remaining members shall come
from the public sector, with the latter to be chosen preferably from among the
incumbent Labor Arbiters.
3.COMMISSION EN BANC.
The Commission sits en banc only for the following purposes:
(1) To promulgate rules and regulations governing the hearing and disposition of
cases before any of its divisions and regional branches; and
(2) To formulate policies affecting its administration and operations.
The NLRC does not sit en banc to hear and decide cases. The banc has no
adjudicatory power. The Commission exercises its adjudicatory and all other
powers, functions, and duties through its eight (8) Divisions.
4.NLRC’S EIGHT (8) DIVISIONS.
The NLRC is divided into eight (8) divisions, each one is comprised of three (3)
members. Each Division shall consist of one (1) member from the public sector who shall
act as its Presiding Commissioner and one (1) member each from the workers and
employers sectors, respectively.
The various Divisions of the Commission have exclusive appellate
jurisdiction over cases within their respective territorial jurisdictions.
1.
JURISDICTIO
N
1. TWO (2) KINDS OF
JURISDICTION.
The NLRC exercises two (2) kinds of jurisdiction:
1. Exclusive original jurisdiction; and
2. Exclusive appellate jurisdiction.
2.EXCLUSIVE ORIGINAL JURISDICTION.
The NLRC exercises exclusive and original jurisdiction over the following cases:
a. Petition for injunction in ordinary labor disputes to enjoin or restrain
any actual or threatened commission of any or all prohibited or unlawful acts or
to require the performance of a particular act in any labor dispute which, if not
restrained or performed forthwith, may cause grave or irreparable damage to
any party.
b. Petition for injunction in strikes or lockouts under Article 264 of the Labor Code.
c. Certified cases which refer to labor disputes causing or likely to cause a strike
or lockout in an industry indispensable to the national interest, certified to it
by the Secretary of Labor and Employment for compulsory arbitration by
virtue of Article 263(g) of the Labor Code.
d. Petition to annul or modify the order or resolution (including those issued
during execution proceedings) of the Labor Arbiter.
3.EXCLUSIVE APPELLATE JURISDICTION.
The NLRC exercises exclusive appellate jurisdiction over the following:
a. All cases decided by the Labor Arbiters.
b. Cases decided by the DOLE Regional Directors or hearing officers involving
small money claims under Article 129 of the Labor Code.
c. Contempt cases decided by the Labor Arbiters.
2.
EFFECT OF NLRC REVERSAL OF
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The Roquero and Genuino doctrines have been modified by the Garcia doctrine. In
this case, while respondent Philippine Airlines (PAL) was undergoing rehabilitation
receivership, an illegal dismissal case was filed by petitioners against respondent PAL
which was decided by the Labor Arbiter in their favor thus ordering PAL to, inter
alia, immediately comply with the reinstatement aspect of the decision. On appeal, the
NLRC reversed the ruling of the Labor Arbiter and held that their dismissal was valid.
The issue of whether petitioners may collect their reinstatement wages during the period
between the Labor Arbiter’s order of reinstatement pending appeal and the NLRC
decision overturning that of the Labor Arbiter, now that respondent PAL has
terminated and exited from rehabilitation proceedings, was resolved in the negative by
the Supreme Court. The following ratiocinations were cited:
(1)Re: modification of the Genuino doctrine. - The “refund doctrine” in
Genuino should no longer be observed because it easily demonstrates how a favorable
decision by the Labor Arbiter could harm, more than help, a dismissed employee. The
employee, to make both ends meet, would necessarily have to use up the salaries
received during the pendency of the appeal, only to end up having to refund the sum in
case of a final unfavorable decision. It is mirage of a stop-gap leading the employee to a
risky cliff of insolvency. Further, the Genuino ruling not only disregards the social justice
principles behind the rule, but also institutes a scheme unduly favorable to management.
Under such scheme, the salaries dispensed pendente lite merely serve as a bond posted in
installment by the employer. For in the event of a reversal of the Labor Arbiter’s decision
ordering reinstatement, the employer gets back the same amount without having to spend
ordinarily for bond premiums. This circumvents, if not directly contradicts, the
proscription that the “posting of a bond [even a cash bond] by the employer shall not stay
the execution for reinstatement.”
(2) Re: modification of the Roquero doctrine. – The Roquero doctrine was
reaffirmed but with the modification that “[a]fter the Labor Arbiter’s decision is reversed
by a higher tribunal, the employee may be barred from collecting the accrued wages, if it
is shown that the delay in enforcing the reinstatement pending appeal was without fault
on the part of the employer.”
b. Two-fold test under the Garcia doctrine.
Under Garcia, the test to determine the liability of the employer (who did not
reinstate the employee pending appeal) to pay the wages of the dismissed employee
covering the period from the time he was ordered reinstated by the Labor Arbiter to the
reversal of the Labor Arbiter’s decision either by the NLRC, the Court of Appeals or the
High Court, is two-fold, to wit:
(1) There must be actual delay or the fact that the order of reinstatement pending
appeal was not executed prior to its reversal; and
(2) The delay must not be due to the employer’s unjustified act or omission. If
the delay is due to the employer’s unjustified refusal, the employer may still
be required to pay the salaries notwithstanding the reversal of the Labor
Arbiter’s decision.
In Garcia, there was actual delay in reinstating petitioners but respondent PAL was
justified in not complying with the reinstatement order of the Labor Arbiter because
during the pendency of the illegal dismissal case, the SEC placed respondent PAL under
an Interim Rehabilitation Receiver who, after the Labor Arbiter rendered his decision, was
replaced with a Permanent Rehabilitation Receiver. It is settled that upon appointment
by the SEC of a rehabilitation receiver, all actions for claims before any court, tribunal
or board against the corporation shall ipso jure be suspended. Resultantly, respondent
PAL’s “failure to exercise the alternative options of actual reinstatement and payroll
reinstatement was thus justified. Such being the case, respondent’s obligation to pay the
salaries pending appeal, as the normal effect of the non-exercise of the options, did not
attach.”
2. RECKONING OF THE PERIOD COVERED BY ACCRUED REINSTATEMENT WAGES.
To clarify, employees ordered reinstated by the Labor Arbiter are entitled to
accrued reinstatement wages only from the time the employer received a copy of the
Labor Arbiter’s decision declaring the employees’ termination illegal and ordering their
reinstatement up to the date of the decision of the appellate tribunal overturning
that of the Labor Arbiter. It is not accurate therefore to state that such entitlement
commences “from the moment the reinstatement order was issued up to the date when
the same was reversed by a higher court without fear of refunding what he had received.”
4.SOME PRINCIPLES ON REINSTATEMENT WAGES.
Employer is not liable to pay any reinstatement backwages if reinstatement is ordered
not by the Labor Arbiter but by the NLRC on appeal and it was not executed by writ
and its finding of illegal dismissal is later reversed by the Court of Appeals and/or
Supreme Court.
Payroll-reinstated employee is entitled not only to reinstatement wages but also to
other benefits during the period of payroll reinstatement until the illegal
dismissal case is reversed by a higher tribunal.
Award of additional backwages and other benefits from the time the Labor Arbiter
ordered reinstatement until actual or payroll reinstatement is proper and valid.
C.
JUDICIAL REVIEW OF LABOR RULINGS
1.
COURT OF APPEALS
Rule 65, Rules of Court
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1 G.R. No. 180962, Feb. 26, 2014. Although this case involves a decision of the DOLE Secretary, the principle enunciated herein equally applies to the NLRC.
2 G.R. No. 120319, October 6, 1995.
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In Alcantara, Jr. v. CA,1 it was held that Luzon Development Bank is still a good law.
3.PERIOD OF APPEAL.
A conflict in the reckoning of the reglementary period within which to elevate a case
on appeal from the Voluntary Arbitrator to the CA exists between the law, Article 276 [262-A]
of the Labor Code, on the one hand, and the Rules of Court, particularly Section 4, Rule 43
thereof, on the other.
Section 4, Rule 43 of the Rules of Court, on the other hand, provides for a 15-day
reglementary period for filing an appeal, thus:
“Section 4. Period of appeal. - The appeal shall be taken within fifteen (15)
days from notice of the award, judgment, final order or resolution, or from the date
of its last publication, if publication is required by law for its effectivity, or of the
denial of petitioner's motion for new trial or reconsideration duly filed in accordance
with the governing law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and the payment of the full
amount of the docket fee before the expiration of the reglementary period, the Court of
Appeals may grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the most compelling
reason and in no case to exceed fifteen (15) days.”3
3.
SUPREME COURT
Rule 45, Rules of Court
2018.
5 G.R. No. 196036, Oct. 23, 2013.
6 G.R. No. 141524, Sept. 14, 2005.
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D.
BUREAU OF LABOR RELATIONS (BLR)
1.
JURISDICTION
MED-ARBITER.
The term “Med-Arbiter” refers to an officer in the DOLE Regional Office or in the BLR authorized to hear and decide represen
While the Labor Code refers to this official as “Med-Arbiter,” it should, however, be construed to mean “Mediator-Ar
DOLE REGIONAL DIRECTOR.
The Regional Directors are the duly authorized representatives of the DOLE Secretary in the DOLE regional offices. They are in
BLR DIRECTOR.
The BLR is headed by a Director who hears and decides certain specified cases over which he has either original or appellate j
The following are the general classifications of the cases falling under the jurisdiction of the said officials, to wit:
Inter-union disputes;
Intra-union disputes; and
Other related labor relations disputes.
III-B.
OTHER RELATED LABOR RELATIONS DISPUTES
1. MEANING OF “OTHER RELATED LABOR RELATIONS DISPUTES.”
“Other related labor relations dispute” refers to any conflict between a labor union
and the employer or any individual, entity or group that is not a labor union or workers’
association.5
More specifically, it may refer to any of the following:
(a) Any conflict between:
(1) a labor union and an employer, or
(2) a labor union and a group that is not a labor organization; or
(3) a labor union and an individual who is not a member of such union;
IV.
ORIGINAL AND EXCLUSIVE JURISDICTION
OF MED-ARBITERS, DOLE DIRECTORS AND BLR
DIRECTOR
Having known the various cases afore-described, a discussion of the respective
jurisdictions of the Med-Arbiters, DOLE Directors and BLR Director over these cases may
now be made with greater clarity.
1.
MED-ARBITERS
ORIGINAL AND EXCLUSIVE JURISDICTION
The cases falling under the original and exclusive jurisdiction of the Med-Arbiters are as follows:
(1) Inter-union disputes (representation or certification election conflicts), such as:
(a)Request for SEBA certification when made in an unorganized
establishment with only one1 or more than one (1) legitimate union2 or
in an organized establishment;3 or
1 Section 1 [bb], Rule I, Book V, Ibid.; Diokno v. Hon. Cacdac, supra; Bautista v. CA, supra.
2 See Section 1, Rule XI, Book V of the Rules to Implement the Labor Code, as previously amended by Department Order No. 40-F-03, Series of 2008 [October 30, 2008] which
designated this section as “Section 1(A)”, and as further amended by Section 18, Department Order No. 40-I-15, Series of 2015 [September 07, 2015], entitled “Further Amending
Department Order No. 40, Series of 2003, Amending the Implementing Rules and Regulations of Book V of the Labor Code of the Philippines, as Amended.”
3 This is in the nature of an inter-union dispute which may be occasioned by the introduction of a new mode of securing the status of sole and exclusive bargaining agent (SEBA). The
Labor Code’s Implementing Rules, particularly its RULE VII on “Voluntary Recognition” was actually repealed and replaced by a completely new provision entitled “REQUEST FOR
SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) CERTIFICATION” This was introduced by the amendatory provision of Section 3, Department Order No. 40-I-15, Series of
2015 [September 07, 2015], Ibid.
4 Disputes over the interpretation or implementation of the CBA are considered as grievable issues cognizable by and should be processed through the grievance machinery and
voluntary arbitration provided in the CBA itself. (See Articles 273 [260] and 274 [261], Labor Code).
5 Section 1 [rr], Rule I, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003].
6 Section 1[B] (formerly Section 2), Rule XI, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
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(b)Petition for certification election, consent election, run-off election or re-run election;
(2) Intra-union disputes;
(3) Other related labor relations disputes;4
(4) Injunction cases;5 and
(5) Contempt cases.6
On No. 1[a] above, the Mediator-Arbiter will have jurisdiction over a Request for
SEBA Certification if it is made in an organized establishment as well as in instances
where it is made in an unorganized establishment with more than one (1)
legitimate organization. Under this situation, the DOLE Regional Director, before whom
the said Request is filed, is required to refer it to the Mediator-Arbiter for the
determination of the propriety of conducting a certification election; consequently, the
Mediator-Arbiter would now have the jurisdiction to take cognizance of the certification
election.7
2.
DOLE REGIONAL DIRECTORS
ORIGINAL AND EXCLUSIVE
JURISDICTION
The DOLE Regional Directors have original and exclusive jurisdiction over numerous
cases.8 But not all of them are relevant to or connected with the three (3) classes of cases9
expressly mentioned in Article 232 [226]. Only the following cases cognizable by them are
related thereto or connected therewith by virtue of laws and rules:
(1) Visitorial cases under Article 289 [274],10 involving examination of books of
accounts of independent unions, local chapters/chartered locals and
workers’ associations;
(2) Union registration-related cases, such as:
a) Applications for union registration of independent unions, local chapters and workers’ associations;11
b) Denial of application for registration12 of said unions;13
c) Petitions for revocation or cancellation of registration14 of said unions;15
(3) Denial of registration of single-enterprise16 CBAs or petitions for deregistration thereof;17 and
(4) Request for SEBA certification when made in an unorganized establishment
with only one (1) legitimate union.18
1 In case the Request is made in an unorganized establishment with only one (1) legitimate union, and the requesting union or local fails to complete the requirements for SEBA
certification during the validation conference before the DOLE Regional Director, in which event, such Request should be referred to the Election Officer for the conduct of
certification election (Section 4, Rule VII of the Rules to Implement the Labor Code, as amended by Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. The
election should be conducted in accordance with Rule IX thereof.), which necessarily would mean that such certification election should now be conducted under the
jurisdiction of the Mediator-Arbiter to whom the Election Officer is duty-bound to report the outcome of the election proceeding. Certainly, the ensuing certification election cannot
be conducted under the directive of the DOLE Regional Director without the participation of the Mediator-Arbiter who, under the law, is the one possessed of the original and
exclusive jurisdiction over certification election cases, including the proclamation of the winning SEBA. (See Section 21, Rule IX, Book V, Rules to Implement the Labor Code,
as ordered renumbered by Section 17, Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. This section was originally numbered Section 20, per Department
Order No. 40-03, Series of 2003, [Feb. 17, 2003], but it was subsequently re-numbered to Section 19, per Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008]).
2 Section 5, Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-15, Series of 2015 [September 07, 2015].
3 Section 6, Rule VII, in relation to Rules VIII and IX, Ibid.
4 Section 1 [ii], Rule I, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]; Section 4, Rule XI, Book V of the
Rules to Implement the Labor Code, as amended by Department Order No. 40-F-03, Series of 2008 [October 30, 2008]. See also Article 226, Labor Code; Policy Instructions No. 6;
Villaor v. Trajano, G.R. No. 69188, Sept. 23, 1986.
5 Med-Arbiters have the authority to issue temporary restraining orders (TROs) and writs of injunction in appropriate cases. Section 5, Rule XVI, Book V of the Omnibus Rules
Implementing the Labor Code states: “Sec 5. Injunctions. -- No temporary injunctions or restraining order in any case involving or growing out of a labor dispute shall be issued by
any court or other entity. On the other hand, the Office of the President, the Secretary of Labor, the Commission, the Labor Arbiter or Med-Arbiter may enjoin any or all acts
involving or arising from any case pending before any of said offices or officials which if not restrained forthwith may cause grave or irreparable damage to any of the parties to
the case or seriously affect social or economic stability.”
6 Section 4, Rule XVI, Book V, Rules to Implement the Labor Code.
7 Section 6, Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-15, Series of 2015 [September 07, 2015].
8 All the cases cognizable by the DOLE Regional Directors are as follows: (a) Visitorial (inspection) cases under Article 37; (b) Visitorial (inspection) and enforcement cases under
Article 128; (c) Visitorial cases under Article 289 [274], involving examination of books of accounts of independent unions, local chapters/chartered locals and workers’ associations;
(d) Occupational safety and health violations; (e) Small money claims cases arising from labor standards violations in an amount not exceeding ₱5,000.00 and not accompanied
with a claim for reinstatement under Article 129; (f) Cases related to private recruitment and placement agencies (PRPAs) for local employment, such as: (1) Applications for
license or denial thereof; (2) Complaints for suspension or cancellation of license by reason of administrative offenses; (3) Complaints for illegal recruitment; and (4) Petition for
closure of agency; (g) Cases submitted for voluntary arbitration in their capacity as Ex-Officio Voluntary Arbitrators (EVAs) under Department Order No. 83-07, Series of 2007;
(h) Union registration-related cases, such as: 1) Applications for union registration of independent unions, local chapters and workers’ associations; 2) Petition for denial of
application for registration of said unions; 3) Petitions for revocation or cancellation of registration of said unions; (i) Notice of merger, consolidation, affiliation and change of
name of said unions and or petition for denial thereof; (j) CBA-related cases, such as: 1) Application for registration of single-enterprise CBAs or petition for deregistration
thereof; 2) Petition for denial of registration of single-enterprise CBAs or denial of deregistration thereof; and (k) Request for SEBA certification when made in an unorganized
establishment with only one (1) legitimate union.
9 These are (1) inter-union disputes; (2) intra-union disputes; and (3) Other related labor relations disputes.
10 “Article 289 [274]. Visitorial power. The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of
legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the
labor organization concerned and to examine their books of accounts and other records to determine compliance or non-compliance with the law and to prosecute any violations of
the law and the union constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty
(30) days immediately preceding the date of election of union officials.” (As amended by Section 31, Republic Act No. 6715, March 21, 1989).
11 Section 3, Rule II of the Med-Arbitration Rules states: “SEC. 3. Jurisdiction of the Regional Director.- The Regional Director shall exercise original and exclusive jurisdiction over
application for union registration, petitions for cancellation of union registration and complaints for examination of unions books of accounts.” See also Section 1, Rule II, Rules of
Procedure on Mediation-Arbitration.
12 See Article 243 [236] of the Labor Code which provides: “Art. 243 [236]. Denial of registration; appeal. The decision of the Labor Relations Division in the regional office denying
registration may be appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof.”
13 Referring to independent unions, local chapters and workers’ associations, as distinguished from federations, national unions, industry unions, trade union centers and their local
chapters/chartered locals, affiliates and member organizations whose application for registration as well as denial or cancellation or revocation of registration is cognizable by the BLR
Director in his original and exclusive jurisdiction [infra].
14 Specifically cited as exception to Med-Arbiter’s jurisdiction is cancellation of union registration, per Section 1 [ii], Rule I, Book V, Rules to Implement the Labor Code, as amended by
numbered by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
18 Section 4, Rue VII, Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. Under this situation, the DOLE Regional Director, before whom the Request for SEBA
Certification is filed, should refer the Request for SEBA Certification to the Mediator-Arbiter for the determination of the propriety of conducting a certification election, in which case,
the Mediator-Arbiter now has the jurisdiction to decide the certification election issue. (Section 6, Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-15, Series of
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2015 [September 07, 2015]). Note must be made that when the Request for SEBA Certification is made in an unorganized establishment with more than one (1) legitimate labor
organization, the Med-Arbiter takes over from the DOLE Regional Director in the matter of hearing and resolving the issue of certification election.
1 See Section 3, Rule XIII, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003], thus, a request for examination
of books of accounts pursuant to Article 289 [274], in the absence of allegations pertaining to a violation of Article 250 [241], should not be treated as an intra-union dispute.
2 G.R. No. 120220, June 16, 1999.
3 Citing La Tondena Workers Union v. Secretary of Labor, G.R. No. 96821, Dec. 9, 1994, 239 SCRA 117.
4 Section 3, Rule II of the Med-Arbitration Rules states: “SEC. 3. Jurisdiction of the Regional Director.- The Regional Director shall exercise original and exclusive jurisdiction over
application for union registration, petitions for cancellation of union registration and complaints for examination of unions books of accounts.”
5 See 2nd paragraph, Section 1, Rule III, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]; See also Section 1, Rule
labor union operating within the bargaining unit concerned, the DOLE Regional Office, through the Labor Relations Division shall, within ten (10) days from receipt of the notice,
record the fact of voluntary recognition in its roster of legitimate labor unions and notify the labor union concerned. (See the repealed provision of Section 3, Rule VII, Book V, Rules
to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]).
Where the notice of voluntary recognition is insufficient in form, number and substance, the DOLE Regional Office shall, within the same period, notify the labor union of its findings
and advise it to comply with the necessary requirements. Where neither the employer nor the labor union failed to complete the requirements for voluntary recognition within thirty
(30) days from receipt of the advisory, the DOLE Regional Office shall return the notice of voluntary recognition together with all its accompanying documents without prejudice to
its re- submission. (Section 3, Rule VII, Book V, Ibid.).
7 Section 1, Rule VII, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003].
8 Besides this mode, the other modes of selecting or designating a SEBA are certification election, consent election, run-off election, and lately, re-run election.
9 “Election Officer” refers to an officer of the Bureau of Labor Relations or the Labor Relations Division in the Regional Office authorized to conduct certification elections, election of
union officers and other forms of elections and referenda. (Section 1 [o], Rule I, and Sections 2-5, Rule XII, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]). It is the Election Officer who shall have control of the pre-election conference and election proceedings. (Section
1, Rule IX, Book V, Ibid.).
10 Section 4, Rule VII of the Rules to Implement the Labor Code, as amended by Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. The election should be
conducted in accordance with Rule IX thereof.
11 Under the Rules, within 24 hours from the final canvass of votes, there being a valid election, the Election Officer shall transmit the records of the case to the Med-Arbiter who shall,
within the same period from receipt of the minutes and results of election, issue an order proclaiming the results of the election and certifying the union which obtained the majority of
the valid votes cast as the sole and exclusive bargaining agent in the subject bargaining unit, xxx. (The provision entitled “Proclamation and certification of the result of the election”
should now be denominated as Section 21, Rule IX, Book V, Rules to Implement the Labor Code, by virtue of the re-numbering ordered by Section 17, Department Order No. 40-I-
15, Series of 2015 [September 07, 2015]. This section was originally numbered Section 20, per Department Order No. 40-03, Series of 2003, [Feb. 17, 2003], but it was
subsequently re-numbered to Section 19, per Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008]. This latest 2015 re-numbering was effected through said Section 17
which states: “Sections subsequent to inserted new provisions and/or renumbered sections are renumbered accordingly.”).
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the ensuing certification election cannot be conducted under the directive of the DOLE
Regional Director without the participation of the Mediator-Arbiter who, under the law,1 is
the one possessed of the original and exclusive jurisdiction over certification election cases,
including the proclamation of the winning SEBA.2
(2) In case the Request is made in an unorganized establishment with more than
one (1) legitimate union, in which event, the DOLE Regional Director is required to refer
the Request directly to the Election Officer for the conduct of a certification election3 which
should be in accordance with the Rules4 that state, in its Section 2, Rule VIII, that the
“(Request) shall be heard and resolved by the Mediator-Arbiter.” Resultantly, it is still the
Mediator-Arbiter who should take cognizance of the Request which, in this case, is the
equivalent of the Petition for Certification Election over which he exercises original
jurisdiction.
(3) In case the Request is made in an organized establishment, in which case, the
Regional Director should refer the same to the Mediator-Arbiter for the determination of the
propriety of conducting a certification election.5
3.
BLR DIRECTOR
ORIGINAL AND EXCLUSIVE JURISDICTION.
At the outset, it must be stressed that reference in the law and pertinent rules to
“BLR”, as far as the issue of jurisdiction is concerned, should appropriately mean “BLR
Director.” This is as it should be because “BLR” is a generic term that includes not only the
Med-Arbiters and DOLE Regional Directors but the BLR Director himself. More significantly,
there is jurisprudential variance in the cases cognizable by the BLR Director, in relation to
Med-Arbiters and DOLE Regional Directors, hence, referring to the cases properly falling
under the jurisdiction of the “BLR Director” as such would be more appropriate and less
confusing than simply referring to them as falling under the jurisdiction of the “BLR.”
The BLR Director exercises two (2) kinds of jurisdiction, namely: original and
appellate.6 The following cases fall under the first:
(1) Complaints and petitions involving the application for registration, revocation or
cancellation of registration of federations, national unions, industry unions,
trade union centers and their local chapters/chartered locals, affiliates and
member organizations;7
(2) Request for examination of books of accounts of said labor organizations8
under Article 289 [274] of the Labor Code;
(3) Intra-union disputes involving said labor organizations;9
(4) Notice of merger, consolidation, affiliation and change of name of said
unions and or petition for denial thereof;10
(5) Registration of multi-employer11 CBAs or petitions for deregistration thereof;12
(6) Contempt cases.
As far as No. 3 above is concerned, the 2010 case of Atty. Montaño v. Atty.
Verceles,13 is relevant. Petitioner14 here claimed that under the Implementing Rules,15 it is
the DOLE Regional Director and not the BLR (Director) who has jurisdiction over intra-union
disputes involving federations which, in this case, pertains to the election protests in
connection with the election of officers of the federation (Federation of Free Workers
[FFW]). In finding no merit in petitioner’s contention, the High Court pointed out that Article
226 of the Labor Code clearly provides that the BLR (Director) and the Regional Directors of
DOLE have concurrent jurisdiction over inter-union and intra-union disputes. Such disputes
include the conduct or nullification of election of union and workers’ association officers.
There is, thus, no doubt as to the BLR (Director)’s jurisdiction over the instant dispute
involving member-unions of a federation arising from disagreement over the provisions of the
federation’s constitution and by-laws. It agreed with the following observation of the BLR
(Director):
“Rule XVI lays down the decentralized intra-union dispute settlement mechanism.
Section 1 states that any complaint in this regard ‘shall be filed in the Regional Office
where the union is domiciled.’ The concept of domicile in labor relations regulation is
equivalent to the place where the union seeks to operate or has established a geographical
presence for purposes of collective bargaining or for dealing with employers concerning
terms and conditions of employment.
“The matter of venue becomes problematic when the intra-union dispute
involves a federation, because the geographical presence of a federation may
encompass more than one administrative region. Pursuant to its authority under
Article 232 [226], this Bureau exercises original jurisdiction over intra-union disputes
involving federations. It is well-settled that FFW, having local unions all over the
country, operates in more than one administrative region.
respondent Atty. Ernesto C. Verceles, a delegate to the convention and president of University of the East Employees Association (UEEA-FFW) which is an affiliate union of FFW.
15 See Section 6 of Rule XV, in relation to Section 1 of Rule XIV of Book V of the Rules to Implement the Labor Code.
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Therefore, this Bureau maintains original and exclusive jurisdiction over disputes
arising from any violation of or disagreement over any provision of its constitution and
by-laws.”1
V.
APPELLATE JURISDICTION OF THE BLR DIRECTOR
AS DISTINGUISHED FROM THAT OF THE DOLE
SECRETARY
1. NECESSITY FOR JURISDICTIONAL DISTINCTIONS.
The distinctions pointed out above between the respective jurisdictions of the Med-
Arbiters, DOLE Regional Directors and the BLR Director acquire significance in determining
which of the cases over which they exercise jurisdiction may be appealed to the BLR
Director and those that may be appealed to the DOLE Secretary, both of whom, based on law
and jurisprudence, are possessed of exclusive appellate jurisdiction over certain cases
decided by the Med-Arbiters, DOLE Regional Directors and BLR Director.
The Supreme Court had occasion to distinguish the appellate jurisdiction of the BLR
Director from that of the DOLE Secretary in the case of Abbott Laboratories Philippines, Inc.
v. Abbott Laboratories Employees Union.2 Accordingly, the appellate jurisdiction of the DOLE
Secretary is limited only to the review of decisions rendered by the BLR Director in the
exercise of his exclusive and original jurisdiction. The DOLE Secretary has no jurisdiction
over decisions of the BLR Director rendered in the exercise of his appellate jurisdiction over
decisions made by Med-Arbiters and DOLE Regional Directors in the exercise of their
respective original and exclusive jurisdictions, the reason being that such decisions are final
and inappealable.
2.APPEALS FROM DECISIONS OF MED-ARBITERS.
Decisions in the cases falling under the original and exclusive jurisdiction of the Med-Arbiters are appealable as
follows:
(1) Inter-union disputes (representation or certification election conflicts) – to DOLE Secretary3
(a)Request for SEBA certification when made in an unorganized establishment
with only one4 or more than one (1) legitimate union5 or in an organized
establishment – to DOLE Secretary
(b)Petition for certification election, consent election, run-off election or re-run election - to DOLE Secretary
(2) Intra-union disputes6 – to BLR Director
(3) Other related labor relations disputes - to BLR Director
(4) Injunction cases - to BLR Director
(5) Contempt cases - to BLR Director
2.1.DIFFERENT RULE RE APPELLATE JURISDICTION OVER MED-ARBITER’S
DECISIONS IN INTER-UNION DISPUTES.
a. Legal basis.
While generally, the decisions of the Med-Arbiters are appealable to the BLR Director,
excepted therefrom are their decisions in inter-union disputes7 which are appealable
directly to the DOLE Secretary by virtue of Article 272 [259]8 of the Labor Code.
b. Variance in the rule on appeal in unorganized and organized establishments.
The rule on appeal in certification election cases in unorganized establishments is different from that of organized
establishments, to wit:
(1) Appeal in unorganized establishments. - The order granting the conduct of a
certification election in an unorganized establishment is not subject to appeal. Any issue
arising from its conduct or from its results is proper subject of a protest. Appeal may only
be made to the DOLE Secretary in case of denial of the petition within ten (10) calendar
days from receipt of the decision of denial.9
(2) Appeal in organized establishments. - The order granting the conduct of a
certification election in an organized establishment and the decision dismissing or denying
the petition for certification election may be appealed to the DOLE Secretary within ten
(10) calendar days from receipt thereof.10
3.APPEALS FROM DECISIONS OF DOLE REGIONAL DIRECTORS.
1 Emphasis supplied.
2 G.R. No. 131374, Jan. 26, 2000.
3 This is by virtue of Article 272 [259] of the Labor Code. This article is entitled “Appeal from Certification Election Orders” and it provides as follows: “Article 259. Appeal from
Certification Election Orders. – Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and
Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated.
Such appeal shall be decided within fifteen (15) calendar days.” Prior to the amendment of Article 272 [259] by R.A. No. 6715, the decisions of the Med-Arbiter in certification
election cases are appealable to the BLR. Now, they are appealable to the DOLE Secretary. (A’ Prime Security Services, Inc. v. Hon. Secretary of Labor, G.R. No. 91987, July
17, 1995). It must be emphasized that as far as intra-union disputes are concerned, the decisions of the Med-Arbiters thereon remain appealable to the BLR. (See Section 1 [1],
Rule III, NCMB Manual of Procedures for Conciliation and Preventive Mediation Cases).
4 In case the Request is made in an unorganized establishment with only one (1) legitimate union, and the requesting union or local fails to complete the requirements for SEBA
certification during the validation conference before the DOLE Regional Director, in which event, such Request should be referred to the Election Officer for the conduct of
certification election (Section 4, Rule VII of the Rules to Implement the Labor Code, as amended by Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. The
election should be conducted in accordance with Rule IX thereof.), which necessarily would mean that such certification election should now be conducted under the jurisdiction of
the Mediator-Arbiter to whom the Election Officer is duty-bound to report the outcome of the election proceeding. Certainly, the ensuing certification election cannot be conducted
under the directive of the DOLE Regional Director without the participation of the Mediator-Arbiter who, under the law, is the one possessed of the original and exclusive
jurisdiction over certification election cases, including the proclamation of the winning SEBA. (See Section 21, Rule IX, Book V, Rules to Implement the Labor Code, as ordered
renumbered by Section 17, Department Order No. 40-I-15, Series of 2015 [September 07, 2015]. This section was originally numbered Section 20, per Department Order No.
40-03, Series of 2003, [Feb. 17, 2003], but it was subsequently re-numbered to Section 19, per Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008]).
5 Section 5, Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-15, Series of 2015 [September 07, 2015].
6 Section 1 [1], Rule III, NCMB Manual of Procedures for Conciliation and Preventive Mediation Cases.
7 Otherwise known as representation or certification election conflicts.
8 Supra.
9 Section 18 [formerly Section 17], Rule VIII, Book V, of the Rules to Implement the Labor Code, as amended by Department Order No. 40-F-03, Series of 2008 [October 30, 2008].
10 Id.
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As far as No. 1 above is concerned, appellate authority over decisions of the DOLE
Regional Directors involving examinations of union accounts is expressly conferred on
the BLR Director under the Rules of Procedure on Mediation- Arbitration,7 to wit:
“RULE II
MED-ARBITRATION
“SEC. 3. Jurisdiction of the Regional Director. - The Regional Director shall exercise
original and exclusive jurisdiction over application for union registration, petitions for
cancellation of union registration and complaints for examination of union books of
accounts.
SEC. 4. Jurisdiction of the Bureau.-
xxx
“(b) The Bureau shall exercise appellate jurisdiction over all cases originating from the Regional Director involving
union registration or cancellation of certificates of union registration and complaints for examination of union books of accounts.”8
The language of the law is categorical. Any additional explanation on the matter is
superfluous. It is thus clear then that the DOLE Secretary has no appellate jurisdiction over
decisions of DOLE Regional Directors involving petitions for examinations of union
accounts.9
b.Cases not appealable to the BLR Director but to some other labor officials.
For greater clarity in presentation and to avoid any confusion, it is worthy to
mention that the decisions of the DOLE Regional Directors in the following cases which are
not related to labor relations are appealable to the DOLE Secretary and not to the BLR
Director:
(a) Visitorial (inspection) cases under Article 37;10
(b) Visitorial (inspection) and enforcement cases11 under Article 128, (either
routine or initiated through a complaint);12
(c) Occupational safety and health violations;13
(d) Cases related to private recruitment and placement agencies (PRPAs) for local employment, such as:
1) Applications for license or denial thereof;
2) Complaints for suspension or cancellation of license by reason of administrative offenses;
3) Complaints for illegal recruitment; and
1 The BLR Director, not the DOLE Secretary, has the appellate authority over decisions of the DOLE Regional Directors involving examinations of union accounts as provided under
Rule II of the Rules of Procedure on Mediation-Arbitration, issued on April 10, 1992, to wit: “SEC. 3. Jurisdiction of the Regional Director. - The Regional Director shall exercise
original and exclusive jurisdiction over application for union registration, petitions for cancellation of union registration and complaints for examination of unions books of accounts.
SEC. 4. Jurisdiction of the Bureau.- xxx “(b) The Bureau shall exercise appellate jurisdiction over all cases originating from the Regional Director involving union registration or
cancellation of certificates of union registration and complaints for examination of union books of accounts.”
2 See Article 243 [236] of the Labor Code which provides: “Art. 243 [236]. Denial of registration; appeal. The decision of the Labor Relations Division in the regional office denying
registration may be appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof.”
3 See Article 245 [238] of the Labor Code which provides: “Art. 245 [238]. Cancellation of registration; appeal. The certificate of registration of any legitimate labor organization, whether
national or local, shall be cancelled by the Bureau if it has reason to believe, after due hearing, that the said labor organization no longer meets one or more of the requirements
herein prescribed.”
4 Section 5, Rule IV, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003] and as further amended by
numbered by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
7 Issued on April 10, 1992.
8 Italics and underlining supplied.
9 Barles v. Bitonio, G.R. No. 120220, June 16, 1999.
10 “Article 37. Visitorial Power. - 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 violation of any provisions of this Title.” (Referring to Tile I [Recruitment and
Placement of Workers], Book I, Labor Code).
11 Visitorial cases involve inspection of establishments to determine compliance with labor standards; while enforcement cases involve issuance of compliance orders and writs of
execution.
12 Based on the 2nd paragraph of Article 128(b), Labor Code, which states: “An order issued by the duly authorized representative of the Secretary of Labor and Employment under this
Article may be appealed to the latter. xxx” (As amended by Republic Act No. 7730, June 2, 1994). Additionally, it is provided in Section 1, Rule IV, of the Rules on the Disposition of
Labor Standards Cases in the Regional Offices, thus: “Section 1. Appeal. – The order of the Regional Director shall be final and executory unless appealed to the Secretary of Labor
and Employment within ten (10) calendar daysfrom receipt thereof.” The grounds for the appeal are provided in Section 2 thereof, thus: “Grounds for appeal. – The aggrieved party
may appeal to the Secretary the Order of the Regional Director on any of the following grounds: (a) there is a prima facie evidence of abuse of discretion on the part of the Regional
Director; (b) the Order was secured through fraud, coercion or graft and corruption; (c) the appeal is made purely on questions of law; and (d) serious errors in the findings of facts
were committed which, if not corrected, would cause grave irreparable damageor injury to the appellant.” (See also Section 2, in relation to Section 3(a), Rule X, Book III of the Rules
to Implement the Labor Code}.
13 Section 6(a) of Rule VI [Health and Safety Cases] of the Rules on the Disposition of Labor Standards Cases in the Regional Offices which provides: Section 6. Review by the
Secretary. - (a) The Secretary at his own initiative or upon the request of the employer and/or employee, may review the order of the Regional Director which shall be immediately
final and executory unless stayed by the Secretary upon posting by the employer of a reasonable cash or performance bond as fixed by the Regional Director.” See also the 2nd
paragraph of Article 128(b), Labor Code.
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VI.
REMEDIES FROM DECISIONS
OF BLR DIRECTOR AND DOLE
SECRETARY
RENDERED IN THEIR APPELLATE JURISDICTION
1. APPEALS END WITH BLR DIRECTOR AND DOLE SECRETARY.
Notably, the remedy of appeal involved in the cases contemplated under Article 232
[226] is available only up to the level of either the BLR Director or the DOLE Secretary, as
the case may be. Appeal to the CA from their decisions rendered in their respective
appellate jurisdictions is not available; the only remedy being the filing of an original special
civil action for certiorari under Rule 65 of the Rules of Court.2
In the case of decisions rendered by the BLR Director in his appellate jurisdiction, they
can no longer be appealed to the DOLE Secretary because another appeal to the DOLE
Secretary is not tenable anymore, the BLR Director’s decisions thereon having already
become final and executory.3
2.REMEDY FROM CA DECISIONS TO THE SUPREME COURT.
There is only one mode to elevate labor cases from the CA to the Supreme Court
and that is, through Rule 45 petition for review on certiorari.
E.
NATIONAL CONCILIATION AND MEDIATION
BOARD (NCMB)
1.
NATURE OF PROCEEDINGS
F.
DOLE REGIONAL
DIRECTORS 1.
JURISDICTION
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The DOLE has a total of 16 Regional Offices nationwide each one of them is headed by
a Regional Director. The DOLE Regional Directors are the duly “authorized representatives”
of the DOLE Secretary referred to in Article 128 of the Labor Code which grants to them
both visitorial and enforcement powers. They are in charge of the administration and
enforcement of labor standards within their respective territorial jurisdictions.1
2.JURISDICTION OF THE DOLE REGIONAL DIRECTORS.
The DOLE Regional Directors have original and exclusive jurisdiction over the following cases:
(a) Visitorial (inspection) cases under Article 37;2
(b) Visitorial (inspection) and enforcement cases3 under Article 128,4 (either
routine or initiated through a complaint);
(c) Visitorial cases under Article 289 [274],5 involving examination of books of
accounts of independent unions, local chapters/chartered locals and
workers’ associations;
(d) Occupational safety and health violations;6
(e) Small money claims cases arising from labor standards violations in an amount not exceeding ₱5,000.00 and not
accompanied with a claim for reinstatement under Article 129;
(f) Cases related to private recruitment and placement agencies (PRPAs) for local7 employment, such as:
1) Applications for license or denial thereof;8
2) Complaints for suspension or cancellation of license by reason of administrative offenses;9
3) Complaints for illegal recruitment;10 and
4) Petition for closure of agency;11
(g) Cases submitted for voluntary arbitration in their capacity as Ex-Officio Voluntary Arbitrators (EVAs) under
Department Order No. 83-07, Series of 2007.12
(h) Union registration-related cases, such as:
1) Applications for union registration of independent unions, local chapters and workers’ associations;13
2) Petitions for denial of application for registration14 of said unions;15
3) Petitions for revocation or cancellation of registration16 of said unions;17
(i) Notice of merger, consolidation, affiliation and change of name of said unions
and or petition for denial thereof;18
(j) CBA-related cases, such as:
1) Application for registration of single-enterprise19 CBAs or petition for deregistration thereof;20
2) Petition for denial of registration of single-enterprise CBAs or denial of petition for deregistration thereof; and
(k) Request for SEBA certification when made in an unorganized establishment
with only one (1) legitimate union.21
I.
LABOR STANDARDS ENFORCEMENT CASES
1. SUBJECT OF THE VISITORIAL AND ENFORCEMENT POWERS - THE
ESTABLISHMENT AND NOT THE EMPLOYEES THEREIN.
1 See Section 3, Rule I, Rules on the Disposition of Labor Standards Cases in the Regional Offices [Sept. 16, 1987]; Atilano v. De la Cruz, G.R. No. 82488, Feb. 28, 1990, 182 SCRA
886; San Miguel Corporation v. The Hon. CA, G.R. No. 146775, Jan. 30, 2002.
2 “Article 37. Visitorial Power. - 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 violation of any provisions of this Title.” (Referring to Tile I [Recruitment and
Placement of Workers], Book I, Labor Code).
3 Visitorial cases involve inspection of establishments to determine compliance with labor standards; while enforcement cases involve issuance of compliance orders and writs of
execution.
4 Article 128 is entitled “Visitorial and Enforcement Power.”
5 Article 289 [274] is entitled “Visitorial Power.”
6 Section 6 of Rule VI [Health and Safety Cases] of the Rules on the Disposition of Labor Standards Cases in the Regional Offices.
7 As distinguished from recruitment and placement of workers for overseas employment which falls under the jurisdiction of the Philippine Overseas Employment Administration
(POEA).
8 Section 8, Department Order No. 141-14, Series of 2014 (Revised Rules and Regulations Governing Recruitment and Placement for Local Employment), Nov. 20, 2014; See
previous provision on this matter in Section 36, Rule VII, Rules And Regulations Governing Private Recruitment and Placement Agency for Local Employment, June 5, 1997. See
also National Federation of Labor v. Laguesma, G.R. No. 123426, March 10, 1999.
9 Section 54, in relation to Section 51, Department Order No. 141-14, Series of 2014, Ibid.
10 Section 45, Department Order No. 141-14, Series of 2014, Ibid.
11 Section 47, Department Order No. 141-14, Series of 2014, Ibid.
12 Issued by former DOLE Secretary, now Associate Justice of the Supreme Court, Arturo D. Brion on June 8, 2007.
13 Section 3, Rule II of the Med-Arbitration Rules states: “SEC. 3. Jurisdiction of the Regional Director.- The Regional Director shall exercise original and exclusive jurisdiction over
application for union registration, petitions for cancellation of union registration and complaints for examination of unions books of accounts.” See also Section 1, Rule II, Rules of
Procedure on Mediation-Arbitration.
14 See Article 243 [236] of the Labor Code which provides: “Art. 243 [236]. Denial of registration; appeal. The decision of the Labor Relations Division in the regional office denying
registration may be appealed by the applicant union to the Bureau within ten (10) days from receipt of notice thereof.”
15 Referring to independent unions, local chapters and workers’ associations, as distinguished from federations, national unions, industry unions, trade union centers and their local
chapters/chartered locals, affiliates and member organizations whose application for registration as well as denial or cancellation or revocation of registration is cognizable by the BLR
Director in his original and exclusive jurisdiction [infra].
16 See Article 245 [238] of the Labor Code which provides: “Art. 245 [238]. Cancellation of registration; appeal. The certificate of registration of any legitimate labor organization, whether
national or local, shall be cancelled by the Bureau if it has reason to believe, after due hearing, that the said labor organization no longer meets one or more of the requirements
herein prescribed.”
17 Section 3, Rule II of the Med-Arbitration Rules, supra; See also Section 4, Rule XI, Book V of the Rules to Implement the Labor Code, as amended by Department Order No. 40-F-
numbered by Department Order No. 40-F-03, Series of 2008 [Oct. 30, 2008].
21 Under this situation, the DOLE Regional Director, before whom the Request for SEBA Certification is filed, should refer the Request for SEBA Certification to the Mediator-Arbiter for
the determination of the propriety of conducting a certification election, in which case, the Mediator-Arbiter now has the jurisdiction to decide the certification election issue. (Section 6,
Rule VII, in relation to Rules VIII and IX, Department Order No. 40-I-15, Series of 2015 [September 07, 2015]). Note must be made that when the Request for SEBA Certification is
made in an unorganized establishment with more than one (1) legitimate labor organization, the Med-Arbiter takes over from the DOLE Regional Director in the matter of hearing and
resolving the issue of certification election.
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The subject of the visitorial and enforcement powers granted to the DOLE
Secretary or his duly authorized representatives under Article 128 is the establishment
which is under inspection and not the employees thereof.
Consequently, any awards granted are not confined to employees who signed the
complaint inspection but are equally applicable to all those who were employed by
the establishment concerned at the time the complaint was filed, even if they
were not signatories thereto. The reason is that the visitorial and enforcement
powers are relevant to, and may be exercised over, establishments, not over
individual employees thereof, to determine compliance by such establishments
with labor standards laws. Necessarily, in case of an award from such violation
by the establishment, all its existing employees should be benefited thereby. It
must be stressed, however, that such award should not apply to those who resigned,
retired or ceased to be employees at the time the complaint was filed.
2.ORIGINAL JURISDICTION.
The DOLE Regional Directors exercise original jurisdiction over the following:
(a) Cases involving inspection of establishments to determine compliance with labor standards (Visitorial Power);
and
(b) Cases involving issuance of compliance orders and writs of execution (Enforcement Power).
II.
SMALL MONEY CLAIMS CASES
1. JURISDICTION OVER CLAIMS NOT EXCEEDING P5,000.
The DOLE Regional Director has original jurisdiction over small money claims
cases arising from labor standards violations in the amount not exceeding P5,000.00 and
not accompanied with a claim for reinstatement under Article 129 of the Labor Code.
Article 129 contemplates the recovery of wages and other monetary claims and
benefits, including legal interest, owing to an employee arising from employer-employee
relations provided the claim does not exceed P5,000.00. Note must be made that under
R.A. No. 10361, otherwise known as the Domestic Workers Act or Batas Kasambahay,
jurisdiction over all labor-related disputes involving a kasambahay, including all money
claims, illegal dismissal and other issues, is now lodged entirely with the DOLE Regional
Director. The Labor Arbiter has no more jurisdiction over small money claims of
₱5,000.00 or less. Consequently, any appeal therefrom should be done to the DOLE Secretary. (See Section 37, Chapter VII
of
R.A. No. 10361 and Section 1, Rule XI of this law’s Implementing Rules and Regulations).
2.REQUISITES FOR THE VALID EXERCISE OF JURISDICTION BY DOLE
REGIONAL DIRECTORS UNDER ARTICLE 129.
The following requisites must all concur, to wit:
(1) The claim is presented by an employee;
(2) The claimant, no longer being employed, does not seek reinstatement; and
(3) The aggregate money claim of the employee does not exceed P5,000.00.
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In the absence of any of the aforesaid three (3) requisites, the Labor Arbiters
have original and exclusive jurisdiction over all claims arising from employer-
employee relations, other than claims for employees’ compensation, social security,
PhilHealth and maternity benefits.
III.
CASES SUBMITTED TO REGIONAL DIRECTORS AND ASSISTANT
REGIONAL DIRECTORS FOR VOLUNTARY ARBITRATION IN THEIR
CAPACITY AS EX-OFFICIO VOLUNTARY ARBITRATORS (EVAs)
1. JURISDICTION.
As EVAs, the DOLE Regional Directors and their Assistants have jurisdiction over the following cases:
(a) All grievances arising from the interpretation or implementation of the CBA;
(b) All grievances arising from the interpretation or enforcement of company
personnel policies which remain unresolved after exhaustion of the grievance
procedure;
(c) Cases referred to them by the DOLE Secretary under the DOLE’s
Administrative Intervention for Dispute Avoidance (AIDA) initiative
(provided under DOLE Circular No. 1, Series of 2006); and
(d) Upon agreement of the parties, any other labor dispute may be submitted to
the EVAs for voluntary arbitration.
G.
DOLE SECRETARY
1.
VISITORIAL AND ENFORCEMENT POWERS
1. THREE (3) KINDS OF POWER UNDER ARTICLE 128.
Article 128 of the Labor Code, as amended, basically enunciates the three (3) kinds
of power which the DOLE Secretary and/or the Regional Directors, his duly authorized
representatives, may exercise in connection with the administration and enforcement of
the labor standards provisions of the Labor Code and of any labor law, wage order or rules
and regulations issued pursuant thereto.
The three (3) kinds of power are as follows:
1) Visitorial power:
2) Enforcement power: and
3) Appellate power or power of review.
2.WHO EXERCISE THE POWERS.
Nos. 1 and 2 above are exercised under the original jurisdiction of the DOLE Regional Directors.
This has been earlier discussed under the separate topic of “VII. PROCEDURE AND
JURISDICTION, E. DOLE Regional Directors, 1. Jurisdiction”, supra. Hence, the same
will no longer be touched under the instant topical discussion.
The appellate power in No. 3 above may only be exercised by the DOLE Secretary
in respect to any decision, order or award issued by the DOLE Regional Directors.
3.
ASSUMPTION OF JURISDICTION
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The DOLE Secretary is granted under Article 263(g) of the Labor Code, the
extraordinary police power of assuming jurisdiction over a labor dispute which, in his
opinion, will cause or likely to cause a strike or lockout in an industry indispensable to
the national interest, or the so-called “national interest” cases. Alternatively, he may
certify the labor dispute to the NLRC for compulsory arbitration.
4.
APPELLATE JURISDICTION
I.
VARIOUS APPEALS TO THE DOLE
SECRETARY UNDER THE LABOR CODE AND
APPLICABLE RULES
1. OFFICES FROM WHICH APPEALS MAY ORIGINATE.
Appeals to the DOLE Secretary may originate from any of the following offices:
(1) DOLE Regional Directors;
(2) Med-Arbiters;
(3) Director of the Bureau of Labor Relations (BLR); and
(4) Philippine Overseas Employment Administration (POEA).
2.CASES NOT APPEALABLE TO THE DOLE SECRETARY.
The following decisions, awards or orders are not appealable to the Office of the DOLE Secretary:
(1) Those rendered by Labor Arbiters that are appealable to the Commission
(NLRC) which has exclusive appellate jurisdiction thereover;
(2) Those rendered by the Commission (NLRC) since they can be elevated directly to
the CA by way of a Rule 65 certiorari petition;
(3) Those rendered by the BLR Director in the exercise of his appellate jurisdiction
since they can be brought directly to the CA under Rule 65 certiorari petition;
(4) Those rendered by DOLE Regional Directors under Article 129 of the Labor
Code since they are appealable to the NLRC;
(5) Those issued by DOLE Regional Directors in their capacity as Ex-Officio
Voluntary Arbitrators (EVAs) since they can be brought directly to the CA under
Rule 43 of the Rules of Court; and
(6) Those rendered by Voluntary Arbitrators which are appealable directly to the
CA under Rule 43 of the Rules of Court.
II.
APPEALS FROM DOLE REGIONAL DIRECTORS
1. CASES APPEALABLE TO DOLE SECRETARY.
Not all decisions, awards or orders rendered by the DOLE Regional Directors are
appealable to the DOLE Secretary. Only those issued in the following cases are so
appealable:
(a) Labor standards enforcement cases under Article 128;
(b) Occupational safety and health violations; and
(c) Complaints against private recruitment and placement agencies (PRPAs) for local employment.
2.CASES NOT APPEALABLE TO THE DOLE SECRETARY.
As earlier pointed out, the following cases decided by the DOLE Regional Directors
are not appealable to the DOLE Secretary but to some other agencies/tribunals indicated
below:
(a) Decisions in small money claims cases arising from labor standards violations in
the amount not exceeding P5,000.00 and not accompanied with a claim for
reinstatement under Article 129 are appealable to the NLRC;
(b) Decisions in cases submitted to DOLE Regional Directors for voluntary
arbitration in their capacity as Ex-Officio Voluntary Arbitrators (EVAs) under
Department Order No. 83-07, Series of 2007 may be elevated directly to the
Court of Appeals by way of a Rule 43 petition. This is so because the DOLE
Regional Directors, in so deciding, are acting as Voluntary Arbitrators; hence,
what should apply are the rules on appeal applicable to voluntary arbitration.
III.
APPEALS FROM DECISIONS OF
MEDIATORS-ARBITERS (MED-ARBITERS) AND BLR DIRECTOR
(NOTE: See discussion above in
connection with the jurisdiction of the
Bureau of Labor Relations [BLR])
V.
APPEALS FROM DECISIONS OF POEA
1. CASES APPEALABLE TO THE DOLE SECRETARY.
The decisions in the following cases rendered by the Philippine Overseas
Employment Administration (POEA) in its original jurisdiction are appealable to the
DOLE Secretary:
(a) Recruitment violations and other related cases. - All cases which are
administrative in character, involving or arising out of violation of rules and
regulations relating to licensing and registration of
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5.
DOLE SECRETARY’S VOLUNTARY ARBITRATION POWERS
1. AIDA.
a. New rule on voluntary settlement of cases by the DOLE Secretary.
A new form of dispute settlement by the DOLE Secretary was introduced by DOLE
Circular No. 1, Series of 2006. Called Administrative Intervention for Dispute
Avoidance (AIDA), this is a new administrative procedure for the voluntary settlement of
labor disputes in line with the objectives of R.A. No. 9285, Executive Order No. 523 and
the mandate of the DOLE to promote industrial peace.
b. Nature of administrative intervention by DOLE Secretary.
This recourse is separate from the established dispute resolution modes of
mediation, conciliation and arbitration under the Labor Code, and is an alternative to
other voluntary modes of dispute resolution such as the voluntary submission of a
dispute to the Regional Director for mediation, to the NCMB for preventive mediation, or
to the intervention of a regional or local tripartite peace council for the same purpose.
c. Parties who may request for DOLE Secretary’s intervention.
Either or both the employer and the certified collective bargaining agent (or
the representative of the employees where there is no certified bargaining agent) may
voluntarily bring to the Office of the DOLE Secretary, through a Request for
Intervention, any potential or ongoing dispute defined below.
d. Potential or on-going dispute.
A potential or on-going dispute refers to:
(a) a live and active dispute;
(b) that may lead to a strike or lockout or to massive labor unrest; and
(c) is not the subject of any complaint or notice of strike or lockout at the time a
Request for Intervention is made.
2.VOLUNTARY ARBITRATION BY DOLE SECRETARY.
If the intervention through AIDA fails, either or both parties may avail themselves
of the remedies provided under the Labor Code. Alternatively, the parties may submit
their dispute to the Office of the DOLE Secretary for voluntary arbitration. Such
voluntary arbitration should be limited to the issues defined in the parties' submission to
voluntary arbitration agreement and should be decided on the basis of the parties'
position papers and submitted evidence. The Office of the DOLE Secretary is mandated
to resolve the dispute within sixty (60) days from the parties' submission of the dispute for
resolution.
3.DOES THE DOLE SECRETARY ASSUME THE ROLE OF VOLUNTARY
ARBITRATOR ONCE HE ASSUMES JURISDICTION OVER A LABOR DISPUTE?
In the 2014 case of Philtranco Service Enterprises, Inc. v. Philtranco
Workers Union-Association of Genuine Labor Organizations (PWU-AGLO),1 this
poser was answered in the negative. A notice of strike was filed by respondent union
which, after failure of conciliation and mediation by the NCMB, was referred by the
Conciliator- Mediator to the Office of the DOLE Secretary who thereby assumed
jurisdiction over the labor dispute. The case was resolved by the Acting DOLE Secretary
in favor of respondent union. A motion for reconsideration was filed by petitioner
company. The DOLE Secretary, however, declined to rule on the motion citing a
DOLE regulation, applicable to voluntary arbitration, which provided that the Voluntary
Arbitrators’ decisions, orders, resolutions or awards shall not be the subject of motions
for reconsideration. The DOLE Secretary took the position that when he assumed
jurisdiction over the labor dispute, he was acting as a Voluntary Arbitrator. Petitioner
subsequently filed a Rule 65 certiorari petition with the CA. The CA, however, dismissed
petitioner company’s Rule 65 certiorari petition on the ground, among others, that the
decision of the DOLE Secretary, having been rendered by him in his capacity as
Voluntary Arbitrator, is not subject to a Rule 65 certiorari petition but to a Rule 43
petition for review which properly covers decisions of Voluntary Arbitrators.
Before the Supreme Court, petitioner asserted that, contrary to the CA’s ruling,
the case is not a simple voluntary arbitration case. The character of the case, which
involves an impending strike by petitioner’s employees; the nature of petitioner’s business
as a public transportation company, which is imbued with public interest; the merits of its
case; and the assumption of jurisdiction by the DOLE Secretary – all these circumstances
removed the case from the coverage of Article 262, and instead placed it under Article
263, of the Labor Code. For its part, respondent union
1 G.R. No. 180962, Feb. 26, 2014. Although this case involves a decision of the DOLE Secretary, the principle enunciated herein equally applies to the NLRC.
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argued that the DOLE Secretary decided the assumed case in his capacity as Voluntary
Arbitrator; thus, his decision, being that of a Voluntary Arbitrator, is only assailable via a
petition for review under Rule 43.
The Supreme Court, however, pronounced that:
“It cannot be said that in taking cognizance of NCMB-NCR CASE No. NS-02-028-07,
the Secretary of Labor did so in a limited capacity, i.e., as a voluntary arbitrator. The
fact is undeniable that by referring the case to the Secretary of Labor, Conciliator-
Mediator Aglibut conceded that the case fell within the coverage of Article 263 of the
Labor Code; the impending strike in Philtranco, a public transportation company
whose business is imbued with public interest, required that the Secretary of Labor
assume jurisdiction over the case, which he in fact did. By assuming jurisdiction over
the case, the provisions of Article 263 became applicable, any representation to the
contrary or that he is deciding the case in his capacity as a voluntary arbitrator
notwithstanding.”
Consequently, the Supreme Court reversed and set aside the CA ruling and
reinstated the case and directed the CA “to resolve the same with deliberate dispatch.”
H.
GRIEVANCE
MACHINERY
UNRESOLVED GRIEVANCES.
All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of t
The various internal procedural steps or stages of resolving grievances under the grievance machinery in a CBA should be f
A PARTY IS NOT ALLOWED TO GO DIRECTLY TO COURT IN DISREGARD OF VOLUNTARY ARBITRATION AFT
Before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of all the me
I. VOLUNTARY ARBITRATION
1. VOLUNTARY ARBITRATION.
“Voluntary arbitration” refers to the mode of settling labor-management disputes
in which the parties select a competent, trained and impartial third person who is tasked
to decide on the merits of the case and whose decision is final and executory. It is a third-
party settlement of a labor dispute involving the mutual consent by the representatives of
the employer and the labor union involved in a labor dispute to submit their case for
arbitration.
2.VOLUNTARY ARBITRATOR.
a.Who is a Voluntary Arbitrator?
A “Voluntary Arbitrator” refers to:
(1) any person who has been accredited by the National Conciliation and Mediation Board (“NCMB” or
“Board”) as such; or
(2) any person named or designated in the CBA by the parties as their Voluntary Arbitrator; or
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(3) one chosen by the parties with or without the assistance of the NCMB, pursuant
to a selection procedure agreed upon in the CBA; or
(4) one appointed by the NCMB in case either of the parties to the CBA refuses
to submit to voluntary arbitration.
This term includes a panel of Voluntary Arbitrators.
3.VOLUNTARY ARBITRATOR ACTS IN QUASI-JUDICIAL CAPACITY.
Although not a part of a government unit or a personnel of the Department of
Labor and Employment, a Voluntary Arbitrator, by the nature of his functions, acts in a
quasi-judicial capacity. He is a means by which government acts, or by which a certain
government act or function is performed. He performs a state function pursuant to a
governmental power delegated to him under the Labor Code. The landmark case of
Luzon Development Bank v. Association of Luzon Development Bank
Employees,1 clearly declared that a Voluntary Arbitrator, whether acting solely or
in a panel, enjoys in law the status of a quasi-judicial agency.
1.
JURISDICTION
1. ORIGINAL AND EXCLUSIVE JURISDICTION.
a.In general.
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have exclusive and
original jurisdiction over the following cases:
(1) Unresolved grievances arising from the interpretation or implementation
of the collective bargaining agreement (CBA).
(2) Unresolved grievances arising from the interpretation or enforcement of company personnel policies.
(3) Violations of the CBA which are not gross in character.
(4) Other labor disputes, including unfair labor practices and bargaining
deadlocks, upon agreement of the parties.
(5) National interest cases.
(6) Wage distortion issues arising from the application of any wage orders in organized establishments.
(7) Unresolved grievances arising from the interpretation and implementation of
the Productivity Incentive Programs under R.A. No. 6971.
2.
JURISDICTION OVER OTHER LABOR DISPUTES
Under Article 275 [262] of the Labor Code, upon agreement of the parties, the
Voluntary Arbitrator or panel of Voluntary Arbitrators may also hear and decide all
other labor disputes, including unfair labor practices and bargaining
deadlocks. For this purpose, before or at any stage of the compulsory arbitration process,
parties to a labor dispute may agree to submit their case to voluntary arbitration.
3.
JURISDICTION OVER NATIONAL INTEREST CASES
Article 278(g) [263(g)] of the Labor Code which involves the DOLE Secretary’s
power of assumption of jurisdiction or certification to the NLRC of labor disputes
affecting industries indispensable to the national interest, also provides that “[b]efore or
at any stage of the compulsory arbitration process, the parties may opt to submit
their dispute to voluntary arbitration.”
This means that even if the case has already been assumed by the DOLE Secretary
or certified to the NLRC for compulsory arbitration, or even during its pendency
therewith, the parties thereto may still withdraw the case from the DOLE Secretary or
NLRC, as the case may be, and submit it to a Voluntary Arbitrator for voluntary
arbitration purposes.
4.
JURISDICTION OVER WAGE DISTORTION CASES
Jurisdiction over wage distortion cases depends on whether the establishment is organized or unorganized.
In organized establishments, the employer and the union are required to
negotiate to correct the wage distortion. Any dispute arising from such wage distortion
should be resolved through the grievance procedure under the CBA and if it remains
unresolved, through voluntary arbitration.
In unorganized establishments, where there are no CBAs or recognized or
certified collective bargaining unions, the jurisdiction is with the Labor Arbiter.
SOME PRINCIPLES.
1) Cases cognizable by Voluntary Arbitrators in their original jurisdiction but
ERRONEOUSLY filed with Labor Arbiters, DOLE Regional Offices or NCMB
should be disposed of by referring them to the Voluntary Arbitrators or panel of
Voluntary Arbitrators mutually chosen by the parties.
1 G.R. No. 120319, Oct. 6,
1995.
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2) Cases cognizable by Voluntary Arbitrators but filed with regular courts should be dismissed.
3) THE WELL-ENTRENCHED RULE IS THAT WHEN A CASE DOES NOT
INVOLVE THE PARTIES TO A CBA – REFERRING TO THE EMPLOYER AND
THE BARGAINING UNION - IT IS NOT SUBJECT TO VOLUNTARY
ARBITRATION. While individual or group of employees, without the
participation of the union, are granted the right to bring grievance
directly to the employer, they cannot submit the same grievance, if
unresolved by the employer, for voluntary arbitration without the union’s
approval and participation. The reason is that it is the union which is the
party to the CBA, and not the individual or group of employees. - This rule
was lately affirmed in the 2009 case of Tabigue v. International Copra Export
Corporation. Pursuant to Article 260 of the Labor Code, the parties to a CBA
shall name or designate their respective representatives to the grievance machinery
and if the grievance is unsettled in that level, it shall automatically be referred to
the voluntary arbitrators designated in advance by parties to a CBA.
Consequently only disputes involving the union and the company shall be
referred to the grievance machinery or voluntary arbitrators.”
5.
REMEDIES
J.
PRESCRIPTION OF
1. MONEY CLAIMS ACTIONS
CASES.
a.Prescriptive period is three (3) years under Article 291 of the Labor Code.
- The prescriptive period of all money claims and benefits arising from employer-
employee relations is 3 years from the time the cause of action accrued;
otherwise, they shall be forever barred.
b. All other money claims of workers prescribe in 3 years. - Article 291
contemplates all money claims arising from employer-employee relationship,
including:
1.Money claims arising from the CBA.
2.Incremental proceeds from tuition increases.
3.Money claims of Overseas Filipino Workers (OFWs).
Note must be made that in the 2010 case of Southeastern Shipping v. Navarra,
Jr.,1 the 1-year prescriptive period in Section 28 of POEA-SEC was declared null
and void. The reason is that Article 291 of the Labor Code is the law governing the
prescription of money claims of seafarers, a class of overseas contract workers. This law
prevails over said Section 28.
2.ILLEGAL DISMISSAL CASES.
a. Legal basis is not Article 291 of the Labor Code but Article 1146 of the
Civil Code. - The 3-year prescriptive period in Article 291 solely applies to
money claims but not to illegal dismissal cases which are not in the nature of
money claims. The prescriptive period of illegal dismissal cases is 4 years under
Article 1146 of the Civil Code.
3.UNFAIR LABOR PRACTICE (ULP) CASES.
a. Prescriptive period of ULP cases is 1 year (Article 290, Labor Code). - 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.
b. Pre-requisite for prosecution of criminal cases. - Before a criminal action
for ULP may be filed, it is a condition sine qua non that a final judgment finding
that an unfair labor practice act was committed by the respondent should first
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be secured or obtained in the labor case initiated before the Labor Arbiter or
the Voluntary Arbitrator, as the case may be. Final judgment is one that
finally disposes of the action or proceeding. For instance, if the remedy of
appeal is available but no appeal is made, then, the judgment is deemed final
and executory. If an appeal is made, then the final judgment rendered by the last
tribunal, say the Supreme Court, to which the case was elevated should be the
reckoning factor.
c. Interruption of prescriptive period of offenses. - As far as ULP cases are
concerned, the running of the one (1) year prescriptive period is interrupted
during the pendency of the labor proceeding.
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d. Evidentiary value of the final judgment in the labor case. - In ULP cases,
the final judgment in the labor case cannot be presented as evidence of the
facts proven therein or as evidence of the guilt of the respondent therein. Its
evidentiary or probative value is confined merely in proving the fact of
compliance with the condition sine qua non prescribed by law, i.e., that a final
judgment has been secured in the labor proceeding finding that an unfair labor
practice act was in fact committed by the respondent.
4. OFFENSES PENALIZED UNDER THE LABOR CODE AND ITS IMPLEMENTING
RULES AND REGULATIONS (IRR).
a. Prescriptive period is 3 years (Article 290, Labor Code). - The prescriptive
period of all criminal offenses penalized under the Labor Code and the Rules to
Implement the Labor Code is three (3) years from the time of commission
thereof.
b. Consequence of non-compliance with prescriptive period under Article
290. - Failure to initiate or file the criminal action or complaint within the
prescriptive period shall forever bar such action.
c. Illegal dismissal is not an “offense” under Article 290. - The act of the
employer in dismissing an employee without cause, although a violation of the
Labor Code and its implementing rules, does not amount to an “offense” as this
term is understood and contemplated under Article 290.
5.ILLEGAL RECRUITMENT CASES.
a.Simple illegal recruitment cases. – The prescriptive period is five (5) years.
b. Illegal recruitment cases involving economic sabotage. – The prescriptive period is twenty (20) years.
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