Professional Documents
Culture Documents
VCENTRAL
I BAR OPERATIONS 20191
LEILA S. LIM
Bar Review Secretariat
HEZP.O CAANOOY
( .
CZARINA CHER CUE~PO
CHARLES DANIEL LOVENSKY FERNANDEZ
DONNA NIKKI VARGAS
ETHICS AND LEGAL FG:>.'.MS Subject Heads
EUNICE A. MALA YO
FRANCES CHRISTINE F.'SAYSON
Central Bar Operations
Academics Understudies
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0 TANYA GAYE INIGO
REINE GUSTILO
HOSEA SALAZAR
JOHN PAULO VICENCIO
EL}EL TIMBOL
GIOAGUll.A
t t CHRISTINE FLORES RAMTRINA MARIE ATRIAS JULIA HANNA SORIANO
v ETHICS AND LEGAL FORMS Volunteers
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TABLE OF CONTENTS
I.GENERAL PROVISIONS 1
A. BASIC POLICY ON LABOR , 1
B. CONSTRUCTION IN FAVOR OF LABOR; 1
C. CONSTITUllONAL ANO CIViL CODE PROVISIONS RELATING TO LABOR LAW 1
II. PRE-EMPLOYMENT 4
A. RECRUITMENT AND PLACEMENT OF LOCAL AND MIGRANT WORKERS {LABOR
CODE AND RA 8042, AS AMENDED BY RA 10022) , 5
1.ILLEGAL RECRUITMENT , 5
a. Elements 9
\ > b. Types of Illegal Recruitrnent 13
c. Illegal recruitment versus estafa 13
2. Liability of Local Recruitment Agency and Foreign Employer · 14
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a. Solidary Liability 14
' , b. Theory of Imputed Knowledge 15
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3. Termination of Contract of Migrant Worker Without Just or Valid Cause 15
' 4. Ban on Direct hiring , '. 16
B. EMPLOYMENT OF NON-RESIDENT ALIENS , 17
Ill. LABOR STANDARDS 19
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A. CONDITIONS OF EMPLOYMENT 20.
1. Coveraqe.. · 20
'· i 2. Hours of Work , 21 .
..:....~ a. Normal Hours of Work 21
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b. Meal Periods , · 23
.,'\ c. Night Shift Differential : 25
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d. Overtime Work 26
e. Computation of additional compensation (rates only); facilities vs. supplements 29
3. Weekly Rest Periods : : 30
4. Holidays ; : 31
5. Service incentive leaves : '.34
6. Ser.tice Charges , 35
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7. 13 Month Pay
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B. WAGES 38
1. Payment of Wages 41
0 .2. Prohibitions regarding wages : , .. 43
3. Wage Order; Wage Distortion, concept.. ; 44
0 4.. Non-diminution of benefits ; , 46
C. LE.A.VES , 47
u 1. Service Incentive Leave (SIL) (supra) 47
2: Maternity Leave 47
3. Paternity Leave (R,A. No. 8187) · 48
4. Solo Parent Leave 49
5. Leaves Benefits for Women Workers Under RA 9710 and RA 9262 49
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D. SPECIAL GROUPS OF EMPLOYEES 51
1. Women .. 51
a. Discrimination .' 51
b. Stipulation Against Marriage 51
i ; c. Prohibited Acts , 52
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Sec. 16. All persons shall have the right to a such facilities and opportunities that will enhance
speedy disposition of their cases before all judicial, their welfare and enable them to realize their full
quasi-judicial, or administrative bodies. potential in the service of the nation.
It shall guarantee the rights of all workers to self- Rights Guaranteed by the Labor Code
organization, collective bargaining and the State shall afford protection to labor, promote·
negotiations, and peaceful concerted activities, , full employment, ensure equal work opportunities
including the right to strike in accordance with law. regardless of sex, race or creed and regulate the·
They shall be entitled to security of tenure, relatjons between workers and employers. The
humane conditions of work, and a living wage. State shall assure the right of workers to self-
( c They shall also participate In policy and decision- organization, collective bargaining, security of
making processes affecting their rights and tenure, and just and humane conditions of work.
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benefits as may be provided by law. (Labor Code, Art. 3)
The State shall promote the principle of shared The constitutional policy to provide full protection
responsibility between workers and employers to labor is not meant to be a sword to oppress
and the preferential use of voluntary modes In employers. The commitment of this Court to the
settling disputes, Including conciliation, and shall cause of labor does not prevent us from sustairling
r '. enforce their mutual compliance therewith to foster the employer when it is in the right. (Serocetn v.
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industrial peace. . tnterorient Marine, G.R. No. 167813, 2006)
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Tho proviso about "two or more persons" merely ILLEGAL RECRUITMENT UNDER THE LABOR
lays down a rule of evidence: where fee is CODE (Art. 38) vs. MIGRANT WORl(ERS ACT
collected because of a promise or offer of (Sec. 6)
employment to two or more prospective workers,
the individual or entity dealing with them shall be
Any recruitment activities, including the prohibited
deemed to be engaged in the act of recruitment
practices enumerated under Art. 34 of the Labor
and placement. The words "shall be deemed"
create that presumption. Also, profit is not Code, 'IO be undertaken by non-licensees or
necessary to constitute recruitment. (People v. non-holders of authority, shall be deemed illegal
Panis, G.R. No. L-58674-77, 1986) and punishable under Art. 39. (Labor Code, Art.
38)
Acts of referral
The act of referral, which is included in , The Department of Labor and Employment or any
recruitment, is "the act of passing along or law enforcement officer may initiate complaints.
forwarding of an applicant for employment after an (Lab.or Code, Art. 38)
initial interview of a selected applicant for
employment to a selected employer, placement Any act of canvassing, enlisting, contracting,
officer or bureau." (Rodolfo vs. People, G.R. No. transporting, utilizing, hiring, or procuring workers
146964, 2006) and includes referring, contract services,
promising or advertising for employmer.t abroad,
Promising employment whether for profit or not, when undertaken by
Promising employment as factory workers and non-licensee or non-holder of authority
receiving money allegedly for processing papers contemplated under the Labor Code. (R.A. No.
without authorization or license is engaging in 8042, Sec. 6)
unlawful recruitment and placement activities. The
absence of the necessary license or authority Policy of Selective Deployment
renders all of accused-appellant's recruitment The State shall allow the deployment of overseas
activities criminal. (Labor Code, Art. 13[b]) (People Filipino workers only in countries where the rights
VS. Saulo, GR. No. 125903, 2000) of Filipino migrant workers are protected. ! · i.
Perfection of employment contract gives rise The government recognizes any of the following . ~
to Illegal recruitment · as a guarantee on the part of the receiving country I. f
The commencement of the employment . for the protection of the rights of overseas Filipino
· relationship must be treated separately from the workers:
perfection of an employment contract. a. It has exlstlnq labor and social laws protecting
the ri9hts of workers, including rnigrant
The perfection of the contract, which (as a general workers;
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rule)coincides with the date of execution, occurred b. It is a signatory to and/or a ratifier of
when the parties agreed on the object and the multilateral conventions, declarations or
cause, and the terms and conditions. Despite the resolutions relating to the protection of
non-deployment (which caused the non- workers, including migrant workers; and (l
commencement of the employment relationship), c. It has concluded a bilateral agreement or v
rights have arisen based on the perfected contract. arrangement with foe government on the
(C.F. Sharp v. Pioneer Insurance, G.R. No. protection of the rights of overseas Filipino
179469, 2012) Workers: Provided, That the receiving country
is taking positive, concrete measures to
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protect the rights of migrant workers in
furtherance of any of the guarantees under 0
subparagraphs (a), (b) and (c) hereof. (R.A.
No. 8042, Sec. 3)
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A Non-Licensee I Non-Holder of
authority is any person, corporation
or entity which has not been issued a
The offender may be a non-licensee or a non-holder of
valid license or authority to engage in
authorityand commitsany of the acts of recruitment' OR
recruitment and placement by the
A licensee or holder of authority commits any' of the
Secretary of Labor, or whose license
prohibited acts under section 6, RA 8042, as amended.
or authority has been suspended,
revoked or cancelledby the POEA or
the Secretary.
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a. Elements Illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting,
The essential elements of illegal recruitment vary utiliz1i1g, hiring, or procuring workers and includes
in accordance with the following classifications: referrlng, contract services, promising or
1. Simple illegal recruitment advertising for employment abroad, whether for
• Local workers profit or not, when undertaken by non-licensee or
• Migrant workers non-holder of authority contemplated under Article
,,. -. 2. When committed by a syndicate; or 13(f) of the Labor Code;
3. When committed in large scale.
Provided, That any such non-licensee or non-
Simple Illegal Recruitment for Local Workers holder who, in any manner, offers or promises for
(Labor Code) a fee employment abroad to two or more persons
1. The person charged with the crirne must have , shall be deemed so engaged. (R.A. No. 8042, Sec.
undertaken recruitment activities: 6)
a. Defined under Art. 13 (b) or
b. Prohibited activities defined under Art. Illegal recruitment by a syndicate
34;and 1. The offender undertakes either any activity
2. The said person does not have a license or within the meaning of "recruitment and
authority to do so. (Labor Code, Art. 38) placement" defined under Art. 13(b), or any of
the prohibited practices enumerated under
· Profit or Lack Thereof· Immaterial Art. 34 of the Labor Code;
It is the lack of the necessary license or authority, 2. He has no valid license or authority required
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not the fact of payment that renders the by law to enable one to lawfully engage .in
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recruitment activity of the agency unlawful. (C.F. recruitment and placement of workers; and
c
Sharp vs. Espanol, G.R. No. 155903, 2007) 3. The illegal recruitment is committed by a
group of three (3) or more persons
Accused must give the impression of ability to conspiring or confederating with one another.
send complainant abroad (People v. Gallo, G.R. No. 187730, 2010)
· It must be shown that the accused gave
complainants the distinct impression that she had
(; the power or ability to send complainants abroad
Illegal recruitment in la~ge scale
1. The accused engages in acts of recruitment
for work such that the latter were convinced to part and placement of workers defined under Art.
(} with their money in order to be employed. (People 13(b) of the Labor Code or ih any prohibited
v. Ochoa, G.R. No. 173792, 2011) activities under Art. 34 of the Labor Code;
0 2, The accused has not complied with the
Simple Illegal Recruitment for Migrant Workers guidelines issued by the Secretary Of Labor
(J (R.A. No. 8042, as amended by R.A. No. 10022) and Employment, particularly with respect to
the securing of license or an authority to recruit
(l First type of Illegal Recruitment: and deploy workers, either locally or overseas;
1. Person charged undertakes any recruitment and
0 activity as defined in Art.13 (b) of the Labor 3. TM accused commits the unlawful acts
Code; and against three or more persons individually
2. Said person does not have a license or or as a group.
authority to do so.
{J Note:
Second type of Illegal Recruitment: Syndicate - count the conspirators
0 1. Person charged commits any of the Largo scale - count the victims
enumerated acts under Sec. 6 of R.A. 8042,
(J as amended by, R.A. No. 10022.
2. It is immaterial whether he is a holder or not of
l.t any license or authority.
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categories. if there is only one complainant In They are intendedfor administrativeand business
several complaints,there is no Illegal recruitment expenses and for the traveling expenses of the
in large scale. But where there are three applicants once cleared for overseas travel.
conspiringrecruiters,there is illegalrecruitmentby (Aquino V. CA, G.R. No. 91896, 1991)
a syndicate. (People v. · Fernandez, et. al., G.R.
No. 141221-36, 2002) It is not the issuanceor signing of receiptsfor the
placement fees that makes a case for illegal
Appellant's acts, which were clearly described in recruitment, but rather the undertaking of
the lucid testimoniesof the three victims, such as recruitment activities without the necessary
collectingfrom each of the complainantspayment license or authority. (People v. Senoron, G.R. No.
for passport, medical tests, placementfee, plane 119160, 1997)
tickets and other sundry expenses, promising
them employment abroad, contracting and By themselves, procuring a passport, airline
advertising for employment, constitute acts of tickets and foreign visa for another individual,
large scale illegal recruitment. (People v. Diaz, without more, can hardly qualify as recruitment
G.R. No. 112175, 1996) activities. IR· must be proved beyond reasonable
doubt. (Darvin v. CA, G.R. No. 125044, 1998)
Receipt of payments, after the expiration of the
license, for services rendered before said
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b. Prohibited Activities ·
LABORICQQE
It shall be unlawful for any individual, entity,
licensee,or holder of authority:
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Illegal· recruitment shall likewise include the
following acts, whether committed by any person,
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expiration of the same without the approval of 13. Failing to file reports oh the §.talus of
the Secretary of Labor; employment, placement vacancies, remittance
10. To become an officer or member of the Board of foreign exchange earnings, separation from
of any corporation engaged in travel agency or jobs, departures and such other matters or
to be engaged directly or indirectly in the information as may be required by the
management of a travel agency; and Secretary of Labor ·
11. To withhold or deny travel documents. from 14. s;_hargin~J or accepting, directly or indirectty,
( applicant workers before departure for any amount greater than that specified in the
monetary or financial considerations other than schedule of allowable fees prescribed by the
(} those authorized under this Code and its Secretary of Labor, or to make a worker pay
implementing rules and regulations. (Labor any amount greater than that actually received
() Code, Art. 34; PERTICPM Manpower v. by him as a loan or advance
Vlnuya, G.R. No. 197528, 2012)
(~- -~;s .
In addition to the acts enumerated above, it shall
also be unlawful for any person or entity to commit
0 the following prohibited acts: (8-LR2A21)
• Grant a loan to an overseas Filipino worker with
interest exceeding eight percent (~%) per
£~
annum, which will be used for payment of legal
'v >' and allowable placement fees and make the
migrant worker issue, either personally or
{j through a guarantor or accommodation party,
postdated checks in relation to the said loan;
() • . Impose a compulsory and exclusive
arrangement whereby an overseas Filipino
worker is required to avail of a !,oan only from
specifically designated institutions, entities or
persons;
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Differences Between Prohibited Acts: Labor Code, Art. 34 vs, Migrant Workers Act, Ser... 6
LABOR CO.OE 1, · • • · MIGRANT. WORKERS ACT ·
Illegal recruitment may only be committed by a Committed by either iicensee or non-licensee· (RA.
non-licensee (Labor Code, Art. 34) No. 8042, Sec. 6)
If the recruiter is licensed, it may commit a
prohibited activity (Labor Code, Art. 38)
11 enumerated acts 14 enumerated acts considered as illegal
recruitment, including the ff:
• Fallure to actually deploy a contracted worker
without valid reason;
• Failure to reimburse expenses incurred by the
worker in connection with his documentation
and processing for purposes of deployment, in
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case of non-deployment;
• To allow a non-Filipino citizen to head or
rnanaqe a licensed recruitment/manning
agency.
Plus, 7 additional prohibited acts.
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Summary of Penalties and Prescriptive Periods
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; ACTS. ALL CASl:S
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The government recognizes any of the following In Salazar vs. Achacoso, G.R. No. 81510, 1990,
as a guarantee on the part of the receiving country the SC ruled that Art. 38 Of the LC is
for the protection of the rights of overseas Filipino unconstitutional and that the Secretary of Labor
workers: and Employment cannot issue a warrant of arrest.
(a) It has existing labor and social laws protecting · DOLE Secretary does not have the power to issue
the rights of workers, including migrant search warrants and warrants of arrest. ( Sa/azar
workers; v. Achacoso, G.R. No. 81510, 1990).
(b) It is a signatory to and/or a ratifier of
multilateral conventions, declarations or 3. Prohibited Activities
resolutions relating to the protection of See above discussion on Page 10.
workers, including migrant workers; and
(c) It has concluded a bilateral agreement or Jurisdiction of the POEA
arrangement with the government on the Original and exclusive jurisdiction to hear and
protection of the rights of overseas Filipino decide:
· Workers: ' a. All cases, which are administrative in
character, involving or arising out of violations
Provided, That the receiving country is taking .r.f rules and regulations relating to !icensing
positive, concrete measures to protect the rights of and registration of recruitment and
migrant workers in furtherance of any of the employment agencies or entities
guarantees under subparagraphs (a), (b) and (c) b. Disciplinary action cases and other special
hereof. · cases, which are administrative in character,
involving employers, principals, contracting
In the absence of a clear showing that any of the partners and Filipino migrant workers (/RR of ()
aforementioned guarantees exists in the country of R.A. no. 8042, Rule X, Sec. 6)
destination of the migrant workers, no permit for
deployment shall be issued by the POEA. (R.A. Outside of POEA Jurisdiction
No. 8042, Sec. 4) a. Foreign Judgment - POEA has no jurisdiction
to hear and decide a claim for enforcement of a
foreign [udqment (Pacific Asia Overseas v. NLRC,
2. Regulatory and Visitorial Powers of the
DOLE Secretary G.R. No. 76595, 1988)
<J.
Regulatory & Rule-Making Powers
b. Torts - Fall under the provisions of the Civil
Code (Mckenzie v. Cui, G.R. No. 48831, 1989)
The Secretary of Labor shall have the power to
restrict and regulate the recruitment and
placement activities of all agencies within the Remittance of Foreign Exchange Earnings
coverage of this Title and is hereby authorized to It shall be mandatory for all Filipino workers
issue orders and promulgate rules and regulations abroad to remit a portion of their foreign earninqs
to carry out the objectives and implement the to their families, dependents, and/or beneficiaries
provisions of this Title. (Labor Code, Art. 36) in the country. (Labor Code, Art. 22)
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work described in paragraphs (1 ), (2) and was with the knowledge of his employer or
(3) above. immediate supervisor.
4. The time during which an employee is inactive
d, Non-agricultural Field Personnel by reason of interruptions in his work beyond
Non-agricultural employees who regularly his control shall be considered workihg time
perform their duties away from the principal either if:
place of business or branch office of the a. The imminence of the resumption of work
employer and whose actual hours of work in requires the employee's presence at the
the field cannot be determined with place of work; or
reasonable certainty) (Autobus Transport v; b. The interval is too brief to be utilized
Bautista, G.R. No. 1563'37, 2005) effectively and gainfully in the employee's
own interest. (/RR of Labor Code, Sec. 4,
e. Members of the fs.n'lily of the employer ' Book if/, Rule I)
who are dependent on him for support
Concldered as Compensable Hours Worked
f. Domestic Helpers 1. All time during which an employee is required
The mere fact that the househelper or to be on duty or to be at the employer's
domestic servant is working within the premises or to be ata prescribed work place;
premises of the business of the employer and 2. All time during which an employee is suffered
in relation to or in connection with its business, or permitted to work; (!RR Labor Cede, Book
as in its staff houses for lts guest or even for Ill, Rule I, Sec. 3) and
its officers and employees, warrants the 3. Rest periods of short duration during working
conclusion that such househelper or domestic hours, (Philippine Airlines v. NLRC, G.R. NO;····
servant is and should be considered as a 132805, 1999).
regular employee of the employer and not as
a mere family househelper or domestic a. Normal Hours of Wor~
servant. (Apex Mining Company v. NLRC,
G.R. No. 94951, 1991). General Rule: The normal hours of work of any
[ .
employee shall not exceed eight (8) hours a day.
g. Persons in the personal service of another (Labor Code, Art. 83)
h, Workers who are paid by B_esults (/RR Part-time work, or a day's work of less than 8
() Labor Code, Book Ill, Rule I, Sec. 2) hours, is not prohibited (Legend Hotel v. Realuyo,
G.R. No. 153511, 2012)
0 2. Hours of Work
Purpose of the Law
(_}. Principles in Determining Hours Worked To protect the health of the workers.
1. All hours are hours worked which the
() employee is required to give to his employer, The law is desiqned to minimize unemployment by
regardless of whether or not such hours are forcing employers,' in case where more than eight-
() spent in productive labor Or involve physical or hour operation is necessary, to utilize different
mental exertion. shifts of laborers or employees working only for
r.. 2. An employee need not leave the premises of
\.) eight hours each. (Mani/a Terminal Company v.
the workplace iii order that his rest period shall CIR, G.R. No. L-4148, 1952).
o not be counted, it being enough that he stops
working, may rest completely and may leave Exception to 8-Hour Law: Work Hours of
0 his workplace.
3. If the work performed was necessary or it
Health Personnel
b. Hospitals and clinics with a bed capacity DOL~'s occupational safety and health
of at least one hundred (100) shall hold standards; arid
regular office hours for eight (8) hours a c. The DOLE Regional Office is duly notified.
day, for five (5) days a week, exclusive of
time for meals, except where the Effects of a CWW Scheme:
exigencies of the service require that such a. Unless there is a more favorable practice
personnel work for six (6) days or forty- existing in the firm, work beyond eight (8)
eight (48) hours (Labor Code, Art. 83) hours will not be compensable by overtime
premium provided the total number of hours
· WORK DAY • CALEN i • • I .t worked per day shall not exceed twelve ( 12)
24-hour period 24-hour period hours. In any case, any work performed
commencing from the commencing at 12 beyond 12 hours a day or 48 hours a week
time an employee midnight and ending at shall M subject to overtime premium.
regularly starts to work 11 :59 p.m. b. Consistent with Articles 85 of the Labor Code,
regardless of whether employees under a CWW scheme are entitled
the work is broken or to meal periods of not less than sixty (60)
continuous. minutes. Nothing herein shall impair the right
of employees to rest days as well as to holiday
(1) Compressed Work Week (CWW) pay, rest day pays &r leaves in accordance
with law or applicable collective bargaining
Department Order No. 21-90/ DOLE Advisory No. agreement or company practice.
2-09 and No. 02-04 c. Adoption of the CWW scheme shall in no case
result in diminution of existing benefits.
Resorted to by the employer to prevent serious Reversion to the normal eight-hour workday
losses due to causes 1:::eyond his control (i.e. when shall not constitute a diminution of benefits.
there is substantial slump in demand for his goods The reversion shall be considered a legitimate
and services or when there is lack of raw exercise of management prerogative,
materials). (DOLE Explanatory Bulletin, July 23, provided that the employer shall give the
.1985) employees prior notice of such reversion
within a reasonable period of time. / :,
Under this scheme, the number of workdays Is
reduced, but the number of work hours in a day is Health Personnel in Hospitals and Clinics
increased to more than eight (8), but no overtime
0
pay may be claimed. Thus; a CWW scheme is an Hospital and clinic personnel can start and end
.alternative arrangement wherein the normal work at any hour on any day but would not work
()
workweek is reduced to less than six (6) days but for more than 8 hours in a day, nor more than 40
the total number of normal work hours per week hours in one week.
()
shall remain at 48 hours. (Azucena Vol. I, gth ed.,
p. 265). Hospital and clinic personnel may be scheduled to 0
work for more than 5 days or 40 hours in a week,
Conditions for implementation of the CWW if they are paid overtime. (+ at least 30% regular
(.}
(DOLE Department Advisory No. 02 Series of rate). (Labor Code, Art. 83)
2004)
a. The scheme is expressly and voluntarily (2) Power Interruptions/Brownout
supported by majority Of employees affected; l}
b. In firms using substances, -or operating In Brownouts not exceeding twenty (20) minutes
conditions that are hazardous to health, a shall be treated as hours worked. 0
certification is needed from an accredited -;
safety organization or the firm's safety Brownouts running for more than twenty (20) 0
committee that work beyond eight (8) hours is minutes rnay not be treated as hours worked
within the limits or levels of exposure set by provided that any of the following conditions are
present:
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a. The employees can leave their work place Note: Rest periods or coffee breaks running from
or go elsewhere whether within or without 5-20 minutes shall oe considered compensable
the work premises; or working time. (/RR Labor Code, Book Ill, Rule 1,
b. The employees can use the time Sec. 7)
effectively for their own interest. (Policy
Instruction No. 36, cited in Durabuilt Note: To shorten meal time to less than 20
Recapping Plant & Co. vs. NLRG, G.R. minutes is not allowed. If it is less than 20 minutes,
No. 76746, 1987) it becomes only a REST PERIOD and is
considered working time (Labor Code, Art. 84, ~ 2)
The time during which an employee is inactive by
reason of work interruptions beyond his control is If standby is for emergency work, meal break
considered working time, either if the imminence is part of hours worked. (Pan-American World
of the resumption of work requires the employee is Airways System Philippines v. Pan-American
presence at the place of work or if the interval is Employees Association G.R. No.L-16275, 1961)
too brief to be utilized effectively and gainfully in
the employee's own interest. (/RR Labor Code, Exception to the exception: Shortened meal
Sec. 4[d], Rule 1, Book Ill) breaks upon the employee's request are NOT
compensable, provided that:
b. Meal Periods 1. The employees voluntarily agree in writing to
a shortened meal period of 30 minutes and are
General Rule: Meal periods are NOT willing to waive the overtime pay for · such
compensable. Meal periods should not be less shortened meal period;
\... .i than 60 minutes. (Labor Code, Art. 85) 2. There will be no diminution whatsoever in the.
! '
salary and other fringe benefits of the
Exceptions: employees existing before the effectivity of the
1. Where the lunch period or meal time is shortened meal period;
predominantly spent for the employer's 3. 7"11e work of the employees does not involve
benefit; strenuous physical exertion and they are
2. Meal periods of 1 hour are deemed provided with adequate "coffee breaks" in the
, compensable when the employee is on morning and afternoon.
t. . . : contlnuous shift (National Dev't Corp. v. CIR, 4. The value of the benefits derived by the
G.R. No. 15422, 1962) employees from the proposed work
3. Shortened meal period of less than 1 hour arrangement is equal to or commensurate with
must be compensable (/RR Labor Code, Book the compensation due them for the shortened
0 Ill, Rule 1, Sec. 7) meal period as well as the overtime pay for 3()
minutes as determined by the employees
(j Meal period of not less than 20 minutes in the concerned;
following cases are compensable hours worked: 5. The overtime pay of the employees will
0 a. Where the work is non-manual work in nature become due and demandable if ever they are
or does not involve strenuous physical permitted or made beyond 4:30pm; and
(J exertion; 6. The effectivity of the proposed working time
b. Where the establishment regularly operates arrangement shall be of temporary duration as
not less than 16 hours a day; determined by the Secretary of Labor (2004
c. In case of actual or Impending emergencies or awe Manual on Labor Standards).
(J them is urgent work to be performed on
machineries, equipment or installations to Note: For a full one (1) hour undisturbed lunch
() avoid serious loss which the employer would break, the employees can freely and effectively
otherwise suffer; and use this hour not only for eating but also for their
d. Where the work is necessary to prevent rest and comfort. Since the employees are no
serious loss of perishable goods (/RR Labor longer required to work during this t-hour lunch
Code, Book Ill, Rule 1, Sec. 7) break, there is no more need for them to be
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compensated for this period. (Sime Darby Pilipinas ' whether within or outside the premises of said
v. NLRC, G.R. No. 119205, 1998) factory, shop or boat. If these requisites are
complied with, the period of such rest shDII not be
Waiting Time counted. (Luzon Stevedoring v. Luzon Marine
Department Union, G.R. No. L-9265, 1957)
Whether waiting time constitutes working time
depends upon the circumstances of each Waiting time spent by an employee shall be
particular case. The facts may show that the considered as working time if:
. employee was engaged to wait or may show that 1. Waitir1g is an integral part of his work; or
he waited to be engaged. The controlling factor 2. The employee is required or engaged by the
is whether waiting time spent In idleness Is employer to wait. (/RR Labor Code, Sec. 5[a},
spent predominantly for the employer's benefit Rule 1, Book Ill)
or the employee's (Azucena Vol. l, gth ed., p.
231). When Employee is Considered Working while
on call - When employee
A laborer need not leave the premises of the 1. Is required to remain on call in the employer's
factory, shop or boat in order that his period of rest premises or so close thereto; or ·
shall not be counted, It being enough that he 2. Cannot use the time effectively and g,1infuily for
"cease to work", may rest completely and leave or his own purpose (/RR Labor Code, Sec. 5[b], Rule
may leave at his will the spot where he actually 1, Book Ill)
stays while working, to go somewhere else,
Travel Time
1
Travel that is All I · • '
• W k ,. Travel Away from Home -
Days or :. 1
Normal travel from home to work which is Time spent by an Travel that keeps an employee
not work time employee in travel as away from home overnight
part of his principal
activity, like travel
from jobsite to jobsite
during the workday
The fact that [petitioner Rada] picks up employees adopted not so much for the convenience of the
at certain specified points in l::DSA in going to the employees, but primarily for the benefit of the
project site and drops them off at the same time on employer. Since the assigned task of fetching and
his way back from the field office going home to delivering employees is indispensable· and
Mari,kina is not merely incidental to his job as a · consequently mandatory, then the time required of
driver. Said transportation arrangement had been and used by petitioner in going from his residence
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to the field office and back should be paid as teachers.(University of Pangasinan Faculty Union
overtime work. (Rada v. NLF?C, G.R. No. 96078, v. Univ. of Pangasinan, G.R. 64821-23, 1993).
1992)
c. Night Shift Differential
Sleeping Time
Night Worker:
Whether sleeping time allowed an employee will Any employed person I whose work requires
be considered as part of his working time will performance of a substantial number of hours of
depend upon the express or implied agreement of night work which exceed a specified limit. This limit
the parties. In the absence of an agreement, It will shall be fixed by the Secretary of Labor after
. depend upon the nature of the service and its consulting the workers' representatives/labor
relation to the working time. organizations and employers. (Labor Code, Att..
154, as amended by R.A. No. 10151)
When Sleeping is Considered Working Time
CONSLDERED , NOT CONSIDER.ED
WORKING TIME , W~RKING TIME Night Shift Differential, defined (RA. 10151)
If sleepihg time is If there an opportunity Definition: Every employee shall be paid a night
subject to serious for comparatively shift differential of not less than 10% of his regular
interruption, or takes uninterrupted sleep wage for each hour of work performed between
place under conditions under fairly desirable ten o'clock in the evening (10 pm) and six o'clock
substantially less conditions in the morning (6 am). (Labor Code, Art. 86)
desirable than would
be likely to exist at the Coverage:
employee's home This benefit applies to ALL employees EXCEPT:
(Azucena Vol. l, 9th ed., p. 233). (Go-FR-PMS)
1. Those ofthe government and any of its
~' '
political subdivisions, including
Lectures, Meeting, Trainings, Programs
Getleral Rule: Considered working tiine government-owned and/or controlled ·
Exception: NOT considered working time if the corporations;
following conditions are met: 2. Those of retail and service establishments
1. Attendance is outside of the employee's regularly employing not more than five (5)
regular working hours workers;
(J 2. Attendance is voluntary 3. Domestic helpers and persons in the
3. The employee does not perform any personal service of another;
productive work during ouch attendance. (!RR . 4. Managerial employees as defined in Book
Labor Code, Sec. 6, Book Ill, Rule 1) Three of this Code;
{. - )1.
0- . COMP~NSABLE
HOURS WORKED
;or
COMP NSABLE
5. Field personnel and other employees
whose time and performance
unsupervised by the employer inc!uding
is
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=
NSD (10% x regular wage/hr.) x no. ofhrs. of management of the establishment in
work between 10 pm - 6 am which he is employed or subdivision
thereof; or (ii) execute under general
NOl'E: If work done between 10 pm and 6 am is supervision work along specialized or
OT work, the NSD should be based on the OT rate. technical lines requiring special training,
experience, or kr.owledge; or (iii)
·NOTE: Additional compensation for nighttime execute, under general supervision,
work Is founded on public policy. (M1~rcury Drug v. special assignments and tasks; and
Dayao, G.R. No. L-30452) NSD is not waivable d. Who do not devote more than 20 percent
except for higher and bigger benefits. of their hours worked in a work week to
activities which are not directly and
d. Overtime Work closely related to the performance of the
work described In paragraphs (1 ), (2) and
OVERTIME PAY (OT) (3) above.
Work exceeding eight hours within the worker's
24-hour workday regardless whether the work d. Non-agricultural Field Personnel
covers 2 calendar days. Work wlthin the Non-agricultural employees who regularly
employee's shift is not overtime. perform their duties away from the principal
place of business or branch office of the
Coverage: employer and whose actual hours of work in
. This benefit applies to all employees EXCEPT the field cannot be determined with
(Go-Ma-Off·FIFa-DoPe): reasonable certainty) (Autobus Transport v.
a. Government employees Bautista, G.R. No. 156367, 2005)
b. Managerial employees if they meet all of e. Members of the Family of the employer
· the following conditions: who are dependent on him for support ! r.
(a) Their primary duty consists of the
management of the establishment in f. Domestic Helpers
which they are employed or of a The mere fact that the househelper or
department or sub-division thereof. domestic servant is working within the
(b) They customarily and regularly direct the premises of the business of the employer and
· work of two or more employees therein. in relation to or in connection with its business,
(c) They have the authority to hire or fire as in its staff houses for its guest or even for
employees of lower rank; or their its officers and employees, warrants the
suggestions and recommendations as to concluslon that such househelper or domestic
hiring and firing and as to the promotion or servant is and should be considered as a
any other change of status of other regular employee of the employer and not as
employees, are given particular weight. a mere family househelper or domestic '·1,.
(/RR Labor Code, Book Ill, l~ule /, Sec. 2) servant. (Apex Mining Company v. NLRC, v
G.R. No. 94951, 1991).
c. Officer or members of a managerial staff if
they perform the following duties and g. Persons in the personal service of another !"~.
1 ·.·
responslbilltles: '-.#
a. The primary duty consists of the h. Workers who are paid by Results (l~R
performance of work directly related to Labor Code, Book Ill, Rule I, Sec. 2)
management policies of their employer;
b. Customarily and regulerly exercise
discretion and independent judgment;
and
c. (i) Regularly and directly assist a
proprietor or a managerial employee
Whose primary duty consists of the
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i, i
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Business on Sundays/Holidays
establishments and enterprises may operate or
All Employer May Require Work on Rest Day ( l
\j'
.
General Rule: The employer may not require the
open for business on Sundays and holidays employees to work on a rest day.
provided that the employees are given the weekly
rest day and the benefits as provided. Exceptions: (UAAP FAN)
1. In case of ,!!rgent work to be performed on
Who Determines Weekly Rest Days .: machineries, equipment or installations to
The . employer determines and schedules the avoid serious loss which the employer would
l)
weekly rest period subject to the following: otherwise suffer
1. Collective Bargaining Agreement; 2. In case of Actual or impending 0
2. Rules and regulations issued by the Secretary emergencies caused by serious accident,
of Labor; and fire, flood, typhoon, earthquake, epidemic or
other disaster or calamity, to prevent loss of
L]
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life or property, cir in cases of force maieure or Note: There can be no valid waiver of
imminent danger to public safety compensation for work done oh a rest day or
3. In the event of Abnormal pressure of work holiday.
due to special circumstances, where the
employer cannot Ordinarily be expected to Synthesis of the Rules .J
resort to other measures 1. Rest day of not less than 24 consecutive hours
4. To prevent serious loss of ferishable goods after 6 consecutive days of work.
5. Where the Nature of the work is such that the 2. No work, no pay principle applies
employees have to work continuously for 7 3. If an employee works on his designated rest
days In a week or more, as in the case of the day, he is entitled to a premium pay.
crew members of a vessel to complete a 4. Premium pay is additional 30% of the basic
voyage and in other similar cases (!RR Labor
pay.
Code, Sec. 6, Rule Ill, Book Ill)
5. Employer selects the rest day of his
6. Under other Analogous or similar
employees
circumstances
7. Where nature of work requires continuous 6. However, employer must consider the
I
t operations and the stoppage of work may
religious reasons for the choice of a rest day.
result· in irreparable injury or loss to the
7. When the choice of the employee as to his rest
employer (Labor Code, Art. 92) day based on religious grounds will inevitably
result in serious prejudice or obstruction to the
/ ....
\
Other than the above circumstances, no employee operations and the employer cannot normally
shall be required against his will to work on his be expected to resort to other measures, the
scheduled rest day. employer may so schedule the weekly rest day ·
{ .. of his choice for at least two days in a month.
\. When an employee volunteers to work on his rest (!RR Labor Code, Sec. 4, Book Ill, Rule Ill)
day under other circumstances, he shall express
4. Hblldays
such desire in writing, subject to payment of
additional compensation.
Holiday Pay: Coverage; Exclusions
An employee shall be entitled additional
Right to Holiday Pay
compensation for work performed on a Sunday
Holiday pay refers to the payment of the regular
only when it is his established rest day.
daily wage for any unworked regular holiday.
(Handbook on Workers' Statutory Monetary
The failure to work during an employer's rest day
-, Benefits, Bureau of Working Conditions, p. 12,
does not justify the disciplinary sanction of outright
2016)
dismissal from employment as such is so severe a
(1__ j ·,
consequence, moreso when justifiable grounds
Coverage:
exist for said failure (Remerco Garments
General Rule: Applies to ALL employees.
Manufactuing v. Minister of Labor, G.R. No; L-
56176-77, J985)
( \ Exceptions:
"-.4
1. Those of the government and sny of the
r, Employees NOT covered
political subdivision, including
\.) Employees excepted under Article 82 of the government-owned and controlled
Labor Code are, generally, not covered by the corporation;
{) rule on additional compensation. 2. Those of retail and service establishments
regularly employing less than ten (10)
0 Remuneration of employee working on a rest workers;
day - REGULAR REMUNERATION (100%) + 3. Domestic helpers and persons in the.
PREMIUM PAY (additional sum of at least 30% of personal service of another;
the regular remuneration) 4. Managerial employees as defined in Book
Three of the Code;
5. Field personnel and other employees
whose time and performance · is
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unsupervised by the employer including Muslims and Christians working within the
those who are engeged on task or Muslim areas may not report for work on the
contract basis, · purely commission basis, days designated by law as Muslim Holidays.
or those who are paid a fixed amount for (SMC v. CA, G.R. No. 146775, January 30, 2002).
performing work irrespective of the time
consumed in the performance thereof.
Successive Regular Holidays
(/RR Labor Code, Sec. 1, Rule IV, Book
Where there are 2 successive regular holidays,
Ill)
like Holy Thursday and Good Friday, an employee
Regular Holidays may not be paid for both holidays if he absents
1. New Year's Day - Jan. 1 , himself · from work on the day immediately
2. Maundy Thursday - Movable Date preceding the first holiday, unless he works on the
3. Good Friday - Movable Date first holiday, in which case he Is entitled to his
4. Araw ng Kagitingan - April 9 holiday pay on the second holiday.
5. Labor Day - May 1
6. Independence Day - June 12 Double Holiday
7. Nat'! Heroes Day - Last Mon. of Aug. 1. If unworked - employee entitled to 200% of
8. Bonifacio Day - Nov. 30 basic wage, provided he was present or on
9. Eid al Fit'r - Movable Date leave with pay on the praceding work day
10. Eid al Adha -- Movable Date 2. If worked - employee entitled to 300% of basic
11. Christmas Day - Dec. 25 wage. Only an employee who works on the day
12. Rizal Day -- Dec. 30 immediately preceding or after a regular
holiday shall be entitled to the holiday pay. A
Special Days paid legal holiday occurring during the
1. Ninoy Aquino Day - August 2·1 scheduled vacation leave will result in holiday
2. All Saints' Day - l'Jov. 1 payment in addition to normal vacation pay but
3. Last Day of the Year - Dec. 31 will not entitle the employee to another vacation
4. Special Non-Working Days leave. (Asian Transmission v. CA, GR No.
5. Special Public Holidays 144664, March 15, 2004)
6. Special National Holiday
Holiday-Sunday
Muslim Holidays A legal holiday falling on a Sunday creates no legal
obligation for the employer to pay extra, aside from
General Rule: Muslim holidays are observed only
the usual holiday pay, to its monthly-paid
()
in specified areas
1. Amun Jadid (New Year) employees.
2. Mau/Id un-/\labi (Birthday of the Prophet
Muhammad) In cases temporary cessation of work
3. Lailatul lsra Wal Miraj (Nocturnal Journey and Regular holidays falling within this period are
compensable (i.e. yearly inventory, repair or
the Ascenclon of the Prophet Muhammad)
cleaning of machineries or equipment, etc).
()
Exception: Eid al Fit'r and Eid ul Adha
(Celebrated nationwide) However, in the case of1a regular holiday during
the cessation of operations due to business
Muslim employees working outside of the reverses as authorized by the Secretary of Labor,
specified areas shall be excused from reporting for the employer may not pay the regular holidays
work during the observance of the Muslim holidays during this period. \j
as recognized by law, without diminution of salary
or wages during the period. In cases of periodic and temporary closures, the l)
Omnibus Rules Implementing tile Labor Code
Considering that all private corporations, offices, Book 3 Rule IV Section 7provides that in cases 0
agencies, arid entities or establishments operation of temporary or periodic shutdown and temporary
within the designated Muslim provinces and cities cessation of work of an establishment, as when a ()
are required to observe Muslim holidays, both yearly inventory or when the repair of cleaning
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machines and equipment is undertaken, the minimum wage shall not be less than the statutory
regular holidays falling within the period shall be minimum wage multiplied by 365 days divided by
compensated. twelve," arid to pay that salary "for all days in the
month whether worked or not," and "irrespective of
Teachers, Pieceworkers, Takay, Seasonal the number of working days therein." (Wellington
Workers, Seafarers v. Trajano, GR No. 114698, 1995)
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the award to 3 years is to unduly restrict such right. charges such as hotels, restaurants, lodging
(Fernandez v. NLRC, G.R. No. 105892, 1998) · houses, night clubs, cocktail lounge, massage
clinics, bars, casinos and gambling houses, and
The cause . of action of an entitled employee to similar enterprises, including those entities
claim his service incentive leave pay accrues from operating primarily as private subsidiaries of the
the moment the employer refuses to remunerate Government. (Labor Code, Art. 96)
. its monetary equivalent if the employee did not
make use of said leave credits but instead chose Coverage
to avail of its commutation. Accordingly, if the All employees of covered employers, regardless of
employee wishes to accumulate his leave credits their positions, designations or employment
and opts for its commutation upon his resignation status, and irrespective of the method by which
or separation from employment, his cause of their wages are paid
action to claim the whole amount of his
accumulated service incentive leave shall arise EXCEPT to managerial employees
when the employer fails to pay such amount at the
time of his resiqnatlon or separation from Service Charge different from Tip
employment. (Autobi.Js Transport System Inc. v. Tip, not normally part of the salary, it being given
Bautista, G.R. No. 156367, 2005) voluntarily by the customer; Service charges ate
considered part of the cost of the food, goods, or
Vacation Leave (VL) I Sick Leave (SL) services ordered by the customers.
Not required by law and depends on voluntary
employer policy (management prerogative) or Distribution
collective bargaining. (see Sugue v. Trimpuh a. 85% distributed equally among the coveredz s.
International [Ph/ls], G.R. No. 164804, 2009) employees
b. 15% for the disposition by management to
.f i It can be waived, as the VL/SL may be considered answer for losses and breakages and
a concession or act of grace of the employer. distribution to managerial employees at the
discretion of the management · in the latter
• • • IONS case
NSD Holiday SIL c. Distributed and paid to the employees not less ·
Pay than once every 2 weeks or twice a month at
,,,.. ·~:, Gov't x x x intervals not exceeding 16 days
l ..r employees d. Supervisors Share in the 15%. LC speaks of
Retail/ Service 5 and 9 and 9 and below "management," and not "managerial
Establishments below below ( establishments employees."
in general) ~
Domestic x x x Abolition and Integration
Workers In case the service charge is abolished, the share
0 Managerial x x x of the covered employees shall be integrated into
Employees their wages. (Labor Code, Art. 96)
() Field x x x
Personnel The basis of the amount to be integrated shall be
the average monthly share of each employee for
· 6. Service Charges the past 12 months immediately preceding the
abolition of withdrawal of the charges. (/RR Labor
Definition: Code, Sec. 5, Rule VI, Book 3)
0 Service charges are considered part of the cost of
the food, goods, or services ordered by the
customers.
Establishments
Applies only to establishments collecting service
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•. WAGE . . . I I SALARY I
Exception: Where the employer was able, willing, (c) Minimum Wage of Workers Paid BY
and ready to work but was prevented by RESULTS
management or was illegally locked out,
suspended or dismissed, or otherwise illegally I. Workers paid by results
prevented from working (Sugue v. Triumph All workers paid by result, including those who are
International, supra) paid on piecework, takay, pakyaw or task basis,
shall receive riot 11:lsS than the prescribed wage
BUT: Where the f1:1Uure of employees to work was rates per eight (8) hours of work a day, or a
not due to the employer's fault, the burden of proportion thereof for working less than eight (8)
economic loss suffered by the employees should hours. (Labor Code, Art. 124)
not be shifted to the employer. Each party must
bear his own loss. Ii. Apprentices
Wage rates of apprentices shall conform to the
Equal Pay for Equal Work rules issued by the Secretary of Labor. Wages
( ·, Employees holding the same position and rank are shall in no case be less than 75% of the applicable
\ : presumed to be performing equal work. The rule minimum wage rates. (Labor Code, Art. 61 & 75)
equal pay for equal work applies whether the
employee is hired lc.cally or abroad (/SAE v. ' Note: Learners employed in piece or incentive-
{ ·-. Quisumbing, G.R. No. 128845, 2000) rate jobs during the training period shall be paid in
t . full f,i'r the work done (Labor Code, Art. 76)
(b) Coverage/Exclusion
The Secretary of Labor may authorize the hiring of
The rule on wages applies to ALL workers. (SLL apprentices without compensation whose training
( ' International Cables, G.R. No. 172161, 2011). on the job is required by the school or training
program curriculum or as a requisite for g,·aduation
EXCEPT: (FaB-CD-CHR10) or board examination. (Labor Code, Art. 72)
1. Farm tenancy I leasehold
(} 2. .Qomestic service ill. Learners
3. Persons working in their respective homes in Wages of learners shall begin at not less than 75%
0 needle work or in any ,g,ottage industry duly of the applicable minimum wage. (Labor Code, Art.
f -~ registered in accordance with law 75)
• I,
'- .. J 4. Barangay micro business enterprise (.!;lMBE)
under RA 9178, the BMBE Law. BMBE - any Learners employed in piece or incentive-rate jobs
0 business entity or enterprise engaged in the during the training period shall be paid in full for
production, processing, or manufacturing of ' the work done. (Labor Code, Art. 76)
() products or commodities, including agro-
pi"ocessing, trading and services, whose total Iv. Persons with Disability
0 assets including those arising from loans but A qualified disabled employee shall be subject to
exclusive of the land on which the particular the same terms and conditions of employment and
u business entity's office, plant and equipment
are situated, shall not be more than P3M.
the same compensation, privileges, benefits,
fringe benefits or allowances as qualified, able-
(J 5. ~ooperatlves. (Benguet Electric Cooperative bodied persons (R.A. No. 7277, Sec. 5)
v. Hon. Ferrer-Calleja, G.R. No. 79025,
0 December 29, 1989).
6. Homeworkers employed in any establishment
u duly registered with the National Cottage
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1. Payment of Wages
Exceptions:
Means of Payment 1. In case of force tnajeure or other
circumstances beyond the employer's control,
The employer cannot pay his workers by payment must be made immediately after
means of any of the following: such occurrence has ceased; and
a) Vouchers; 2. In case of payment of wages by result
b) Promissory notes; involving work which cannot be completed in
c) Any object other than legal tender; two weeks and in the absence of CSA or
d) Coupons; arbitration award:
e) Chits; - Payments are made at intervals not
f) Tokens; or exceeding 16 days, in proportion to the
g) Tickets (Labor Code, Art. 102) amount of work completed; and
Final settlement is made upon
.General Rule: No employer shall pay the wages completion of the work. (/RR Labor Code,
{ of an employee by any other means other than Sec. 3, Rule VIII, Book Ill)
t
legal tender, even when expressly requested by
the employee. {Conqson v. NLRC, G.R. No. In ALL Cases: No employer shall make payment
'.1 114250, AprU 5, 1995) with less frequency than once a month.
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• Withholding tax
3. Payment through member of worker's family
NOiE: Persons earning minimum wage are
Where the employer is authorized in writing by the exempted from income tax.
employee to pay his wages to a member of his
family (/RR Labor Code, Sec. S[a], Rule VIII, Book 3. When Authorized by Law
.111) • Deposit for loss/breakage (Labor
Advisory, No. 11 [2014], Sec. 3)
Summary of Rules on Payment of Wages • In cases where the employee is indebted
Legal tender; Prohibited: to the employer, where such indebtedness
Promissory notes, vouchers, has become due and demandable (Civil
coupons, tokens, tickets, Code, Art. 1706)
chits, or any other object other • Court judgment, but only for debts ·
than legal tender incurred for food, shelter, clothing, and
Once every two weeks or medical attendance (Civil Code, Art. 1708)
twice a month at intervals not
,.( exceeding 16 days 4. Regulation Issued by tl!ie Secretary of Labor
At or near the place of
undertaking Deposits for Loss or Damage
Directly to the employee
entitled thereto General Rule: No employer shall require his
worker to make deposits for the reimbursement of
2. Prohibitions regarding wages loss of or damage to material, equipment, or tools ·
supplied by the employer.
(a) Deductions from Wages (Labar Code, Art.
113) Exception: When the trade, occupation or
business of the employer recognizes or considers
General Rule: Wage deduction is strictly the practice of making deductions or requiring
{ t
prohibited. deposits necessary or desirable. (Labor Code, Art.
114)
Exceptions:
,... '\ 1. With Employee's Consent in Writing Requisites for Valid Deduction for
lJ • SSS payments loss/Damage
• PHILHEAL TH payments 1. The employee concerned is clearly shown to
{j • Contributions to PAG-IBIG Fund be responsible for the loss or damage
• Value of meals and other facilities 2. The employee is given reasonable opportunity
(.J • Payments to third . persons with to show cause why deduction should not be
employee's consent and without made
0 pecuniary benefit 3. The amount of such deduction is fair and
reasonable and shall not exceed the actual
• Deduction for unpaid absences
0 loss or damage
2. Without Employee's Car.sent 4. The deduction from the wages of the
• Worker's insurance acquired by the employee does not exceed 20% of the
employer employee's wages in a week (/RR Labor
(J • Union dues, where the right to check-off Code, Sec. 11, Rule VIII, Book Ill)
has been recognized by the employer or ,
0 authorized in writing by the employee
Note: Art. 144 provides for the rule on deposits for
the loss or damage to tools, materials, or
o· • Cases where the employer is authorized
by law or regulations issued by the
equipment supplied by the employer. The same
does not apply to or permit deposits to defray any
u •
Secretary of Labor
Debts of the employee to the employer
deficiency, which the taxi driver may incur in the
that have become due and demandable
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remittance of "boundary" (Five J Taxi v. NLRC, criteria prescribed by the Labor Code. {Labor
G.R. No. 111474, 1994) Code, Art. 123)
Prohibited I UnlaWful Acts A wage order adjusts the minimum level but not
1. Withhold any amount from the wages of a the levels above the minimum. It does not
worker or induce him to give up any part of his mandate across the board salary increase.
wages by force, stealth, intimidation, threat or
by any other means whatsoever without the Employees NOT Covered .
·,
worker's consent. (Labor Code, An'. 116) 1. Household or domestic helpers, including
2. Deduction from the wages of ar.y employee family drivers and workers in the personal
for the benefit of the employer or his service of another
representative or intermediary as 2. Workers and employees in retail/service
consideration of a promise of employment or establishments regularly employing not more
· retention in employment. (Labor Code, Art. than 1 o workers, when exempted . from
117) compliance, for a period fixed by · the ,
3. Refuse to pay or reduce the wages and Commission/Boards
benefits, discharge or in any manner 3. Workers arid employees in new business
discriminate against any employee who has enterprises outside the National Capital
filed any complaint or instituted any Region and export processing zones for a
proceeding under this Title or has testified or period of not more than two or three years, as
is about to testify in sucn proceedings. (Labor the case may be, from the start of operations
Code, Art. 118) when exempted (R.A. No. 6727)
4. Make any statement, report, or record filed or '
kept pursuant to the provisions of this Code In addition to setting the minimum wage, the
. knowing such statement, report or record to be RTVt'PB can provide additional exempticns since
false in any material respect. (Uibor Code, Art. it is vested with the competence to determine the
119) industries and sectors to exempt from the
coverage of their wage orders. (National Wages
Non-Interference in Disposal of Waoes (Civil and Productivity Commission (NWPC) and the
Code Provisions) Regional Tripartite Wages and Productivity Board
. 1. The laborer's wages shall be paid in legal (RTWPB) vs. Alliance of Progressive Labor (APL)
currency (Civil Code, Art. 1705) and the Tunay na Nagkakaisang Manggagawa sa
2. Withholding of wages, except for a debt due, Royal (TNMR), G.R. No. 150326, 2014)
shall not be made by the employer (Civil Code, t .:.
Art. 1706) Effectivity of Wage Orders \>
3. The laborer's wages shall be a lien on the Takes effect after 15 days from its complete ';·)
goods manufactured or the work done (Civil publication in at least one newspaper of general \ t
Code, Art. 1707) circulation in the region. (NWPC Guidelines No.
4. The laborer's wages shall not be subject to 001-95, Sec. 4, Rule IV) ·
execution or attachment, except for debts
incurred for food, shelter, clothing, and Public Hearings and Consultations Mandatory
medical attendance (Civil Code, Art. 1708) Notice must be given to employees' and ( .,_
5. The employer shall neither seize nor retain employers' groups, provincial, city and municipal l...J
any tool or other articles belonging to the officials and other interested parties.
laborer (Civil Code, Art. 1709)
A wage order issued without the required public
3. Wage Order; Wage Distortion, concept consultation and newspaper publication is null and
void. . '\,_
Wage Order ( .;
An order issued by the Regional Board whenever Frequency
the conditions in the region so warrant after General Rule: A wage order issued by the Board (,_)
studying and investigating and studying all may not be disturbed for a period of 12 months
pertinent facts and based on the standards and i · . ...
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from its effectlvity and no petition for wage even: that such order is affirmed (/RR of R.A. No.
increase shall be entertained durinfJ said period 6727, Sec. 5, Rule V)
(NWPC Guidelines No. 001-05, Sec. 3, Rule IV)
Doctrine of Double Indemnity
Exceptions: Payment to a concerned employee of the
1. When Congress itself issues a law increasing prescribed increase or adjustments in tne wage
wages; or rate which was not paid by an employer in an
2. Supervening conditions, such as extraordinary amount equivalent to twice the unpaid benefits
increases in prices of petroleum products and owing to such employee (D.O. No. 10, Sec. 2(1]
basic goods I services [1998])
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3. The elimination of the distinction between the should be given only to those employees covered
two levels. thereby. (P.I. Manufacturing, Inc., v. P.I.
4. The existence of the distortion in the same Manufacturing Supervisors and Foreman Ass 'n
region of the country. (Alliance Trade unions and the NLRC, G.R. No. 167217, 2008).
I
v. NLRC, G.R. No. 140689, 2004)
Summary of Principles Oh Wage Distorti.on
Correction of Wage Distortion (NFL v. NLRC, G.R. No. 103586, 1994)
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o 1
t
difficult question of law (Vergara, Jr., v. Coca
Cola, G.R. No. 176985, 2013)
NLRC, G.R. No. 111744, 1995)
C.LEAVES
When not applicable
At least one of the requisites is absent. 1. Service Incentive leave (SIL) (supra)
() 1. At least one of the requisites is absent
2. Mistake in the application of the law (Globe 2. Maternity Leave
0 Mackay v. NLRC, G.R. No. 82511, 1988)
3. Negotiated benefits (Azucena) Coverage:
0 4. Reclassification of Positions '- e.g. loss of SSS Law (R.A.1161, as.amended by RA 8282)
A female member who has paid at least 3 monthly
some benefits by promotion.
5. Contlnqent or Conditional Benefits - the rule contributions in the 12-rnonth period immediately
does not apply to a benefit whose grant preceding the semester of her
0 depends on the existence of certain childbirth/miscarriage shall be paid a daily
maternity benefit equivalent to 100% of her
conditions, so that the benefit is not
0 demandable if thane preconditions are absent. average daily salary credit for 60 days (in case of
normal delivery) or 78 days (in case of caesarian
0 Past Errors delivery). (R.A. No. 9282, Sec. 14-A)
If it is a past error that is being corrected, no vested
0 right may be said to have arisen nor any diminution Conditions for entitlement: (NAB-4-RD)
1. Employee shall have Notified her employer of
of benefit under Art. 100 may be said to have
her pregnancy and the probable date of her
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childbirth, which notice shall be transmitted to 3. Paternity Leave (R.A. No. 8187)
the SSS.
2. Full payment shall be Advanced by the Definition:
employer witr.in 30 days from the filing of the Paternity Leave refers to the benefits grnnted to a
maternity leave. married male employee allowing him not to report
3. Payment of daily maternity benefits shall be a
Bar to the recovery of sickness benefits
for work for seven (7) days but continues to earn
the compensation therefor, on the condition that
\.
.
provided by the SSS Law for the same period his spouse has delivered a child or suffered a
for which daily maternity benefits have been miscarriage for purposes of enabling him to
received. effectively lend support to his wife in her period of
4. · The maternity benefits provided under this recovery and/or in the nursing of the newly-born
section shall be paid only for the first 4 child. (R.A. No. 8187, Sec. 3)
deliveries/miscarriages. Coverage
5. The SSS shall immediately Reimburse the Paternity Leave is granted to all married male
employer of 100% of the amount of maternity employees in the private sector, regardless of their
benefits advanced to the employee by the employment status (e.g., probationary, regular,
j
employer upon receipt of satisfactory proof of contractual, project basis] ..
such payment and legality thereof; ;.
;
6. If an employee member should give birth or Government employees are also entitled to the
suffer miscarriage without the required paternity leave benefit. They shall be governed by -i
' ,::
contributions having been remitted for her by the Civil Service rules.
her employer to the SSS, or without the latter
having been previously notified by the · Conditions to entitlement:
employer of the time of the pregnancy, the 1. A married male employee at the time of
employer shall pay to the SSS Damages delivery of his child;
equivalent to the benefits which said 2. Cohabiting with his spouse at the time she
·__;
employee member would otherwise have gives birth or suffers a miscarriage;
been entitled to (R.A. No. 9282, Sec. 14-A) 3. Applied for paternity leave within a reasonable
period from the expected date ofdelivery by
Notes: the pregnant spouse, or within such period as '
Women in the military, police, and other services may be provided by company rules or by CBA; :r
shall be entitled to leave benefits such as provided that prior application is not required f .,,,
maternity leave, as provided for by existing laws in case of miscarriage; \.,}
(Magna Carta of Wom€n, Sec. 15) 4. Wife has given birth or suffered a miscarriage.
5. Where a male employee Is already enjoying ()
It is not necessary that the woman be impregnated the paternity leave benefits by reason of
by her legitimate husband. It is immaterial who the contract, company policy or CSA, the greater
t_)
father is. benefit prevails. ·
(}
Every pregnant woman in the private sector, Appiication for Paternity Leave
whether married or unmarried, is entitled to the The male employee applying for paternity leave 0
maternity leave benefits. sha:I notify his employer of the pregnancy of his
legitimate spouse and the expected date of such
Availment delivery by the pregnant spouse, or within such
The maternity benefits provided under this period as may be provided by company rules and
sections shall be available only for the first four (4) -, regulations or by collective bargaining agreement,
deliveries or miscarriages. (R.A. No. 8282, Sec.
14-A[d])
provided that prior application for leave shall not u
be required in case of miscarriage (/RR of R.A. No.
818/ for the private sector, Sec. 4) ()
l)
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0 h. Solely provides parental care and support to a R.A. No. 9710 or the M.igna Carta for Women
A special leave benefit for women was granted
child or children.
0 i. Assumes responsibility of head of the family under R.A. No. 9710 (August 14, 2009). Women
who qualify under R.A. No. 9710 are entitled to a
as a result of the death, abandonment,
u special leave benefit of tvro (2) months with full pay
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based on her gross monthly compensation 3. :t shall be used for the days that she need to
following surgery caused by gynecological attend to medical and legal concerns. ;
disorders. 4. Leaves not availed of are non-cumulative and
not convertible to cash.
Conditions for Ehtitlement:
1. A woman employee must have rendered Avallment
continuous aggregate employment service of . Leave of up to ten (10) days in addition to other
at least six (6) months for the twelve (12) . paid leaves .under the Labor Code, or other laws.
months immediately prior to the surgery (Sec. 43, RA 9262)
2. She has filed an application for special leave
with her employer within a reasonable period
of time from the expected date of surgery or
within such period as may be provided by
company rules and regulations or collective
bargaining agreement; and
3. She has undergone surgery due to
gynecological disorders as certified by a
competent physician. _,
Coverage:
()
Allows the victim of violence, which may be
physical, sexual, or psychological, to apply for the 0
issuance of a protection order. If such victim is an
employee, she is entitled to a paid leave of up to 0
10 days in addition to other paid leaves under the
Labor Code, other laws and company policies.
Conditions to entitlement
1. The employee has to submit a certification
from the Punong Baranqay or Kagawad or u
prosecutor or Clerk of Court that an action
under RA 9262 has been filed and is pending. ()
2. The use of the 10-day leave is at the option of
the employee ()
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contract is a valid exercise of management !;njoying the maternity leave, facilities and
prerogative. The prohibition against personal other benefits provided under the Code
or marital relationships with employees of c. To discharge such woman employee on
competitor companies upon its employees account of her fregnancy, or while on leave or
was held reasonable under the circumstances in confinement due to her pregnancy (Del
because relationships of that nature might Monte v. Velasco, G.R. No. 153477 (March 6,
compromise the interests of the company. In 2007).
laying down the assailed company policy, the d. To discharge or refuse the admission of such
employer only aims to protect its interests woman upon Returning to her work for fear
against the possibility that a competitor , that she may be pregnant
company will gain access to its secrets and e. To discharge any woman or child or any other
procedures. employee for having filed a complaint or ,.
iiaving Testified or being about to testify under
Bona fide occupational qualification exception the Code
When the employer can prove that the reasonable f. To require as a Condition for a continuation of
demands of the business require a distinction employment that a woman employee shall not ·,.
based on marital status and there is no better get married or to stipulate expressly or tacitly
available or acceptable policy which would better that upon getting married, a woman employee
accomplish the business purpose, an employer shall be deemed resigned or separated, or to
may discriminate against an employee based in actually dismiss, discharge, discriminate or
the identity of the employee's spouse. (Star Paper otherwise prejudice a woman employee
Corp. vs. Simbol, G.R. No. 16,1774, 2006) merely by reason of her marriage
The Court sustained the validity of employer policy d. Sexual Harassment (RA 7877)
prohibiting an employee from having a personal or
marital relationship with an employee of a Where Committed (WET)
competitor. The prohibition was reasonable under a. Working
the circumstances because relationships of such b. Education
nature might compromise the interests of the c. Training environment
company. (Duncan Association of Detailmen v. ,.-·-:...
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()
0
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In these two cases: employer must first secure a work permit from the OOLI:: before
en a ing the child
l)
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0
l)
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'
Regulation ?f working hours of a child work {-lnly occasionally or sporadically and not on
an occupational basis. (RA. No. 10361, Sec. 2[d])
~ • AND
AGE BELOW15
BELOW18 b) Benefits accorded to househelpers
Not more Not more
DAY
than 4 hours than 8 hours Rights and privileges of domestic worker:
more more a. The domestic worker shall not be subjected to
WEEK 20 than 40 any kind of abuse or any form of physical
hours hours violence or harassment or any act tending to
Bprn to 6am 10pm to 6am degrade his or her dignity.
PPROHIBITION of the of the b. The employer shall provide for the basic
following day following day necessities of the domestic worker to include
at least three (3) adequate meals a day and
Employment of the child in public humane sleeping arrangements that ensure
· entertainment (please refer to the table above) safety.
c. Respect for the privacy of the domestic worker
Prohibition on the employment of children in shall be guaranteed at all times and shall
certain undertaking and certain extend to all forms of communication and
advertisements personal effects.
d. The employer shall grant the domestic worker
NO CHILD shall be employed as a model in any access to outside communication during free
advertisement directly/indirectly promoting time.
alcoholic beverage, intoxicating drinks, tobacco e. The employer shall afford the domestic worker v.c ..
and· its byproducts, gambling or any form of the opportunity to finish basic education and
violence or pornography. (Sec. 5) may allow access to alternative learning
systems and, as far as practicable, higher
Prohibition against worst forms of child labor education or technical and vocational training.
"Worst forms of child labor": f. All communication and information pertaining ·
1. All forms of slavery to the employer or mfmbers of the household
, ).
2. Prostitution shall be treated as privileged and confidential, · ·
~
'· ,f 3. Production and trafficking of dangerous and shall not be publicly disclosed by the
drugs and prohibited volatile substances domestic worker during and after employment.
() 4. Work which by its nature or the
circumstances in which it is carried out is Employment contract
0 hazardous or lil<ely to be harmful to the. · An employment contract shall be executed by and
health, safety, or morals of children (Sec. 3) between the domestic worker and the employer
('
.,_; before the commencement of the service in a
3. Kasambahay (R.A. No. 10361) language or dialect understood by both parties and
0 shall include the following:
Coverage 1. the kasambahay's duties and responsibilities
() This Act applies to all domestic workers employed 2. period of employment
and working within the country. 3. compensation
(_) 4. authorized deductions
a) Definition 5. working conditions
u 6. Termination of employment
Domestic worker or "Kasambahay" refers to any 7. any other lawful condition agreed upon by
0 person engaged In domestic work within an both parties. (Sec. 11)
employment relationship such as, but not limited
0 to, the following: general househelp, nursemaid or Note: A· kasambahay assigned to work in a
"yaya", cook, gardener, or laundry person, but commercial, industrial or agricultural enterprise,
() shall exclude any person who performs domestic· will be entitled to the applicable minimum wage for
agricultural or non-agricultural workers.
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7. Other causes analogous to the foregoing fabricated in or about a home and thereafter to
(Sec. 34) be returned or to be disposed of or distributed
in accordance with his directions
d) Reliefs for unjust termination • Sells any goods, articles or materials to be
processed or fabricated in or about a home
If the domestic worker is unjustly dismissed, the and then re-buys them after such processing
domestic worker shall be paid the compensation or fabrication, either by himself or through
r r ....
already earned plus the equivalent of 15 days work some other person (D.O. No. 05-92)
by way of indemnity.
b) Rights and benefits accorded to
e) Penalties -, homeworkers
Any violation of R.A. No. 10391 declared unlawful Immediately upon receipt of the finished goods or
shall be punishable with a .fine of not less than Ten articles, the employer shall pay the homeworker of
thousand pesos (Pto;ooo.oo) but not more than the contractor or subcontractor, as the case may
Forty thousand pesos (P40,001lOO) without be, for, the work performed less corresponding
prejudice to the filing of appropriate civil or criminal homeworkers' share of SSS, MEDICARE AND
action by the aggrieved party. ECC premium contributions which shall be
remitted by the contractor/subcontractor or
4. Homeworkers employer to the SSS with the employer's share.
~~·
I
'l
. However, where payment is made to a contractor
a) Definition or subcor.tractor, the homeworker shall likewise be
,· Homeworker paid immediately after the goods or articles have
v Applies to any person who performs industrial been collected from the workers. (D.O. No. 05-92,
homework for an employer, contractor or sub- Sec. 6)
(, contractor
c) Conditions for deductions from
Industrial Homework homeworker's earnings
r, Industrial Homework is a system of production No employee, contractor, or sub-contractor shall
r -,
under which work for an employer or contractor is make any deduction from the homeworker's
carried out by a homeworker at his/her home. earnings for the value of materials which have
Materials may or may not be furnished by the been lost, destroyed, soiled or otherwise damaged
employer or contractor. It differs from regular unless the following conditions are met:
factory production principally in that it is a • The homeworker concerned is clearly shown
· decentralized form of production where there is to be responsible for the loss or damage:
0. ordinarily very little supervision or regulation or • The employee is given reasonable opportunity
methods of work. (D.O. No. 05-92, Sec. 2[a]) to show cause why deductions should not be
. (_J made;
Industrial Homeworker • The amount of such deduction is fair and
c System of production under which work for
employer or contractor is carried out by
an
a
reasonable and shall not exceed the actual
toss or damages; and
(J homeworker at his/her home. Materials may or • The deduction is rnqde at such rate that the
may not be furnished by the employer or amount deducted does not exceed 20% of the
/ '
v contractor (Labor Code, Art. 154) homeworker's earnings in a week.
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In the event that such contractor or sub-contractor to receive advice on how to reduce or avoid health
fails to pay the wages or earnings of his problems. associated with their work:
employees or homeworkers, such employer shall a. Before taking up an assignment as a night
be jointly and severally llablewlth the contractor or worker;
sub-contractor to the workers of the latter, to the b. At regular intervals during such an
extent that such work Is performed under such assignment; and
. contract, in (he same manner as if the employees c. If they experience health problems durinq
or homeworkers were directly enqaqed by the such an assignment which are not caused by
employer. factors other than the performance of night
work.
Prohibitions for Homework
1. Explosives, fireworks and articles of like With the exception of a finding of unfitness for
character night work, the findings of such assessments shall
2. Drugs and poisons not be transmitted to others without the workers'
3. Other articles, the processing of which consent and shall not be used to their detriment.
requires exposure to toxic substance
Mandatory Facilities
5. Night Workers Suitable first-aid facilities shall be made available
for workers performing night work, including
R.A. No. 10151 arrangements where such workers, where
An Act Allowing the Employment of Night Workers, necessary, can be taken immediately to a place for
Thereby Repealing Articles 130 and 131 of appropriate treatment. The employers are likewise
Presidential Decree Number Four Hundred Forty- required, to provide safe and healthful working
Two, as amended, otherwise known as the Labor conditions and adequate or reasonable facilities
Code of the Philippines, 2011 such as sleeping or resting quarters in the
establishment and transportation from the work
This new Republic Act provides that women can premises to the nearest point of their residence
now work on night time. subject to exceptions and guidelines to be
provided by the DOLE.
Coverage
All persons, who shall be employed or permitted or Transfer
suffered to work at night, except those employed Night workers who are certified as unfit for night
in agriculture, stock raising, fishing, maritime work, due to health reasons, shall be transferred,
0
transport and inland navigation, during R period of whenever practicable, to a similar Job for which
not less than seven (7) consecutive hours, they are fit to work. if such transfer to a similar job
()
including the interval from midnight to five o'clock is riot practicable, these workers shall be granted
in the morning, to be determined by the Secretary . the same benefits as other workers who are
of Labor and Employment, after consulting the unable to work, or to secure employment during
workers' representative/labor organizations and such period. A night worker certified as temporarily ,
employers. unfit. for night work shall be given the same
protection against dismissal or notice of dismissal
Night Worker means any employed person as other workers who are prevented from working
whose work requires performance of a substantial for reasons of health.
number of hours of night work which exceeds a
specified limit. This limit shall be fixed by the Compensation 0
Secretary of Labor after consulting the workers'
representative/labor organizations and ' The compensation for night workers in the form of 0
employers." working time, pay or similar benefits shall
reco-jnize the exceptional nature of night work.
Health Assessment
At their request, workers shall have the right to u
undergo a health assessment without charge and
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0
0
0
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1.
.-
6. Apprentices and Lr,arners
•
Persons hired as -trainees in seml-. skilled
and other industrial occupations
1.
._ . -, -
-APPRENTICES
Practical training on the job
2. Supplemented by related
2. Non· apprentlceable 3. theoretical
3. May be learned through practical training 4. instruction
on the job in a relatively short period of time 5. Covered by a
4. Shall not exceed 3 months 6. Written apprenticeship agreement with an
individual employer or entity
7. Needs DOLE approval
8. Shall not exceed 6 months
Training Agreement
Governed by Learnership Agreemeht Apprenticeship Agreement
Occupation
learn able occupations consisting of semi- Apprentlceable occupations or any trade, form of
skilled and other Industrial occupations which employment or occupation approved for
are non-apprentlceable apprenticeship by the DOLE Secretary
Theoretlcal Instructions
Learnershlp may or may not be supplemented Apprenticeship should always be supplemented by
by related theoretical Instructions related theoretical instructions
Ratio of theoretical instructions and on OJT
For both, the normal ratio is one hundred {100) hours .Ior every two thousand 2,000 hours of
practical or on-the-Job training
Competency-based system
It Is required that learnership be implemented Not required
on the TESDA~approved competency-based
system i
Duration of training
Not exceeding three (3) months of practical More than three (3) months, but not over six (6)
training months
Qualifications
Law does not mention any qualification Art. 59 of the Labor Code:
1. Be at least fifteen (15) years of age; (IRR and
0
R.A. 7610, as amended by R.A. 7658)
2. Possess vocational aptitude and capacity for
appropriate tests; and
3. Possess the ability to comprehend and follow
oral and written instructions.·
Circumstances justifying hiring of trainees
()
Art. 74: Pre-requisites before learners may be Law does not expressly mention any
validly employed:
1. When no experienced workers are
available;
0
2. The employment of learners is necessary to
prevent curtailment of employment
opportunities; and
3. The employment does not create unfair
competition in terms of labor costs or Impair
or lower working standards.
tJ
Limitation on the number of trainees . (,)
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Employer may not pay waqeif the apprenticeship 7. Persons with Disabilities
f : is:
a. A requirement for graduation Handicapped Workers
b. Required by the School Those whose earning capacity is impaired by age
c. Required by the Training Program Curriculum or physical or mental deficiency or injury, disease
(j d. Requisite for Board examination or illness. (Art. 78, Labor Code)
,.,,._ Art -. 63, Labor Code. Venue of Apprenticeship _ There must be a link between the deficiency and
'- J
Programs ' the work which entitles the employer to lessen the
The plant, shop, premises of the employer or firm worker's wage. If the disability of the person is not
concerned if the apprenticeship program is in a,,y way related to the work for which he was
{J organized by an individual employer or firm. hired, he should not be so considered as a
handicapped worker.
The premises of one or several firms designated
for the purpose by the organizer of the program If PERSONS WITH DISABILITY
such organizer is an association of employers, (R.A. No. 72?7, as Amended by R.A. ho. 9442)
civic groups and the like.
0 a
· considered normal for human being.
Contents of Learnership Agreemunt
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Handicapped Workers May Become Regular What is the wage rate of PWD if hired as
Employees - if their handicap is not such as to apprentice or learner?
. effectively impede the performance of job A PWD hired as an apprentice or learner shall be
operations in the particular occupations for which paid not less than seventy-five percent (75%) of
they were hired. the applicable minimum wage.
2. Using qualification standards, employment shall be provided to private entities which employ
tests or other selection criteria that screen out disabled· persons.
or tend to screen out a PWD unless such
standards, tests or other selection criteria are Private entities that employ disabled persons who
shown to be job-related for the position in met the required skills or qualifications, either as
question and are consistent with business regular employee, apprentice or learner, shall be
necessity; entitled to an additional deduction, from their gross
3. Utilizing standards, criteria, or methods of income, equivalent to 25% ofthe total amount paid
administration that: as salaries and wages to disabled persons.
4. Have the effect of discrimination on the basis
of disability; or Private entities that improve or modify their
5. Perpetuate the discrimination of others who physical facilities in order to provide reasonable
are subject to common administrative control. accommodation for disabled persons shall also be
6. Providing less compensation, such as salary, entitled to an additional deduction from their net
wage or other forms of remuneration and taxable income, equivalent to 50% of the direct
fringe benefits, to a qualified employee with costs of the improvements or rnoditlcatlons.
disability, by reason of his disability, than the J
amount to which a non-disabled person ---end of topic---
performing the same work is entitled;
7. Favoring a non-disabled employee over a
qualified employee with disabilitywlth respect
to promotion, training opportunities, study and
scholarship grants, solely on account of the
latter's disability;
''\ :
8. Re-assigning or transferring an employee with
a disability to a job or position he cannot
perform by reason of his disability;
9. Dismissing or terminating the services of an
'·,.,,.. -
J' -~
.-
,_ -I
disability unless the employer can prove that
he impairs the satisfactory performance of the
work involved to the prejudice of the business
(l entity; provided, however, that the employer
first sought to provide reasonable
() accommodations for persons with disability;
10. Failing to select or administer in the most
effective manner· employment tests which
.accurately reflect the skills, aptitude or other
u 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
11. Excluding PWD from membership in labor
lJ unions or similar organizations.
PAGE 63 OF 244
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Private sector,
Self-Employed comprising all the
considered both employed workers
employer and who are covered . by
employee. the SSS;
Overseas Filipinos
(ECL Rules, Sec. 5,
Rule 1
Legal spouse entitled for support; 1. Legitimate spouse
Child, whether legitimate, legitimated, legally living with the
adopted or illegitimate; employee
Parents receiving regular support from the 2. Child, whether
member. · legitimate, legitimated
or legally adopted;
3. Parents of said
employee wholly
dependent upon him
for regular support.
2.
Not over age of 2. Not over 21 years of
majority; OR age provided that he is
••-:-----,-~~-:----,--........,_.__--,..,....~------,--,,--1f-·e~n..;.;.r-=-o.;.;.;llec..cdc.,i--'n school; OR ;,../~,,
Incapable of supporting himself either physically 3. Over twenty-one years
lr ,i or mentally prior to 21 years of age or age of of age provided that he is
majority, as the case may be congenitally incapacitated
and Incapable of self-
support physically or
mentall ·
Dependent Spouse, a. Legal Dependent a. 1 Dependent Spouse
until remarriage; AND Spouse until until he remarries; AND
Dependent Legitimate remarriage ;AND b. Dependent Children
(} or Legitimated or b. Dependent Children who are the primary
'-:.1' Legally Adopted and beneficiaries.
Illegitimate Children
'-----------------·--··-- --··--
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than P1 ,000;
(effective date: upon
rendering at least 1
month of service
Filipinos recruited
by foreign-based
employers for
J.•"'"""•\.
employment abroad;
Employee
separated from
employment to
maintain his right to
full benefits;
Self-employed who
realizes no Income
. for a certain month;
Spouses who
devote full time to
managing household
and family affairs,
unless specifically
mandatorily covered.
*BY AGREEMENT:
Any Ioreiqn government,
international
organization or wholly
owned Instrumentality
employing workers in the
Philippines or employing
Filipinos outside the
Philippines, may enter
agreement with
Philippines for inclusion
of such employees in
SSS EXCEPT those
already covered by their
() respective civil · service
retirement s stem .
. C: 1. Employment
purely casual and
1. Members of the AFP
and PNP, subject to
not for the purpose the condition that they
of occupation, or must settle first their
business of . the financial obligation
() employer with the GSIS;
2. Service performed 2. Contractual
on or in connection employees, who
with alien vessel, if have no employer-
0 employed
such vessel
when
is
employee relationship
with the agencies they
0 outside
f>hjllppines
of serve;
3. Uniformed personnel
3. Employees of of the Bureau of Fire
0 Philjppine Protection (BFP);
gov~rnment or 4. Uniformed personnel
c;, instrumentality or of the Bureau of Jail
a enc thereof
PAGE 67 OF 244
c__ --··
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the services of an I l;
independent
contractor
All actual remuneration The basic pay or salary AU payments made for
for employment, received by an employee, income benefits, and
including the mandated pursuant to his medical or related '( l
cost-of-llvinq allowance, election/appointment, benefits.
the cash value of any excluding per diems, ...;,. .. ......
remuneration paid in any bonuses, overtime pay,
medium other than cash honoraria, allowances .
lJ
·~
PAGE 68 OF 244
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PAGE 69 OF 244
SC - questions of law
onl
20 years from: 4 years from date of Claim for compensation
1. time delinquency is contingency EXCEPT for • 1 year from notice to the
known; life and retirement employer
2. time the assessment benefits
is made by the SSS; All money claims arising
or from employer-employee
3. time the benefit relations accruing during
accrues. the effectivity of this Code
(as the casemay be) - within 3 years from the
time the cause of action
accrued
2. "Arising out of' refers to the origin or 6. "Disability" means loss or impairment of a
· cause of the accident. "In the course of physical or mental function resulting from
employment" refersto the injurythat takes injury or sickness (Labor Code, A1t. 173{n])
place within the period of employment, at
the place where the employee reasonably Abolishimmt of Presumption of
may be, and while fulfilling his duties or is Compensability (doctri;ne under Workman's
engaged in doing something incidental Compensation Act, predecessor law. of ECL)
thereto (lloilo Dock & EnginMring Co. v. While the presumption of compensabllity and
wee, G.R. No. L-26341, 1968) theory of aggravation under the Workmen's
Compensation Ad may have been abandoned
3. "Accident" is an unintentional and under the New LaborCode, it is significantthat the
unforeseeninjurious occurrencethat which liberality of the law in general in favor of the
happens by chance or fortuitously without workingmanstill subsists. (Lazo v. ECG, G.R. No ..
(_)
intention and design and which is 78167, 1990)
unexpected, unusual, and unforeseen
(Sungf'I v. Virgen Shipping Corp., GR. No. Rules on Compensability
198640, 2014) . 1. For the injury and the resulting disability or (l
deathto be compensable,the injury must be \I
An "assault" although resulting from a the resultof accidentarisingout of and in the
deliberateact of the slayer, is consideredan course of the employment(ECG Resolution
"accident" under the law, since the word No. 2799, 1984); and
"accident" is intended to indicate that "the 2. For the sickness and the resulting disability
act causing the injury shall be casual or or death to be compensable,the sickness
unforeseen, an act for which the injured must be the result of an occupational
party is not legally responsible."(Taller Vda. disease listed under the Annex "A" of the
de Nava v. Ynchausti Steamship, G.R. No. Rules dealing with occupational diseases
35741, 1932) with the conditions set therein satisfied.
Otherwlse, proofmust be shown that the risk
of contracting the disease is increased by
PAGE 70 OF 244
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the working conditions (EGL Rules, Sec. 1, or at his home, or during his employment,
Rule Ill) with some duty or special errand connected
3. Only injury or sickness that occurred on or with his employment; and
after January 1, 1975 and the resulting 4. Where the employer, as an incident of the
disability or death shall be compensable employment, provides the means of
(EGL Rules, Sec. 1, Rule Ill) transportation to and from the place of
employment (1/oi/o Dock and Engineering
Limitations - No compensation Co. v. WCC, G.R. No. L-26341, 1978)
No compensation shall be allowed to the
employee or his dependents when the injury, Street Peril Principle
sickness, disability, or death was occasioned by 1. The act of the employee of going to, or
any of the following: coming from, the workplace, must have
1. His intoxication; been a continuing act, that is, he had not
2. His willful intention to injure or kill himself or been diverted therefrom by any other
another; or activity; and he had departed from his usual
3. His notorious negligence (Labor Code, Art. route to, or from, his workplace; or
178; EGL Rules, Sec. 1, Rule IV) 2. An employee on a special errand that must
have been official and in connection with his
Sufficient proof of insanity or mental sickness may work (ECG Resolution No. 3914-A, 1988)
be presented to negate the requirement of
willfulness as a matter of counter-defense (Agile Proximate Cause Doctrine
Maritime Resources v. Siador, G.R. No. 191034, The proximate legal cause is that acting first and
2014) production the injury either immediately or by
setting others in motion, they constitute a natural
Intoxication alone is not sufficient to defeat the and continuous chain of events, each having a
recovery of compensation when intoxication does · close causal connection with its immediate
·-
I ;
not Incapacitate the employee from performing his
functions and duties and from following his
predecessor. (Azucena, The Labor Code with
Comments and Cases, Vol. 1, p. 529, 2016)
( \
' ' occupation (De Yohanon v. Balena, G.R. No. L- ·
43641, 1977) . General Rule: Proximate cause resulting to injury
is an injury arising out of employment.
Direct Premises Rule
The accident should have occurred at the place of Exception: When independent intervening cause
work to be compensable. ensues attributable to claimant's fault.
o General Rule: In the absence of special 24-Hour Duty Doctrine
o circumstances, an employee injured in, going to or
coming from, his place of work is excluded from
Members of the national police by the nature of
their' functions are technically on duty 24 hours a
the benefits of workmen's compensation acts day, except when they are on vacation leave.
f' ,.
(lloilo Dock and Engineering Co. v. wee, G.R. No.
v L-26341, 1978) The 24-hour duty doctrine should not be
sweepingly applied to all acts and circumstances
Exceptions: causing the death of a police officer but only to
1. Where the employee is proceeding to or those which; although not on official line of duty,
from his work on the premises of his are nonetheless basically police service in
employer; character. (Tencinco v. GSIS, G.R. No. 132916,
2. Where the employee is about to enter or 2001)
about to leave the premises of his employer
by way of the exclusive· or customary means Incidents of Employment Doctrine
of ingress and egress; Acts which are reasonably incidental to the .
lJ 3. Where the employee is charged, while on employment are deemed arising out of such
his way to or from his place of employment employment, thus compensable
PAGE 71 OF 244
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1. Acts of personal ministration for the comfort 2. When the injured was a victim of the assault
or convenience of the employee; and it occurred in the course of performance
2. Slight deviation from work, from curiosity, or of official functions, compensable (Lentejas
otherwise; v. ECC, G.R. No. 89168, 1991)
3. Acts for the benefit of the employer;
4. Acts in emergencies; and Bunkhouse Rule
5. Acts done to further the Goodwill of the Where the employee is required to stay in the
!---- ...
business. (Horovitz, 3 NACCA L.J. 28·30) premises or in quarters furnished by the employer,
injuries sustained therein are in the course of
Force majeure employment regardless of the time the same
General Rule: Employer is not responsible. ' occurred. (Uy v. wee, G.R. No. L-43389, 1980)
Exception: Positional and local risks doctrine SIC';<NESS AND OCCUPATIONAL 0151:ASE
When one in the course of his employment is Conditions for Compensability of
reasonably required to be at a particular place at a Occupational Disease and Resulting Disability
particular time and there meets an accident, or Death
although one which any other person then and 1. His sickness was the result of an
there present would have meet irrespective of his occupational disease listed under Annex A.
employment, that accident is one arising out of the of the Rules of the Employees
. ...,,
employment if the person is so injured. (Azucena, . Compensation; or
The Labor Code with Comments and Cases, Vol. 2. The risk of contracting the disease was
1,p. 552-553, 2016) increased by his working conditions (Barrios
v. ECG, GR. No. 148089, 2006)
Assault of an Employee considered as an
Accident Theory oflncreased Risks
An "assault" although resulting from a deliberate If the ailment is not included in the list or
act of the slayer, is considered an "accident" under occupational diseases, the claimant has the
the law, since the word "accident" is intended to burden of proving that the nature of the work
indicate that "the act causing the injury shall be increased the risk of contracting the disease.
casual or unforeseen, an act for which the injured (Dabatian v. GSIS, G.R. No. 4721, 1987) i -·
party is not legally responsible." (Taller Vda. de
· Nava v. Ynchausti Steamship, G.R. No . .15741, Where the cause of the disease is unknown, the '
,.J
.
1932) theory of increased risk is applicable (Pano/es v.
ECC, G.R. No. L-64802, 1985)
The death of an employee due to a murderous
()
assault is compensable when the same occurred "Increased R.isk" Jobs
in the course of performance of official functions. 1. Keeping the peace or guarding property
2. Keeping or carrying of money or valuables
The motive of assault need not be established if 3. Expose employee to direct contact with
the covered employee sustained the injury while: lawless and irresponsible people
1. The employee was at the 4. Bus driver, taxi, driver, or street car
assigned/designated workplaces; or conductor. (Batangas Transportation Co. v.
2. The employee was executing orders of the Vda de Rivera, G.R. No. L-7658, 1956)
employer, regardless of the time and place 5. Expose employee to illness; and
of the incident 6. Prolonged sitting down and putting off
urination. (Barrios v. ECG, GR No
Rule on Injury or Death in the Course of 148089 March 24, 2006)
Assault
1. When the in.iured was the unlawful Reasonable Proof of Connection
aggressor, not compensable (Mabuhay What the law requires is reasonable work
Shipping Services v. NLRC, G.R. No. connection and not a direct causal relation. It is l)
94167, 1991) sufficient that the hypothesis on which workmen's
PAGE 72 OF 244
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claim is based is probable since probability, not period exceeding 240 days. (Abaya v. ECG, G. R.
;}
certainty, is the touchstone. (Cestro-Gerupe v. No. 64255, 1989)
ECG, G.R. No. 158268, 2006)
Test of Permanent Total Disability
C. DISABILITY AND DEATH BENEFITS The test of whether an employee suffers from
.' "permanent total disability" is a
showing of the
1. TEMPORARY TOT AL DISABILITY capacity of the employee to continue performing
his work notwithstanding the disability he incurred.
As a result of injury or sickness, the employee is (Vicente v. ECG, G.R. No. 85024, 1991)
· unable to perform any gainful occupation for a
'continuous period not exceeding 120 days. (Barko Instances of Permanent Total Disability
International v. Alcayno, G.R. No. 188190, 2014) 1. Temporary total disability lasting
continuously for more than one hundred
Amount of Benefits twenty days, except as otherwise provided
Income benefit equivalent to 90% of his average for in the Rules; ·
daily salary credit subject to the following: 2. Complete loss of sight of both eyes;
1. Benefit shall not be less than P10 or more 3. Loss of two limbs at or above the ankle or
!
than P90; not paid lower than 120 days wrist;
unless injury or sickness requires more 4. Permanent complete paralysis of two limbs;
extensive treatment that lasts beyond 120 5. Brain injury resulting in incurable imbecility or
. days not exceeding 240 days from the onset insanity; and
of disability, in which case he shall be paid 6. Such cases as determined by the Medical
G benefit for Temporary Total Disability during . Director of the System and approved by the
,· the extended period (P10 - P200 per day, Commission. (Labor Code, Art 198{c])
maximum 120 days).
2. Benefit shall be suspended if. employee When temporary total disability becomes
failed to submit monthly medical report permanent total disability
certified by attending physician. (Amended 1. Declared by the company-designated
Rules on Employees' Compensation, Rule physician within 120 or 240 day treatment
f. .... _
X, Sec. 3) period; or
~. ·1
2. In case of absence of such a declaration
Period of Relapse either of fitness or permanent total disability,
The period covered by any relapse he suffers, or upon the lapse of the 120 or 240 day
recurrence of the illness, which results in disability treatment period, while the employee's
() and is determined to be compensable,. shall be disability continues and he is unable to
considered Independent of, and separate from, the engage in g,iinful employment during such
period covered by the original disability. Such a period, and the company physician fails to
period shall not be added to the period covered by arrive at a definite assessment of the
his original disability (Amfjnded Rules on employee's fitness or disability (Alpha Ship
Employees' Compensation, Rule X, Sec. 2[b]) Management v. Calo, G.R. No. 192034,
r '
\l 2014)
2. PERMANENT TOT AL DISABILITY
When the company-designated physician and
In means incapacity to perform gainful work which emplc,yee-designated physician disagree
u is expected to be.permanent. This status does not
require a condition of complete helplessness. Nor
If a · doctor appointed by the seafarer disagrees
with the assessment of the company-designated
l} is it affected by the performance of occasional odd , doctor, a 3rd doctor may be agreed jointly between
jobs. the employer and the seafarer, and the 3rd doctors'
decislon shall be final and binding on both parties.
There is permanent total disability if as a result of (Bahia Shipping v. Constantino, G.R. No. 180343,
the injury or sickness, the employee is unable to 2014)
perform any gainful occupation for a continuous
t,., PAGE l3 OF 244
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PAGE 74 OF 244
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'
of diagnosis and treatment shall be extended Failure of the seafarer to comply with the
to 240 days, The employer has the burden to mancatory reporting requirement shall result
prove that the cornpany-oeslqnated physician in his forfeiture of the right to claim the above
has sufficient justification to extend the period; benefits.
and
. \ d. If the cornpany-deslqnated physician still fails When the seafarer suffers work-related illness
to give his assessment within the extended durihg. the term of his contract, the emplcyer shall
period of 240 days, then the seafarer's be liable to pay for: (1) the seafarer's wages: (2)
disability becomes permanent and total, costs of medical treatment both in a foreign port
regardless of any justification. and in the Philippines until the seafarer is declared
fit to work, or the disability rating is established by
Hence, the general rule is that the 120-day period the company-designated physician; (3) sickness
is an absolute rule. The company-designated allowance which shall not exceed 120 days; and
physician must provide a sufficient justification (4) reimbursement of reasonable medicine,
to extend the original 120-day period of traveling, and accommodation expenses.
assessment. (Career Philippines However, to be qualified for the foregoing
Shipmanagement, Inc. v. Silvestre, G.R. No. monetary benefits, the same secticn of the POEA
213465, 201ar Contract requires the seafarer to submit
himself/herself to a post-employment medical
NOTE: Prior to Elburg ruling, the Court held in examination by a company-designated physician
Vergara v. Hammonia Maritime Services, Inc. that within three working days upon his return to the
seafarers could not.automatlcally claim permanent Philippines, except when he is physically
and total disability even though the 120-day period incapacitated to do so. The seafarer is likewise
for medical evaluation was exceeded for it was required · to report regularly to the company-
possible to extend the evaluation or treatment designated physician during the course of his
period to 240 days. (Vergara v. Hammonia treatment. The three-day reporting requirement'"'·····"'
Maritime Services, Inc., 588 Phil. 895, 2008). is MANDATORY. (Manila Shlpmanagement &
Manning, Inc. v. Aninang, G.R. No. 217135, 2018)
·1 .
't.-
'i
,ft
4. Seafarer is entitled to reimbursement of
the cost of medicines prescribed by
company-designated physician. 5. Illnesses NOT listed in Sec, 32 of POEA-
SEC are disputably presumed as work-
If treatment is on an out-patient basis as related.
'\ :. determined by the company-designated
physician, the company shall approve the 6. In case seafarer is disembarked from ship
(j appropriate mode of transportation and for medical reasons, ER shall bear full
accommodation. cost of repatriation if seafarer is declared:
o-·'. The reasonable cost of actual traveling
a. fit for repatriation; or
b. fit to work but the employer is
expenses and/or accommodation shall be unable to find employment for the
() paid subject to liquidatioh and seafarer on board his former ship
{ -~ submission of official receipts and/or or another ship of the employer.
a, ::.:
'\..! proof of expenses.
7. In case of permanent total or partial
() NOTE: To be entitled to the foregoing monetary disability of the seafarer, he shall be
benefits, ssatarer shall submit himself to a post- compensated in accordance with the
employment medical examination by a company- schedule of benefits enumerated in
designated physician within 3 working days Section 32 of POEA-SEC. Computation of
upon his return. his benefits shall be governed by the rates
and the rules of compensation
EXCEPT when he is physically incapacitated to do applicable at the time the illness or
(.) so. In such case, a written notice to the agency disease was contracted.
within the same period (3 working days upon
0 return) is deemed as compliance. NOTE: The disability shall be based solely on
the disability gradings provided under
The seafarer shall also report regularly to the Section 32. It shall NOT be measured or
company-designated physician. determined by the number of days a seafarer
PAGE 75 OF 244
...
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is under treatment or the number of days in not exceeding 5, beginning with the youngest and
which sickness allowance is paid. without substitution. The income benefit shall be
guaranteed for 5 years. (Amended Rules on
8. The aforementioned benefits are separate Employees' Compensation, Rule XIII, Sec. 3)
and distinct from other benefits the
)
seafarer is entitled to. Conditions to entitlement
1. The employee has been duly reported to the
In determining the compensability of an illness, it System;
is not required that the employment be the sole 2. He died as a result of an injury or sickness;
factor in the growth, development, or acceleration
and
of a claimants' illness to entitle him to the benefits
provided · for. It is enough that his employment 3. The System has been duly notified of his
contributed, even If only in a small degree, to the death, as well as the injury or sickness. which
development of the disease. caused his death. ·
Even assuming that the ailment of the worker was NOTES: Employer shall be liable for the benefit if
contracted prior to his employment, this still would such death occurred before the employee is duly
not deprive him of compensation benefits. For reported for coverage to the System.
what matters is that his work had contributed, even
in a small degree, to the development of the If the employee has been receiving monthly
disease. Neither is it necessary, in order to recover
income benefit for permanent total disability at the
compensation, that the employee must have been
time of his death, the surviving spouse must snow
in perfect health at the time he contracted the
disease. A worker brings with him possible that the marriage has been validly subsisting at the
infirmities in the course of his employment, and time of his disability.
while the employer is not the insurer of the health
of the employees, he takes them as he finds them The cause of death must be a complication or
and assumes the risk of liability. (Skippers United natural consequence of the compensated [ .,
i
v .i
ATENEO CENTRAL
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V. LABOR RELATIONS
A. RlGHT TO SELF-ORGANIZATION
1. Coverage
2. Ineligibility of managerial employees;
right of supervisory employees
3. Effect of Inclusion as employees outside
of the bargaining unit
4. Non-abridgement
B. BARGAINING UNIT
C. BARGAININ.G REPRESENTATIVE
r
1. NATURE, ASPECTS \ __j
2. BY EMPLOYERS
3. BY LABOR ORGANIZATIONS
()
'
' ")
l.J
. ..
PAGE 78 OF 244
>. )'
i \
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~ ..
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'
1. COVERAGE -WHO MAY/MAY NOT EXERCISE ALlf::NS
THE RIGHT General Rule: All aliens, natural or juridical, [ ... l
are strictly prohibited from engaging directly or
GENERAL RULE indirectly in all forms of trade union activities.
(Labor Code, Art. 284)
ALL EMPLOYEES
1. ALL persons employed in: Commercial, Exceptions: Aliens may exercise the right to self-
industrial, agricultural enterprises, organization and Join or assist labor unions for .
religious, charitable, medical or purposes of collective bargaining, provided the
educational institutions, whether or not following requisites are fulfilled:
operated for profit. 1. With valid working permits issued by
DOLE; and
Purpose: Collective bargaining, engaging in 2. They are nationals of a country which
lawful concerted activities for collective grants the same or similar rights to Filipino ·
bargaining, and mutual aid and protection (Labor workers:
Code, Art. 253).. a. As certified by the DFA; or
b. Ratified either the ILO Convention
2. Ambulant, intermittent and itinerant and No. 8 or ILO Convention No. 98
rural workers, the self-employed and
those with no definite employers may form SECURITY GUARDS . '
labor organizations. The security guards and other personnel
employed by the security service contractor shall
· Purpose: Mutual aid and protection (Labor Code, have the right:
Art. 253) .. 1. To form, join, or assist in the formation of
a labor organization of their own choosing
NOTE: Employees of non-profit organizations are for purposes of collective bargaining and · ..
. !.
now permitted to form, organize, or join labor 2. To engage in concerned activities which
unions of their choice for purposes of collective am not contrary to law inr.luding the right
bargaining (Fl;U-Dr. Nicanor Reyes Medical to strike ·~
Supervisory employees shall not be eligible for Managerial vs. Supervisory vs. Confidential
membership in a labor organization of the rank- Employees
and-file employees but may join, assist or form ' "!.
· separate labor organizations of their own. (Labor MANAGERIAL EMPLOYEE: one who is vested \/
Code, Art. 255) with powers or prerogatives:
1. To lay down and execute management 0
Rationale: Supervisory employees, while in the policies and/or
performance of supervisory functions, become the 2. To hire, transfer, suspend, layoff, recall,
(} .J
alter ego of the management in the making and discharge, assign or discipline
the implementing of key decisions. It would be employees. (Labor Code, Art. 219[m}) 0
difficult to find unity or mutuality of interests in a
bargaining unit consisting of a mixture of rank-and- Managerial employees have the authority to 0
file and supervisory employees. (Toyota Motor devise, implement, and control strategic and
Phil. Corp. v. Toyota Motor Phil. Corp. Lebor operational policies (decision maker).
Union, G.R. No. 121084, 1997)
PAGE 80 OF 244
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Managerial Functions refers to powers such as to: For an Employee to be Considered a Supervisor,
1. Effectively recommend managerial Recommendation Must Be;
actions; 1. Discretionary or judgmental (not clerical);
2. Formulate or execute management policy 2. Independent (not a dictation of someone
or decisions; or else); and
3. Hire, transfer, suspend, lay-off, recall, 3. Effective (given I particular weight in
dismiss, assign or dlsclpllne employees making the management decision).
(San Miguel Supervisors v. Laguesma, (Azucena, Everyone's Labor Code, 2015
G.R. No. 110399, 1997) ed.)
-
{ -
employees, or who may merely recommend
strategic and operational policies (recommender).
{ :
\._}
i
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Note: Confidentiality may attach to a managerial However: The viciotieno decision does not bar
or non-managetiai position. Confidentiality is not the members of the Iglesia ni Kristo from forming
determined by rank, but by the nature of the job. their own union. (Kapatiran sa Meat and Canning
Division v. BLR Director, G.R. No. L-82914, 1988)
Note: Confidential employees are excluded from
joining labor organization under the doctrine of
In fact, religious objectors can vote for "No-
necessary implication. If confidential employees
UJnion" in a certification election in the exercise
could unionize in order to bargain for advantages
for themselves, then they could be governed by of their right to self-organization (Reyes v. Trejeno,
their own motives rather than the interest of the G.R. No. 84433, 1992)
employers. They may become the source of
undue advantage. Said employees may act as spy , 4. Employees of Foreign Embassies,
or spies of either party to a collective bargaining Consulates anci International Organizations
agreement. (Pepsi-Cola Products, Inc. v. For . example, the employees of International
Secretary of Labor, GR. 96663, 1999) Catholic Migration Commission cannot unionize
nor conduct a certification election (International
2. Employee-Members of Cooperatives Catholic Migration Commission v. Hon. Calleja,
An employee of a cooperative who is a member G.R. No. 85750, 1990)
and co-owner thereof cannot invoke the right to
collective bargaining, for certainly, an owner
The International Rice Research Institute ("IRRI")
cannot bargain with himself or his co-owners. enjoys immunity from local jurisdiction; it has the
discretion W/N to waive its immunity (Callado v.
However, insofar as it involves cooperatives with
International Rice Research Institute, G.R. No.
employers who are. not members or co-owners
106483, 1995)
thereof, such employees are entitled to exercise
the rights of all workers to organization, collective Note: Aliens working in the country with valid work
bargaining negotiations and others. (San Jose permits issued by the DOLE, may exercise right to ,
Electric Service Cooperative v. Ministry of Labor, 'J
self-organization subject to rule on comity. (Labor
G.R. No. 77231, 1989) Code, Art. 284)
Employee-Members · of cooperatives cannot 5. Government Employees
invoke the right to collective barqaininq due to the Note: The prohibition/s are not absolute .
. fact of ownership but they are allowed to form an Employees of government corporations
association for their mutual aid and protection as established under the Corporation Code shall
employees. (Planters Products, GR. No. 78524, have the right to organize and to bargain
1989; Benguet Electric, G.R. No. 79025, 1989)
collectively with their respective employers.
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..
'' .'
Employees Association of Mera!co et al, G.R. No.
91902, 1991)
authorities. (§13)
· from joining "labor organizations" (means any employees' union of the same company when the
union or association of employees which exists in following requisites occur:
whole or in part for the purpose of collective 1. The rank-and-flle employees are directly
bargaining or of dealing with the employer under the authority of supervisory
concerning terms and conditions of employment). employees AND
Art. 255 does not absolutely disqualify managerial 2. The · national federation is actively
employees from exercising their right of involved in union activities in the company
(DLSU Medical. Center and College of
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Medicine v. Laguesma, G.R. 102084 , 5. REGISTRATION AND CANCELLATION OF
1998) LABOR ORGANIZATIONS
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The question however of eljgibility to vote may be A local union does not dwe its existence to the
determined through the use of the applicable federation with which it is affiliated. It is a separate
payroll period and employee's status during the and distinct voluntary association owing its
applicable payroll period. The payroll of the month creation to the will of its members. Mere affiliation
next preceding the labor dispute in case of does not divest the local union of its own
regular employees and the payroll period at or personality, neither does it give the mother
near the peak of operations in case of employees federation the license to act independently of the
in seasonal Industries. (Tancino v. Ferrer- local union. It only gives rise to a contract of
Calleja, G.R. No. 78131, 1988) agency, where the former acts in representation
of the latter. (Insular Hotel Employees v.
Limitations Waterfront Insular Hotel, G.R. No. 17 4040-41,
1. The labor organization cannot compel 2010)
employees to become members of their
labor organization if they are already (i) DISAFFILIATION
members of a rival union:
2. The persons mentioned in Art. 250[e]) of A right granted to affiliates to disassociate from the
r+, the Labor Code are prohibited from mother union.
l_y becoming a member of a labor · .·.~ · :·1,:·--:·.
organizat!on (Subversives); and Local unions remain the basic units of association,
{
3. Religious objectors cannot be compelled free to serve their own Interests subject to the
or coerced to join labor unions (victorteno restraints imposed by the constitution and the by-
j
v. Elizalde Rope Worker's Union, G.R. No. laws of the national federation, and they are also
L-25246, 1974) free to renounce the affiliatlon upon the terms laid
down in the agreement which brought about
a) NATURE OF RELATIONSHIP affiliation. To disaffiliate is a right, but to observe
c ·_
...'.. ·~
i the terms of affiliation is an obligation.
(1) MEMBER-LABOR UNION
Note: Disaffiliation is a right corollary to the right
The relationship of the union and the member is of association granted by the Constitution. The
fiduciary In nature. The union may be considered , right to associate necessarily entails the right not
the agent of Its members for the purpose of to associate. (Volkschel Labor Union v. BLR, O.R.
' .
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I ,i
securing for them fair and just wanes and good No. L-45824, 1985)
working conditions and Is subject to the obligation
of giving the members as its principals all Note: Chartered local can disaffiliate from the
information relevant to union and labor matters federation, but it will lose its legal personality. In
f '
\J entrusted to it. (Heirs of Teodolo Cruz v. CIR, G.R. practice, chartered locals file for independent
No. L-23331-32, 1969) registration prior to disaffiliation in order for it to
gain new legal personality despite
disaffiliation. When to Disaffiliate
General Rule: A labor union may disaffiliate from
the mother union lo form a local or independent
Union union ONLY during the 60-day freedom period
(2) LOCAL-UNION - FEDERATION immediately preceding expiration of CBA.
Affiliate: Independent union affiliated with a Freedom Period: The last 60 days of the 51" and ·
federation or national union (/RR Labor Code, last year of the CBA. (Labor Code, Art. 265)
Sec. 3, Book V, Rule II); OR a chartered local
which was subsequently granted independent
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Community of Interests Rule: States that the Geography and Location play a significant role
employees within an appropriate bargaining unit in determining community of interests if:
must have commonality of collective bargaining 1. The separation between the camps and
interests in the terms of employment and working the different kinds of work in each all
conditions as evidenced by the type of work they militate in favor of the system of separate
perform. (San Miguel Foods Inc. v. San Miguel bargaining units;
Corp. Supervisors and Exempt Union, G.R. No. 2. When the problems and interests of the
146206, 2011) workers are peculiar in each camp or
department;
3. The system of having one collective
bargaining unit in each camp has
All or less than all ofthe entire operated satisfactorily in the past.
body ofemployees (B,~nguet Consolidated v, Bobok
Of employees, i.e. the Lumberjack Association, G.R. No. L-
collective interest of 11029, 1958)
employees consistent with the
equity of the employer Prior Collective Bargaining History
To serve the reciprocal rights The existence of a prior collective bargaining
and duties of the parties under history is neither decisive nor conclusive in the
the CB provisions and with law determination of what constitutes an appropriate
bargaining unit. (National Association of Free
Factors in Determining Community of Interest Trade Unions v. Mainit Lumber Development
1. Similarity in the scale and manner of -, Company Workers Union, G.R. No. 79526, 1990)
determining earnings
2. Similarity In employment benefits, hours Sinr,le or "Employer Unit" Preferred
of work and other terms and conditions of General Rule: The proliferation of unions in an
employment employer unit is discouraged as a matter of policy
3. Similarity in the kinds of work performed unless there are compelling reasons which would
4. Similarity in the qualifications, skills and deny a certain class ofemployees the right to self-
training of the employees organization for purposes of collective bargaining.
5. Frequency of contact or interchange (Phi/tranco v. BLR, G.R. No. 85343, 1989)
among the employees
6. Geographic proximity Exceptions:
7. Continuity or integration of production 1. Supervisory employees who are allowed .~
\;'
process to form their own unions apart from the
8. Common supervision and determination rank-and-file employees;
2. Where the employees exercise their right
(_}
of labor-relations policy
9. History of collective bargaining to form unions or associations for purpose
10. Desires of the affected employees not contrary to law, to self-organizatibn,
11. Extent of union organization (Azucena and. to enter into collective bargaining
. Vol. I, 7th ed., p. 461). negotiations (Barbizon Phil. v.
Nagkakaisang Supervisor ng Barbizon,
Globe doctrine: If units in one industry cannot be G.R. Nos. 113204-05, 1996)
determined, the employees can decide how to
organize themselves into units. The best way to Two Companies with Related Business
. determine such preference is through referendum General Rule: Two corporations cannot be
or plebiscite. (Kaplsanan ng Mga Mc1nggagawasa treated as a single bargaining unit even if their
Manila Road Co. v. Yard Crew Union, G.R. Nos. businesses are related. (Dlatagon Labor
L-16292-94, 1960) Federation Local v. Opie, G.R. No. L-44493-94, .
1980)
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The cross-linking of the agencies command, management councils for the same
control, and communication systems indicate their purpose. In such case, its representatives
unitary corporate personality. Accordingly, the veil shall be elected by a majority of all
of corporate fiction should be lifted fur the purpose employees in said establishment. (Labor
of allowing the employees of the three agencies to Cotie, Art. 267)
form a single labor union. (Philippin& Scouts
Veterans v. Torres, G.R. No. 92357, 1993) Note: A bargaining unit is 3 group of employees
sought to be represented by a petitioning union.
Spin-Off Corporations Such employees need not be members of a union
In the case of subsidiaries or corporations formed seeking the conduct of a certification election. A
out of former divisions of a mother company union certified as an exclusive bargaining agent
represents not only its members but also other
following a bona fide reorganization, it is best to
employees who are not union members (Holy
have separate bargaining units for the different Child Catholic School v. BHCCS-TELI-PIGLAS,
companies. (San Miguel v. Contesor, G.R. 11262, G.R. 179146 ,2013).
1996)
Creation of Labor Management and Other
Summary: Signification of Determining the Councils
Bargaining Unit The Department shall promote the formation of
1. In a Certification Election, the voters are labor-management councils in organized and
the whole bargaining unit, whether union unorganized councils.
or non-union members (Labor Code, Arts.
267); Purpose of the Labor-Management Councils
2. In a CSA Ratification, the voters are the To enable the workers to participate in policy and ,,,;·'·
whole bargaining unit, and not just the decision-making processes in the
union members (Labor Code, Art 237); establishment, insofar as said processes will ,
and directly affect their rights, benefits and welfare.
3. In Strike Voting, the voters are the
(
members of the union, not the whole Services to be rendered by the Department in
bargaining unit. (Labor Code, Art. 278[f]) line with the said policy
.
' ---
'- ' C. BARGAINING REPRESENTATIVE
I
1. Conduct awareness campaigns
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that the following concur: LEGf!l~ATE LABOR WITH MORE
1. The bargainihg unit is ununionized; . . ORGANIZATION (LLO) THAN 11 'LLO
2. The requesting union is the only union in that - a
bargaining unit; and conference within 5 work
3. The CEM majority are members of the union days for the submission
of the following: L_;.
Requesting Union 1. The names of the
Any legitimate labor organization employees in the . '
covered bargaining
Where to Fiie unit who support the
Regional Office which issued the legitimate labor certification, provided
organization's certificate of registration or that said employees
certificate of creation of chartered local. comprise at least
majority of the The RD shall refer
Requirements for Request of SEBA number of employees the same to the
· Certification: The request shall indicate: in the covered
Election Officer for
1. The name and address of the requesting bargaining unit; and the conduct of a
legitimate labor organization 2. Certification under Certification ...
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2. The name and address of the company . Y
' oath by the president Election.
where it operates of the requesting I ·~.
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for the determination of the propriety of conducting Association (PALEA) v. Ferrer-Ca!leja, G.R. No.
a certification election. 76673, 1988)
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1. A national union or federation which has Requisites for holding a certification election
already issued a charter certificate to its in an organized establishment (Labor Code,
local/chapter participating in the Art. 268):
certification election or a local/chapter 1. The Med-Arbiter shall automatically order
which has been issued a charter an election by secret ballotwhen
certificate by the national union or 2. Verified petition supported by at least 25%
federation. (Labor Code, Art. 269) of all the employees in the bargaining unit,
2. An employer may file a Petition for questioning the majority status of the
Certification Election when: incumbent bargaining agent.
a. Requested to bargain collectively; 3. Filed before the DOLE within the 60-day
and period before the expiration of the five
b. No bargaining agent nor a year representation aspect of the CBA
registered CBA exists in the unit.
{Labor Code, Art. 270) Note: The requisite written consent of at least 20%
(now 25%) of the workers in the bargaining unit
Requisites for holding a certification election applies to certification election only, and not to
In an unorganized establishment (Labor Code, motions for intervention. 1(PAFLU v. Calleja, G.R.
Art. 269) No. 79347, 1989)
Once a petition is filed by a legitimate labor When to file
organization, the· Med-Arbiter shall automatically The proper time to file a petition for C. E. depends
order the conduct of a certification election. on whether the bargaining unit has a CBA or not.
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Grounds for Denying Petition (R.A. 9481; D.O. extension or renewal of the collective
No. 40-F·03) (ALCEC-YDS) bargaining agreement; (J;.ontract Bar)
1. If the petitioner union does not Appear in
two successive conferences called by the 6. The petition was filed within 1 year from
Med-Arbiter, upon showing that the entry of voluntary recognition or a valid
petitioner was duly notified.(Non- certification, consent or run-of; election
Appearance) and no appeal on the results of the
2. The petitioner is not !:isted in the certification, consent or run-off election is
Department's registry of leqitlrnate labor pending; (i-Yeer Bar/Certification Year
unions or that its legal personality has Bar)
been revoked or cancelled with finality.
(Illegitimacy- Unregistered Union) 7. A duly certified union has commenced
and sustained negotiations with the
The filihg or pendency of any inter/intra-union employer or there exists a bargaining
dispute and other related labor relations deadlock which had been submitted to
dispute is not a prejudicial question to any conciliation or arbitration or had become
petition for certification and shall not be a the subject of a valid notice of strike or
,i
ground for the dismissal of . petition for lockout to which an incumbent or certified
certification election or suspension of bargaining agent is a party; (Neqoiietion
proceedings for certification election. (D.O. Bar/Deadlock Bar)
No. 40-03, as amended by D. 0. No. 40-F-03,
Sec. 2, Rule XI) 8. In case of an organized establishment,
failure to submit the 25% .§.upport
Certification election may be ordered despite: requirement for the filing of the petition for
the pendency of a ULP charge against a union certification election. (Lack of Support)
filed by the employer (Barrera v. CIR, G.R. No.
L-32853, 1981) or the pendency of a petition A certification may be called by the Med-Arbiter
to cancel the union's reqistratlon certificate even through the 25% support requirement has
based on an alleged illegal strike by the union. not been complied IA1ith. The requirement is
(National Union of Bank Employees v. Minister relevant only when it becomes mandatory to
of Labor, G.R. No. L·53406, 1981) conduct a certification election. In all other
instances, the discretion ought to be exercised
{.·. ~~.,,·
3. Failure of a local/chapter or national union in favor of a petition for certification election.
or federation to submit a duly issued (California Manufacturing Corp., v. Usec of
~harter Certificate upon filing of the Labor, G.R. No. 97020, 1992)
()
petition for certification election.
(Illegitimacy- No Charter) In Summary, the Grounds for Denying Petition
for Certification Election:
4. Absence of an ,!;,rnployment relationship 1. Non-Appearance
between all the members of the petitioning 2. Illegitimacy - Unregistered Union
union and the establishment where the 3. Illegitimacy - No Charter
proposed barqslnlnq unit is sought to be 4. No Employee-Employer Relationship
represented. (Absence of EER 5. Contract Bar
Relationship) 6. 1-Year Bar/Certification Year Bar
7. Negotiation/Deadlock Bar ' l
\__E .
8. Lack of Support
5. The petition was filed before or after the
freedom period of a duly registered
collective bargaining agreement; provided
RULES PROHIBITING THE FILING OF
u
PCEIBARl5 TO CERTIFICATION ELECTION
that the 60-day period based on the
1. Contract Bar Rule
original collective barqalninq agreement
2. Negotiation or Deadlock Bar Rule
shall not be affected by any amendment,
3. One-year or Certification Year Bar Rule
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3. ONE-YEAR BAR RULE OR CERTIFICATION 2. A failure of election where less than
YEAR BAR RULE majority of the CBU members voted. A
failure of election shall not bar the filing of
No petition for a certification election may be filed a motion for the immediate holding of
within 1 year ·from the date of a valid certification, another certification or consent election
consent, or run-off election, or from the date of may be filed within 6 months from date of
entry of a voluntary recognition of the union by the declaration of the failure of election. (D. 0.
employer. No. 40-03, Sec. 18, Rule IX)
Certification year rule will apply even if the "No PROTESTS/APPEAL AND OTHER QUESTIONS
union" choice won. Therefore, for one year, no ' ARISING FROM CONDUCT OF
PCE will be entertained (Samahang Manggagawa CERTIFICATION ELECTION
sa Permex v. Secretary; G.R. No. 107792, 1998) The .order granting the conduct of a certification
election in an unorqani:ted establishment shall
Note: The 12 month. prohlbltion presupposes that not be subject to appeal. Any issue arising
there was an actual conduct bf election, i.e, ballots therefrom may be raised by means of protest on
were cast and there was a counting of votes. In a the conduct and results of the certification
· case where there was no certification election election.
conducted precisely because the first petition was
dismissed on the ground that it did not include all The order granting the conduct of a certification
the employees who should be properly included in election in an organized establishment and the
the collective bargaining unit, the certification year decision dismissing or denying the petition,
. ..... A
bar does not apply. (R Transport Corp. v, whether in an organized or unorganized
Laguesma, G.R. No. 106830, 1993) establishment, may be appealed to the Office of
the Secretary within 10 days from receipt thereof.
Date of election ( Sec. 17, Rule VI/I of D. 0. 40-03).
"--'-:-
Date to be considered is when the election was
conducted; if results are appealed, then the date P~OTEST (Sec. 13, Rule IX; Book V)
when appealts finally resolved. Who may file: Any party-in-interest
Ground: On the conduct or mechanics of election
Where less than maJority of CBU voted
There is a failure of election when less than How to protest: - .
\_ . .j
majority of the CBU members voted. A failure of 1. Record the protest in the minutes of the
election shall not bar the filing of a motion for the election proceedings; AND
immediate holding of another certification or
(}
2. Formalize the protest with specific
consent election may be filed within B months from grounds, arguments before the Med-
date of declaration of the failure of election. (0.0. Arbiter within five (5) days after the dose
No. 40-03, Sec. 18, Rule IX) of the election proceedings
Note: The last· sentence pertains to the re-run Protests deemed dropped
election as provided under D. 0. No. 40-1-15. Protests which are:
1. Not recorded in the minutes; AND
When Certification Year Bar Rule will NOT 2. Formalized within the prescribed period
APPLY
1. In a case where there was no certification General Reservation to file protest prohibited
election conducted precisely because the Protesting party shall specify the grounds.
first petition was dismissed on the ground 0
that it did not include all the employees FaUure to formalize within 5-days cannot be ,-·'l
who should be properly included in the taken against the union. v
collective bargaining unit. (R· Transport The union misrepresented that they were
Corp. v. Laguesma, G.R. No. 106830, independent which caused the members to t)
1993)
disaffiliate and form a new union and their protest When parties fail to agree to a consent election
was not filed within the 5-day period. during the preliminary conference, hearing/s will
be conducted.
The failure to follow strictly the procedural
technicalities regarding the period for filing their Number of Hearings
protest (within the 5-day period) should not be The Med-Arbiter may conduct as many hearings
taken against them. Mere technicalities should not as he/she may deem necessary, but in no case
be allowed to prevail over the welfare of the shall the conduct thereof exceed 15 days from the
workers. What is essential is that they be accorded date of the scheduled preliminary
an opportunity to determine freely and intelligently conference/hearing, after which time the petition
which labor organization shall act On their behalf. shall be considered submitted for decision (Sec.
(DHL-URFA-FFWv. BMP, G.R. No. '152094 2004) 11, Rule VIII ofD.O. 40-03)
;
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Qualification of Voters
1. All employees who are members of the No device that could record or identify the voter or
i '
appropriate bargaining unil 3 MONTHS otherwise undermine the secrecy and sanctity of
PRIOR to the filing of the petition/request the ballot shall be allowed within the premises,
shall be eligible to vote. except those devices brought in by the election
2. An employee who has been dismissed officer.
from work but has contested the legality of
the dismissal in a forum of appropriate Any other device found within the premises shall
jurisdiction at the time of the issuance of be confiscated by the election officer and
the order for the conduct of a certification returned to its owner after the conduct of the
election shall be considered a qualified certification election. (Sec. 12, Rule IX of Q,O.
voter UNLESS his/her dismissal was 40-1-15)
declared valid in a final judqrnent at the
time of the conduct of the certification Preparation of Ballots
election (Sec. 6, Rule IX of 0. 0. 40-1- The Election Officer shall prepare the ballots in
15). English and Filipino or the local diaiect
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7. CERTIFICATION OF COLLECTIVE
BARGAINING AGENT
The union which obtained a majority of the valid
votes cast shall be certified as the sole and
exclusive bargaining agent of all the employees in
the appropriate bargaining unit.
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RAFFLE :]·
·
D.ispensed with if there is only one
[ Med-Arbiter
Service of NOTICE of
preliminary conference
PRELIMINARY CONFERENCE
Must be within 10 days from receipt of
petition for certification election
()
DECISION
First PRE-ELECTION Must be within 10 days from last
CONFERENCE [ hearing
Must be within 10 days from date of
(J
entry of agreement
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DECISION
UNORGANIZED ORGANIZED
Establishment Establishment
Unappealable
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REGIONAL DiRECTOR to tra. nsmit entire record withinTI.
4• ·
.
hcurs from receipt of appeal to OFFICE OF THE
SECRET ARY OF LABOR
(j
REPLY
(J Any party may file a reply within 1 O days from receipt of the
Memorandum of Appeal
.
( ~
·-·· -------~--~--1-.------~--~
f ' Decision of the SECRETARY OF LABOR
\_J
Secretary shall have 15 days from receipt of the entire records
to decide the appeal
'
Regional Director to cause the RAFFLE of the case to an ELECTION OFFICER
within 24 hours from receipt of notice
'
Election Officer to cause issuance of NOTICE OF PRE-ELECTION CONFERENCE. upon
contending unions and ernployerw/ln 24 hours from receipt of assignment
Posting of notices must be done at least 1 O days before election,
in 2 most conspicuous places in the company premises
PRE-ELECTION CONFERENCE
Must be within 10 days from receipt of assignment, and completed within 3 days of first hearing
Failure to appear in .pre-election conference is a waiver of the right to question any agreement in
pre-election conference. However, the non-appearinq party retains the right to be given notices of
subsequent pre-election conferences.
*
I
·-.. .,. .
CERTIFICATION ELECTION
Must not be later than 45 days
from date of first pre-election copference
-
ELECTION PRECINCTS CLOSE (j
On the date and time aqreed upon during the pre-election conference
CANVASS OF VOTES
*
Opening and canvassing of votes shall begin immediately after the precincts have closed
Existswhen the votes cast is !ess than the majority of eligible voters, and there are no material challengedvotes.
Another certification or consentelection may be held within 6 months. (~
'- . . .#
+
TRANSMIT RECORDS OF CASE to MED-ARBITER. MED-ARBITER to issue an order
(J
PROCLAIMING THE RESULTS of the Certlficatlon Election. 0
Any of the following conditions must have been present:
(1] No protest was filed, or protest filed but not perfected within the 5-day period for perfection of protest
[2] No challenge or eligibility issue raised, or even if raised, will not materially change results of elections
,· .
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Abstention refers to a blank or unfilled ballot Total number of votes: 170 valid votes, with 30
validly cast by an eligible voter. It is not spoiled votes.
(j _ considered as a negative vote but is considered
a valid vote in determining a valid election. (Sec. Step 1: Check for first majority: WoN there was a
( . ,} 1[a], Rule/, D.O. No. 40-1-15) . Valid Election '7 50% +1 of the Bargaining Unit
Step 2: Check for second majority: WoN a
0 Spoiled Ballot refers to a ballot tha tis torn, union/no union won the majority of valid votes
defaced, or contains marking which can lead cast ""7 50% + 1 of VVC
(J another to clearly identify the voter who casts
,[ . such vote (Sec. 1[ww], Rule/, D.O. No. 40-1-15). In example 2,
t f Step 1:
'---~
First majority - 50_%+1 of the BU = (200*50% +1 secrecy in the voting, fraud or bribery, in which
)= ~01 votes case, the certification election should be
invalidated. Such invalidation would necessitate
=
40+30+20+80+30 200; There is a valid election the conduct of a re-run election among the
since all 200 members voted, which satisfies the contending unions to determine the true will and
first majority of 50% + 1 of the BU. desire of the employee-electorates.
', ..• ,J
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ATENEO CENTRAL
BAR OPERATIONS 2019 LABOR LAW
posting of the notice of certification election at parties agreed to- hold a consent election, the
least 10 days prior to the scheduled date of results shall constitute a bar to the holding of a
election in 2 most conspicuous places in the certification election for one year from the holding
establishment. The same guidelines and list of of such consent election. Where an appeal has
voters shall be used in the election. been filed from the results of the consent election,
the running of the one-year period shall be
e. CONSENT ELECTIONS suspended until the decision on appeal has
Definition become final and executory.
Election voluntarily agreed upon by the parties,
with or without the intervention of the Department Where no petition for certification election was
of Labor and Employment, to determine the issue filed but the parties themselves agreed to hold a
of majority representation of an the workers in the consent election with the intercession of the
appropriate collective bargaining unit. (/RR Labor Regional Office, the results thereof shall
Code, Sec. 1 [h], Rule I, Book V) constitute a bar to another petition for certification
election. (Sec. 23 Rule Vil/ of D. 0. 40-03).
Note: If done as part of a · certification election
case, l.e., with the intervention of the DOLE, a Summary of the Five Modes of
consent election shall have the same legal effect Determining the Exclusive Bargaining
as a certification election. Representative
1. SEBA There's only ONE LLO
Procedure In Consent Elections if Agreed in CERTIFICATION
· the Course of Proceeding of Petition for 2. CONSENT Election without the need
certification Election ELECTIONS for governmer,t ,i'"
f 1. . In case the contending unions agree to a Intervention
\ consent election, the Med-Arbiter shall Double Majority Rule
3.
not issue a · formal order calling for the CERTIFICATION - First Majority: Validity of
conduct of certification election, but shall ELECTIONS Election
enter the fact of the agreement in the - Second Majority:
minutes of the hearing. Majority of Vctlid Votes
1 ':
2. The minutes of the hearing shall be Cast
\ j signed by the parties and attested to by
the Med-Arbiter. Purpose
(} 3. The employer may be required to submit - WoN the employees
the certified list of employers in the want to be represented
{J bargaining unit or where necessary, the - If yes, be represented
payrolls at the time of filing of the petition. by whom
(Sec. 2, Rule IX) 4. RUN-OFF Part and parcel of
4. The Med-Arbiter shall, immediately ELECTIONS certification elections
thereafter, forward the records of the
{).
petition to the Regional Director or Requisites:
v his/her authorized representative for the 1. A valid election
determination of the Election Officer by took place
the contending unions through raffle. because majority
5. The first pre-election conference shall be of the CBU
(J scheduled within 1 O days from the date members voted
of entry consent election agreement. 2. There are three
u (See Annex G) (Sec. 10 Rule VIII of D. 0.
40-03). '
or more choices
in the election
(including no
Effects of Consent Election union)
Where a petition for certification election is filed, 3. Not one of the
and upon the intercession of the Med-Arbiter, the choices obtained
'~.-
. ATENEO CENTRAL
BAR OPERATIONS 2019 LABOR LAW
Note: CBA constitutes the law between the to such meetings. It shall be the duty of the parties
parties when freely and voluntarily entered into. to participate fully and promptly in the conciliation
The goal of collective barqalninq is the making of meetings the NCM8 may call.
agreements that will stabilize business conditions
and fix fair standards of working conditions. (Pl 4. During the conciliation proceedings in the
Manufacturing Inc. v. Pl Manufacturing NCM8, the parties are prohibited from
Supervisors and Foremen Associations, G.R. No. doing any act which may disrupt or
167217, 2008) impede the early settlement of the
disputes; and
Coverage of CBA 5. The NCMB shall exert all efforts to settle
It is a well-settled doctrine that the benefits of a , disputes amicably and encourage the
CBA extend to the laborers and employees in the parties to submit their case to a voluntary
collective bargaining unit, including those who do arbitrator.
not belong to the chosen bargaining labor
organization. Otherwise, it would be a clear case When There Is No Collective Bargaining
of discrimination (PAL v. PAL€A, G.R. 142399
!
,2008). .. Agreement (Labor Code, Art. 262)
;
In absence of an agreement OR other voluntary
Commencement of Bargaining arrangement providing for a more expeditious
During Certification Year or within 12 months manner of collective bargaining, it shall be the
after the determination and certification of the duty of the employer AND the representatives of
employees' exclusive bargaining representative the employees to bargain collectively in
accordance with the provisions of this Code.
lJ Bargaining Procedure
The parties may agree on the barqalnlnq The duty to bargain collectively where no Cl3A
procedure. If there is a procedure agre~d upon, exists involves the performance of a mutual
the Labor Code Procedure applies obligation:
supplementary. 1. To · meet and convene · promptly and
expeditiously in good faith for the purpose
(} of negotiating an agreement with respect to
Labor Code Procedure in Collective
Bargaining (Labor Code, Art. 261) wages, hours of work, and all other terms
1 '-
t - ~I and conditions of employment including
. The following procedures shall be observed in
collective bargaining: proposals for adjusting any grievances or
(J questions arising under such agreement;
1. When a party desires to negotiate an
agreement it shall serve a written notice and
0 upon the other party with a statement of 2. To execute a contract incorporating such
its proposals the other party shall make agreements, if requested by either party.
(j reply thereto NOT later than 1 O (Labor Code, Art. 263) ·
calendar days from the receipt of such
0 notice; · Essentially, the duty to bargain in this situation
2. Should differences arise on the basis of still requires the performance of the obligation by
0 such notice and reply either party may the employer and the union to meet, convene and
request a CONFERENCE which shall confer for collective purposes,
begin NOT later than 10 calendar days
from the date of request. Limitations to the Duty to Bargain
(J 3. If the dispute is NOT settled, the NCMB The duty to bargain does not compel any party to
shall intervene upon the request of either agree to a proposal or to make any concession
0 or both parties or at its own initiative AND (Labor Code, Art. 263).
immediately call the parties to
0 CONCILIATION MEETINGS. Notes: The provisions of the Code are only
supplementary and not mandatory with regard to
() The NCM8 shall have the power to issue the process of collective bargaining. It is the
subpoenas requiring the attendance of the parties policy of the state to promote the primacy of
.--,,..
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'
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0
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0
0
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PAGE 119 OF 244
ATENEO CENTRAL
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C:ply
respective representatives to
the negotiation, schedule the NOTE: NOT
\.
number and frequency of MORE
meetings, and agree on wages, THAN
benefits and other terms and of other party 10DAYS
conditions of work for all FROM
employees covered in the RECEIPT
bargaining unit (Section 4, Rule NOTE:
XVI, Omnibus Rules
• Only if
Implementing the Labor Code)
differences arise
between the
(_)
(J
! .... "\
'~.J
(1) Mandatory Provlslons of the CBA the law itself. Such provision CANNOT be used
to assail the legality of a strike which is
Matters considered as mandatory subjects of grounded on ULP. In this situation, it is not
bargaining essential that the ULP act has, in fact, been
1. Grievance Machinery {Labor Code, Art. committed; it suffices that the striking workers are
271) shown to have acted honestly on an impression
2. Voluntary Arbitration (Labor Code, Art. that the company has· committed ULP and the
I \
274-75) surrounding circumstances could warrant such
3. No Strike-No Lockout Clause beliefin good faith (Panay Electric v. NLRC. G.R.
4. Labor Management Council (Labor Gode, No. 102672, Oct. 4, 1995); (Malayang Samahan
Art. 267) ng mga Manggagawa sa Greenfield v. Ramos,
5. Union Security Arrangements G.R. No. 113907, 2000).
6. Economic I Working Conditions
a. Wages and other types of In the case of (Nuwhrain-Dusit v. NLRC, G.R No.
compensation; including merit 163942, 2008; G.R. No. 166295), the Union's
increases; concerted violation of the Hotel's Grooming
b. Working hours and workinq days, Standard by deliberately shaving their heads
Including work shifts; which resulted in the disruption of the Hotel's
c. Vacations and holidays; operations clearly violated the CBA's "No Strike,
c d. Bonuses; No Lockout" provision which states that "The
' e. Pensions and retirement plans; Union agrees that there shall be no strikes,
· f. Seniority; walkouts, stoppage or slowdown of work, boycott,
g. Transfer; or any other form of interference and/or
(' h. Lay-offs; Interruptions with any of the normal operations of
t .• I. Employee workloads; the Hotel during the life of the Agreement". The
j. Work rules and regulations; strike arose out of a bargaining deadlock in the
k. Rent of company houses; CBA negotiations with the Hotel. The concerted
I. Family planning; action is an economic strike upon which the afore-
m. Hates of pay; quoted "no strike/work stoppage and lockout"
n. Mutual observance duties; and prohibition is squarely applicable.
o. Provision against Drug Use in
"'·'
ATENEO CENTRAL
BAR OPERATIONS 2019 LABOR LAW
. continue in full force and effect the terms and considered as an approximation of a collective
conditions of the existing agreement. (Labor Code, bargaining agreement which would otherwise
Art. 253; FAMIT v. CA, G.R. No. 164060, 2007) have been entered into by the parties. The terms
the 6-month period following the rights of the employees. The most · that the
expiration of the last day of CBA. transferee may do, for reasons of public policy and
3. In the absence of a CBA DOLE social justice, is to give preference to the qualified
Secretary's determination of th~ date of · separated employees in the filling of vacancies in
retroactivit.y as part of his discretionary the facilities of the purchaser. (Manlimos v. NLRC,
powers over·arbitral awards shall control.
G.R. No. 113337, 1995)
On the other hand, when the CBA is only part of
(2) GRIEVANCE MACHINERY
an arbitral award(,)( ... ) it may be made retroactive
to the date of expiration of the previous
Establishment of a grievance machinery
agreement. Therefore, in the absence of a soecitic
The parties to a CBA shall include therein
provision of law prohibiting retroactivity ~f the
provisions that Will ensure the mutual observance
effectivity of arbitral awards issued by the
of its terms and conditions.
Secretary ot Labor pursuant to Art. 263(!1) [now.
Art. 278 (g)J, the latter is deemed vested with
They shall establish a machinery for the
plenary and discretionary powers to determine the
adjustment and resolution of grievances arising
effectivity thereof. (Manila Central Line Corp. v.
from the interpretation or implementation of their
Manila Central Line Free Workers Union, G.R. No.
CBA AND those arising from the interpretation or
109383, 1998)
enforcement of company personnel policies
(Labor Code, Art. 273)
;( l. CBA and 3rd Party Applicability
The rule is that unless expressly assumed; labor
Establishment of Grievance Machinery
contracts such as employnient contracts and
(Omnibus Rule Implementing the Labor Code,
CBAs are not enforceable against a transferee of
Rule XIX, Sec. 1)
an ei:itE3rprise, labor contracts being in personam,
1. By provision in the CBA
is bmeing only between th~ parties. A labor
2. In the absence of applicable provision in the
contraet merely creates an action in personam and
Cl3A, a Grievance committee shall be created
does not create any real right which should be
within 10 days from the signing of the CBA.
{} respected by third parties.
Grievance committee shall be composed of at
As a general rule, there is no law requiring a bona
least 2 representatives each from the members of
fide purchaser of the assets of an on-going
the bargaining unit, designated by the union and
r ' concern to absorb in its employ the employees of
v the latter. However, although the purchaser of the
the employer, unless otherwise agreed upon by
the parties.
assets or enterprise is not legally bound to absorb
0. in its employ the employees of the seller of such
"Grievance" or "Grieveable Issue"
assets or enterprise, the parties are liable to the
0 employees if the transaction between the parties
1. Interpretation or implementation of the CBA
2. Interpretation or enforcement of company
is colored or clothed with bad faith. (Sundowner
personnel policies
Dev't. Corp. v. Drilon, G.R. No. 82341, 1989)
3. Any claim by either party that the other party
is violating any provisions of the CBA or
General Rule: An innocent transferee of a
company personnel policies.
business establishment has no. liability to the
employees of the transferor to continue employing
In order to be grieveable, the violations of the
u them. Nor is the transferee liable for past unfair
labor practices of the previous owner. CBA should be ordinary and not gross in
character; otherwise, they shall be considered as
0 Exception: When the liability therefore is , unfair labor practice (ULP).
assumed by the new employer under the contract
of sale, or when liability arises because of the new
Who are Liable when ULP is Committed by Even as the law is solicitous of the welfare of the
Other than a Natural Person employees, it also recognizes employer's exercise
(J The penalty shall be imposed upon the guilty of management prerogatives. As long as the
company's exercise of judgment is in good faith to
o officers of a corporation, partnership, association
or entity. Art. 260 states that if the ULP is advance its interest and not for the purpose of
committed by a labor organization, the parties defeating or circumventing the rights of employees
() liable are the officers, members of governing under the laws or valid aqreernents, such exercise
will be upbeld.f]] (Central Azucarera De Bais v.
u boards, representatives or agents or members of
labor associations or organizations who have Heirs of Apostol, G.R. No. 215314, [March 14,
actually participated in, authorized or ratified such 2018])
0 acts. Art. 259 states that if ULP is committed by
Where the vacation leave is without pay, which the
c the employer corporation, partnership,
association, Its officers or agents who have employer requires employees to take in view of the
economic crisis, is neither malicious, oppressive
actually participated In, authorized or ratified ULP
() shall be held criminally liable. nor vindictive, ULP is not committed.{Phi/ippine
Graphic Arts, Inc. v. NLRC, et al., GR No. L-
0 80737, 1988)
judgment, all aspects of employment, including that they were dismissed. (l=nriquez v. Zamora,
hiring, work assignments, working methods, G.R. No. 5138~ 1986).
time, place, and manner of work, processes to
be followed, supervision of workers. working There can be no discriminationcommitted by the
regulations, transfer of employees, work employer as the situauor, of the union employees
supervision, lay-off of workers, and discipline, is different from that of the nonunion employees.
dismissal and recall of workers. The exercise of Discriminationper se is not unlawful.There can be
\
management prerogative, however, Is not no discriminationwherethe employeesconcerned
are not similarly situated. The grant by the
absolute as it must be exercised in good faith
employer of profit-sharing benefits to the
and with due regard to the rights of labor. (Royal
employeesoutside the bargainingunit falls under
Plant Workers Union v. Coca-Cola Bottlers
the ambitof its managerialprerogative. (Wise and
Philippines, inc, G.R. No. 198783, 2013) Co. v. Employees Union, G.R. No. 87672, 1989) ·
3. Qontractingout \.I
Acceptanceof a mass voluntaryresignationis not
ULP. In a PhilippineAirlines case, the courts said 4. Qompanyunionism
that the pilots' protest retirement/resignationwas 5. Qiscrimination for or against union
not a concerted· activity which was protected by membership
law. They did not assume the status of strikers. 6. Qiscriminationbecause of testimony ()
They cannot, therefore, validly claim that the 7. Yiolation of duty to bargain ' ..
company committed unfair labor practice. When 8. E.aid negotiation lJ
the pilots voluntarilyterminated their employment 9. Yiolation of CBA
relationshipwith the company, they cannot claim
(}
.s
PAGE 126 OF 244
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FIRST ULP: INTERFERENCE (ART. 259 [A]) Totality of Conduct Doctrine: The culpability of
To interfere with, restrain or coerce employees employer's remarks is to be evaluated on the basis
in the exercise of their right to self-organization of their implication, against the background of and
in conjunction with collateral circumstances.
Example: Interference with employee
organizational rights were found where the Under this doctrine, an expression which might be
superintendent of the employer threatened the permissibly uttered by one employer, might be
employees with cutting their pay, increasing rent deemed improper when spoken by a more hostile
of the company houses, or dosing the plant if they employer, because of the circumstances under
supported the union and where the employer which they were uttered, the history of the
encouraged the employees to siqn a petition -, particular employer's labor relations or anti- union
repudiating the union. bias or because of their connection with an
established collateral plan of coercion or
The questioned acts of petitioners, namely: 1) interference, and consequently actionable as an
sponsoring a field trip to Zambales for its unfair labor practice. (Insular Life Assurance Co.,
! employees, to the exclusion of union members, Ltd., Employees Association-A TU, et al. v. Insular
Life Assurance Co., Ltd., G.R L-25291, 1971).
\.
before the scheduled certification election; 2) the
active campaign by the sales officer of petitioners
against the union prevailing as a bargaining agent ULP Even Before Union is Reqistered
( ' · during the field trip; 3) escorting its employees Under Art.259 (a) of the Labor Code of the
'· after the field trip to the polling center; 4) the Philippines, "to interfere with, restrain, or coerce
-
{
PAGE 127 OF 244
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Where the sale of a business enterprise is privily and are strangers to each other.
attended with bad faith, there is no need to
()
consider· the applicability of the rule that labor As earlier stated, it was mandated that Fiiport shall
contracts being in personam are not enforceable -, absorb all labor force and necessary personnel 0
against the transferee. The latter is in the position complement of the merging operators, thus,
of tort-feasor, having been a party likewise clea~ly indicating the intention to continue the
responsible for the damage inflicted on the employer - employee relationships of the
lJ
' ,.___ ,;,~:
individual companies with its employees through reduce the cost, even if the employer's estimate of
Filport. This is true where the transferee was found his cost is based on a projected increase
to be merely an alter ego of the different merging attributable to unionization.
firms, as in this case. Thus, Filport has the
obligation not only to absorb the workers of the It is to be emphasized that contracting out of
dissolved companies but also to include the length servlcesis not illegal per se. It is an exorcise of
· of service earned by the absorbed employees with business judgment or management prerogative.
r: \ their former employees as well. (Filipinas Port Absent proof that the management acted in
,
Services v. NLRC, G.R. No.97237, 1%1) malicious or arbitrary manner, the Court will not
interefere with the exercise of judgment by an
SECOND ULP: YELLOW DOG (ART. 259 [81) employer. In this case, bad faith cannot be
To require as a condition of employment that a attributed to BPI because its actions were
person or an employee shall. not Join a labor authorized by BSP Circular No. 1388, Series of
'\ organization or shall withdraw from one to which 1993 issued by the Monetary Bank of BSP. (8PI
he belongs Employees Union-Davao City-FUBU v. BPI, G.R.
No. 174912, 2013)
Yellow Dog Contract: A promise exacted from
workers as a condition of employment that they Runaway shop: An industrial plant moved by its
are not to belong to, or attempt to foster, a union owners from one location to another to escape
[ during their period of employment (Azucena Vols. union labor regulations or state laws or to
\.
II-A and 11-B, 9th ed., 2016, p. 329). discriminate against employees at the old plant
r=. because of their union activities.
v Usual Provisions under Yellow Dog Contract
1. A representation by the employee that he
' Resorting to runaway shop is ULP.
{ 9!t
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'
FOURTH ULP: COMPANY DOMINATION OF had ,oresented demands for the improvement of
l)NION (ART. 259 [DJ) the working conditions despite its alleged
To initiate, dominate, assist or otherwise interfere retrenchment policy; and that, after dismissal of
with the formation or administration of any labor the aforesaid officers of the rival labor union, the
organization, including the giving of financial or company engages the services of new laborers.
other support to it or its organizers or supporters (Oceanic Air Products, Inc. v. CIR, GR No. L-
18704, 1963)
Manifestations of Domination of a Labor Union
1. Initiation of company union idea. Prejudicial Question that Bars Holding of
Certificate Election
This may further occur in three styles: While generally, the pendency of ULP case filed
a. outright formation by the employer or against a labor organization participating in the
his representatives certification election does not stay the holding
b. employee formation on outright thereof (Barrera v. CIR, G.R. No. L-32853, 1981).
demand or influence by employer
c. managerially motivated formation by However, the pendency of a formal charge of
employees company domination against one of the unions
which is participating in the certification election is
2. Financial support to the union. a prejudicial question that bars the holding thereof
until its final resolution. (Standard Cigarette v. CIR,
By defraying the union expenses or paying the G.R.No. L-9908, 1957).
attorney's fees of the lawyer who drafted the
constitution and by ..... laws of the union. Suspension of CBA
In the case of Rivera v. Espiritu, the CBA between 'l
3. Employer encourngernent and the management (PAL) And the bargaining union,
assistance, PALEA, with the expiry date bf Sep. 30, 2000, was \_j.
mutually agreed by the parties to be suspended
Immediately granting the union exclusive until 2008, to prevent the closure of PAL because .( -~-
recognition as a bargaining agent without of severe financial losses. It was accordingly
determining whether the union represents the
stipulated in the agreement of suspension that
majority of employees
PAL shall continue to recopnlze PALEA as the
4. Supervisory assistance. duly certified bargaining agent of the rank and file
ground employees of the company. The Supreme
This takes the form of soliciting membership, Court here held that, contrary to the argument of
permitting union activities durihg workinq time the petitioners that the suspension installed
or coercing employees to join the union by PALEA as company union, the suspension
threats of dismissal or demotion. (Philippine agreement is a valid exercise of the freedom to
American Cigar & Cigaretta Factory Workers contract and under the principle of inviolability of
Union v. Philippine American Cigar &
f,_.,. ~
contracts under the Constitution, contract be
Cigarette Mfg. Co., G.R. No. L-18364, 1963) upheld. (GR. No. 135547, 2002).
0
A labor union is company - dominated where it
FIFTH ULP: DISCRIMINATION (ART. 259 [E])
appears that key officials of the company have To discriminate in regard to wages, hours of work
been forcing employees belonging to rival labor
and other terms and conditions of employment in
union to join the former under pain of dismissal order to encourage or discourage membership in
should they refuse to do so; that key officials of the
any labor organization. (Labor Code, Art. 259[e])
company, as well as its legal counsel, have ()
attended the election of officers of· the former
There is discrimination only when one is denied
union; that officers and members of the rival union
privU'eges which are granted to others under
were dismissed · allegedly pursuant to a
similar conditions and circumstances (Caltex
retrenchment policy of the company, after they
Philippines, Inc. v. Philippine Labor Organization, branch. (Manila Hotel Company v. Pines
G.R. No. L-5206, 1953). Thus, it must be Hotel Employees Association (CUGCO)
established that: ahcl CIR, G.R. No. L-30818, 1972)
1. No reasonable distinction or classification
that can be obtained between persons Discrimination in Layoff or Dismissal
belonging to tne same class Even where business conditions justified a layoff
2. Persons belonging to the same class have of employees, unfair labor practices in the form of
not been treated alike (Wise and Co., Inc. discriminatory dismissal were found where only
v. Wise and Co., Inc Employees Union, unionists were permanently dismissed while non -
G.R. No. 87672, 1989). unionists were not.
There can be no discrimination if the employees
Test of Discrimination
\- are not similarly situated. (Great Pacific Life
To determine whether or not a discharge is
Employees Union v. GreatPacific Life Assurance
Corporation, G.R. No. 126717, ·/999). discriminatory, it is necessary that the underlying
reason for the discharge be established.
Note: To constitute an unfair labor practice, the
discrimination committed by the employer must be The fact that a lawful cause for discharge is
in regard to the hire or tenure of employment or available is not a defense where the employee is
any term or condition of employment to encourage actually discharged because of his union activities.
or discourage membership in any labor If the discharge is actually motivated by a lawful
organization. The exaction t.y the Company, from reason, the fact that the employee is engaged in
strikers returning to work, of a promise not to union activities at the time will not lie against the
() destroy company property and not to commit acts employer and prevent him from the exercise of his .¥,•• -.··
of reprisal against the Union members who did not business judgmeht to discharge an employee for
participate in the strike, cannot be considered as cause. {NLRB v, Ace Comb Co. 342 F. 2 841, as
intended to encourage or discourage Union cited in Cainta Catholic School v. CCSEU, · G.R.
membership,. Taking the circumstances · No. 151021, 2006).
surrounding the prescribing of that condition, the
requirement by the Company is actually an act of An inference that the discharge of an employee
self - preservation and designed to inure the was motivated by his union activity must be based
maintenance of peace and order in the Company upon evidence, direct or circumstantial, not upon
premises. (Pagkakaisang ltinataguyod ng mga mere suspicion. (NLRB v. South Rambler Co., 324
Manggagawasa Ang Tibay, et al., G.R. No. L· F 2d 447).
22273, 1967)
() , Discharge due to union activity, a question of
Discrimination In Bonus Allocation or Salary fact
(J. Adjustments The question of whether an employee was
There is unfair and unjust discrimination in discharged because of his union activities is
t
t._ s;- granting of salary adjustments where evidence essentially a question of fact as to which the
shows that: findings of the court of Industrial Relations are
() 1. The management paid the employees of conclusive and binding if supported by substantial
the unionized branch; evidence considering the record as a whole.
G 2. Where salary adjustments were granted (Philippine Metal Foundries, Inc., v. CIR, G.R. No.
to employees of one of its non - unionized L-34948, 1979)
u branches although it was losing in its
Valid Discrimination: Union Security Clause
operations; and
0 3. The total salary adjustments given every
ten of its unionized employees would not Union Security
even equal tho salary adju stments given Union security is a generic term which is applied
one employee in the non - unionized to and comprehends dosed shop, union shop,
~-'
PAGE 131 OF 244
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maintenance of membership or any other form of The law has allowed stipulations for 'union shop'
agreement which imposes upon employees the and 'closed shop' as means of encouraging
obligation to acquire or retain union membership workers to join and support the union of their
as a condition affecting employment. It is indeed choice in the protection of their rights and interests
compulsory union membership whose objective is vis-a-vis the employer. (Del Monte Philippines v.
to assure continued existence of the union. In a Salvidar, G.R. No. 158620, 2006)
sense, there is discrimination when certain
employees are obliged to joiri a particular union. TYPES OF UNIONS SECURITY CLAUSES
But it is discrimination favnring unionism; it is a 1. CLOSED SHOP
valid kind of discrimination. (Azucena, Everyone's Only union members can be hired by the company
Labor Code, 2015 ed.) ' and they must remain as union members to retain
employment in the company.
The employer is not guilty of unfair labor practice
if he merely complies in good faith with the request Employees not covered by the closed shop
of the certified union for the dismissal of provision
employees expelled from the union pursuantto the 1. Any employee who at the time the closed
union security clause in the collective bargaining ,.. shop agreement takes effect is a bona
agreement. (Sor;ano v, Atienza; G.R. No. 68619, fide member of a religious oryanization
1989) which prohibits its members from joining
labor unions of religious grounds.
Union security is any form of agreement which 2. Employees already in service and already
imposes upon employees the obligation to acquire members of.a labor union or unions other
or retain union membership as a condition than the majority union at the time the
affecting employment. (GMC v. Casio, G.R. No. closed - shop agreement took effect.
149552, 2010) 3. Confidential employees who are excluded
from the rank and file bargaining unit.
It is true that disaffiliation from a labor union is not 4. Employees excluded from the closed -
open to legal objection. It is implicit in the freedom shop by express terms of the agreement.
of association ordained by the Constitution. B1,1t a . (BPI v. BPI Employees Union-Deveo
closed shop is a valid form of union security, and Chapter, G.R. No 164301, 2010).
such provision in a collective bargaining
agreement is not a restriction of the right of In the absence of a manifest intent to the contrary,
freedom of association guaranteed by the closed - shop provisions in a collective bargaining
Constitution. xx x (Employees), although entitled agreement apply only to persons to be hired or to
to disaffiliation from their union to form a new employees who are not yet members of any labor
()
organization of their own, must, however, suffer organization and that said provisions of the
the consequences of their separation from the agreement are not applicable to those already in
union under the security clause of the CBA. (Villar the service at the time of the execution.
v. Inciong, G.R. No. L-50283-84, 1983)
To hold that the employees in a company who are
Statutory Basis and Rationale members of a minority union may be compelled to
Nothing in this Code or in any other law shall stop disaffiliate from their union and join the majority or
the parties from requiring membership in a contracting union, would render nugatory the right
recognized collective bargaining agent as a of all employees to self- organization and to form,
condition for employment, except those join or assist labor organizations of their own 0
employees who are already members of another . choosing, a right guaranteed by the Industrial
union at the time of the signing of the collective Peace Act as well as by the Constitution. 0
bargaining agreement. (Labor Code, Art. 259[e]) (Kapisanan ng mga Manggagawa ng Alak
(NAFLU) v. Hamilton Distellery Co., et. al., G.R. 0
No. L-18112, 1962)
(J
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2. The union is requesting for the dismissal of an employee. This holds true even if
enforcement of the union security the dismissal is predicated oh particular causes for
provision in the CBA dismissal established not by the Labor Code, but
3. There is sufficient evidence to support the by the CBA. Further, in order that any CBA-
union's decision to expel the employee mandated dismissal may receive the warrant of
from the union; and the courts and labor tribunals, the causes for
4. The employer must comply with due dismissal as provided for in the CBA must satisfy
process: to the evidentiary threshold of the NLRC and the
a. Notify the employees that their courts. (Del Monte v. Saldivar, G.R. No. 158620,
dismissal is being requested by the 2006)
union;
b. The employees' explanations are Obligations and Liabilities
heard (Alabang Country Club v. Where the employer dismissed his employees in
NLRC, G.R. No 170287, 2008) the belief in good faith that such dismissal was -
·'
required by the (union security provision) of the
Employer's Responsibillty: To conduct collective bargaining agreementwith the union, he
separate investigation and hearing may not be ordered to pay back compensations t1J
While company may validly dismiss the such employees although their dismissal is found
employees expelled under the union security upon to be illegal. (Confederated Sons of Labor v.
the recommendation by the union. this dismissal Aneken Lumber Co., GR. No. L-12503, 1960)
should not be done hastily and summarily thereby
eroding the employees' right to due process, self- As dictated by fairness, [ .. ) the union shall be
organization and security of tenure. The ' liable to pay their backwages. This is because
enforcement of union security clauses is management would not have taken the action it did
authorized by law provided such enforcement Is had :t not been for the insistence of the labor union
not characterized by arbitrariness, and always with seeking to give effect to its interpretation of a
- .. 7
due process. Even if there are valid grounds to closed shop provision. (Guijarno v. CIR, GR Nos.
expel the union officers, due process requires that L-28791-93, 1973)
these union officers be. accorded a separate .
hearing by respondent company. (Malayang
Samahan ng Manggagawa sa M. Greenfield v.
SIXTH ULP: DISCRIMINATION BECAUSE OF
TESTIMONY (ART. 259 [Fl)
.' ~
l ··.,
.
'' ,'.
and bargain directly with individual employees.
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SECOND FORM: EVADING THE MANDATORY "reasonable effort of good faith bargaining."
SUBJECTS OF BARGAINING (Samahan Ng Manggagawa sa Top Form
Where the subject of the dispute is a mandatory Manufacturing-United Workers of the Philippines
bargaining subject, either party may bargain to v. NLRC, G.R. No. 13856, 1998)
an impasse as long as he bargains in good faith.
A company's refusal to make counter-proposal, if
Where the subject is non-mandatory, a party may considered in relation to the entire bargaining
not insist on bargaining to the point of impasse. His process, may indicate bad faith and this is
insistence may be construed as evasion of the specially true where the Union's request for a
duty to bargain. counter-proposal is left unanswered." Considering
the facts of that case, the Court concluded that the
THIRD FORM: BARGAINING IN BAD FAITH company was "unwiilinq to negotiate and reach an
agreement with the Union." (Kiok Loy v. NLRC,
Determination of Good Faith: Question ofFact GR. 54334, 1986).
The question whether or not a party has met his
statutory duty to bargain in good faith typically Inflexible Demands and Strike Amid
turns on the facts of the individual case. There is Negotiation - Bad Faith Bargaining
no per se test of gooc faith in bargaining. Good It is also evident from the records that the charge
faith or bad faith is an inference to be drawn from of bargaining in bad faith imputed to the
.' ·'l:,
the facts. The question of good faith may be a respondent companies, is hardly credible. In fact,
question of credibility. The effect of an employer's such charge is valid as oniy against the
or a union's actions individually is not the test of
good-faith bargaining, but the Impact of all such
complainant LAKAS. The parties had a total of 5
conferences for purposes of collective bargaining.
-
\.. ...
•.
occasions or actions, considered as a whole, and It is worth considering that the first strike of Sept.
·.. i
the inferences fairly drawn therefrom collectively 4 1967 was staged less than a week after the 4th
may offer a basis for the finding of the NLRC (The CBA conference and without any benefit of any
Hong Kong and Shanghai Bankin9 Corporation previous strike notice. In this connection, it must
Employees Union v. NLRC, G.R. 125038, 1997). be stated that the notice of strike filed on June 13, ·~
1967 could not have been the strike notice for the
An employer's steadfast insistence to exclude a first strike because it was already withdrawn on
particular substantive provision from the union's July 14, 1967. Thus, from these stated facts can
proposal is no different from a bargaining be seen that the first strike was held while the
representatives perseverance to include one that parties were in the process of negotiating. The
they deem of absolute necessity. (Union of Filipro company's refusal to accede to the demands of
Employees v. Nestle-Philippines, G.R. Nos. ' LAKAS appears to be justified since there is no
158930-31, 2008) showing that these companies were in the same
stat» of financial and economic affairs. There is
Bargaining In Bad Faith Must Occur While reason to believe that the first strike was staged
Bargaining is in Process only for the purpose of compelling the respondent
The charge of bad faith should be raised while companies to accede to the inflexible demands of ·
the bargaining is in progress. With the execution the complainant LAKAS. (Lakas ng
of the CBA, bad faith can no longer be imputed Manggagawc:mg Makabayan v. Marcelo
upon any of the parties thereto. All provisions in Enterprises, G.R. Nos. L-38258 & 38260, 1982)
the CBA are supposed to have been jointly and
voluntarily incorporated therein by the parties. This Other Examples of Bad Faith Bargaining
is not a case where private respondent exhibited
an indifferent attitude towards collective Surface Bargaining: A sophisticated pretense in
bargaining because the negotiations were not the the form of apparent bargaining does not satisfy .r···!J:
unilateral activity of petitioner union. The CBA Is the statutory duty to bargain. The duty is not v
good enough that private respondent exerted discharged by merely meeting together or simply · / ~
'.J.
manifesting a willingness to talk. An employer's and decide to bargain with a different group if there
proposals which could not be offered with any is no legitimate reason for doing so and without
reasonable expectation that they would be first following the proper procedure. (Employees'
accepted by the union constitute surface Union of Bayer v. Bayer Phil., G.R. No. 162943,
bargaining. (Standard Chartered Bank l=mployees 2010)
I ' Union (NUBE) v. Confessor, G.R. No 114974,
2004) EIGHTH ULP: PAID NEGOTIATION (ART. 259
r· '
[HJ)
Blue Sky Bargaining: The making of To pay negotiation or attorney's fees to the union
exaggerated or unreasonable proposals in or its officers or agents as part of the settlement of
collective bargaining. (Standard Chartered Bank , any issue in collective bargaining or any other
Employees Umon. (NUBE) v. Confessor, G.R. No. dispute
114974, 2004)
Note: Self - organization and collective bargaining
Boulwarism - occurs: are treasured rights of the workers. The law
1. When the employer directly bargair,s with zealously shields them from corruption. It is a
the employee disregarding the union: punishable act of ULP for the employer to pay the
2. The aim was to deal With the union union or any of its officers or agents any
through the employees, rather than with negotiation fee or attorney's fees as part of the
( '. the employees through the union; settlement in collective bargaining or any labor
3. Employer submits its proposals and dispute. To do so is not only unlawful. It is ethically
· adopts a "take it or leave it" stand. (NLRB reprehensible. Correspondingly, Art. 260 prohibits
v. General Election Co., 4·18 F. 2d 736 union officers or agents from asking for or
(1970) accepting such payments. Such act, furthermore,
is a ground for cancellation of union registration
FOURTH FORM: GROSS VIOLATION OF THE under Art. 247(9). (Azucena Vols. II-A and 11-B, 9th
'! •.
·- . .,,.- CBA ed., 2016, p. 362).
,· :.
{ .j ULP exists in this form when the complaint shows NINTH ULP: VIOLATION OF THE CBA (ART.
{ ' prime facie the concurrence of two things: 259 [I])
\; 1. There !s a gross violation of the CSA;
and See above discussion on Fourth Form of ULP in
(.} 2. The violation pertains to the economic Bargaining.
provisions of the CBA (Silva v. NLRC,
(} G.R. No. 110226, 1997) Note: Under Art. 259, simple violation of the
collective bargaining agreement is no longer
(J Gross: Refers to a flagrant and/or malicious treated as unfair labor practice but as mere
refusal by a party to comply with the [economic grievance, which should be processed through the
provisions] (FASAP v. PAL, G.R. No. 178083, grievance machinery in the CSA. It becomes an
r": 2008). unfair labor practice only when It is gross in nature,
v Total Disregard of CBA Constitut1~s ULP which means that there is flagrant and/or
I
Reference to the economic provisions of the CBA malicious refusal to comply with the economic
is not a necessary element of ULP where the provisions of such agreement by either the
employer in effect totally disregarded the CBA. employer or the union.
() (Employees' Union of Bayer v. Bayer Phil., G.R.
No. 162943, 2010) In the case of Master Union Labor Union v. NLRC,
(.) (GR. No. 92009, 1993), Master Iron Works
An employer should not be allowed to rescind Construction Corporation's insistence that the
unilaterally its CBA with the duly certified hiring of casual employees is a management
bargaining agent it had previously contractedwith, prerogative betrays its attempt to coat with legality
l}
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the illicit curtailment of its employees' rightto work G.R.
Gochangco Workers Union v. NLRC, No. L-
under the terms of the contract of employment and 67153, 1988)
to a fair implementation of the CBA.
However: In another decision the SC approved a
Relief In ULP Cases compromise .aqreernent finally settling an illegal
1. Cease and Desist Order strike case. The aqreernent -in that case was
To support a cease and desist order, the voluntarily entered into and represented a
record must show that the restrained reasonable settlement, thus binding. (see
misconduct was an issue in the case; that Reformist Union of RB. Liner v. NLRC, G.R. No.
there was a finding of fact of said 120482, 1£197)
misconduct and such finding was
supported by evidence. ULP in a given period should be included in a
single charge
The Court is not authorized to issue blank When a labor union accuses an employer of acts
cease and desist orders, but must confine of unfair labor practice allegedly committed during
its injunction orders to specific act or acts a given period of time, the charges should include
which are related to past misconduct. all acts of unfair labor practice committed against
(Azucena Vols. ll~A and 11-B, 9th ed., any and all members of the union during that
2016, p. 363). period. The union should not, upon the dismissal
of the charges first preferred, be allowed to split its
2. Affirmative Order cause of action and harass the employer with
In addition to a cease and desist order, the subsequent charges, based upon acts committed
court may issue an affirmative order to during the same period of time. (Dione/a, et. al. v.
reinstate the said employee with back pay CIR et. el., G.R. No. L-'/8334, 1963)
from the date of the discrimination.
3. ULP BY LABOR ORGANIZATIONS
The order may usually direct the full
reinstatement of the discharged Kinds of llLP by Labor Organizations (Labor (}
\_,_,.,
employees to their substantially code, Art. 260) ·
equivalent position without prejudice to 1. To restrain or coerce employees in the· J ~
their seniority and other rights and exercise of their right to self - i. r
privileges. organization.
2. To attempt to or cause an employer to
If other laborers have been hired, the discriminate against an employee to
affirmative order shall direct the whom membership in the labor Cl
respondent to dismiss these hired organization was denied or to terminate
laborers to make· room for the returning an employee on any ground other than the
employee.(Azucena Vols. II-A and 11-B, usual terms and conditions under which
I.._J''t
9th ed., 2016, p. 363). membership or continuation · of
membership is made available to other
3. Court may impose the union's proposed members.
CBA on the employer. (Kiok Loy v. NLRC, 3. To refuse to bargain collectively with the
G.R. No. L-54334, 1986) employer, if it is the representative of the
employee.
4. Strike by union members (l.etx»code, Art. 4. To attempt to or cause the employer to (J
278) pay money or other things of value, in the
' nature of an exaction, for services which ()
ULP is not subject to compromise are not performed or not to be performed.
ULP cases are not, in view of the public interest This includes fees for union negotiations.
involved, subject to compromise. (CLLC 1=.G.
u.
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UNION IS NOT ULP (ART .. 260 [A]) Three (3) Kinds of Discrimination that the
Union may commit under Art. 260(b)
A labor organization commits ULP when it 1. Act of the union to cause or attempt to
restrains or coerces employees in their right to self cause an employer to discriminate against
- organization: an employee, in general, irrespective of ·
whether he/she is a member or non-
A labor organization may interfere in the member of the union
\ ' employees' right to self - organization as long as 2. Discriminatory act of the union against an
the interference does not amount to restraint or employee "with respect to whom
coercion. membersgip in such organization has
been denied."
Union cannot coerce employees to join a stri!<e 3. Discriminatory act of the union aqainst an
employee whose membership therein has
( \ Similarly, a violation is committed when a union
been terminated based "on any ground
\ threatens the employees with bodily harm in order other than usual terms and conditions
to force them to strike. under which membership or continuation
of membership is made available to other
A union violates the law when, in order to restrain members."
or coerce non-strikers from working during the
strike, it: Arbitrary use of union security clause ·
(J 1. Assaults or threatens to assault them The broad rule is that the union has the right to
2. Threatens them with the loss of their jobs determine its membership and to prescribe the
3. Blocks their ingress to and egress from conditions for the acquisition and retention thereof.
the plant Consequently, admission to membership may not
'I\. '·
.
i 4. Damages non-strikers' automobiles or be compelled.
forces them off the highway
Cl 5. Physically preventing them from working This rule, however, is qualified in the case of labor
6. Sabotages the employer's property in unions holding a monopoly in the supply of labor,
their presence, thereby · creating an either in a given locality, or as regards a particular
atmosphere of fear or violence employer by reason of a closed - shop or similar
() 7. Demonstrates loudly in front of a non- agreements. In such case, qualified applicants
strikers' residence wlth signs and shouts may not be barred by unreasonable rules.
accusing the non-striker of "scabbing"
8. Holding the nonstriker up to ridicule Salunga v. CIR (G.R. No. L-22456, 1967)
(; 9. Seeking public condemnation of the non- An employee resigned from the union. The union
striker requested the company to enforce the closed,
u Note: Interference, which is ULP with employers,
shop provision of the CBA. Company deferred
action and informed the employee of the possible
u is not ULP when done by a labor organization effects of his resignation from the union. Employee
because it is part and parcel of the duties and tried to revoke his resignation from the union but
0 functions of a labor organization. this is denied by the union. Company finally
granted the request of the union and terminated
A labor organization may interfere in employees' the employee. Employee complained of illegal
right to self organization as long as the dismissal.
l \
'\../
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To contract out services or functions being To cause or attempt to cause an employer to pay
performed by union members when such will or deliver or agree to pay or deliver ar.y money or
interfere with, restrain or coerce employees in the other things bf value, in the nature of an exaction,
'\. . exercise of their rights to self-organization for services which are not performed or not to be
performed including demand tor fee for union
:. .
t.J negotiations (Featherbedding)
.
!
.
c
•·
,;·
(_J
To pay negotiation or attorney's fees to the union
,. or its officers or agents as part of the settlement of
v any issue in collective bargaining or any other
dispute
· NOTE: Provided that only the officers, members of governing boards, representatives or agents or
o members of labor associations or orqanlzatlon who have actually participated in, authorized or ratified unfair
labor practices shall be held criminally liable.
o
·,..
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of strike and without the majority volition or refuse openly or secretly to the
approval of the recognized bargaining employer's damage, to do other work. They work
agent; on their own terms. But whether or not the
7. SIT DOWN STRIKE - one where the workers' activity in questiorr--their concerted
workers stop working but do not leave adoption of a different work schedule 1ha11 that
their place. prescribed by management and adhered to for
several years-constitutes a slowdown need not
Strike-breaker: Any person who obstructs, be gone into. The activity is contrary to RA6727
impedes, or interferes with by force, violence, and the parties' CBA (/law at Buklod v. NLRC,
coercion, threats, or intimidation any peaceful G.R. No. 91980, June 27, 1991)
picketing affecting wages, hours or conditions of
work or in the exercise of the right of self· Non-Strikeable Issues (NCMB, Manual of
organization or collective bargaining (Labor code, Procedures in Settlement and Disposition of
Art. 219(r)) · Conciliation and Preventive Mediation Cases,
Rule VI, Sec. 6(c)(i); see University of San
Strike Area: · Establishments, warehouses, Agustin Employees' Union-FFW v, CA, G.R.
depots, plants or offices, including the sites or No. 169632, 2006). .
) .
Unlike other forms of strike, the: employees Who can declare a strike or lockout
involved In a slowdown do not walk out of their 1. Any certified or duly recognized
jobs to hurt the company. They need only to stop bargaining representative on the grounds
work or reduce the rate of their work while of bargaining deadlock and ULP;
generally remaining in their assiqned post.ll] 2. Employer; or
(Fadriquelan v. Monterey Foods Corp.. G.R. Nos. 3. In the absence of #1, any legitimate labor
t) 178409 & 178434, 2011) organization in the establishment (/RR
Labor Code, Sec. 2, Rule XII, Book VJ
l} Note: Such slowdown is generally condemned as -,
inherently illicit and unjustifiable, because while 1) VALID VEF!SUS ILLEGAL STRIKES
the employees continue to work and remain at ·,
their positions and accept the wages due them, An Illegal Strike is one which: PPP-MIA
they at the same time select what part of their
allocated task they care to perform of their own
;
~ ,'. .
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( 1
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'
2. COOLING-OFF PERIOD vote, and the date, place, and ·time thereof, the
NCIVIB cannot determine for itself whether to
supervise a strike vote meeting or not and insure
its peaceful and regular conduct. The failure of a
union to comply with the requirement of the giving
of notice to the NCMB at least 24 hours prior to
NCMB, upon receipt of the notice of strike and the holding of a strike vote meeting will render the
during the cooling-off period, mediates and subsequent strike staged by the union illegal.
conciliates the parties. ihe Regional branch of (Capitol Medical Center Inc. v. National Labor
the Board may, upon agreement of the parties, Relations Commission, G.R. No. 147080, 2005)
treat a notice as a preventive mediation case. It
shall also encourage the parties to submit the
NUMBER OF VOTES REQUIRED for stike/
dispute to voluntary arbitration.
lockout: Majority of the . total UNION ,
In cases of ULP strike, the cooling-otr period need MEMBERSHIP OR OF THE DIRECTORS OR
· not be observed when union-bustlnq is present. PARTNERS, as the case may be.
(Labor code, Arl. 278)
Strike or lockout vote
Elements of Union Busting: (Labor code, Art. 1. Approved by majority of total union
27B(c)) membership or by majority of the BOD or
1. The union officers are being dismissed partners
2. .Those officers are duly elected in 2. By a secret ballot
(J The requirement of giving notice of the conduct of If the union Is being busted, there is no need to
a strike vote to the NCfv113 at least 24 hours before observe the cooling-off period but the unions
tJ the meeting for the said purpose is designed to must still file a notice of strike, take a strike vote.
and submit the strike vote report. What is being
(a) inform the NCMA of the intent of the union to
conduct a strike vote; excused in case of union busting is only the
(b) give the NCMB ample time to decide on observance of the 15-day cooling-off period.)
whether or not there is a need to supervise the (Sec. 7, o.o. 40-G-03, 2010)
conduct of the strike vote to prevent any acts of
violence and/or irregularities attendant thereto; No strike or lockout can be declared while a case
and is pending involving the same grounds for strike
l} (c) should the NCMB decide on its own initiative
or upon the request of an interested party
or lockout. (Bulletin v. Sanchez, G.R. No. 7 4425,
1986)
u including the employer, to supervise the strike
vote, to give it ample time to prepare for the The submission of the report gives assurance
deployment of the requisite personnel, including that a strike vote has been taken and that, if the
peace officers if need be. report concernlnq it is false, the majority of the
members can take appropriate remedy before it
Unless and until the NCMB is notified at least 24 is too late.' The seven (7)-day waiting period is
hours of the union's decision to conduct a strike Intended to give the Department of Labor and
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orders, decisions, against the employer; if one is being done, it must \ ;I,
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with criminal intent. (People v. Barba, 20SCRA The substitutionary doctrine onl~ provides that
663, 1969) the employees cannot revoke the validly-
executed collective bargaining contract with their
Blockade or Obstruction employer by the simple expedient of changing
Illegal obstructions on public thoroughfares, such their bargaining agent. It cannot be ir.voked to
as streets or sidewalks, are nuisances which local
support the contention that a newly certified
government authorities can summarily remove.
collective bargaining agent automatically
Waiver of Illegality of Strikes assumes all the personal undertakings - like the
Where the ER voluntarily agrees to reinstate the no strike stipulation - in the CBA made by the
strikers, such agreement on the part - of the ER deposed Union. (Benguet Consolidated v. BC/
constitutes a waiver of the defense that the strike Employees, G.R. No. L-24711, 1968)
was illegal
If Members Disregard No-Strike Clause, Union
May Become Liable
FIFTH REQUIREMENT: INJUNCTION A union which agrees to an express no-strike
clause Impliedly agrees to undertake every
(
See discussion under assumption of jurisdiction reasonable means to induce members
participating in an unauthorized strike to return to
SIXTH REQUIREMENi: EXISTINA3 work. The union is entitled to a reasonable period
(' AGREEMENT of time after inception of the strike in which to take
•. required action, after which the union's damage
A no-strike clause in a· CBA is applicable only to
economic strikes, If the strike is founded on an liability commences; where the union knows of
unfair labor practice of the employer, a strike , the strike at about the time it commences, the
declared by the union cannot be considered a union is properly allowed about 48 hours in which
violation of the no-strike clause. {Master Iron to t:ike action to end the strike, after which the
I • Labor Union v. NLRC, G.R. No. 92009, 1993) union's period of liability runs. (Azucena Voi. II-A,
L; 9th ed., p. 673 citing 48-A Am. Jur. 2d 1899,
Where the CBA stipulates that disputes between p.320).
·· .. ...' the parties should be resolved through a
c:». grievance machinery, including voluntary 2. PICKETING
t·.). ' arbitration, a notice of strike filed by the union
violates that agreement. The NCMB should Definition of Picketing
consider such notice as not duly filed and then Picketing involves the presence of striking
direct the union to avail itself of the grievance workers who pace back and forth at the place of
machinery and voluntary arbitration. A similar business of the ER, in the hope of being able to
posture should be taken by the Secretary of Labor peacefully persuade other workers not to work in
. {_~. instead of assuming jurisdiction over the dispute. the establishment, and customers not to do
(Azucena Vol. II-A, 9th ed., p. 670; See University business there. (Azucena Vol. II-A, 9th ed., p.
. . ."'
{
·..,
;.
of San Agustin Employees Union-FFW, et al. v. 605).
CA, G.R. No. 169.632, 2006).
Picketing as a concerted activity is subject to the
"No Strike" Clause of the CBA Applicable same limitations as strike, particularly as to lawful
Only to Economic Strikes purpose and lawful means employed to carry it
A strike declared due to unfair labor practice out. It should be done within the bounds of law.
u (ULP) of the employer is NOT a violation of the
Picketing peacefully carried out is not illegal even
'No Strike" clause of the CBA. Moreover, a "no
lJ strike" clause Is applicable cmly to economic in . the absence of employer-employee
strikes. (Philippine Metal Foundries v. CIR, G.R. relationship for peaceful picketing is a part of a
Nos. L-34948, 1979). .fr@cl_p,r:ii of speech guaranteed by the
Constitution. (De Leon v. NLRC, G.R. No. L-
f 7586, 1957)
-'--' No-Strike Clause Not Binding Upon Newly
Certified Bargaining Agent
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The right to picket is said to be part of the freedom Pickets may not aggressively interfere with the
of speech and to peaceably assemble to air right of peaceful ingress to and egress from the
grievances under Sec. 4: Arti. Ill, of the ER's establishment or obstruct the public
Constitution . (De Leon v. NLRC, G.R. No. L- thoroughfares.
7586, 1957)
A picket, although peaceful and moving, may
Prohibition on those Engaged In Picketing constitute illegal obstruction if it effectively blocks
Article 279[e]) prohibits any person engaged in the entry and exit points of the ER's premises.
picketing from obstructing the free ingress to and
egress from the employer's premises (Jackbilt Picketing of Neutral Parties or "Innocent
Industries v. Jackbilt Employees Workers Union, Bystanders" Not Allowed
G.R.Nos. 171618~9. 2009) Although the right to peaceful picketing is entitled
to protection as an exercise of free speech, such
No person engaged in picketing shall: right may be regulated at the instance or third
1. Commit any act of violence. coercion or parties or "innocent bystanders" if it appears that
· intimidation, or the inevitable result of its exercise is to create an
2. Obstruct the free ingress to or egress impression that a labor dispute with which they
from the employer's premises for lawful have no connection or interest exists between
purposes, or them and the picketing union.
3. Obstruct public thoroughfares. (Art.
279(e), Labor Code) A picketing · union has no right to prevent
employees of another company (who is not their
Note: No person shall · obstruct, impede or employer) from getting in and out of its premises,
interfere with by force, violence, coercion, threats otherwise the picketing union may be held liable
or Intimidation, any peaceful picketing by workers for damages for its act against innocent
during any labor-controversy or in the exercise of bystanders. :,_J.
the right to self organization or collective
bargaining, or shall aid or abet such obstruction 2. BY EMPLOYER
or interference. i
3. LOCKOUTS
No employer shall use or employ any person to
commit such acts nor shall any person be Temporary refusal of any employer to furnish
. employed for such purpose (Sec. 9, 0.0. 40-G- work as a result of an industrial or labor dispute
03, 2010)
Procedural Requirements In Lockouts: (Same ()
Moving Pickets may be megal as those required in Strikes) (Labor Code .. Art.
A picket, although "peaceful" and "moving," may 278)
constitute illegal obstruction if it effectively blocks 1. Notice of Lockout { :.
the entry and exit points of the company 2. Cooling-off Period .....~
i. . ...::..
premises, thus violating the law and making the 3. Strike/Lockout Vote
strike itself illegal. (Phimco Industries, lac. V. 4. Strike/Lockout Vote Report
Phimco Industries Labor Association, G.R. No. 5. · 7-day strike/lockout ban
170830, 2010)
Picketing may be considered as a nuisance if it Art. 279 prohibits the employer from doing the
constitutes an obstruction to the free use of following acts:
property, so as to substantially interfere with the 1. Declare a lockout without first having o
comfortable enjoyment of life or property of bargained collectively or without first
another, or if !t constitutes an unlawful obstruction having filed the notice required or without
to the free passage or use, in the customary the necessary lockout vote first having
manner, of a street. been obtained and reported to the DOLE
•• ,r 3
li
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l
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circumstances:
1. To discourage and dissipate membership
in a labor organization
1. In case of bargaining deadlocks: at least
30 days before the intended date of strike
2. In case of unfair labor practice: at· 1east
2. To aid a particular union by preventing 15 days before the Intended date of strike
further work of its rival 3. In case of ULP involving the dismissal of
0 3. To avoid bargaining , duly elected union officer/s which may
constitute union-busting: union may
(.. J1, Procedure for Declaring a Strike or Lockout take action immediately after the strike
vote and the submission of the results of
WHO MAY D!;:CLARE? (Sec.~ .0.-40-G- the strike vote to the regional branch of
03, 2010) . • • • the Board
~STRIKE I.: CKou=r-
Any legitimate labor
Employer in Strike or lockout vote
organization or any certified
cases of 4. Approved by majority of total union
or duly recognized
l} bargaining representative in
bargaining
deadlocks and
membership or by majority of the BOD or
cases of bargaining partners
ULPs
deadlocks and ULPs 5. By a secret ballot·
6. In a meeting called for that purpose
Note: If there is no certified or duly recognized
bargaining representative, any legitimate labor
l: organization may declare a strike but only on
grounds of unfair labor practice.
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The regional branch may supervise the conduct requirements. (Sec 8, D. 0. 40-G-03, Series of
of the secret balloting at its own initiative or upon 2010)
request of any party.
Action on notice of strike or lockout (Sec 9,
Notice of the meeting must be given at least 24 0.0. 40-G-03, Series of 2010)
hours before such meeting, and the results of the 1. Upon receipt of the notice, the regional
voting must be given at least 7 days before the branch of the Board shall exert all efforts
intended strike or lockout to the regional branch at mediation and conciliation to enable
of the Board. This is subject to the cooling-off the parties to settle the dispute amicably.
period. (Labor code, Art. 278(()) It shall also encourage the parties to
submit the dispute to voluntary
Strike/LockoufVote Report arbitration.
The result of the strike (or lockout voting) should ,2. The Regional Branch of the Board may,
be reported to the NCMB at least 7 days before upon agreement of the parties, treat a
the intended strike or lockout, subject to the notice as a preventive mediation case. It
cooling off period. This means that after the strike shall also encourage the parties to
vote is taken and the result reported to NCMB, submit to submit the dispute to voluntary
seven days must pass before the union can arbitration.
actually commence the strike," This seven-day 3. During the proceedings, the parties shall
I '\.
reporting period is intended to give the Dept. of not do any act which may disrupt or
Labor and Employment an opportunity to verify impede the early settlement of the
whether the projected strike really carries the dispute. They are obliged, as part of their
imprimatur of the majority of the union members. duty to bargain collectively in good faith
(Lapanday Workers' Union, et. al. v. NLRC, G.R. and to participate fully and promptly in the
Nos. 95494-97, September 7, 1995) conciliation · meetings called by the
regional branch of the Board.
A strike tagged without the submission of the 4. A notice, upon agreemer,t of the parties,
result of the strike vote Is illegal. (Samahan ng may be referred to alternative modes of
Manggagawa in Moldex Products, et. al. v. dispute resolution, including voluntary
NLRC, et.al., G.R. No. 119467, February 1, 2000) arbitration.
(J -,
to cause a strike or lockout in an industry 3. On cases already filed and may be filed l ~··
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assumption/certification results to a return-to- WhP,n May the Secretary Assume Jurisdiction
work of all striking workers even if the Secretary Over a Case or Certify it to the NLRC
has not issued a Return to Work Order (RTWO). Umler the law, when in his opinion there exists a
(Labor code, Art. 278 (g)) labor disQute causing or likely to cause a strike or
lockout in an industry indispensable to the
This is an example of an automatic injunction. But national inter':lst, the Secretary [of Labor] may:
this is strictly limited to "national Interest" cases, 1. Assume jurisdiction over the dispute and
and even in these cases, the parties retain the decide it, or
option to submit the dispute to voluntary 2. Certify the same to the NLRC for
arbitration. compulsory arbitration
Upon assumption or certification, the parties Note: Power of DOLE Secretary to assume
should revert to the status quo ante litem which jurisdiction over a labor dispute is limited to ·
refers to the state of things as it was before the strikes . or lockouts adversely affecting the
· labor dispute or the state affairs existing at the national interest. (Free Telephone Workers Union
time of the filing of the case. (Overseas Workers' v. Hon. Minister of Labor and Employment, GR.
Welfare Administration v. Chavez, G.R. No. L-58184, 1981) .
169802, 2007).
What am Considered "National Interest"
· The assumption or certification also has the effect Cases
of regulating the management prerogative of The NLRC vests the President of the Philippines
determining the assignment or movement of EEs. and the Secretary of Labor almost unlimited
discretion to determine what industries may be
Thus, in one case, the Court held the layoff of 94 considered as indispensable to the national
EEs pending the resolution of the dispute illegal interest.
as it was violative of the assumption order.
(Metro/ab v. Roldan~Confesor, G.R. No. 108855, Industries Indispensable to the National
1996) Interest
1. Hospital Sector i
c !. · 2. Electric Power Industry
t· ~
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3. Water Supply Services, to exclude small
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5. However, the Court ruled that the Assumption of Jurisdiction: Prior Notice Not
production of telephone directories is not Required
an industry affecting the national interest. The· discretion to assume jurisdiction may be
(GTE Directories Corp v. Sanchez, G.R. exercise by the Secretary without the necessity of
No. 76219, 1991) prior notice or hearing g'1Jen to any of the parties.
The rationale for his primary assumption of
Rule on Strikes and Lockouts in Hospitals, jurisdiction can justifiably rest on his own
Clinics and Medical Institutions (Labor code, consideration of the exigency of the situation in
Article 278 (g) (par.2))GR: Strikes and lockouts in relation to the national interests. {Capitol Medical
these insttitutions must be avoided Center v. Trajano, G.R. No. 155690, 2005).
Note:
• It is always part of · the
assumption/certification order even if not l
'''\,,
JC
i. 1
expressly stated.
• RTWO is compulsory in character
Certification to NLRC
' "Certified labor disputes" are cases certified [or
referred] to the NLRC for compulsory arbitration
l.)
a strike, but only of an industrial dispute.
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defying employees. Due proces.s must be GR: No Union members or union organizers may
observed. The employees must be given the be arrested or detained for union activities without
chance to explain and prove that there was no previous consultation with the Secretary of Labor.
defiance at all. (Azucena Vol. II-A, 9th ed., 2016,
p. 652) Exception: On grounds of national security and
public peace .
. Actual, Not Payroll, Reinstatement
·,
Under the law, "the striking or locked out 4.CONSEQUENCES
employees shall return to work and the employer
shall readmit them." The Court has interpreted Generally, the effects of employment are merely
this to mean, as a general rule, actual, not payroll; suspended while on strike, the workers do not
readmission to the EEs' positions. (Azucena Vol. work and do not get paid.
II-A, 9th ed., 2016, p. 655)
Mere participation of a worker in a lawful strike
With respect to the Secretary's Order allowing shall not be a sufficient ground for termination of
payroll reinstatement instead of actual his employment, even if a replacement had been
reinstatement for the individual respondents hired during the strike. (Art.279 (a), Labor Code)
herein, an amendment to the previous Orders
issued by her office, the same is usually not Art. 279 sets out the consequences to union
allowed. Article 263(9) of the Labor Code officers and member for (1) participation in a
aforementioned states that all workers must strike and (2) commission of illegal acts.
immediately return to work and all employers
must readmit all of them under the same terms The penalty imposable is not always be
and conditions prevailing before the strike or termination but maybe suspension. The Court
lockout. Thi=, phrase "under the same terms and used its judicial prerogative in the case of PAL v.
conditions" makes it dear that the norm is actual Bril/antes, G.R. 119360, 1990, where it found that
reinstatement. This is consistent with the idea both employers and employees contributed to the
that any work stoppage or slowdown in that volatile atmosphere.
· .. ,--
particular industry can be detrimental to the
national interest. (U.1iversity of Immaculate Forfeiture of Reinstatement
Concepcion, Inc. v. Secretary of Labor, G.R. No. The Court has ruled that a striker who failed to
151379, 2005) report for work when one had the opportunity to
do so waived his right to reinstatement. (East
Thus, placing the striking employees to Asiatic v. CIR, G.R. L-29068, 1971)
substantially equivalent positions could not be
considered reinstatement "under the same terms What are Illegal Acts?
and conditions. prevailing before the 1. Violation of Art. 279(e) of the Labor Code
strike." (University of Sto. Tomas v. NLRC; 2. Commission of crimes and other unlawful
G.R. No. 89920, 1990) acts in carrying out the strike
3. Violation of any order, prohibition, or
Appeal of Secretary's Order injunction issued by the DOLE Secretary
()
In "national interest" cases, the Secretary's Order or NLRC in connection with the
may be appealed to the Office of the President. assumption of jurisdiction/certification
order under Art. 278(9) of the Labor Code
In "non-national interest" cases, the Order may be (J
appealed via a Petition for Certiorari (Rule 65). ., This enumeration is not exclusive and may cover
other breaches of existing laws. 0
The parties may at any stage withdraw the case
from compulsory arbitration to bring it Instead to a) l·IABILITY OF UNION OFFICERS ()
a voluntary arbitrator. {Labor code, Art. 278(h).
Any union officer who knowingly participates in u
Arrest and Detention (Labor code, Art. 281) an illegal strike and any union officer who
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Shop stewards appointed by the Union, in a shop, However, hackwages are not grnnted to
department or plant serves as representative of employees participating in an illegal strike they do
the Union, charged with negotiating and not render work for the employer during the
adjustment of grievances of employees with the period of the illegal strike. The principle of a "fair
supervisor of the employer, is considered an day's wage for a fair day's labor" is applicable. If
officer. Hence, shop stewards were similarly there is no work performed by the employee there
dismissed from employment in the conduct of an can be no wage or pay unless, of course. the
illegal strike. (Santa Rosa Coca-Co/a v. Coca- laborer wan able, willing and ready to work but
Co/a, G.R. 164302-03, 200 7) was illegally locked out, suspended or dismissed
or otherwise illegally prevented from working. For
b) LIABILITY OF ORDINARY WORKERS this exception to apply, it is required that the strike
be legal, a situation that does not obtain in the
Any worker who knowingly participates in the case at bar (Escario v. NLRC, G.R. No. 160302,
commission of illegal acts during a strike may 2010)
be declared to have lost his employment status.
(} (Art. 279(a), Labor Cede) Summary: Consequences of Actions in Strike
Participation in Strike
() The individual strikers committing the illegal acts ~r.Tmr.fflll"l!I
must be identified. Proof beyond reasonable
doubt is not required, only Substantial evidence.
~
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,2. Art. 279 - NLRC can enjoin or restrain
the commission of the prohibited acts
under Art. 279.
3. Innocent Bystander Rule - The no-
injunction rule does not apply in cases
where the interests of an · innocent
bystander are concerned. Thus, the right
may be regulated at the instance of third
parties or "innocent. bystanders" if it
c) LIABILITY OF EMPLOYERS appears that the inevitable result of its
exercise is tb create an impression that a
Any worker whose employment has been labor dispute with which they have no
terminated as a consequence of an unlawful connection or interest exists between
lockout shall be entitled to reinstatement with full them and the picketing union or
· backwages. (Labor Code, Art. 279[a]) constitute an invasion of their rights. In
one case decided by this Court, we
e) In Pari Delicto upheld a trial court's injunction prohibiting
If the employer committed illegal lockout and the the union from blocking the entrance to a
. employees staged illegal strike, they are both at feed mill located within the compound of
fault. The court will restore their respective a flour mill with which the union had a
positions before the strike. The dismisse strikers dispute (Liwayway Publications v.
will be reinstated without backwaqes (Automative Permeneni, G.R. No. L-25003, 1981)
Engine Rebuilders v. Progresibong Unyon ng
mga Manggagawa sa AER, G.R. No. 16138 Thus, in a case where the Union declared a strike
2011) . . . ' against its ER and picketed the premises, ' '
preventing the peaceful passing of other persons
not connected with the ER, the Court upheld the
f) Criminal Liability injunction granted by a regular court (not by the
The regular courts shall have jurisdiction over any NLRC).
criminal action under Art. 272 of the Labor Code
but subject to the required clearance from DOLE Injunctions by the NLRC
on cases arising out of or related to a labor Under Art. 225 (e), the NLRC has the power to
dispute pursuant to DOJ Circular No. 15 (1982),
enjoin or restrain any actual or threatened
and Circular Nb. 9 (1986) .
commission of any or all prohibited or unlawful
5. INJUNCTIONS acts or to require the performance of a particular
act in any labor dispute which, if not restrained or
General Rule: No temporary or permanent performed forthwith, may cause grave or (.J
' -.
injunction or restraining ardor in any case irreparable damage to any party or render
involving or growing out of labor disputes shall be ineffectual any decision in favor of such party.
issued by any court or other entity (Labor Code,
Requirements for Injunction to Issue: (Labor ., "
Art. 225 (e) paragraph 1) lj
Code, Art. 225 (e))
Exceptions: 1. Hearing of testimony of witnesses, with
1. Art. 225 ( e)- NLRC can enjoin or restrain opportunity for cross-examination, in
an actual or threatoned commission of support of verified complaint,
testimony in opposition thereto
and {J
any or all prohibited or unlawful acts or to
2. A finding of fact by the NLRC that: (see
require the performance. of· a • particular
Philippine Association of Free Labor
CJ
act in any labor dispute which, if not
restrained or performed . forthwith, may Unions· v. Hon. Tan, G.R. 9115, 1956) { l
a. Prohibited/unlawful acts will be
v
cause grave or irreparable damage to
any party or render ineffectual any committed or have been I t
\_J
decision in favor of such party committed and will be continued
unless restrained
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Contractual In nature
. The relationship of employer and employee is
contractual in nature. It may be an oral or written
contract. A written contract is not necessary for
. the creation and validity of the relationship.
(Compania Maritima v. Ernesta Cebeqno! Vda.
De Hio, GR No. L-10675, 1960)
Conditional Employment
PERLAS-BERNABE; J. : An employment
contract, like any other contract, is perfected at
the moment the parties come to agree upon its
terms and conditions, and thereafter, concur in
the essential elements thereof. In Sagun v. ANZ
Global Services, the Court ruled that there was
already a perfected contract of employment (J
when Sagun signed ANZ's employment offer
and agreed to the terms and .conditions that {J
were embodied therein. Nonetheless, the offer'
of employment extended to Sagun contalned
several conditions before he may be deemed
. an employee of ANZ. Accordingly, Sagun's (J
employment depended on the outcome of his
background check, which partakes of the nature
PAGE 162 OF 244
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by petitioner to establish control over the of such means. These address both the
method and manner by which private result and the means used to achieve it and
respondent shall accomplish his work. hence, EER exists (Insular Lite Assurance
This is not meant to change the nature of Co, Ltd. v. NLRC, G.R. No. 84484, 1989)
the relationship between the parties, nor
does it necessarily imbue such TWO-TIERED TEST (Francisco Doctrine)
relationship with the quality of control (Francisco v. NLRC, G.R. No. 170087, 2006)
envisioned by the law. (AFP Mutual
Benefit Association v. NLRC, G.R. No. In cases where the control test is insufficient to
102199, 1997) determine the relationship between the parties,
b. That private respondent was bour.d by the Francisco doctrine adds another test, applied
company policies, memo/circulars, rules in conjunction with the control test, called the
and requlations issued from time to time economic dependence test.
is also not indicative of control. With
regard to the territorial assignments (I) FIRST TIER: CONTROL TEST
given to sales agents, this too cannot be rhe putative employer's power to control the
held as indicative of the exercise of employee with respect to the means and methods
control over an employee. Not every form by which the work is to be accomplished.
of control that a party reserves to himself
r· ,.
over the conduct of the other party in (11) SECOND TIER: ECONOMIC REALITY TEST ;
relation to the services being rendered (ALSO, ECONOMIC DEPENDENCE TEST)
may be accorded the effect of Under this test, the econcmic realities prevailing
establishing an employer-employee ·, within the activity or between the parties are
-.. .. '
i--.. ,
relationship. (AFP Mutual Benefit examined, taking into consideration the totality of
Association v. NLRC, G.R. No. 102199, clro.imstances surrounding the true nature of the
1997) relationship between the parties. This is resorted
to when there is serious doubt or genuine
EER between crew members and owners of confusion as to the relationship of the employee
fishing vessels with the employer.
The employer-employee relationship between the
. crew members and the owners of the fishing The proper standard of "economic dependence"
vessels engaged in deep-sea fishing is merely of the employee is whether the worker is
suspended during the time the vessels are dry- dependent on the alleged employer for his
docked or undergoing repairs or being loaded continued employment in that line of business.
with the necessary provisions for the next fishing (Orozco v. CA, G. R. No. 155207, 2008)
trip. This is premised on the principle that all these .· ·,..
activities i.e., dry-dock, repairs, loading of The 2-tiered test provides. a framework of .»
necessary provisions, form part of the regular analysis which would take into consideration the
operation of the company fishing business. (Ruga totality of circumstances surrounding the true
v. NLRC, G.R. No.L-72654-61, 1990) nature of the relationship between the parties. It
is appropriate in a case where there is:
.
CJ
.
Not every form of control will have the effect 1. No written agreement or terms of reference
of establishing EER. The line should be drawn to base the relationship on; and
between: 2. There exists a complexity in the relationship
1. Rules that merely serve as guidelines based on the various positions and
towards the achievement of mutually desired responsibilities given to the worker over the
results without dictating the means or · period of the latter's employment. (J
methods to tie employed in attaining it.
These aim only to promote the result. NO Thus, the determination of the relationship ,
EER exists. between employer and employee depends upon
i •
2. Rules that control or fix the methodology the circumstances of the whole economic activity, lj
and bind or restrict the party hired to the use such as:
I
'f
'',
1. The extent to which the services performed are casss where no EER exists:
an integral part of the employer's business; a. Farm Workers are not employees of the
2. The extent of the worker's investment in sugar central (Pondoc v, NLRC, G.R. No.
equipment and facilities; 116347, 1996)
3. The nature and degree of control exercised by
the employer; b. Once in the playing court, the referees
4. The worker's opportunity for profit and loss; exercise their own independent judgment,
5. The amount of initiative, skill, judqment or based on the rules of the game, as to when
foresight required for the success of the and how a call or decision is to be made.
claimed independent enterprise; The very nature of officiating a professional
6. The permanency and duration of the basketball game undoubtedly calls for
relationship between the worker and the freedom of control (Bernante v. PBA, G.R.
employer; and No. 190842, 2011)
7. The degree of dependency of the worker upon
the employer for his continued employment in c. Healthcare associate - The manner in which
that line of business. (Francisco v. NLRC, Consulta was to pursue these activities was
G.R. No. 170087, 2006) not subject to the control of Pamana.
Consulta failed to show that she had to
Cases Where EER Exists: report for work at definite hours. The amount
r " a. Jeepney drivers cin boundary basis of time she devoted to soliciting clients was
(Villamaria v. CA, G.R. No. 165881, 2006) left entirely to her discretion. The means and
.b. Drivers or helpers of salesmen are methods of recruiting and training her sales
employees of the company (Alhambra associates, as well as the development,
!'' Industries v. CIR, G.R. No. L-25984, 1970) management and maintenance of her sales
\. " c. Employees of an unregistered association division, were left to her sound judgment
(Orlando Farm Growers v. NLRC, G.R. No. (Consulta v. CA, G.R. No 145443, 2005)
129076, 1998)
d. Street-hired kargador (Caurdanetaan Piece d. TV personality- The specific selection and
Workers Union v. Laguesman, G.R. No. hiring of Sonza, because of his unique skills,
113542, 1998) talent and celebrity status not possessed by
e. Workers In movie projects (Mataguinot and ordinary employees, is a circumstance
Enero v. NLRC and Viva Fils, G.R. No. indicative, but not conclusive, of an
() 113542, 1998) independent contractual relationship (Sonza
f. "Talents" (Begino v. ABS-CBN, G.R. No. v. ABS-CBN, G.R. No. 138051, 2004)
() 199166, 2015)
g. Salaried insurance agent, as distinguished e. Where the contractor PSI was the one that
(j from registered agents on commission basis selected, engaged, and hired the security
(Great Pacific Life Assurance Corp., v. guards, the latter cannot claim that PLOT,
u Judico, G.R. No. 73887, 1989)
h. Tailors, seamstresses, servers, basters,
the entity to which they were detailed to, is
their employer (Abella v. PLDT, G.R. No.
ll plantsadoras paid on piece-rate basis 159469, 2005)
(Makati Haberdashery v. NLRC, G.R. Nos.
83380-83, 1989) Importance of determining existence · of
i. In-house counsel (Hydro Resources employer-employee relationship
u Contractors v. Pagalilai,an, G.R. No. 62909,
1989)
Generally, labor standards and conditions apply
only if there is an EER. However, in some
u j. Security guards, with respect to the security
agency (Agro Commercial Services v.
instances, even if tehre is no EER, the· Labor
Code may still be invoked (e.g. indirect
NLRC, G.R. No. 82823-24, 1989) employer's liability, Illegal recruitment, and
misuse of POEA license).
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Despite the distinction between · regular and Test to determine regular employment
casual employment, nvery employee shall be The primary standard of determining regular
entitled to the same riqhts and privileges, and employment is the reasonable connection
shall be subject to the same duties as may be between the particular activity performed by
granted by law to regular employees during the the employee to the usual trade or business of
period of their actual employment. the employer. The connection can be .. ---
....
(_)
determined by considering the nature of work
performed and its relation to the scheme of the
particular business or trade In its entirety, The
repeated and continuing need for the
performance of the job has been deemed .
sufficient evidence of the necessity, if not
indispensability of the activity to the business.
(Lopez v. MWSS, G.R. No. 154472, 2005)
()
Ways of attaining regular employment employed and his employment shal' continue
1. Ely nature of work while such activity exists. (Labor Code, Art. 295)
The employment Is deemed regular when the
employee has been engaged to perform c. PROBATIONARY EMPLOYMENT
activities which are usually necessary or
desirable in the usual business or trade of the Probationary employment exists where the
. employer. (Labor Code, Art. 295; Paguio v. employee, upon his engagement, is made to
NLRC G.R. No. 147816, 2003) underyo a trial period during which the employer
determines his fitness to qualify for regular
2. By length of service employment based on reasonable standards
The casual employee is reckoned as regular , made known to him at the time of his engagement
when the employee has rendered at least one (Labor Code, Art. 296)
(1) year of service, whether such service is ·,
continuous or broken, with respect to the Period of Probationary Employment
activity In which he is employed and his Probationary employment shall not exceed six (6)
employment shall continue while such activity months from the date the employee started
exists. (Labor Code, Art. 295; Conti v. NLRC, working, unless it is covered by an apprenticeship
G.R. No. 119253, 1997) agreement stipuiatinq a longer perioc1• (Labor
Code, Art. 296)
3. Work beyond the probationary
employment Probationary employee is one who is on trial by
The employment is considered regular when an employer during which the employer
the employee is allowed to work after a determines whether or not he is qualified for
I ~-.. probationary period. (Labor Code, Art. 296) permanent employment. (International Catholic
. ~.
;
:
Migration Comm. v. NLRC, G. R. No. 72222,
4. Repeated Hiring 1989)
When the "seasonal" workers are
continuously and repeatedly hired to perform While the employer observes the fitness,
the. same tasks or activities for several propriety, and efficiency of a probationer to
seasons or even after the cessation of the ascertain whether he is qualified for permanent
season, this length of time may likewise serve employment, the probationer, on the other hand,
as badge of regular employment. (Universal seeks to prove to the employer that he has the
Robina Sugar Milling Corporation v. Acibo, qualifications to meet the reasonable standards
G.R. No. 186439, 2014) for permanent employment. (Temson's
0 Enterprises, Inc. v. CA, GR No. 192881, 2011)
. Note: Regular employment does not mean
{J permanent employment. A regular employee may Probationary employment must have been .
be terminated for just and authorized causes. expressly agreed upon. If there is · no such
agreement, the employment is considered
,,., b. CASUAL EMPLOYMENT regular (Sampaguita Auto Transport Corp. v.
u NLRC, G.R. No. 1973841 2013)
General Rule: Activity performed is not usually
necessary or desirable in the usual business or Duration of Probationary Employment
trade of the employer, not project and not General Rule: Probationary employment shall
0 seasonal. Otherwise stated, casual employees
perform activities which are incidental to the
not exceed 6 months from the date the employee
started working (Labor Code, Art. 296)
0 business of the employer.
Probation ends 180 days from the starting date.
c Exception: If he has rendered at least 1 year of
service, whether such service is continuous or
(Mitsubishi Motors Corporation v. Chrysler Phils., ·
G.R. No. 148738, 2004)
(j broken, he is considered a REGULAR employee
with respect to the activity in which he is
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probationary period, the employee thereby employer shall make known to the employee the
becomes .a regular employee. No employer is standards under which he will qualify as a regular
allowed to determine indefinitely the fitness ofits employee at the time of his engagement. Where
employees. (Labor Code, Art. 291, Malicdem v. no standards are made known to the employee at
. Marulas Industrial Corp., GR No. 204406, 2014) that time, he shall be deemed a regular
.. --,.
employee. (Aberdeen Court, Inc. v. Agustin, G.R.
Exceptions: No. 149371, 2005; /RR Labor Code, Sec. 6[d],
1. Covered by an apprenticeship agreement Rule I, Book V)
stipulating a longer period (l.ebor Code; Art.
296) PERLAS·BERNABE. When dealing with a
2. Voluntary agreement of parties (especially probationary employee, the employer is made to
when nature of work requires a lcnger comply with two requisites:
period) (Mariwasa Manufacturing v. a. The employer must communicate the
Leogardo, G.R. No. 74246, 1989) regularization standards to the probationary
3. The employer gives the employee a second employee (perforn!ance standard); and
chance to pass the standards set (Mariwasa b. The employer must make such
Manufacturing v. Leogardo, G.R. No. 74246, communication at the time of probationary
1989) employee's engagement.
4. When a longer period is required and
established by company policy If the employee fails to comply with either, the ·,
employee is deemed as a regular and not a u
probationary employee.
If not one of the exceptional circumstances above
is proven, the employee whose employment GR: An employer is deemed to have made
exceeds 6 months is undoubtedly a regular known the standards that would qualify a
employee (San Miguel v. Del Rosario, G.R. No. probationary employee to be a regular employee
168194 & ·/68693, 2005) when it has exerted reasonable efforts to apprise
...._ . .../
the employee of what he is expected to do or
Example: The probationary period set for
professors; Instructors and teachers is 3
accomplish. .
f . 'l
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Rules:
1. Notice of termination is not necessary in
fixed-term employment (Pcingilinan v.
General Milling Corporation, supra)
2. Employee is deemed regular if the contract
failed to state the specific period of
employment (Poseidon Fisi1ing v. NLRC,
G.R. No. 168052, 2006);
3. Termination prior to lapse of fixed-term
contract should be for a just or authorized
cause (Anderson v. NLRC, GI-.?. No. '
111212, 1996);
4. Liability for illegal dismissal of fixed-term
employees is only for the salary for
unexpired portion (New Sutuise Metal v.
Pia, G.R. No. 171131, 2007)
g. SECURITY GUARDS. ·,
-, _.;
Employment Status
The Security Service Contractor (SSC) or Private
Security Agency (PSA) is the employer of its
security guards and other private security
(. ",
!'
personnel on duty detail to a principal or client
under a Service Agreement. (Sec. 3. 1, DO 150-
16) .
r ~
' • .. / ~
Note: Similar · to a situation of legitimate
subcontracting.
Probationary Employment
Probationary period of newly-hired security guard
and other private security personnel in the private
security industry shall not exceed six (6) months.
While on probationary status, their services may
be terminated.
for failure to0 meet reasonable
standards or criteria made known by the
' i. SSC/PSA at the time of their engagement or for
any just case contained in the probationary
· contract. (Sec. 3.2, DO 150-16)
Regular Employment
Any security guard or other private security
)
personnel who is allowed to work after the
probationary period or in the absence of a valid
probationary contract shall be considered a
regular employee. Security guards affected by
repeated hiring-firing-rehiring scheme for short
)
periods of time, the aggregate duration of which
l/ . ' is at least 6 months, shall be considered a regular
employee. (Sec. 3.3, DO 15016)
Employment Contracts
Notwithstanding and oral or written stipulations to
the contrary, the contract between SSC/PPA and
its security guards shall be governed by
provisions of Art. 294 and 295 of the Labor Code.
(
\.,J
~, The SSC/PSA shall provide his/her security
guards a copy of the employment contract duly
1· ,. signed by the parties, which shall contain terms
t _.,~
and conditions of employment. (Sec. 5. 1, DO
150-16)
()
Reserved Status
0 A security guard and other private security
personnel may be placed in a work pool or on
0 reserved status due to lack of service assignment
after the expiration or termination of the Service ·
Agreement with the principal where he/she is
assigned, or due to the temporary suspension of
0 security service operations, or due to valid relief
from the current place of work and there is no
work assignment available.
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Burden of Proof
The onus of provinq that there is no post available
to which the security guard can be assigned rests t)
on the employer. (Nationwide Security and Allied ( ...
Services, Inc. v. Valderama, 659 Phil. 362, 2011) ,.)
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Right to Control
Right reserved to the person for whom the
services of the contractual workers are i-._J.},
performed, to determine not only the end to be
achieved, but also the manner and m€ans to be
__ _,
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used in reaching that end. (D.O. No. 18°A, Seo. subcontractor in the performance or completion
3{i]) of the job, work or service contracted out.
Only one of either (i) substantial capital or (ii) The law does not require both substantial capital
performing activities related to the main and investment in the form of tools, equipment
business - is required for Labor-Only and machineries. This. ls clear from the use of the
Contracting to exist conjunction "or." If the intention was to require the
Performing activities directly related to the contractor to prove that he has both capital and
principal business of the employer is only one of the requisite Investment, then the conjunction
the two indicators that "labor-only" contracting. "and" should have been used. (New Golden
exists; the other is lack of substantial capital or ' Builders & Dev't Corp v. CA, et al., G.R.. No.
investment. Labor-only contracting exists 154715, 2003)
when any of the two elements is present.
(Quintanar, eta/. v. Coca-Co/a, G.R. No. 210565, Net. Financial Contracting Capacity (NFCC)
2016) refers to the formula to determine the financial
capacity of the contractor to carry out the job,
Posting ofBond work or services sought to be undertaken under
An employer or indirect employer may require the a Service A9reement. NFCC is current assets
contractor or subcontractor to . furnish a bond minus current liabilities multiplied by K, which
{ equal to the cost of labor under contract, oil stands for contract duration equivalent to: 1 O for
condition that the bond will answer for the wages one yea, or less; 15 for more than one (1) year up
due the employees should the contractor or to two (2) years; and 20 for more than two (2)
subcontractor, as the case may be, fail to pay the years, minus the value of all outstanding or
[ same. (0.0. No. 174-17, Sec. 3[a), Labor Code, ongoing projects including contracts to be started.
. \
Art. 108) (D: 0. 18-A, Seo. 3[g])
..
{ :. amounts to employment avoidance (Convoy
Marketing v. Albia, G.R. No. 194969, 2015)
c. When the principal farms out work to a
"Cabo".
It also refers to paid-up capital stocks/shares of at d. Contracting out of job or work through an in-
least Five Million Pesos (P5,000,000.00) in the house agency.
case of corporations, partnerships and e. Contracting out of job or work through an iii-
{) cooperatives; in the case of single proprietorship, house cooperative which merely supplies
a net worth of at least Five Million Pesos workers to the principal.
0 (P5,000,000.00). (D.O. No. 174-17, Sec. 3, 1J(i)) f. Contracting out of a job or work by reason of
a strike or lockout whether actual or
() Capital stocks and subscribed capitalization in imminent.
the case of corporations, tools, equipment, g. Contracting out of a job or work being
implements, machineries and work premises, performed by union members and such will
actually and directly used by the contractor or interfere with, restrain or coerce employees
PAGE 177 OF 244
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0
' u
''I,.
(
J
,:
l __.·
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'
work being nature of deemed
subcontract security job, amended
ed, including work, or accordingly;
its term or service being e. Provisions
duration; subcontracted; which shall
b. The place b. Place of work ensure that
or work and and terms the principle
terms and and and the
.-."
conditions conditions SSC/PS A
governing governing the shall uphold
the contracting the rights and
contracting arrangement provide all
arrange me which shall benefits of
nt, to include the security 'c
include the aqreed guards;
agreed amount Of f. Provision on
amount bf security the NFCC of
the services to SSC/PSA;
contracted be rendered g. Undertaking
job or work and the that the
as well as standard SSC/PS A
the administrativ shall directly :--"-?
\.._)
standard e fee of not remit monthly
administrat less than employers'
ive fee of 20% of the share and
not less total contract - ·~
employees' l .»
than 10% cost; contribution
of the total c. Basic to SSS, ECC, ..
contract equipment to
\J
PhilHealth,
cost.
c. A provision
be provided
by the
Pag-lBIG;
h. Undertaking
. -
on the SSC/PSA th eat l_)
issuance of (handgun, expenses for
bon/s as handheld any training
defined in radio);
f)
required by
Sec. 3(a) d. Automatic the principal . .
\j
renewable crediting or . other
every year. provision government
(Sec. 11, which shall instrumental it
t J
DO 174- immediately ies shall be
17) give effect to shouldered vI '
the common
provision in
by
principal.
the ("',.
:.....__ ,.,
waqe orders (Sec. 4, DO
that 150-16) 0
prescribed
wage Note: Administrative fee is different for 0
increases security guards which must not be less t'-t
and the than 20% of thetotal contract cost. v
Service i ~
Agreements I ... -.?•
shall be r '
\_i
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l) Note: Failure to register shall give rise to the Principal as Direct Employer: Violations of
presumption that the contractor is engaged In Rights of Employees or Required Contracts · ·
0 labor-only contracting. (Aklan v. San Miguel . A finding of violation of either Sections 10 (Rights
Corporation, G.R. No. 168537, 2008) of Contractor's Employees) or 11 (Required
l) Contracts) shall render the principal the direct
c. SOLIDARY LIABILITY employer of the employees of the contractor or
-, subcontractor, pursuant to Art. 109 of the Labor
Labor Code Provisions on Liability Code (D.O. No. 147-17, Sec. 12)
f'
v. In the event that the contractor or sub-contractor
fails to pay the wages of his employees in Soiidary Liability in legitimate Contracting:
accordance with this Code, the employer shall be Vi".)lations of the Labor Code and Social
jointly and severally liable with his contractor or Legislation
(j sub-contractor to such employees to the extent of In the event of violation of any provision of the
the work performed under the contract, in the Labor Code, including the failure to pay wages,
0 same manner and extent that he is liable to there exists a solidary liability on the part of the
,,
· employees directly employed by hlm, (Labor principal and the contractor for purposes of
{ '
"J Code, Art. 106) enforcing the provisions of the Labor Code and
other social legislations, to the extent of the work
performed under the employment contract. (0. 0.
-
f '
No. 174-17, Sec. 9)
'
l •
(}
()
()
()
u
u
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i. __J,
"
- and -
Not listed
l)
u 7. Not listed
~-.·
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1. Labor-only contracting;
2. Other illicit forms of employment
arrangements;
3. Violation of employee's rights
4. Violation of required contracts
' ..
\ _y
"
()
'
f'\
, . .>
. ~.__ ::;
4 ,,
'\.... ,
v"
f ~.
1. JUST CAUSES
Grounds: (SMWD-GHN-FWB-CO-A)
1. Serious misconduct or Willful
Disobedience by the employee of the lawful
orders of his employer or representative in
connection with his work (work-related)
2. Gross and Habitual neglect by the
employee of his duties
3. Fraud or Willful breach by employee of the
Trust reposed in him by his employer or
-...·
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BAR OPERATIONS 2019 LABOR LAW
u
()
! I
\. .,
'
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.
l -
;
2. Any employee who. commits an illegal act
during a strike
conceivinq a child out of wedlock, gauged from a
purely public and secular view of morality, does
.
\. . .r
3. Strikers who violate orders, prohibitions or
injunctions issued by the NLRC, the
not amount to a disgraceful or immoral conduct,
(Leus v. St. Scho/astica, G.R. No. 187226, ~015)
Secretary of Labor and Employment or the
() President Valid Dismissal Because of Application of
4. Violation of union security clause in the Union Security Clause
{ j
. ~··· CBA Union security clauses In the collective . ·
bargaining agreements, if freely and voluntarily
Doctrine of Incompatibility entered into, are valid and binding. Thus, the
Where the employee has done something that is dismissal of an employee by the company
(J contrary or Incompatible with the faithful pursuant to a labor; union's demand in
performance of his duties, his employer has a just accordance with a union security agreement
cause for terminating his employment. (Manila does not constitute unfair labor practice.
Chauffer's League v. Bachrach Motor, G.R. No. (Ma/ayang Samahan ng mga Manggagawa sa M.
l) L-47138, 1940) Greenfield v. Ramos, G.R. No. 113907, 2000;
Villar v. Inciong, G.R. No. L-50283-84, 1983
u
Although a union security clause in a CBA may The Supreme Court had upheld the disrnissal of
be validly enforced and dismissal pursuant a cabin crew member for being unable to trim
thereto may likewise be valid, this does not erode down his weight. The Court classified such weiqht
the fundamental requirement of due process. The standards as a BFOQ, which is defined as the
reason behind the enforcement of union security employment qualifications imposed by an
clauses which is the sanctity and inviolability of employer such as sex, religion, or national origin
. contracts cannot override one's right to due as a limiting factor in performing a certain job. In
process. (MSMG-UWP v. Ramos, G.R. No. the instant case, PAL is a common carrier and
113907, 2000) from the nature of its business and for reasons of
public policy, it is bound to observe extraordinary
Where the employer compelled the employee to diligence for the safety of the passengers it
go on forced leave upon recommendation of the· transports. A BFOQ on weight standards in this
union for alleged violation by the employee of the case was deemed to be necessary and justified
closed-shop agreement, the NLF~C correctly given the normal operations of PAL. (Armando
ordered the reinstatement of the employee and Yragsuegi v. PAL, GR 168081, 2008)
directed the union to pay the wages and fringe
benefits which employees failed to receive as a 2 .. AUTHORl.tED CAUSES
result of her forced leave and to pay attorney's
fees. (Manila Mandarin Employees Union v. Grounds: (RRLCD)
NLRC, G.R. No. 76989,, 1987) 1. Redundancy
2. Retrenchment
Where the employer dismissed his employees in 3. Introduction of Labor-saving devices
the belief in good faith that such dismissal was 4. Cessation or Closure of Operation of the
l
required by the closed - shop provisions of the Establishment or Undertaking .e
....
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Two kinds of losses to justify retrenchment "L.;.;t In, First Out" Rule (LIFO)
1. Incurred losses which are substantial, When there are two or more employees
serious. actual and real; and occupying the same position in the company
2. Expected losses - which are reasonably affected by the retrenchment program, the last
imminent. (SanohFulton Phiis. Inc. v. one employed will necessarily be the first to go
Bernardo & Tagohoy, GR. No. 187214, (Maya Farms Employees Organization v. NLRC,
2013) G.R. No. 106256, 1994)
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Due Process Requirements for Termination Due Process Requirements for Termination
Due to Installation of Labor-Saving Device Due to Closure or Cessation of Operation
1. The employer served a written notice both 1 . Service of written notice to the employees
to the employees and to the DOLE at least and to the DOLE at least one month before
30 days prior to the intended date Of the intended date thereof;
termination; and 2. The cessation of or withdrawal from
business operations must be bona fide in
{ :
'-- •'
2. The employer pays the employees
separation pay equivalent to one month character; and
pay or at least one month pay for every 3. Payment to the employees of termination
year of service, whichever is higher, a ' pay amounting to at least one-half (1/2)
fraction of at least six months being month pay for each year of service, or one
considered as one whole year. (Labor • month pay, whichever is higher. (Azucena,
Code, Art. 298) The Labor Code with Comments and
(J Cases Volume 11-B, 903, 2016)
pay of 1 month ·( \
·•,..... Ji
pay or 1/2
month pay per
year of
service,
whichever is
higher
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AILMENT OR DISEASE
Substantive Elements of Due Process for
Termination Due to Aliment or Disease
1. An employee has b<i en found to be suffering
from any disease, whether contagious or i'
Closures or cessation No separation pay not;
of operations due to 2. His continued employment is prohibited by
serious business law or prejudicial to his health, or to the
losses or financial · health of his co-employees;
reverses 3. A competent public health authority certifies
that the disease is of such nature or at such
Note: A fraction of at least 6 months is considered a stage that it cannot be cured Within a
1 year period of six months even with proper
,_ medical treatment; and
TEMPORARY CLOSURE I BONA FIOE 4. Payment of separation pay equivalent to at
SUSPENSION OF OPERATIONS (Labor Code, least one month salary or to one-half month
. ·, Art. 301) salary for every year of service, whichever is
A bon« fide suspension of business operations greater, a fraction of at least six months
for not more than 6 months does not terminate being considered as one whole year.
employment.
Prior Certification From Competent Public
After 6 months, the employee may be recalled to Authority
The burden falls upon the employer to establish
'\. r. work or be permanently laid off. (SKM Art Craft
Corp v. Bauca, G.H. No. 171282, 183484, 2013) these requisites, and in the absence of such
certification, the dismissal must necessarily be
() An employer may validly suspend operations for declared illegal.
at most 6 months. Not accepting the workers back
(J to work after the €-month period is equivalent to It is only where there is a prior certification from a
termination, which should oe for cause and with competent public authority that the disease
r >
i.. proper procedure. (Manila Mining Corp. v. Amor, afflicting the employee sought to be dismissed is
G.R. No. 182800, 2015) of such nature or at such stage that it cannot be
cured within 6 months even with proper medical
treatment that the latter could be validly
-, terminated from his job (Crayons Processinq,
Inc., v. Pu/a, G.R. No. 167727, 2007)
c-,
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{_;
ll ''·'
-;» While [preventive suspension] may be imposed
on a respondent during the investiqation of the
charges against him. [suspension] is the penalty
which may only be meted upon him at the
termination of the investigation or the final
disposition of the case. (PAL 11. NLRC, G.R. No.
lJ 114307, 1998)
E. RELIEFS FROM ILLEGAL DISMISSAL 7. ~ob with a totally different nature (OUP Sound
Phils. v. CA, G.R. No. 168317, 2011)
An employee who is unjustly dismissed from work 8. Long passage of time
shall be entitled to reinstatement without .loss of 9. Inimical to the employer's interest
seniority rights and other privileges and to his full 10.Superveriing facts have transpired which
backwages, inclusive of allowances, and to his make execution unjust or inequitable, to an
other benefits or their monetary equivalent increasing extent (Emeritus Security v. Dailig,
computed from the time his compensation was G.R. No. 204761, 2014)
withheld from him up to the time of his actual
reinstatement. (Labor Code, kt. 294)
Prescriptive Period
Bring action for reinstatement within 4 years from
1.Backwages + Reinstatement without loss of the time of dismissal. (Civil Code, Art. 1146) ·
seniority rights, OR
2.Backwages + Separation Pay, if
I. Reinstatement pending appeal
reinstatement impossible, or not ordered, in
view of the application of the strained
Note: The decision of the Labor Arbiter reinstating
relations doctrine.
a dismissed or separated employee shall
immediately be executory, even pending appeal.
NOTE: Where reinstatement. is ordered, but the
The employee shall either be admitted back to
position is already filled up, the dismissed
work under the same terms and conditions
employee must still be reinstated if it is still
prevailing prior to his dismissal or separation or,
possible.
at the option of the employer, merely reinstated in
the payroll. The posting of a bond by the employer
REINSTATEMENT
shall not stay the execution for reinstatement .
Reinstatement means the restoration to a state
provided herein. (Labor Code, Art. 223)
or condition from which one had been removed or
separated. The _person reinstated assumes the
Two options given to employers
position he had occupied prior to his dismissal. It
1. Actual Reinstatement
presupposes that the previous position from
Restoration of an illegally dismissed employee to
which one had been removed still exists, or that
the position s/he had occupied prior to the illegal
there is an urifilled position which is substantially
dismissal.
equivalent or of similar nature as the one •. '
le_, ..
previously occupied by the emplcyee. (Pfizer,
2. Payroll Reinstatement
Inc., et al. v. Velasco, G.R. No. 177467, 2011) t . ..
The employer, instead of physically reinstating \..~
the employee to his former or substantially
General Rule: Reinstatement and backwages
equivalent position, chooses to reinstate the
are awarded
employee in the payroll only by paying him
wages and other benefits without however . \
t"'.;1·
Exceptions:
allowing or requiring him to actually report for
1. Separation pay
work.
2. Closure of business (Retuy« v. Hon.
Dumarpa, G.R. No. 148848, 2003)
Obligation to Reinstate Order of
3. Economic Business Conditions (Union of Reinstatement
Supervisors v. Secretary of Labor, G.R. No. L- If the order of reinstatement of the Labor Arbiter
39889, 1981)
l, f .
is reversed on appeal, it is obligatory on the part
4. Employee's unsuitability (Divine Word High of the employer to reinstate and pay the wages of
School v. NLRC, G.R. No 72207, 1986)
()
the dismissed employee during the period of
5. Employee's retirement I overage (New Phil. appeal until reversal by the higher · court. The
Sky/anders v. Deki/a, G.R. No. 199547, 2012) ~ Labor Arbiter's order of reinstatement is
6. Antipathy and antagonism (Wensha Spa immediately executory and the employer has to .
Center v. Yung, G.R. No. 185122, 2010) either re-admit them to work under the same
terms and conditions prevailing prior to their
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Kinds of separation pay But note: In the International School case, the
1. Statutory separation pay, in authorized Supreme Court granted "separation pay" of 1h
-,
causes (Labor Code, Arts. 288-299) month per year of service while upholding the
2. Separation pay as financial assistance (found teacher's dismissal on the ground of "gross
in the next section) inei.'iciency" resulting from the lack of skills,
3. Separation pay in lieu of reinstatement where thereby failing to meet the standards of the
(J reinstatement is not feasible; and employer of the school. (International School v.
( }
4. Separation pay as a benefit in the CBA or International School Alliance, 2014)
v company policy
No financial assistance to dismissed strikers.
First Kind: Statutory separation pay
The employer has a statutory obligation in cases Third Kind: Separation Pay in Lieu of
{\_ ,. ' of legal termination due to authorized causes. Reinstatement
This happens only in cases where:
lJ CAUSE 'SEPARA • 1. Doctrine of Strained Relations applies, but
I • Introduction of labor- Separation pay of only applicable to confidential and rnanaqeriat
'~ . .!": saving . devices, month pay or 1 month employees only; or
,· redundancy pay per year of 2. When reinstatement would only exacerbate ·
t service, whichever is the tension and strained relations between the
higher
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,, .)
{
arbiter's decision. Requisites for a valid quitclaim (L-FEN)
1. Lack of fraud or deceit
Further, the employer cannot refuse to reinstate 2. Entered into Freely and voluntarily
(J the illegally dismissed employee by claiming that 3. Trade-off is Equitable and credible
the latter had already found a job elsewhere. '1. Not contrary to law, public order, public
() Minimum wage earners are letl with no choice policy, morals, good customs, nor prejudicial
after they are illegally dismissed from their to a third person with a right recognized by
(; employment, but to seek new employment in law (Goodrich Manufacturing Corp. v. Ativo,
order to earn a decent living. Surely, we could not G. R. No. 188002, 2010)
li fault them for their perseverance in looking for '
and eventually securing new employment
I •
\_J opportunities instead of remaining idle and
awaiting the outcome of the case. (Triad Security
f
l.~ & Allied Services, Inc, et al. v Ortega, G.R. No.
160871, 2006)
... _
ATENEO CENTRAL
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',
-,
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mandatory retirement age is now 60. (R.A. No. Retirement pay under RA 7641 vis-a-vis
10757, Sec. 2) retirement benefits under SSS and GSIS laws
RA 7641 mandates payment of retirement
Amount of Retirement Pay benefits. All private sector employees regardless
The minimum retirement pay shall be equivalent of their position, designatior:i or status and
to one-half (1/2) month salary for every year of irrespective of the method by which their wages
service, a fraction of at least six (6) months being are paid are entitled to retirement benefits upon
considered as one whole year. compulsory retirement at the age of sixty-five (65)
or upon optional retirement at sixty (60) or more
For the purpose of computing retirement pay, but not 65. The minimum retirement pay due
"one-half month salary" shall include all of the covered employees shall be equivalent to one-
following: half month salary for every year of service, a
3. Fifteen (15) days salary based on the latest fraction of at least six (6) months being
salary rate; considered as one whole year. The benefits
4. Cash equivalent of five (5) days of service under this law are other than those granted by
incentive leave; the SSS or the GSIS.
5. One-twelfth (1/12) of the 13th month pay.
(1/12 x 365/12:;: .083x30.41 = 2.52 days) Retirement Benefits under a CBA or
Applicable Contract
Total: 22.5 days Any employee may retire or be retired by his/her
employer upon reaching the age established in
Thus, "one-half month salary" is equivalent to the CBA or other applicable agreement/contract
22.5 days. (Capitol Wireless, Inc. vs Sec. and shall receive the retirement benefits granted
Confessor, G.R. No. 117174, 1996; Rogelio therein; provided, however, that such retirement
Reyes v. NLRC, G.R. No; 160233, 2007) benefits shall not be less than the retirement pay
required under R.A. No. 7641, and provided
further that if such retirement benefits under the -i
Other benefits may be included in the
computation of the retirement pay upon agreement are less, the employer shall pay the
agreement of the ER and the EE or if provided in difference.
the CBA.
Where both the employer and the employee
contribute to a retirement fund pursuant to the .-.
\ . i·
applicable agreement, the employer's total
contributions and the accrued interest thereof
' should not be less than the total retirement
benefits to which the employee would have been
,"·
entitled had there been no such retirement
benefits' fund. If such total portion from the
employer is less, the employer shall pay the
t.J
deficiency.
· .. ...::
l -_ .
employment.
_; Exception: Except to pay a debt of the official or
I -,
employee concerned to the private benefit plan or Retirement benefits, where not mandated by
\_J that arising from liability imposed in a criminal law, may be granted by agreement of - the
I
action. employees and their employer or as a voluntary
\_ .·
act on the part of the employer. Retirement
benefits are intended to help the employee enjoy
PAGE 213 OF 244
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---end of topic--~
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ATENEO CENTRAL
BAR OPERATIONS 2019 LABOR LAW
General Rule: An. employer is free to regulate, The company's management prerogatives are
according to his own discretion and judgment, all not being unjustly curtailed but duly tempered by
aspects of employment, including hiring; work the limitations set by law, taking into account its
assignments, working methods, time, place and special character and the particular
manner of work, tools to be used, processes to be circumstances in the case at bench. (Metro/ab
followed, supervision of workers, working Industries, Inc. v. Roldan-Confesor, G.R. No.
regulations, transfer of employees, work 108855, 2013)
supervision, lay-off of workers and the discipline,
dismissal and recall of workers (Peckson v. 4. Colsectlve Bargaining
Robinson's Supermarket Corporation, G.R. No. The CBA provisions agreed upon by the
198534, 2013) -, Company and the Union delimit the free exercise
of management prerogative. The parties in a CBA
Limits to Management Prerogative ma; establish such stipulations, clauses, terms
1. Good Faith
and conditions as they may deem convenient
So long as a company's management
provided these are not contrary to law, morals,
prerogatives are exercised in good faith for the
good customs, public order or public policy.
advancement of the employer's interest and not
Where the CBA is clear and unambiguous, it
for the purpose of defeating or circumventing the
becomes the law between the parties and
rights of the employees under special laws or
compliance therewith is mandated by the express
under valid agreements, this Court will uphold
. I policy of the law. (Goya v. Goya Employees
t .; them. Even as the law is solicitous of the welfare
Union-FFW, G.R. No. 170054, 2013)
of the employees, it must also protect the right of
(·1 an employer to exercise what are clearly
5. Equity and/or Substantial Justice
management prerogatives. The free will of
The Court recognized the inherent right of the
. \ ·' management to conduct its own business affairs
employer to discipline its employees but it should .
to achieve its purpose cannot be denied.
still ensure that the employer exercises the
() (Ymbong v. ABS-CBN, G.R. No. 184885, 2012)
prerogative to discipline humar.ely and
considerately, and that the sanction imposed is
f,.,; 2. Grave abuse of discretion
com, nensurate to the offense involved and to the
The managerial prerogative to transfer personnel
degree of the infraction. The discipline exacted by
must be exercised without grave abuse of
the employer should further consider the
· discretion, bearing in mind the basic elements of
employee's length of service and the number of
justice and fair play. Having the right should not
infractions during his employment. (Dongon v .
. be confused with the manner in which the right is
Rapid Movers and Forwarders Co., G.R. No.
LJ exercised. (Tinio v. CA, G.R. No. 171764; 2007)
163431, 2013)
3. Law
The exercise of management prerogatives is not
A pharmaceutical company defended its
I unlimited. A line must be drawn between
i termination of rank and file employees during a
\. management prerogatives regarding business
bargaining deadlock, as an exercise of
operations per se and those which affect the
management prerogative. This was after the
~-
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rights of employees. In treating the latter, dlmtnution of salaries, benefits, ar.d other
management should $.ee to it that its employees privileges, the employee may not complain that it
are at least properly informed of its decisions and amounts to a constructive dismissal. (Bisig ng
modes of action. (PAL v. NLRC, G.R. No. 85985, Manggagawa sa TRYCO v. NLRC, G. R. No.
1993) 151309, 2008)
The law on unfair labor practices is not intended
. to deprive the employer of his fundamental right It is management prerogative for employers to
to prescribe and enforce such rules as long as it transfer employees on just and valid grounds
is not exercised in violation of the Act and its such as genuine business necessity. (William
several prohibitions. Barroga v. Data Center College of the
Philippines, G.R. No. 174158, 20'/1)
Where, however, an employer does violate the
Act and is found guilty of the commission of an Re-assignments made by management pending
unfair labor practice, it is no excuse that his investigation of irregularities allegedly committed
conduct was unintentional and innocent. by an employee fall within the ambit of
management prerogative. The purpose of
reassignments is no different from that of
preventive suspension which management could
Management has the prerogative to discipline its validly impose as a disciplinary measure for the
employees and to impose appropriate penalties protection of the company's property pending
on erring workers, pursuant to company rules and investigation of any alleged malfeasance or
regulations (Artificio v. NLRC, G.R. No. 172988, misfeasance committed by the employee. (Ruiz
2010) v. v. Wendel Osaka Realty, G.R. No. 189082,
2012)
Although the right of employers to shape their
own work force, is recognized, this manaqement In cases of a transfer of an employee, the
prerogative must not curtail the basic right of employer is charged with the burden of proving
employees to security of tenure. (Alert Security that its conduct and action are for valid and
Investigation Agency v. Saidali Pasawilan, G.R. legitimate grounds such as genuine business
No. 182397 (2011) necessity and that the transfer is not
unreasonable, lnconvenient or prejudicial to the
B. TRANSFER OF EMPLOYEE employee. If the employer cannot overcome this -.
burden of proof, the employee's transfer shall be
An employee's right to security of tenure does not
tantamount to unlawful constructive dismissal.
give him such a vested right In his position as
(Jonathan Morales v. Harbor Centre Port
would deprive the company of its prerogative to
Terminal, G.R. No. 174208, 2012)
change his assignment or transfer him where he
will be most useful. C. PRODUCTIVITY STANDARD
The employer has the right to transfer or assign The employer has the right to demote and
1 )
employees from one area of operation to another, transfer an employee who has failed to observe \../
or one office to another or in pursuit of its proper diligence in his work and incurred habitual ( -,
legitimate business interest, Provided there ls no tardiness and absences and indolence in his
demotion in rank or diminution of salary, benefits assigned work. (Petrophil Corporation v. NLRC,
and other privileges and not motivated by G.R. No. L-64048, 1986)
discrimination or made in bad faith, or effected as
a form of punishment or demotion without
sufficient cause. (Westin Phil. Ploze Hotel v.
As a general concept, "poor performance" is
equivalent to inefficiency and incompetence in
the performance of official duties. Under Art. 282
'
\.J~
NLRC, G.R. No. 121621, 1999) of the Labor Code, an unsatisfactory rating can
be a just cause for dismissal only if it amounts to
When the transfer is not unreasonable, or gross and habitual neglect of duties. Thus, the
inconvenient, or prejudicial to the employee, and fact that an employee's performance is found to
it does not involve a demotion in rank or be poor or unsatisfactory does not necessarily
PAGE 216 OF 2~4
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mean that the employee is grossly and habitually such exercise. (Sime Darby Pilipinas, Inc. v.
negligent of his duties. Gross neglignnce implies NLRC, G.R. No. 119205, 1998)
a want or absence of or failure to exercise slight
care of diligence, or the entire absence of care. It ' Except as limited by special laws, an employer is
evinces a thoughtless disregard of consequences free to regulate, according to his own discretion
without exerting any effort to avoid them. and, judgment, all aspects of employment,
(Universal Staffing Services, Inc. vs. NLRC, G.R. including hiring, work assignments, working
No. 177576, 2008) methods, time, place and manner of work, tools
to be used, processes to be followed, supervision
The imposition of productivity standards is an of workers, wotking regulations, transfer of
allowable exercise of company rights. An employees, work supervision, lay-off o1 workers
, employer is entitled to impose productivity and discipline, dismissal and recall of workers.
standards for its workers and non-compliance (San Miguel Brewery v. Opie, G.R. No. L-53515,
may be visited with a penalty even more severe 1989)
than demotion. (Leonardo v. NLRC, G.R. No.
125303, 2000) F. Bona Fide Occupational Qualifications
There is unfair and unjust discrimination in the BFOQ is valid "provided it reflects · an
granting of salary adjustments where the inherent quality reasonably necessary for
evidence shows that
satisfactory job performance."
1. The management paid the employees of .
-. the unionized branch;
Weight standards of PAL show its effort to ·
2. here salary adjustments were granted to
comply with the exacting obligations imposed
employees of one of Its non - unionized
upon it by law by virtue of being a common
branches . although it was losing in its
carrier. On board an aircraft, the body weight
operations; and
and size of a cabin attendant are important
3. The total salary adjustments given every
factors to consider in case of emergency.
ten of its unionized employees would not
The job · of a cabin attendant during
i even equal to the salary adjustments given
\ ,;.. emergencies is to speedily get the
to one employee in the non - unionized
passengers out of the aircraft safely. Being
branch. (Manila Hotel Company v. Pines
overweight necessarily impedes mobility.
Hotel Employees Associalion(CUGCO)
Indeed, in an emergency situation, seconds
and CIR, G.R. No. L-30818, 1972)
are what cabin attendants are dealing with,
E. CHANGE OF WORKING HOURS not minutes. Hence, separation from service
for failure to meet weight standards of PAL is
Management retains the prerogative, whenever justified. (Yrasuegi v. PAL, G.R. No.168081)
exigencies of the service so require, to change
the working hours of its employees. So long as It is unlawful for an employer to require as. a
such prerogative is exercised in good faith for the condition of employment or continuation of
advancement of the employer's interest and not employment that:
for the purpose of defeating or clrcurnventinq the 1. A woman employee shall not get married,
rights of the employees under special laws or or
r
i
\. i under valid agreements, this Court wUI uphold 2. To stipulate expressly or tacitly that upon
gett:ng married a woman employee shall be
deemed resigned or separated; or
PAGE 217 OF 244
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Resolving Questions of Jurisdiction Between The Li\ has jurisdiction to award not only the
Labor Arbiter and Voluntary Arbitrator reliefs provided by labor laws, but also damages
General Rule: Complaints for illenal dismissal governed by the Civil Code. The employee need
are within the original and exclusive jurisdiction of only include his claim for damages in the illegal ( '\
the LA. dismissal suit filed with the LA. (Kawachi .v. Del u·
Quero, G.R. No. 163738, 2007)
Exception: The parties may submit the question
of termination to voluntary arbitration but this (4) . CLAIMS FOR ACTUAL, MORAL,
must be expressed in unequivocal language in EXEMPLARY AND OTHER FORMS OF
(j
their CBA. (Ace Navigation Co. v. Fernandez, DAMAGES ARISING FROM EER
G.R. No. 197309, 2012)
-,
(6) ALL OTHER CLAIMS ARISING FROM EER (8) ALL MONET ARY CLAIMS OF OFWS
INVOLVING AN AMOUNT EXCEEDING P;5000 " ARISING FROM EER OR BY VIRTUE OF-ANY
REGARDLESS OF WHETHER ACCOMPANIED LAW OR CONTRACT INVOLVING FILIPINO
BY A CLAIM FOR REINSTATEMENT EXCEPT WC,RKERS FOR OV!=RSEAS DEPLOYMENT,
CLAIMS FOR ECG, SSS, MEDICARE, & INCLUDING CLAIMS FOR ACTUAL, MORAL,
MATERNITY BENEFITS EXEMPLARY AND OTHER FORMS OF
'
I . "
Monetary claims arising from EER which do not
DAMAGES (RA 8042)
exceed Php5,000 fall within the jurisdiction of the For the LA to have jurisdiction over money claims
. DOLE Regional Director. (LC, Art. 129) of OFWs, a EER is not necessary, as the article
also refers to "law" or "contract." (see Santiago v.
NOTE: A kesembehey's claim, regardless of the C.F. Sharp, G.R. No. 162419, 2007)
() amount, falls within the jurisdiction of the DOLE
Regional Office, and not the NLRC. (Batas In order for the LA to assume jurisdiction over the
f ;
".,,. ;
..... .
Kasambahay, Sec. 37) money claim, the OFC must have ~ certification
from the POEA (PNB v. Cabansag, G. R. No..
. -
'-.JI Art. 306 provides that "all money claims arising 157010, 2005)
from EER shall be filed within 3 years from the
time the cause bf action accrued, before the labor
arbiter.
i. . . :
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i .
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BAR OPERATIONS 2019 LABOR LAW
be computed only to date of actual re- lapse, an excusable neglect, and, hence, not a
hiring; jurisdictional defect warranting the dismissal-of an
3. Employees who shall have reached appeal. Instead, the NLRC should require the
compulsory age of retirement shall appellant to provide the opposing party copies of
receive backwages up to their retirement the notice of appeal and memorandum of appeal.
only. The same is true as regards the (J. PB: Fernandez v. Botica Claudio, G.R. No.
heirs of those who have passed away; 205870, 2014)
4. Employees who have not been
reemployed plus those who have Appeal by Employer Involving Monetc1ry
executed quitclaims and received Award
separation pay of financial assistance A bond equivalent to monetary award should be
shall be reinstated without loss of posted within the 10-day period for filing of
seniority rights and paid full backwages, appeal.
after deduction of whatever amounts
already received; and If no bond is filed, appeal is not perfected. (see
5. Employees who had obtained ' Catubay v. NLRC, G.~. No. 119289, 2000).
substantially equivalent or even more
lucrative employment elsewhere in 1998 Rei·, iedy in case of failure to post bond, remedy is
or thereafter are deemed to have to file a motion to dismiss.
severed their employment with their
previous employer, and shall be entitled No monetary award, no appeal bond required
to full backwages from the date of their If LA's decision does not provide for a
retrenchment only up to the date they computation of the monetary award, no appeal
found gainful employment elsewhere. bond is required to be filed.
(FASAP v. PAL, G.R. No. 172013,
October 2, 2009) Justifications for Non-Posting of Bond
1. No monetary award (Aba v. NLRC, G.R.
Requisites for Perfection of Appeal No. 122627, 1999);
1. Filed within the reqlementary period; 2. Monetary award is not specified in the.
2. Memorandum of Appeal uncer oath; decision (Orozco v. CA, G.R. No.
3. Appeal fee; 155207, 2005);
4. Cash, property, or surety bond, if 3. In case of conflict between body and fa/lo .- ... ·
· judgment involves monetary award; and of the decision, the latter should prevail l_j
5. Proof of service to the adverse party. (Mendoza Jr. v. San Miguel Foods, GR.
No. 158684, 2005)
Procedure
1. File Memorandum of Appeal within 10
calendar days, counted from receipt of
Motion to Reduce Bond .
i '":
·'
motion shall be accompanied by the posting of interpretation when McBurnie made it clear that
a provisional cash or surety bond equivalent the percentage of bond set is provisional. ( Sara
to (10%) of the monetary award subject of the Lee v. Macatlang, G.R. No. 180147, 2015)
appeal, exclusive of damages and attorney's Enforcement
fees; Any law enforcement agency may be deputized
by the DOLE Secretary or the NLRC.
3. Compliance with the foregoing conditions shall
suffice to suspend the running of the 1 O·day Issuance of writ of execution on a judgment within
reglementary period to perfect an appeal from 5 years from date it becomes final and executory
the labor arbiter's decision to the NLRC; motu proprio or in motion of any interested party.
4. The NLRC retains its authority and duty to 3. REINSTATEMENT PENDING APPEAL
resolve the motion to reduce bond and
determine the final amount of bond that shall If reinstatement is ordered in an illegal
be posted by the appellant, still in accordance dismissal case, it is immediately executory
with the standards of meritorious grounds and even pending appeal. This means that the
reasonable amount; and perfection of an appeal shall stay the execution of
the decision of the LA except execution of the
5. In the event that the NLRC denies the motion reinstatement pending appeal.
to reduce bond, or requires a bond that
exceeds the amount of the provisional bond, Self - executing with no need for a writ of
the appellant shall be given a fresh period of execution - only applicable to order issued by
10 days from notice of !he NLRC order within Labor Arbiter.
r which to perfect the appeal by posting the Writ of execution required when reinstatement is
required appeal bond. ordered by NLRC on appeal, or subsequently by
the CA or SC, as the case may be.
NOTE: A substantial monetary award, even if it
runs into millions, does not necessarily give the Either admitted back to work under the same
employer-appellanta 'meritorious case' and does terms and conditions prevailing prior to his
not automatically warrant a reduction of the dismissal or separation or merely reinstated in the
· appeal bond. (Calabash Garments v. NLRC, G.R. payroll (at the · option of the employer, i.e.
I. ,. No. 110827, 1996) confidential employee, but the choice must be
l..J communicated to the employee by the employer)
Examples of Meritorious Grounds
1. Fundamental consideration of substantial Posting of a bond shall not stay the execution of
justice; reinstatement.
2. Prevention of rnlscarriaqe of justice or of
unjust enrichment; or The unjustified refusal of tho employer to
3. Special circumstances of the case reinstate an illegally dismissed employee entitles
combined with its legal merits and the the employee to payment of his salaries.
{ ; amount and issue involved. (Garcia v. KJ
'--'
Commercial, G.R. No. 196830, 2012) Reinstatement Pending Appeal (A1t. 229) vs.
t . ',-
/
Order of Reinstatement (Art. 294)
10% Appeal Bond is Provisional ' , A T.229 I ART.294 '
i .
'<. , The 10% requirement in McF3urnie pertains to the Order of The order of
reasonable amount which the NLRC would reinstatement by the reinstatement
accept as the minimum of the bond that should LA is immediately presupposes the
accompany the motion to reduce bond in order to executory pending award thereof is
suspend the period to perfect an appeal under the appeal. pursuant to a final
NLRC rules. The 10% is based on the judgment and executory
r
\ ' award and should in no case be construed as the It is similar to a return- judgment, and not
-,
minimum amount of bond to be posted in order to to-work order. ~~~-'-~~~~~~~--'
while the case for
perfect appeal. There is no room for a different·
PAGE 225 OF 2A,4
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l,
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Notes: In the absence of any of the above 3. Order Work Stoppage I Suspension of
requisites, the LA will have jurisdiction over the Operations when non-compliance with
case, pursuant to ART. 224. the law or IRR poses grave or imminent
danger to the health and safety of the
The claimant need not be an employee at the time . workers in the workplace
the complaint has been filed; it is enough that the 4. Conduct hearings within 24 hours to
claim arises from employment determine whether:
a. An order for stoppage of work I
Appeal from the RD's Decision suspension of operations shall
The Complainant may appeal to the I\JLRC within be lifted or not; and
10 calendar days from a receipt of a copy of the b. Employee shall pay the
Regional Director's decision I resolution. employees concerned their
salary in case the violation is
G, DOLE SECRET ARY attributable to his fault
1. Visitorlal and enforcement powers Note: EER must still exist at the time of the
initiation of the action fbr the Secretary or his
Visitorial Power authorized representative to exercise
Power of the Secretary of Labor or his duly Enforcement Power
authorized representative, including labor.
regulation officers to: When Enforcement Power Cannot be Used
1. Have access to employer's records and 1. Case does not arise from exercise of
(., premises at any time of the day or night visitorial power
whenever work is being undertaken 2. When EER ceased to exlst at the time of
therein inspection
2. Right to copy records
3. If employer contests finding of the labor
3. To question any employee
officer and such contestable issue is not
4. Investigate any fact, condition, or matter
verifiable in the normal course of
which may be necessary to determine
inspection
violations or w:1ich may be necessary to
aid in enforcement of the Labor Code or
Compliance Order
any labor law or order
Must observe due process in administrative
(i proceedings:
Enforcement Power
1. Alleged violator must first be heard and
() Power of the Secretary of Labor or his duly
given adequate opportunity to present
authorized representative, including labor evidence on his behalf.
{ . regulation officers to:
·. r 2. Evidence presented duly considered
'1. Issue compliance orders to give effect to before any decision reached.
() labor legislation based on the findings of 3. Decision is based on substantial .
employment and enforcement officers or evidence.
() industrial safety engineers made in the 4. Decision based on evidence presented in
course of inspection the hearing, or at least contained in the
r> 2. Issue writs of execution to the
\..., record and disclosed to the parties.
appropriate authority for the enforcement 5. Decision should explain the issues
( . of their orders, EXCEPT in cases where
\. j involved and the reasons for the
the employer contests the findings of the decisions rendered.
lJ labor employment and enforcement '
officer and raises issues supported by Appeal
f\ documentary proofs which were not .
L: If crder issued by duly authorized representative
considered in the course or inspection - of DOLE Secretary - appeal to the latter
in the latter case, the case will have to be
forwarded to a Labor Arbiter If order involves monetary award - an appeal by
the employer may be perfected upon only upon
PAGE 231 OF 244
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If a complaint is filed with the DOL,E, and it is a complaint under oath and duly supported by the
accompanied by a claim for reinstatement, the written consent of at least 20% of the total
jurisdiction is properly with the Labor Arbiter, membership of the labor organization concerned
under Art. 217(3) of the Labor Code, which and to examine their books of accounts and other
provides that the Labor Arbiter has original and records to determine compliance or non-
exclusive jurisdiction over those cases involving compliance with the law and to prosecute any
wages, rates of pay, hours of work, and other violations of the law and the union constitution
terms and conditions of employment, if and by-laws:
accompanied by a claim for reinstatement.
Provided, That such inquiry or examination shall
If a complaint is filed wilh the NLRC, and there is not be conducted during the
still an existing EER, the jurisdiction is properly
with the DOLE. 60-day freedom period nor within the 30 days
immediately preceding the date of election cf
The findings of the DOLE, however, may still be union officials. (Labor coae, Art. 289)
questioned through a petition for certiorari under
Rule 65 of the Rules of Court. (People's SOLE generally has NO jurisdiction over
Broadcasting v. Secretary of Labor, G.R. No. appeals
179652, 2012) In The Heritage Hotel vs. National Union of
[ ' Workers (G.R. 178296, 2011), the Supreme
Unlawful Activities Court ruled that jurisdiction remained with the
1. For any person or entity to obstruct, BLR despite the Bt.RDlrector's inhibition.
impede, delay or otherwise render
ineffective the orders of the Sec. or his "When the DOLE Secretary resolved the appeal,
authorized representatives issued she merely stepped into the shoes of the BLR
pursuant to the authority under Art. 128. Director and performed a function that the latter
2. No inferior court shall issue temporary or could not himself perform."
permanent injunction or restraining order
or otherwise assume jurisdiction over any SOLE has the power td give arbitral awards in
case involving the enforcement orders. the exercise of his authority to assume
jurisdiction over labor dispute
2. POWER TO SUSPEND EFFECTS OF The arbitral award given by the Secretary of
Cl- TERMINATION Labor can be considered as an approximation of
a collective bargaining agreement. While the
() Miscellaneous Provlslons award cannot per se be categorized as an
The Secretary of Labor and Employment may agreement between the parties (because of the
suspend the effects of the termination pending Secretary's interference), it still has the force and
resolution of the dispute in the event of a prima effect of a valid contract obligation between the
0 facie finding by the appropriate official of the parties, as is stated in (Cirtek Employees vs.
Department of Labor and Employment before Clrtek Electronics, G.R. 190515, 2011).
() whom such dispute is pending . that the
termination may cause a serious labor dispute or 3. REMEDIES
is in implementation of a mass lay-off. {Labor
Code, Art. 292[b]) Decisions of the DOLE Secretary are appealable
to the NLRC within 5 calendar days.
Conditions under which Secretary of Labor or
lJ his duly authorized representative MAY Remedy where no EER exists
Inquire into the financial activities of Where no employer-employee relation exists
legitimate labor organizations between the parties and no Issue is involved
The Secretary of Labor and Employment or his which may be resolved by reference to the Labor
duly authorized representative is hereby Code, other labor statutes, or any collective
empowered to inquire into tile financial activities
of legitimate labor organizations upon the filing of
PAGE 233 OF 214
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bargaining agreement, it is the RTC that has The show steward, the employee and his
jurisdiction. immediate supervisor shall exert efforts
to settle the grievance at their level.
The RTC has jurisdiction over the claim of an c. If no settlement is reached, the grievance
independent contractor to adjust the shall be refe11red to the grievance
committee which shall have 10 days to
contractor's fee. (Urbanes v. Secretary of Labor,
decide the case.
G.R. No. 122791, 2003)
I. VOLUNTARYARalTRATORS
H. GRIEVANCE MACHINERY
SUMMARY OF PROCEDURE: tABOR CASES NLRC Rules provide that before deciding, LA
must inform parties that the case has been
The rules of evidence prevailing in courts of law submitted for decision. If this is not complied with,
or equity shall not be controlling. decision is still valid because of Art. 227.
It is the spirit and intention ol this Code which Art. 21 B(c) cannot be invoked to support a faulty
shall be used as reasonable means to ascertain decision of the LA. The provision refers to a
the facts in each case, without reqard to power of the NLRC and not the LA.
technicalities of law and procedure all in the
interest of due process. Summary
1. Decision of the Voluntary Arbitrator -
Parties may be represented by legal counsel but appeal to CA under Rule 43 (Luzon Dev't
it shall be the duty of the Chairman, any presiding Bank)
Commissioner or. any labor arbiter to exercise 2. Decision of the DOLE and other attached
complete control of the proceedings at all stages. aqencles (including NLRC) should be
brought to the CA under Rule 6.5 (St.
Martin Funeral Homes)
General Rule: The only way to acquire
3. Decision of the DOLE Secretary -
jurisdiction is to serve summons.
certiorari to the CA under Rule 65
(NAFLU v. Laguesma)
.t . . _ Exceptlon:Voluntary appearance of the lawyer 4. Order of the Med-Arbiter GRANTING the
\ amounts to voluntary submission to the Petition for CE in an UNORGANIZED
jurisdiction of the LA. (Santos v. NLi~C, G.R No. establishment - not appealable under
101699, 1996) ' DO 40-03 (2003). Thus, the recou: se is
certiorari under Rule 65.
i
Failure to implead a substitute party is not a fatal ·5. Decisions of the BLR in its appellate
' jurisdiction - CA, certiorari under Rule
defect. (Chu v. Pasajo, 2003)
65 .. (UST Faculty Union v. Bitonio, G.R.
No. 131235, 1999)
Payment of docket fees is not required in labor 6. Certiorari is not a substitute for lost
standards claims under Art. 2e2(d). app~al.
Except: In case of bargaining deadlock, the fees 7. 10 days to perfect appeal by filing a
are shared by the parties. Memorandum of Appeal
8. Property bond is now allowed. (UERM-
(l Sec. 3, Rule V of the NLRC Rules allows parties Memorial Medical Center v. NLRC, G.R.
to submit position papers wit'.1 attachments and No.110419, 1997)
() they can be made basis of the LA's decision, 9. Appeal bond must be strictly complied
with.
10. NLRC cannot resuscitate a lost appeal.
Holding of trial on the merits is discretionary on
11. Only 1 MR is allowed.
the part of the LA.
12. LA cannot entertain an MR or a petition
for relief of judgment. After the decision
Due process in Art. 292(b). termination disputes has become final and executory, the writ
t· i
\.)' 7 end line is hearing with representative of own of execution is NOT appealable.
choice 13. To stay writ of execution, ask for an
injunction under Art. 218 (e).
Due process in Art.·2277 opportunity to be heard 14. Period to appeal cannot be extended
BUT in a number of cases, SC
It is wrong to apply opportunity be heard in due entertained appeals filed out of time
under the interest of justice rule (esp. if
process under Art. 292(b).
the appellants are the employees)
15. Doctrine of supervening· event (i.e.
Verification and Certification of Non-Forum closure of company) requires payment of
Shopping are required BUT Art. '2.27 can be separation pay and full backwages up to
invoked. the time of the closure of the company.
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