Timothy Charles Chen Labor Review

2015-0203
I
A. Yes, Narcico is entitled to retirement benefits even if hi is a part time lecturer.
Under the labor code any employee may retire upon reaching the age of
retirement, which is established at the age of 60
B. In the absence of any retirement plan or agreement between the parties the
employee upon reaching the age of 60 may retire and his pay shall be
equivalent to at least ½ month for every year of service a partial service of at
least 6 months may be considered a whole year

II
A. The motion should be denied. For purposes of filing a petition for
certification election, New Neuman Employees has legal personality from the
time it was issued with a charter certificate. This clear under the Labor Code,
which provides, The chapter shall acquire legal personality only for purposes
of filing a petition for certification election from the date it was issued a
charter certificate. (Article 241 [234-A], As inserted by Section 2, Republic
Act No. 9481 which lapsed into law on May 25, 2007 and became effective on
June 14, 2007)
B. Under Article 247 of the Labor Code, the following are the relevant grounds for
cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the adoption or
ratification of the constitution and by-laws or amendments thereto, the minutes of
ratification, and the list of members who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the election of
officers, minutes of the election of officers, and the list of voters;
(c) Voluntary dissolution by the members.
Unless the employer can prove that any of the foregoing grounds are present the
petition for cancellation will not prosper.

III
A. No the NLRC has no jurisdiction over money claims. Under the Labor Code,
the Labor Arbiter shall have exclusive original jurisdiction over money claim
regardless of the amount.
B. Yes the action has prescribed under Art 305 of the labor code an action for
money claim must be files within three years form the time the case of action
accrued here the action for money claim was only filed 5 years after and
therefore is now prescribed under the labor code
C. No. For moral damages to be awarded his dismissal was attended by bad
faith or fraud; constituted an act of oppressive to labor or was done in a
manner contrary to morals good customs or public policy
IV
A. Alternate dispute resolution is the most procedurally peaceful means to
resolve this dispute as the labor code mandates that mediation is the primary
action for peacefully settling the dispute
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2015-0203
B. Yes. As held in the case of Goodyear Philippines vs Angus it held that in the
absence of any prohibition in the CBA or retirement plan an employee may
claim both separation and retirement benefits
V
A. No there is no legal ground for the deduction. The general rule is that an
employer by himself is prohibited from making any deductions from the
wages of his employees. The employer is not allowed to make any deduction
without knowledge and confect of the employee
B. The rule in order to be paid regular holiday like two successive holidays provides as
follows, Where there are two (2) successive regular holidays, like Holy Thursday and
Good Friday, an employee may not be paid for both holidays if he absents himself
from work on the day immediately preceding the first holiday, unless he works on the
first holiday, in which case he is entitled to his holiday pay on the second holiday.
(Section 10, Rule IV, Book III, Rules to Implement the Labor Code)
Applying the above rule, unless Nelda had complied with the rules on absences she
is not entitled for her holiday pay for work done on Good Friday.
However, on the assumption that she complied with the rules Nelda should be paid
as follows: P560 x 200%=P1,120.00 or since he only worked for one hour the pay
should be as follows: 70 x 200% = P140.00

VI
A. Union Nana cannot be declared as the winner. This is because the said union did not
obtain the majority of the valid votes casts as provided under Article 268 of the Labor
Code
B. The procedure in the Challenge of Votes provides as follows:
The ballot of the voter who has been property challenged during the Pre-Election
conferences, shall be placed in an envelope which shall be sealed by the Election
Officer in the presence of the voter and the representatives of the contending unions.
The election Officer shall indicate on the envelope the voter’s name, the union
challenging the voter, and the ground for the challenged. The sealed envelope shall
then be signed by the Election Officer and the representatives of the contending
unions. The Election Officer shall note all challenges in the minutes of the election
proceedings and shall have custody of all envelops containing the challenged votes.
The envelopes shall be opened and the question of eligibility shall be passed upon
by the Mediator-Arbiter only if the number of segregated votes will materially alter the
results of the election.
VII
A. For purposes of computing Nico's 13th month pay his daily "productivity allowance"
cannot be included. 
In Philippine Spring Water Resources, Inc. v. Court of Appeals, G.R. No. 205278,
June 11, 2014, clarified as to when a commission forms part of basic salary to be
considered in the computation of 13th month pay. The High Court said: It is well-
established in jurisprudence that the determination of whether or not a commission
forms part of the basic salary depends upon the circumstances or conditions for its
payment.

VIII
Timothy Charles Chen Labor Review
2015-0203
Nathaniel is correct in so far as the existence of employer-employee relationship between
him and the principal.
The rules requires that the Service Agreement between the principal and the contractor shall
include the following:
i. The specific description of the job or work being subcontracted, including its term or
duration.
ii. The place of work and terms and conditions governing the contracting arrangement, to
include the agreed amount of the contracted job or work as well as the standard
administrative fee of not less than ten percent (10%) of the total contract cost; and
iii. A provision on the issuance of the bond/s defined under Section 3(a) renewable every
year. (Section 11, D.O. No. 174, Series of 2017) 
On the other hand, a finding of violation of 11 shall render the principal the direct employer of
the employees of the contractor or subcontractor, pursuant to Article 109 of the Labor Code,
as amended. (Section 12, D.O. No. 174, Series of 2017) 
Applying the above rules, since Newmark and Nutrition City violated the required terms to be
stated in the Service Agreement then Nutrition City is the direct employer of Nathaniel. 
As to whether Nathaniel is a regular employee of Nutrition City, the rules are as follows:
Regular employees are further classified into: (1) regular employees by nature of work; and
(2) regular employees by years of service. (E. Ganzon, Inc. vs. National Labor Relations
Commission, G.R. No. 123769, 22 December 1999, 321 SCRA 434, 440) The former refers
to those employees who perform a particular activity which is necessary or desirable in the
usual business or trade of the employer, regardless of their length of service; while the latter
refers to those employees who have been performing the job, regardless of the nature
thereof, for at least a year. (Pangilinan vs. General Milling Corporation, G.R. No. 149329, 12
July 2004) 
Tested from the nature of his work and the activity of the principal Nathaniel could be a
regular employee while if it is tested on the length of service then Nathaniel is a regular
employee as he has been employed with the principal for a least a year. In fact he was
employed for nearly two years.

IX
A. The death of Sgt. Nemesis is compensable because it is work-connected. However,
in so far as entitlement of the dependents of Sgt. Nemesis for compensation as a
result of his death the dependent spouse cannot claim compensation. The law
requires that the dependent spouse should be a legitimate spouse living with the
employee. (Article 173 [i], Labor Code).In this case, the legitimate spouse Nelda is
not entitled because she is not living with Sgt. Nemesis while Narda will not qualify
as dependent spouses as she is not a legitimate spouse of Sgt. Nemesis although
she is living with the latter. On the other hand, in so far as the dependent child the
law requires that the dependent child be legitimate, legitimated, legally adopted or
xxx, who is unmarried, not gainfully employed, not over 21 years of age provided he
is incapacitated and incapable of self-support due to physical or mental defect which
is congenital or acquired during minority. The two minor children are therefore
qualified as dependent children. Hence, entitled to compensation.
B. Nelda and Narda are not entitled to the benefits because they failed to qualify within
the definition (Article 173 [i], Labor Code) of dependent spouse.

X
A. Nonato is not a regular employee of N-Train Shipping. The fact that seafarers are not
regular employees is already a settled rule. In Petroleum Shipping Limited (formerly
Timothy Charles Chen Labor Review
2015-0203
Esso International Shipping (Bahamas) Co., Ltd.) v. NLRC, G.R. No. 148130, June
16,2006, the Supreme Court said that the issue on whether seafarers are regular
employees is already a settled matter. Thus, the High Court said:It was in Ravago v.
Esso Eastern Marine, Ltd., G.R. No. 158324, 14 March 2005, 453 SCRA 381 where
the Honorable Supreme Court traced its ruling in a number of cases that seafarers
are contractual, not regular, employees. 
B. The claim for disability benefits of Nonato against N-Train Shipping and its agent
Narita Maritime Services will not prosper for prematurity. 
The Supreme Court laid down the procedures for filing disability benefits and its
effect in case of failure to comply with the procedures in Daraug v. KGJS Fleet
Management Manila, G.R. No. 211211, January 14, 2015. Thus, in denying the claim
for disability benefits due to prematurity the Supreme Court ruled:
Petitioner Did Not Comply With The Procedures 
In Vergara v. Hammonia Maritime Services, Inc.31 (Vergara), it was stated that the
Department of Labor and Employment (DOLE), through the POEA, has simplified the
determination of liability for work-related death, illness or injury in the case of Filipino
seamen working on foreign oceangoing vessels. Every seaman and the vessel
owner (directly or represented by a local manning agency) are required to execute
the POEA Standard Employment Contract (POEA-SEC) as a condition sine qua non
prior to the deployment of the seaman for overseas work.

XI
A. Tita Nilda is not correct in saying that engagement of a kasambahay is a private
matter and should not be regulated by the State. This is a valid subject matter of the
exercise of police power to give effect to the declared policy of the law such as the
need to protect the rights of domestic workers against abuse, harassment, violence,
economic exploitation and performance of work that is hazardous to their physical
and mental health; and in protecting domestic workers and recognizing their special
needs to ensure safe and healthful working conditions, promotes gender-sensitive
measures in the formulation and implementation of policies and programs affecting
the local domestic work. (Section 2, Article I, Republic Act No. 10361)
B. The stipulation that Noray may be requested to work on a rest day is legal. The law
provides that, “ Nothing in this provision shall deprive the domestic worker and the
employer from agreeing to the following:
(a) Offsetting a day of absence with a particular rest day;
(b) Waiving a particular rest day in return for an equivalent daily rate of pay;
(c) Accumulating rest days not exceeding five (5) days; or
(d) Other similar arrangements. (Section 21, Article IV, Republic Act No. 10361)
C. Stay-in family drivers are not included under the Kasambahay Law. This was very
clear in the Rules Implementing the Kasambahay Law providing as follows:
The following are not covered:
(a) Service providers;
(b) Family drivers;
(c) Children under foster family arrangement; and
(d) Any other person who performs work occasionally or sporadically and not on an
occupational basis. (Section 2, Rule I, Implementing Rules and Regulations of
Republic Act 10361)

XII
Timothy Charles Chen Labor Review
2015-0203
A. Nesting is not correct. The law penalizing sexual harassment in our jurisdiction is RA
7877. Section 3 thereof defines work-related sexual harassment in this wise:Sec. 3.
Work, Education or Training-related Sexual Harassment Defined.—Work, education
or training-related sexual harassment is committed by an employer, manager,
supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or
any other person who, having authority, influence or moral ascendancy over another
in a work or training or education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of whether the demand, request
or requirement for submission is accepted by the object of said Act. (a) In a work-
related or employment environment, sexual harassment is committed when: xxx (3)
The above acts would result in an intimidating, hostile, or offensive environment for
the employee. Contrary to Nesting’s claim, it is enough that his acts result in creating
an intimidating, hostile or offensive environment for the employee.

XIII
A. Yes, Nicodemus can be dismissed on based on willful disobedience to the lawful
order under Article 297 (a) of the Labor Code and the “prescribed uniform policy” of
the company.The basis is the case of St. Luke’s v. Sanchez, G.R. No. 212054,
March 11, 2015 were it was ruled: At the same time, the employee has the corollary
duty to obey all reasonable rules, orders, and instructions of the employer; and willful
or intentional disobedience thereto, as a general rule, justifies termination of the
contract of service and the dismissal of the employee. (Malabago v. NLRC, 533 Phil.
292, 300 [2006]) x x x x. Note that for an employee to be validly dismissed on this
ground, the employer’s orders, regulations, or instructions must be: (1) reasonable
and lawful, (2) sufficiently known to the employee, and (3) in connection with the
duties which the employee has been engaged to discharge.”
B. Yes, Nicodemus’ motion for execution should be granted. He is entitled to his
accrued salary.The accrued wages/salaries (reinstatement wages/salaries) is the
consequence of the reinstatement aspect of the decision of the Labor Arbiter referred
in paragraph 3, Article 229 [223] of the Labor Code. This means that a dismissed
employee whose case was favorably decided by the Labor Arbiter is entitled to
receive wages pending appeal upon reinstatement, which is immediately executory.
In other words, it refers to the wages or salaries which automatically accrued to a
dismissed employee from the notice of the Labor Arbiter’s order of reinstatement until
its ultimate reversal by the higher court, which could be the NLRC, the Court of
Appeals or the Supreme Court. The entitlement to accrued wages/salaries
(reinstatement wages/salaries ) of a dismissed employee was discussed in the cases
of Roquero v. Philippine Airlines, G.R. No. 152329, 449 Phil. 437 (2003), Garcia v.
Philippine Airlines, G.R. No. 164856, January 20, 2009

XIV
A. Yes, the DOLE’s action to conduct mandatory conciliation is valid. This is mandated
by Article 234 of the Labor Code, except as provided in Title VII-A, Book V of this
Code, as amended, or as may be excepted by the Secretary of Labor and
Employment, all issues arising from labor and employment shall be subject to
mandatory conciliation-mediation.
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2015-0203
B. The Regional Director should not sustain Needy Corporation’s argument. This is
because under Article 239 of the Labor Cod, information and statements made at
conciliation proceedings shall be treated as privileged communication and shall not
be used as evidence in the Commission. Conciliators and similar officials shall not
testify in any court or body regarding any matters taken up at conciliation
proceedings conducted by them. Thus, Needy Corporation cannot raise the
argument that Nelson was willing to settle for 75% of his money claim during
conciliation proceedings.
XV
A. Yes, Nini and Nono can join a union. This is clearly allowed under Article 255 of the
Labor Code which provides in substance that supervisory employees may join, assist
or form separate collective bargaining units and/or legitimate labor organizations of
their own.
B. Yes, the two unions can be affiliated with the same Union Federation. This is clearly
allowed under Article 255 of the Labor Code which provides in substance that the
rank-and-file union and the supervisors’ union operating within the same
establishment may join the same federation or national union.

XVI
A. Nagrab Corporation was not correct in refusing to enforce the CBA provision with
respect to the absorbed employees. This is because it cannot invoke its merger with
another corporation as a valid ground to exempt its absorbed employees from the
coverage of a union shop clause contained in its existing Collective Bargaining
Agreement (CBA) with its own certified labor union. In BANK OF THE PHILIPPINE
ISLANDS V. BPI EMPLOYEES UNION-DAVAO CHAPTER-FEDERATION OF
UNIONS IN BPI UNIBANK, G.R. No. 164301, August 10, 2010, the High Court
resolved the question in this manner: At the outset, we should call to mind the spirit
and the letter of the Labor Code provisions on union security clauses, specifically
Article 248 (e), which states, x x x Nothing in this Code or in any other law shall stop
the parties from requiring membership in a recognized collective bargaining agent as
a condition for employment, except those employees who are already members of
another union at the time of the signing of the collective bargaining agreement. This
case which involves the application of a collective bargaining agreement with a union
shop clause should be resolved principally from the standpoint of the clear provisions
of our labor laws, and the express terms of the CBA in question, and not by inference
from the general consequence of the merger of corporations under the Corporation
Code, which obviously does not deal with and, therefore, is silent on the terms and
conditions of employment in corporations or juridical entities.
B. The newly-regularized employee of Nagrab Corporation (who is not-part of the
absorbed employees) cannot refuse to join Nagrab Union in view of the union
security clause provision of the CBA. While the right to join includes the right not to
join, however, the exception is the UNION SECURITY CLAUSE where it imposes
upon employees the obligation to acquire or retain union membership as a condition
affecting employment. Thus, I will advise the human resources manager of Nagrab
Corporation to comply with the provision of the CAB stating that : “New_employees
within the coverage of the bargaining unit who may be regularly employed shall
become members of Nagrab Union.

XVII
A. All striking employees be admitted back to work and including striking employees
who damaged company properties. The effect of assumption of jurisdiction of the
Timothy Charles Chen Labor Review
2015-0203
Secretary of Labor is clear under Article 278 (g) which provides in substance that
such assumption shall have the effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption or certification order. If
one has already taken place at the time of assumption or certification, all striking or
locked out employees shall immediately return-to-work and the employer shall
immediately resume operations and readmit all workers under the same terms and
conditions prevailing before the strike or lockout.
B. The company may not readmit strikers by restoring them to the payroll. The phrase
“under the same terms and conditions” found in Article 278 (g) [263 (g)] of the Labor
Code was interpreted by the Supreme Court in the case of the University of
Immaculate Concepcion, Inc. v. Secretary of Labor, G.R. No. 151379, January 14,
2005 as follows:
With respect to the Secretary’s Order allowing payroll reinstatement instead of actual
reinstatement for the individual respondents herein, an amendment to the previous
Orders issued by her office, the same is usually not allowed. Article 263(g) of the
Labor Code aforementioned states that all workers must immediately return to work
and all employers must readmit all of them under the same terms and conditions
prevailing before the strike or lockout. The phrase “under the same terms and
conditions” makes it clear that the norm is actual reinstatement. This is consistent
with the idea that any work stoppage or slowdown in that particular industry can be
detrimental to the national interest.
Clearly, reinstatement should be actual and not payroll reinstatement.

XVIII
A. Yes, Nadine’s employer can legally deny her claim for maternity benefits. This is
because the maternity benefits shall be paid only for the first four (4) deliveries or
miscarriages. (See Section 14-A, RA 8282) In this case, the said pregnancy was the
5th child of Nadine. Thus, she already exhausted the limitations for entitlement to
maternity benefits under the law.
B. Nestor’s employer can legally deny his claim for paternity benefits for his failure to
comply with the conditions for entitlement to paternity benefits.
Under the law, a married male employee shall be entitled to paternity benefits
provided that: 
a. he is an employee at the time of delivery of his child; 
b. he is cohabiting with his spouse at the time she gives birth or suffers a
miscarriage. 
c. he has applied for paternity leave in accordance with Section 4 hereof; and 
d. his wife has given birth or suffered a miscarriage. (Section 3, Revised
Implementing Rules and Regulations of Republic Act No. 8187 for the Private Sector)
In this case, Nadine is not Nestor’s lawful wife to whom he is cohabiting.

XIX
A. The transfer of the 50 ground crew personnel does not amount to Illegal dismissal.
This is because their transfer is a valid exercise of management prerogatives.In
Gemina, Jr. v. Bankwise, Inc. (Thrift Bank) G.R. No. 175365, October 23, 2013, it
was held: The employer’s right to conduct the affairs of its business, according to its
own discretion and judgment, is well-recognized. An employer has a free reign and
enjoys wide latitude of discretion to regulate all aspects of employment and the only
criterion to guide the exercise of its management prerogative is that the policies,
Timothy Charles Chen Labor Review
2015-0203
rules and regulations on work-related activities of the employees must always be fair
and reasonable. Employees in the exercise of their right to self-organization, that is,
whether the employer has engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employees’ rights; and that it is not
necessary that there be direct evidence that any employee was in fact intimidated or
coerced by statements of threats of the employer if there is a reasonable inference
that anti-union conduct of the employer does have an adverse effect on self-
organization and collective bargaining.
In the given facts, it does not show that the act of Northern Airlines in sending notices
of transfer relates to the commission of acts that transgress their right to organize or
it was made to interfere, restrain or coerce them with the exercise of their right to
self-organization.

XX
A. The ULP case filed by the Union will not prosper. This is because the act did not
constitute an act of interfering, restraining or coercing the said employees in the
exercise of their right to self-organization under Article 259 [a] of the Labor Code.In T
& T Shoplifters Corporation/Gin Queen Corporation v. T&T Shoplifters
Corporation/Gin Queen Corporation Workers Union, G.R. No. 191714, February 26,
2014 citing the case of Insular Life Assurance Co., Ltd. Employees Association –
NATU v. Insular Life Assurance Co., Ltd., (147 Phil. 194 [1971]) the Supreme Court
had occasion to lay down the test of whether an employer has interfered with and
coerced employees in the exercise of their right to self-organization, that is, whether
the employer has engaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of employees’ rights; and that it is not necessary that
there be direct evidence that any employee was in fact intimidated or coerced by
statements of threats of the employer if there is a reasonable inference that anti-
union conduct of the employer does have an adverse effect on self-organization and
collective bargaining. In the given facts, it does not show that the act of the company
supervisor in barging in and demanding for Nad, Ned, and Nod to cease from
distributing the flyers relates to the commission of acts that transgress their right to
organize or it was made to interfere, restrain or coerce them with the exercise of their
right to self-organization.
B. Northern Lights Corporation is not correct. The rights that were violated belongs to the union
members, Nad, Ned, and Nod, and not the union itself. Further, the said union members were
the real party in interest in the said case for ULP filed by the union against the corporation
and not the union itself. The union is a juridical person and as a rule it cannot not suffer moral
damages.