DELMO, MARK ANTHONY R.

– LABOR LAW PROJECT – FEBRUARY 16, 2020

1.
It is an established rule that the four elements of an employment relationship are:
(a) the selection and engagement of the employee;
(b) the payment of wages;
(c) the power of dismissal; and
(d) the employer’s power to control the employee’s conduct.

2.

Jurisprudence dictates that the relationship between jeepney owners/operators on one hand
and jeepney drivers on the other under the boundary system is that of employer-employee and
not of lessor-lessee. It was explained that in the lease of chattels, the lessor loses complete
control over the chattel leased although the lessee cannot be reckless in the use thereof, otherwise
he would be responsible for the damages to the lessor. In the case of jeepney owners/operators
and jeepney drivers, the former exercise supervision and control over the latter. The management
of the business is in the owner’s hands. The owner as holder of the certificate of public
convenience must see to it that the driver follows the route prescribed by the franchising
authority and the rules promulgated as regards its operation. Now, the fact that the drivers do not
receive fixed wages but get only that in excess of the so-called “boundary” they pay to the
owner/operator is not sufficient to withdraw the relationship between them from that of employer
and employee.

3.

No, the reversal is not correct. It is a well-settled rule that in controversies between a laborer
and his master, doubts reasonably arising from the evidence, or in the interpretation of agreement
and writings, should be resolved in the former's favor. There appears to be serious doubts in the
evidence on record as to the factual basis of the charges against Procopio. These doubts should
be resolved in his favor in line with the policy under the Labor Code to afford protection to labor
and construe doubts in favor of labor.
 4.

No, AMA’s contention is not correct. Section 7, Republic Act no. 10022, an act amending
Republic Act no. 8042 states that:

“The liability of the principal/employer and the recruitment/placement agency for any and all
claims under this section shall be joint and several. This provision shall be incorporated in the
contract for overseas employment and shall be a condition precedent for its approval. The
performance bond to de filed by the recruitment/placement agency, as provided by law, shall be
answerable for all money claims or damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the corporate officers and directors and
partners as the case may be, shall themselves be jointly and solidarily liable with the corporation
or partnership for the aforesaid claims and damages.”

Moreover, such liabilities shall continue during the entire period or duration of the employment
contract and shall not be affected by any substitution, amendment or modification made locally
or in a foreign country of the said contract.”

Hence, Andrew Manning Agency (AMA) and Invictus Shipping, its foreign principal, is jointly
and severally liable for the payment of Feliciano’s salaries and benefits for the unserved portion
of the contract.

5.

Under Section 1(i), Rule II, Omnibus Rules and Regulations Implementing The Migrant
Workers and Overseas Filipinos Act of 1995 as amended by Republic Act No. 10022, Direct
Hires are workers directly hired by employers for overseas employment as authorized by the
Secretary of Labor and Employment and processed by the POEA including:

1. Those hired by international organizations

2. Those hired members of the diplomatic corps.

3. Name hires or workers who are able to secure overseas employment opportunity with an
employer without the assistance or participation of any agency.

 The above-mentioned provision of direct hires are exceptions to the ban on direct-hiring under
Article 18 of the Labor Code.
 6.

The employer’s contention is not correct. The Labor Code speaks of non-resident aliens
that are required to obtain an alien employment permit. Under Section 2 (g) of Revised Rules for
the Issuance of Employment Permits to Foreign Nationals, foreign nationals are exempt from
securing an employment permit if he is permanent resident foreign nationals, probationary or
temporary visa holders. Hence, Phil, a resident alien, may sought employment in the Philippines.

7.

a.) No, the wage order is not subject to the approval of the National Wages and
Productivity Commission. Under Section 4, Rule IV, NWPC Guidelines No. 01 Series of
2007, the function of the National Wages and Productivity Commission is to review the
Wage Order issued by the Board, in this case, the Regional Tripartite and Productivity
Board.

(b) Under Section 1, Rule V of the NWPC Guidelines No. 01 Series of 2007,
Kilusang Walang Takot, a federation of labor organizations may publicly and openly assails
the wage order not later than ten (10) days from the date of publication of the Order, any
party aggrieved by a Wage Order issued by the Board may appeal such Order to the
Commission by filing a verified appeal with the Board in three (3) printed legible copies.
The appeal shall be accompanied by a memorandum of appeal which shall state the grounds
relied upon, the arguments in support of the appeal and the relief being sought. Moreover,
Kilusang Walang Takot may appeal on the grounds under Section 2, RULE V of NWPC
Guidelines No. 01 Series of 2007 for: a) non-conformity with prescribed guidelines and/or
procedures; b) questions of law; c) grave abuse of discretion.

8.

Yes, Percival is correct. As a general rule, the eight hour period does not include the meal
break. However, in the case of Percival, he was required to forego his meals or to hurry up
eating. The meal period should therefore be considered compensable hours of work and a work
beyond eight hours. Hence, Percival is entitled to overtime pay.
9.

The differences between an apprentice between a learner are as follows:

a. In Apprenticeship, the agreement entered by the parties is known as Apprenticeship

Agreement while In learnership, the agreement entered by the parties is known as
Learnership Agreement;
b. In Apprenticeship, the agreement shall not be less than four (4) months and not more
than six (6) months while in learnership, the agreement period shall not be more than
three (3) months;
c. In apprenticeship, the enterprise is not obliged to hire the apprentice after the
apprenticeship period while in learnership, the enterprise is obliged to hire the learner
after the learnership period;
d. In apprenticeship, upon pre-termination of the agreement there is no regular
employment by operation of law; while in learnership, a learner allowed or suffered
to work during the first two (2) months shall be deemed regular employees if training
is terminated by the employer before the end of the stipulated period through no fault
of the learners;
e. In apprenticeship, the persons hired as trainees is known as apprentice; while in
learnership, the persons hired as trainees is known as learner (Articles 73, Labor;
f. In apprenticeship, the law did not provide any reasons where an apprentice may be
hired while in learnership, the law provides the following reasons for hiring (1) when
no experienced workers are available; (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;
g. In apprenticeship, the qualifications are (a) At least fifteen (15) years of age; (b)
Possess vocational aptitude and capacity for appropriate tests; and (c) Possess the
ability to comprehend and follow oral and written instructions and no justifications or
reasons given by law for hiring; while in learnership, the law did not provide such
qualifications. However, reasons or justifications for hiring are provided by law;
h. In apprenticeship, the occupations involves “highly technical industries” which means
trade, business, enterprise, industry, or other activity, which is engaged in the
application of advanced technology and apprenticeable occupations must be approved
by TESDA; while in learnership, the occupations involves are semi-skilled and other
industrial occupations which are non-apprenticeable and learnable occupations must
be approved by TESDA.
 10.

Yes. Under the law, a Domestic worker or “Kasambahay” refers to any person engaged in
domestic work within an employment relationship such as, but not limited to, the following:
general househelp, nursemaid or “yaya”, cook, gardener, or laundry person. On the other hand, a
homeworker or an “Industrial Homeworker” means a worker who is engaged in industrial
homework.

11.

No, the policy is not valid. The company policy violates the right against discrimination.
Under the Labor Code, It shall be unlawful for an employer to require as a condition of
employment or continuation of employment that a woman employee shall not get married, or to
stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed
resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a
woman employee merely by reason of her marriage. Moreover, it is a settled rule that the
requirement of a company policy must be reasonable under the circumstances to qualify as a
valid exercise of management prerogative.

12.

The contention of Tarciso is untenable. In the case of Gaa v. Court of Appeals, the Supreme
Court held that Article 1708 used the word "wages" and not "salary" in relation to "laborer"
when it declared what are to be exempted from attachment and execution. Hence, the monthly
salary of Tarcisio is subject to garnishment.

13.

The contention of AB Hoteland is correct. Under the law, the test of independent
contractorship is that the independent contractor has contracted to do the work according to his
own methods and without being subject to the control of the employer, except only as to the
results of the work. Moreover, the Supreme Court held that the criteria in determining the
existence of an independent and permissible contractor relationship, to wit: the nature and extent
of the work; the skill required; the term and duration of the relationship; the right to assign the
performance of a specified piece of work; the control and supervision of the work to another; the
employer’s power with respect to the hiring, firing and payment of the contractor’s workers; the
control of the premises; the duty to supply the premises, tools, appliances, materials, and labor;
and the mode, manner and terms of payment. In this case, the nurses are employees of Dr.
Crisostomo. Dr. Crisostomo was the one paying the salaries of the nurses and even reported them
for SSS coverage. Hence, the element of payment of wages is present.
 14.

No. Marciano’s claim is not tenable. The Supreme Court held that what constitute stare
decisis with respect to the employment status of seafarers as contractual employees, not regular
employees, notwithstanding performance of usually necessary and desirable functions which
exceed one year or continuous rehiring. It is well-settled that Seafarers are contractual employees
for a fixed term, governed by the contracts they sign.

15.
a.) Managerial employees – Under the Labor Code, these employees are vested with
powers or prerogatives to lay down and execute management policies and/or to hire,
transfer, suspend, lay-off, recall employees. Moreover, Managerial employees cannot
join, assist or form unions

Supervisory employees – Under the Labor Code, these employees are those who,
in the interest of management, effectively recommend such managerial actions if the
exercise of such authority is not merely routine or clerical in nature, but requires use of
independent judgment. Moreover, Supervisory employees are not eligible for
membership in a labor organization of rank-and-file employees but may join, assist, or
form separate labor organizations of their own.

Rank-and-file employees – Under the Labor Code, All other employees not
falling within the definition of “managerial” or “supervisory” employees are considered
rank-and-file employees. Moreover, Rank and-file employees have the right to form, join
or assist unions of their own choosing.

(b) No, these confidential employees cannot form, assist, or join labor unions. The
exclusion from bargaining units of employees who, in the general course of their duties,
become aware of management policies relating to labor relations is founded upon the
confidential employee rule”. The rationale behind this rule is that employees should not
be placed in a position involving a potential conflict of interests.
 16.

Labor-only contracting occurs when: (1) the person supplying. workers to an employer does not
have substantial capital or investment in the form of tools, equipment, machineries, work
premises, among others; and (2) the workers recruited and placed by such person are performing
activities which are directly related to the principal business of such employer. A finding that a
contractor is a labor-only contractor is equivalent to a declaration that there is an employer-
employee relationship between the principal and the employees of the labor-only contractor. The
liability of the principal vis-à-vis the employees of the labor-only contractor is comprehensive,
i.e., not only for unpaid wages but for all claims under the Labor Code and ancillary laws.

On the other hand, there is labor contracting when: (1) the contractor carries on an independent
business and undertakes the contract work on his own account under his own responsibility
according to his own manner and method, free from the control and direction of his principal in
all matters connected with the performance of the work except as to the results thereof; and (2)
the contractor has substantial capital or investment in the form of tools, equipment, machineries,
work premises, and other materials which are necessary in the conduct. In such a case, the person
or intermediary shall be considered merely as an agent of the employer, who shall be responsible
to the workers in the manner and extent as if the latter were directly employed by him. What are
the grounds for validly terminating the services of an employee based on a just cause? (5%)

17.

Under Article 296 of the Labor Code of the Philippines, an employer may terminate an
employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representatives; and

e) Other causes analogous to the foregoing.

 18.

The procedural due process mandates that the twin requirements of Notice and Hearing should
be present. The two notices are as follows:

1st notice: Notice of appraisal, which is a written notice served on the employee specifying the
ground or grounds of termination, and giving the employee reasonable opportunity within which
to explain his side. The first notice should contain a detailed narration of facts and circumstances
that will serve as basis for the charge or specific causes or ground for termination against the
employee, and a directive that the employee is given the opportunity to submit his written
explanation within a reasonable period. This is to enable the employee to intelligently prepare
his explanation and defenses. After receiving the first notice apprising him of the charges against
him, the employee may submit a written explanation. In such a case, the conduct of a formal
hearing or conference becomes mandatory, as where there exist substantial evidentiary disputes
or where company rules or practice requires an actual hearing as part of employment pre-
termination procedure

2nd notice: Notice of termination, which is a written notice of termination served upon the
employee, indicating that upon due consideration of all the circumstances, grounds have been
established to justify his termination.
19.

a. Voluntary Recognition: An employer may voluntarily recognize the representation status of a

labor union if the establishment is unorganized and has only one legitimate labor organization.
Such voluntary recognition, accompanied by supporting documents, should be submitted to the
Regional Office, which issued the labor union’s certificate of registration.

b. Certification Election: This is the process by which a legitimate labor organization or the
employer may file a petition for certification election to determine the choice of an exclusive
collective bargaining agent of the employees. A med-arbiter shall automatically order a
certification election by secret ballot when a petition is filed (1) in an unorganized establishment
or (2) in an organized establishment where the petition is supported by at least 25% of all
employees in the bargaining unit. To have a valid certification election, at least a majority of all
eligible votes in the bargaining unit must have cast their votes. The labor union receiving the
majority of the valid votes cast shall be certified as the exclusive bargaining agent of all
employees in the unit.

c. Consent Election: Similar to a certification election proceeding, consent election is the process
of determining through secret ballot the sole and exclusive bargaining agent of employees in an
appropriate collective bargaining unit for purposes of collective bargaining or negotiations. This
process, however, differs from a certification election as this is voluntarily agreed upon by the
parties, with or without the DOLE’s intervention. In such a case, the med-arbiter need not issue a
formal order calling for such an election. The minutes of the agreement and records of the case
are forwarded to the Regional Director for implementation of the consent election.

20.

Yes, Marcel’s argument is correct. It is a settled rule that the Labor Arbiter do not have
jurisdiction when the complaint for illegal dismissal filed by Marcel is intra-corporate. Marcel as
the Vice-President for Finance and Administration is not a corporate official. Although he is a
member of the Board of Directors, he was not removed as such; he was removed only from his
position as Vice-President.

21.

Under Article 274 of the Labor Code, the Voluntary Arbitrator, or Panel of Voluntary
Arbitrators in labor disputes shall have original and exclusive jurisdiction to hear and decide all
unresolved grievances arising from the interpretation or implementation of the Collective
Bargaining Agreement and those arising from the interpretation or enforcement of company
personnel policies referred to in the immediately preceding article. Accordingly, violations of a
Collective Bargaining Agreement, except those which are gross in character, shall no longer be
treated as unfair labor practice and shall be resolved as grievances under the Collective
Bargaining Agreement.

22.

No, Mandarin cannot recover the backwages and other benefits paid to Juanito. It is an
established rule that the decisions of the Labor Arbiter insofar as the reinstatement aspect is
concerned, is immediately executory pending appeal, it was held that the order of the Labor
Arbiter is self-executory; hence, it is the obligation of Mandarin to immediately admit Juanito
back to work or reinstate him in the payroll. In this case, the reinstatement salaries due to Juanito
were, by their nature, payment of unworked backwages. It was due to juanito because he was
prevented from working despite the finding of the Labor Arbiter that he had been illegally
dismissed.
 23.

(a) Under Section 8 of Rep. Act No. 1161, Dependents are any unmarried legitimate or
legitimated child of the covered employee who is under eighteen years of age, and any such child
over eighteen years of age, and the legitimate spouse and parents of said employee who are
unable to work and who are wholly dependent upon regular support from him. In this case, the
legal dependents of Gene under the Social Security Law are the legitimate, legitimated or legally
adopted child who is unmarried, not gainfully employed and not over twenty-one years of age, or
over twenty-one years of age provided that he is congenitally incapacitated and incapable of self-
support, physically or mentally; the legitimate spouse dependent for support upon the employee;
and the legitimate parents wholly dependent upon the covered employee for regular support.

(b) Yes, Gene is entitled to the funeral aid for the death of his widowed mother. There is a
stipulation in the CBA which entitles funeral or bereavement aid of P15,000.00 in case of the
death of a legal dependent of a regular employee. In this case, she is a legitimate parent wholly
dependent upon him for regular support for many years. It is a settled rule that the coverage of
the term “legal dependent” in a stipulation in a CBA granting funeral or bereavement benefits to
a regular employee for the death of a legal dependent, if the CBA is silent about it, is to be
construed as similar to the meaning that contemporaneous social legislation have set. This is
because the terms of such social legislation are deemed incorporated in or adopted by the CBA.

25.

No, the serious disease Rosa contracted during her trip to Africa is not compensable.
Under the law, it is required that the sickness and the resulting injury must have arisen out of or
in the course of employment. In the present case, Rosa contracted the disease while on vacation
leave. Moreover, for sickness and the resulting disability to be compensable, the sickness must
be the result of an occupational disease listed under the Amended Rules on Employees’
Compensation with the condition set therein satisfied; otherwise, proof must be shown that the
risk of contracting the disease is increased by the working condition. Hence, the disease
contracted by her in Africa during her vacation leave is not compensable.