Labor Law Blue Tips 2022

ATENEO CENTRAL
BAR OPERATIONS 2022 LABOR LAW BLUE TIPS
PRAYER FOR THE BAR EXAMINATIONS
O God, we come before You this day,

as we are preparing/studying for the bar examinations.
This is the most important event in our lives,

one full of consequences for our own future,
and for the hopes and expectations of many who love us and
are concerned for us: our parents and relatives, our friends,
our professors who have worked hard to prepare us for it.
We ask for help.

Make our memories ready to recall all the
knowledge we have stored in them by our study.
Help us to understand the full meaning of the questions and
to see the exact answers.
Give us the facility of expression to answer
clearly and accurately.
Give us peace of soul
that we may not get upset under the pressure of the task.
We do not ask this by our own merits.

We cannot point to our faithful service
in the past as deserving of this special help.
We have in fact been careless and disobedient.
We ask this from Your Fatherly mercy and compassion through

Your Son, our Lord Jesus Christ.
Listen to our prayers through the intercession of our Blessed Mother,
patroness of our University and of St. Thomas More,
patron of our Law School.
Amen.
Are you the element of control over means and method?

Because you’re the most important element in our relationship.
Special thanks to Atty. Benjamin Yan!
THE BLUE TIPS ARE EXCLUSIVELY FOR THE USE OF ATENEO BAR TAKERS FOR THE 2022 BAR
EXAMINATIONS. UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS PROHIBITED.
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Labor I
Fundamental Principles
Q1: What is the principle of co-determination?
A1: This refers to the right of workers to participate in the policy and decision making processes directly affecting
their rights and benefits, without intruding into matters pertaining to management prerogative. (PAL v. NLRC,
G.R. No. 85985, 1993)
Fourfold test and Economic Dependence/Realities Test (Tests to Determine EER)
Q2: What are the tests to determine the presence of Employer-Employee Relationship?
A2: The Fourfold Test and Economic Dependence/Realities Test
Q3: What is the Fourfold test?

A3:
1. The power to hire, i.e., the selection and engagement of the employee;
2. The payment of wages;
3. The power of dismissal; and
4. The employer's power to control the employee's conduct, or the so called "control test." The control test
is commonly regarded as the most important indicator of the presence or absence of an employer-
employee relationship.
Under this test, an employer-employee relationship exists where the person for whom the services are performed
reserves the right to control not only the end achieved, but also the manner and means to be used in reaching
that end. (Century Properties Inc., v. Babiano, G.R. No. 220978, 2016)
Q4: What is the Economic Dependence/Realities Test?

A4: Economic Dependence/Reality Test: (1) Control; and (2) the underlying economic realities of the activity or
relationship.
The proper standard of economic dependence is whether the worker is dependent on the alleged employer for
his continued employment in that line of business. Francisco served the company for 6 years before her
dismissal, receiving check vouchers indicating her salaries/wages, benefits, 13th month pay, bonuses and
allowances, as well as deductions and SSS contributions. (Francisco v. NLRC, G.R. No. 170087, 2006)
Types of Employees
Q5: What is the test to determine regular employment?

A5: The primary standard of determining regular employment is the reasonable connection between the
particular activity performed by the employee to the usual trade or business of 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)
Q6: What are the ways of attaining regular employment?

A6:
1. By Nature of Work
2. By length of service
3. Work beyond the probationary employment
4. Repeated Hiring
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Q7: How is regular employment attained by nature of work?

A7: The employment is deemed regular when the employee has been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer. (Labor Code, Art. 295; Paguio v.
NLRC G.R. No. 147816, 2003)
Q8: How is regular employment attained by length of service?

A8: The casual employee is reckoned as regular when the employee has rendered at least one (1) year of
service, whether such service is continuous or broken, with respect to the activity in which he is employed and
his employment shall continue while such activity exists. (Labor Code, Art. 295; Conti v. NLRC, G.R. No. 119253,
1997)
Q9: How is regular employment attained by work beyond the probationary employment?
A9: The employment is considered regular when the employee is allowed to work after a probationary period.
(Labor Code, Art. 296)
Q10: How is regular employment attained by repeated hiring?

A10: When the "seasonal" workers are continuously and repeatedly hired to perform the same tasks or activities
for several seasons or even after the cessation of the season, this length of time may likewise serve as badge of
regular employment. (Universal Robina Sugar Milling Corporation v. Acibo, G.R. No. 186439, 2014)
Q11: TRUE OR FALSE: Regular employment means permanent employment.

A11: FALSE. Regular employment does not mean permanent employment. A regular employee may be
terminated for just and authorized causes.
Q12: What is casual employment?

A12: General Rule:It is when the activity performed by the employee is not usually necessary or desirable in the
usual business or trade of the employer, not project and not seasonal. Otherwise stated, casual employees
perform activities which are incidental to the business of the employer.
Exception: If he has rendered at least 1 year of service, whether such service is continuous or broken, he is
considered a REGULAR employee with respect to the activity in which he is employed and his employment shall
continue while such activity exists. (Labor Code, Art. 295)
Q13: What are the elements of a valid fixed-term employment?

A13:
1. The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any
force, duress, or improper pressure being brought to bear upon the employee and absent any other
circumstances vitiating his consent;
2. It satisfactorily appears that the employer and the employee dealt with each other on more or less equal
terms with no moral dominance exercised by the former or the latter.
Q14: What is the difference between a fixed-term employee and a project employee?
A14: The decisive determinant in project employment is the activity that the employee is called upon to perform
and not the day certain agreed upon by the parties for the commencement and termination of the employment
relationship. (E. Ganzon v. Ando, G.R. No. 214183, 2017)
Job Contracting
Q15: What is labor only contracting?
A15: Labor only contracting shall refer to an arrangement where the contractor or subcontractor recruits,
supplies, or places workers to perform a job or work for a principal.
Q16: What are the elements of labor only contracting?

A16:
1. The contractor does not have substantial capital; or the contractor or subcontractor does not have
investments in the form of tools, equipment, machineries; the contractor’s or subcontractor’s employees
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recruited and placed are performing activities which are directly related to the main business operation
of the principal; or
2. The contractor or subcontractor does not exercise the right of control over the work of the employee
(D.O. No. 174-17, Sec. 5)
Q17: What are illicit forms of job contracting?

A17: The following are declared prohibited for being contrary to law or public policy:
1. When the principal farms out work to a "Cabo".
2. Contracting out of job or work through an in-house agency.
3. Contracting out of job or work through an in-house cooperative which merely supplies workers to the
principal.
4.  Contracting out of a job or work by reason of a strike or lockout whether actual or imminent.
5. Contracting out of a job or work being performed by union members and such will interfere with, restrain
or coerce employees in the exercise of their rights to self-organization as provided in Article 259 of the
Labor Code, as amended
6. Requiring the contractor's/subcontractor's employees to perform functions which are currently being
performed by the regular employees of the principal.
7. Requiring the contractor's/subcontractor's employees to sign, as a precondition to employment or
continued employment, an antedated resignation letter; a blank payroll; a waiver of labor standards
including minimum wages and social or welfare benefits; or a quitclaim releasing the principal or
contractor from liability as to payment of future claims; or require the employee to become member of a
cooperative.
8. Repeated hiring by the contractor/subcontractor of employees under an employment contract of short
duration.
9. Requiring employees under a contracting/subcontracting arrangement to sign a contract fixing the period
of employment to a term shorter than the term of the Service Agreement, unless the contract is divisible
into phases for which substantially different skills are required and this is made known to the employee
at the time of engagement.
10. Such other practices, schemes or employment arrangements designed to circumvent the right of workers
to security of tenure. (D.O. No. 174-17, Sec. 6)
Q18: What is the significance of a Certificate of Registration issued by the DOLE in labor-only
contracting?
A18: A Certificate of Registration issued by the Department of Labor and Employment is not conclusive evidence
of being a contractor. The fact of registration simply prevents the legal presumption of being a mere labor-only
contractor from arising. (Babas v. Lorenzo Shipping, G.R. No. 186091, 2015).
Labor Standards
Q19: Who is a Night Worker?
A19: Any employed person whose work requires performance of a substantial number of hours of night work
which exceed a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers’
representatives/labor organizations and employers. (Labor Code, Art. 154, as amended by R.A. No. 10151)
Q20: What is a Night Shift Differential?

A20: Every employee shall be paid a night shift differential of not less than 10% of his regular wage for each hour
of work performed between ten o’clock in the evening (10 pm) and six o’clock in the morning (6 am). (Labor
Code, Art. 86)
Q21: To whom is a Night Shift Differential applicable?

A22:
General Rule: This benefit applies to ALL employees
EXCEPT: (Go-FR-PMS)
1. Those of the government and any of its political subdivisions, including government-owned and/or
controlled corporations;
2. Those of retail and service establishments regularly employing not more than five (5) workers;
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3. Domestic helpers and persons in the personal service of another;

4. Managerial employees as defined in Book Three of this Code;
5. Field personnel and other employees whose time and performance is unsupervised by the employer
including those who are engaged on task or contract basis, purely commission basis, or those who are
paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.
(IRR Labor Code, Book III, Rule II, Sec. 1)
Q23: What is the formula for computing an employee’s Night Shift Differential?
A23: NSD = (10% x regular wage/hr.) x no. of hrs. of work between 10 pm – 6 am
NOTE: If work done between 10 pm and 6 am is Overtime work, the NSD should be based on the OT rate.
NOTE: Additional compensation for nighttime work is founded on public policy. (Mercury Drug v. Dayao, G.R.
No. L-30452) NSD is not waivable except for higher and bigger benefits.
Q24: What is Overtime Pay?

A24: It is payment for work exceeding eight hours within the worker’s 24-hour workday regardless whether the
work covers 2 calendar days.
Q25: Who can benefit from Overtime Pay?

A25: This benefit applies to all employees EXCEPT (Go-Ma-Off-FiFa-DoPe):
1. Government employees
2. Managerial employees if they meet all of the following conditions:
1. Their primary duty consists of the management of the establishment in which they are employed
or of a department or sub-division thereof.
2. They customarily and regularly direct the work of two or more employees therein.
3. They have the authority to hire or fire employees of lower rank; or their suggestions and
recommendations as to hiring and firing and as to the promotion or any other change of status
of other employees, are given particular weight. (IRR Labor Code, Book III, Rule I, Sec. 2)
3. Officer or members of a managerial staff if they perform the following duties and responsibilities:
1. The primary duty consists of the performance of work directly related to management policies
of their employer;
2. Customarily and regularly exercise discretion and independent judgment; and
3.
1. (Regularly and directly assist a proprietor or a managerial employee whose primary
duty consists of the management of the establishment in which he is employed or
subdivision thereof; or
2. execute under general supervision work along specialized or technical lines requiring
special training, experience, or knowledge; or
3. execute, under general supervision, special assignments and tasks; and
4. Who do not devote more than 20 percent of their hours worked in a work week to activities
which are not directly and closely related to the performance of the work described in
paragraphs (1), (2) and (3) above.
4. Non-agricultural Field Personnel
1. Non-agricultural employees who regularly perform their duties away from the principal place of
business or branch office of the employer and whose actual hours of work in the field cannot be
determined with reasonable certainty) (Autobus Transport v. Bautista, G.R. No. 156367, 2005)
5. Members of the Family of the employer who are dependent on him for support
6. Domestic Helpers
7. Persons in the personal service of another h. Workers who are paid by Results (IRR Labor Code, Book
III, Rule I, Sec. 2)
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Q27: What are the Overtime Pay Rates?

A27:
SCENARIO RATE
OT ON A REGULAR DAY Regular wage + at least 25% thereof
OT ON A HOLIDAY/SPECIAL DAY/EMPLOYEES Rest day or special holiday wage rate (130%) +

REST DAY 30% thereof.
OT ON A HOLIDAY WHICH FALLS ON A REST DAY Rest day & holiday wage rate (150%) + 30%
thereof.
NOTE: Since OT work is considered hourly, the pay rate is computed on per hour basis. The daily wage is divided
by 8 to get the hourly base rate.
Daily Rate = monthly salary x 12

Total no of days considered paid in a year
Q28: What is the definition of a Wage?

A28: It is the
1. Remuneration or earnings, however designated, capable of being expressed in terms of money, whether
fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same,
which is payable by an employer to an employee under a written or unwritten contract of employment
for work done or to be done, or for services rendered or to be rendered;
2. INCLUDES, the fair and reasonable value, as determined by the DOLE Secretary, of board, lodging, or
other facilities customarily furnished by the employer to the employee. (Labor Code, Art. 97)
Q29: What is the difference between a Wage and a Salary?

A29:
WAGE SALARY
Paid for skilled or unskilled manual labor Paid to white collar workers and denote a higher
grade of employment
Not subject to execution, garnishment or attachment Not exempt from execution, garnishment or
except for debts related to necessities (Civil Code, Art. attachment. (Gaa v. CA, G.R. No. L- 44169,
1708) 1985)
Expanded maternity leave (105 days standard)

Q30: What is the 105-Day Expanded Maternity Leave?
A30: A female Social Security System (SSS) member who has paid at least three (3) monthly contributions in
the twelve (12)-month period immediately preceding the semester of her childbirth, miscarriage, or emergency
termination of pregnancy shall be paid her daily maternity benefit which shall be computed based on her average
monthly salary credit for one hundred five (105) days, regardless of whether she gave birth via caesarian section
or natural delivery.
Q31: What are the conditions under which an employee may be entitled to a Maternity leave?
A31:
1. That the female worker shall have notified her employer of her pregnancy and the probable date of her
childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations it
may provide;
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2. That the full payment shall be advanced by the employer within thirty (30) days from the filing of the
maternity leave application;
3. That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided
under Republic Act No. 1161, as amended, for the same period for which daily maternity benefits have
been received;
4. That the SSS shall immediately reimburse the employer of one hundred percent (100%) of the amount
of maternity benefits advanced to the female worker by the employer upon receipt of satisfactory and
legal proof of such payment; and
5. That if a female worker should give birth or suffer a miscarriage or emergency termination of pregnancy
without the required contributions having been remitted for her by her employer to the SSS, or without
the latter having been previously notified by the employer of the time of the pregnancy, the employer
shall pay to the SSS damages equivalent to the benefits which said female member would otherwise
have been entitled to. (RA 11210, Sec. 5a)
In case the employee qualifies as a solo parent under the Solo Parents’ Welfare Act, the employee shall be paid
an additional maternity benefit of 15 days. (RA 11210, Sec. 5a)
Q32: How does allocation of maternity leave credits work?

A32: In case of livebirth, a female worker may allocate or transfer up to seven days of her paid maternity leave
to the child’s father. This option is not applicable in cases of miscarriage or emergency termination of pregnancy,
including still birth.
In the absence of the father, the female employee may still allocate said maternity leave to an alternate
caregiver who is either a relative within the 4th degree of consanguinity or a current partner, regardless of sexual
orientation or gender identity, who shares with her the same household.
Written notice to both the mother and the father or alternate caregiver’s employers shall be submitted to avail of
the benefits. – (Sec. 1, Rule VIII, RA 11210 IRR)
Overseas Filipino Workers

Q33: What are the entitlements of an OFW dismissed without just, valid, or authorized cause?
A33:
1. Full reimbursement of the placement fee with interest at 12% per annum PLUS
2. His salary for unexpired portion of his employment contract OR salary for 3 months for every year of the
unexpired term, WHICHEVER IS LESSER. (R.A. No. 8042, Sec. 10)
Despite the fact that the clause “or for three (3) months for every year of the unexpired term, whichever is less”
was reinstated in R.A 8042 upon promulgation of R.A. 10022 in 2010, the Supreme Court reiterated its finding in
Serrano v. Gallant Maritime that limiting wages that could be recovered by an illegally dismissed overseas worker
to three months is both a violation of due process and the equal protection clauses of the Constitution. (Sameer
Overseas Placement Agency v. Cabiles, G.R. 170139, 2014)
Q34: What are the consequences if an employee is not deployed?

A34: Non-deployment may give rise to a cause of action for illegal recruitment.
The commencement of the employment relationship must be treated separately from the perfection of an
employment contract.
The perfection of the contract, which (as a general rule) coincides with the date of execution, occurred when the
parties agreed on the object and the cause, and the terms and conditions. Despite the non-deployment (which
caused the non-commencement of the employment relationship), rights have arisen based on the perfected
contract. (C.F. Sharp v. Pioneer Insurance, G.R. No. 179469, 2012)
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Q35: Who is responsible for bringing back an employee in the Philippines, in cases of Emergency
Repatriation?
A35: The Overseas Workers Welfare Administration (OWWA), in coordination with appropriate international
agencies, shall undertake the repatriation of workers in cases of war, epidemic, disaster or calamities, natural or
man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency.
However, in cases where the principal or recruitment agency cannot be identified, all costs attendant to
repatriation shall be borne by the OWWA. (Sec. 15, Republic Act. No. 8042)
Q36: Who is responsible for bringing back an employee in the Philippines, in cases of Normal
Repatriation?
A36: The repatriation of the worker and the transport of his personal belongings shall be the primary responsibility
of the agency which recruited or deployed the worker overseas. All costs attendant to repatriation shall be
borne by or charged to the agency concerned and/or its principal. Likewise, the repatriation of remains and
transport of the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the
principal and/or the local agency. However, in cases where the termination of employment is due solely to the
fault of the worker, the principal/employer or agency shall not in any manner be responsible for the repatriation
of the former and/or his belongings. (Sec. 15, Republic Act. No. 8042)
Recruitment
Q37: Who are entities authorized to engage in recruitment and placement activities?
A37:
1. Public employment offices
2. POEA
3. Private recruitment entities
4. Private employment agencies
5. Shipping or manning agents or representatives
6. Such other persons or entities as may be authorized by the DOLE Secretary
7. Construction contractor
Q38: Who are entities prohibited to engage in recruitment and placement activities for local
employment?
A38: Entities disqualified from Engaging in the Business of Recruitment and Placement of Workers for Local
Employment
1. Travel agencies and sales agencies of
2. Airline companies, whether for profit or not. (Art. 26)
3. Those who are convicted of illegal recruitment, trafficking in persons, anti- child labor violation, or crimes
involving moral turpitude;
4. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related
cases exist particularly to owners or directors of agencies who have committed illegal recruitment or
other related cases.
5. Those agencies whose licenses have been previously revoked or cancelled by the Department under
Sec. 54 of these rules.
6. fCooperatives whether registered or not under the Cooperative Act of the Philippines.
7. Law enforcers and any official and employee of the DOLE.
8. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage in
recruitment and placement.
9. Sole proprietors, partnerships or corporations licensed to engage in private recruitment and placement
for local employment are prohibited from engaging in job contracting or subcontracting activities. (Sec.
5, DO 141-14, Revised Rules and Regulations Governing Recruitment and Placement for Local
Employment)
Q39: Who are entities prohibited to engage in recruitment and placement activities for Overseas
employment?
A39:
1. Travel agencies and sales agencies of airline companies, whether for profit or not. (Art. 26)
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2. Officers or members of the Board of any corporation or partners in a partnership engaged in the business
of a travel agency;
3. Corporations and partnerships, where any of its officers, members of the board or partners is also an
officer, member of the board or partner of a corporation or partnership engaged in the business of a
travel agency;  
4. individuals, partners, officers, or directors of an insurance company who make, propose or provide an
insurance contract under the compulsory insurance coverage for agency- hired OFWs;
5. Sole proprietors, partners or officers and members of the board with derogatory records, such as, but
not limited to the ff:
1. Those convicted or against whom probable cause or prima facie finding of guilt is determined
by a competent authority for illegal recruitment or for other related crimes or offenses committed
in the course of, related to, or resulting from, illegal recruitment, or for crimes involving moral
turpitude
2. Those agencies whose licenses have been revoked for violation of RA 8042, PD 442, RA 9208,
and their IRRs;
3. Those agencies whose licenses have been cancelled, or those who, pursuant to the order of
the Administrator, were included in the list of persons with derogatory record for violation of
recruitment laws and regulations;
6. Any official employee of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI,
PNP, Civil Aviation Authority of the Philippines, international airport authorities, and other government
agencies directly involved in the implementation of RA 8042, as amended, and/or any of his/her relatives
within the fourth civil degree of consanguinity or affinity. (Part II, Rule I, Sec. 3, 2016 Revised POEA
Rules and Regulation
Labor II - Labor Relations
Union Registration
Q40: What is the purpose of union registration? What is its effect?

A40: Union registration enables a union to acquire legal personality and be entitled to the rights and privileges
granted by law.
Q41: What are the requirements for Registration?

A41: The requirements are as follows:
a. Fifty pesos (P50.00) registration fee;
b. The names of its officers, their addresses, the principal address of the labor organization, the
minutes of the organizational meetings and the list of the workers who participated in such
meetings;
c. In case the applicant is an independent union, the names of all its members comprising at least
twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate;
i. the 20% requirement is also not a continuing requirement, only important and
necessary at the time of union registration
d. If the applicant union has been in existence for one or more years, copies of its annual financial
reports; and
e. Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or
ratification, and the list of the members who participated in it [Art. 240, Labor Code]
Q42: What are the grounds for the cancellation of a labor organization?
A42: The following may constitute grounds for cancellation of union registration:
a. Misrepresentation, false statement or fraud in connection with the adoption or ratification of the
constitution and bylaws 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.
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Q43: Must the charter certificate of a labor organization be certified under oath to be considered a
legitimate labor organization?
A43: No. The charter certificate is prepared and issued by the national union and not the local chapter. Thus, it
will not make sense to have the local chapter’s officers certify or attest to a document which they had no
hand in the preparation. (Samahang Manggagawa sa Charter Chemical v. Charter Chemical, 2011)
Q44: Are the non-submission of financial statements by a registered union or failure to maintain
membership representing 20% of the appropriate bargaining unit throughout its lifetime valid
ground for cancellation of its registration?
A44: No. The 20% minimum membership is required only during union registration and need not be maintained
throughout the existence of the union. (MARIWASA Siam Ceramics, Inc. v. Secretary, 2009) The failure
to submit periodic financial statements is no longer a ground for cancellation. (The Heritage Hotel Manila
v. NUWHRAIN-HHMSC, 2011)
Q45: Will a petition to cancel the union registration bar the filing of a petition for certification election?
A45: No, a petition for cancellation of union registration shall not suspend the proceedings for certification
election nor shall it prevent the filing of a petition for certification election [Art. 246, Labor Code].
Collective Bargaining
Q46: What are the modes of determining an exclusive bargaining agent and their requisites?
A46: The following are the modes of determining the exclusive bargaining agent:
a. Sole and Exclusive Bargaining Agent (SEBA) Certification – it is applicable when there is only one
legitimate labor organization, whether it is an independent union or a chartered local, in a given
bargaining unit. Otherwise, the same shall be referred directly to the election officer for the conduct
of certification election. (D.O. 40-I-15)
b. Consent Election – when two or more contending unions voluntarily and mutually agree to hold the
certification election among themselves, with or without the participation and supervision of the
DOLE, to determine the issue of majority representation of all the workers in the appropriate
collective bargaining unit. (IRR Labor Code, Sec. 1[b], Rule 1, Book V)
c. Certification Election – refers to the process of determining through secret ballot the sole and
exclusive representative of the employees in an appropriate bargaining unit for purposes of
collective bargaining or negotiations (IRR Labor Code, Sec. 1[h], Rule I, Book V).
d. Run-off Elections – when majority of the bargaining unit voted in the election where at least 3
choices are involved including “no union.” However, not one of the choices obtained majority of the
valid votes cast. A run-off election may thus be held when the total number of votes for all
contending unions is at least 50% of the number of votes cast. (D.O. No. 40-03, Sec. 1 [ss], Rule I)
e. Re-run Elections – may be held in two instances: a) when breaking a tie between contending
unions, including “no union” and one of the unions and b) when a failure of election has been
declared by the Med-Arbiter. (D.O. No. 40-I-15)
Q47: What are the jurisdictional requirements for the mechanics of collective bargaining to be set in
motion?
A47: The following must be present:
a. Possession of exclusive bargaining agent status;
b. Proof of majority representation; and
c. Demand to bargain. (Kiok Loy v. NLRC, 1986)
Q48: What are the bars to a certification election

A48: A petition for certification election may be filed anytime, EXCEPT
a. [CERTIFICATION YEAR BAR] ]when a SEBA certification has been entered or a valid certification,
consent or run-off election has been conducted within the bargaining unit within one (1) year prior
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to the filing of the petition for certification election. Where an appeal has been filed from the Order
of the Mediator-Arbiter certifying the results of the election, the running of the one year period shall
be suspended until the decision on the appeal has become final and executory;
b. [NEGOTIATION BAR RULE] when the duly certified union has commenced and sustained
negotiations in good faith with the employer in accordance with Article 261(renumbered) of the
Labor Code within the one year period referred to in the immediately preceding paragraph;
c. [DEADLOCK BAR RULE] when a bargaining deadlock to which an incumbent or certified bargaining
agent is a party had been submitted to conciliation or arbitration or had become the subject of a
valid notice of strike or lockout;
d. [CONTRACT BAR RULE] when a collective bargaining agreement between the employer and a
duly certified bargaining agent has been registered in accordance with Article 237 of the Labor
Code. Where such collective bargaining agreement is reg [D.O.40-03, Rule VIII, Sec. 3]
Q49: What is the substitutionary negotiation doctrine?

A49: It refers to the principle providing that the CBA negotiated by a previous SEBA which is defeated in the
certification election and replaced by a new SEBA remains valid and shall be respected by the new SEBA,
subject to the right to negotiate for the shortening of the term of such CBA.
But see SONEDCO Workers Free Labor Union v. URC citing Associated Labor Unions v. Trajano, the
Court held that
the winning union had the option to either continue the existing collective bargaining agreement or
negotiate a new one:
If, as a result of the certification election, respondent union or a union other than petitioner union
which executed the interim agreement, is certified as the exclusive bargaining representative of the
rank and file employees of respondent company, then, such union may adopt the interim collective
bargaining agreement or negotiate with management for a new collective bargaining agreement[.]
Note: The decision says that a CBA entered into at a time when the petition for certification election has
already been filed by a challenger and is pending resolution cannot be deemed permanent. It describes
the CBA that was negotiated and was entered into during the pendency of a certification election case. It
calls that agreement an interim agreement. And it says that an interim agreement must be recognized and
given effect on a temporary basis so as not to deprive the workers of the favorable terms of the agreement.
This case does not abandon the substitutionary doctrine, since there was no mention of such doctrine in
the case and so we cannot say that there is a deliberate intent on the part of the SC to reverse previous
decisions or to abandon the substitutionary doctrine
Q50: When will there be a Re-run Election?

A50: There are two instances in which a re-run election may prosper
a. Failure of elections
b. When there is a tie
Q51: What are the requisites of a Run-off election?

A51:
a. Valid elections
b. There are 3 or more choices, including “no union” choice
c. Not one of the choices obtained majority of valid votes cast
d. Contending union received 50% of the votes cast
e. No unresolved challenges on votes that will materially affect the results of the elections
Q52: What are the procedural requirements for a valid strike?

A52: The procedural requirements for a valid strike are the following:
a. Notice of Strike or Lockout - filed with the DOLE at least 30 days before the intended date thereof,
or 15 days in case of ULP;
b. Cooling Off Period – 30 days for bargaining deadlock strikes, 15 days for ULP strikes;
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NOTE: Cooling off period is dispensed with if the ULP amounts to union busting;
a. Notice of meeting for Strike or Lockout vote to the NCMB - at least 24 hours before the conduct of
said meeting;
b. Conduct AND results of Strike or Lockout vote reported to the NCMB; and
c. 7-day strike ban observed.
These requirements are mandatory, such that non-compliance therewith by the union will render the strike
illegal. Open voting is strictly prohibited. (Hongkong & Shanghai Banking Corporation, et al vs.
NLRC, 2016)
Note: Focus on one or two steps in the past few bars so memorizing ALL the necessary steps and all
documentary requirements AND timelines
Termination of employment
Due Process
Q53: Does the non-compliance with the procedural requirements for conducting a valid strike negate
the claim of good faith on the part of the striking union?
A53: Yes. The petitioners’ disregard of the procedural requirements for conducting a valid strike negated their
claim of good faith. For their claim to be upheld, it was not enough for them to believe that their employer
was guilty of ULP, for they must also sufficiently show that the strike was undertaken with a modicum of
obeisance to the restrictions on their exercise of the right to strike prior to and during its execution as
prescribed by the law. They did not establish their compliance with the requirements specifically for the
holding of the strike vote and the giving of the strike notice. (Hongkong & Shanghai Banking Corporation,
et al vs. NLRC, 2016)
Q54: What are the just and authorized causes?

A54:
Ground Elements
Serious 1. The misconduct must be serious;

Misconduct 2. It must relate to the duties showing that the employee has become unfit to
continue working for the employer; and
3. It must have been performed with wrongful intent.
4. There must be a showing that the employee becomes unfit to continue working
for the (Multi-Purpose Cooperative v. Carbonilla, Jr., G.R. No. 212070, 2016)
Willful 1. The disobedience or insubordination must be willful or intentional characterized

Disobedience by a wrongful and perverse attitude;
2. The order violated must be reasonable and lawful
3. The order violated must be made known to the employee; and
4. The order must pertain to the duties which he has been engaged to discharge.
(D.O. 147-15)
Gross and habitual 1. The neglect of duty must be gross, meaning there is a want of care in the
neglect of duties performance of one’s duties; and
2. It must be habitual, meaning there is repeated failure to period of time, depending
on the circumstances. (Cavite Apparel, Inc. v. Marquez, G.R. No. 172044, 2013)
Fraud or Willful 1. The employee concerned must be one holding a position of trust and confidence;
Breach of Trust and
2. There must be an act that would justify the loss of trust and confidence.
(Prudential Guarantee & Assurance Employee Labor Union v. NLRC, G.R. No.
185335, 2012)
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Commission of a 1. That there be a commission of a crime or offense; and

crime or offense by 2. That it be against the immediate family members of the employer, meaning the
the employee against spouse, ascendants, descendants, legitimate, natural, or adopted brothers or
his employer or any sisters by affinity, and those by consanguinity within the fourth civil degree.
member of his family NOTE: Conviction is not required. (Starlite Plastic Industrial Corporation v. NLRC,
G.R. No. 78491, 1989)
Other analogous 1. The requisites of the abovementioned causes must not be satisfied; and
cases 2. It must be due to the voluntary and/or willful act or omission of the employer.
(Nadura v. Benguet Consolidated Inc., G.R. No. L- 17780, 1962)
Q55: What are the differences between authorized and just causes?
A55:
Parameters Authorized Causes Just Causes
As to who or what caused the Business or economic The deeds of the

ground reasons employee
As to the need for an employer to General Rule: Yes, the General Rule: No,
pay separation pay employer is required to the employer is not
pay separation pay required to pay
Exception: When the separation pay
closure or cessation of Exception: When
operation is due to the employee is
serious business losses deserving
As to procedural due process Only a notice is required Both a notice and a hearing are
to be given to the employee and required
the DOLE 30 days before the
employees’ separation
As to the effectivity date of the It will take effect at least 30 days It will take effect upon the
dismissal after the employee is notified determination by the employer
Q56: What is the effect if the dismissal of an employee is based on a just or authorized cause but
procedural due process requirements were not satisfied?
A56: Although an employer may legally dismiss an employee for a just cause, the non-observance of the
requirements of due process before effecting the dismissal leaves the employer liable for nominal
damages. (Samar-Med v. NLRC, 2013)
In Agabon v. NLRC (2004), the Court awarded nominal damages amounting to P30K without
distinguishing between just and authorized causes.
In Jaka Food v. Pacot (2006), the Court distinguished between just and authorized causes. It stated that
if a just cause for dismissal exists, the nominal damages for non-compliance with procedural due process
requirements must be tempered (since it is caused by the conduct of the employee) as compared to an
authorized cause.
In Industrial Timber v. Ababon (2006), further refined Jaka. For authorized causes, if the dismissal was
due to business losses, the damages to be awarded should be less compared to a dismissal not due to
business losses.
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Q57: What are the consequences of non-compliance with due process requirements?
A57:
Substantive Procedural Consequence
✓ ✓ Valid Dismissal
𝚡 𝚡 Illegal Dismissal
𝚡 ✓ Illegal Dismissal
✓ 𝚡 Valid dismissal but employer

must pay nominal
damages
Q58: What are the factors that affect the award of nominal damages?
A58:
1. The authorized cause involved;
2. Number of employees to be awarded;
3. Employer’s capacity to pay and satisfy the awards;
4. Employer’s award of other termination benefits;
5. The bona fide attempt to comply with the notice requirements. [Agabon v. NLRC]
Retirement
Q59: What is the nature of retirement plans?

A59: Retirement is the result of a bilateral act of the parties, a voluntary agreement between the employer and
the employee whereby the latter, after reaching a certain age, agrees to sever his or her employment with
the former Article 287 of the Labor Code, as amended by R.A. No. 7641 pegs the age for compulsory
retirement at 65 years, while the minimum age for optional retirement is set at 60 years. An employer is,
however, free to impose a retirement age earlier than the foregoing mandates. This has been upheld in
numerous cases as a valid exercise of management prerogative. (Cercado v. UNIPROM)
Q60: What is the rule on early retirement plans?

A60: A retirement plan giving the employer the option to retire its employees below the ages provided by law
must be assented to and accepted by the latter. Otherwise, its adhesive imposition will amount to a
deprivation of property without due process of law. (Cercado v. Uniprom, 2010)
Q61: When will the provisions of the Labor Code on retirement apply?
A61:
1. When there is no CBA or other employment contract that provides for the retirement benefits; and
2. When there is a CBA or other employment contract but they provide lesser benefits as prescribed by the
Labor Code [Philippine Airlines v. Hassaram]
Q62: In cases in which there is no CBA or the CBA gives lower benefits than the Retirement Pay Law,
how should the retirement pay be computed?
A62: The minimum amount of retirement pay is composed of ½ for every year of service provided the employee
mees the 5-year service requirement. A fraction of at least six (6) months being considered as one whole
year.
● Component of the ½ month salary for every year of service: 15 days salary (“salary” includes all
remunerations paid by an employer to his employees for services rendered during normal working
days and hours, whether such payments are fixed or ascertained on a time, task, piece of
commission basis) + 5 days of Service Incentive Leave + 1/12 of 13th month pay = 22.5 days
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● HENCE the formula is: [Daily Rate x 22.5 x # years of service] (Serrano v. Severino Santos
Transit, August 9, 2010)
Q63: In relation to the Q.23, is this formula applicable in all types of employment?
A63: As a general rule, this formula shall apply to all employees in the private sector, regardless of their position,
designation or status and irrespective of the method by which their wages are paid, except to those
specifically exempted under Section 2 hereof.
● Section 2. Exemptions - This Rule shall not apply to the following employees:
1. Employees of the National Government and its political subdivisions, including
Government-owned and/or controlled corporations, if they are covered by the Civil Service
Law and its regulations.
2. Domestic helpers and persons in the personal service of another.
3. Employees of retail, service and agricultural establishment or operations regularly
employing not more than ten (10) employees. As used in this sub-section. [IRR of RA 7641
amending Article 287 of the Labor Code]
● Furthermore, while the SIL law excludes from its coverage workers who are paid on a purely
commission basis, it is only with respect to field personnel. According to the Implementing Rules,
Service Incentive Leave shall not apply to employees classified as “field personnel”. Hence,
employees engaged on task or contract basis or paid on purely commission basis are not
automatically exempted from the grant of service incentive leave, unless, they fall under the
classification of field personnel. (Serrano v. Severino Santos Transit, August 9, 2010)
Q64: Is a part-time employee entitled to receive retirement benefits?

A64: The Labor Code does not distinguish between a full-time and a part-time employee. Part-time workers are
also entitled to retirement pay of “one-month salary” for every year of service under RA 7641 after
satisfying the following conditions precedent for optional retirement:
1. There is no retirement plan between the employer and the employee; and
2. The employee should have reached the age of 60 years, and should have rendered at least 5 years
of service with the employer. (DLSU-Araneta v. Bernardo, 2018)
Q65: What is the statutory compulsory and optional retirement age?

A65:
Optional Retirement Compulsory Retirement
Age Age
General Rule (Art. 302 LC) 60 65
Underground and Surface Mining 50 60

Employees (Labor Code as amended
by R.A. 7641 and 10757)
Duly Licensed Professional Racehorse N/A 55

Jockeys (Art. 302- A LC as amended by
R.A. 10789)
Q66: Is an employee who was terminated for authorized causes (redundancy), also entitled to avail early
retirement benefits and separation pay benefits?
A66: Yes, as a general rule. Employees are legally entitled to recover both separation pay and retirement
benefits in the absence of a specific prohibition in the Retirement Plan or CBA. In such an instance where
both the company rules or CBA and the retirement plan are silent, an employee is not barred from claiming
his early retirement benefits, even if he/she had already received his retrenchment pay, and has executed
a Quitclaim to that effect. This must be so because he is legally entitled thereto as a general rule.
(Goodyear vs. Marina Angus, 2014)
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Exception: When there is an explicit provision in the company rules prohibiting the availment of both. (Goodyear
vs. Marina Angus, 2014)
Q67: Can an employer terminate an employee for failing to meet the terms and conditions as embodied
in the employment offer?
A67: Yes. 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. When a
contract is subject to a suspensive condition, its effectivity shall take place only if and when the event
which constitutes the condition happens or is fulfilled. In the case of Sagun v. ANZ Global Services (2016),
the employee failed to comply with his obligations under the employment contract. The Court ruled that
there was no illegal dismissal. The employer’s obligations as a would-be employer to recognize and fully
accord him the rights under the employment contract were held in suspense and thus, had yet to acquire
any obligatory force.
Enforcement v. Quasi-Judicial Powers
Q68: Distinguish between an order of reinstatement issued by a Labor Arbiter and assumption of
jurisdiction and certification orders issued by the SOLE.
A68: An order of reinstatement issued by a Labor Arbiter to an illegally dismissed employee pursuant to
Article 294 of the Labor Code is immediately executory. It is in the nature of a return-to-work order.
On the other hand, assumption of jurisdiction and certification orders issued by the SOLE involving a labor
dispute in an industry is indispensable to the national interest are meant to maintain status quo while the
main issue is being threshed out. It operates as a return-to-work order. (Manggagawa Komunikasyon
v. PLDT, 2017)
NOTE: Such assumption or certification shall have the following effects:

1. Automatically enjoining the intended or impending strike or lockout as specified in the
assumption or certification order; and
2. 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. (Art. 278 (g), LC)
Q69: When does DOLE have jurisdiction over labor disputes?

A69:
1. If a complaint is brought before the DOLE to give effect to the labor standards provisions of the
Labor Code or other labor legislation, and there is a finding by the DOLE that there is an existing
employer-employee relationship, the DOLE exercises jurisdiction to the exclusion of the NLRC.
If the DOLE finds that there is no EER, the jurisdiction is properly with the NLRC.
2. If a complaint is filed with the DOLE, and it is accompanied by a claim for reinstatement, the
jurisdiction is properly with the Labor Arbiter, under Art. 217 (3), which provides that the LA has
original and exclusive jurisdiction over those cases involving wages, rates of pay, hours of work,
and other terms and conditions of employment, if accompanied by a claim for reinstatement.
3. If a complaint is filed with the NLRC, and there is still an existing EER, the jurisdiction is properly
with the DOLE.
4. The findings of the DOLE, however, may still be questioned through a petition for certiorari under
Rule 65 of the Rules of Court. [People’s Broadcasting v. Secretary]
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Q70: How is a reinstatement order by the Labor Arbiter and Voluntary Arbitrator different from that of
the NLRC?
A70: The reinstatement order by a Labor Arbiter or a Voluntary Arbitrator is immediately executory pending
appeal. (Composite Enterprises v. Caparoso, 2007; Wenphil v. Abing, 2014; Baronda v. CA, 2015)
If ordered by the NLRC, on appeal, or the Court of Appeals, under a Rule 65 certiorari petition, or even by
the Supreme Court, reinstatement is not immediately executory. This means that the employee reinstated
should still file a motion for issuance of writ of execution to enforce the reinstatement order. (Panuncillo v.
CAP, 2007)
Social Legislation
Q71: What are the requisites for compensability of injury or illness of seafarers?
A71:
1. It should be work-related; and
2. The injury or illness existed during the term of the seafarer’s employment contract. (INC
Shipmanagement, Inc. v. Alexander L. Moradas, 2014)
Q72: Can a seafarer be entitled to disability benefits if the illness is not solely attributable to his/her
employment?
A72: Yes. As a general rule, the principle of work-relation requires that the disease in question must be one of
those listed as an occupational disease under Section 32-A of 2010 POEA-SEC. Nevertheless, should it
not be classified as occupational in nature, Section 20 (A) (4) provides that such diseases are disputably
presumed as work-related. The claimant still has the burden to present substantial evidence that
his work conditions caused or at least increased the risk of contracting the illness. (Ventura vs.
Crewtech Shipmanagement Philippines Inc., 2017)
However, in determining the compensability of an illness, it is not required that the employment be the
sole factor in the growth, development, or acceleration of a claimants’ illness to entitle him to the benefits
provided for. It is enough that his employment contributed, even if only in a small degree, to the
development of the disease. Even assuming that the ailment of the worker was contracted prior to his
employment, this still would not deprive him of compensation benefits. For what matters is that his work
had contributed, even in a small degree, to the development of the disease. Neither is it necessary,
in order to recover compensation, that the employee must have been in perfect health at the time he
contracted the disease. A worker brings with him possible infirmities in the course of his employment, and
while the employer is not the insurer of the health of the employees, he takes them as he finds them and
assumes the risk of liability. (Skippers United Pacific, Inc. v. Lagne, 2018)
Q73: What is the process in claiming permanent and total disability benefits from the employer of a
seafarer?
A73: To be entitled to disability monetary benefits, the seafarer shall submit to a post-employment medical
examination by a company-designated physician within 3 working days upon his return except when
he is physically incapacitated to do so. In such case, a written notice to the agency within the same period
(3 working days upon return) is deemed as compliance. Failure of the seafarer to comply with the
mandatory reporting requirement shall result in the forfeiture of the right to claim any benefit.
(Manila Ship Management & Manning, Inc. v. Aninang, 2018)
In Elburg Shipmanagement Phils., Inc. v. Ouioguie, Jr. (2015) the rules were summarized as follows:
1. The company-designated physician must issue a final medical assessment on the seafarer’s disability
grading within a period of 120 days from the time the seafarer reported to him;
2. If the company-designated physician fails to give his assessment within the period of 120 days, without
any justifiable reason, then the seafarer’s disability becomes permanent and total;
PAGE 17 OF 18
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3. If the company-designated physician fails to give his assessment within the period of 120 days with a
sufficient justification (e.g. seafarer required further medical treatment or seafarer was
uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The
employer has the burden to prove that the company-designated physician has sufficient
justification to extend the period; and
4. If the company-designated physician still fails to give his assessment within the extended period of
240 days, then the seafarer’s disability becomes permanent and total, regardless of any
justification.
Q74: When can a seafarer be disqualified to receive disability/death benefits?

A74: A seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical
Examination (PEME) shall be liable for misrepresentation and shall be disqualified from any
compensation and benefits. This is likewise a just cause for termination of employment and imposition
of appropriate administrative sanctions.(Sec. 20 (D) POEA-SEC)
PAGE 18 OF 18

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ATENEO CENTRAL

BAR OPERATIONS 2022 LABOR LAW BLUE TIPS

PRAYER FOR THE BAR EXAMINATIONS

O God, we come before You this day,

This is the most important event in our lives,

We ask for help.

We do not ask this by our own merits.

We ask this from Your Fatherly mercy and compassion through

Are you the element of control over means and method?

Special thanks to Atty. Benjamin Yan!

Fourfold test and Economic Dependence/Realities Test (Tests to Determine EER)

Q3: What is the Fourfold test?

Q4: What is the Economic Dependence/Realities Test?

Q5: What is the test to determine regular employment?

Q6: What are the ways of attaining regular employment?

Q7: How is regular employment attained by nature of work?

Q8: How is regular employment attained by length of service?

Q10: How is regular employment attained by repeated hiring?

Q11: TRUE OR FALSE: Regular employment means permanent employment.

Q12: What is casual employment?

Q13: What are the elements of a valid fixed-term employment?

Q16: What are the elements of labor only contracting?

Q17: What are illicit forms of job contracting?

Q20: What is a Night Shift Differential?

Q21: To whom is a Night Shift Differential applicable?

3. Domestic helpers and persons in the personal service of another;

Q24: What is Overtime Pay?

Q25: Who can benefit from Overtime Pay?

Q27: What are the Overtime Pay Rates?

OT ON A REGULAR DAY Regular wage + at least 25% thereof

OT ON A HOLIDAY/SPECIAL DAY/EMPLOYEES Rest day or special holiday wage rate (130%) +

Daily Rate = monthly salary x 12

Q28: What is the definition of a Wage?

Q29: What is the difference between a Wage and a Salary?

Expanded maternity leave (105 days standard)

Q32: How does allocation of maternity leave credits work?

Overseas Filipino Workers

Q34: What are the consequences if an employee is not deployed?

Labor II - Labor Relations

Q40: What is the purpose of union registration? What is its effect?

Q41: What are the requirements for Registration?

Q48: What are the bars to a certification election

Q49: What is the substitutionary negotiation doctrine?

Q50: When will there be a Re-run Election?

Q51: What are the requisites of a Run-off election?

Q52: What are the procedural requirements for a valid strike?

Q54: What are the just and authorized causes?

Serious 1. The misconduct must be serious;

Willful 1. The disobedience or insubordination must be willful or intentional characterized

Commission of a 1. That there be a commission of a crime or offense; and

As to who or what caused the Business or economic The deeds of the

Substantive Procedural Consequence

✓ 𝚡 Valid dismissal but employer

Q59: What is the nature of retirement plans?

Q60: What is the rule on early retirement plans?

Q64: Is a part-time employee entitled to receive retirement benefits?

Q65: What is the statutory compulsory and optional retirement age?

General Rule (Art. 302 LC) 60 65

Underground and Surface Mining 50 60

Duly Licensed Professional Racehorse N/A 55

Enforcement v. Quasi-Judicial Powers

NOTE: Such assumption or certification shall have the following effects:

Q69: When does DOLE have jurisdiction over labor disputes?