4.
Strike in accordance with law
1. 1987 Constitution
ART. II: Declaration of Principles and State
Policies
The State shall:
a. Promote full employment, a rising standard
of living, and an improved quality of life for all
[Sec. 9, Art. II]
b. Promote social justice [Sec. 10, Art. II]
Social Justice as justification [Calalang
v. Williams, G.R. No. 47800 (1940)]
Social justice is neither communism,
nor despotism, nor atomism, nor
anarchy BUT: a. The humanization of
laws; and b. The equalization of social
and economic forces by the State. So
that justice in its rational and
objectively secular conception may at
least be approximated
c. Affirm labor as a primary social economic
force [Sec. 18, Art. II]
d. Protect rights of workers and promote their
welfare [Sec. 18, Art. II]
e. Recognize the indispensable role of the
private sector [Sec. 20, Art. II.]
f. Encourage private enterprise [Sec. 20, Art. II.]
g. Provide incentives to needed investments
[Sec. 20, Art. II.]
SEC. 3, par. 1-2, ART. XIII: Social Justice and
Human Rights
The State shall:
a. Afford full protection to labor, local and
overseas, organized and unorganized
b. Promote full employment and equality of
employment opportunities for all.
c. Guarantee the rights (also known as the
“Cardinal Labor Rights”) of all workers to
1. Self-organization
2. Collective bargaining and negotiations 3.
Peaceful concerted activities
5. Security of tenure,
6. Humane conditions of work
7. A living wage.
8. To participate in policy and decisionmaking
processes affecting their rights and benefits as
may be provided by law
Relations between labor and capital
The relations between capital and labor are not
merely contractual. [Art. 1700, CC] They are
impressed with public interest that labor
contracts:
a. Must yield to the common good
b. Are subject to special laws on: 1. Labor
unions, 2. Collective bargaining, 3. Strikes and
lockouts, 4. Closed shop, 5. Wages, 6. Working
conditions, 7. Hours of labor; and 8. Similar
subjects
5. Construction in favor of labor
All doubts in the implementation and
interpretation of the provisions of this Code,
including its implementing rules and
regulations, shall be resolved in favor of labor.
[Art. 4, Labor Code].
6. Burden of proof and quantum of evidence
Summary on Burden of Proof
1. Existence of ER-EE Relationship: Employee
2. Fact of dismissal: Employee
3. Validity of Dismissal: Employer
EE has burden of proving fact of employment
and of dismissal
The employee must first establish by
substantial evidence the fact of his dismissal
from service. If there is no dismissal, then there
can be no question as to the legality or illegality
thereof. [MZR Industries v. Colambot, G.R. No.
179001 (2013)]

ER has burden of proving valid dismissal
Unsubstantiated accusations or baseless
conclusions of the employer are insufficient
legal justifications to dismiss an employee. The
unflinching rule in illegal dismissal cases is that
the employer bears the burden of proof.
[Garza v. Coca-Cola Bottlers Philippines, Inc.,
G.R. No. 180972 (2014)]
Penalty must be commensurate with gravity of
offense Not every case of insubordination or
willful disobedience by an employee reasonably
deserves the penalty of dismissal. The penalty
to be imposed on an erring employee must be
commensurate with the gravity of his offense.
[Joel Montallana v. La Consolacion College
Manila, G.R. No. 208890 (2014)]
II. RECRUITMENT AND PLACEMENT
“Recruitment and placement" refers to any act
of: [CETCHUP-R-CPA]
1. Canvassing, 2. Enlisting, 3. Contracting, 4.
Transporting, 5. Utilizing 6. Hiring, or 7.
Procuring workers
And includes – 1. Referrals, 2. Contract
services, 3. Promising, or 4. Advertising for
employment, locally or abroad, whether for
profit or not
PRESUMPTION OF RECRUITMENT AND
PLACEMENT
Provided that any person or entity which, in
any manner, offers or promises for a fee
employment to two or more persons shall be
deemed engaged in recruitment and
placement. [Art. 13 (b), Labor Code]
Worker – any member of the labor force,
whether employed or unemployed. [Art.13 (a)]
Overseas Filipino Worker/Migrant Worker – a
person who is to be engaged, is engaged, or has
been engaged in a remunerated activity: 1. in a
state of which he or she is not a citizen, or 2. on
board a vessel navigating the foreign seas other
than a government ship used for military or
non-commercial purposes, or 3. on an
installation located offshore or on the high seas.
[Sec. 2 (a), RA 8042, as amended]
Illegal Recruitment and prohibited activities
Illegal Recruitment Under Section 6 of R.A. No.
8042, illegal recruitment, when undertaken by
a non-licensee or non-holder of authority as
contemplated under Article 13(f) of the Labor
Code, shall mean any act of canvassing,
enlisting, contracting, transporting, utilizing,
hiring, procuring workers, and including
referring, contract services, promising or
advertising for employment abroad, whether
for profit or not. (People vs. Estrada, Feb. 28,
2018)
Illegal recruitment is committed when two
elements concur, namely; (1) the offender has
no valid license or authority required by law to
enable one to lawfully engage in recruitment
and placement of workers; and (2) he
undertakes either any activity within the
meaning of “recruitment and placement”
defined under Article 13(b), or any of the
prohibited practices enumerated under Article
34 of the Labor Code. (People vs. Gutierrez, 422
SCRA 32)
Economic sabotage
Illegal recruitment when committed by a
syndicate or in large scale shall be considered as
offense involving economic sabotage. Illegal
recruitment is deemed committed in large scale
if committed against three or more persons
individually or as a group.
Syndicated Illegal Recruitment
Illegal recruitment is deemed committed by a
syndicate when carried out by a group of three
(3) or more persons conspiring or confederating
with one another. (Section 6, Republic Act No.
8042)

Illegal Recruitment, Estafa and Double

Jeopardy A conviction for illegal recruitment
whether simple or committed in large scale
would not preclude punishment for estafa
under Article 315(2)(a) of the RPC. This is
because no double jeopardy could attach from
the prosecution and conviction of the accused
for both crimes considering that they are
penalized under different laws and involved
elements distinct from one another. Conviction
under Article 315(2)(a) requires the
concurrence of the following elements: (1) the
accused defrauded another by abuse of
confidence or by means of deceit; and (2) the
offended party, or a third party, suffered
damage or prejudice capable of pecuniary
estimation. These are elements completely
different from those required for illegal
recruitment. (People vs. Estrada, Feb. 28, 2018)

Ban on Direct Hiring

General Rule: No employer may hire a Filipino
worker for overseas employment except
through the Boards and entities authorized by
the Secretary of Labor. [Art. 18]

No employer shall directly hire an Overseas

Filipino Worker for overseas employment.
[Sec. 123, 2016 Revised POEA Rules and
Regulations]
Exemptions: a. Members of the diplomatic
corps; b. International organizations; c. Heads
of state and government officials with the rank
of at least deputy minister; d. Other employers
as may be allowed by the Secretary of Labor
and Employment