You are on page 1of 191

FUNDAMENTAL PRINCIPLES AND POLICIES

LABORLAW Q:Whatislabor? A:Itistheexertionbyhumanbeingsofphysicalor mental efforts, or both, towards the production of goodsandservices. Q:Whatislaborlaw? A: The law governing the rights and duties of the employerandemployeeswithrespectto: 1. Thetermsandconditionsofemployment and 2. Labor disputes arising from collective bargaining(CB)respectingsuchtermsand conditions. Q:Whatisthepurposeoflaborlegislation? A: Labor legislation is an exercise of police power. The purpose of labor legislation is to regulate the relations between employers (Ers) and employees (Ees) respecting the terms and conditions of employment, either by providing for certain standards or for a legal framework within which better terms and conditions of work could be negotiatedthroughCB.Itisintendedtocorrectthe injustices inherent in ErEe relationship. (2006 Bar Question) Q:Whataretheclassificationsoflaborlaw? A: 1. Labor standards The minimum terms andconditionsofemploymentprescribed by existing laws, rules and regulations relatingtowages,hoursofwork,costof living allowance and other monetary and welfare benefits. (Batong Buhay Gold Mines,Inc.v.DelaSerna,G.R.No.86963, August6,1999) th e.g.13 monthpay 2. Labor relations Defines and regulates the status, rights and duties, and the institutionalmechanisms,thatgovernthe individual and collective interactions of Ers, Ees, or their representatives. It is concerned with the stabilization of relations of Er and Ees and seek to forestall and adjust the differences between them by the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediationandarbitration. e.g. Additional allowance pursuant to CBA 3. Social legislation It includes laws that provide particular kinds of protection or benefitstosocietyorsegmentsthereofin furtheranceofsocialjustice. e.g.GSISLaw,SSSLaw,Philhealthbenefits

Q: Is there any distinction between labor legislationandsociallegislation?Explain. A:Laborlegislationissometimesdistinguishedfrom social legislation by the former referring to labor statutes, like Labor Relations Law and Labor Standards, and the latter to Social Security Laws. Laborlegislationfocusesontherightsoftheworker intheworkplace. Social legislation is a broad term and may include not only laws that give social security protection, butalsothosethathelptheworkersecurehousing and basic necessities. The Comprehensive Agrarian Reform Law could also be considered a social legislation. All labor laws are social legislation, but not all social legislation is labor law. (1994 Bar Question) Q:Whatarethesourcesoflaborlaws? A: 1. Labor Code and other related special legislation 2. Contract 3. CollectiveBargainingAgreement 4. Pastpractices 5. Companypolicies A. FUNDAMENTALPRINCIPLESANDPOLICIES 1.CONSTITUTIONALPROVISIONS Q: What are the constitutional mandates with regardlaborlaws? A: 1. Sec.3,Art.XIIITheStateshallaffordfull protection to labor, local and overseas, organizedandunorganized,andpromote full employment and equality of employmentopportunitiesforall. Itshallguaranteetherightsofallworkers to selforganization, collective bargaining andnegotiations,andpeacefulconcerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decisionmaking processes affecting their

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


rightsandbenefitsasmaybeprovidedby law. The State shall promote the principle of shared responsibility between workers andemployersandthepreferentialuseof voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of productionandtherightofenterprisesto reasonablereturnstoinvestments,andto expansionandgrowth. 2. Sec.9,Art.IITheStateshallpromotea just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, andanimprovedqualityoflifeforall. Sec. 10, Art II The State shall promote social justice in all phases of national development. Sec. 11, Art II The State values the dignity of every human person and guaranteesfullrespectforhumanrights. Sec. 13, Art. II The State recognizes the vital role of the youth in nationbuilding and shall promote and protect their physical,moral,spiritual,intellectual,and social wellbeing. It shall inculcate in the youth patriotism and nationalism, and encouragetheirinvolvementinpublicand civicaffairs. Sec. 14, Art. II The State recognizes the role of women in nationbuilding, and shall ensure the fundamental equality beforethelawofwomenandmen. Sec.18,Art.IITheStateaffirmslaboras a primary social economic force. It shall protect the rights of workers and promotetheirwelfare. Sec. 20, Art. II The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. Sec. 1, Art. III No person shall be deprived of life, liberty, or property withoutdueprocessoflaw,norshallany personbedeniedtheequalprotectionof thelaws. Sec. 4, Art. III No law shall be passed abridging the freedom of speech, of expression,orofthepress,ortherightof the people peaceably to assemble and petition the government for redress of grievances. Sec. 8, Art. III The right of the people, including those employed in the public and private sectors, to form unions, associations,orsocietiesforpurposesnot contrarytolawshallnotbeabridged. Sec. 1, Art. XIII The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth andpoliticalpowerforthecommongood. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. Sec. 2, Art. XIII The promotion of social justice shall include the commitment to create economic opportunities based on freedomofinitiativeandselfreliance. Sec.14, Art.XIII The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhancetheirwelfareandenablethemto realizetheirfullpotentialintheserviceof thenation.

9.

10.

11.

12.

3.

4.

5.

13.

14.

6.

7.

8.

Q:WhatistheStatepolicyonlaborasfoundinthe constitution(Sec.3,Art.XIII)? A: 1. Affordfullprotectiontolabor 2. Promotefullemployment 3. Ensure equal work opportunities regardlessofsex,race,orcreed

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

FUNDAMENTAL PRINCIPLES AND POLICIES


4. Assure the rights of workers to self organization, security of tenure, just and humaneconditionsofwork,participatein policy and decisionmaking processes affectingtheirrightandbenefits Regulate the relations between workers andemployers 2. safety and decent living for the laborer. d. Art. 1703 No contract which practically amounts to involuntary servitude, under any guise whatsoever,shallbevalid. RevisedPenalCode Art. 289 Formation, maintenance and prohibition of combination of capital or labor through violence or threats. Any person who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lockout of employees, shall employ violence or threats in such a degreeastocompelorforcethelaborers or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offenseinaccordancewiththeprovisions oftheRPC. SpecialLaws a. GSISLaw th b. 13 MonthPayLaw c. RetirementPayLaw d. SSSLaw e. PaternityLeaveAct f. AntiChildLaborAct g. AntiSexualHarassmentAct h. Magna Carta for Public Health Workers i. SoloParentsWelfareActof2000 j. National Health Insurance Act as amendedbyR.A.9241 k. Migrant Workers and Overseas Filipinos Act of 1995 as amended by RA10022 l. PERAActof2008 m. Home Development Mutual Fund Lawof2009 n. TheMagnaCartaofWomen o. ComprehensiveAgrarianReformLaw asamendedbyR.A.9700

5.

Q: What are the basic rights of workers guaranteedbytheConstitution(Sec.3,Art.XIII)? A: 1. Securityoftenure 2. Receivealivingwage 3. Humaneworkingconditions 4. Shareinthefruitsofproduction 5. Organizethemselves 6. Conduct collective bargaining or negotiationwithmanagement 7. Engage in peaceful concerted activities includingstrike 8. Participate in policy and decision making processes Q:Whatistheprincipleofnonoppression? A: The principle mandates capital and labor not to act oppressively against each other or impair the interest and convenience of the public. The protectiontolaborclauseintheConstitutionisnot designed to oppress or destroy capital. (Capili v. NLRC,G.R.No.117378,Mar.26,1997) 2.NEWCIVILCODEANDOTHERLAWS Q:Whatareotherrelatedlawstolabor? A: 1. CivilCode a. Art. 1700 The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contractsmust yieldtothecommon good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor andsimilarsubjects. b. Art.1701 Neithercapitalnorlabor shall act oppressively against the other, or impair the interest or convenienceofthepublic. c. Art.1702Incaseofdoubt,alllabor legislation and all labor contracts shall be construed in favor of the

3.

3.LABORCODE Q:Whatistheaimoflaborlaws? A: The justification of labor laws is social justice. Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanizationoflawsandtheequalizationofsocial and economic force by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


adoption by the government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibriumintheinterrelationsofthemembersof the community, constitutionally, through the adoption of measures legally justifiable, or extra constitutionally, through the exercise of powers underlyingtheexistenceofallgovernmentsonthe timehonoredprincipleofsaluspopuliestsuprema lex. (Calalang v. Williams, G.R. No. 47800, Dec. 2, 1940) Q:Whatiscompassionatejustice? A:Itisdisregardingrigidrulesandgivingdueweight toallequitiesofthecase. e.g: Employee validly dismissed may still be given severancepay. Q:Howshoulddoubtsintheimplementationand interpretation of the Labor Code (LC) and its Implementing Rules and Regulations (IRR) be resolved? A:Theyshouldberesolvedinfavoroflabor. Q: What is the concept of liberal approach in interpretingtheLCanditsIRR? A: The workers' welfare shouldbe the paramount consideration in interpreting the LC and its IRR. This is rooted in the constitutional mandate to affordfullprotectiontolabor.(PLDTv.NLRC,G.R. No. 111933, July 23, 1997). It underscores the policy of social justice to accommodate the interests of the working class on the humane justification that those who have less in life shall have more in law. (PAL v. Santos, G.R. No. 77875, Feb.4,1993).(2006BarQuestion) Q:Art.4oftheLCprovidesthatincaseofdoubtin the implementation and interpretation of the provisionsoftheLCanditsIRR,thedoubtshallbe resolved in favor of labor. Art. 1702 of the Civil Codealsoprovidesthatincaseofdoubt,alllabor legislation and all labor contracts shall be construed in favor of the safety and decent living ofthelaborer. MicaMara Company assails the validity of these statutes on the ground that they violate its constitutional right to equal protection of the laws. Is the contention of Mica Mara Company tenable?Discussfully. A:No,theConstitutionprovidesthattheStateshall afford full protection to labor. Furthermore, the State affirms labor as a primary economic force. It shall protect the rights of workers and promote theirwelfare.(1998BarQuestion) a.Art.3.DeclarationofBasicPolicy Q:WhatisthepolicyoftheStateasregardslabor asfoundintheLaborCode(Art.12)? A: 1. Promote and maintain a State of full employment through improved manpower training, allocation and utilization; 2. Protect every citizen desiring to work locallyoroverseasbysecuringforhimthe best possible terms and conditions of employment; 3. Facilitate a free choice of available employment by persons seeking work in conformitywiththenationalinterest; 4. Facilitate and regulate the movement of workers in conformity with the national interest; 5. Regulate the employment of aliens, including the establishment of a registrationand/orworkpermitsystem; 6. Strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national developmentobjectives; 7. Ensure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippinesabroad. Q: What are the reasons for affording greater protectiontoemployees? A: 1. Greater supply than demand for labor; and 2. Need for employment by labor comes from vital and desperate necessity. (Sanchezv.HarryLyonsConstructionInc., G.R.L2779,Oct.18,1950) Q:Arealllabordisputesresolvedinfavoroflabor? A: No. The law also recognizes that management has rights which are also entitled to respect and enforcement in the interest of fair play. (St. Lukes MedicalCenterEesAssnv.NLRC,G.R.No.162053, Mar.7,2007)

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

FUNDAMENTAL PRINCIPLES AND POLICIES


b.Art.5.RulesandRegulations Q:Whoisgiventherulemakingpower? A: The Department of Labor and other govt agencies charged with the administration and enforcement of the Labor Code or any of its parts shallpromulgatethenecessaryimplementingrules and regulations. Such rules and regulations shall become effective 15 days after announcement of theiradoptioninnewspapersofgeneralcirculation. Q: What are the limitations to the rulemaking power given to the Secretary of Labor and Employmentandothergovtagencies? A:Itmust: 1. Beissuedundertheauthorityofthelaw 2. Not be contrary to law and the Constitution c.Art.6.Applicability Q:Towhomshallallrightsandbenefitsunderthe LCapply? A: GR: All rights and benefits granted to workers under the LC shall apply alike to all workers, whetheragriculturalornonagricultural. XPN: 1. Governmentemployees(Ees) 2. Ees of government corporations created byspecialororiginalcharter 3. Foreigngovernments 4. Internationalagencies 5. Corporate officers/ intracorporate disputes which fall under P.D. 902A and now fall under the jurisdiction of the regular courts pursuant to the Securities RegulationCode(SRC). 6. Local water district except where NLRCs jurisdictionisinvoked. 7. AsmayotherwisebeprovidedbytheLC Q:WhatisthetestindeterminingwhetheraGOCC issubjecttotheCivilServiceLaw? A:Itisdeterminedbythemanneroftheircreation. Govt corporations that are created by special (original)charterfromCongressaresubjecttoCivil Service rules, while those incorporated under the GeneralCorporationLawarecoveredbytheLC. Q:Whoisanagricultural/farmworker? A: 2. 3. d.Art.211.DeclarationofPolicy Q: What are the policy objectives of our labor relationslaw? A:Thestateaimstopromote: 1. Free collective bargaining (CB) and negotiations, including voluntary arbitration, mediation and conciliation as modes of settling labor or industrial disputes; 2. Freetradeunionism; 3. Free and voluntary organization of a strongandunitedlabormovement; 4. Enlightenment of workers concerning their rights and obligations as union membersandasEes; 5. Adequate administrative machinery for the expeditious settlement of labor or industrialdisputes; 6. Stable but dynamic and just industrial peace; 7. Participation of workers in the decision making processes affecting their rights, dutiesandwelfare; 8. Truly democratic method of regulating therelationsbetweentheErsandEesby means of agreements freely entered into through CB, no court or administrative agencyorofficialshallhavethepowerto set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as otherwise providedundertheLC. e.Art.212.Definitions Q:Whoisanemployer(Er)? A: Any person acting in the interest of an Er, directly or indirectly. The term does not include a labor organization (LO) or any of its officers and agents,exceptwhenactingasanEr.(Art.212[e]) An Er is defined as any person or entity that employstheservicesofothers;oneforwhomwork and who pays their wages of salaries; any person acting in the interest of an Er; refers to the enterprise where the LO operates or seeks to operate.(Sec.1[s],RuleI,BookV,IRR) Q:WhenisalabororganizationdeemedanEr? 1. One employed in an agricultural or farm enterprise, Performs tasks which are directly related toagriculturalactivitiesoftheEr,and Any activities performed by a farmer as anincidenttofarmingoperations.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


A: When it is acting as such in relation to persons rendering services under hire, particularly in connectionwithitsactivitiesforprofitorgain.
Note: The mere fact that respondent is a labor union doesnotmeanthatitcannotbeconsideredanErfor persons who work for it. Much less should it be exempted from labor laws. (Bautista v. Inciong, G.R. No.L52824,Mar.16,1988)

or representation of persons negotiating, fixing, maintaining changing terms or conditions employment. Q:Whatarethekindsoflabordisputes? A: 1.

in or of

Q:Whoisanemployee(Ee)? A: 1. 2. AnypersonintheemployoftheEr Anyindividualwhoseworkhasceasedas a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalentandregularemployment One who has been dismissed from work but the legality of dismissal is being contested in a forum of appropriate jurisdiction. (D.O. No. 4003, Mar. 15, 2003)

2.

3.

Note: The term shall not be limited to the Ees of a particularErunlesstheLCexplicitlystates. AnyEe,whetheremployedforadefiniteperiodornot, shall, beginning on the first day of service, be considered an Ee for purposes of membership in any laborunion.(Art.277[c],LC)

Q:Whatisalabordispute? A:Includesanycontroversyormatterconcerning: 1. 2. Termsandconditionsofemployment,or The association or representation of persons in negotiating, fixing, maintaining, changing or arranging the termsandconditionsofemployment Regardless of whether the disputants stand in the proximate relation of Er and Ee.(Art.212[l])

3.

Q: What are the tests on whether a controversy fallswithinthedefinitionofalabordispute? A: 1. AstonatureItdependsonwhetherthe dispute arises from ErEe relationship, although disputants need not be proximatelyErorEeofanother. As to subject matter The test depends on whether it concerns terms or conditions of employment or association

Laborstandarddisputes a. Compensation E.g. Underpayment of minimum wage; stringent output quota;illegalpaydeductions b. Benefits E.g. Nonpayment of holidaypay,OTpayorotherbenefits c. WorkingConditionsE.g.Unrectified workhazards Laborrelationsdisputes a. Organizational right disputes/ULP E.g. Coercion, restraint or interference in unionization efforts; reprisal or discrimination due to union activities; company unionism; ULP, strike or lockout; union members complaint against union officers b. Representation disputes E.g. Uncertainty as to which is the majority union; determination of appropriate CB unit; contests for recognition by different sets of officersinthesameunion c. BargainingdisputesE.g.Refusalto bargain; bargaining in bad faith; bargainingdeadlock;economicstrike orlockout d. Contractadministrationorpersonnel policy disputes E.g. Non compliance with CBA provision (ULP if gross non compliance with economic provisions); disregard of grievance machinery; non observance of unwarranted use of union security clause; illegal or unreasonable personnel management policies; violation of nostrike/nolockoutagreement e. Employment tenure disputes E.g. Nonregularization of Ees; non absorption of labor only contracting staff; illegal termination; non issuanceofemploymentcontract

2.

Q:Whoarethepartiestoadispute?

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

FUNDAMENTAL PRINCIPLES AND POLICIES


A: 1. 2. Primary parties are the Er, Ees and the union. Secondary parties are the voluntary arbitrator, agencies of DOLE, NLRC, Secretary of Labor and the Office of the President. A: The Labor Organization designated or selected bythemajorityoftheemployeesinanappropriate collective bargaining unit shall be the exclusive representativeoftheemployeesinsuchunitforthe purpose of collective bargaining. However, an individual employee or group of employees shall havetherightatanytimetopresentgrievancesto their employer. (As amended by Sec. 22, R.A. No. 6715,Mar.15,1989) Q: What is the extent of the workers right to participate in policy and decisionmaking processesinacompany? A: Such right refers not only to formulation of corporate programs and policies but also to participationingrievanceproceduresandvoluntary modesofsettlingdisputes. Q: Explain the extent of the workers right to participate in policy and decisionmaking process as provided under Art. XIII, Sec. 13 of the 1987 Constitution. Does it include membership in the BoardofDirectorsofacorporation? A: No. In Manila Electric Company v. Quisumbing, G.R. No. 127598, January 27, 1999, the SC recognized the right of the union to participate in policy formulation and decision making process on mattersaffectingtheUnionmembersrights,duties and welfare. However, the SC held that such participation of the union in committees of Er Meralco is not in the nature of a comanagement control of the business of Meralco. Impliedly, therefore,workersparticipatoryrightinpolicyand decisionmaking processes does not include the right to put a union member in the Corporations BoardofDirectors.(2008BarQuestion) Q: May an Er solicit questions, suggestions and complaints from Ees even though the Ees are representedbyaunion? A:Yes,provided: 1. The CB representative executes an agreementwaivingtherighttobepresent on any occasion when Ee grievances are beingadjustedbytheEr;and 2. Er acts strictly within the terms of his waiveragreement. Q:ThehotelunionfiledaNoticeofStrikewiththe NCMBduetoULPagainsttheDiamondHotelwho refused to bargain with it. The hotel advised the unionthatsinceitwasnotcertifiedbytheDOLEas the exclusive bargaining agent, it could not be

Q:Whatisaninteruniondispute? A:Anyconflictbetweenandamonglegitimatelabor unions involving representation questions for the purposes of CB or to any other conflict or dispute betweenlegitimatelaborunions. Q:Whatisanintrauniondispute? A: Any conflict between and among union members, grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the unions constitution and bylaws, or disputes from charteringoraffiliationofunion. Q:Whatarerightsdisputes? A: They are claims for violations of a specific right arising from a contract, i.e. CBA or company policies. Q:Whatareinterestdisputes? A: They involve questions on what should be included in the CBA. Strictly speaking, the parties maychooseavoluntaryarbitratortodecideonthe terms and conditions of employment, but this is impracticablebecauseitwillbeavaluejudgmentof thearbitratorsandnotoftheparties. Q:Whatarecontractnegotiationdisputes? A:ThesearedisputesastothetermsoftheCBA. Q:Whatarecontractinterpretationdisputes? A:ThesearedisputesarisingunderanexistingCBA, involving such matters as the interpretation and application of the contract, or alleged violation of itsprovisions. f.Art.255.ExclusiveBargainingRepresentation (EBR)andWorkersParticipationinPolicyand DecisionMaking Q:Whoshallbethebargainingrepresentativeof the Employees for purposes of collective bargaining?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


recognized as such. Whether the Union may bargaincollectively? A: No. Art. 255 of the LC declares that only the labor organization designated or selected by the majority of the Ees in an appropriate collective bargaining (CB) unit is the exclusive representative oftheemployees(Ees)insuchunitforthepurpose of CB. The union is admittedly not the exclusive representative of the majority of the Ees of the hotel, hence, it could not demand from the hotel the right to bargain collectively in their behalf. (Manila Diamond Hotel v. Manila Diamond Hotel EesUnion,G.R.No.158075,June30,2006) Q: Are probationary Ees allowed to vote at the timeofthecertificationelections? A: Yes. Under Art. 255 of the LC the labor organizationdesignatedorselectedbythemajority oftheEesinanappropriatebargainingunitshallbe the exclusive representative of the Ees in such unit for purposes of CB. CB covers all aspects of the employment relation and the resultant CBA negotiatedbythecertifiedunionbindsallEesinthe bargaining unit. Hence, all rank and file Ees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The LC makes no distinction as to their employment status as basis for eligibility in supporting the petition for certification election. Thelawrefersto"all"theEesinthebargainingunit. Alltheyneedtobeeligibletosupportthepetitionis tobelongtothe"bargainingunit."Theprovisionin theCBAdisqualifyingprobationaryEesfromvoting cannotoverridetheconstitutionallyprotectedright of workers to selforganization, as well as the provisions of the LC and its implementing rules on certification elections and jurisprudence. A law is readinto,andformspartof,acontract.Provisions inacontractarevalidonlyiftheyarenotcontrary tolaw,morals,goodcustoms,publicorderorpublic policy. (NUWHRAINMPHCv.SLE,G.R.No.181531, July31,2009)

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

RECRUITMENT AND PLACEMENT


RECRUITMENTANDPLACEMENT 1. RECRUITMENTOFLOCALANDMIGRANT WORKERS a.RecruitmentandPlacement Q:Whoisaworker? A: Any member of the labor force, whether employedorunemployed.(Art.13[a],LC) Q:Whatisrecruitmentandplacement? A: 1. Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring orprocuringworkers;and 2. Includes referrals, contact services, promisingoradvertisingforemployment, locally or abroad, whether for profit or not.(Art.13[b],LC) Q:Whataretheessentialelementsindetermining whether one is engaged in recruitment/placement? A:Itmustbeshownthat: 1. The accused gave the complainant the distinct impression that she had the power or ability to send the complainant forwork, 2. Suchthatthelatterwasconvincedtopart with his money in order to be so employed. (People v. Goce, G.R. No. 113161,Aug.29,1995) Q: Who is deemed engaged in recruitment and placement? A: Any person or entity which, in any manner, offers or promises for a fee employment to 2 or morepersons.(Art.13[b],LC) Q:Whatistheruleinrecruitmentandplacement? A: GR: No person or entity other than the public employment offices, shall engage in the recruitmentandplacementofworkers XPN: 1. Construction contractors if authorized by the DOLE and Construction Industry Authority 2. Other persons or entities as may be authorizedbytheSLE B. 3. 4. 5. 6. 7. 8. Members of the diplomatic corps (but hiringmustgothroughPOEA) Publicemploymentoffices Privaterecruitmentoffices Privateemploymentagencies POEA Shipping or manning agents or representatives Namehires

9. Q:Whoarenamehires? A: They are individual workers who are able to securecontractsforoverseasemploymentontheir own efforts and representations without the assistance or participation of any agency. Their hiring,nonetheless,shallpassthroughthePOEAfor processing purposes. (Part III, Rule III, POEA Rules Governing Overseas Employment as amended in 2002) Q: What if employment is offered to only one person? A:Immaterial.Thenumberofpersonsdealtwithis notanessentialingredientoftheactofrecruitment andplacementofworkers.Theprovisomerelylays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employmentto2ormoreprospectiveworkers,the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption. (People v. Panis, G.R. L 5867477,July11,1986) Q:Whatisaprivateemploymentagency? A:Anypersonorentityengagedintherecruitment and placement of workers for a fee which is charged,directlyorindirectly,fromtheworkersor employersorboth. Q:Whatisaprivaterecruitmentagency? A: It is any person or association engaged in the recruitment and placement of workers without charging any fee, directly or indirectly, from the workersoremployers. Q:Whoisaseaman? A: Any person employed in a vessel engaged in maritimenavigation. Q:Whatisoverseasemployment?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

UST GOLDEN NOTES 2011


A: It is employment of a worker outside the Philippines. Q:WhoisanoverseasFilipinoworker(OFW)? A:Apersonwhoistobeengaged,isengagedorhas been engaged in a remunerated activity in a State of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for military or non commercial purposes or on an installation located offshore or on the high seas; to be used interchangeably with migrant worker. (Sec.2, R.A. 10022amendingR.A.8042) Q:Whoisanemigrant? A:Anyperson,workerorotherwise,whoemigrates toaforeigncountrybyvirtueofanimmigrantvisa or resident permit or its equivalent in the country ofdestination. b.IllegalRecruitment,Art.38(Local),Sec.6,Migrant WorkersAct,RA8042 (a)Licensev.Authority Q:Whatisalicense? A: It is issued by DOLE authorizing a person or entitytooperateaprivateemploymentagency. Q:WhatisanAuthority? A:ItisadocumentissuedbytheDOLEauthorizing a person or association to engage in recruitment and placement activities as a private recruitment entity. Q: Who is a nonlicensee / nonholder of authority? A:Anyperson,corporationorentity: 1. Whichhasnotbeenissuedavalidlicense orauthoritytoengageinrecruitmentand placement by the Secretary of Labor and Employment(SLE)or 2. Whose license or authority has been suspended, revoked or cancelled by the POEAortheSLE Q:Whatarethegroundsforrevocationoflicense? A: 1. Incurring an accumulated 3 counts of suspension by an agency based on final andexecutoryorderswithintheperiodof validityofitslicense 2. Violationsoftheconditionsoflicense 3. Engaging in acts of misrepresentation for the purpose of securing a license or renewal 4. Engagingintherecruitmentorplacement of workers to jobs harmful to the public healthormoralityortothedignityofthe country.(Sec.3,RuleI,BookVI,Rulesand Regulations Governing Overseas Employment) Q: What are the grounds for suspension or cancellationoflicense? A: 1. ProhibitedactsunderArt.34 2. Publishing job announcements w/o POEAsapproval 3. Chargingafeewhichmaybeinexcessof theauthorizedamountbeforeaworkeris employed 4. Deploying workers w/o processing throughPOEA 5. Recruitment in places outside its authorized area. (Sec. 4, Rule II, Book IV, POEARules) Q:Isthelicenseorauthoritytransferable? A:No,theyarenontransferable.(Art.29) Q:ARecruitmentandPlacementAgencydeclared voluntary bankruptcy. Among its assets is its licensetoengageinbusiness.Isthelicenseofthe bankrupt agency an asset which can be sold in publicauctionbytheliquidator? A: No, because of the nontransferability of the license to engage in recruitment and placement. TheLC(Art.29)providesthatnolicensetoengage inrecruitmentandplacementshallbeuseddirectly or indirectly by any person other than the one in whose favor itwas issued normay such license be transferred, conveyed or assigned to any other personorentity.Itmaybenotedthatthegrantof a license is a governmental act by the DOLE based on personal qualifications, and citizenship and capitalization requirements. (Arts.2728, LC). (1998 BarQuestion)
Note:Changeofownershiporrelationshipofasingle proprietorship licensed to engage in overseas employment shall cause the automatic revocation of thelicense.

Q: Concerned Filipino contract workers in the Middle East reported to the DFA that XYZ, a

10

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

RECRUITMENT AND PLACEMENT


private recruitment and placement agency, is covertly transporting extremists to terrorist trainingcampsabroad.Intelligenceagenciesofthe govt allegedly confirmed the report. Upon being alerted by the DFA, the DOLE issued orders cancelling the licenses of XYZ, and imposing an immediatetravelbanonitsrecruitsfortheMiddle East. XYZ appealed to the Office of the President to reverse and set aside the DOLE orders, citing damages from loss of employment of its recruits, and violations of due process including lack of notice and hearing by DOLE. The DOLE in its answer claimed the existence of an emergency in the Middle East which required prompt measures to protect the life and limb of OFWs from a clear and present danger posed by the ongoing war against terrorism. Should the DOLE orders be upheldorsetaside? A: 1. TheDOLEordercancellingthelicensesof XYZ is void because a report that an agencyiscovertlytransportingextremists isnotavalidgroundforcancellationofa Certificate of Registration (Art. 239, LC and there is failure of due process as no hearing was conducted prior to the cancellation(Art.238,LC). 2. TheDOLEorderimposingthetravelbanis valid because it is a valid exercise of police power to protect the national interest (Sec. 3, Art. XIII, Constitution on full protection to labor safety of workers) and on the rule making authority of the SLE. (Art. 5, LC; Phil. Assn. of Service Exporters v. Drilon, G.R. No. 81958, June 30,1988).(2004BarQuestion) Q:Whoarethepersonsprohibitedfromengaging thebusinessofrecruitingmigrantworkers? A: 1. UnlawfulforanyofficialorEeofthe: a. DOLE b. POEA c. Overseas Workers Welfare Administration(OWWA) d. DFA e. Other govt agencies involved in the implementationofthisAct th 2. Their relatives within the 4 civil degree of consanguinity or affinity, to engage, directly or indirectly in the business of recruiting migrant workers. (Sec. 8, R.A. 8042) (b)IllegalRecruitment Q:WhataretheelementsofIllegalRecruitment? A: 1. Offender is a nonlicensee or nonholder of authority to lawfully engage in the recruitment/placementofworkers 2. Offenderundertakes: a. Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contact services, promising or advertising for employment, locally or abroad, whetherforprofitornot(Art.13[b]); or b. Any of prohibited practices under Art.34 Q:WhenisthereSimpleIllegalRecruitment? A:Itisconsideredsimpleillegalrecruitmentwhen itinvolveslessthanthree(3)victimsorrecruiters. Q: Larry Domingo was accused of the crime of illegal recruitment. He argued that he issued no receiptordocumentinwhichheacknowledgedas havingreceivedanymoneyforthepromisedjobs. Hence, he should be free him from liability. Was Larryengagedinrecruitmentactivities? A: Yes. Even if at the time Larry was promising employment no cash was given to him, he is still considered as having been engaged in recruitment activities, since Art.13(b) of the LC states that the act of recruitment may be for profit or not. It sufficesthatLarrypromisedorofferedemployment for a fee to the complaining witnesses to warrant his conviction for illegal recruitment. (People v. Domingo,G.R.No.181475,April7,2009,J.Carpio Morales) Q:WhatisthedifferencebetweentheLCandR.A. 8042 or the Overseas Filipinos and Overseas MigrantWorkersAct? A:
LC(Art.38) Localrecruitment Illegal recruitment underArt.38means any recruitment activity including prohibited acts under Art. 34 committed by non R.A.8042,asamendedbyRA 10022 Appliestorecruitmentfor overseasemployment IllegalrecruitmentunderSec.6 meansanyrecruitmentactivity committed by nonlicensees/ nonholders of authority or prohibited acts (same as Art. 34,LC)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

11

UST GOLDEN NOTES 2011


licensees or non holdersofauthority. Added to the following in the listofprohibitedacts: 1. Failure to actually deploy withoutvalidreason; 2. Failure to reimburse expenses incurred by the workerinconnectionwith his/her documentation and processing for purposesofdeployment; 3. To allow a nonFilipino citizen to head or manage a licensed recruitment/ manning agency.

Q:Howdoesoneproveillegalrecruitment? A: It must be shown that the accused gave the distinctimpressionthathehadthepowerorability tosendcomplainantsabroadforworksuchthatthe latter were convinced to part with their money in ordertobedeployed. Q: May a licensee or holder of authority be held liableforillegalrecruitment? A: Yes, any person (whether nonlicensee, non holderofauthority,licenseeorholderofauthority) who commits any of the prohibited acts, shall be liableforIllegalrecruitment.(R.A.8042) Q: When is illegal recruitment considered as economicsabotage? A:Whenitiscommitted: 1. Byasyndicatecarriedoutby3ormore persons conspiring/confederating with oneanotheror 2. In large scale committed against 3 or more persons individually or as a group. (Sec.6,10022) Q:Whileherapplicationforrenewalofherlicense torecruitworkersforoverseasemploymentwas still pending Maryrose Ganda recruited Alma and her 3 sisters, Ana, Joan, and Mavic, for employment as housemates in Saudi Arabia. Maryroserepresentedtothesistersthatshehada license to recruit workers for overseas employment and demanded and received P30,000.00 from each of them for her services. However, her application for the renewal of her license was denied, and consequently failed to employ the 4 sisters in Saudi Arabia. The sisters charged Maryrose with large scale illegal recruitment. Testifying in her defense, she declaredthatsheactedingoodfaithbecauseshe

believed that her application for the renewal of her license would be approved. She adduced in evidence the Affidavits of Desistance which the four private complainants had executed after the prosecution rested its case. In the said affidavits, they acknowledge receipt of the refund by MaryroseofthetotalamountofP120,000.00and indicated that they were no longer interested to pursuethecaseagainsther.Resolvethecasewith reasons. A: Illegal recruitment is defined by law as any recruitment activities undertaken by nonlicenses or nonholders of authority. (People v. Senoron, G.R.No.119160,Jan.30,1997)Anditislargescale illegal recruitment when the offense is committed against 3 or more persons, individually or as a group. (Art. 38[b], LC) In view of the above, Maryroseisguiltyoflargescaleillegalrecruitment. HerdefenseofGFandtheAffidavitofDesistanceas well as the refund given will not save her because R.A. No. 8042 is a special law, and illegal recruitmentis malumprohibitum.(Peoplev.Saulo, G.R. No. 125903, Nov. 15, 2000). (2005 Bar Question) Q:SometimeinthemonthofMarch1997,inthe CityofLasPias,Bugobymeansoffalsepretenses and fraudulent representation convinced Dado to givetheamountofP120,000.00forprocessingof his papers so that he can be deployed to Japan. Dado later on found out that Bugo had misappropriated, misapplied and converted the moneytoherownpersonaluseandbenefit.Can Dado file the cases of illegal recruitment and estafasimultaneously? A:Yes,illegalrecruitmentandestafacasesmaybe filed simultaneously or separately. The filing of charges for illegal recruitment does not bar the filing of estafa, and vice versa. Bugos acquittal in theillegalrecruitmentcasedoesnotprovethatshe isnotguiltyofestafa.Illegalrecruitmentandestafa are entirely different offenses and neither one necessarilyincludesorisnecessarilyincludedinthe other. A person who is convicted of illegal recruitmentmay,inaddition,beconvictedofestafa underArticle315,par.2(a)oftheRPC.Inthesame manner, a person acquitted of illegal recruitment maybeheldliableforestafa.Doublejeopardywill not set in because illegal recruitment is malum prohibitum,inwhichthereisnonecessitytoprove criminal intent, whereas estafa is malum in se, in theprosecutionofwhich,proofofcriminalintentis necessary.(Syv.People,G.R.No.183879,April14, 2010) Q:DistinguishIllegalRecruitmentfromEstafa

12

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

RECRUITMENT AND PLACEMENT


A:
ILLEGALRECRUITMENT Malumprohibitum,thus: 1. Criminal intent is NOT necessary 2. itisacrimewhichinvolves moralturpitude ESTAFA Maluminse, thus: 1. criminal intent is necessary 2. crime which involves moral turpitude Accused defrauded another by abuse of confidence, or by meansofdeceit
NOTE: It is essential that the false statement or fraudulent representation constitutes the very cause or the only motive which induces thecomplainanttopart withthethingofvalue

agentatthetimeofthetransactionoracquiredby him before its completion, is deemed to be the knowledge of the principal, at least so far as the transaction is concerned, even though in fact the knowledgeisnotcommunicatedtotheprincipalat all.(Leonorv.FilipinasCompania,48OG243) Q: Sunace International Management Services (Sunace),deployedtoTaiwanMontehermozoasa domestic helper under a 12month contract effective Feb. 1, 1997. The deployment was with the assistance of a Taiwanese broker, Edmund Wang, President of Jet Crown International Co., Ltd.Afterher 12monthcontractexpiredonFeb. 1,1998,Montehermozocontinuedworkingforher Taiwanese employer for two more years, after which she returned to the Philippines on Feb. 4, 2000. Shortly after her return she file before the NLRC against Sunace, one Perez, the Taiwanese broker,andtheemployerforeignprincipalalleging thatshewasjailedforthreemonthsandthatshe was underpaid. Should Sunace be held liable for the underpayment for the additional two years that she worked for her Taiwanese employer underthetheoryofimputedknowledge? A: No, the theory of imputed knowledge ascribes the knowledge of the agent, Sunace, to the principal Taiwanese employer, not the other way around. The knowledge of the principalforeign employer cannot, therefore, be imputed to its agentSunace. TherebeingnosubstantialproofthatSunaceknew of and consented to be bound under the 2year employment contract extension, it cannot be said to be privy thereto. As such, it and its owner cannot be held solidarily liable for and of Montehermozos claims arising from the 2year employment extension. (Sunace v. NLRC, G.R. No. 161757,Jan.25,2006) (d)Preteminationofcontractofmigrantworker Q: Serrano, a seafarer, was hired by Gallant Maritime and Marlow Navigation Co. for 12 months as Chief Officer. On the date of his departure, he was constrained to accept a downgradedemploymentcontractfortheposition of Second Officer, upon the assurance that he wouldbemadeChiefOfficerafteramonth.Itwas notdone;hence,herefusedtostayonasSecond Officer and was repatriated to the Phils. He had served only 2 months & 7 days of his contract, leaving an unexpired portion of 9 months & 23 days. Serrano filed with the LA a Complaint against Gallant Maritime and Marlow for constructive

It is not required that it be shown that the recruiter wrongfully represented himself as a licensed recruiter
NOTE: It is enough that the victims were deceived as they relied on the misrepresentationandscheme that caused them to entrust their money in exchange of whattheylaterdiscoveredwas a vain hope of obtaining employmentabroad

Illegalrecruitmentandestafacasesmaybefiled simultaneouslyorseparately.Thefilingofchargesfor illegalrecruitmentdoesnotbarthefilingofestafa,and viceversa. Doublejeopardywillnotset

(c)Liabilities Q:Whatistheliabilityoftheprivateemployment agency and the principal or foreignbased employer? A: They are jointly and severally liable for any violation of the recruitment agreement and the contractsofemployment.
Note: This joint and solidary liability imposed by law againstrecruitmentagenciesandforeignErsismeant to assure the aggrieved worker of immediate and sufficient payment of what is due him. If the recruitment/placementagencyisajuridicalbeing,the corporate officers and directors and partners as the casemaybe,shallthemselvesbejointlyandsolidarily liable with the corporation or partnership for the claims and damages. (Becmen Service Exporter and Promotion v. Cuaresma, G.R. Nos. 18297879, April 7, 2009)

Q:Whatisthetheoryofimputedknowledge? A: A rule in insurance law that any information materialtothetransaction,eitherpossessedbythe

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

13

UST GOLDEN NOTES 2011


dismissal and for payment of his money claims. The LA rendered a favorable decision to Serrano awarding him $8,770.00, representing his salary for 3 months of the unexpired portion of his contract of employment applying R.A. 8042, Sec 10,par5: MoneyClaims.Incaseofterminationofoverseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of 12% per annum, plus his salaries for the unexpired portion of his employment contract or for 3 months for every yearoftheunexpiredterm,whicheverisless. Isthesubjectclauseconstitutional? A: No. The subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixedterm employees who are illegally discharged, it imposes a 3month cap ontheclaimofOFWswithanunexpiredportionof one year or more in their contracts, but none on the claims of other OFWs or local workers with fixedtermemployment.Thesubjectclausesingles outoneclassificationofOFWsandburdensitwitha peculiardisadvantage. TheclauseisaviolationoftherightofSerranoand other OFWs to equal protection and right to substantive due process, for it deprives him of property, consisting of monetary benefits, without anyexistingvalidgovernmentalpurpose. Furthermore, prior to R.A. 8042, all OFWs, regardless of contract periods or the unexpired portionsthereof,weretreatedalikeintermsofthe computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries multiplied by the entire unexpired portion of their employment contracts. The same applies local workerswithfixedtermemployment. Thus, Serrano is entitled to his salaries for the entireunexpiredperiodofninemonthsand23days of his employment contract, pursuant to law and jurisprudence prior to the enactment of RA 8042. (Serrano v. Gallant Maritime Services & Marlow NavigationCo.,Inc.,G.R.No.167614,Mar.24,2009) c.DirectHiring Q:WhatisDirecthiring? A: It is when an employer hires a Filipino worker for overseas employment without going through thePOEAorentitiesauthorizedbytheSecretaryof Labor. Q:Whatisthebanondirecthiring? A: GR: An Er may only hire Filipino worker for overseas employment through POEA or entitiesauthorizedbyDOLE. XPN: Directhiringby 1. Internationalorganizations 2. Namehires 3. Membersofthediplomaticorganizations 4. OtherErsasmaybeallowedbyDOLE Q:Whyisdirecthiringprohibited? A: 1. To ensure the best possible terms and conditionsofemploymentfortheworker. 2. ToassuretheforeignErthathehiresonly qualifiedFilipinoworkers. 3. To ensure full regulation of employment inordertoavoidexploitation. 2.REGULATIONANDENFORCEMENT a.Remittanceofforeignexchangeearnings Q: What is the rule on remittance of foreign exchangeearnings? A:GR:ItshallbemandatoryforallOFWstoremita portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries ranging from 50% 80% depending on the workers kind of job. (RuleVIII,BookIII,POEARules) XPN: 1. Theworkersimmediatefamilymembers, beneficiariesanddependentsareresiding withhimabroad 2. ImmigrantsandFilipinoprofessionalsand employeesworkingwiththeUNagencies orspecializedbodies 3. Filipino servicemen working in U.S. military installations. (Resolution No. 1 83, InterAgency Committee for ImplementationofE.O.857) Q:Whatistheeffectoffailuretoremit? A: 1. WorkersShallbesuspendedorremoved from the list of eligible workers for overseasemployment.

14

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

RECRUITMENT AND PLACEMENT


2. Employers Will be excluded from the overseas employment program. Private employment agencies shall face cancellation or revocation of their licenses or authority to recruit. (Sec. 9, E.O.857) processing of pending workers' applications;and 15. For a recruitment/manning agency or a foreign principal/ Er to pass on the OFW or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsoryworker'sinsurancecoverage 16. Imposing a compulsory and exclusive arrangementwherebyanOFWisrequired to: a. Avail a loan only from specifically designated institutions, entities or persons b. Toundergohealthexaminationsonly fromspecificallydesignatedmedical, entities or persons, except seafarers whose medical examination cost is shoulderedbytheshipowner c. Toundergotrainingofanykindonly fromdesignatedinstitutions,entities or persons, except for recommendatory trainings mandated by principals/shipowners. (Sec.6,R.A.10022) c.RegulatoryandVisitorialPowersoftheLabor Secretary Q: What are the regulatory powers of the SecretaryofLaborandEmployment(SLE)? A: 1. Restrictandregulatetherecruitmentand placementactivitiesofallagencies 2. Issue orders and promulgate rules and regulations Q:Whatconstitutevisitorialpower? A: 1. Access to employers records and premisesatanytimeofthedayornight, wheneverworkisbeingundertaken 2. Tocopyfromsaidrecords 3. Question any employee and investigate any fact, condition or matter which may be necessary to determine violations or whichmayaidintheenforcementofthe Labor Code and of any labor law, wage order, or rules and regulation issued pursuantthereto. Q: Give 4 instances where the visitorial power of theSLEmaybeexercisedundertheLaborCode. A:Powerto:

b.ProhibitedActivities Q: What are prohibited practices in recruitment/placement(Art.34.)? A: 1. Furnishing or publishing any false notice/information/document related to recruitment/employment 2. FailuretofilereportsrequiredbySLE 3. Inducingorattemptingtoinduceaworker alreadyemployedtoquithisemployment in order to offer him another unless the transfer is designed to liberate a worker fromoppressivetermsandconditions 4. Recruitment/placement of workers in jobs harmful to public health or morality ortothedignityofthecountry 5. Engaging directly or indirectly in the managementofatravelagency 6. Substituting or altering employment contractswithoutapprovalofDOLE 7. Chargingoracceptinganyamountgreater than that specified by DOLE or make a worker pay any amount greater than actuallyreceivedbyhim 8. Committing any act of misrepresentation tosecurealicenseorauthority 9. Influencingorattemptingtoinfluenceany person/entity not to employ any worker who has not applied of employment throughhisagency 10. Obstructing or attempting to obstruct inspection by SLE or by his representatives 11. Withholdingordenyingtraveldocuments from applicant workers before departure for monetary considerations other than authorizedbylaw 12. Granting a loan to an OFW which will be used for payment of legal and allowable placementfees 13. Refusingtocondoneorrenegotiatealoan incurredbyanOFWafterhisemployment contract has been prematurely terminatedthroughnofaultofhisorher own 14. For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

15

UST GOLDEN NOTES 2011


1. Inspect books of accounts and records of any person or entity engaged in recruitment and placement, require it to submit reports regularly on prescribed forms and act in violations of any provisions of the LC on recruitment and placement.(Art.37) Have access to employers records and premises to determine violations of any provisions of the LC on recruitment and placement.(Art.128) Conduct industrial safety inspections of establishments.(Art.165) Inquire into the financial activities of legitimate labor organizations (LLO) and examinetheirbooksofaccountsuponthe filing of the complaint under oath and dulysupportedbythewrittenconsentof at least 20% of the total membership of theLOconcerned.
provisions Nonlicensee/non holderofauthority violatesprovisions Corporation, partnership, association,orentity orboth 48yrsimprisonment;or Fine:P20KP100K orboth Penaltyimposedupon officer/sresponsiblefor violation PenaltiesprescribedunderRA 10022, + Deportationwithoutfurther proceedings Automaticrevocationof licenseorauthorityandall permitsandprivilegesofthe recruitmentormanning agency,lendinginstitutions, trainingschoolormedical clinic

2.

Alien

3. 4.

Ineverycase

Q:CanSLEissuesearchwarrantsorwarrantsof arrest? A: No. Only a judge may issue search and arrest warrants. Art 38 (c) of the Labor Code is unconstitutional inasmuch as it gives the SLE the powertoissuesearchorarrestwarrants.Thelabor authoritiesmustgothroughthejudicialprocess. d.PenaltiesforIllegalRecruitment Q:Whatistheconsequenceofconvictionofillegal recruitment(IR)? A:
PENALTIES(underR.A.10022) Offender/Offense IRaseconomic sabotage Provided: 1. Ifpersonillegally recruitedisbelow 18yearsofageor 2. Illegal recruitmentis committedbya nonlicensee/non holder Anypersonfound guiltyofillegal recruitment Anypersonfound guiltyofthe prohibitedacts Licensee/holderof authorityviolates Penalty Lifeimprisonment+ fineofP2MP5M Maximumpenaltyshall beimposed 12yrsand1day20yrs imprisonment;or Fine:P1MP2M 6yrsand1day12yrs imprisonment;or FineofP500KP1M 25yrsimprisonment;or Fine:P10KP50K;

Q: What are the remedies under the Migrant WorkersActandhowmaytheybeenforced? A:


CRIMINALACTIONS RTC Provinceorcity: 1. Wheretheoffensewascommittedor 2. Wheretheoffendedpartyactuallyresidesatthe sametimeofthecommissionoftheoffense MONEYCLAIMS NLRC Original and exclusive jurisdiction to hear and decide claimsarisingoutofanErEerelationshiporbyvirtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral,exemplaryandotherformsofdamages. Theliabilityoftheprincipal/Erandtherecruitment/ placement agency for any and all claims shall be jointandseveral. The performance bond to de filed by the recruitment/placementagencyshallbeanswerable for all money claims or damages that may be awardedtotheworkers. 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 partnershipfortheclaimsanddamages. ADMINISTRATIVEACTIONS POEA

16

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

RECRUITMENT AND PLACEMENT


Originalandexclusivejurisdictiontohearanddecide: 1. All cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities and 2. Disciplinaryaction(DA)casesandotherspecialcases whichareadministrativeincharacter,involvingErs, principals,contractingpartnersandFilipinomigrant workers. a.ItmaybefiledwiththePOEAAdjudicationOffice or the DOLE/POEA regional office of the place wherethecomplaintappliedorwasrecruitedat the option of the complainant. The office with which the complaint was first filed shall take cognizanceofthecase. b.DAcasesandotherspecialcases,asmentioned in the preceding Section, shall be filed with POEAAdjudicationOffice. PERIODS MandatoryPeriodforResolutionofIllegal RecruitmentCases Thepreliminaryinvestigations(PI)ofcasesunderR.A. 10022 shall be terminated within a period of 30 calendardaysfromthedateoftheirfiling. IfthePIisconductedbya IfthePIisconductedby prosecutionofficeranda ajudgeandaprima primafaciecaseis faciecaseisfoundto established exist Prosecutionofficer Informationshallbefiled within48hoursfromthe incourtwithin24hours dateofreceiptofthe fromtheterminationof recordsofthecase.(Sec. theinvestigation 11) PrescriptivePeriodforIllegalRecruitmentCases SimpleIllegalRecruitment Within5yrsfromthetime illegalrecruitmenthas happened EconomicSabotage Within20yrsfromthe timeillegalrecruitment hashappened.(Sec. 12,R.A.8042)

Q: Is compromise agreement on money claims allowed? A: Yes. Consistent with the policy encouraging amicable settlement of labor disputes, Sec. 10 of R.A.8042allowsresolutionbycompromiseofcases filedwiththeNLRC. Q:Whenshallcompromiseagreementsonmoney claimsbepaid? A: Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages shall be paid within 4 months from the approval of the settlement by the appropriate authority.

DoOTandleavepayformpartofthesalarybasis inthecomputationofthemonetaryaward? A: No. The word salaries in Sec. 10(5) does not include overtime and leave pay. For seafarers, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers,inwhichsalaryisunderstoodasthebasic wage,exclusiveofOT,leavepayandotherbonuses; whereas OT pay is compensation for all work performed in excess of the regular 8 hours, and holiday pay is compensation for any work performedondesignatedrestdaysandholidays. (Serrano v. Gallant Maritime Services & Marlow Navigation Co., Inc., G.R. No. 167614, Mar. 24, 2009) 3.OTHERRELATEDTOPICS PhilippineOverseasEmploymentAdministration Q:WhataretheprincipalfunctionsofthePOEA? A: 1. ProtectionoftherightofFilipinoworkers to fair and equitable employment practices 2. Regulation of private sector participation in the recruitment and overseas placement of workers by setting up a licensingandregistrationsystem 3. Deployment of Filipino workers through govttogovthiring 4. Formulation, implementation, and monitoring of overseas employment of Filipinoworkerstakinginto consideration their welfare and domestic manpower requirements 5. Shall inform migrant workers not only of their rights as workers but also of their rightsashumanbeings,instructandguide theworkershowtoasserttheirrightsand provide the available mechanism to redress violation of their rights. (Sec. 14, R.A.10022) 6. Implementation, in partnership with other lawenforcement agencies, of an intensified program against illegal recruitment activities. (Sec. 14, R.A. 10022) Q:MaythePOEA,atanytimeterminateorimpose abanonemploymentofmigrantworkers? A: Yes,in consultationwiththeDFAbasedonthe ff.grounds: 2. InpursuitoftheNationalInterestor

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

17

UST GOLDEN NOTES 2011


3. When public welfare so requires. (Sec. 4 R.A.10022) 3. Ithasconcludedabilateralagreementor arrangementwiththegovernmentonthe protectionoftherightsofOFWs..(Sec.3, R.A.10022amendingR.A.8042)

Q: What are the minimum conditions/ provisions ofoverseasemploymentcontracts? A: 1. Guaranteed wages for regular hours and overtime, not lower than the minimum wageprescribedinalloftheff: a. Thehostcountry b. Bilateralagreementsorinternational conventions ratified by the host countryandthePhilippines c. ThePhilippines 2. Free transportation to and from the worksiteoroffsettingbenefit 3. Free food and accommodation or offsettingbenefit 4. Just/authorized causes of termination of thecontractorservicesoftheworker
Note: An agreement that diminishes the Ees pay and benefits as contained in a POEAapproved contract is void, unless such subsequent agreement is approved bythePOEA.

Provided, that the receiving country is taking positive,concretemeasurestoprotecttherightsof migrant workers in furtherance of any of the guarantees.
Note:Intheabsenceofaclearshowingthatanyofthe guarantees exists in the country of destination of the migrant workers, no permit for deployment shall be issuedbythePOEA.

Q:WhatistheruleondeploymentofOFWs? A:TheStateshallallowthedeploymentofOFWs: 1. Only in countries where the rights of Filipinomigrantworkersareprotected. 2. To vessels navigating the foreign seas or to installations located offshore or on high seas whose owners/Ers are compliant with international laws and standards that protect the rights of migrantworkers. 3. To companies and contractors with international operations: Provided, That they are compliant with standards, conditions and requirements, as embodied in the employment contracts prescribedbythePOEAandinaccordance with internationallyaccepted standards. (Sec.3,R.A.10022amendingR.A.8042) Q: What are the guarantees of the receiving countryfortheprotectionoftherightsofOFWs? A: 1. It has existing labor and social laws protectingtherightsofworkers,including migrantworkers; 2. It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers,includingmigrantworkers;and

Q:Whatistheruleonrepatriation? A:GR:Therepatriationofthe: 1. Worker and the transport of his personal belongings shall be the primary responsibility of the agency which recruited or deployed the worker overseas. 2. Remains and transport of the personal belongings of a deceased worker and all costsattendanttheretoshallbeborne bytheprincipaland/orthelocalagency. XPNs: 1. If the termination of employment is due solely to the fault of the worker, the principal/ Er or agency shall not be responsible for the repatriation of the formerand/orhisbelongings 2. In cases of war, epidemic, disaster or calamities, natural or manmade, and other similar event, and where the principalorrecruitmentagencycannotbe identified,theOverseasWorkersWelfare Administration, in coordination with appropriate international agencies, shall take charge of the repatriation. (Sec.15, R.A.8042) Q: What is the rule on mandatory repatriation of underagemigrantworkers? A: Upon discovery or being informed of the presenceofmigrantworkerswhoseagesfallbelow the minimum age requirement for overseas deployment, the responsible officers in the foreign service shall without delay repatriate said workers and advise the DFA through the fastest means of communication available of such discovery and other relevant information. The license of a recruitment/manning agency which recruited or deployed an underage migrant worker shall be automatically revoked and shall be imposed a fine

18

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

RECRUITMENT AND PLACEMENT


of not less than P500,000 but not more than P1,000,000.(Sec.9,R.A.10022) Q: What are the regulatory and adjudicatory functionsofthePOEA? A: 1. Regulatory It regulates the private sector participation in the recruitment and overseas placement of workers through its licensing and registration system. 2. Adjudicatory a. Administrative cases involving violations of licensing rules and regulations and registration of recruitment and employment agenciesorentities b. Disciplinary action cases and other special cases which are administrative in character involving employers, principals, contracting partnersandFilipinomigrants. Q:Whatarethegroundsfordisciplinaryactionof OFWs? A:UnderR.A.8042,theseare: 1. Prostitution 2. Unjustrefusaltodepartfortheworksite 3. Gunrunning or possession of deadly weapons 4. Vandalism or destroying company property 5. Violationofthelawsandsacredpractices ofthehostcountryandunjustifiedbreach ofemploymentcontract 6. Embezzlement of funds of the company orfellowworkerentrustedfordeliveryto relativesinthePhils. 7. Creatingtroubleattheworksiteorinthe vessel 8. Gambling 9. Initiating or joining a strike or work stoppage where the laws of the host countryprohibitsstrikesorsimilaractions 10. Commission of felony punishable by Philippinelawsorbythehostcountry 11. Theftorrobbery 12. Drunkenness 13. Drugaddictionorpossessionortrafficking ofprohibiteddrugs 14. Desertionorabandonment Q:Whatisthedistinctionbetweenthejurisdiction oftheLAandPOEA? A:
JURISDICTION LaborArbiter Original and exclusive jurisdiction over all claims arising out of ErEe relationship or byvirtueofanylawor contract involving OFWsincludingclaims for: 1.Actual 2.Moral 3.Exemplary 4.Other forms of damages. (Sec. 10, R.A.8042) POEA Original and exclusive jurisdictionover: 1. All cases which are administrative in character relating to licensing and registration of recruitment andemploymentagencies 2. Disciplinary Action cases and other special cases, which are administrative in character, involving Ees, principals, contracting partnersandFilipinomigrant workers. (Rule VII, Book VII, POEARules)

Q: A seafarer was prevented from leaving the port of Manila and refused deployment without valid reason. His POEAapproved employment contract provides that the employeremployee relationship shall commence only upon the seafarers actual departure from the port in the point of hire. Is the seafarer entitled to relief undertheMigrantWorkersAct,intheabsenceof anemployeremployeerelationship? A: Yes. Despite the absence of an employer employee relationship, the NLRC has jurisdiction over the seafarers complaint. The jurisdiction of labor arbiters is not limited to claims arising from ErEerelationships.Sec.10oftheMigrantWorkers Act provides that the labor arbiters shall have jurisdiction over claims arising out of an ErEe relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. Since the present case involves the employment contract entered into by petitionerforoverseasemployment,hisclaimsare cognizable by the labor arbiters of the NLRC. (Santiago v. CF Sharp Crew Management,G.R. No. 162419,July10,2007) Q:Whatmattersfalloutsidethejurisdictionofthe POEA? A: 1. Foreign judgments such claim must be brought before regular courts. POEA is notacourt;itisanadministrativeagency, exercising adjudicatory or quasijudicial functions. 2. Torts falls under the provisions of the CivilCode.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

19

UST GOLDEN NOTES 2011


EmploymentofNonResidentAliens Q: What is required in the employment of non residentaliens? A: Any alien seeking admission to the Phil. for employmentpurposesandanydomesticorforeign employer (Er) who desires to engage an alien for employmentinthePhilippines: 1. Shall obtain an employment permit from theDOLE 2. The permit may be issued to a non residentalienortotheapplicantErafter adeterminationofthenonavailabilityof a person in the Phil. who is competent, ableandwillingatthetimeofapplication to perform the services for which the alienisdesired 3. For an enterprise registered in preferred areasofinvestments,saidpermitmaybe issueduponrecommendationofthegovt agency charged with the supervision of saidregisteredenterprise Q: The DOLE issued an alien employment permit for Earl Cone, a U.S. citizen, as sports consultant and assistant coach for GMC. Later, the Board of SpecialInquiryoftheCommissiononImmigration andDeportationapprovedConesapplicationfora changeofadmissionstatusfromtemporaryvisitor to prearranged employee. A month later, GMC requested that it be allowed to employ Cone as fullfledged coach. The Dole Regional Director grantedtherequest.TheBasketballAssociationof the Phils. appealed theissuance of said permit to theSLEwhocancelledConesemploymentpermit because GMC failed to show that there is no person in the Philippines who is competent and willing to do the services nor that the hiring of Cone would redound to the national interest. Is theactofSLEvalid? A:Yes.GMCsclaimthathiringofaforeigncoachis anErsprerogativehasnolegalbasis.UnderArt.40 of the LC, an Er seeking employment of an alien must first obtain an employment permit from the DOLE. GMCs right to choose whom to employ is limited by the statutory requirement of an employmentpermit.(GMCv.Torres,G.R.No.9366, April22,1991) Art.41.ProhibitionAgainstTransferofEmployment Q: Who are required to obtain an employment permit? A:GR:Onlynonresidentaliens; XPNS: 1. Diplomatic services and foreign govt officials 2. Officers and staff of intl organizations andtheirlegitimatespouses 3. Members of governing board who has votingrightsonly 4. Thoseexemptedbyspeciallaws 5. Owners and representatives of foreign principals who interview Filipino applicantsforemploymentabroad 6. Alienswhosepurposeistoteach,present and/orconductresearchstudies 7. Resident aliens. (D.O. 7506, May 31, 2006) Q: May the nonresident alien transfer employment after issuance of the employment permit? A:Aftertheissuanceofanemploymentpermit,the alienshallnottransfertoanotherjoborchangehis employerwithoutpriorapprovaloftheSecretaryof Labor. Q: What is required for immigrants and resident aliens? A:AnAlienEmploymentRegistrationCertificate. Q: What is the duration of the employment permit? A:GR:Minimumof1year XPN:Unlessrevokedandsubjecttorenewal Q:Mayaliensbeemployedinentitiesengagedin nationalizedactivities? A:GR:No. XPNs: 1. Sec. of Justice specifically authorizes the employmentoftechnicalpersonnel 2. Aliens are elected members ofthe board of directors or governing body of corporationsorassociationsor 3. EnterprisesregisteredundertheOmnibus Investment Code in case of technical, supervisory or advisory positions, but for alimitedperiod.

20

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

RECRUITMENT AND PLACEMENT


Art.25.PrivateSectorParticipationinthe RecruitmentandPlacementofWorkers Q:Whataretheentitiesintheprivatesectorsthat can participate in recruitment and placement of workers? A: 1. Shipping or manning agents or representatives 2. Privaterecruitmentoffices 3. Publicemploymentoffices 4. Construction contractors if authorized by the DOLE and Construction Industry Authority. 5. Persons that may be authorized by the SLE 6. Private employment agencies. (Sec. 1, RuleVII,BookI,IRR) Q: What are the qualificationsfor participation in recruitmentandplacementofworkers? A: 1. Filipino citizens, partnerships or corporations at least 75% of the authorized capital stock of which is ownedandcontrolledbyFilipinocitizens; (Art.27,LC) 2. Capitalization a. Singleproprietorshiporpartnership A minimum capitalization of P2 million b. Corporation A minimum paidup capital of P2 million Provided,thatthosewithexistinglicenses shall, within 4 yrs from the effectivity hereof, increase their capitalization or paidupcapital,asthecasemaybe,toP2 million at the rate of P250,000.00 every year.(Art.28,LC) 3. Nototherwisedisqualifiedbylaworother government regulations to engage in the recruitmentandplacementofworkersfor overseas employment. (Rule I, Part II, POEARules) 4. Paymentofregistrationfees 5. Postingofsurety/cashbonds Q: How will POEA regulate private sector participation in the recruitment and overseas placementofworkers? A:Bysettingupalicensingandregistrationsystem. (Sec.14,R.A.10022) Q: Is a corporation, 70% of the authorized and votingcapitalofwhichisownedandcontrolledby Filipino citizens, allowed to engage in the recruitment and placement of workers, locally or overseas?Explainbriefly. A: No. It is because Art. 27 of the Labor Code requiresatleast75%.(2002BarQuestion) Q:Whoaredisqualifiedtoengageinthebusiness ofrecruitmentandplacementofworkers? A: 1. Travel agencies and sales agencies of airlinecompanies;(Art.26,LC) 2. Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency; 3. Corporationsandpartnerships,whenany of its officers, members of the board or partners,isalsoanofficer,memberofthe board or partner of a corporation or partnership engaged in the business of a travelagency; 4. Persons, partnerships or corporations which have derogatory records, such as butnotlimitedtothose: a. Certified to have derogatory record or information by the NBI or by the AntiIllegal Recruitment Branch of thePOEA; b. Against whom probable cause or primafaciefindingofguiltforillegal recruitment or other related cases exists; c. Convicted for illegal recruitment or other related cases and/or crimes involvingmoralturpitude;and d. Agencies whose licenses have been previously revoked or cancelled by the POEA for violation of R.A. 8042, P.D. 442 as amended and their implementing rules and regulations as well as these rules and regulations. 5. Any official or Ee of the DOLE, POEA, OWWA, DFA and other government agencies directly involved in the implementation of R.A. 8042 and/or any th of his/her relatives within the 4 civil degreeofconsanguinityoraffinity;and 6. Personsorpartners,officersanddirectors ofcorporationswhoselicenseshavebeen previously cancelled or revoked for violationofrecruitmentlaws.(Sec.2,Rule I, 2002 Rules and Regulations on the

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

21

UST GOLDEN NOTES 2011


Recruitment and Employment of Land BasedWorkers) Art.26.TravelAgenciesProhibitedtoRecruit Q: What is the rule on recruitment of travel agenciesandsalesagenciesofairlinecompanies? A: They are prohibited from engaging in the business of recruitment and placement of workers foroverseasemploymentwhetherforprofitornot. Q: WTTA is a wellknown travel agency and an authorized sales agent of the PAL. Since majority of its passengers are overseas workers, WTTA applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. Should the applicationbeapproved? A: The application should be disapproved, as it is prohibited by Art. 26 of the LC, to wit: "Art 26. Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not." Rule I, Part II POEA Rules and Regulations Governing the Recruitment and Employment of LandBased Workers (2002) disqualifies any entity having common director or owner of travel agencies and sales agencies of airlines, including any business entity from the recruitment and placement of Filipino workers overseas, whether theyderiveprofitornot.(2006BarQuestion) Art.32.FeestobePaidbyWorkers Q:Whenmayaworkerbechargedanyfee? A:Onlywhen: 1. Hehasobtainedworkthroughrecruiters efforts,and 2. The worker has actually commenced working
Note: A land based agency may charge and collect from its hired workers a placement fee in an amount equivalent to 1 month salary, exclusive of documentationcosts.

Q: What are the only authorized payments that maybecollectedfromahiredworker? A: 1. Placement fee in an amount equivalent toonemonthssalaryoftheworkerand 2. Documentationcosts.

22

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
C.LABORSTANDARDS 1.HOURSOFWORK a.Coverage/Exclusions Q:Whodeterminesworkingconditions? A:Generally,theyaredeterminedbytheemployer, as he is usually free to regulate, according to his discretion,allaspectsofemployment. Q:Whatisthelimitationontheemployerspower toregulateworkingconditions? A: It must be done in good faith and not for the purposeofdefeatingorcircumventingtherightsof the employees. Such are not always absolute and must be exercised with due regard to the rights of labor.
Note: Ones employment, profession, trade or calling is a property right and the wrongful interference therewithisanactionablewrong.

Q:Whendoestheconditiononemploymentunder theLaborCodeapply? A:OnlyifanErEerelationshipexists. Q:Whoaretheemployeesthatarecoveredbythe conditionsofemployment? A:GR:ItappliestoallEesinallestablishments. XPN: 1. Govtemployees 2. Managerialemployees 3. Fieldpersonnel 4. The employers family members who dependonhimforsupport 5. Domestic helpers and persons in the personalserviceofanother,and 6. Workers who are paid by results as determinedunderDOLEregulations Q:Whoaregovernmentemployees(Ees)? A:TheyareEesofthe: 1. NationalGovernment 2. Anyofitspoliticalsubdivisions 3. Including those employed in GOCCs with originalcharters. Q:WhatlawgovernsgovernmentEes? A:TheCivilServiceLaw,rulesandregulations.

Q:WhoaremanagerialEes? A: Those whose primary duty consists of the management of the establishment in which they are employed or a department or subdivision thereof, and other officers or members of the managerialstaff. Theymustmeetalloftheff.conditions,namely: 1. Primary duty: management of the establishment in which they are employed or of a department or sub divisionthereof; 2. Customarily or regularly direct the work of2ormoreEes 3. HastheauthoritytohireorfireotherEes of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any change of status of other Ees are given particularweight. 4. Execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge 5. Executeundergeneralsupervisionspecial assignmentandtasks;and 6. Do not devote more than 20% of their hours worked to activities which are not directly and closely related to performance of the work described. (Art. 82[2]) Q:WhyaremanagerialEesnotcovered? A: They are employed by reason of their special training, expertise or knowledge and for positions requiring the exercise of discretion and independent judgment. Value of work cannot be measuredintermsofhours. Q:Whoarefieldpersonnel? A:Theyare: 1. nonagriculturalemployees 2. whoregularlyperformtheirduties 3. awayfromtheprincipalplaceofbusiness orbranchofficeoftheemployer;and 4. whose actual hours of work in the field cannot be determined with reasonable certainty. Q:Whoareworkerspaidbyresults? A:Theyare:

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

23

UST GOLDEN NOTES 2011


paidbasedontheworkcompleted;and notonthetimespentinworking including those who are paid on piece work, takay, pakiaw, or task basis if theiroutputratesareinaccordancewith thestandardsprescribed. Q: Who are domestic helpers and persons in the personalserviceofanother? A:Thosewho: 1. perform services in the employers (Er) home which are usually necessary or desirable for the maintenance or enjoymentthereof;or 2. minister to the personal comfort, convenienceorsafetyoftheEraswellas themembersofhisErshousehold. Q: A house personnel was hired by a ranking company official to maintain a staff house provided for the official. The personnel is being paidbythecompanyitself.Isthehousepersonnel adomesticservantofthecompanyofficial? A:No,thepersonnelisnotadomestichelperbuta regularemployeeofthecompany. Q: What are the 3 groups of employees (Ees) undertheLC? A: 1. Managerial Ee One who is vested with the powers or prerogatives to lay down andexecutemanagementpoliciesand/or to hire, transfer, suspend, layoff, recall, discharge,assignordisciplineEes. 2. SupervisoryEethosewhointheinterest of the Er, effectively recommend such managerialactionsiftheexerciseofsuch authority is not merely routinary or clerical in nature but requires the use of independentjudgment. 3. RankandFileEeallEesnotfallingwithin anyoftheabovedefinitions.(Art.212[m]) b.Normalhoursofwork Q:WhatarethenormalhoursofworkofanEe? A:Itshouldnotexceed8hoursinageneralworking day.
Note: Normal hours of work may be shortened or compressed.

1. 2. 3.

A: 1. AlltimeduringwhichanEeisrequiredto be: a. Onduty,or b. AttheErspremises,or c. Ataprescribedworkplace AlltimeduringwhichanEeissufferedor permittedtowork.(Sec.3,RuleI,BookIII, IRR)

2.

Q:Whatareconsideredhoursworked?

Q: What are the principles in determining hours worked? A: 1. AllhourswhichtheEeisrequiredtogive to his Er regardless of whether or not such hours are spent in productive labor orinvolvephysicalormentalexertion. 2. Rest period is excluded from hours worked, even if Ee does not leave his workplace,itbeingenoughthat: a. Hestopsworking b. Mayrestcompletely c. May leave his workplace, to go elsewhere, whether within or outside the premises of the workplace 3. All time spent for work is considered hoursworkedif: a. The work performed was necessary b. IfitbenefitedtheEr c. OrtheEecouldnotabandonhis work at the end of his normal working hours because he had noreplacement d. Provided,theworkwaswiththe knowledge of his Er or immediatesupervisor 4. ThetimeduringwhichanEeisinactiveby reasons of interruptions in his work beyond his control shall be considered workingtime: a. If the imminence of the resumption of the work requires the Ees presence at theplaceofworkor b. If the interval is too brief to be utilized effectively and gainfully intheEesowninterest.(Sec.4, RuleI,BookIII,IRR)

24

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
(a)Exceptions:HealthPersonnel&Compressed WorkWeek HealthPersonnel Q: What are the hours of work of health personnel? A: GR: 8 hours/5 days (40hour work week), exclusiveoftimeformeals. XPN: Where the exigencies of the service require that such personnel work for 6 days or 48hours,theyshallbeentitledtoanadditional compensation of at least 30% of their regular wageforworkonthe6thday.
Note: 40hourworkweek doesnot applyifthereisa training agreement between the resident physician and the hospital and the training program is duly accredited or approved by appropriate government agency.

consultations with the workers and supervisors, a consensus is reached on how to deal with deteriorating economic conditions and it is sufficientlyproventhatthecompanywassuffering from losses. Under the Bureau of Working Conditions bulletin, a reduction of the number of regular working days is valid where the arrangement is resorted to by the employer to prevent serious losses due to causes beyond his control,suchaswhenthereisasubstantialslumpin thedemandforhisgoodsorservicesorwhenthere is lack of raw materials. There is one main consideration in determining the validity of reductionofworkinghoursthatthecompanywas suffering from losses. A year of financial losses would not justify a reduced workweek. (Linton Commercialv.Hellera,G.R.No.163147,October10, 2007) Q: Under what conditions may a "compressed work week" schedule be legally authorized as an exception to the "8hour a day" requirement undertheLC? A: 1. 2. 3. TheEevoluntarilyagreestoit There is no diminution in their weekly or monthlytakehomepayorfringebenefits The benefits are more than or at least commensurate or equal to what is due the Ees without the compressed work week OTpaywillbedueanddemandablewhen they are required to work on those days which should have ceased to be working days because of the compressed work weekschedule. No strenuous physical exertion or that theyaregivenadequaterestperiods. It must be for a temporary duration as determined by the DOLE. (2005 Bar Question)

Q:Whoarecoveredbythe40hourworkweek? A: 1. Health personnel in cities and municipalities with a population of at least1million;or 2. Hospitals and clinics with a bed capacity ofatleast100 Note:Art.83(2)donotrequirehospitalstopaythe Ees a full weekly salary with paid 2 days off. (San Juan de Dios Ees Assoc.AFW et al. vs. NLRC, G.R. No.126383,Nov.28,1997) CompressedWorkweek Q:Whatisacompressedworkweek? A: The normal workweek is reduced to less than 6 days but the total number of workhours of 48 hoursperweekshallremain.Thenormalworkdayis increased to more than 8 hours but not to exceed 12 hours, without corresponding overtime premium.Theconceptcanbeadjustedaccordingly depending on the normal workweek of the company.(DepartmentAdvisoryOrderNo.2,Series of2009) Q: When is the implementation of a compressed workweekvalid? A: The validity of the reduction of working hours canbeupheldwhenthearrangementistemporary, it is a more humane solution instead of a retrenchment of personnel, there is notice and

4.

5. 6.

Q: What are the requisites for adoption of compressedworkweek? A: 1. The Er shall notify the DOLE through the Regional Office which has jurisdiction over the workplace, of the adoption of compressedworkweek. 2. The notice shall be in Report Form attachedtotheadvisory. 3. The Regional Office shall conduct an ocular visit to validate whether the adoption of the flexible work arrangements is in accordance with this issuance.(DepartmentAdvisoryOrderNo. 2,Seriesof2009)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

25

UST GOLDEN NOTES 2011


c.WorkinterruptionduetobrownoutS Q: What are the guidelines on power interruptions? A: Brownouts of short duration but not exceeding 20 minutes shall be treated as worked or compensable hours whether usedproductivelybytheemployees(Ees) ornot. 2. Brownouts running for more than 20 minutes may not be treated as hours worked provided any of the following conditionsarepresent: a. TheEescanleavetheirworkplaceor go elsewhere within or without the workpremises;or b. The Ees can use the time effectively fortheirowninterest. 3. In each case, the Er may extend the working hours of his Ees outside the regular schedules to compensate for the loss of productive manhours without beingliableforOTpay. 4. Industrial enterprises with one or two work shifts may adopt any of the work shift prescribed for enterprises with 3 work shifts to prevent serious loss or damage to materials, machineries, or equipmentthatmayresultcaseofpower interruptions.(PolicyInstructionNo.36) d.MealBreak Q:Whatisthedurationofthemealperiod? A: Every Er shall give his Ees not less than 60 minutesor1hourtimeoffforregularmeals. Q:Isthemealperiodcompensable? A: Beingtimeoff,itisnotcompensable.Employee mustbecompletelyrelievedfromduty. Q: When is the meal period considered compensable? A: It is compensable where the lunch period or mealtime: 1. 2. Ispredominantlyspentfortheemployers benefit;or Whereitislessthan20minutes 1.
Note: Where during meal period, the laborers are requiredtostandbyforemergencywork,orwherethe meal hour is not one of complete rest, such is considered OT. (Pan Am vs. Pan Am Ees Association, G.R.No.L16275,Feb.23,1961) Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as compensable working time.(Sec.7,RuleI,BookIII,IRR)

Q: Are meal periods provided during OT work compensable? A: Yes, since the 1 hour meal period (non compensable)isnotgivenduringOTworkbecause thelatterisusuallyforashortperiodandtodeduct fromthesamewouldreducetonothingtheEesOT work. Thus, the 1 hour break for meals during OT shouldbetreatedascompensable. Q: What are the instances where meal periods shortened to not less than 20 minutes is compensableornotcompensable? A: 1. Compensable At the instance of Employer,when: a. Work is nonmanual in nature or does not involve strenuous physical exertion; b. Establishmentregularlyoperatesless than16hoursaday; c. Workisnecessarytopreventserious lossofperishablegoods. d. Actual or impending emergency or thereisurgentworktobeperformed on machineries and equipment to avoidseriouslosswhichtheErwould otherwisesuffer.(Sec.7,RuleI,Book III,IRR) Not Compensable Ee requested for the shorter meal time so that he can leave work earlier than the previously establishedschedule.Requisites: a. Ees voluntarily agree in writing and are willing to waive OT pay for the shortenedmealperiod; b. No diminution in the salary and other fringe benefits of the Ees which are existing before the effectivity of the shortened meal period; c. Work of the Ees does not involve strenuousphysicalexertionandthey are provided with adequate coffee breaks in the morning and afternoon;

2.

26

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
d. Value of the benefits derived by the Ees from the proposed work arrangements is equal to or commensurate with the compensation due them for the shortenedmealperiodaswellasthe OTpayfor30minutesasdetermined bytheEesconcerned; OT pay will become due and demandable after the new time schedule Arrangement is of temporary duration. to travel to his regular place of businessorsomeotherworksite. Done through a conveyance providedbytheemployer(Er). Done under the supervision and controloftheEr. Done under vexing and dangerous circumstance.

b. c. d.

e.

f.

e.Idletime,waitingtime,commutingtime/travel time,whetherpartofhoursofworkornot Q: When is an Ee considered working while on call? A:WhenEeisrequiredtoremainoncallintheErs premisesorsoclosetheretothathecannotusethe timeeffectivelyandgainfullyforhisownpurpose. Q:Whenidletimeisconsideredworkingtime? A:Whentheemployeeisidleorinactivebyreason of interruptions beyond his control shall be consideredworkingtime. Q:Wheniswaitingtimeconsideredworkingtime? A: 1. Ifwaitingisanintegralpartofhiswork,or 2. TheEeisrequiredorengagedbytheErto wait(engagedtowait)
Note: The controlling factor is whether waiting time spentinidlenessissospentpredominantlyfortheErs benefitorfortheEe.

Q: When is waiting time not considered working time? A:WhentheEeiswaitingtobeengaged:idletime isnotworkingtime;itisnotcompensable. Q:Whenistraveltimeconsideredworkingtime? A: 1. Travelfromhometowork GR: Normal travel from home to work is notworkingtime. XPNS: a. Emergency call outside his regular working hours where he is required

Travel that is all in a days work time spent in travel as part of the employees (Ees)principalactivity e.g.travelfromjobsitetojobsiteduring the work day, must be counted as workinghours. 3. Travelawayfromhome GR: a. Travel that requires an overnight stay on the part of the Ee when it cutsacrosstheEesworkdayisclearly workingtime. b. Thetimeisnotonlyhoursworkedon regular workdays but also during corresponding working hours on nonworking days. Outside of these regular working hours, travel away from home is not considered workingtime. XPN: During meal period or when Ee is permitted to sleep in adequate facilities furnishedbytheEr. Q: What are the conditions in order for lectures, meetings and training programs to be not consideredasworkingtime? A:Alloftheff.conditionsmustbepresent: 1. Attendance is outside of the employers regularworkinghours 2. Attendanceisinfactvoluntaryand 3. The employee does not perform any productiveworkduringsuchattendance. f.Overtimework:Undertimeoffsetbyovertime, Waiverofovertime Q:Whatisovertimework(OT)? 2. A: Work performed beyond 8 hours within the workers24hourworkday.
Note: Express instruction from the employer (Er) to the employee (Ee) to render OT work is not required fortheEetobeentitledtoOTpay;itissufficientthat the Ee is permitted or suffered to work. However, written authority after office hours during rest days

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

27

UST GOLDEN NOTES 2011


and holidays are required for entitlement to compensation. Rateofthefirst8hoursworkedon plusatleast30%oftheregularwage(RW): ifdoneonaspecialholidayORrestday: 30%of130%ofRW IfdoneonaspecialholidayANDrestday: 30%of150%ofRW ifdoneonaregularholiday: 30%of200%ofRW

Q:Whatisaworkday? A: The 24hourperiod which commences fromthe timetheemployeeregularlystartstowork e.g. If the worker starts to work 8 am today, the workdayisfrom8amtodayupto8amtomorrow.
Note: Minimum normal working hours fixed by law neednotbecontinuoustoconstitutethelegalworking day.

Q:WhatistherationalebehindOTpay? A: Employee is made to work longer than what is commensurate with his agreed compensation for the statutory fixed or voluntarily agreed hours of laborheissupposedtodo.(PNBvs.PEMAandCIR, G.R.No.L30279,July30,1982) Discourages the employer (Er) from requiring such work thus protecting the health and wellbeing of the worker, and also tend to remedy unemployment by encouraging Ers to employ othersworkerstodowhatcannotbeaccomplished duringthenormalhoursofwork. Q:DistinguishOvertimepayfrompremiumpay. A:
OVERTIMEPAY Additional compensationfor work performed beyond 8 hours on ordinary days (within the workers 24hour workday) PREMIUMPAY Additionalcompensationforwork performedwithin8hoursondays when normally he should not be working (on nonworking days, such as rest days and special days.) But additional compensation for work rendered in excess of 8 hours during these days is also consideredOTpay.

Q:WhatisthebasisofcomputingtheOTpayand additionalremuneration? A:Regularwagewhichincludesthecashwageonly, withoutdeductiononaccountoffacilitiesprovided bytheemployer.(Art.90) Q: In lieu of OT pay, the employee was given permission to go on leave on some other day, is thatvalid? A:No.Permissiongiventotheemployee(Ee)togo onleaveonsomeotherdayoftheweekshallNOT exempt the employer from paying the additional compensation required because it would prejudice theEe,forhewillbedeprivedoftheadditionalpay for the OT work he has rendered and which is utilized to offset the undertime he may have incured. Undertime could be charged against the Eesaccruedleave. Q: Socorro is a clerktypist in the Hospicio de San Jose, a charitable institution dependent for its existence on contributions and donations from wellwishers.Sherenderswork11hoursadaybut hasnotbeengivenOTpaysinceherplaceofwork isacharitableinstitution.IsSocorroentitledtoOT pay?Explainbriefly. A:Yes.SocorroisentitledtoOTcompensation.She does not fall under any of the exceptions to the coverage of Art. 82, under the provisions of hours of work. The Labor Code is equally applicable to nonprofit institutions. A covered Ee who works beyond 8 hours is entitled to OT compensation. (2002BarQuestion) Q: Flores applied for the position of driver in the motorpool of Gold Company, a multinational corporation. Danilo was informed that he would frequently be working OT as he would have to drive for the company's executives even beyond the ordinary 8hour work day. He was provided withacontractofemploymentwhereinhewould bepaidamonthlyrateequivalentto35timeshis dailywage,regularsickandvacationleaves,5day leavewithpayeverymonthandtimeoffwithpay

Q:WhataretheOTpayrates? A:
PAYRATES OTduringaregularworkingday Additionalcompensationof25%oftheregularwage OTduringaholidayorrestday

28

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
when the company's executives using the cars do not need Danilo's service for more than eight hoursaday,inlieuofOT.Aretheaboveprovisions ofthecontractofemploymentinconformitywith, orviolativeof,thelaw? A: Except for the provision that Danilo shall have time off with pay when the company's executives usingthecarsdonotneedDanilo'sserviceformore than8hoursaday,inlieuofOT,theprovisionsof the contract of employment of Danilo are not violative of any labor law because they instead improve upon the present provisions of pertinent laborlaws. Q: May an employee be compelled to render OT work? A:GR:No.OTworkisvoluntary. XPN: Compulsory OT work in any of the followingsituations: 1. Urgent work to be performed on machines and installations in order to avoidseriouslossordamagetotheEror someothercauseofsimilarnature Work is necessary to prevent loss or damagetoperishablegoods In case of imminent danger to the public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake,epidemicorotherdisasteror calamity Countryisatwar Completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business operations of theEr Anyothernationalorlocalemergencyhas beendeclared Necessary to prevent loss of life or property. 2. specificwagesperday,withoutproviding for a fixed hourly rate or that the daily wagesincludeOTpay,saidwagescannot be considered as including OT compensation. (Manila Terminal Co. vs. CIR,etal.,91Phil.,625) However, the employment contract may provideforabuiltinOTpay.Becauseof this, nonpayment of OT pay by the employer is valid. (Engg Equipment vs. Minister of Labor, G.R. No. L64967, Sep. 23,1985)

(a)UndertimenotoffsetbyOvertime Q:Canundertime(UT)offsetOT? A: Whereaworkerincursundertimehoursduring hisregulardailywork,saidundertimehoursshould not be offset against the overtime hours on the samedayoronanyotherday.Itisbothprohibited bythestatuteandbyjurisprudence. (b)WaiverofOvertimepay Q:CantherighttoOTpaybewaived? A:GR:TherighttoOTpaycannotbewaivedasit is governed by law and not merely by the agreementoftheparties. XPN: 1. If the waiver is done in exchange for certain valuable benefits and privileges, which may even exceed the OT Pay, waivermaybepermitted. 2. Compressedworkweek g.Nightwork Q:Whatisnightwork? A: Any and all work rendered between 6:00 pm and6:00am.(NationalRice&CornCorp.v.NARIC, 105Phil891) Q: What isnight work prohibitionwith regard to womenworkers? A: GR: No woman regardless of age shall be employed or permitted to work, with or withoutcompensationinany: 1. Industrial undertaking or branch thereof between 10pm and 6am of the following day. Commercialornonindustrialundertaking orbranchthereof,otherthanagricultural,

2. 3.

4. 5.

6. 7.

Note: There should be payment of additional compensation.EesrefusaltoobeytheorderoftheEr constitutes insubordination for which he may be subjectedtodisciplinaryaction.

Q: The employment contract requires work for more than 8 hours a day with a fixed wage inclusiveofOTpay.Isthatvalid? A:Itdepends. 1. When the contract of employment requires work for more than 8 hours at

2.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

29

UST GOLDEN NOTES 2011


between midnight and 6am of the followingday. Agricultural undertaking at nighttime unlesssheisgivenperiodofrestnotless than9consecutivehours. XPN: 1. Ees of the Govt and any of its political subdivisions,includingGOCCs. 2. Retail and service establishments regularly employing not more than 5 workers. 3. Includestaskandcontractbasis 4. Domestic helpers and persons in the personalserviceofanother. 5. Field personnel and Ees whose time and performance is unsupervised by the employer 6. ManagerialEes Q:MayanemployeewaivetherighttoNSD? A: GR: No, such waiver is against public policy. (Mercury Drug Co., Inc. vs. Dayao, et al., G.R. No.L30452,Sep.30,1982) XPN:Higher/betterbenefits h.CBAprovisionvisvisovertimework Q:Maytheovertimeratebesubjecttostipulation oftheEeandEr? A:Generally,thepremiumforworkperformedon the employees rest days or on special days or regularholidaysareincludedaspartoftheregular rate of the employee in the computation of overtime pay for any overtime work rendered on said days especially if the employer pays only the minimum overtime rates prescribed by law. The employees and employer, however, may stipulate in their collective agreement the payment of overtime rates higher than those provided by law andexcludethepremiumratesinthecomputation of overtime pay. Such agreement may be consideredvalidonlyifthestipulatedovertimepay rates will yield to the employees not less than the minimumprescribedbylaw. 2.WAGES Q:Whatisawage? A: It is the remuneration or earnings, however designated,capableofbeingexpressedintermsof money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, payable by an employer (Er) to an employee (Ee) under a written or unwrittencontractofemployment: 1. For work done or to be done, or for servicesrenderedortoberendered;and includes

3.

XPNS: 1. Actualorimpendingemergencies a. Caused by serious accident, fire, flood, typhoon, earthquake, epidemic, other disasters, or calamity b. Topreventlossoflifeorpropertyor c. Incaseofforcemajeureor d. Imminentdangertopublicsafety 2. Urgentwork a. To be performed on machineries, equipmentorinstallations, b. To avoid serious loss which the Er wouldotherwisesuffer 3. Workisnecessarytopreventseriousloss toperishablegoods 4. WomanEes a. Holds a responsible position of managerialortechnicalnature,or b. Has been engaged to provide health andwelfareservices 5. Natureofthework a. Requires the manual skill and dexterityofwomenworkersand b. Thesamecannotbeperformedwith equalefficiencybymaleworkers 6. Women Ees are immediate members of theestablishmentorundertaking 7. In analogous cases exempted by the SLE inappropriateregulations.(Art.131)
Note: The operation of Call Contract Centers which provides offshore case solutions to US based clients who phone in to conduct product inquiries and technical support, operating for 24/7, has been exempted from the prohibition considering the inevitable time difference between the US and the Phils. and the peak time for its operation is between 8:00 pm to 10:00 am Manila time, thereby making it necessaryfor80%ofitsEes,includingwomen,towork duringgraveyardshift.(BWCWHSDOpinionNo.491,s. 2003)

Q:Whatisnightshiftdifferential(NSD)? A: It is additional compensation of not less than 10%ofanEesregularwageforeveryhourworked between10:00pmto6:00am,whetherornotsuch periodispartoftheworkersregularshift. Q:WhoareentitledtoNSD? A:GR:NSDappliestoallemployees(Ees).

30

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
2. Fair and reasonable value of board, lodging, or other facilities customarily furnished by the Er to the Ee as determinedbySLE. c.FacilitiesandSupplements Q:Distinguishbetweenfacilitiesandsupplement A:
FACILITIES Items of expenses necessaryforthelaborers and his familys existence andsubsistence
Note:Doesnotincludetools oftradeorarticles/services primarily for the benefit of the Er or necessary to the conductoftheErsbusiness.

Q:Whatdoyoumeanbycustomary? A: It is founded on longestablished and constant practiceconnotingregularity. Q: What do you mean by fair and reasonable value? A:Itshallnotincludeanyprofittotheemployer(Er) ortoanypersonaffiliatedwiththeEr. a.Nowork,Nopayprinciple Q: What does a fair days wage for a fair days labormean(noworknopay)? A: GR: If there is no work performed by the Ee, withoutthefaultoftheEr,therecanbeno wageorpay. XPN:Thelaborerwasable,willingandreadyto workbutwas: 1. Preventedbymanagement; 2. Illegallylockedout; 3. Illegallysuspended; 4. Illegallydismissed 5. Otherwise illegally prevented from working. (Aklan Electric Coop. v. NLRC, G.R.No.129246,Jan.25,2000) b.CoverageandExclusions Q:Towhomdoesthetitleonwagesapply? A:GR:Itappliestoallemployees XPN: 1. Farmtenancyorleasehold; 2. Householdordomestichelpers,including familydriversandpersonsworkinginthe personalserviceofanother; 3. Homeworkersengagedinneedleworkor in any cottage industry duly registered in accordancewithlaw; 4. Workers in duly registered cooperatives when so recommended by theBureau of Cooperative Development and upon approval of the Secretary of Labor and Employment. 5. Workers of a barangay micro business enterprise(R.A.9178)

Formspartofthewage Deductiblefromwage For the benefit of the workerandhisfamily.

SUPPLEMENT Extra remuneration or special privileges or benefits given to or receivedbythelaborers over and above their ordinary earnings or wages (Atok Big Wedge Mining Co. v. Atok Big Wedge Mutual Benefit Assoc, G.R. No. L7349, July19,1955). Independentofwage Notwagedeductible Granted for the convenienceoftheEr.

Q:Whatisthecriterionindeterminingwhetheran itemisasupplementorfacility? A:Thecriterionisnotsomuchwiththekindofthe benefitoritem(food,lodging, bonusorsickleave) given, but its purpose. (State Marine v. Cebu SeamensAssn.,G.R.No.L12444,Feb.28,1963) Q:Whencanthecostoffacilitiesfurnishedbythe ErbechargedagainstanEe? A:InorderthatthecostbechargedagainsttheEe, the latters acceptance of such facilities must be voluntary. Q:Whataretherequirementsfordeductingvalues forfacilities? A: 1. 2. 3. Proof must be shown that such facilities arecustomarilyfurnishedbythetrade Theprovisionofdeductiblefacilitiesmust bevoluntarilyacceptedinwriting The facilities must be chargedat fair and reasonable value (Mabeza v. NLRC, G.R. No.118506,April18,1997)

Q: Are food and lodging, or the electricity and water consumed by a hotel worker, considered facilities? A: No. These are supplements. Considering, therefore, thathotel workers are required towork differentshiftsandareexpectedtobeavailableat various odd hours, their ready availability is a necessarymatterintheoperationsofasmallhotel. Furthermore,grantingthatmealsandlodgingwere

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

31

UST GOLDEN NOTES 2011


provided and indeed constituted facilities, such facilities could not be deducted without the Er complying first with certain legal requirements. (Mabezav.NLRC,G.R.No.118506,April18,1997) d.Wagesv.Salaries Q:Distinguishbetweenwageandsalary? A: A: The Er and the union shall negotiate to correct thedistortions.Ifthereisnounion,theErandthe workersshallendeavortocorrectsuchdistinctions. Q:WhatarethebasicprinciplesinWD? A: 1. The concept of WD assumes an existing group or classification of Ees which establishes distinctions among such Ees onsomerelevantorlegitimatebasis.This classification is reflected in a differing wagerateforeachoftheclassesofEes 2. Often results from govt decreed increasesinminimumwages. 3. Should a WD exist, there is no legal requirement that, in the rectification of that distortion by readjustment of the wageratesofthedifferingclassesofEes, the gap which had previously or historically existed be restored in precisely the same amount. In other words, correction of a WD may be done by reestablishing a substantial or significant gap (as distinguished from the historicalgap)betweenthewageratesof thedifferingclassesofEes. 4. The reestablishment of a significant differenceinwageratesmaybetheresult of resort to grievance procedures or collectivebargainingnegotiations.(Metro Transit Org., Inc. v. NLRC, G.R. No. 116008,July11,1995) Q:DistinguishtheprocessforcorrectionofWDof organized establishments and unorganized establishments? A:
Organized Establishment (withunion) TheErandtheunion shallnegotiateto correctdistortion. Anydisputeshallbe resolvedthrougha grievanceprocedure undertheCBA. Ifitremainsunresolved, itshallbedealtwith throughvoluntary arbitration. Thedisputewillbe resolvedwithin10days fromthetimethe disputewasreferredto voluntaryarbitration. Unorganized Establishments (withoutunion) TheErandtheworkers shallendeavortocorrect thedistortion. Anydisputeshallbe settledthroughtheNCMB. Ifitremainsunresolved within10daysitshallbe referredtotheNLRC. TheNLRCshallconduct continuoushearingsand decidethedisputewithin 20daysfromthetimethe samewasreferred.

WAGE SALARY (Gaavs.CA,G.R.No.44169,Dec.3,1985) Paidtowhitecollared Compensationformanual workersanddenotes labor(skilledorunskilled) higherdegreeof alsoknownasblue employmentora collaredworkers,paidat superiorgradeofservices statedtimesand andimpliesapositionin measuredbytheday, office. week,monthorseason. Considerablepayfora Outgestureofalarger lowerandless andmoreimportant responsiblecharacterof service employment. GR:Notsubjectto execution Subjecttoexecution. XPN:Debtsincurredfor food,shelter,clothingand medicalattendance.

e.WageDistortion Q:Whatiswagedistortion(WD)? A: Asituationwhereanincreaseinwageresultsin theeliminationorseverecontractionofintentional quantitative differences in wage or salary rates between and among the Eegroups in an establishment as to effectively obliterate the distinctionsembodiedinsuchwagestructurebased onskills,length ofserviceorotherlogicalbasesof differentiation. Q:WhataretheelementsofWD? A: 1. An existing hierarchy of positions with correspondingsalaryrates. 2. A significant change or increase in the salaryrateofalowerpayclasswithouta corresponding increase in the salary rate ofahigherone; 3. The elimination of the distinction betweenthe2groupsorclasses;and 4. The WD exists in the same region of the country. (Alliance Trade Unions v. NLRC, G.R.No.140689,Feb.17,2004) Q:IstheErlegallyobligedtocorrectWD?

32

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
Q: Can the issue of WD be raised in a notice of strike? A: No. WD is nonstrikeable. (Ilaw at Buklod ng Manggagawa v. NLRC, G.R. No. 91980, June 27, 1991.) WD is neither a deadlock in collective bargainingnorULP. f.CBAprovisionvisvisWageOrderCBACredibility Q:DistinguishCBAandWageOrder. A:
CBA Not an ordinary contract. It can be entered into only by an exclusive bargaining agentorunit. If the CBA provides betterbenefitsthenthe employees shall be entitledtothesame. WAGEORDER Administrative issuance which results from a statute(RA6727)

Moreover, compliance with a collective bargaining agreement is mandatedby theexpressed policy to giveprotectiontolabor.Unlessotherwiseprovided by law, said policy should be given paramount consideration.(MeycauayanCollegev.DRILON,G.R. No.81144,My7,1990). g.Nondiminutionofbenefits Q:Whatistheconceptofnondiminution(ND)of benefits? A: GR: Benefits being given to employees (Ees) cannot be taken back or reduced unilaterally by the employer (Er) because the benefit has become part of the employment contract, whetherwrittenorunwritten. XPN:Tocorrectanerror,otherwise,iftheerroris notcorrectedforareasonabletime,itripensinto a company policy and Ees can demand it as a matterofright. Q:WhenisNDofbenefitsapplicable? A: It is applicable if it is shown that the grant of benefit: 1. 2. Is based on an express policy of the law; or Has ripened into practice over a long period of time and the practice is consistent and deliberate and is not due to an error in the construction/ application of a doubtful or difficult questionoflaw.

Onlysetstheminimum

Q: Can a CBA provision regarding wages prevail overaWageOrder? A:Yes,wheretheCBAprovidesawageorsalaryto be received by the employees which is more than theamountsetbytheWageOrder,whetherissued prior to or after the conclusion of the CBA, it is incumbent upon the employer to compensate the employees according to the provisions of the CBA withrespecttowages. Q: Meycauayan College Faculty and Personnel Association as the employees union in Meycauayan College, admits that its members were paid all the increases in pay as mandated law.Itappearshoweverthatin1987,shortlyafter union President Joy Bugo turned over the presidency,shediscoveredthatArt.IVoftheCBA, which providesfor higher salary increasewasnot implemented.Maytheunionclaimthedifference between their old salaries and those provided by saidCBAprovision? A: Yes, the terms and conditions of a collective bargainingcontractconstitutethelawbetweenthe parties. Beneficiaries thereof are therefore, by right, entitled to the fulfillment of the obligation prescribed therein.Consequently, to deny binding force to the CBA would place a premium on a refusalbyapartytheretotocomplywiththeterms oftheagreement.Suchrefusalwouldconstitutean unfairlaborpractice.

h.Workerspreferenceincaseofbankruptcy Q:Whatisbankruptcy? A:BankruptcyisreferredtointhePhilippinesas Insolvency. It denotes the state of an entity or personthathasliabilitiesgreaterthanitsassets. Q: What happens if the Er business experiences bankruptcyorliquidation? A: His workers shall enjoy first preference as regards their wages and monetary claims, any provision of the law to the contrary notwithstanding. Q: What are the principles underlying the preference? A:

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

33

UST GOLDEN NOTES 2011


1. Declaration of bankruptcy or judicial liquidation before enforcement of the workerspreferentialright; Filingofclaimsbyworkers; Therightdoesnotconstitutealientothe property of the insolvent debtor in favor ofworkers.(DBPvs.NLRC,G.R.No.82763 Mar. 19, 1990 and G.R. No. 97176, Mar. 18,1993); ThepreferenceinfavoroftheEesapplies to discharge of funds. The preference doesnotonlycoverunpaidwages,italso extends to termination pay and other monetaryclaims;
Note: Termination pay, after all, is considered as additional remuneration for services rendered to the employer for a certainperiodoftime;itiscomputedonthe basisoflengthofservice.(PNBvs.Cruz,G.R. No.80593,Dec.18,1989)

mortgagee of property. Was the Labor Arbiter correctinhisdecision? A:No.ThepreferenceofcreditsestablishedinArt. 110oftheLCcannotbeinvokedintheabsenceof any insolvency proceedings, declaration of bankruptcy, or judicial liquidation. (DBP v. Santos,G.R.No.75801,March20,1991).(2003Bar Question) Q: Distinguish the mortgage created under the CivilCodefromtherightof1stpreferencecreated bytheLCasregardstheunpaidwagesofworkers. Explain. A: A mortgage directly subjects the property upon whichitisimposed,whoeverthepossessormaybe, tothefulfillmentoftheobligationforwhichitwas constituted. It creates a real right which is enforceableagainstthewholeworld.Itistherefore alienonanidentifiedrealproperty. Mortgage credit is a special preferred credit under the Civil Code in the classification of credits. The preference given by the LC when not attached to anyspecificpropertyisanordinarypreferredcredit. (1995BarQuestion) i.LaborCodeprovisionsforwageprotection Q: What are the Labor Code provisions for wage protection A: Art.112.NonInterferenceinDisposalofWagesNo employershalllimitorotherwiseinterferewiththe freedom of any employee to dispose of his wages. Heshallnotinanymannerforce,compeloroblige his employees to purchase merchandise, commoditiesorotherpropertiesfromtheemployer orfromanyotherperson,orotherwisemakeuseof anystoreorserviceofsuchemployeroranyother person. Art. 113 Wage DeductionNo employer in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a) Incaseswheretheworkerisinsuredwith his consent by the employer, and the deductionistorecompensetheemployer for the amount paid by him as premium ontheinsurance; (b) For union dues, in cases where the right of the worker or his union to check off has been recognized by the employer or authorized in writing by the individual workerconcerned;and

2. 3.

4.

Applicable only to ordinary preferred credit, hence, must yield to special preferredcredits. Q: Are workers preferred than the tax claims of theGovt? A: No. Art. 110did not sweep away the overriding preferenceaccordedundertheschemeoftheCivil Codetotaxclaimsofthegovernment. Q: Is worker preference applicable if the Er corporationisunderrehabilitation? A: No. Suspension of payments order by the SEC mandatestheholdinginabeyancethefilingorthe proceedings on labor cases against an Er who is under rehabilitation to give the Er the chance to concentrate onhow to revive his business andnot bedistractedintryingtodefenditselfinlaborcases filedagainstit.(Rubberworld,Inc.v.NLRC,G.R.No. 126773,April14,1999) Q:PremiereBank,beingthecreditormortgageeof XYZ & Co., a garment firm, foreclosed the hypothecated assets of the latter. Despite the foreclosure, XYZ & Co. continued its business operations.Ayearlater,thebanktookpossession of the foreclosed property. The garment firm's business operations ceased without a declaration ofbankruptcy.Caspar,anemployeeofXYZ&Co., was dismissed from employment due to the cessation of business of the firm. He filed a complaint against XYZ & Co. and the bank. The LaborArbiter,afterhearing,sofoundthecompany liable, as claimed by Caspar, for separation pay. PremiereBankwasadditionallyfoundsubsidiarily liableuponthethesisthatthesatisfactionoflabor benefitsduetotheEeissuperiortotherightofa

5.

34

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
(c) Incaseswheretheemployerisauthorized by law or regulations issued by the SecretaryofLabor. Art. 114 No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials or equipments supplied by the employer;exceptwhentheemployerisengagedin such trades, occupations or business where the practiceofmakingdeductionsorrequiringdeposits isarecognizedone,orisnecessary,ordesirableas determined by the Secretary of Labor in appropriaterulesandregulations. Art. 115 LimitationsNo deduction from the deposits of an employee for the actual amount of the loss or damage shall be made unless the employee has been heard thereon, and his responsibilityhasbeenclearlyshown. Art 116 Withholding of Wages and Kickbacks ProhibitedIt shall be unlawful for any person, directlyorindirectly,towithholdanyamountfrom thewagesofaworkerorinducehimtogiveupany part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without theworkersconsent. Art117DeductiontoEnsureEmploymentItshallbe unlawfultomakeanydeductionfromthewagesof anyemployeeforthebenefitoftheemployerorhis representative or intermediary as consideration of a promise of employment or retention in employmentorretentioninemployment. Art. 118 Retaliatory MeasuresIt shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed anycomplaintinstitutedanyproceedingunderthis Title or has testified or is about to testify in such proceedings. j.Allowabledeductionswithoutemployees consent Q:Whatistheruleinwagedeductions? A: GR:Itisstrictlyprohibited XPN: 1. Deductions under Art. 113 for insurance premiums 2. Unionduesincaseswheretherightofthe workerorhisuniontocheckoffhasbeen recognized by the employer (Er) or authorized in writing by the individual worker concerned (Art. 113). Art. 241(o) providesthatspecialassessmentsmaybe validly checkedoff provided that there is an individual written authorization duly signedbyeveryemployee(Ee). 3. DeductionsforSSS,MedicareandPagibig premiums 4. TaxeswithheldpursuanttotheTaxCode 5. Deductions under Art. 114 for loss or damagetotools,materialsorequipments 6. Deductions made with the written authorization of the Ee for payment to a thirdperson.(Sec13,RuleVIII,BookIIIof theIRR) 7. Deductions as disciplinary measures for habitual tardiness (Opinion dated March 10,1975oftheSLE) 8. AgencyfeesunderArt.248(e) 9. Deductions for value of meals and facilitiesfreelyagreedupon 10. IncasewheretheEeisindebtedtotheEr where such indebtedness has become due and demandable. (Art. 1706, Civil Code) 11. Incourtawards,wagesmaybesubjectof execution or attachment, but only for debtsincurredforfood,shelter,clothing, and medical attendance. (Art. 1703, Civil Code) 12. Salarydeductionofamemberofalegally established cooperative. (R.A. 6938, Art. 59) k.Attorneysfees Q: What are the limitations to the assessment of attorneyslienagainsttheculpableparty? A: 1. In case of unlawful withholding of wages 10% of the amount of wages to be recovered. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recoveryofwages,attysfeesthatexceed 10%oftheamountofwagesrecovered.

2.

Note: The prohibition on attys lien refers to proceedingsforrecoveryofwagesandnottoservices rendered in connection with CBA negotiations. In the latter case, the amount of attys fees may be agreed upon by the parties and the same is to be charged againstunionfundsasprovidedforinArt.222ofthe Labor Code. (Pacific Banking Corp.v. Clave, G.R. No. 56965,Mar.7,1984)

Q:Whatisordinaryattorneysfee?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

35

UST GOLDEN NOTES 2011


A: It is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered. Q:Whatisextraordinaryattorneysfee? A: It is the indemnity for damages ordered by the courttobepaidbythelosingpartyinlitigationand is not to be paid to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as an additional compensation or as a part thereof. (Traders Royal Bank Ees UnionIndependent v. NLRC, G.R. No. 120592,Mar.14,1997)
Note: Art.111 of the LC deals with the extraordinary concept of attorneys fees. It may not be used as the standardinfixingtheamountpayabletothelawyerby hisclientforthelegalservicesherendered.(Masmud v.NLRC,G.R.No.183385,Feb.13,2009)

Q:Santiago,aprojectworker,wasbeingassigned by his Er, Bagsak Builders, to Laoag, Ilocos Norte. Santiago refused to comply with the transfer claiming that it, in effect, constituted a constructive dismissal because it would take him away from his family and his usual work assignments in Metro Manila. The Labor Arbiter (LA) found that there was no constructive dismissal but ordered the payment of separation pay due to strained relations between Santiago and Bagsak Builders plus attysfees equivalentto 10%ofthevalueofSantiago'sseparationpay. Istheawardofatty'sfeesvalid?Statethereasons foryouranswer. A: No, the award of attys fees is not valid. AccordingtotheLC(Art.111[a]),attysfeesmaybe assessedincasesofunlawfulwithholdingofwages which does not exist in the case. The worker refusedtocomplywithalawfultransferorder,and hence,arefusaltowork.Giventhisfact,therecan benobasisforthepaymentofatty'sfees. Could the LA have validly awarded moral and exemplary damages to Santiago instead of atty's fees?Why? A: No, moral and exemplary damages can be awardedonlyiftheworkerwasillegallyterminated in an arbitrary or capricious manner. (Nueva Ecija Electric Cooperative Inc., Ees Assn., vs. NLRC, G.R. No. 116066, Jan. 24, 2000; Cruz vs. NLRC, G.R. No. 116384, Feb. 7, 2000; Phil. Aeolus etc., vs. NLRC, G.R. No. 124617, April 28, 2000). (2001 Bar Question)

Q: When can attorneys fees and damages be awardedinanillegaldismissalcase? A: For attorneys fees, moral and exemplary damages to be granted, the plaintiff must prove thatthefactsofhiscasefallwithintheenumerated instances in the Civil Code. Thus, moral damages may only be recovered where the dismissal or suspension of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor,orwasdoneinamannercontrarytomorals, goodcustomsorpublicpolicy.Inotherwords,the act must be a conscious and intentional design to doawrongfulactforadishonestpurposeorsome moralobliquity.Exemplarydamages,ontheother hand, may only be awarded where the act of dismissal was effected in a wanton, oppressive or malevolent manner. (Chaves v. NLRC,G.R. No. 166382,June27,2006) Q:Whatisunionservicefee? A: The appearance of labor federations and local unions as counsel in labor proceedings has been givenlegalsanctionunderArt.222oftheLC,which allows nonlawyers to represent their organization thereof.Thesaidlaborfederationsandlocalunions haveavalidclaimtoattysfeeswhichiscalledthe UnionServiceFee. l.Criteria/FactorsforWageSetting Q:Whatarethestandardsorcriteriaforminimum wagesetting? A: In the determination of such regional minimum wages, the Regional Board shall, among other relevantfactorsconsiderthefollowing: Thedemandforlivingwages Wage adjustment visavis the consumer priceindex c) The cost of living and changes or increasestherein d) Theneedsofworkersandtheirfamilies e) Theneedtoinduceindustriestoinvestin thecountryside f) Improvementsinstandardsofliving g) Theprevailingwagelevels h) Fair return of the capital invested and capacitytopayofemployers i) Effects on employment generation and familyincome j) The equitable distribution of income and wealthalongtheimperativesofeconomic andsocialdevelopment Q:Whatissalaryceilingmethod? a) b)

36

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
A: A method of minimum wage adjustment whereby the wage adjustment is applied to Ees receiving a certain denominated ceiling. In other words, workers already being paid more than the existingminimumwagearealsotobegivenawage increase. (ECOP v. NWCP, G.R. No. 96169, Sep. 24, 1991) Q:Whatisafloorwagemethod? A:Itinvolvesthefixingofadeterminateamountto beaddedtotheprevailingstatutoryminimumwage rates. Q:TheRegionalWageBoardofRegionIIissueda Wage Order granting all Ees in the private sector throughout the region an acrosstheboard increaseofP15.00daily.IsthisWageOrdervalid? A:TheWageOrderisvalidinsofarasthemandated increase applies to Ees earning the prevailing minimum wage rate at the time of the passage of the Wage Order and void with respect to its application to Ees receiving more than the prevailing minimum wage rate at the time of the passage of the Wage Order. Pursuant to its authority, the Regional Wage Boards may issue wage orders which set the daily minimum wage rates. In the present case, the Regional Wage Board did not determine orfixthe minimum wage rate.Itdidnotsetawagelevelnorarangetowhich a wage adjustment or increase shall be added. Instead, it granted an acrosstheboard wage increaseofP15.00toallEesintheregion.Indoing so,theRegionalWageBoardexceededitsauthority by extending the coverage of the Wage Order to wage earners receiving more than the prevailing minimumwagerate,withoutadenominatedsalary ceiling.TheWageOrdergrantedadditionalbenefits notcontemplatedbyR.A.No.6727.(MBTCvNWPC Commission,G.R.No.144322,Feb.6,2007) Q: Since the Wage Order was declared void with respect to its application to employees receiving more than the prevailing minimum wage rate at thetimeofthepassageoftheWageOrder,should these Ees refund the wage increase received by them? A:No.TheEesshouldnotrefundthewageincrease that they received under the invalidated Wage Order.Beingingoodfaith,theemployeesneednot refund the benefits they received. Since they received the wage increase in good faith, in the honest belief that they are entitled to such wage increaseandwithoutanyknowledgethattherewas no legal basis for the same, they need not refund the wage increase that they already received. (MBTCvNWPCCommission,G.R.NO.144322,Feb. 6,2007) 3.RESTDAY a.Righttoweeklyrestday,Preferemceofthe employee,whenworkonrestdayauthorized Q:Whatistherighttoweeklyrestday(WRD)? A: Every employer shall give his employees a rest period of not less than 24 consecutive hours after every6consecutivenormalworkdays.(Sec.3,Rule III,BookIII,IRR) Q:WhatisthescopeofWRD? A:Itshallapplytoallemployerswhetheroperating forprofitornot,includingpublicutilitiesoperated byprivatepersons.(Sec.1,RuleIII,BookIII,IRR) Q:WhodeterminestheWRD? A:GR:ErshalldetermineandscheduletheWRDof hisEe. XPNs: 1. CBA 2. RulesandregulationsastheSLEprovides 3. Preference of employee (Ee) based on religious grounds Ee shall make known his preference in writing at least 7 DAYS beforethedesiredeffectivityoftheinitial rest day so preferred. (Sec. 4(1), Rule III, BookIII,IRR) XPN to XPN no. 3: Employer (Er) may schedule the WRD of his choice for at least 2 days in a month if preference of theemployeewillinevitablyresultin: a. serious prejudice to the operations oftheundertakingand b. the Er cannot normally be expected to resort to other remedial measures.(Sec.4(2),RuleIII,BookIII, IRR) Q: When should employees (Ees) be informed of theirscheduleofWRD? A:Ershallmakeknownrestperiodbymeansof: 1. Writtennotice 2. Postedconspicuouslyintheworkplace 3. At least 1 week before it becomes effective.(Sec.5,RuleIII,BookIII.IRR) Q: Can an Ee be compelled to work on his rest day?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

37

UST GOLDEN NOTES 2011


A:GR:No. XPN: 1. Urgent work to be performed on the machinery, equipment or installation, to avoid serious loss which the Er would otherwisesuffer; 2. Nature of work requires continuous operations for 7 days in a week or more and stoppage of the work may result in irreparableinjuryorlosstotheEr; 3. Abnormalpressureofworkduetospecial circumstances, where the Er cannot be ordinarily expected to resort to other measures; 4. Actualorimpendingemergencies(serious accident,fire,flood,typhoon,earthquake, etc.) 5. Prevent loss or damage to perishable goods; 6. Analogous or similar circumstances as determinedbytheSLE; 7. Work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependentthereon. Q.WhatistherulewhenanEevolunteerstowork onhisrestdayunderothercircumstances? A:Heshallexpressitinwritingsubjecttoadditional compensation.(Sec.6[2],RuleIII,BookIII,IRR) Q:Whatispremiumpay? A: It is the additional compensation for work rendered by the employee on days when normally he should not be working such as special holidays andweeklyrestdays. Q:CantheErandEeagreeontherateofpremium payotherthanthatprovidedbylaw? A: Yes. Nothing shall prevent the Er and his Ee or their representatives from entering into any agreement with terms more favorable to the Ees Provided: It shall not be used to diminish any benefit granted to the Ees under existing laws, agreementsandvoluntaryErpractices.(Sec.9,Rule III,BookIII,IRR) Q: What are the rates of compensation for rest day,Sundayorholidaywork? A:
INSTANCES RATESOFADDITIONAL COMPENSATION Workonascheduled restday Workhasnoregular workdaysandrestdays (Ifperformedon SundaysandHolidays) WorkonaSunday (IfEesscheduledrest day) +30%PremiumPay(PP) of100%regularwage (RW).(Sec.7,RuleIII,Book III,IRR) +30%PPof100%RW. (Sec.7,RuleIII,BookIII, IRR +30%PPof100%RW. (Sec.7,RuleIII,BookIII, IRR) 1st8hrs:+30%PPof 100%RW Excessof8hrs:+30%of hourlyrateonsaiddate. (M.C.No.10,Seriesof 2004) 1st8hrs:+50%PPof 100%regularwage Excessof8hrs:+30%of hourlyrateonsaiddate. (M.C.No.10,Seriesof 2004) Eeisonlyentitledtohis basicrate.NoPPis required. Reason:Workperformed isconsideredworkon ordinaryworkingdays. (Sec.7,RuleIII,BookIII, IRR)

Workperformedonany SpecialHoliday

Workperformedona SpecialHolidayand samedayisthe scheduledrestday

Workperformedona SpecialWorkingHoliday

Note:HolidayworkprovidedunderArt.93pertainsto specialholidaysorspecialdays.

Q: Jose applied with Mercure Drug Company for thepositionofSalesClerk.MercureDrugCompany maintains a chain of drug stores that are open everydaytilllateatnight.Josewasinformedthat he had to work on Sundays and holidays at night as part of the regular course of employment. He was presented with a contract of employment settingforthhiscompensationonanannualbasis withanexpresswaiverofextracompensationfor workonSundaysandholidays,whichJosesigned. IssuchawaiverbindingonJose?Explain. A: As long as the annual compensation is an amount that is not less than what Jose should receiveforallthedaysthatheworks,plustheextra compensation that he should receive for work on his weekly rest WRD and for night differential pay forlatenightwork,consideringthelawsandwage orders providing for minimum wages, and the pertinentprovisionsoftheLC,thenthewaiverthat Jose signed is binding on him for he is not really waivinganyrightunderLaborLaw.Itisnotcontrary

38

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
tolaw,morals,goodcustoms,publicorderorpublic policy for an Er and Ee to enter into a contract where the Ees compensation that is agreed upon alreadyincludesalltheamountsheistoreceivefor OT work and for work on weekly rest days and holidaysandfornightdifferentialpayforlatenight work.(1996BarQuestion) 4.HOLIDAYS a.RighttoHolidayPay Q:Whatisholidaypay(HP)? A: It is a premium given to employees (Ees) pursuanttolawevenifhehasnotbeensufferedto work on a regular holiday. It is limited to the 11 regularholidays,alsocalledlegalholidayslistedby law. The employee (Ee) should not have been absentwithoutpayontheworkingdaypreceeding theregularholiday. Q:Whataretheclassesofspecialdays(SD)? A: 1. NationalSpecialPublicHoliday GR:Nonworkingdays XPN:Otherwisedeclaredbythe President 2. Local Special Public Holiday Regular workingday.(LOI814asamendedbyLOI 1087)
NATIONALSPECIALDAYS AllSaintsDay LastDayoftheYear NinoyAquinoDay Otherdaysdeclaredbylaw 1. SpecialNonworking days 2. SpecialPublicHolidays 3. SpecialNational Holiday 4. SpecialHoliday(forall schools) a. EdsaRevolution Anniversary LOCALSPECIALDAYS Thosedeclaredby: 1. Lawor 2. Ordinance DATE November1 December31 August21 December24 February25 e.g.Maniladay(in Manilaonly)

considered regular ProclamationNo.18)


REGULARHOLIDAYS NewYearsDay MaundyThursday GoodFriday EidlFitr ArawngKagitingan LaborDay IndependenceDay NationalHeroesDay BonifacioDay ChristmasDay RizalDay

holidays.

(Presidential

DATE January1 April21 April22 MovableDate April9 May1 June12 Aug.29(lastMondayof August) Nov.30 December25 Dec.30

Note: RA 9492 has already been superseded by Presidential Proclamation No. 18 issued by President BenignoC.AquinoIIIplacingtheobservanceofregular holidays and national special days according to their respectivedatesinthecalendar.

Q:WhatareMuslimHolidays(MH)? A: The MHs, except Eidl Fitr, are observed in specified Muslim areas. All private corporations, offices, agencies and entities or establishments operating within the designated Muslim provinces andcitiesarerequiredtoobserveMH. Q: When shall Eidl Fitr and/or Eidl Adha be declaredanationalholiday? A:Theproclamationdeclaringanationalholidayfor the observance of Eidl Fitr and/or Eidl Adha shall beissued: AftertheapproximatedateoftheIslamic holiday has been determined in accordancewiththe: a. IslamicCalendar(Hijra)or b. LunarCalendaror c. Uponastronomicalcalculations d. Whicheverispossibleorconvenient 2. The Office of Muslim Affairs shall inform the Office of the President on which day the holiday shall fall. (Sec.2, Proc. No. 1841) Q: Can a Christian employee (Ee) working within theMuslimareabecompelledtoworkduringMH? A: No. Christians working within the Muslim areas may not report for work during MH. Not only Muslim but also Christian Ee in the designated provinces and cities are entitled to HP on the MH. (SMCv.CA,G.R.146775,Jan.30,2002) 1.

Q:Whatareregularholidays(RH)? A: They are compensable whether worked or unworked subject to certain conditions. They are also called legal holidays. The following are

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

39

UST GOLDEN NOTES 2011


Q: Can a Muslim Ee working outside the Muslim areabecompelledtoworkduringtheobservance oftheMH? A:GR: No.MuslimEesshallbeexcusedfromwork during MH without diminution of salary or wages. XPN: Those who are permitted or suffered to workonMHareentitledtoatleast100%basic pay+100%aspremiumoftheirbasicpay.(SMC v.CA,G.R.No.146775,Jan.30,2002)
Note: RH falling within temporary or periodic shutdown and temporary cessation of work are compensable. However, if the temporary or periodic shutdown and cessation of work is due to business reverses, the employer may not pay the RHs during suchperiod.

Eepaidfixedamountforperformingwork irrespective of the time consumed in the performance thereof. (Sec. 1, Rule IV, BookIII,IRR) Q:Whatareretailestablishments? A: They are engaged in the sale of goods to end usersforpersonalorhouseholduse.(e.g.Grocery) Q:Whatareserviceestablishments? A: They are engaged in the sale of services to individualsfortheirownorhouseholduse.(e.g.TV repairshop) Q:Isanexerciseofprofessionretailorservice? A:Itisneitherretailnorservice. Q:MayanErrequireanEetoworkonRH? A: Yes. But Ee shall be compensated twice his regularrate. Q:WhataretheratesofcompensationforRHon EesregularworkdayandRHonEesrestday? A:
FORMULASTOCOMPUTEWAGESON REGULARHOLIDAYS(RH) (M.C.No.10,Seriesof2004) RHonEesregular RHonEesrestday workday Ifunworked 100% 100% e.g. 300 Php regular wage e.g.300Php(RW) (RW) Ifworked(1st8hrs) +30%of200% 200% e.g600(200%ofRW) e.g.300(RW) X0.3 +300 180 600=TotalWage(TW) 180+600=780(TW) Ifworked(OT)(excessof8hrs) 230% 230% + 30% of hourly 200%+30%ofhourlyrate rateonsaiddate onsaiddate

8.

Q:DistinguishRHfromSD. A:
REGULARHOLIDAY SPECIALHOLIDAY IfUnworked Regularpay (subject to certain NoPay conditions for daily paid Ees) Ifworked + 30% premium pay of 2xregularpay(200%) 100%regularwage Othermatters Setbylaw Setbyproclamation Limited to those provided Notexclusive underArt.94,LC

Q:WhoareentitledtoHP? A:GR:Allemployees(Ees)areentitled.(Sec.1,Rule IV,BookIII,IRR) XPNS: 1. Govt Ees and any of its political subdivisions, including GOCCs (with originalcharter) 2. Retail and service establishments regularlyemployinglessthan10workers 3. Domestic helpers and persons in the personalserviceofanother 4. Ee engaged on task or contract basis or purelycommissionbasis 5. MembersoftheFamilyoftheErwhoare dependentonhimforsupport 6. Managerial Ee and other member of the managerialstaff 7. FieldpersonnelandotherEewhosetime andperformanceareunsupervisedbythe Er

Q:What is animportant condition that shouldbe metinordertoavail/receivethesingleHP? A:TheEeshouldnothavebeenabsentwithoutpay ontheworkingdayprecedingtheRH.

40

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
Q: Distinguish between monthly paid and daily paidEes. A:
MonthlyPaidEes One who is paid his wage or salary for everyday of the month, including rest days, Sundays, regular or special days, although he does not regularlyworkonthesedays. Not excluded from benefit of HP. DailyPaidEes One who is paid his wage or salary only on those days he actually worked, except in cases of regular or special days, although he does not regularly workonthesedays. cleaning of machineries compensated. isundertaken Due to business reverses RH may not be paid (cessation as authorized by bytheEr theSec.ofLabor)

(3)HolidayPayofTeachers,Pieceworkers, seafarers,seasonalworkers Q:WhataretheHPsofcertainemployees? A:


EMPLOYEES Private school teachers (Faculty members of colleges and universities) Eepaidby: 1. resultsor 2. output (Piece work payment) RULE RH during semestral vacations NotentitledtoHP 2. RH during Christmas vacation ShallbepaidHP HP shall not be less than his average daily earnings for the last 7 actual work days precedingtheRH. Provided: HP shall not be less than the statutory minimum wagerate. MaynotbepaidtherequiredHP duringoffseasonwheretheyare notatwork. 1. ShallbeentitledtoHP ShallbeentitledtoHP

Q: What is the effect if a legal holiday falls on a Sunday? A: A legal holiday falling on a Sunday creates no legal obligation for the Er to pay extra to the Ee who does not work on that day, aside from the usual HP to its monthly paid Ee. (Wellington v. Trajano,G.R.114698,July3,1995) (1)InCaseofAbsences Q:Discusstheconceptofabsences. A:
ABSENCES LOAwithpayontheday LOAwithoutpay onthe immediatleypreceding dayimmediately RH. precedingaRH. GR: An Ee may not be paid the required HP if he has not worked onsuchRH. XPN: Where the day immediately GR: All covered Ees are preceding the entitledtoHP. holidayisa: 1. Nonworking day (NWD) in the establishmentor 2. The scheduled rest day(RD)oftheEe.

SeasonalWorkers Workershavingno regularworkdays Seafarers

(2)InCaseofTemporaryCessationofWork Q:Whatistheeffectincasethereisatemporary or periodic shutdown and temporary cessation of work? A:


TEMPORARYORPERIODICSHUTDOWNand TEMPORARYCESSATIONOFWORK (Sec.7,RuleIV,BookIII,IRR) Instances Rule: Yearlyinventoryor RH falling within the When the repair or period shall be

1. 2.

Q: Are the school faculty who according to their contracts are paid per lecture hour entitled to unworkedHP? A: 1. If during regular holiday No. Art. 94 of LC is silent with respect to faculty members paidbythehourwhobecauseoftheirteaching contracts are obliged to work and consent to be paid only for work actually done (except whenanemergencyorafortuitouseventora national need calls for the declaration of special holidays). RH specified as such by law areknowntobothschoolandfacultymembers as "no class days" certainly the latter do not expect payment for said unworked days, and this was clearly in their minds when they enteredintotheteachingcontracts.(JoseRizal Collegev.NLRC,G.R.No.65482,Dec.1,1987) 2. IfduringspecialpublicholidaysYes.The law and the IRR governing HP are silent as to payment on Special Public Holidays. It is readily apparent that the declared purpose of the HP which is the prevention of diminution of the monthly income of the Ees on account

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

41

UST GOLDEN NOTES 2011


of work interruptions is defeated when a regular class day is cancelled on account of a specialpublicholidayandclasshoursareheld on another working day to make up for time lost in the school calendar. Otherwise stated, thefacultymember,althoughforcedtotakea rest, does not earn what he should earn on thatday.Beitnotedthatwhenaspecialpublic holiday is declared, the faculty member paid by the hour is deprived of expected income, anditdoesnotmatterthattheschoolcalendar is extended in view of the days or hours lost, for their income that could be earned from othersourcesislostduringtheextendeddays. Similarly, when classes are called off or shortened on account of typhoons, floods, rallies, and the like, these faculty members must likewise be paid, whether or not extensions are ordered. (Jose Rizal College v. NLRC,G.R.No.65482,Dec.1,1987) Q: Lita, a full time professor in San Ildefonso University,ispaidonaregularmonthlybasis.She teachesforaperiodof10monthsinaschoolyear, excluding the 2 month summerbreak. During the semestral break, the University did not pay her emergency Cost of Living allowance (ECOLA) althoughshereceivedherregularsalarysincethe semestralbreakwasallegedlynotanintegralpart of the school year and no teaching service were actually rendered by her. In short, the University invoked the principle of "no work, no pay". She seeksyouradviceonwhetherornotsheisentitled to receive her ECOLA during semestral breaks. Howwouldyourespondtothequery? A: There is no longer any law making it the legal obligation of an employer to grant an Emergency Cost of Living Allowance (ECOLA). Effective 1981, the mandatory living allowances provided for in earlier Presidential Decrees were integrated into the basic pay of all covered employees. Thus, whether the ECOLA will be paid or not during the semestral break now depends on the provisions of theapplicablewageorderorcontractwhichmaybe a CBA, that many grant said ECOLA. (1997 Bar Question) Q:WhatistheconceptofdoubleHP? A:2RHonsameday.
MAUNDY THURSDAY&ARAW NGKAGITINGAN unworked unworked worked Authorized absence Same worked Workedanddayis RestDay 300% (atleast) 390% (+30%of each3 100%)

Q:IsdoubleHPapplicableatpresent? A: No, because Araw ng Kagitingan is moved to MondaynearestApril9.(R.A.9242) Q:WhatistheconceptofsuccessiveRH? A:


WED Worked LOA w/pay LOAw/o pay LOAw/o pay MAUNDY THURS RH RH RH Worked GOOD FRIDAY RH RH RH RH ENTITLED TOHP Yes.Both Yes.Both No.Both Yes.Onlyto HPon Friday

Q: What are the conditions so that an Ee may be entitledto2successiveHP? st A:Onthedayimmediatelyprecedingthe1 RH,he mustbe: 1. Present(worked),or 2. On LOA with pay. (Sec. 10, Rule IV, Book III,IRR) Q:Whatiftheconditionsarenotmet? A:Hemustworkonthe1stRHtobeentitledtoHP onthe2ndRH.(Sec.10,RuleIV,BookIII,IRR) 5.LEAVES a.ServiceIncentiveLeavePay Q:Whatisserviceincentiveleave(SIL)? A: It is 5 days leave with pay for every employee who has rendered at least 1 yr of service. It is commutabletoitsmoneyequivalentifnotusedor exhaustedattheendofyear. Q:Whatdoyoumeanbyatleast1yearofservice?

WED Present LOAw/pay LOAw/pay

RATE 200% 200% 300% (atleast)

A: Service for not less than 12 months, whether continuous or broken reckoned from the date the employee started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of

42

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
practice or policy, or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year.(Sec.3,RuleV,BookIII,IRR) Q:WhoareentitledtoSIL? A: GR: Applies to every Ee who has rendered at least1yearofservice.(Art.95[a]) XPNS: 1. Government Ees and any of its political subdivisionsincludingGOCCs 2. Thosealreadyenjoyingthebenefit 3. Domestic helpers and persons in the personalservicesofanother 4. Thosealreadyenjoyingvacationleavewith payofatleast5days 5. ManagerialEes 6. Field personnel and other Ees whose performanceisunsupervisedbytheEr 7. Employed in establishments regularly employinglessthan10workers 8. Exemptestablishments 9. Engaged on task or contract basis, purely commissionbasis,orthosewhoarepaidin a fixed amount of performing work irrespective of the time consumed in the performancethereof.(Art.95[b]) Q: Are teachers of private schools on contract basisentitledtoSIL? A:Yes.Thephrase"thosewhoareengagedontask orcontractbasis"should,however,berelatedwith "field personnel" applying the rule on ejusdem generis that general and unlimited terms are restrained and limited by the particular terms that they follow. Clearly, Cebu Institute of Technology teaching personnel cannot be deemed as field personnelwhichrefers"tononagriculturalEeswho regularly perform their duties away from the principalplaceofbusinessorbranchofficeoftheEr andwhoseactualhoursofworkinthefieldcannot be determined with reasonable certainty. (Par. 3, Art. 82, LC). (CIT vs. Ople, G.R. No. 70203, Dec. 18, 1987) Q:IsSILcommutabletoitsmonetaryequivalentif notusedorexhaustedattheendoftheyear? A:Yes.Itisaimedprimarilyatencouragingworkers to work continuously and with dedication to the company. Q:Whatisthebasisforcashconversion? A: The basis shall be the salary rate at the date of commutation. The availment and commutation of A:Yes.Art.95ofLaborCodespeaksofthenumber ofmonthsinayearforentitlementtosaidbenefit. (Bureau of Working Conditions Advisory Opinion to Phil.IntegratedExporters,Inc.) Q: Are piecerate workers entitled to the full benefitoftheyearly5daySIL? A:Itdepends. Yes.Provided: a. Theyareworkinginsidethepremises oftheemployer(Er)and b. Under the direct supervision of the Er. 2. No.Provided: a. They are working outside the premisesoftheEr b. Hours spent in the performance of work cannot be ascertained with reasonablecertainty c. The are not under the direct supervisionoftheEr Q: Does it apply to Ees with salaries above minimumwage? A:No.Thedifferencebetweentheminimumwage andtheactualsalaryreceivedbytheEescannotbe deemedastheir13thmonthpayandSILpayassuch difference is not equivalent to or of the same import as the said benefits contemplated by law. (JPL Marketing Promotions v. CA, G.R. No. 151966, July8,2005.) Q: Explain the entitlement of terminated Ees to SIL. A: 1. Illegally dismissed Ees entitled to SIL until actual reinstatement. (Integrated Contractor and Plumbing Works, Inc. v. NLRC,G.R.No.Aug.9,2005) Legally dismissed Ees the Ee who had not been paid of SIL from outset of employment is entitled only of such pay after a year from commencement of service until termination of employment orcontract.(JPLMarketingPromotionsv. CA,G.R.No.151966,July8,2005) 1. theSILmaybeonaproratabasis.(No.VI(c),DOLE HandbookonWorkersStatutoryMonetaryBenefit) Q: Are parttime workers entitled to the full benefitoftheyearly5daySIL?

2.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

43

UST GOLDEN NOTES 2011


b.MaternityLeave Q:Whatismaternityleavebenefit? A:Acoveredfemaleemployee(Ee)isentitledtoa daily maternity benefit equivalent to 100% of her presentbasicsalary,allowancesandotherbenefits orthecashequivalentofsuchbenefitsfor60days or78daysincaseofcaesariandelivery. Q: What are the requirements in order that maternitybenefitsmaybeclaimed? A: 1. 2. There is childbirth, abortion or miscarriage She has paid at least 3 monthly contributions c.PaternityLeave Q:Whatistheconceptofpaternityleavebenefits? A: Notwithstanding any law, rules and regulations to the contrary, every married male employee in theprivateandpublicsectorsshallbeentitledtoa paternityleaveof7dayswithfullpayforthefirst4 deliveriesofthelegitimatespousewithwhomheis cohabiting. Q:Whatispaternityleave? A: It refers to the benefits granted to a marriedmaleemployeeallowinghimnottoreport for work for 7 days but continues to earn the compensation therefore, on thecondition that his spouse has delivered a child or suffered amiscarriage for purposes of enabling him to effectivelylendsupporttohiswifeinherperiodof recovery and/or in the nursing of the newlyborn child. Q: What are the requirements in order to avail paternityleave? A: The maleemployee (Ee) applying for paternity leaveshall: 1. Notifyhisemployer(Er)ofthepregnancy ofhislegitimatespouseand Theexpecteddateofsuchdelivery. said Ee would otherwise have been entitledto,andtheSSSshallinturnpay suchamounttotheEeconcerned.

Q:Whataretheconditions? A: 1. The Ee shall have notified her employer (Er) of her pregnancy and the probable date of her childbirth which notice shall betransmittedtotheSSS ThepaymentshallbeadvancedbytheEr in 2 equal installments within 30 days from the filing of the maternity leave application Incaseofcaesariandelivery,theEeshall bepaidthedailymaternitybenefitfor78 days Payment of daily maternity benefits shall be a bar to the recovery of sickness benefits for the same compensable periodof60daysforthesamechildbirth, abortion,ormiscarriage The maternity benefits provided under Section 14A shall be paid only for the firstfourdeliveries The SSS shall immediately reimburse the Er of 100% of the amount of maternity benefits advanced to the Ee by the Er uponreceiptofsatisfactoryproofofsuch paymentandlegalitythereof;and If an Ee should give birth or suffer abortion or miscarriage without the required contributions having been remitted for her by her Er to the SSS, or withoutthelatterhavingbeenpreviously notified by the Er of the time of the pregnancy, the Er shall pay to the SSS damagesequivalenttothebenefitswhich

2.

3.

4.

5.

6.

2. Q: What are the conditions for entitlement to paternityleave? A:ThemaleEeis; 1. Legallymarriedto,andiscohabitingwith thewomanwhodeliversthebaby 2. Eeofprivateorpublicsector; 3. Onlyforthefirst4deliveriesoflegitimate spousewithwhomheiscohabiting;and 4. Notify his Er of the pregnancy of his legitimate spouse and the expected date ofsuchdelivery
Note: For purposes of this Act, delivery shall include childbirthoranymiscarriage.

7.

Q: Jemuel is a bank employee of BPI. He is cohabiting with Paula for straight five years with whom he has four children. On the fifth year of their cohabitation, Paula had her miscarriage. Jemuelisavailinghimselfofhispaternityleave.Is heentitledtopaternityleave?

44

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
A: No. Jemuel is not entitled to paternity leavebecausethefactsofthecaseonlyshowthat heisonlycohabitingwith Paula.Thelawexpressly provides that the male must be legally married to the woman with whom he is cohabiting as a condition for entitlement of paternity leave. Even assumingthatJemuelislegallymarriedtoPaula,he cannotavailalsoofthepaternityleavebecausethe law limits the deliveries only to four which include childbirth or miscarriage. Based on the facts, it is alreadythefifthdeliveryofthewoman. d.ParentalLeave Q:Whatisparentalleave? A:Leavebenefitsgrantedtoasoloparenttoenable him/her to perform parental duties and responsibilities where physical presence is required. In addition to leave privileges under existing laws, parental leave of not more than 7 working days every year shall be granted to any solo parent Ee whohasrenderedserviceofatleast1year.(Sec.8) Q: What are the conditions for entitlement of parentalleave? A: 1.Heorshemustfallamongthosereferredtoas soloparent 2. Must have the actual and physical custody of thechildorchildren 3. Must have at least rendered service of one yeartohisorheremployer 4.Heorshemustremainasoloparent Q: Who are those referred to as solo parent entitledtoparentalleave? A: Any individual who falls under any of the ff. categories: 1.Awomanwhogivesbirthasaresultofrape and other crimes against chastity even withoutafinalconvictionoftheoffender, provided, That the mother keeps and raisesthechild; 2. Parent left solo or alone with the responsibilityofparenthooddueto: a.Deathofspouse; b. Detention or service of sentence of spouseforacriminalconvictionforat least1yr; c. Physical and/or mental incapacity of spouse d.Legalseparationordefactoseparation fromspouseforatleast1yraslongas he/she is entrusted with the custody ofthechildren; e. Nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custodyofthechildren; f. Abandonment of spouse for at least 1 yr; 3. Unmarried mother/father who has preferred to keep and rear his or her child/childreninsteadof: a.havingotherscareforthemor b.givethemuptoawelfareinstitution; 4.Anyotherpersonwhosolelyprovides: a.parentalcareand b.supporttoachildorchildren; 5. Any family member who assumes the responsibilityofheadoffamilyasaresult ofthe: a.death, b.abandonment, c.disappearanceor d. prolonged absence of the parents or soloparent.
Note: A change in the status or circumstance of the parent claiming benefits under this Act, such that he/sheisnolongerleftalonewiththeresponsibilityof parenthood,shallterminatehis/hereligibilityforthese benefits.(Sec.3)

e.Leavesforvictimsofviolenceagainstwomen Q:Whatistheleaveforvictimsofviolenceagainst women or otherwise known as battered woman leave? A: A female employee who is a victim of violence (physical, sexual, or psychological) is entitled to a paid leave of 10 days in addition to other paid leaves.(R.A.9262,AntiVAWCAct) 6.SERVICECHARGES a.CoverageandExclusion Q:Whatareservicecharges(SC)? A: These are charges collected by hotels, restaurantsandsimilarestablishmentsandshallbe distributedattherateof:
COVEREDEes 85% Equally distributed 1. 2. MANAGEMENT 15% To answer for losses and breakagesand Distributed to Ees receiving

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

45

UST GOLDEN NOTES 2011


amongthem more than P2000 a month at the discretion of the management.

Q:WhoarecoveredEes? A: GR: All Ees are covered, regardless of their position, designation, employment status, irrespectiveofthemethodbywhichtheirwagesare paid.
Note: Applies only to hotels, restaurants and similar establishmentcollectingservicecharges.

Provided, that they have worked for at least 1 month, during a calendar year. (Revised th Guidelines on the Implementation of the 13 MonthPayLaw) XPN: 1. GovernmentEes 2. Householdhelpers 3. Eespaidpurelyoncommissionbasis 4. Eesalreadyreceiving13thmonthpay Q: What would be your advice to your client, a manufacturing company, who asks for your legal opinion on whether or not the 13th Month Pay LawcoversacasualEewhoispaidadailywage? A: I will advise the manufacturing company to pay thecasualEe13thMonthPayifsuchcasualEehas workedforatleast1monthduringacalendaryear. The law on the 13th Month Pay provides that Ees areentitledtothebenefitofsaidlawregardlessof theirdesignationoremploymentstatus. The SC ruled in Jackson BuildingCondominium Corp. v. NLRC, G.R. No. 112546, March 13, 1996, interpretingP.D.851,asfollows:Eesareentitledto the 13th month pay benefits regardless of their designation and irrespective of the method by whichtheirwagesarepaid.(1998BarQuestion)
Note:AnEr,maygivetohisEesoftherequired13th Monthpaybeforetheopeningoftheregularschoolyr. andtheotherhalfonorbeforetheDec.24.

XPN:ManagerialEes.(Sec.2,RuleVI,BookIII,IRR) b.Distribution Q:Whenistheshareofemployeedistributedand paidtothem? A: Not less than once every 2 weeks or twice a monthatintervalsnotexceeding16days. c.Integration Q: What happens if the Service Charge is abolished? A:TheshareofthecoveredEesshallbeconsidered integrated in their wages on the basis of the average monthly share of eachEes for thepast 12 monthsimmediatelyprecedingtheabolition.
Note:Servicechargesformpartoftheawardinillegal dismissalcases.

Q:Is13thMonthPaylegallydemandable? A: Yes. It is a statutory obligation, granted to covered Ees, hence, demandable as a matter of right.(Sec1,P.D.851) b.Natureof13thMonthPay Q: In what form is the 13th month pay paid or given? A:Itisgivenintheformof: 1. 2. 3. 4. ChristmasBonus MidyearBonus ProfitSharingScheme Other Cash bonuses amounting to not lessthan1/12ofitsbasicsalary

7.13thMONTHPAYANDOTHERBONUSES a.Coverage,Exclusion/exemptionsfromcoverage Q:Whatis13thmonthpayoritsequivalent? A: Additional income based on wage required by P.D. 851 Requiring all Employers to pay their Employeesa13thmonthpaywhichisequivalentto 1/12 of the total basic salary earned by an employee(Ee)withinacalendaryear. Q:WhoarecoveredbyP.D.851? A:GR: All rankandfile Ees regardless of the amount of basic salary that they receive in a month,iftheiremployers(Er)arenototherwise exemptedfrompayingthe13thmonthpay.Such th Ees are entitled to the 13 month pay regardless of said designation of employment status,andirrespectiveofthemethodbywhich theirwagesarepaid.

Note:Itmustalwaysbeintheformofalegaltender.

Q:Whatarenotpropersubstitutesfor13thMonth pay? A: 1. Freerice

46

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
2. 3. 4. Electricity Cashandstockdividends COLA(Sec.3) 2. last2years,subjecttotheprovision ofSec.7ofP.D.851; The Government and any of its political subdivisions, including GOCCs, except those corporations operating essentially as private subsidiaries of the Government; ErsalreadypayingtheirEes13monthpay or more in a calendar year of its equivalentatthetimeofthisissuance: Itsequivalentshallinclude: a. Christmasbonus b. Midyearbonus c. Profitsharing payments and d. Other cash bonuses amountingtonotlessthan 1/12th of the basic salary but Itshallnotinclude: a. cashandstockdividends, b. COLA c. all other allowances regularly enjoyed by the Ee, as well as non monetarybenefits. Ers of household helpers and persons in thepersonalserviceofanotherinrelation tosuchworkers;and Ers of those who are paid on purely commission, boundary, or taskbasis, and those who are paid a fixed amount for performingaspecificwork,irrespectiveof the time consumed in the performance thereof, except where the workers are paidonpieceratebasisinwhichcasethe employer shall be covered by this issuance insofar as such workers are concerned.(Sec3,P.D.851)

Q: Concepcion Textile Co. included the OT pay, nightshift differential pay, and the like in the computation of its Ees 13thmonth pay. Subsequently, with the promulgation of the decision of the SC in the case of SMC vs. Inciong (103SCRA139)holdingthattheseothermonetary claimsshouldnotbeincludedinthecomputation of the 13th month pay, Concepcion Textile Co. sought to recover under the principle of solutio indebiti the overpayment of the Ees 13thmonth pay, by debiting against future 13thmonth payments whatever excess amounts it had previouslymade. (1)IstheCompany'sactiontenable? (2) With respect to the payment of the 13th month pay after the SMC ruling, what arrangement, if any, must the Company make in order to exclude from the 13thmonth pay all earnings and remunerations other than the basic pay? A: The Company's action is not tenable. The principle of solutio indebiti which is a civil law conceptisnotapplicableinlaborlaw.(DavaoFruits Corp. vs. NLRC, et al., G.R. No. 85073 August 24, 1993). After the 1981 SMC ruling, the High Court decided the case of Philippine Duplicators Inc. vs. NLRC, GR 110068, Nov. 11, 1993. Accordingly, management may undertake to exclude sick leave, vacation leave, maternity leave, premium pay for regular holiday, night differential pay and cost of living allowance. Sales commissions, however, should be included based on the settled rule as earlier enunciated in Songco vs. NLRC, G.R. No. L 50999,March23,1990.(1994BarQuestion) Q: Are all Ers required to pay 13th Month Pay underP.D.851? A: GR:Yes.ItappliestoallErs, XPN: 1. DistressedErs: a. Currentlyincurringsubstantiallosses or b. In the case of nonprofit institutions and organizations, where their income, whether from donations, contributions, grants and other earnings from any source, has consistently declined by more than 40% of their normal income for the

3.

4.

5.

6.

7.

Q:WhataretheoptionsofcoveredErs? A: 1. Pay onehalf of the 13thmonth pay required before the opening of the regularschoolyearandtheotherhalfon or before the 24th day of December of everyyear. In any establishment where a union has been recognized or certified as the collective bargaining agent of the Ee, the periodicity or frequency of payment of the13thmonthpaymaybethesubjectof agreement.

2.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

47

UST GOLDEN NOTES 2011


Q:Howareclaimsadjudicated? A:Nonpaymentofthe13thmonthpayprovidedby P.D. 851 and the rules of NLRC shall be treated as moneyclaimscases. Q: Are the following Ees entitled to 13th month pay? a. b. c. d. A: 1. Eeswhoarepaidbyresults EeswithmultipleErs Privateschoolteachers ResignedorseparatedEes XPN: Ees who are paid a guaranteed minimum wageorcommissionsearnedareentitledto13th month pay based on total earnings. (Philippine Agricultural Commercial and Industrial Workers Unionv.NLRC,G.R.No.107994,Aug.14,1995) th Q:Is14 MonthPaylegallydemandable? th A: No. The granting of 14 month pay is a management prerogative and is not legally demandable.Itisbasicallyabonusandisgratuitous in nature. (Kamaya Point Hotel v. NLRC, G.R. No. 75289,Aug.31,1989) c.Commissionsvisvis13thmonthpay Q: What is commission in relation to 13th month pay? A: 1. The salesmans commissions, comprising a predetermined percent of the selling priceofthegoodssoldbyeachsalesman, were properly included in the term basic salary for purposes of computing their 13thmonthpay. The so called commission paid to or received by medical representatives of BoieTakedaChemicalsorbytherankand file Ees of Phil. Fuji Xerox were excluded fromthetermbasicsalarybecausethese were paid as productivity bonuses. Such bonuses closely resemble profit sharing, payments and have no clear, direct, necessaryrelationtotheamountofwork actually done by each individual employee. d.CBAvisvis13thmonthpay Manggagawa sa Honda, G.R. No. 145561, June 15,2005)

Eepaidbyresultsentitledto13thmonth pay.
Note: Ees paid a fixed or guaranteed wage plus commission are also entitled to the mandated 13th month pay, based on their total earnings during the calendar year, i.e. onboththeirfixedorguaranteedwageand commission

2.

3.

4.

ThosewithMultipleErsGovernmentEes workingparttimeinaprivateenterprise, including private educational institutions, as well as Ees working in 2 or more private firms, whether full or part time th basis, are entitled to the required 13 month pay from all their private Ers regardless of their total earnings from eachoralltheirErs. Private School Teachers, including faculty members of universities and colleges entitled regardless of the number of months they teach or are paid within a year, if they have rendered service for at least1monthwithinayear. ResignedorSeparatedEesIfresignedor separated from work before the time of th payment of 13 month pay, entitled to monetary benefit in proportion to the length of time he started working during the calendar year up to the time of resignation or termination of service. th (Prorated13 monthpay)

2.

th Q:Whendoesprorationof13 MonthPayapply? A: GR: Proration of this benefit applies only in cases of resignation or separation from work; computation should be based on length of service and not on the actual wage earned by the worker (Honda Phils. v. Samahan ng

Q:WhatisCBAinrelationto13thmonthpay? A:TheabsenceofanexpressprovisionintheCBA obligating the employer to pay the members of a union thirteenth month pay is immaterial. Notwithstanding therefore the absence of any contractualagreement,thepaymentofathirteenth monthpaybeingastatutorygrant,compliancewith the same is mandatory and is deemed incorporate intheCBA. 8.WOMENWORKERS a.Discrimination(Art.135.LC);ProhibitedActs(Art. 137.LC)

48

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
Q:WhataretheunlawfulactsagainstwomenEe? A: 1. Discrimination with respect to the terms and conditions of employment solely on accountofsex a. Paymentoflessercompensationtoa female Ee as against a male Ee for workofequalvalue b. Favoring a male Ee with respect to promotion, training opportunities, study and scholarship grants on accountofgender.(Art.135) c. Favoring a male applicant with respect to hiring where the particularjobcanequallybehandled byawoman d. FavoringamaleEeoverafemaleEe with respect to dismissal of personnel. Stipulating, whether as a condition for employment or continuation of employment: a. That a woman Ee shall not get married,or b. Thatuponmarriage,suchwomanEe shall be deemed resigned or separated.(Art.136)
Note: A woman worker may not be dismissed on the ground of dishonesty for havingwrittensingleonthespaceforcivil status on the application sheet, contrary to the fact that she was married. (PT&T Co. v. NLRC,G.R.No.118978,May23,1997) Under Sec. 2 of R.A. 9710 or the Magna Carta of Women, the State condemns discrimination against womeninallitsformsandpursuesbyallappropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every memberofsociety. The State shall take steps to review and, when necessary,amendand/orrepealexistinglawsthatare discriminatory to women within three (3) years from theeffectivityofthisAct.(Sec.12,R.A.9710)

2.

3.

4. 5.

6.

7.

Dismissing, discriminating or otherwise prejudice a woman Ee by reason of her beingmarried.(Art.136) DenyinganywomanEebenefitsprovided bylaw.(Art.137) Discharge any woman for the purpose of preventing her from enjoying any of the benefitsprovidedbylaw.(Art.137) Discharging such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy. (Art. 137) Discharging or refusing the admission of such woman upon returning to her work for fear that she may again be pregnant. (Art.137)

Note: Discrimination in any form from pre employment to post employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is unlawful. (Philippine AIDS Prevention and Control Act of1998,[R.A.8504])

Q: Can an individual, the sole proprietor of a business enterprise, be said to have violated the AntiSexual Harassment Act of 1995 if he clearly discriminates against women in the adoption of policy standards for employment and promotions intheenterprise?Explain. A: When an employer (Er) discriminates against women in the adoption of policy standards for employmentandpromotioninhisenterprise,heis not guilty of sexual harassment. Instead, the Er is guiltyofdiscriminationagainstwomenEeswhichis declaredtobeunlawfulbytheLC. For an Er to commit sexual harassment, he as a personofauthority,influenceormoralascendancy should have demanded, requested or otherwise required a sexual favor from his Ee whether the demand, request or requirement for submission is accepted by the object of said act. (2003 Bar Question) Q: At any given time, approximately 90% of the production workforce of a semiconductor company are females. 75%of the female workers are married and of childbearing years. It is imperativethattheCompanymustoperatewitha minimum number of absences to meet strict delivery schedules. In view of the very high numberoflostworkinghoursduetoabsencesfor familyreasonsandmaternityleaves,thecompany adopted a policy that it will employ married women as production workers only if they are at least 35 yrs of age. Is the policy violative of any law? A: Yes, it is violative of Art. 140 of the LC which provides that no employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. (1998BarQuestion) b.StipulationAgainstMarriage(Art.136,LC)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

49

UST GOLDEN NOTES 2011


Q:Whatisthenospouseemploymentpolicy? A:GR: 1. Policy banning spouses from working in thesamecompany. 2. MaynotfaciallyviolateArt.136oftheLC but it creates a disproportionate effect and the only way it could pass judicial scrutinyisbyshowingthatitisreasonable despite the discriminatory albeit disproportionateeffect. XPN: Bona fide occupational qualification rule (BFOQ) Q:WhatistheBFOQrule? A:TheremustbeafindingofanyBFOQtojustifyan Ers no spouse rule. There must be a compelling business necessity for which no alternative exist otherthanthediscriminatingpractice. To justify a BFOQ the employer must prove two factors: 1. That the employment qualification is reasonably related to the essential operationofthejobinvolved;and That there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. (Star Paper v. Simbol, G.R. No. 164774,April12,2006) Glaxo does not impose an absolute prohibition against relationships between its Ees and those of competitor companies. Its Ees are free to cultivate relationships with and marry persons of their own choosing.Whatthecompanymerelyseekstoavoid is a conflict of interest between the Ee and the company that may arise out of such relationships. Furthermore, the prohibition forms part of the employment contract and Tecson was aware of such restrictions when he entered into a relationship with Bettsy. (Duncan Asso. of DetailmanPTGWO v. Glaxo Wellcome Phil. Inc., G.R.No.162994,Sep.17,2004) c.ClassificationofCertainWomenWorkers(Art. 138,LC) Q:WhoarecoveredunderthisTitle? A: Any women who is permitted or suffered to work: 1. 2. Withorwithoutcompensation In any night club, cocktail lounge, massage clinic, bar or similar establishment Undertheeffectivecontrolorsupervision oftheErforasubstantialperiodoftime Shall be considered as an Ee of such establishment for purposes of labor and sociallegislation. d.AntiSexualHarrasmentAct RA7877 Q: What is the policy of the State in enacting the AntiSexualHarassmentlaw? A:TheStateshall: 1. Valuethedignityofeveryindividual 2. Enhance the development of it human resources 3. Guarantee full respect for human rights and 4. Uphold the dignity of workers, Ee, applicants for employment, students or those undergoing training, instruction or education.(Sec.2) Q:Whomaybeheldliableforsexualharassment? A: In a work, education or trainingrelated environmentsexualharassmentmaybecommitted byan: 1. Ee 2. Manager 3. Supervisor

3. 4.

2.

Q:WhatistheimportanceoftheBFOQRule? A: 1. To ensure that the Ee can effectively performhiswork 2. Sothatthenospouserulewillnotimpose anydangertobusiness. Q: Tecson was employed by Glaxo as medical representativewhohasapolicyagainstEeshaving relationships against competitors Ees. Tecson married Bettsy, a Branch coordinator of Astra, Glaxos competitor. Tecson was transferred to anotherarea.Tecsondidnotacceptsuchtransfer. IsthepolicyofGlaxovalidandreasonablesoasto constitute the act of Tecson as willful disobedience? A: The prohibition against personal or marital relationships with Ees of competitors companies upon Glaxos Ees is reasonable under the circumstances because relationships of that nature might compromise the interest of the company.

50

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
4. 5. 6. 7. Agentofthe(Er) Teacher,instructor,professor Coach,trainer,or Any other person who, having authority, influence or moral ascendancy over anotherinaworkortrainingoreducation environment: a. Demands b. Requestsor c. Requires any sexual favor from the other, regardless of whether the demand, request or requirement for submissionisacceptedbytheobject ofR.A.7877.(Sec.3) segregating or classifying the Ee which in a way would discriminate, deprive or diminish employment opportunitiesorotherwiseadversely affectsaidEe; b. TheaboveactswouldimpairtheEes rights or privileges under existing laborlaws;or c. The above acts would result in an intimidating, hostile, or offensive environmentfortheEe. 2. Inaneducationortrainingenvironment: a. Against one who is under the care, custody or supervision of the offender; b. Against one whose education, training, apprenticeship or tutorship isentrustedtotheoffender; c. Sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges,orconsiderations;or d. Sexual advances result in an intimidating, hostile or offensive environmentforthestudent,trainee orapprentice. Q:WhatarethedutiesoftheErorheadofoffice in a workrelated, education or training environment? A: 1. 2. Prevent or deter the commission of acts ofsexualharassmentand Providetheproceduresfortheresolution, settlement or prosecution of acts of sexualharassment.

Q:Howissexualharassmentcommitted? A:Generally,apersonliabledemands,requests,or otherwiserequiresanysexualfavorfromtheother, regardless of whether the demand, request or requirement for submission is accepted by the latter. Q: Under the Sexual Harassment Act, does the definition of sexual harassment require a categoricaldemandorrequestforsexualfavor? A: No. It is true that the provision calls for a demand, request or requirement of a sexual favor. But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical manner. It may be discerned, with equal certitude, from the acts of theoffender. Likewise, it is not essential that the demand, requestorrequirementbemadeasaconditionfor continued employment or for promotion to a higher position. It is enough that the respondents acts result in creating an intimidating, hostile or offensiveenvironmentfortheemployee.(Domingo v.Rayala,G.R.No.155831,Feb.18,2008) Q:Whenissexualharassmentcommitted? A:Specifically: 1. In a workrelated or employment environment: a. The sexual favor is made as a condition in the hiring or in the employment, reemployment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges;ortherefusaltograntthe sexual favor results in limiting,

Towardsthisend,theErorheadofofficeshall: 1. Promulgate appropriate rules and regulationsinconsultationwiththejointly approved by the Ees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation or sexual harassment cases and the administrative sanctionstherefore.(Sec.4)
Note:Administrativesanctionsshallnotbe abartoprosecutioninthepropercourtsfor unlawfulactsofsexualharassment. The said rules and regulations issued shall include,amongothers,guidelinesonproper decorum in the workplace and educational ortraininginstitutions.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

51

UST GOLDEN NOTES 2011

2.

3.

Create a committee on decorum and investigation of cases on sexual harassment. The Er or head of office, education or training institution shall disseminate or post a copy of this R.A. 7877 for the informationofallconcerned

hostileorunfriendlytotheapplicant'schancesfora job if she turns down the invitation. [Sec. 3(a)(3), R.A. No. 7877, AntiSexual Harassment Act]. (2000 BarQuestion) Q: In the course of an interview, another female applicant inquired from the same Personnel Manager if she had the physical attributes required for the position she applied for. The Personnel Manager replied: "You will be more attractive if you will wear micromini dresses without the undergarments that ladies normally wear." Did the Personnel Manager, by the above reply, commit an act of sexual harassment? Reason. A:Yes.Theremarkswouldresultinanoffensiveor hostile environment for the Ee. Moreover, the remarks did not give due regard to the applicants feelingsanditisachauvinisticdisdainofherhonor, justifying the finding of sexual harassment (Villaramav.NLRC,G.R.No.106341,Sep.2,1994) Q:PedritoMasculado,acollegegraduatefromthe province,triedhisluckinthecityandlandedajob asutility/maintenancemanatthewarehouseofa bigshoppingmall.AfterworkingasacasualEefor 6 months, he signed a contract for probationary employment for 6 months. Being wellbuilt and physically attractive, his supervisor, Mr. Hercules Barak,tookspecialinteresttobefriendhim.When his probationary period was about to expire, he was surprised when one afternoon after working hours, Mr. Barak followed him to the mens comfort room. After seeing that no one else was around, Mr. Barak placed his arm over Pedritos shoulderandsoftlysaid:Youhavegreatpotential tobecomearegularEeandIthinkIcangiveyoua favorablerecommendation.Canyoucomeoverto my condo unit on Saturday evening so we can have a little drink? Im alone, and Im sure you want to stay longer with the company. Is Mr. Barakliableforsexualharassmentcommittedina workrelatedoremploymentenvironment? A: Yes, the elements of sexual harassment are all present. The act of Mr. Barak was committed in a workplace. Mr. Barak, as supervisor of Pedrito Masculado, has authority, influence and moral ascendancyoverMasculado. Given the specific circumstances mentioned in the questionlikeMr.BarakfollowingMasculadotothe comfort room, etc. Mr. Barak was requesting a sexual favor from Masculado for a favorable recommendation regarding the latter's employment.Itisnotimpossibleforamale,whois a homosexual, to ask for a sexual favor from anothermale.(2000BarQuestion)

Q: What is the liability of the Er, head of office, educationalortraininginstitution? A: Ee shall be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environmentprovided: 1. The Er or head of office, educational or training institution is informed of such actsbytheoffendedparty;and 2. No immediate action is taken thereon. (Sec.5) Q: Can an independent action for damages be filed? A: Yes.NothingunderR.A.7877shallprecludethe victimofwork,educationortrainingrelatedsexual harassment from instituting a separate and independent action for damages and other affirmativerelief.(Sec.6) Q: What is the threefold liability rule in sexual harassmentcases? A:Anactofsexualharassmentmaygiverisetocivil, criminal and administrative liability on the part of theoffender,eachproceedingindependentlyofthe others. Q:Whendoestheactionprescribe? A:Anyactionshallprescribein3years. Q: A Personnel Manager, while interviewing an attractive female applicant for employment, stareddirectlyatherforprolongedperiods,albeit in a friendly manner. After the interview, the manager accompanied the applicant to the door, shook her hand and patted her on the shoulder. He also asked the applicant if he could invite her for dinner and dancing at some future time. Did thePersonnelManager,bytheaboveacts,commit sexualharassment?Reason. A: Yes, because the Personnel Manager, is in a position to grant or not to grant a favor (a job) to theapplicant.Underthecircumstances,invitingthe applicant for dinner or dancing creates a situation

52

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
9.MINORWORKERS a.Regulationofworkinghoursofachild, Employmentofthechildinpublicentertainment, Prohibitionofemployingminorsincertain undertakingsandincertainadvertisements Q:Whatarethegeneralprohibitions? A:GR: 1. the conditions provided in thefirstinstancearemet. Above 15 but below 18 may be employedinanynonhazardouswork Above18noprohibition iii.

B.

C. Q:WhatisthedutyoftheErbeforeengagingchild intowork?

2.

No person under 18 years of age will be allowedtobeemployedinanundertaking which is hazardous or deleterious in nature. No Er shall discriminate against any personinrespecttotermsandconditions ofemploymentonaccountofhisage.

A:TheErshallfirstsecureaworkpermitfromthe DOLE which shall ensure observance of the requirements.(Sec.12,R.A.7160) Q:Whatistheruleregardingtheissuanceofwork certificates/ permits for children at least 15 but below18yearsofage? A:TheissuanceofaDOLECertificatetoyouthaged 15tobelow18yearsofageisnotrequiredbylaw. No employer shall deny opportunity to any such youthapplyingforemploymentmerelyonthebasis oflackofworkpermitorcertificateofeligibilityfor employment. Any young person aged 15 to below 18 years of age may present copy of this DOLE advisorytoanyemployer,jobprovider,government authority, or his/her representative when seeking employmentoranytimeduringemployment.(DOLE DepartmentAdvisoryNo.0108) Q:Whatisanonhazardouswork? A: It is any work or activity in which the Ee is not exposedtoanyriskwhichconstitutesanimminent dangertohissafetyandhealth. Q:Whatarehazardousworkplaces? A: 1. Nature of work exposes the workers to dangerous environmental elements, contaminantsorworkconditions 2. Workers are engaged in construction work, logging, firefighting, mining, quarrying, blasting, stevedoring, dock work, deepsea fishing,andmechanizedfarming 3.Workersareengagedinthemanufactureor handling of explosives and other pyrotechnic products 4. Workers use or are exposed to heavy or powerdriventools Q: You were asked by a paint manufacturing companyregardingthepossibleemploymentasa mixer of a person, aged 17, who shall be directly under the care of the section supervisor. What advicewouldyougive?Explainbriefly. A: I will advise the paint manufacturing company thatitcannothireapersonwhoisaged17.Art139

XPN: A. Below15yrs.Old 1. The child works directly under the sole responsibility of his parents, or guardians who employ members of his family, subject to the following conditions: a. Employmentdoesnotendanger the childs safety, health and morals b. Employment does not impair thechildsnormaldevt c. Erparent or legal guardian provides the child with the primary and/or secondary education prescribed by the Dept.ofEducation 2. The childs employment or participationinpublicentertainment or information through cinema, theater, radio or television is essentialprovided: a. Employment contract is concludedbythechildsparents orlegalguardian, b. With the express agreement of thechildconcerned,ifpossible, and c. The approval of DOLE, the following must be complied with: i. The employment does not involve advertisement or commercials promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts or exhibitingviolence ii. there is a written contract approvedbyDOLE

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

53

UST GOLDEN NOTES 2011


(c)oftheLCprovidesthatapersonbelow18yrsof ageshallnotbeallowedtoworkinanundertaking which is hazardous or deleterious in nature as determined by the SLE. Paint manufacturing has been classified by the SLE as a hazardous work. (2002BarQuestion) Q: What are the prohibitions on the employment ofchildrenincertainadvertisements? A: No employment of child models in all commercialadvertisementspromoting: 1. 2. 3. 4. Violence Alcoholicbeverages Intoxicatingdrinks Tobaccoanditsbyproducts the employment of persons below 18 years of age inanundertakingwhichishazardousordeleterious innatureasdeterminedbytheSLE. 2. An 11year old boy who is an accomplished singer and performer in different parts of the country. A:No,heshouldnotbeprohibitedfrombeinghired andfromperformingasasinger.UnderArt.VIIISec. 12par.2ofR.A.7619asamendedbyR.A.7658,this constitutesanexceptiontothegeneralprohibition againsttheemploymentofchildrenbelow15years of age, provided that the following requirements arestrictlycompliedwith: 1. TheErshallensuretheprotection,health safetyandmoralsofthechild 2. TheErshallinstitutemeasurestoprevent the childs exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangementofworkingtime;and 3. The Er shall formulate and implement, subjecttotheapprovalandsupervisionof competent authorities, a continuing program for training and skill acquisition ofthechild.Moreover,thechildmustbe directly under the sole responsibility of his parents or guardian and his employment should not in any way interferewithhisschooling. 3. A 15year old girl working as a library assistant inagirls'highschool. A: No, she should not be prohibited from working asalibraryassistantbecausetheprohibitioninthe LC against employment of persons below 18 years of age merely pertains to employment in an undertaking which is hazardous or deleterious in nature as identified in the guidelines issuedby the SLE working as a library assistant is not one of undertakingsidentifiedtobehazardousunderD.O. No04Seriesof1999. 4.A16yearoldgirlworkingasmodelpromoting alcoholicbeverages. A:Yes,sheshouldbeprohibitedfromworkingasa model promoting alcoholic beverages. R.A. 7610 categorically prohibits the employment of child models in all commercials or advertisements promoting alcoholic beverages and intoxicating drinks,amongotherthings. 5. A 17year old boy working as a dealer in a casino.

Q: A spinster school teacher took pity on one of her pupils, a robust and precocious 12year old boywhosepoorfamilycouldbarelyaffordthecost ofhisschooling.Shelivesaloneatherhousenear the school after her housemaid left. In the afternoon, she lets the boy do various chores as cleaning, fetching water and all kinds of errands after school hours. She gives him rice and P30.00 beforetheboygoeshomeat7:00everynight.The school principal learned about it and charged her with violating the law which prohibits the employmentofchildrenbelow15yearsofage.In her defense, the teacher stated that the work performedby her pupil isnothazardous, andshe invokedtheexceptionprovidedintheDepartment Order of DOLE for the engagement of persons in domestic and household service. Is her defense tenable?Reason? A:No,herdefenseisnottenable.UnderArt.139of the LC on minimum employable age, no child below 15 years of age shall be employed except when he works directly under the sole responsibility of his parents or guardian, the provisions of the alleged DO of DOLE to the contrary notwithstanding. A mere DO cannot prevail over the express prohibitory provisions of theLC.(2004BarQuestion) Q: Determine whether the following minors should be prohibited from being hired and from performing their respective duties indicated hereunder: 1. A 17year old boy working as miner at the WalwadiMiningCorporation. A: Yes, he should be prohibited from being hired andfromperformingthedutiesofaminerbecause suchconstituteshazardousworkunderD.O.No.04 Seriesof1999.Art.139(c)ofLCexpresslyprohibits

54

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
A: Yes, he should be prohibited from working as a dealer in casino, because Art. 140 of the LC prohibits the employment of persons below 18 years of age in an undertaking which is hazardous ordeleteriousinnatureidentifiedintheguidelines issuedbytheSLE.Workingasadealerinacasinois classifiedashazardousunderD.O.No.04Seriesof 1999 as it exposes children to physical, psychologicalorsexualabuses.(2006BarQuestion) b.ActAgainstChildLabor(RA9231)andChildAbuse Law(RA7610) Q:Whatischildlabor? A: Any work or economic activity performed by a child that subjects him or her to any form of exploitation or is harmful to his or her health and safety or physical, mental or psychosocial development. Q:Whoisaworkingchild? A:Anychildengagedasfollows: 1. Whenthechildisbelow18yearsofagein a work or economic activity that is not childlabor;or 2. Whenthechildisbelow15yearsofage: a. In work where he/she is directly under the responsibility of his/her parents or legal guardianand where only members of the childs family areemployed;or b. In public entertainment or information Q:WhenmaytheStateinterveneinbehalfofthe child? A: 1. The parent, guardian, teacher or person havingcareorcustodyofthechildfailsor is unable to protect the child against abuse,exploitationanddiscrimination;or 2. When such acts are committed against the child by the said parent, guardian, teacher or person having care and custodyoverthechild Q:Whatisthelimitationonthehoursofworkofa workingchild? A:Ifthechildis: 1. Below15yearsofagenotmorethan20 hoursaweekandnotmorethan4hours aday Not allowed to work between 8:00 pm6:00am At least 15 years of age but below 18 years of age will not exceed 8 hours a dayor40hoursaweek Notallowedtoworkbetween10:00 pm6:00am -

2.

Q:Whataretheworstformsoflabor? A: 1. All forms of slavery (AntiTrafficking of Persons Act of 2003) or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; The use, procuring, offering or exposing of a child pornography or for pornographicperformances; The use, procuring, offering or exposing of a child for illegal or illicit activities, includingtheproductionandtraffickingof dangerous drugs and volatile substances prohibitedunderexistinglaws; Employingchildmodelsinallcommercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco anditsbyproductsandviolence;and Work which, by its nature or circumstancesinwhichitiscarriedout,is hazardous or likely to be harmful to the health,safetyormoralsofchildren.

2.

3.

4.

5.

Q: Who can file a complaint for unlawful acts committedagainstchildren? A: 1. Offendedparty 2. Parentsorguardians 3. Ascendants or collateral relatives within rd the3 degreeofconsanguinity 4. Officer,socialworkerorrepresentativeof alicensedchildcaringinstitution 5. OfficerorsocialworkerofDSWD 6. Barangay chairman of the place where the violation occurred, where the child is residingoremployed 7. Atleast3concerned,responsiblecitizens wheretheviolationoccurred Q: Which courts have jurisdiction over offenses punishableunderR.A.9231? A:TheFamilyCourtsshallhaveoriginaljurisdiction over all cases involving offenses punishable under thisAct

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

55

UST GOLDEN NOTES 2011


10.EMPLOYMENTOFHOUSEHELPERS a.Definition Q:Whatisdomesticorhouseholdservice? A: 1. ServicesintheErshome 2. Usuallynecessaryordesirable 3. For the maintenance and employment thereof 4. Includes ministering to the personal comfortandconvenienceofthemembers oftheErshousehold 5. Includingservicesoffamilydrivers. Q:Whoisahousehelper? A: A househelper is synonymous to domestic servant 1.Anyperson,maleorfemale; 2.WhorendersservicesinandabouttheErs homeand; 3. ServicesareusuallynecessaryorDesirable for the maintenance and enjoyment thereof,and 4. Ministers exclusively to the personal comfortandenjoymentofErsfamily
Note:Thechildrenandrelativesofahousehelperwho live under the Ers roof and who share the accommodationsprovidedforthehousehelperbythe Ershallnotbedeemedashousehelpersiftheyarenot otherwise engaged as such and are not required to perform any substantial household work. (Sec 3, Rule XII,BookIII,IRR) Thedefinitionofahousehelpercannotbeinterpreted to include househelp or laundry women working in staffhouses of a company. (APEX Mining CO., Inc., v. NLRC,G.R.No.94951,April22,1991)

5.

Nonassignment to a work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower thanthatprovidedforagriculturalornon agriculturalworkers.(Art.145) 6. Ees under 18 years of age shall be given opportunity for at least elementary education.Thecostofeducationshallbe part of the HHs compensation, unless otherwisestipulated.(Art146) 7. Should be treated in a just and humane manner.(Art.147) 8. Not to be treated with physical violence (Art.147) 9. Suitable and sanitary living headquarters as well as adequate food and medical attendance.(Art.148) 10. Terminationofemploymentshouldbe a. upon expiration of term of employment,or b. basedonjustcause(Art.149) 11. Indemnity for unjust termination of service 12. Employmentcertificationastonatureand duration of service and efficiency and conductofhousehelper.

Q:Whatistheminimumwageforhousehelpers? A: 1.MetoManilaP800/month 2. Other Chartered Cities or First Class MunicipalitiesP650/month 3.InotherMunicipalitiesP550/month


Note: The minimum cash wage rates shall be paid to the househelpers in addition to lodging, food and medicalattendance.

Q:IsthereanOTPayforhousehelpers? A: No. The LC is silent on the grant of OT pay, HP, Premium Pay and SIL to those engaged in the domesticorhouseholdservice.MoreoverArt.82of LC expressly excludes domestic helpers from its coverage. (Ultra Villa Food Haus v. Geniston, G.R. No.120473,June23,1999) Q: Erlinda worked as a cook, preparing the lunch and merienda of the Ees of Remington Industrial Sales Corp. She worked at the premises of the company. When Erlinda filed an illegal dismissal case,Mr.Tan,themanagingdirectorofRemington Corp.claimedthatErlindawasadomestichelper, andnotaregularEeofRemingtonCorp.Mr.Tan argued that it is only when the househelper or domestic servant is assigned to certain aspects of the business of the Er that such househelper or

b.Benefitsaccordedhousehelpers Q:Whataretherightsofhousehelpers? A: 1. Originalcontractofdomesticserviceshall notlastformorethan2yearsbutitmay berenewedbytheparties.(Art.142) Entitled to minimum wage in addition to lodging, food, and medical attendance. (Art.144) Employmentcontractshouldbereviewed every 3 years with the end view of improving the terms and conditions of employment.(Art.143) SSS benefits for those who are receiving atleastP1,000permonth.(Art.143)

2.

3.

4.

56

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
domestic servant may be considered as such an employee.IsErlindaadomesticorhousehelper? A: No, Erlinda is clearly not a househelper. A househelper or domestic servant under the Implementing Rules of the LC is one who is employed in the Ers home to minister exclusively to the personalcomfort and enjoyment of the Ers family. A househelper, domestic servant or laundrywoman in a home or in a company staffhouse is different in the sense that in a corporation or a single proprietorship engaged in business or industry or any agricultural or similar pursuit,serviceisbeingrenderedinthestaffhouses orwithinthepremisesofthebusinessoftheEr.In suchinstance,theyareEesofthecompanyorErin thebusinessconcerned,entitledtotheprivilegesof aregularEe.Themerefactthatthehousehelperor domesticservantisworkingwithinthepremisesof thebusinessoftheemployerandinrelationtoorin connection with its business, as in its staffhouses for its guest or even for its officers and Ees, warrants the conclusion that such househelper or domestic servant is and should be considered a regular Ee and not a househelper. (Remington Industrial v. Castaneda, G.R. Nos. 16929596, Nov.20,2006) Q:NBChasaresthouseandrecreationalfacilityin thehighlandsofTagaytayCityfortheuseofitstop executives and corporate clients. The resthouse staff includes a caretaker, two cooks and a laundrywoman. All of them are reported to the SSSasdomesticorhouseholdEesoftheresthouse and recreational facility and not of NBC. Can NBC legally consider the caretaker, cooks and laundrywoman as domestic Ees of the resthouse andnotofNBC? A: No, they are not domestic Ees. They are NBCs Ees because the resthouseandrecreational facility arebusinessfacilitiesastheyareforuseofthetop executives and clients of NBC. (Traders Royal Bank v.NLRC,G.R.No.127864,Dec.22.1999).(2000Bar Question) c.Termination Q: What is the proper procedure in the terminationofahousehelper? A: The termination of the employment of a househelpershouldbe: a. b. Upon expiration of the term of employment,or Basedonjustcause(Art.149) 2. d.ReliefsforUnjustTermination Q:Whataretherulesforindemnity? A: 1. If the period for household service is fixed, neither the Er nor the househelper may terminate the contract before the expiration of the term except for just cause. 2.Ifthehousehelperisunjustlydismissed,he or she shall be paid the compensation already earned plus that for the 15 days bywayofindemnity. 3. If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding15days. Q: When can the HH demand for employment certification? A: Upon the severance of the household service relationship, the househelper may demand from the Er a written statement of the nature and duration of the service and his/ her efficiency and conductashousehelper. 11.EMPLOYMENTOFHOMEWORKERS a.Defintion Q:Whoarehomeworkers? A:Theyarethosewhoperforminorabouthisown home any processing or fabrication of goods or materials, in whole or in part, which have been furnished directly or indirectly, by an Er and sold thereaftertothelatter. Q:WhoistheErofHomeworker? A:Includesanyperson,naturalorartificialwho,for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an Ee, agent contractor, subcontractor oranyotherperson: 1. Delivers or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a homeandthereaftertobereturnedorto be disposed of or distributed in accordancewithhisdirections. Sellsanygoods,articlesormaterialstobe processedorfabricatedinorabutahome and then rebuys them after such processing or fabrication, either by himselforthroughsomeotherperson.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

57

UST GOLDEN NOTES 2011


b.Rightsandbenefitsaccordedhomeworkers Q:WhatisthedutyoftheErincasehecontracts withanothertheperformanceofhiswork? A: It shall be the duty of the Er to provide in such contractthattheEesorHWsofthecontractorand the latters subcontractor shall be paid in accordancewiththeLC. Q:WhatistheliabiltyoftheErifthecontractoror subcontractorfailstopaythewagesorearningsof hisEes? A: Er shall be jointly and severally liable with the contractor or subcontractor to the workers of the latter to the extent that such work is performed under such contract, in the same manner as if the EesorHWsweredirectlyengagedbytheEr. Q:CanHomeworkersformlabororganizations? A:Yes.DONo.5,replacingRuleXIVoftheIRRBook 3 of the LC, authorizes the formation and registrationoflabororganizationofindustrialHWs. ItalsomakesexplicittheErsdutytopayandremit SSS,PhilhealthandECCpremiums. Q:Whataretheprohibitionsagainsthomework? A:Nohomeworkshallbeperformedon: 1. 2. 3. Explosives,fireworksandsimilararticles; Drugsandpoisons;and Other articles, the processing of which requires exposure to toxic substances. (Sec.13,RuleXIV,BookIII,IRR) Q:Distinguishhousehelpersfromhomeworkers. A:
HOUSEHELPERS HOMEWORKERS Performs in or about his ownhomeanyprocessing or fabrication of goods or materials, in whole or in part, which have been furnished directly or indirectly, by an Er and sold thereafter to the latter.

4.

The deduction is made at such rate that the amount deducted does not exceed 20%oftheHWsearningsinaweek.

Minister to the personal needsandcomfortofhis Erinthelattershome

Q: Josie is the confidential secretary of the Chairman of the Board of the bank. She is presently on maternity leave. In an arrangement where the Chairman of the Board can still have accesstoherservices,thebankallowshertowork inherresidenceduringherleave.Forthispurpose, thebankinstalledafaxmachineinherresidence, and gave her a cellphone and a beeper. Is Josie a homeworkerunderthelaw?Explain. A:No,sheisactuallyanofficeworker.Sheisnotan industrial homeworker who accepts work to be fabricated or processed at home for a contractor, which work, when finished, will be returned to or repurchasedbysaidcontractor.(Art.155,LC)(2000 BarQuestion) 12.APPRENTICESANDLEARNERS a.Apprentices Q:Whoisanapprentice? A: Any worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under theLC. Q:Whatisapprenticeship? A: It is practical training on the job supplemented byrelatedtheoreticalinstruction. Q:Whatisanapprenticeableoccupation? A: That which requires more than 3 months of practicaltrainingwiththeoreticalinstruction Q:Whatisonthejobtraining(OJT)? A: It is practical work experience through actual participation in productive activities given to or acquiredbyanapprentice.

c.Conditionsfordeductionfromhomeworkers earnings Q: Can the Er make deductions on homeworkers earnings? A: GR: No Er, contractor or subcontractor shall make any deduction from the HWs earnings forthevalueofmaterialswhichhavebeenlost, destroyed,soiledorotherwisedamage. XPN:Unlesstheff.conditionsaremet: 1. TheHWisclearlyshowntoberesponsible forthelossordamage 2. TheEeisgivenreasonableopportunityto showcausewhydeductionsshouldnotbe made; 3. Theamountofsuchdeductionisfairand reasonable and shall not exceed the actuallossordamages;and

58

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
Q:Whatarehighlytechnicalindustries? A: Those which are engaged in the application of advancedtechnology. Q:Whatarerelatedtheoreticalinstructions? A: Technical information based on apprenticeship standardsapprovedbytheBureau.
Note:PriorapprovalbyTESDA(formerlyDOLE)ofthe proposed apprenticeship program is a condition sine quanon.Otherwise,apprenticebecomesaregularEe. (Nitto Enterprises v. NLRC, G.R. No. 114337, Sep. 29, 1995).

Q:Whatistheemploymentstatusofapprentices? A: They are contractual workers whose length of service depends on the term provided for in the apprenticeship agreement. Thus, the employer is not obliged to employ the apprentice after the completionofhistraining. Q:Whatistheperiodofapprenticeship? A:Mustnotexceed6months: 1. 2months/400hours:Tradesoroccupations whichnormally require 1 yearormorefor proficiency 1 month/200 hours: Occupations and jobs whichrequiremorethan3monthsbutless than1yearforproficiency.(Sec.19,RuleVI, BookII,IRR)

Q:Whatarethequalificationsofanapprentice? A: 1. Atleast15yearsofage
Note:Thosebelow18yearsofageshallnot workinhazardousoccupations

2.

2. 3. 4.

5.

Physicallyfitfortheoccupation Possessvocationalaptitudeandcapacity Possess: a. Theabilitytocomprehend,and b. Followoralandwritteninstructions The company must have an apprenticeshipprogramdulyapprovedby theDOLE.

Q: What is the status of an apprentice hired after suchterm? A:HeisdeemedaregularEe.Hecannotbehiredasa probationary Ee since the apprenticeship is deemed theprobationaryperiod. Q:Whatisthewagerateofanapprentice? A: Start at not less than 75% of the statutory minimum wage for the 1st 6 months (except OJT); thereafter, shall be paid in full minimum wage, includingthefullCOLA.
Note: GR: Apprenticeship programs shall be primarily voluntary XPN:Compulsoryapprenticeship: 1. National security or economic developmentsodemand,thePresident mayrequirecompulsorytraining 2. Services of foreign technicians are utilized by private companies in apprenticeabletrades.

Note: Trade and industry associations may recommend to the SLE appropriate educational requirementsfordifferentoccupations.

Q:Whenisanoccupationdeemedhazardous? A: 1. Nature of work exposes worker to dangerous environmental elemental contaminantsorworkconditions Workers are engaged in construction work, logging, firefighting, mining, quarrying,blasting,stevedoring,deepsea fishing,andmechanizedfarming Workersareengagedinthemanufacture or handling of explosives and other pyrotechnicproducts Workers use, or are exposed to heavy or powerdrivenmachineryorequipment.

2.

3.

Q: What are the rules regarding apprenticeship agreements? A: Apprenticeship agreements, including the wage ratesofapprentices,shall: 1. 2. 3. ConformtotherulesissuedbySLE. The period of apprenticeship shall not exceed6months. Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75%oftheapplicablemin.wage,maybe entered into only in accordance with

4.

Q:Whomayemployapprentices? A: 1. Only employers in highly technical industriesand 2. Only in apprenticeable occupations approvedbySLE

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

59

UST GOLDEN NOTES 2011


apprenticeship programs duly approved bytheSLE. The DOLE shall develop standard model programsofapprenticeship.(Sec.18,Rule VI,BookII,IRR) A: Gomburza College is not liable for the acts of Padilla because there is no ErEe relationship between them. As provided in the Rules and RegulationsImplementingtheLC"thereisnoErEe relationship between students on one hand, and schools, colleges, or universities on the other, wherestudentsworkwiththelatterinexchangefor the privilege to study free of charge, provided the students aregiven real opportunity, including such facilities as may be reasonable and necessary to finish their chosen courses under such arrangement."(1997BarQuestion) Q: Who may terminate an apprenticeship agreement? A: 1. Eitherpartymayterminateanagreement aftertheprobationaryperiodbutonlyfor avalidcause. It may be initiated by either party upon filing a complaint or upon DOLEs own initiative.

4.

Q:Whosignstheapprenticeshipagreement? A: Every apprenticeship agreement shall be signed by: 1. 2. Theemployerorhisagent,or An authorized representative of any of therecognizedorganizations,associations orgroups,and Theapprentice.

3. Q:Whowillsigniftheapprenticeisaminor? A:Anapprenticeshipagreementwithaminorshall besignedinhisbehalfby: 1. 2. His parent or guardian, or if the latter is notavailable, An authorized representative of the DOLE. be hired without

2.

Q:Whomayappealthedecisionoftheauthorized agencyoftheDOLE? A: It may be appealed by any aggrieved person to theSLEwithin5daysfromreceiptofthedecision.


Note: The decision of the SLE shall be final and executory.

Q: May apprentices compensation? A:Required: 1. 2. 3. 4.

Byschool Bythetrainingprogramcurriculum ForGraduation Forboardexaminations Q:Whataretherulesonworkingscholars? A:ThereisnoErEerelationshipbetweenstudents on one hand, and schools, where there is written agreement between them under which the former agree to work for the latter in exchange for the privilegetostudyfreeofcharge.Thestudentisnot consideredanEe.(Sec.14,RuleIX,BookIII,IRR) Q: Padilla entered into a written agreement with Gomburza College to work for the latter in exchange for the privilege of studying in said institution.Hisworkwasconfinedtokeepingclean the lavatory facilities of the school. One school day, he got into a fist fight with a classmate, Monteverde, as a result of which the latter sustained a fractured arm. Victor filed a civil case for damages against him, impleading Gomburza Collegeduetothelatter'sallegedliabilityashisEr. Underthecircumstances,couldGomburzaCollege beheldliablebyVictorMonteverdeasanPadillas Er?

Q:WhatisExhaustionofAdministrativeRemedies (EAR)? A: It is a condition precedent to the institution of action.(Sec.32b,RuleVI,BookII,IRR) Q: How is the principle of Exhaustion of AdministrativeRemediesappliedincaseofbreach ofapprenticeshipagreement? A: No person shall institute any action for the enforcement of any apprenticeship agreement or damagesforbreachofanysuchagreement,unless he has exhausted all available administrative remedies. Q: Who shall settle differences arising out of apprenticeshipagreement? A: The plant apprenticeship committee shall have the initial responsibility for settling differences arisingoutofapprenticeshipagreement.(Sec.32b, RuleVI,BookII,IRR) Q: What is the procedure for the termination of apprenticeship?

60

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
A:Thepartyterminatingshall: 1. 2. 3. b.Learners Q:Whoarelearners? A: 1. They are persons hired as trainees in semiskilled and other industrial occupations 2. Whicharenonapprenticeableand 3. Which may be learned through practical training on the job in a relatively short periodoftime 4. Whichshallnotexceed3months 5. Whether or not such practical training is supplementedbytheoreticalinstructions. (Sec.1a,RuleVII,BookII,IRR) Q:Whenmaylearnersbeemployed? A: 1. 2. 3. Whennoexperiencedworkerisavailable It is necessary to prevent curtailment of employmentopportunities;and Employment does not create unfair competition in terms of labor costs or impairorlowerworkingstandards. Serve a written notice on the other at least5daysbeforeactualtermination, Statingthereasonforsuchdecision;and A copy of said notice shall be furnished theApprenticeshipDivisionconcerned. A: Only employers in semiskilled and other industrial occupations which are non apprenticeable. Q: What is the status of learners who have been allowed or suffered work during the first 2 months, if training is terminated by the Er before the end of the stipulated period through no fault ofthelearner? A: They are deemed regular employees. (Sec. 4, RuleVII,BookII,IRR) c.DistinctionsbetweenLearnershipand Apprenticeship Q:DistinguishLearnershipfromApprenticeship. A:
Learnership Nature Trainingonthejobinsemi skilledandotherindustrial occupationortradeswhich arenonapprenticeable andwhichmaybelearned thrupracticaltrainingon thejobinarelativelyshort periodoftime. Trainingintradeswhich areapprenticeable,that is,practicaltrainingon thejobsupplemented byrelatedtheoretical instructionformore than3months. Apprenticeship

Durationoftraining Min:3months Max:6months Commitmenttoemploy Withcommitmentto employthelearnerasa Nocommitmenttohire regularEeifhedesires uponcompletionof learnership Incaseofpreterminationofcontract ConsideredaregularEeif preterminationoccurs Workernotconsidered after2monthsoftraining asregularemployee. andthedismissalis withoutfaultofthe learner. Coverage Highlytechnical Semiskilled/Industrial industriesandonlyin occupations industrialoccupation Thereisalistoflearnable Nolist tradesbyTESDA Writtenagreement RequireLearnership RequiresApprenticeship Agreement Agreement Max:3months

Q:Whatisalearnershipagreement? A: Any employer desiring to employ learners shall enter into a learnership agreement with them, whichagreementshallinclude: 1. 2. 3. Thenamesandaddressesofthelearners; The duration of the learnership period, whichshallnotexceed3months; The wages or salary rates of the learners whichshallbeginatnotlessthan75%of theapplicableminimumwage;and A commitment to employ the learners if theysodesire,asregularemployeesupon completionofthelearnership.

4.

Q:Whatisthequalificationofalearner? A:Mustbeatleast15yearsofage.
Note: Those below 18 years of age shall not work in hazardousoccupations.

Q:Whomayemploylearners?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

61

UST GOLDEN NOTES 2011


13.HANDICAPPEDWORKERS(RA9277) 13. a.Definition Q:Whoarehandicappedworkers(HW)? A:Thosewhoseearningcapacityisimpairedby: 1. 2. 3. 4. 5. 6. Physicaldeficiency Age Injury Disease Mentaldeficiency Illness disability he can still efficiently perform his work, he cannot be classified as handicapped; he would be consideredaqualifieddisabledworkerentitledtothe sametreatmentasqualifiedablebodiedworkers. b.Rightsofdisabledworkers Q: What are the rights and privileges of disabled workers? A: 1. 2. Equalopportunityforemployment Sheltered employment (the govt shall endeavourtoprovidethemworkifsuitable employment for disabled persons cannot befoundthroughopenemployment) Apprenticeship Vocationalrehabilitation(meanstodevelop theskillsandpotentialsofdisabledworkers and enable them to compete in the labor market) Vocationalguidanceandcounselling

Q:Whatisthedurationoftheemploymentperiod ofhandicappedworkers? A: There is no minimum or maximum duration. It depends on the agreement butit is necessary that thereisaspecificdurationstated. Q: May handicapped workers be hired as apprenticesorlearners? A:Yes,iftheirhandicapisnotsuchastoeffectively impede the performance of job operations in the particular occupations for which they are hired. (Art.81) Q: Can a handicapped workers acquire the status ofaregularEe? A:Yes,ifworkisusuallyornecessarilyordesirable to the business. (Bernardo v. NLRC, G.R No. 122917,July12,1999) Q:Whomayemployhandicappedworkers? A: Employers in all industries. Provided, the handicap is not such as to effectively impede the performance of job operations in the particular occupationsforwhichtheyarehired Q:Whencanhandicappedworkersbeemployed? A: 1. When their employment is necessary to prevent curtailment of employment opportunitiesand Whenitwillnotcreateunfaircompetition inlaborcostsorlowerworkingstandards. (Art.79)

3. 4.

5.

c.Prohibitionsondiscriminationagainstdisabled persons Q: What is the prohibition on discrimination againstdisabledworkers? A: No disable person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same termsandconditionsofemploymentandthesame compensation, privileges, benefits, fringe benefits, incentives or allowances as aqualified able bodied person. Five percent (5%) of all casual emergency and contractual positions in the Departments of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons. d.Incentivesforemployers Q: What are the incentives provided for employers inemployingdisabledworkers? A:1.Entitledtoanadditionaldeduction,fromtheir gross income, equivalent to twentyfive percent (25%) of the total amount paid as salaries and wagestodisabledpersons:Provided,however,That such entities present proof as certified by the Department of Labor and Employment that disabledpersonsareundertheiremploy:Provided, further, That the disabled employee is accredited withtheDepartmentofLaborandEmploymentand

2.

Q:Doesthemerefactthataworkerhasadisability, makehimahandicappedworker? A: No, because his disability may not impair his efficiency or the quality of his work. If despite his

62

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR STANDARDS
the Department of Health as to his disability, skills andqualifications 2. Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxableincome,equivalenttofiftypercent(50%)of the direct costs of the improvements or modifications Q:Distinguishhandicappedfromdisabled? A:
Handicapped

Disabled (DifferentlyAbled) Referstoallsufferingfrom restrictionofdifferentabilities asaresultofmental,physical orsensoryimpairmentto performanactivityinthe mannerorwithinrange considerednormalfora humanbeing. Coversallactivitiesor endeavors. Basis:rangeofactivitywhich isnormalforahuman being. Restrictionduetoimpairment ofmental/physical/sensory defect.

Earningcapacityis impairedbyage,or physicalormental deficiencyorinjury.

Coversonlyworkers. Basis:loss/impairment ofearningcapacity. Lossduetoinjuryor physicalormental defectorage. Ifhired,entitledto75% ofminimumwage. Subjecttodefinite periodsof employment. Employableonlywhen necessarytoprevent curtailmentof employment opportunity.

Ifqualified,entitledtoall termsandconditionsas qualifiedablebodiedperson.

Norestrictionson employment. Mustgetequalopportunity andnounfaircompetition.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

63

UST GOLDEN NOTES 2011


D.TERMINATIONOFEMPLOYMENT 1.EMPLOYEREMPLOYEERELATIONSHIP Q: What determines the existence of an employmentrelationship? A: It is determined by law and not by contract. Whether or not an ErEe relationship exists between the parties is a question of fact. In this regard, the findings of the NLRC are accorded not onlyrespectbutfinalityifsupportedbyevidence.
Note: Taxi or jeepney drivers under the boundary system are Ees of the taxi or jeepney owners/operators; so also the passenger bus drivers and conductors. (Jardin vs. NLRC and Goodman Taxi, G.R.No.119268,Feb.23,2000)

Q:Theemploymentcontractstipulatesthatthere is no ErEe relationship between the parties. Is thatvalid? A: No. The existence of an ErEe relation is a questionoflawandbeingsuch,itcannotbemade the subject of agreement. (Tabas v. California ManufacturingCo.,G.R.No.L80680,Jan.26,1989) Q: Banco de Manila and the Ang Husay Janitorial and Pest Control Agency entered into an IndependentContractorAgreementwiththeusual stipulations: specifically, the absence of ErEe relationship, and the relief from liability clauses. Can the bank, as a client, and the agency, as an independent contractor, stipulate that no ErEe relationship exists between the bank and the Ees oftheAgencywhomaybeassignedtoworkinthe Bank?Reason. A:Yes,theycanstipulateprovidedtherelationship isjobcontracting.Howeverthestipulationcannot prevailoverthefactsandthelaws.Theexistenceof ErEe relationship is determined by facts and law and not by stipulation of the parties. (Insular Life AssuranceCo..Ltd.v.NLRC,G.R.No.119930,March 12,1998) Q:ASIAexecuteda1yearcontractwiththeBaron Hotel(BARON)fortheformertoprovidethelatter with 20 security guards to safeguard the persons andbelongingsofhotelguests,amongothers.The security guards filled up Baron application form and submitted the executed forms directly to the SecurityDepartmentofBaron.Thepayslipsofthe security guards bore BARON's logo and showed that Baron deducted therefrom the amounts for SSS premiums, medicare contributions and withholdingtaxes.Assignmentsofsecurityguards, who should be on duty or on call, promotions,

suspensions, dismissals and award citations for meritorious services were all done upon approval by BARON's chief security officer. After the expiration of the contract with ASIA, BARON did notrenewthesameandinsteadexecutedanother contractforsecurityserviceswithanotheragency. ASIA placed the affected security guards on "floating status" on "no work no pay" basis. Having been displaced from work, the ASIA securityguardsfiledacaseagainsttheBARONfor illegal dismissal, overtime pay, minimum wage differentials, vacation leave and sick leave benefits, and 13th month pay. BARON denied liability alleging that ASIA is the employer of the securityguards and therefore, their complaint for illegal dismissal and payment of money claims should be directed against ASIA. Nevertheless, BARONfiledaThirdPartyComplaintagainstASIA. IsthereanErEerelationshipbetweentheBARON, ononehand,andtheASIAsecurityguards,onthe otherhand?Explainbriefly. A:Asageneralrule,thesecurityguardsofaprivate security guard agency are the employees of the latterandnotoftheestablishmentthathasentered into a contract with the private security guard agency for security services. But under the facts in thequestion,BaronHotelappeartohavehiredthe security guards, to have paid their wages, to have the power to promote, suspend or dismiss the security guards and the power of control over them, namely, the security guards were under ordersofBaronHotelasregardtheiremployment. Because of the abovementioned circumstances, BaronHotelistheErofthesecurityguards. Q:AssumingthatASIAistheEr,istheactofASIA in placing the security guards on "floating status" lawful?Why? A:Itislawfulforaprivatesecurityguardagencyto place its security guard on a "floating status" if it has no assignment to give to said security guards. But if thesecurity guardsare placed on a "floating status"formorethan6months,thesecurityguards mayconsiderthemselvesashavingbeendismissed. (1999BarQuestion) Q:Lacsonwasoneofmorethan100Eeswhowere terminated from employment due to the closure ofLBMConstructionCorporation.LBMwasasister company of Lastimoso Construction, Inc. and RL Realty & Devt Corp. All 3 entities formed what came to be known as the Lastimoso Group of Companies. The 3 corporations were owned and controlled by members of the Lastimoso family; their incorporators and directors all belonged to

64

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
the Lastimoso family. The 3 corporations were engaged in the same line of business, under one management, and used the same equipment including manpower services. Lacson and his co Ees filed a complaint with the Labor Arbiter againstLBM,RLRealtyandLastimosoConstruction to hold them jointly and severally liable for backwages and separation pay. Lastimoso Construction, Inc. RL Realty & Development Corporation interposed a Motion to Dismiss contending that they are juridical entitles with distinct and separate personalities from LBM Construction Corporation and therefore, they cannot be held jointly and severally liable for the money claims of workers who are not their Ees. Rule on the motion to dismiss. Should it be grantedordenied?Why? A: It is very clear that even if LBM Construction company, Lastimoso Construction Company, Inc. and RL Realty & Devt Corp. all belong to the Lastimosofamilyandareengagedinthesameline of business under one management and used the same equipment including manpower services, these corporations were separate juridical entities. Thus, only the LBM Construction Corp. is the Er of Teofilo Lacson. The other corporation do not have any ErEe relations with Lacson. The case in question does not include any fact that would justify piercing the veil of corporate fiction of the othercorporationsinordertoprotecttherightsof workers. In a case (Concept Builders, Inc. v. NLRC, G.R.No.108734,May29,1996)theSCruledthatit isafundamentalprincipleofcorporationlawthata corporation is an entity separate and distinct from its stockholders and from other corporations to which it may be connected. But this separate and distinct personality of a corporation is merely a fiction created by law for convenience and to promote justice. So, when the notion of separate juridical personality is used to defeat public convenience,justifywrong,protectfraudordefend crime, or is used as a device to defeat the labor laws, this separate personality of the corporation maybe disregarded or the veil of corporate fiction pierced.(1999BarQuestion) a.Fourfoldtest Q:WhatfactorsdeterminetheexistenceofanEr Eerelationship? A:Thefourfoldtest: 1. 2. 3. Selection and engagement of the employee; Paymentofwages; Powerofdismissal;and 4. Power of control. (The Labor Code with Comments and Cases 2007, Azucena, Vol I,p.158)

Q:Whatiscontroltest? A:Thepersonforwhomtheservicesareperformed reserves a right to control not only the end to be achievedbutalsothemeanstobeusedinreaching suchend.
Note:However,incertaincasesthecontroltestisnot sufficienttogiveacompletepictureoftherelationship betweentheparties,owingtothecomplexityofsucha relationshipwhereseveralpositionshavebeenheldby theworker.Thebetterapproachistoadoptthetwo tieredtest.(Franciscovs.NLRC,G.R.No.170087,Aug. 31,2006)

Q: Genesis entered into a Careers Agent Agreement with EmoLife Insurance Company, a domestic corporation engaged in insurance business. In the Agreement, it provides that the agent is an independent contractor and nothing therein shall be construed or interpreted as creating an employer employee relationship. It furtherprovidesthattheagentmustcomplywith three requirements: (1) compliance with the regulationsandrequirementsofthecompany;(2) maintenance of a level of knowledge of the company's products that is satisfactory to the company;and(3)compliancewithaquotaofnew businesses.However, EmoLifeinsurance company terminated Genesis services. Genesis filed an illegaldismissalcomplaintallegingthereinthatan employeremployeerelationshipexistsandthathe was illegally dismissed. Is he an employee of the insurancecompany? A:GenesisisnotanemployeeofEmoLifeInsurance Company. Generally, the determinative element is the control exercised over the one rendereing the service.TheconceptofcontrolinLaborCodehas to be compared and distinguished with control that must necessarily exist in a principalagent relationship. The employer controls the employee bothintheresultsandinthemeansandmannerof achieving this result. The principal in an agency relationship, e.g. insurance agent, on the other hand, also has the prerogative to exercise control over the agent in undertaking the assigned task based on the parameters outlined in the pertinent laws. In the present case, the Agreement fully servesasgrantofauthoritytoGenesisasEmoLifes insurance agent. This agreement is supplemented bythecompanysagencypracticesandusages,duly accepted by the agent in carrying out the agency. Foremost among these are the directives that the principal may impose on the agent to achieve the

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

65

UST GOLDEN NOTES 2011


assigned tasks, to the extent that they do not involve the means and manner of undertaking thesetasks.Thelawlikewiseobligatestheagentto renderanaccount;inthissense,theprincipal may imposeontheagentspecificinstructionsonhowan accountshallbemade,particularlyonthematterof expenses and reimbursements. To these extents, control can be imposed through rules and regulations without intruding into the labor law concept of control for purposes of employment. (Gregorio Tongko v. ManuLife Insurance Company, G.R.No.167622,Jun.29,2010) b.TwotieredTest Q:Whatisthetwotieredtest? A: 1. TheputativeErspowertocontroltheEe with respect to the means and methods bywhichtheworkistobeaccomplished; and The underlying economic realities of the activityorrelationship. justcause,whenhefailstoqualifyasaregularEein accordance with reasonable standards prescribed bytheEr. Q: Michelle Miclat was employed on a probationary basis as marketing assistant by ClarionPrintingHousebutduringheremployment shewasnotinformedofthestandardsthatwould qualify her as a regular employee (Ee). 30 days after, Clarion informed Miclat that her employment contract had been terminated withoutanyreason.Miclatwasinformedthather termination was part of Clarions costcutting measures.IsMiclatconsideredasaregularEeand henceentitledtoitsbenefits? A:Yes.Probationaryemploymentshallbegoverned by the following rules: (d) In all cases of probationaryemployment,theErshallmakeknown totheEethestandardsunderwhichhewillqualify as a regular Ee at the time of his engagement.Wherenostandardsaremadeknown totheEeatthattime,heshallbedeemedaregular Ee. In the case at bar, she was deemed to have been hired from day one as a regular Ee. (Clarion PrintingHouseInc.,vs.NLRC,G.R.No.148372,June 27,2005) Q: What are the characteristics of probationary employment? A: 1. Itisanemploymentforatrialperiod; 2. Itisatemporaryemploymentstatusprior toregularemployment; 3. It arises through a contract with the followingelements: a. The employee (Ee) must learn and workataparticulartypeofwork b. Such work calls for certain qualifications c. Theprobationisfixed d. The Er reserves the power to terminateduringorattheendofthe trialperiod e. And if the Ee has learned the job to the satisfaction of the Er, he becomesaregularEe. Q: What is the period of probationary employment? A:GR:Itshallnotexceed6months. XPNs: 1. Covered by an apprenticeship or learnership agreement stipulating a differentperiod

2.

Note: This twotiered test would provide us with a framework of analysis, which would take into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. This is especially appropriate in this case where there is no written agreement or termsofreferencetobasetherelationshiponanddue to the complexity of the relationship based on the various positions and responsibilities given to the worker over the period of the latters employment. (Franciscovs.NLRC,G.R.No.170087,Aug.31,2006)

Q: What is the proper standard for economic dependence? A: The proper standard is whether the worker is dependent on the alleged employer for his continuedemploymentinthatlineofbusiness c.Probationaryemployment Q:Whatisprobationaryemployment? A:Employmentwheretheemployee(Ee),uponhis engagement: Ismadetoundergoatrialperiod DuringwhichtheErdetermineshisfitness toqualifyforregularemployment, 3. Based on reasonable standards made known to the Ee at the time of engagement.(Sec6,RuleI,BookVI,IRR) Note:TheservicesofanEewhohasbeenengaged on probationary basis may be terminated only for 1. 2.

66

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
2. Voluntary agreement of parties (especially when the nature of work requiresalongerperiod) The Er gives the(Ee a second chance to pass the standards set. (Mariwasa Manufacturing, Inc. v. Leogardo, Jr.,G.R. No.74246,Jan.26,1989) Whenthesameisrequiredbythenature ofthework,e.g.theprobationaryperiod set for professors, instructors and teachers is 3 consecutive years of satisfactory service pursuant to DOLE ManualofRegulationsforPrivateSchools. When the same is established by companypolicy. AccordingtoAlcirascomputation,sinceArt.13of theCivilCodeprovidesthat1monthiscomposed of 30 days, 6 months totaling 180 days, then his th 180 daywouldfallonNov.16,96makinghima regular Ee before his termination. Is the contentionofthepetitionerinthecomputationof 6monthscorrect? A: No, the computation of the 6month probationary period is reckoned from the date of appointment up to the same calendar date of the th 6 monthfollowing.Inshort,sincethenumberof daysineachparticularmonthwasirrelevant,Alcira was still a probationary Ee when Middleby opted nottoregularizehimonNov.20,1996.(Alcirav. NLRC,G.R.No.149859,June9,2004)
Note: In Mitsubishi Motors v. Chrysler Phils. Labor Union,G.R.No.148738,June29,2004,theSCruledin thiswise: Applying Art. 13 of the Civil Code, the probationary periodof6monthsconsistsofthe180days.Thisisin conformity with par.1, Art. 13 of the Civil Code. The number of months in the probationary period, 6, should then be multiplied by the number of days withinamonth,30;hence,theperiodof180days.As clearly provided for the in last par. of Art. 13, in computingaperiod,thefirstdayshallbeexcludedand thelastdayincluded.Thus,the180dayscommenced on May 27, 1996, and ended on Nov. 23, 1996. The terminationletterdatedNov.25,1996wasservedon ParasonlyonNov.26,1996.Hewas,bythenalreadya regularEeofthecompanyunderArt.281oftheLC. How to resolve the conflict between the Alcira and MitsubishiMotorscase 1. Statutory Construction The latter case prevails(MitsubishiMotors);or 2. Rule more favorable to the Ee use the computation which would amount to grantingthesubjectEeregularemployment status (based on Constitutional and statutory provisions for the liberal interpretationoflaborlaws)

3.

4.

5.

Note:Periodofprobationshallbereckonedfromthe datetheEeactuallystartedworking.(Sec.6[b],RuleI, BookVI,IRR) Afterthelapseoftheprobationaryperiod(6months), Eebecomesregular. ProbationaryEesmaybedismissedbeforeendofthe probationaryperiod.

Q: May the Er and Ee validly agree to extend the probationaryperiodbeyond6months? A: Yes. Such an extension may be lawfully agreed upon,despitetherestrictivelanguageofArt.281.A voluntary agreement extending the original probationaryperiodtogivetheEeasecondchance topasstheprobationstandardsconstitutesalawful exception to the statutory limit. (Mariwasa Manufacturing,Inc.v.Leogardo,Jr.,G.R.No.74246, Jan.26,1989)
Note:Byvoluntarilyagreeingtosuchanextension,the Ee waived any benefit attaching to the completion of the period if he still failed to make the grade during the period of extension. (Mariwasa Mfg. Inc. v. Hon. Leogardo,G.R.No.74246,Jan.26,1989)

Q:Isdoubleorsuccessiveprobationallowed? A: No. The evil sought to be prevented is to discourage scheming employers from using the system of double or successive probation to circumvent the mandate of the law on regularization and make it easier for them to dismiss their employees. (Holiday Inn Manila v. NLRC,G.R.No.109114,Sep.14,2003) Q: Middleby Phils. Corp. hired Alcira as engg support services supervisor on a probationary basis for 6 months. Apparently unhappy with Alciras performance, Middleby terminated his services. Alcira contends that he was already a regular employee (Ee) when he was terminated.

Q:Whatisthepurposeoftheperiod? A: To afford the employer an opportunity to observe the fitness of a probationary employee at work. Q: In what instances is a probationary employee (Ee)deemedaregularEe? A: 1. If he is allowed to work after a probationaryperiod.(Art.281)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

67

UST GOLDEN NOTES 2011


2. If no standards, under which he will qualify as a regular Ee, are made known to him at the time of his engagement. (Sec.6[d],RuleI,BookVI,IRR) A: Yes, there is no dispute that as a probationary employee (Ee), Cruz had but limited tenure. Althoughonprobationarybasis,however,Cruzstill enjoys the constitutional protection on security of tenure.Duringhistenureofemployment,therefore, or before his contract expires, Cruz cannot be removedexceptforcauseasprovidedforbylaw. WhatmakesCruzdismissalhighlysuspiciousisthat it took place at a time when he needs only but a day to be eligible as a regular Ee. That he is competentfindssupportinhisbeingpromotedtoa lead gardener in so short span of less than 6 months. By terminating his employment or abolishing his position with but only one day remaining in his probationary appointment, the hotel deprived Cruz of qualifying as a regular Ee with its concomitant rights and privileges. (Manila Hotel Corp. v. NLRC, G.R. No. L53453, Jan. 22, 1986) Q:ColegioSanAgustin(CSA)hiredtheGelaJoseas a grade school classroom teacher on a probationary basis for SY 84 85. Her contract wasrenewedforSYs8586and8687.OnMar. 24, 87, the CSA wrote theGela that "itwouldbe in the best interest of the students and their families that she seek employment in another school or business concern for next school year". Notwithstandingthesaidnotice,theCSAstillpaid Gela her salary for April 15 to May 15, 1987. On April 6, 87, Gela wrote the CSA and sought reconsideration but she received no reply. Thereafter, she filed a complaint for illegal dismissal.WasGelaillegallydismissed? A: No. The Faculty Manual of CSA underscoresthe completionof3yearsofcontinuousserviceatCSA before a probationary teacher acquires tenure. Hence,theGelacannotclaimanyvestedrighttoa permanent appointment since she had not yet achieved the prerequisite 3year period under the Manual of Regulation for Private Schools and the FacultyManualofCSA. In the instant case where the CSA did not wish to renew the contract of employment for the next schoolyear,theGelahasnogroundtoprotest.She was not illegally dismissed. Her contract merely expired.(CSAv.NLRC,G.RNo.87333,Sep.6,1991) Q: During their probationary employment, 8 Ees wereberatedandinsultedbytheirsupervisor.In protest,theywalkedout.Thesupervisor shouted at them to go home and nevertoreportbackto work. Later, the personnel manager required themtoexplainwhytheyshouldnotbedismissed from employment for abandonment and failure toqualifyforthepositionsappliedfor.Theyfiled

Q: What are the grounds for terminating probationaryemployment? A: 1. 2. Just/authorizedcauses WhenhefailstoqualifyasaregularEein accordance with reasonable standards made known by the employer (Er) to the Eeatthetimeofhisengagement(ICMCv. NLRC,G.R.No.72222,Jan.30,1989)

Note:WhileprobationaryEesdonotenjoypermanent status, they are afforded the security of tenure protection of the Constitution. Consequently, they cannot be removed from their positions unless for cause. Such constitutional protection, however, ends upon the expiration of the period stated in their probationarycontractofemployment.Thereafter,the parties are free to renew the contract or not. (CSA v. NLRC,G.R.No.87333,Sep.6,1991)

Q: What are the limitations on the employers (Ers) power to terminate a probationary employmentcontract? A: 1. The power must be exercised in accordancewiththespecificreqtsofthe contract If a particular time is prescribed, the terminationmustbewithinsuchtimeand if formal notice is required, then that formmustbeused The Ers dissatisfaction must be real and in good faith, not feigned so as to circumventthecontractorthelaw Theremustbenounlawfuldiscrimination inthedismissal

2.

3.

4.

Note: The probationary employee is entitled to proceduraldueprocesspriortodismissalfromservice.

Q:R.L. CruzwasemployedasgardenerbyManila HotelonprobationstatuseffectiveSep.22,76. The appointment signed by Cruz provided for a 6 monthprobationaryperiod.OnMar.20,77,ora day before the expiration of the probationary period, Cruzs was promoted to lead gardener position. On the same day Cruz position was abolished by Manila Hotel allegedly due to economic reverses or business recession, and to salvage the enterprise from imminent danger of collapse.WasCruzillegallydismissed?

68

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
a complaint for illegal dismissal against their Er. AsaLA,howwillyouresolvethecase? A: AsaLAIwillresolvethecaseinfavorofthe 8 probationary Ees due to theff:: 1. Probationary Ees also enjoy security of tenure. (Biboso v. Victoria Milling, G.R. No. L44360,Mar.31,1977) InallcasesinvolvingEesonprobationary status, the Er shall make known to the Eeatthetimeheishired,the standards by which he will qualify for the positionsappliedfor. The filing of the complaint for illegal dismissal effectively negates the Ers theory of abandonment. (Rizada v. NLRC,G.R. No.96982,Sep.21,1999) The order togo homeandnottoreturn to work constitutes dismissal from employment. The8probationaryEeswereterminated without just cause and without due process
Regular employment does not mean permanent employment.AprobationaryEebecomesaregularEe after 6 months. A regular Ee may only be terminated forjust/authorizedcauses. The practice of entering into employment contracts which would prevent the workers from becoming regular should be struck down as contrary to public policy and morals. (Universal Robina Corp. v. Catapang,G.R.No.164736,Oct.14,2005)

2.

(a)Reasonableconnectionrule Q: What is the test to determine regular employment? A: 1. The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee (Ee) to the usual trade or business of the employer.Thetestiswhethertheformer is usually necessary or desirable in the usualbusinessortradeoftheEr.(DeLeon v.NLRC,G.R.No.70705,Aug.21,1989)
Note:Theconnectioncanbedeterminedby considering the nature of the work performedanditsrelationtotheschemeof the particular business or trade in its entirety. (Highway Copra Traders v. NLRC, G.R.No.108889,July30,1998)

3.

4.

5.

In view of the foregoing, I will order reinstatement to their former positions without loss of seniority rights with full backwages, plus damagesandattysfees.(2006BarQuestion) d.Kindsofemployment (1)Regularemployment Q:Whatisregularemployment? A: 1. An employment shall be deemed to be regularwheretheEehasbeenengagedto perform activities which are usually necessary or desirable in the usual businessortradeoftheEr,theprovisions of written agreements to the contrary notwithstanding and regardless of the oralagreementsoftheparties.(Sec.5[a], RuleI,BookVI,IRR) 2. Any Ee who has rendered at least one year of service, whether such service is continuousorbroken,shallbeconsidered aregularEewithrespecttotheactivityin which he is employed and his employment shall continue while such activity exists. (Sec. 5 [b], Rule I, Book VI, IRR)
Note:Regularizationisnotamanagementprerogative; rather,itisthenatureofemploymentthatdetermines it.Itisamandateofthelaw.(PALv.Pascua,G.R.No. 143258,Aug.15,2003)

2.

Also,theperformanceofajobforatleast a year is sufficient evidence of the jobs necessity if not indispensability to the business. This is the rule even if its performance is not continuous and merely intermittent. The employment is considered regular, but only with respect to such activity and while such activity exists. (Universal Robina Corp. v. Catapang, G.R. No. 164736, Oct. 14, 2005).

Note: The status of regular employment attaches to thecasualEeonthedayimmediatelyaftertheendof hisfirstyearofservice.Thelawdoesnotprovidethe qualificationthattheEemustfirstbeissuedaregular appointmentormustfirstbeformallydeclaredassuch before he can acquire a regular status. (Aurora Land ProjectsCorp.v.NLRC,G.R.No.114733,Jan.2,1997)

Q:Isthemodeofcompensationdeterminativeof regularemployment? A:No,whiletheEesmodeofcompensationwason a per piece basis the status and nature of their employment was that of regular Ees. (Labor

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

69

UST GOLDEN NOTES 2011


CongressofthePhilsv.NLRC,G.R.No.123938,May 21,1998) Q:WhendoesArt.280notapply? A:ItdoesnotapplyincaseofOFWs.
Note: Seafarers cannot be considered as regular Ees. Their employment is governed by the contracts they sign everytime they are hired and their employment terminated when the contract expires. Their employment is fixed for a certain period of time. (Ravago v. Esso Eastern Maritime Ltd., G.R. No. 158324,Mar.14,2005)

Q: Moises was employed by La Tondea at the maintenance section of its Engg Dept paid on a dailybasisthroughpettycashvouchers.Hiswork consistedmainlyofpaintingcompanybuildingand equipment and other odd jobs relating to maintenance.Afteraserviceofmorethan1year, Moises requested that he be included in the payroll of regular workers, instead of being paid throughpettycashvouchers.InsteadLaTondeas dismissed Moises and claimed that Moises was contracted on a casual basis specifically to paint certaincompanybuildingsandthatitscompletion terminated Moises employment. Can Moises be consideredasaregularEe? A: Yes, the law demands that the nature and entirety of the activities performed by the Ee be considered. Here, the painting and maintenance work given Moises manifests a treatment consistent with a maintenance man and not just a painter, for if his job was only to paint a building there would be no basis for giving him other work assignmentsinbetweenpaintingactivities. It is not tenable to argue that the painting and maintenance work of Moises are not necessary in La Tondeas business of manufacturing liquors; otherwise, there would be noneedfor the regular maintenancesectionofthecompanysenggdept. (DeLeonv.NLRC,G.R.No.70705,Aug.21,1989) Q: Honorio Dagui was hired by Doa Aurora Suntay Tanjangco in 1953 to take charge of the maintenance and repair of the Tanjangco apartments and residential bldgs. He was to perform carpentry, plumbing, electrical and masonry work. Upon the death of Doa Aurora Tanjangcoin82herdaughter,TeresitaTanjangco Quazon, took over the administration of all the Tanjangco properties, and dismissed Dagui. Is HonorioDaguiaregularemployee(Ee)? A: Yes. The jobs assigned to Dagui as maintenance man, carpenter, plumber, electrician and mason

were directly related to the business of the Tanjangcosaslessorsofresidentialandapartment bldgs. Moreover, such a continuing need for his servicesbytheTanjangcosissufficientevidenceof thenecessityandindispensabilityofhisservicesto theirbusinessortrade. DaguishouldlikewisebeconsideredaregularEeby the mere fact that he rendered service for the Tanjangcos for more than one year, that is, beginning 53 until 82, under Doa Aurora; and then from 1982 up to June 8, 91 under the daughter,foratotalof29and9yearsrespectively. Owing to Dagui's length of service, he became a regular Ee, by operation of law, one year after he was employed in 53 and subsequently in 82. (Aurora Land Projects Corp. v. NLRC, G.R. No. 114733,Jan.2,1997) Q: A total of 43 Ees who are deafmutes were hired and rehired on various periods by Far East BankandTrustCo.asmoneysortersandcounters through a uniformly worded agreement called EmploymentContractforHandicappedWorkers. The company disclaimed that these Ees were regular Ees and maintained among others that theyareaspecialclassofworkers,whowerehired temporarily under a special employment arrangement which was a result of overtures made by some civic and political personalities to theBank.ShouldthedeafmuteEesbeconsidered asregularEes? A: Yes. The renewal of the contracts of the handicappedworkersandthehiringofothersleads to the conclusion that their tasks were beneficial andnecessarytothebank.Italsoshowsthatthey were qualified to perform the responsibilities of theirpositions;theirdisabilitydidnotrenderthem unqualifiedorunfitforthetasksassignedtothem. The Magna Carta for Disabled Persons mandates that a qualified disabled Ee should be given the same terms and conditions of employment as a qualifiedablebodiedperson.ThefactthattheEes were qualified disabled persons necessarily removestheemploymentcontractsfromtheambit ofArt.80.SincetheMagnaCartaaccordsthemthe rights of qualified ablebodied persons, they are thus covered by Art. 280 of the LC. (Bernardo v. NLRC,G.R.No.122917,July12,1999) Q: CocaCola Bottlers Phils, Inc., (CCBPI) engaged the services of the workers as sales route helpersforaperiodof5months.After5months, theworkerswereemployedbythecompanyona daytoday basis. According to the company, the workerswerehiredtosubstituteforregularroute helperswheneverthelatterwouldbeunavailable

70

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
or when there would be an unexpected shortage of manpower in any of its work places or an unusually high volume of work. The practice was fortheworkerstowaiteverymorningoutsidethe gates of the sales office of the company, if thus hired,theworkerswouldthenbepaidtheirwages at the end of the day. Should the workers be consideredasregularemployees(Ees)ofCCBPI? A:Yes,therepeatedrehiringoftheworkersandthe continuing need for their services clearly attest to the necessity or desirability of their services in the regular conduct of the business or trade of the company.Thefactthattheworkershaveagreedto be employed on such basis and to forego the protection given to them on their security of tenure,demonstratenothingmorethantheserious problem of impoverishment of so many of our peopleandtheresultingunevennessbetweenlabor and capital. (Magsalin & CocaCola v. N.O.W.M., G.R.No.148492,May9,2003) Q: Metromedia Times Corp. entered, for the fifth time, into an agreement with Efren Paguio, appointing him to be an account executive of the firm. He was to solicit advertisements for The ManilaTimes,.Thewrittencontractbetweenthe parties provided that, You are not an Ee of the Metromedia Times Corp. nor does the company have any obligations towards anyone you may employ, nor any responsibility for your operating expenses or for any liability you may incur. The only rights and obligations between us are those setforthinthisagreement.Thisagreementcannot be amended or modified in any way except with the duly authorized consent in writing of both parties. Is Efren Paguio a regular employee of MetromediaTimesCorporation? A: Yes, he performed activities which were necessary and desirable to the business of the Er, and that the same went on for more than a year. He was an account executive in soliciting advertisements,clearlynecessaryanddesirable,for the survival and continued operation of the businessofthecorp. The corporation cannot seek refuge under the terms of the agreement it has entered into with EfrenPaguio.Thelaw,indefiningtheircontractual relationship,doesso,notnecessarilyorexclusively uponthetermsoftheirwrittenororalcontract,but alsoonthebasisofthenatureoftheworkofEfren has been called upon to perform. A stipulation in an agreement can be ignored as and when it is utilized to deprive the Ee of his security of tenure. (Paguiov.NLRC,G.R.No.147816,May9,2003) (2)ProjectEmployment Q:Whatisprojectemployment? A: Employment that has been fixed for a specific project or undertaking the completion for which hasbeendeterminedatthetimeofengagementof the employee (Ee). (Sec.5 [a], Rule I, Book VI, IRR). The period is not the determining factor, so that eveniftheperiodismorethan1year,theEedoes notnecessarilybecomeregular.
Note: Where the employment of a project Ee is extended long after the supposed project has been finished, the Ees are removed from the scope of projectEesandconsideredasregularEes. Repeated hiring on a projecttoproject basis is considerednecessaryanddesirabletothebusinessof theEr.TheEeisregular(Maraguinotv.NLRC,G.R.No. 120969,Jan.22,1998).However,repeatedhiringdoes not necessarily mean regular employment. (Filipinas PreFabricated Building Systems (FILSYSTEMS), Inc. v. Puente,G.R.No.153832,.March18,2005)

(a)Indicatorsofprojectemployment Q: What are the Indicators of Project Employment? A: Either one or more of the following circumstances,amongothers,maybeconsideredas indicatorsthatanemployeeisaprojectemployee. (Hanjinv.Ibaez,G.R.No.170181,June26,2008) a. The duration of the specific/identified undertaking for which the worker is engagedisreasonablydeterminable b. Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is madecleartotheemployeeatthetimeof hiring.
Note: Absent any other proof that the project employees were informed of their statusassuch,itwillbepresumedthatthey areregularemployees.

c.

d.

The work/service performed by the employee is in connection with the particular project/undertaking for which heisengaged The employee, while not employed and awaiting engagement, is free to offer his servicestoanyotheremployer

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

71

UST GOLDEN NOTES 2011


e. Theterminationofhisemploymentinthe particularproject/undertakingisreported to the Department of Labor and Employment Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees termination/dismissal/suspensions
projects.Thesefactsarethebasisinconsideringthem as regular Ees of the company. (Maraguinot v. NLRC, G.R.No.120969,Jan.22,1998) Members of a work pool from which a construction companydrawsitsprojectEes,ifconsideredEesofthe constructioncompanywhileintheworkpool,arenon projectEesorEesforanindefiniteperiod.Iftheyare employedinaparticularproject,thecompletionofthe projectoranyphasethereofwillnotmeanseverance of ErEe relationship. Unless the workers in the work poolarefreetoleaveanytimeandoffertheirservices to other Ers. (L.T. Datu & Co., Inc. v. NLRC, G.R. No. 113162,Feb.9,1996)

An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most constructioncompanies Q:Whataretherequisitesindeterminingwhether anemployee(Ee)isaprojectEe? A: 1. TheprojectEewasassignedtocarryouta specificprojectorundertaking,and 2. The duration and scope of which were specifiedatthetimetheEewasengaged for that project. (Imbuido v. NLRC, G.R. No.114734,Mar.31,2000) 3. The Ee must have been dismissed every aftercompletionofhisprojectorphase 4. Report to the DOLE of Ees dismissal on account of completion of contract (Policy Inst.No.20;D.O.19[1997]) Q:Whatisaproject? A: A "project" has reference to a particular job or undertaking that may or may not be within the regular or usual business of the Er. In either case, the project must be distinct, separate and identifiable from the main business of the Er, and its duration must be determined or determinable (PALv.NLRC,G.R.No.125792,Nov.9,1998). Q: Can a project employee(Ee) or a member of a workpoolacquirethestatusofaregularEe? A:Yes,whenthefollowingconcur: 1. There is a continuous rehiring of project Eesevenaftercessationofaproject;and 2. The tasks performed by the alleged project Ee are vital, necessary and indispensable to the usual business or tradeoftheemployer(Er).
Note: The length of time during which the Ee was continuously rehired is not controlling, but merely serves as a badge of regular employment. Enero and Maraguinot have been employed for a period of not lessthan2yearsandhavebeeninvolvedinatleast18

f.

Q:Whatisthedaycertainrule? A:Itstatesthataprojectemploymentthatendson a certain date does not end on an exact date but uponthecompletionoftheproject. Q:AreprojectEesentitledtoseparationpay? A: GR: Project Ees are not entitled to separation pay if they are terminated as a result of the completionproject. XPN: If the projects they are working on have notyetbeencompletedwhentheirservicesare terminated; project Ees also enjoy security of tenure during the limited time of their employment. (De Ocampo v. NLRC, G.R. No. 81077,June6,1990) Q: Roger Puente was hired by Filsystems, Inc., initiallyasaninstallerandeventuallypromotedto mobile crane operator, and was stationed at the companys premises. Puente claimed in his complaint for illegal dismissal, that his work was continuousandwithoutinterruptionfor10years, and that he was dismissed from his employment without any cause. Filsystems on its part averred that Puente was a project Ee in the companys variousprojects, and that after thecompletion of eachproject,hisemploymentwasterminated,and suchwasreportedtotheDOLE.IsRogerPuentea regularEe? A: No, Puente is a project Ee. The contracts of employment of Puente attest to the fact that he washiredforspecificprojects.Hisemploymentwas coterminouswiththecompletionoftheprojectsfor whichhehadbeenhired.Thosecontractsexpressly providedthathistenureofemploymentdepended on the duration of any phase of the project or on the completion of the construction projects. Furthermore, the company regularly submitted to the labor dept reports of the termination of services of project workers. Such compliance with

72

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
the reportorial reqt confirms that Puente was a projectEe. ThemererehiringofPuenteonaprojecttoproject basisdidnotconferuponhimregularemployment status.Thepracticewasdictatedbythepractical consideration that experienced construction workersaremorepreferred.Itdidnotchangehis status as a project Ee. (Filipinas PreFabricated Building Systems (FILSYSTEMS), Inc. v. Puente, G.R. No.153832,Mar.18,2005) (3)Seasonalemployment Q:Whatisseasonalemployment? A: Employment where the job, work or service to be performed is seasonal in nature and the employment is for the duration of the season. (Sec.5[a],RuleI,BookVI,IRR) An employment arrangement where an employee (Ee) is engaged to work during a particular season onanactivitythatisusuallynecessaryordesirable intheusualbusinessortradeoftheemployer(Er).
Note:ForseasonalEes,theiremploymentlegallyends upon completion of the project or the season. The termination of their employment cannot and should not constitute an illegal dismissal. (Mercado v. NLRC, G.R.No.79869,Sept.5,1991) One year duration on the job is pertinent in deciding whetheracasualEehasbecomeregularornot,butit isnotpertinenttoaseasonalorprojectEe.Passageof time does not make a seasonal worker regular or permanent.(Mercadov.NLRC,G.R.No.78969,Sep.5, 1991) During offseason, the relationship of ErEe is not severed;theseasonalEeismerelyconsideredonLOA without pay. Seasonal workers who are repeatedly engaged from season to season performing the same tasks are deemed to have acquired regular employment.(HaciendaFatimav.NationalFederation of Sugarcane WorkersFood and General Trade, G.R. No.149440,Jan.28,2003)

duration of the season does not detract from considering them in regular employment. Seasonal workers who are called to work from time to time and are temporarily laid off during offseason are not separated from service in that period, but merelyconsideredonleaveuntilreemployed. IftheEehasbeenperformingthejobforatleasta year,eveniftheperformanceisnotcontinuousand merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity and while such activity exists. (Benares v. Pancho, G.R. No. 151827, April 29,2005) Q: Carlito Codilan and Maximo Docena had been working for the rice mill for 25 years, while Eugenio Go, Teofilo Trangria and Reynaldo Tulin have been working for 22, 15, and 6 years respectively. The operations of the rice mill continue to operate and do business throughout the year even if there are only two or three harvest seasons within the year. This seasonal harvesting is the reason why the company considers the workers as seasonal Ees. Is the companycorrectinconsideringtheEesasseasonal Ees? A:No,thefactisthatbigricemillssuchastheone ownedbythecompanycontinuetooperateanddo businessthroughouttheyearevenifthereareonly twoorthreeharvestseasonswithintheyear.Itisa common practice among farmers and rice dealers tostoretheirpalayandtohavethesamemilledas the need arises. Thus, the milling operations are not seasonal. Finally, considering the number of years that they have worked, the lowest being 6 years,theworkershavelongattainedthestatusof regular Ees as defined under Art. 280. (Tacloban SagkahanRiceMillv.NLRC,G.R.No.73806,Mar.21, 1990) (4)Casualemployment Q:Whatiscasualemployment? A: 1. It is an employment where the Ee is engaged in an activity which is not usually necessary or desirable in the usual business or trade of the Er, provided: such employment is not project nor seasonal(Art.281).
Note:Butdespitethedistinctionbetweenregular and casual employment, every Ee shall be entitled to the same rights and privileges, and

Q:AreseasonalEesentitledtoseparationpay? A: When the business establishment is sold which effectively terminates the employment of the seasonal Ees, the latter would be entitled to separationpay. Q:Canseasonalemployees(Ees)beconsideredas regularEes? A: Yes. The fact that seasonal Ees do not work continuously for one whole year but only for the

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

73

UST GOLDEN NOTES 2011


shall be subject to the same duties as may be grantedbylawtoregularEesduringtheperiodof theiractualemployment.

A:
PROJECTWORKER Used to designate workers in the construction industry, hired to perform a specificundertakingfor a fixed period, co terminuswithaproject or phase thereof determinedatthetime of the engagement of theEe Tobeconsideredatrue project worker, it is required that a termination report be submitted to the nearest public employment office uponthecompletionof the construciton project. (Aurora Land Projects Corp. v. NLRC, G.R. No. 114733, Jan. 2,1997) CASUALor CONTRACTUAL WORKER

2.AnEeisengagedtoperformajob,workorservice whichismerelyincidentaltothebusinessoftheEr, andsuchjob,workorserviceisforadefiniteperiod made known to the Ee at the time of engagement (Sec.5[b],RuleI,BookVI,IRR)
Note:Ifhehasrenderedatleast1yearofservice, whethersuchserviceiscontinuousorbroken,he is considered as regular Ee with respect to the activity in which he is employed and his employment shall continue while such activity exists. ACasualEeisonlycasualfor1year,anditisthe passage of time that gives him a regular status. (KASAMMACCOv.CA,G.R.No.159828,April19, 2006) The purpose is to give meaning to the constitutionalguaranteeofsecurityoftenureand righttoselforganization.(Mercadov.NLRC,G.R. No.79868,Sep.5,1991)

Generic term used to designate any worker covered by a wrtitten contract to perform a specificundertakingfor afixedperiod

There is no such requirement for an ordinary contractual worker

Q: Yakult Phils. is engaged in the manufacture of cultured milk. The workers were hired to cut cogon grass and weeds at the back of the factory building used by Yakult. They were not required toworkonfixedscheduleandtheyworkedonany day of the week on their own discretion and convenience. The services of the workers were terminated by Yakult on less than 1year after. MaycasualortemporaryEesbedismissedbythe Er before the expiration of the 1year period of employment? A:Yes,theusualbusinessortradeofYakultPhils.is the manufacture of cultured milk. The cutting of the cogon grasses in the premises of its factory is hardly necessary or desirable in the usual business oftheYakult. TheworkersarecasualEes.Nevertheless,theymay be considered regular Ees if they have rendered services for at least 1 year. When, as in this case, theyweredismissedfromtheiremploymentbefore the expiration of the 1year period they cannot lawfully claim that their dismissal was illegal. (Capule, et al. v. NLRC, G.R. No. 90653, Nov. 12, 1990) Q: How is the project worker different from a casualorcontractualworker?Brieflyexplainyour answers.

(5)Fixedtermemployment;Requisitesforvalidity Q:Whatisthenatureoftermemployment? A: A contract of employment for a definite period terminates by its own terms at the end of such period. (Brent School v. Zamora, G.R. No. L48494, Feb.5,1990) Q: What is the decisive determinant in term employment? A: It is the day certain agreed upon by the parties for the commencement and the termination of theiremploymentrelation. Q:Whatisafixedtermemployment? A: It is an employment where a fixed period of employmentwasagreedupon: 1. Knowinglyandvoluntarilybytheparties, 2. Without any force, duress or improper pressure being brought to bear upon the employee(Ee)and 3. Absent any other circumstances vitiating hisconsent,or 4. WhereitsatisfactorilyappearsthattheEr andEedealtwitheachotheronmoreor less equal terms with no moral

74

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
dominance whatever being exercised by the former over the latter. (Brent School, Inc. v. Zamora, G.R. No. 48494, Feb. 5, 1990)
Note:AfixedperiodEedoesnotbecomearegularEe becausehisemploymentiscoterminuswithaspecific periodoftime. Ee hired on a fixedterm is regular if job is necessary and desirable to the business of Er. (Philips Semiconductor v. Fadriquela, G.R. No. 141717, April 2004)

Q: Is term employment a circumvention of the lawonsecurityoftenure? A: No, it is not a circumvention of the law if it followstherequisiteslaiddownbytheBrentruling. (Romaresv.NLRC,G.R.No.122327,Aug.19,1998) Q: Rene was hired as an athletic director in ChristOmarDivivaSchoolforaperiodoffiveyears. As such, he oversees the work of coaches and related staff involved in intercollegiate or interscholastic athletic programs. However, he wasnotrehiredupontheexpirationofsaidperiod. Rene questions his termination alleging that he was a regular employee and could not be dismissed without valid cause. Is he a regular employee? A: No. Rene was not a regular employee but an employeeunderafixedtermcontract.Whileitcan be said that the services he rendered were usually necessary and desirable to the business of the school, it cannot also be denied that his employmentwasforafixedtermoffiveyears.The decisive determinant in fixed term employment should not be the activities that the employee is calledupontoperform,butthedaycertainagreed upon by the parties for the commencement and termination of their employment relation (Brent SchoolInc.v.Zamora,G.R.No.48494,Feb.5,1990). Q: In the above mentioned facts, will Rene automatically become a regular employee if he is rehired by the school for another definite period ofemployment? A: No. The decisive determinant in term employmentisthedaycertainagreeduponbythe parties for the commencement and termination of their employment relationship, a day certain being understoodtobethatwhichmustnecessarilycome, although it may not be known when and not whethertheworkisusuallynecessaryanddesirable tothebusinessoftheemployer.

Q:DoestheReasonableConnectionRuleapplies in fixed term employment for a fixed term employee be eventually classified as regular employee? A: No. It should be apparent that this settled and familiar notion of a period, in the context of a contractofemployment,takesnoaccountatallof the nature of the duties of the employee; it has absolutely no relevance to the character of his duties as being usually necessary and desirable to theusualbusinessoftheemployer,ornot. Q: Dean Jose and other employees are holding administrativepositions asdean,dept heads and institutesecretaries.Intheimplementationofthe Reorganization, Retrenchment and Restructuring program effective Jan. 1, 1984, Dean Jose and other employees were retired but subsequently rehired.Theirappointmenttotheiradministrative positions as dean, dept heads and institute secretaries had been extended by the company fromtimetotimeuntiltheexpirationoftheirlast appointment on May 31, 1988. Were Dean Jose andotheremployeesillegallydismissed? A:No.Petitionersweredismissedbyreasonofthe expiration of their contracts of employment. Petitioners'appointmentsasdean,deptheadsand institutesecretarieswereforfixedtermsofdefinite periods as shown by their respective contracts of employment, which all expired on the same date, May 31, 1988. The validity of employment for a fixed period has been acknowledged and affirmed bytheSC.(Blancaflorv.NLRC,G.R.No.101013,Feb. 2,1993) e.Jobcontractingandlaboronlycontracting Q:Whenistherejobcontracting? A:Specifically,thereisjobcontractingwhere: 1. The contractor carries on an independent business and undertakes thecontract work on his own account under his own responsibility according to his own manner and method, free from the controlanddirectionofhisemployer or principal in all matters connected with the performance of the work exceptastotheresultsthereof;and 2. The contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

75

UST GOLDEN NOTES 2011


are necessary in the conduct of his business. Q:Whenistherelaboronlycontracting? A: A person is deemed to be engaged in labor onlycontractingwhere: 1. The person supplying workers to an employer does not have substantial capital or investment in the for of tools, equipment, machineries, work premises,amongothers;and 2. Theworkersrecruitedandplacedby suchpersonareperformingactivities which are directly related to the principal business of such employer. (Baguio v. NLRC, G.R. No. 7900408, Oct.4,1991) Q: What is a permissible job contracting or subcontracting? A: It refers to an arrangementwhereby aprincipal agrees to farm out with a contractor or subcontractor the performance of a specific job, work,orservicewithinadefiniteorpredetermined period, regardless of whether such job, work or, service is to be performed or completed within or outsidethepremisesoftheprincipal. Q: What are the conditions that must be met in order to be considered as permissible job contractingorsubcontracting? A:Thefollowingconditionsmustbemet: 1. The contractor carries on a distinct and independentbusinessandundertakesthe contract work on his account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principalinallmattersconnectedwiththe performanceofhisworkexceptastothe resultsthereof; 2. The contractor has substantial capital or investment;and 3. Theagreementbetweentheprincipaland contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to selforganization, security of tenure, and socialwelfarebenefits.(Gallegov.BAYER Phils.,Inc.,G.R.No.179807,July31,2009, J.CarpioMorales) Q:Whatarethefactorstoconsiderindetermining whethercontractoriscarryingonanindependent business? A: 1. 2. 3. 4. 5. 6. 7. 8. 9. Natureandextentofwork Skillrequired Termanddurationoftherelationship Right to assign the performance of specifiedpiecesofwork Controlandsupervisionofworker Power of employer to hire, fire and pay wages Controlofthepremises Duty to supply premises, tools, appliances,materialsandlabor Mode, manner and terms of payment. (Vinoya v. NLRC, G.R. No. 126286, Feb 2, 2000)

Note:Individualswithspecialskills,expertiseortalent enjoy the freedom to offer their services as independentcontractors.Anindividuallikeanartistor talent has a right to render his services without any one controlling the means and methods by which he performshisartorcraft.(Sonzavs.ABSCBN,G.R.No. 138051,June10,2004)

Q: Who are the parties in contracting and subcontracting? A: 1. Contractor/subcontractor Refers to any person engaged in a legitimate contracting or subcontractingarrangement. 2. Contractual Ee One who is employed by a contractor or subcontractor to perform or completeajob,work,orservicepursuanttoan arrangement between the latter and a principal.(D.O.1802) 3. PrincipalAnyErwhoputsoutorfarmsouta job, service, or work to a contractor or subcontractor. Q: Describe the relationship arising from contractualarrangements. A: There is a trilateral relationship between the principal, contractor and Ee. There exists a contractual relationship between the principal and thecontractororsubcontractortoitsEes. Q:WhataretherightsofacontractualEe(CEe)?

76

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
A: They shall be entitled to all the rights and privilegesduetoaregularEeasprovidedintheLC, asamendedtoincludetheff: 1. 2. Safeandhealthfulworkingconditions ServiceIncentiveLeave,restdays,OTpay, holiday pay, 13th month pay and separationpay Socialsecurityandwelfarebenefits; Selforganization, CBA and peaceful concertedactions Securityoftenure(Sec.8,DO1802) A: The principal shall be solidarily liable with the contractor in the event of any violation of any provision of the LC, including the failure to pay wages. This will not prevent the principal from claimingreimbursementfromthecontractor. Q: What does substantial capital or investment mean? A: It refers to the capital stocks and subscribed capitalization in case of corporations, tools, equipments, implement, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out.(D.O.1802)
Note:Thelawdoesnotrequirebothsubstantialcapital and investment in the form of tools, equipments, machineries, etc. This is clear from the use of conjunctionor.Ifthecontentionwastorequirethe contractor to prove that he has both capital and requisite investment, then the conjunction and should have been used. (Virginia Neri v. NLRC, G.R. No.97008,July21,1993)

3. 4.

5. Q: What are the effects of termination of CEe to separationpayandotherbenefits? A: 1. If prior to the expiration of the employment contract between the principal and the contractor or subcontractor The right of CEe to separation pay or other related benefits shall be governed by the applicable laws and jurisprudence on termination of employment 2. If the termination results from the expiration of the contract between the principal and the contractor or subcontractor The Ee shall not be entitled to separation pay. However, this isw/oprejudicetocompletionbonusesor other emoluments including retirement pay as may be provided by law or in the contract between the principal and the contractor. Q:Whenistheprincipaldeemedtheemployerof thecontractualemployee? A:Where: 1. Thereislaboronlycontracting 2. The contracting arrangement falls within theprohibitedacts Q:MaytheErorindirectErrequirethecontractor or subcontractor to furnish a bond equal to the cost of labor under contract to answer for the wages due to Ees in case the contractor or subcontractorfailstopaythesame? A: Yes. The Er or indirect Er may require the contractor or subcontractor to furnish a bond that willanswerforthewagesduetotheEes. Q:Whatistheliabilityoftheprincipal?

Q:Whatdoestherighttocontrolmean? A: It refers to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be usedinreachingthatend.(D.O.1802) Q:SMCandSunflowerCooperativeenteredintoa 1yr Contract of Services, to be renewed on a month to month basis until terminated by either party. Pursuant to the contract, Sunflower engagedprivaterespondentstorenderservicesat SMCs Bacolod Shrimp Processing Plant. The contract was deemed renewed by the parties everymonthafteritsexpirationonJan.1,94and respondentscontinuedtoperformtheirtasksuntil Sep.11,95.InJuly95,privaterespondentsfileda complaintbeforetheNLRC,prayingtobedeclared asregularEesofSMC,withclaimsforrecoveryof all benefits and privileges enjoyed by SMC rank and file Ees. Respondents subsequently filed an AmendedComplainttoincludeillegaldismissalas additionalcauseofactionfollowingSMCsclosure of its Bacolod Shrimp Processing Plant on which resulted in the termination of their services. SMC filed a Motion for Leave to File Attached Third rd PartyComplainttoimpleadSunfloweras3 Party Defendant. Are private respondents Ees of the independent cooperative contractor (Sunflower) oroftheSMC?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

77

UST GOLDEN NOTES 2011


A:ThecontentionofSMCholdsnobasis.Usingthe substantial capital doctrine and the right of control test, the Court found that the Sunflower had no substantial capital in the form of tools, equipment, machineries, work premises and other materials to qualify itself as an independent contractor. The lot, building, machineries and all otherworkingtoolsutilizedbyprivaterespondents in carrying out their tasks were owned and provided by SMC. In addition, the shrimp processing company was found to have control of the manner and method on how the work was done.Thus,thecomplainantsweredeemedEesnot of the cooperative but of the shrimp processing company. Sincerespondents who were engaged in shrimp processing performed tasks usually necessary or desirable in the aquaculture business ofSMC,theyshouldbedeemedregularEesofthe latter and as such are entitled to all the benefits and rights appurtenant to regular employment. (SMC vs. Prospero Aballa, et al., G.R. No. 149011, June28,2005,J.CarpioMorales) Q: What are the conditions before permitting job contracting? A: 1. The labor contractor must be duly licensed by the appropriate Regional OfficeoftheDOLE There should be a written contract between the labor contractor and his clientEr that will assure the Ees at least the minimum labor standards and benefitsprovidedbyexistinglaws. A:ItgivesrisetoconfusionastowhoistherealEr of the workers and who is liable to their claims. It alsodeprivesworkersoftheopportunitytobecome regularEes. Q: How do we determine if one is engaged in labor/jobonlycontracting? A:Thetesttodeterminewhetheroneisajob/labor onlycontractingistolookintotheelementsofajob contractor. If all the elements of a job contractor arepresent,thenheisajobcontractor.Absentone of the elements for a job contractor, then the personisalaboronlycontractor.
Note: It is the opinion of Dean Antonio H. Abad, Jr. thatthedecisivedeterminantinjobcontractingshould not be the fact that the contracted workers are performingactivitieswhicharedirectlyrelatedtothe mainbusinessof theprincipal,but that the principal has no right to control the conduct of the employees astothemeansemployedtoachieveanend;notthe character of the activities as being usually necessary ordesirableintheusualbusinessoftheemployer. It cannot be gainsaid that the activities of the contractedworkersarealwaysnecessaryordesirable; even that they are directly related to the main businessoftheprincipal.Theprimordialconsideration should be the control test. Hence, if the arrangement passes the control test, it is job contracting.Ifitfails,itislaboronlycontracting.

2.

Q:Distinguishbetweenjobcontractingandlabor onlycontracting A:
JOBCONTRACTING Liabilityislimited(shallbe solidarily liable with Er only when the Er fails to comply with reqts as to unpaid wages and other laborstandardsviolations) Permissible, subject only tocertainconditions The contractor has substantial capital or investment LABORONLY CONTRACTING Liability extends to all those provided under theLaborStandardslaw

Note:TheEesofthecontractororsubcontractorshall be paid in accordance with the provisions of the LC. (Art.106)

Q:Whatislaboronlycontracting? A:Itreferstoanarrangementwherethefollowing conditionsconcur: 1. The person supplying workers to an Er does not have substantial capital or investment in the form of tools, equipment, machineries, work, premises, amongothers,or Evenifsuchpersonhassubstantialassets, thesamearenotactuallyordirectlyused bytheEescontractedout; Theworkersrecruitedandplacedbysuch personareperformingactivitieswhichare directly related to the principal business ofsuchEr.

ProhibitedbyLaw Has no substantial capitalorinvestment

2.

3.

Q:Whyislaboronlycontractingprohibited?

Q: SMPC entered into a contract with Arnold for the milling of lumber as well as the hauling of waste woodproducts. The company provided the equipment and tools because Arnold had neither tools and equipment nor capital for the job. Arnold, on the other hand, hired his friends, relatives and neighbors for the job. Their wages were paid by SMPC to Arnold, based on their

78

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
productionorthenumberofworkersandthetime used in certain areas of work. All work activities andscheduleswerefixedbythecompany. 1.IsArnoldajobcontractor?Explainbriefly 2.Whoisliablefortheclaimsoftheworkershired byArnold?Explainbriefly. A: 1. No. In the problem given, Arnold did not have sufficient capital or investment for one. For another, Arnold was not free from the control and direction of SMPC because all work activities and schedules were fixed by the company. Therefore, Arnold is not a job contractor. He is engagedinlaboronlycontracting. SMPC is liable for the claims of the workers hired by Arnold. A finding that Arnold is a labor only contractor is equivalenttodeclaringthatthereexistan ErEe relationship between SMPC and workers hired by Arnold. This is so because Arnold is considered a mere agent of SMPC (Lim v. NLRC, G.R. No. 124630, Feb. 19, 1999); 2002 Bar Question) A:SubstantiveDueProcessprovidesthegroundfor disciplinaryaction,i.e.correctiveorretributive (a)Justcauses Q: What are the just causes for termination (Art. 282,LC)? A: 1. Serious misconduct or willful disobediencebytheemployee(Ee)ofthe lawful orders of his employer (Er) or representative in connection with his work 2. Gross and habitual neglect by the Ee of hisduties 3. Fraud or willful breach by the Ee of the trust reposed in him by his Er or duly organizedrepresentative 4. Commission of a crime or offense by the Ee against the person of his Er or any immediate member of his family or his dulyauthorizedrepresentative. 5. Othercausesanalogoustotheforegoing
Note:Theburdenofprovingthattheterminationwas foravalidorauthorizedcauseshallrestontheEr.(Art. 277[b])

2.

Q: What are the grounds for delisting of contractorsorsubcontractors? A: 1. Nonsubmissionofcontractsbetweenthe principal and the contractor or subcontractorwhenrequiredtodoso; 2. Nonsubmissionofannualreport; 3. Findings through arbitration that the contractor or subcontractor has engaged in laboronly contracting and other prohibitedactivities; 4. Noncompliancewithlaborstandardsand workingconditions.(Sec.16,D.O.1802) Q: What are the effects of finding that there is laboronlycontracting? A: A finding that a contractor is a laboronly contractorisequivalenttodeclaringthatthereisan employeremployee relationship between the principal and the employees of the laboronly contractor. (Assoc. AngloAmerican Tobacco Corp. v.Clave,G.R.No.50915,Aug.30,1990) 2.TERMINATIONOFEMPLOYMENT a.Substantivedueprocess Q:WhatisSubstantivedueprocess?

1.SeriousMisconduct Q:Whatisseriousmisconduct? A: It is an improper or wrong conduct; the transgressionofsomeestablishedanddefiniterule of action, a forbidden act, a dereliction of duty, willfulincharacter,andimplieswrongfulintentand not mere error in judgment. To be serious within the meaning and intendment of the law, the misconduct must be of such grave and aggravated character and not merely trivial or unimportant. (Villamor Golf Club v. Pehid, G.R. No. 166152, Oct. 4,2005) Q:Whataretheelementsofseriousmisconduct? A: 1. 2. 3. Itmustbeseriousorofsuchagraveand aggravatedcharacter; Must relate to the performance of the employees(Ee)duties; Eehasbecomeunfittocontinueworking for the employer. (Philippine Aeolus Automotive United Corp. v. NLRC, G.R. No.124617,April28,2000)

Q:Givesomeexamplesofseriousmisconduct. A:

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

79

UST GOLDEN NOTES 2011


1. 2. 3. 4. 5. Sexualharassment Fightingwithinthecompanypremises Uttering obscene, insulting or offensive wordsagainstasuperior Falsificationoftimerecords Grossimmorality 2. The disobeyed orders, regulations or instructionsoftheErmustbe: a. Reasonableandlawful b. SufficientlymadeknowntotheEe c. Must pertain to or be in connection with the duties which the Ee has beenengagedtodischarge.(CosepV. NLRC, G.R. No. 124966 June 16, 1998)

Q: Escando, upset at his transfer to the washer section, repeatedly uttered gago ka and threatened bodily harm to his superior Mr. Andres.Istheutteranceoftheobscenewordsand threats of bodily harm gross and willful misconduct? A: Yes. The repeated utterances by Escando of obscene, insulting or offensive words against a superiorwerenotonlydestructiveofthemoralsof his coemployees (Ees) and a violation of the company rules and regulations, but also constitute gross misconduct which is one of the grounds providedbylawtoterminatetheservicesofanEe. (Autobus Workers Union v. NLRC, G.R. No. 11753, June26,1998) Q:Samsonmadeinsultingandobsceneutterances towards the General Manager saying Si EDT bullshit yan, sabihin mo kay EDT yan among others during the Christmas party. Are the utterances towards the General Manager gross misconduct? A:TheallegedmisconductofSamsonwhenviewed in its context is not of such serious and grave characterastowarranthisdismissal.Samsonmade theutterancesandobscenegesturesataninformal Christmasgatheringanditistobeexpectedduring this kind of gatherings, where tongues are more oftenthannotloosenedbyliquorofotheralcoholic beverages,thatemployees(Ees)freelyexpresstheir grievancesandgripesagainsttheiremployers(Ers). Ees should be allowed wider latitude to freely express heir grievances andgripesagainst their Er. Ees should be allowed wider latitude to freely express their sentiments during these kinds of occasions which are beyond the disciplinary authority of the Er. (Samson v. NLRC, G.R. No. 121035,April12,2000) 2.WillfulDisobedience Q: When is willful disobedience of the Ers lawful ordersajustcausefortermination? A:2requisitesmustconcur: 1. The employees (Ees) assailed conduct musthavebeenwillfulorintentional,the willfulness being characterized by a wrongfulandperverseattitude.

Note: ThereisnolawthatcompelsanEetoaccepta promotion for the reason that a promotion is in the natureofagiftorreward,whichapersonhastheright torefuse.TheexerciseoftheEeoftherighttorefusea promotion cannot be considered in law as insubordinationorwillfuldisobedience.(PT&TCorp.v. CA,G.R.No.152057,Sep.29,2003)

Q: The company vehicle was brought out of the companypremiseswithoutauthorizationtwice.In the first instance the company opted not to implement any action against Dioks and instead issuedamemorandumreimindingDioksaswellas the security guards of the proper procedure. However, in the second instance the vehicle met anaccident.IsDioksguiltyofwillfuldisobedience even though he was not the one who personally brought the company vehicleout of the company premises and was merely a passenger in the secondincident? A: Yes. A rule prohibiting Ees from using company vehiclesforprivatepurposewithoutauthorityfrom managementisareasonableone.WhenDioksrode thecompanyvehiclehewasundoubtedlyawareof thepossibleconsequencesofhisactandtakinginto consideration his moral ascendancy over the securityguardsitwasincumbentuponhimnotonly toadmonishthembutalsotorefrainfromusingthe company car himself. (Family Planning Org. of the Phil.v.NLRC,G.R.No.75907,Mar.23,1992) Q: Escobins group were security guards based in Basilan. They were placed in floating status and were asked to report for reassignment in Metro Manila by PISI. Upon failure to report or respond to such directives they were ordered dismissed fromemploymentbyPISIforwillfuldisobedience. Did the failure to report to Manila amount to willfuldisobedience? A: The reasonableness of the rule pertains to the kind of character of directives and commands and tothemannerinwhichtheyaremade.Inthiscase, the order to report to the Manila office fails to meet this standard. The order to report to Manila was inconvenient, unreasonable, and prejudicial to Escobins group since they are heads of families residing in Basilan and they were not given

80

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
transportationmoneyorassuranceofavailabilityof workinManila.(Escobinv.NLRC,G.R.No.118159. April15,1998) 3.Negligence Q: When is negligence a just cause for termination? A:Whenitisgrossandhabitual. Q:WhenisthereGrossNegligence? A:Grossnegligenceimpliesawantorabsenceofor failure to exercise slight care of diligence of the entire absence of care it evinces thoughtless disregard of consequences without exerting any effort to avoid them. However, such neglect must not only be gross but habitual in character. (Judy Phils.v.NLRC,G.R.No.111934,April29,1998) Q:WhenisthereHabitualNeglectofduties? A: Habitual Neglect implies repeated failure to perform ones duties over a period of time, depending upon the circumstance. (JGB and Associatesv.NLRC,GRNo.10939,Mar.7,1996) Q: Antiola, as assorter of baby infant dress as for Judy Phils. erroneously assorted and packaged 2,680 dozens of infant wear. Antiola was dismissed from employment for this infraction. Does the single act of misassortment constitute grossnegligence? A:No.Suchneglectmustnotonlybegrossbutalso habitual in character. Hence, the penalty of dismissal is quite severe considering that Antiola committed the infraction for the first time. (Judy Phils.v.NLRC,G.R.No.111934.April29,1998) Q: Does the failure in performance evaluations amounttogrossandhabitualneglectofduties? A: As a general concept poor performance is equivalent to inefficiency and incompetence in the performance of official duties. The fact that an employees(Ees)performanceisfoundtobepoor or unsatisfactory does not necessarily mean that the Ee is grossly and habitually negligent of his duties.Grossnegligenceimpliesawantorabsence of or failure to exercise slight care of diligence or theentireabsenceorcare.Heevincesathoughtless disregard of consequences without exerting any effort to avoid them. (Eastern Overseas Employment Center Inc. v. Bea, G.R. 143023, Nov.29,2005) Q:Isinefficiencyajustcausefordismissal? 4.Abandonment Q: What is abandonment as a just cause for termination? A:Itmeansthedeliberate,unjustifiedrefusalofan employeetoresumehisemployment. Q:Whataretherequirementsforavalidfindingof abandonment? A: For a valid finding of abandonment, 2 factors mustbepresent: 1. Thefailuretoreportforwork,orabsence withoutvalidorjustifiablereason;and 2. A clear intention to sever ErEe relationship,withthe2ndelementasthe A: Yes, failure to observe prescribed standards of work,ortofulfillreasonableworkassignmentsdue to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either byfailingtocompletethesamewithintheallotted reasonable period, or by producing unsatisfactory results. (Buiser v. Leogardo, G.R. No. L63316, July 31,1984) This ground is considered analogous to those enumeratedunderArt.282.(SkippersUnitedPacific v.Magud,G.R.No.166363,Aug.15,2006) Q: Gamido was a quality control inspector of VH Manufacturing. Gamido was allegedly caught by thecompanyPres.DyJuancoofsleepingandwas dismissed from employment. Did Gamidos act of sleeping on the job constitute a valid cause of dismissal? A: Sleeping on the job as a valid ground for dismissalonlyappliestosecurityguardswhoseduty necessitatesthattheybeawakeandwatchfulatall times. Gambidos single act of sleeping further shows that the alleged negligence or neglect of duty was neither gross nor habitual. (VH Manufacturing v. NLRC, G.R. No. 130957, Jan. 19, 2000) Q:Givesomeformsofneglectofduty. A: 1. 2. Habitualtardinessandabsenteeism Abandonment: a. Failuretoreportforworkorabsence withoutjustifiablereason b. Clear intention to sever ErEe relationship manifested by some overt acts. (Labor et. al v. NLRC, GR No.110388,Sep.14,1995)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

81

UST GOLDEN NOTES 2011


more determinative factor, being manifested by some overt acts. (Sta. Catalina College s. NLRC, G.R. No. 144483,Nov.19,2003) Q:Howtoproveabandonment? A: To prove abandonment, the Er must show that the Ee deliberately and unjustifiably refused to resume his employment without any intention of returning. There must be a concurrence of the intention to abandon and some overt acts from which an Ee may be deduced as having no more intention to work. The law, however, does not enumerate what specific overt acts can be considered as strong evidence of the intention to sever the EeEr relationship. (Sta. Catalina College v.NLRC,G.R.No.144483.Nov.19,2003) Q: Mejila a barber at Windfield Barber Shop, had analtercationwithafellowbarberwhichresulted in his subsequent turning over the duplicate keys of the shop to the cashier and took away all his belongings there from and worked at different barbershop. Mejila then filed an illegal dismissal casebutdidnotseekreinstatementasarelief.Did Mejilacommitabandonment? A: Mejilas acts such as surrendering the shops keys, not reporting to the shop anymore without any justifiable reason, his employment in another barbershop,andthefilingofacomplaintforillegal dismissal without praying for reinstatement clearly showthattherewasaconcurrenceoftheintention toabandonandsomeovertactsfromwhichitmay be inferred that the Ee concerned has no more interest in working. (Jo v. NLRC, G.R. No. 121605, Feb.2,2000) 5.Fraud;BreachofTrust/LossofConfidence Q: When is breach of trust/loss of confidence a justcausefortermination? A: 1. Itappliesonlytocasesinvolving: a. Employees (Ees) occupying positions of trust and confidence (confidential and managerial Ees) to this class belong managerial Ees, i.e., those vested with the powers or prerogatives to lay down managementpoliciesand/ortohire, transfer, suspend, layoff, recall, discharge, assign or discipline Ees or effectively recommend such managerialactions b. Ees routinely charged with the care and custody of the employers (Ers) money or property to this class belong cashiers, auditors, property custodians,etc.,orthosewho,inthe normal and routine exercise of their functions, regularly handle significant amounts of money or property. (Mabeza v. NLRC, G.R. No. 118506April18,1997) The loss of trust and confidence must be basedonwillfulbreach.
Note: A breach is willful if it is done intentionally, knowingly, and purposely without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently (De la Cruz v. NLRC,G.R.No.119536,Feb.17,1997)

2.

3.

The act constituting the breach must be workrelated such as would show the Ee concerned to be unfit to continue working for the Er. (Gonzales V. NLRC, G.R.No.131653,Mar.26,2001) It must be substantial and founded on clearly established facts sufficient to warrant the Ees separation from employment.(SulpicioLinesInc.V.Gulde, G.R.No.149930,Feb.22,2002) Fraud must be committed against the Er orhisrepresentatives,e.g.: a. Falsificationoftimecards b. Theftofcompanyproperty c. Unauthorized use of company vehicle

4.

5.

Note: The treatment of rank and file personnel and managerial Ees in so far as the application of the doctrineoflossoftrustandconfidenceisconcernedis different. As regards managerial Ees, such as Caoile, mereexistenceofabasisforbelievingthatsuchEehas breached the trust of his Er would suffice for his dismissal. (Caoile v. NLRC, G.R. No. 115491, Nov. 24, 1998)

Q:Whataretheguidelinesforthedoctrineofloss ofconfidencetoapply? A: 1. Loss of confidence should not be simulated (reasonable basis for loss of trustandconfidence) Notusedforsubterfugeforcauseswhich are improper and/or illegal and unjustified Not arbitrarily asserted in the face of overwhelmingevidencetothecontrary

2.

3.

82

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
4. Must be genuine, not a mere afterthoughttojustifyearlieractiontaken inbadfaithand The Ee involved holds a position of trust andconfidence An investigation was promptly launched by the companys officers. Abel attended the meetings but claimed that he was neither asked if he needed the assistance of counsel nor allowed to properlypresenthisside.Bymemo,thecompany found Abel guilty of (1) fraud resulting in loss of trustandconfidenceand(2)grossneglectofduty, and was meted out the penalty of dismissal from employment. Was Abel validly dismissed for any ofthecausesprovidedforinArt.282oftheLC? A:No.The1strequisitefordismissalontheground of loss of trust and confidence is that the Ee concerned must be holding a position of trust and confidence.Abelwasacontractclaimsassistantat thetimeheallegedlycommittedtheactswhichled to its loss of trust and confidence. It is not thejob title but the actual work that the Ee performs. It was part of Abels responsibilities to monitor the performance of the companys contractors in relation to the scope of work contracted out to them. The2ndrequisiteisthattheremustbeanactthat wouldjustifythelossoftrustandconfidence.Loss of trust and confidence, to be a valid cause for dismissal,mustbebasedonawillfulbreachoftrust andfoundedonclearlyestablishedfacts.Thebasis for the dismissal must be clearly and convincingly established but proof beyond reasonable doubt is not necessary. The companys evidence against Abel fails to meet this standard. Its lone witness, Lupega,didnotsupporthisaffidavitandtestimony duringthecompanyinvestigationwithanypieceof evidence at all. It could hardly be considered substantial evidence. (Abel v. Philex Mining Corp., G.R.No.178976,July31,2009,J.CarpioMorales) 6.TerminationofEmploymentpursuanttoUnion SecurityClause Q:MSMGwasalocalunionaffiliatedwithULGWP a national federation. MSMG had a dispute with ULGWP over an imposition of a fine prompting MSMG to declare independence from ULGWP. Because of the dispute, ULGWP asked for the dismissal from employment of the officers of MDMG from the company by virtue of a union securityclauseintheCBA.Thecompanydismissed the officers. Does a union security clause absolve the company form observing the requirement of dueprocess? A:Althoughunionsecurityclausesembodiedinthe CBA may be validly enforced and dismissals pursuant thereto may likewise be valid, this does not erase the fundamental requirement of due process. An employer cannot merely rely upon a labor federations allegations in terminating union

5.

Note: The breach of trust must rest on substantial grounds and not on the Ers arbitrariness, whims, caprices, or suspicion; otherwise, the Ee would eternally remain at the mercy of the Er. It should be genuine and not simulated, nor should it appear as a mereafterthoughttojustifyearlieractiontakeninbad faith of a subterfuge for causes which are improper, illegal, or unjustified. It has never been intended to affordandoccasionforabusebecauseofitssubjective nature.Theremust,therefore,beanactualbreachof dully committed by the employee which must be established by substantial evidence. (Dela Cruz v. NLRC,G.R.No.119536,Feb.17,1997)

Q:MabezaachambermaidatHotelSupremewas terminated from employment because of her refusal to sign an affidavit attesting to their employers(Ers)compliancewithminimumwage and other labor standards. Mabeza filed a complaint for illegal dismissal against Hotel Supreme. As a defense, Hotel Supreme claimed that she abandoned her work and belatedly claimed loss of confidence as the ground for the dismissalofMabezabecauseshestolesomeofthe properties of her Er. Is loss of confidence a valid groundfordismissalofahotelchambermaid? A: No. Loss of confidence as a just cause for dismissalwasneverintendedtoprovideErswitha blankcheckforterminatingtheirEes.Evidently,an ordinarychambermaidwhohastosignoutforlinen and other hotel property from the property custodian each day and who has to account for each and every towel or bed sheet utilized by the hotel'sguestsattheendofhershiftwouldnotfall underanyofthesetwoclassesofEesforwhichloss ofconfidence,ifablysupportedbyevidence,would normallyapply.(Mabezav.NLRC,G.R.No.118506, April18,1997) Q: Abelardo Abel was first hired by Philex Mining Corp. in Jan. 88. He was later assigned to the companys Legal Dept as a Contract Claims Asst., andheldthepositionfor5yrspriortohistransfer totheMineEnggandDrawControlDeptwherein he was appointed Unit Head. In 02, he was implicated in an irregularity occurring in the subsidence area of the companys mine site at Benguet. His coworker Danilo, executed an affidavit known as the Subsidence Area Anomaly. The incidents in Lupegas affidavit supposedly took place when Abel was still a ContractClaimsAsst.atthecompanyslegaldept.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

83

UST GOLDEN NOTES 2011


officers expelled by the federation for allegedly committingactsofdisloyaltyand/orinimicaltothe interest of the federation and in violation of its constitutionandbylaws. The right of an Ee to be informed of the charges against him and to be given a reasonable opportunity to present his side in a controversy with either the company or his own union is not wiped away by a union security clause in a CBA. Evenassumingthatafederationhadvalidgrounds to expel union officers, due process requires that theseunionofficersbeaccordedaseparatehearing by the company. (MSMG v. Ramos, G.R. No. 113907,Feb.28,2000) 7.TotalityofInfractionsdoctrine Q:Whatisthetotalityofinfractionsdoctrine? A:Itisthetotality,notthecompartmentalizationof company infractions that the Ee has committed, which justifies the penalty of dismissal. (MERALCO v.NLRC,G.R.No.114129,Oct.24,1996)
Note: Where the Ee has been found to have repeatedly incurred several suspensions or warnings on account of violations of company rules and regulations, the law warrants their dismissal as it is akin to habitual delinquency. (Villeno v. NLRC, G.R. No.108153,Dec.26,1995)

9.AnalogousCases Q: What is required for an act to be included in analogouscasesofjustcausesoftermination? A: Must be due to the voluntary and/or willful act or omission of the employee (Nadura v. Benguet Consolidated,G.R.No.L17780,Aug.24,1962),e.g.: 1. 2. 3. 4. 5. 6. Violation of company rules and regulations Drunkenness Grossinefficiency Illegallydivertingemployersproducts Failure to heed an order not to join an illegalpicket Violation of safety rules and code of discipline

Q:Whatisthedoctrineofincompatibility? A:Wheretheemployeehasdonesomethingthatis contrary or incompatible with the faithful performance of his duties, his employer has a just cause for terminating his employment. (Manila ChauffeursLeaguev.BachrachMotorCo.,G.R.No. L47071,June17,1940) (b).AuthorizedCauses Q:Whataretheauthorizedcausesoftermination bytheemployer(Er)? A: 1. Installation of laborsaving devices (automation/robotics) Redundancy (superfluity in the performanceofaparticularwork)exists where the services of an employee (Ee) are in excess of what is reasonably demanded by the actual reqts of the enterprise.(WiltshireFileCo.,Inc.v.NLRC, G.R.No.82249,Feb.7,1991)
Note:Theredundancyshouldnothavebeen createdbytheEr.

Q: What are the guidelines to determine the validityoftermination? A:Gravityoftheoffense 1. Positionoccupiedbytheemployee 2. Degreeofdamagetotheemployer 3. Previousinfractionsofthesameoffense 4. LengthofService 8.CommissionofaCrime Q: Whatdo you meanby commission of a crime or offense as a just cause for termination of an Ee? A: It refers to an offense by the Ee against the person of his employer or any immediate member of his family or his duly authorized representative and thus, conviction of a crime involving moral turpitude is not analogous thereto as the element ofrelationtohisworkortohisemployerislacking.
Note: A criminal case need not be actually filed. Commission of acts constituting a crime itself is sufficient.

2.

3. Reorganization
Note: AnErisnotprecludedfromadopting a new policy conducive to a more economicalandeffectivemanagement,and thelawdoesnotrequirethattheErshould be suffering financial losses before he can terminate the services of the employee on thegroundofredundancy(DOLEPhil.,Inc.v. NLRC,G.R.No.L55413,July25,1983)

84

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
4. Retrenchment cutting of expenses and includesthereductionofpersonnel;Itisa management prerogative, a means to protectandpreservetheErsviabilityand ensure his survival. To be an authorized cause it must be affected in good faith (GF) and for the retrenchment, which is after all a drastic recourse with serious consequences for the livelihood of the Eesorotherwiselaidoff.
Note:Thephrasetopreventlossesmeans that retrenchment or termination from the service of some Ees is authorized to be undertaken by the Er sometime before the anticipated losses are actually sustained or realized. Evidently, actual losses need not setinpriortoretrenchment.(CajucomVIIv. TP Phils Cement Corp., et al, G.R. No. 149090,Feb.11,2005)

2.

3.

Purpose: To enable it to ascertain the verityofthecauseoftermination. Written notice to Ee concerned 30 days priortheintendeddateoftermination. Payment of separation pay Serious businesslossesdonotexcusetheErfrom complying with the clearance or report required in Art. 283 of the LC and its IRR beforeterminatingtheemploymentofits workers. In the absence of justifying circumstances, the failure of the Er to observe the procedural reqts under Art. 284 taints their actuations with bad faith if the layoff was temporary but then serious business losses prevented the reinstatement of respondents, the Ers should have complied with the reqts of writtennotice.

5.

6.

Closing or cessation of operation of the establishment or undertaking must be done in good faith and not for the purpose of circumventing pertinent labor laws. Disease must be incurable within 6 monthsandthecontinuedemploymentis prohibited by law or prejudicial to his health as well as to the health of his co Ees with a certification from the public healthofficerthatthediseaseisincurable within 6 months despite due to medicationandtreatment

Redundancy Q:Whataretherequisitesofavalidredundancy? A: 1. Written notice served on both the employees (Ees) and the DOLE at least 1 monthpriortoseparationfromwork 2. Payment of separation pay equivalent to at least 1 month pay or at least 1 month payforeveryyearofservice,whicheveris higher 3. Good faith in abolishing redundant position 4. Fair and reasonable criteria in ascertaining what positions are to be declaredredundant: a. Lesspreferredstatus,e.g.temporary Ee b. Efficiencyand c. Seniority Q:Ong,aSalesManagerofWiltshireFileCo.,Inc., was informed of the termination of his employment due to redundancy upon returning from a trip abroad. Ong maintains that there can be no redundancy since he was the only person occupyinghispositioninthecompany. IsthereredundancyeventhoughOngwastheonly oneoccupyinghisposition. A: Redundancy in an employers (Ers) personnel does not necessarily or even ordinarily refer to duplication of work. The characterization ofOngs services as no longer necessary or sustainable and therefore properly terminable, was an exercise of business judgment on the part of Wiltshire.

Q:Whatareotherauthorizedcauses? A: 1. TotalandpermanentdisabilityofEe 2. Validapplicationofunionsecurityclause 3. Expiration of period in term of employment 4. Completion of project in project employment 5. Failureinprobation 6. Relocationofbusinesstoadistantplace 7. Defianceofreturntoworkorder 8. CommissionofIllegalactsinstrike 9. Violationofcontractualagreement 10. Retirement Q: What are the procedural steps required in termination of an employee for authorized causes? A: 1. Written Notice to DOLE 30 days prior to theintendeddayoftermination.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

85

UST GOLDEN NOTES 2011


Furthermore, a position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors, such as over hiring of workers, decreased volume of business, or dropping of a particular product line or service activity previously manufacturedorundertakenbytheenterprise.The Erhasnolegalobligationtokeepinitspayrollmore employees that are necessary for the operation of itsbusiness.(WiltshireFileCo.,Inc.v.NLRC,G.R.No. 82249,Feb.7,1991) Retrenchment Q: What are the circumstances that must be presentforavalidretrenchment? A: 1. Thelossesexpectedshouldbesubstantial and not merely de minimis in extent If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character, the bona fide nature of the retrenchment would appeartobeseriouslyinquestion. Thesubstantiallossapprehendedmustbe reasonablyimminentassuchimminence can be perceived objectively and in good faith by the employer (Er). There should be a certain degree of urgency for the retrenchment. Itmustbereasonablynecessaryandlikely to prevent the expected losse The Er should have taken other measures prior or parallel to retrenchment to forestall losses such as cutting other costs than laborcosts. Theallegedlossesifalreadyrealized,and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence The reason for requiring this quantum of proof is readily apparent: any less exacting standard of proof would render too easy the abuse of this ground for termination of services of employees. (Lopez Sugar Corp. v. Federation of Free Workers, G.R. No. 7570001, Aug. 30, 1990)
Retrenchmentisameansoflastresort.

Q: What are the requisites of a valid retrenchment? A: 1. WrittennoticeservedonboththeEeand the DOLE at least 1 month prior to the intendeddateofretrenchment 2. Payment of separation pay equivalent to at least one month pay or at least 1/2 month pay for every year of service, whicheverishigher 3. Goodfaith 4. Proofofexpectedoractuallosses 5. The employer used fair and reasonable criteria in ascertaining who would be retained among the Ees, such as status, efficiency, seniority, physical fitness, age, and financial hardship of certain workers (Asian Alcohol Corp. v. NLRC, G.R. No. 131108,Mar.25,1999). Q: What are the criteria in selecting employees (Ees)toberetrenched? A:Theremustbefairandreasonablecriteriatobe usedinselectingEestobedismissedsuchas: 1. Lesspreferredstatus; 2. Efficiencyrating; 3. Seniority. (Phil. Tuberculosis Society, Inc. v.NationalLaborUnion,G.R.No.115414, Aug.25,1998) Q:Whatisthelastinfirstout(LIFO)rule? A: It applies in the termination of employment in thelineofwork.WhatiscontemplatedintheLIFO rule is that when there are two or more Ees occupying the same position in the company affectedbytheretrenchmentprogram,thelastone employed will necessarily be the first one to go. (Maya Farms Ees Organization v. NLRC, G.R. No. 106256,Dec.28,1994) Q: Is the seniority rule or "last in first out" policy to be strictly followed in effecting a retrenchmentorredundancyprogram? A: Again, in Asian Alcohol Corp., the SC stated that with regard the policy of "first in, last out" in choosing which positions to declare as redundantorwhomtoretrenchtopreventfurther business losses, there is no law that mandates suchapolicy.Thereasonissimpleenough.Ahost of relevant factors come into play in determining cost efficient measures and in choosing the Ees who will be retained or separated to save the

2.

3.

4.

Note: The losses which the company may suffer or is suffering may be proved by financial statements audited by independent auditors (Asian Alcohol Corporationv.NLRC,G.R.No.131108,Mar.25,1999)

86

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
companyfrom closingshop. In determining these issues, management plays a preeminentrole.Thecharacterizationofpositions as redundant is an exercise of business judgment on the part of the Er. It will be upheld as long as it passes the test of arbitrariness. (2001 Bar Question) Q: What is the difference between redundancy andretrenchment? A: In redundancy, company has no financial problems, unlike in retrenchment where the companywillsufferfinanciallosses. Q:PhilippineTuberculosisSociety,Inc.retrenched 116 Ees after incurring deficits amounting to 9.1 million pesos. Aside for retrenching some of its Ees, the company also implemented cost cutting measurestopreventsuchlossesforincreasingand minimizing it. The NLRC ruled that the retrenchmentwasnotvalidonthegroundthatthe Societydidnottakeseniorityintoaccountintheir selection. Was the retrenchment done by the Society not valid for its failure to follow the criterialaiddownbylaw? A: No. The Society terminated the employment of severalworkerswhohaveworkedwiththeSociety forgreatnumberofyearswithoutconsiderationfor the number of years of service and their seniority indicates that they had been retained for such a longtimebecauseofloyalandefficientservice.The burdenofprovingthecontraryrestontheSociety. (Phil. Tuberculosis Society, Inc. v. National Labor Union,G.R.No.115414,Aug.25,1998) Q: Due to mounting losses the former owners of Asian Alcohol Corporation sold its stake in the companytoPriorHoldings.Upontakingcontrolof thecompanyandtopreventlosses,PriorHoldings implementedareorganizationplanandothercost saving measures and one of them is the retrenchment of 117 employees (Ees) of which somearemembersoftheunionandthemajority held by nonunion members. Some retrenched workers filed a complaint for illegal dismissal alleging that the retrenchment was a subterfuge forunionbustingactivities. Was the retrenchment made by Asian Alcohol validandjustified? A: Yes. Even though the bulk of the losses were sufferedundertheoldmanagementandcontinued only under the new management ultimately the newmanagementofPriorHoldingswillabsorbsuch losses. The law gives the new management every right to undertake measures to save the company frombankruptcy.(AsianAlcoholCorp.v.NLRC,G.R. No.131108,Mar.25,1999) Closure Q:Whataretherequisitesofavalidclosure? A: 1. Written notice served on both the employees (Ees) and the DOLE at least 1 month prior to the intended date of closure Payment of separation pay equivalent to at least one month pay or at least 1/2 month pay for every year of service, whicheverishigher,exceptwhenclosure isduetoseriousbusinesslosses Goodfaith Nocircumventionofthelaw NootheroptionavailabletotheEr

2.

3. 4. 5.

Q: What is the test for the validity of closure or cessationofestablishmentorundertaking? A: The ultimate test of the validity of closure or cessationofestablishmentorundertakingisthatit must be bonafide in character. And theburden of proving such falls upon the Er. (Capitol Medical Center,Inc.vs.Dr.Meris,G.R.No.155098,Sep.16, 2005,J.CarpioMorales) Q: When is separation pay required in case of closure? A:Onlywhereclosureisnotduetoseriousbusiness losses nor due to an act of govt. (North Davao Mining Corp v. NLRC, G.R. No. 112546, Mar. 13, 1996;NFLv.NLRC,G.R.No.127718,Mar.2,2000) Q: Galaxie Steel Corp. decided to close down becauseofseriousbusinessloses.Itfiledawritten notice with the DOLE informing its intended closureandtheterminationofitsemployees(Ees). It posted the notice of closure on the corporate bulletinboard. Q: Does the written notice posted by Galaxie on the bulletin board sufficiently comply with the noticereqtunderArt.283oftheLC? A:No.Inordertomeetthepurpose,serviceofthe writtennoticemustbemadeindividuallyuponeach and every Ee of the company. However, the Court held that where the dismissal is for an authorized cause, noncompliance with statutory due process shouldnotnullifythedismissal,orrenderitillegal, orineffectual.Still,theemployershouldindemnify the Ee, in the form of nominal damages, for the violation of his right to statutory due process.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

87

UST GOLDEN NOTES 2011


(Galaxie Steel Workers Union v. NLRC, G.R. No. 165757,Oct.17,2006) AreEesentitledtoseparationpay? A: No. Galaxie had been experiencing serious financial losses at the time it closed business operations.Art.283oftheLCgovernsthegrantof separationbenefits"incaseofclosuresorcessation of operation" of business establishments "not due to serious business losses or financial reverses." Where, the closure then is dueto serious business losses,theLCdoesnotimposeanyobligationupon the employer to pay separation benefits. (Galaxie Steel Workers Unin v. NLRC, G.R. No. 165757, Oct. 17,2006) Q:RankandfileworkersofSIMEXfiledapetition fordirectcertificationandaffiliatedwithUnionof FilipinoWorkers(UFW).Subsequently,36workers of the companys lumpia dept and 16 other workersfromotherdeptswereeffectivelylocked out when their working areas were cleaned out. The workers through UFW filed a complaint for unfairlaborpracticesagainstthecompany.SIMEX then filed a notice of permanent shutdown/total closure of all units of operation in the establishment with the DOLE allegedly due to businessreversesbroughtaboutbytheenormous rejectionoftheirproductsforexporttotheUnited States. Wastheclosurewarrantedbytheallegedbusiness reverses? A: The closure of a business establishment is a ground for the termination of the services of any employee unless the closing is for the purpose of circumventingtheprovisionsofthelaw.But,while business reverses can be a just cause for terminating employees, they must be sufficiently proved.Inthiscase,theauditedfinancialstatement ofSIMEXclearlyindicatesthattheyactuallyderived earnings.Althoughtherejectionsmayhavereduced theirearningstheywerenotsufferinglosses.There is no question that an employer may reduce its workforcetopreventlossesbutitmustbeserious, actual and real otherwise this ground for termination would be susceptible to abuse by schemingemployerswhomightbemerelyfeigning business losses or reverses in their business ventures to ease out employees. (Union of Filipino Workersv.NLRC,G.R.No.90519,Mar.23,1992) Q: Carmelcraft Corporation closed it business operations allegedly due to losses of P1, 603.88 aftertheCarmelcraftEesUnionfiledapetitionfor certification election. Carmelcraft Union filed a complaint for illegal lockout and ULP with damages and claim for employment benefits. Werethelossesincurredbythecompanyenough tojustifyclosureofitsoperations? A: The determination to cease operations is a prerogative of management that is usually not interfered with by the State as no business can be required to continue operating at a loss simply to maintain the workers in employment. That would beatakingofpropertywithoutdueprocessoflaw whichtheemployerhasarighttoresist.Butwhere itismanifestthattheclosureismotivatednotbya desiretoavoidfurtherlossesbuttodiscouragethe workers from organizing themselves into a union for more effective negotiations with management, the State is bound to intervene. The losses of less than P2,000 for a corporation capitalized at P3 millioncannotbeconsideredseriousenoughtocall for the closure of the company. (Carmelcraft Corp. v.NLRC,G.R.No.9063435,June6,1990) Q: Is the transferee of the closed corporation requiredtoabsorbtheemployees(Ees)oftheold corporation? A: GR:Thereisnolawrequiringabonafidepurchaser of assets of an ongoing concern to absorb in its employ the Ees of the latter except when the transaction between the parties is colored or clothedwithbadfaith(BF).(SundownerDevtCorp. v.Drilon,G.R.No.82341,Dec.6,1989) XPNs: 1. Where the transferee was found to be merely an alter ego of the different mergingfirms.(FilipinasPortServices,Inc. v.NLRC,G.R.No.97237,Aug.16,1991) 2. Where the transferee voluntarily agrees to do so. (Marina Port Services, Inc. v. Iniego,G.R.No.77853,Jan.22,1990) Q:MarikinaDairyIndustries,Inc.decidedtosellits assets and close operations on the ground of heavylosses.Theunionsallegedthatthefinancial losses were imaginary and the dissolution was a schememaliciouslydesignedtoevadeitslegaland social obligations to its employees (Ees). The unionswantthebuyersofthecorporationsassets restrained to operate unless the members of the unions were the ones hired to operate the plant under the terms and conditions specified in the collectivebargainingagreements. Is the buyer of a companys assets required to absorbtheEesoftheseller? A:Thereisnolawrequiringthatthepurchaserofa companys assets should absorb its Ees and the

88

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
most that can be donefor reasons of public policy andsocialjusticewastodirectthatbuyersofsuch assetstogivepreferencetothequalifiedseparated Ees in the filling up of vacancies in the facilities of the buyer. (MDII Supervisors & Confidential Ees Assn(FFW)v.residentialAssistantonLegalAffairs, G.R.Nos.L4542123,Sep.9,1977) Q: What is the difference between closure and retrenchment? A:
CLOSURE Is the reversal of fortune of the Er whereby there is a complete cessation of business operations to preventfurtherfinancial drain upon an Er who cannotpayanymorehis Ees since business has alreadystopped. RETRENCHMENT Is the reduction of personnel for the purpose ofcuttingdownoncostsof operations in terms of salaries and wages resorted to by an Er because of losses in operation of a business occasionedbylackofwork andconsiderablereduction inthevolumeofbusiness. As in the case of retrenchment, however, for the closure of a business or a department due to serious business lossestoberegardedasan authorized cause for terminatingEes,itmustbe proven that the losses incurred are substantial and actual or reasonably imminent; that the same increasedthroughaperiod of time; and that the condition of the company is not likely to improve in thenearfuture. LC provides for the payment of separation package in case of retrenchment to prevent losses.

2.

With a certification by competent public health authority that the disease is incurable within 6 months despite due medicationandtreatment.(Solisv.NLRC, GRNo.116175,Oct.28,1996)

Note:Thereqtforamedicalcertificationcannot be dispensed with; otherwise, it would sanction theunilateralandarbitrarydeterminationbythe ErofthegravityorextentoftheEesillnessand thusdefeatthepublicpolicyontheprotectionof labor.(ManlyExpressvPayong,G.R.No.167462, Oct.25,2005) Termination of services for health reasons must beeffectedonlyuponcompliancewiththeabove requisites. The reqt for a medical certificate under Art. 284 of the LC cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the Er of the gravity or extent of the Ees illness and thus defeat the public policy on the protection of labor. (Sy et. al v. CA, G.R. No. 142293, Feb. 27, 2003)

One of the prerogatives of management is the decision to close the entire establishment or to close or abolish a department or section thereof for economic reasons, such as to minimize expenses and reducecapitalization.

DoesnotobligatetheEr for the payment of separation package if there is closure of business due to serious losses.

Disease Q:Whenisdiseaseagroundfordismissal? A:WheretheEesuffersfromadisease,and: 1. His continued employment is prohibited by law or prejudicial to his health or to the health of his coEes. (Sec.8, Rule I, BookVI,IRR)

Q: What is the procedure in terminating an employee(Ee)onthegroundofdisease? A: 1. Theemployer(Er)shallnot terminatehis employmentunless: a. There is a certification by a competentpublichealthauthority b. Thatthediseaseisofsuchnatureor at such a stage that it cannot be cured within a period of 6 months evenwithpropermedicaltreatment. 2. If the disease or ailment can be cured within the period, the Er shall not terminate the Ee but shall ask the Ee to takealeave.TheErshallreinstatesuchEe to his former position immediately upon therestorationofhisnormalhealth.(Sec. 8,RuleI,BookVI,IRR) Q:Isanemployeesufferingfromadiseaseentitled toreinstatement? A: Yes, provided he presents a certification by a competent public health authority that he is fit to return to work. (Cebu Royal Plant v. Deputy Minister,G.R.No.L58639,Aug.12,1987) Q: Is the requirements of a medical certificate mandatory? A:Yes,itisonlywherethereisapriorcertification fromacompetentpublicauthoritythatthedisease

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

89

UST GOLDEN NOTES 2011


afflictingtheemployeesoughttobedismissedisof suchnatureoratsuchstagethatitcannotbecured within 6 months even with proper medical treatment that the latter could be validly terminated from his job. (Tan v. NLRC, G. R. No. 116807,April14,1997)
Note: Termination from work on the sole basis of actual perceived or suspected HIV status is deemed unlawful.(Sec.35,R.A.8504HIV/AIDSLaw) Closures or cessation of operation not due to serious business losses/financial reverses Disease Equivalenttoatleast1month pay or at least 1 month pay for every year of service (if duetoseverefinanciallosses, noseparationpay Equivalenttoatleast1month pay or at least month pay for every year of service, whicheverishigher

Q: Anna Ferrer has been working as bookkeeperatGreatFoods,Inc.,whichoperatesa chain of highend restaurants throughout the country, since 1970 when it was still a small eatery at Binondo. In the early part of the year 2003, Anna, who was already 50 years old, reported for work after a weeklong vacation in herprovince.ItwastheheightoftheSARSscare, andmanagementlearnedthatthefirstconfirmed SARSdeathcaseinthePhils,abalikbayannurse from Canada, is a townmate of Anna. Immediately, a memorandum was issued by managementterminatingtheservicesofAnnaon thegroundthatsheisaprobablecarrierofSARS virus and that her continued employment is prejudicial to the health of her coEes. Is the actiontakenbytheemployer(Er)justified? A: The Ers act of terminating the employment of Anna is not justified. There is no showing that said employeeissickwithSARS,orthatsheassociatedor had contact with the deceased nurse. They are merely town mates. Furthermore, there is no certificationbyacompetentpublichealthauthority thatthediseaseisofsuchanatureorsuchastage thatitcannotbecuredwithinaperiodof6months evenwithpropermedicaltreatment.(Implementing Rules, Book VI, Rule 1, Sec. 8, LC) (2004 Bar Question) Q:Discusstherulesonseparationpaywithregard toeachcauseoftermination. A:
CAUSEOF TERMINATION Automation SEPARATIONPAY Equivalenttoatleast1month pay or at least 1 month pay for every year of service, whicheverishigher Equivalenttoatleast1month pay or at least 1 month pay for every year of service, whicheverishigher Equivalentto1monthpayor at least month pay for everyyearorservice

Note: A fraction of at least 6 months shall be considered1wholeyear. Thereisnoseparationpaywhentheclosureisdueto anactofthegovt.

Q: What is the purpose of the 2 notices served to theEeandDOLE1monthpriortotermination? A: 1. TogivetheEessometimetopreparefor the eventual loss of their jobs and their corresponding income, look for other employment and ease the impact of the lossoftheirjobs. 2. TogiveDOLEtheopportunitytoascertain the verity of the alleged cause of termination.(Phil.Telegraph&Telephone Corp. v. NLRC, G.R. No. 147002, April 15, 2005)
Note:NoticetoboththeEesconcernedandtheDOLE aremandatoryandmustbewrittenandgivenatleast 1 month beforethe intendeddate of retrenchment and the fact that the Ees were already on temporary layoff at the time notice should have been given to them is not an excuse to forego the 1month written notice. (Sebuguero v. NLRC, G.R. No.115394, Sep. 27, 1995)

Redundancy Retrenchment

Q: DAP Corp. ceased its operation due to the terminationofitsdistributionagreementwithIntl Distributors Corp. which resulted in its need to ceaseitsbusinessoperationsandtoterminatethe employment of its Ees. Marcial et al. filed a complaint for illegal dismissal and for failure to give the Ees written notices regarding the termination of their employment. On the other hand, DAP claims that their Ees actually knew of the termination therefore the written notices were no longer required. Are written notices dispensed with when the Ees have actual knowledgeoftheredundancy? A:TheEesactualknowledgeoftheterminationof a companys distributorship agreement with another company is not sufficient to replace the formal and written notice required by law. In the

90

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
writtennotice,theEesareinformedofthespecific date of the termination, at least a month prior to thedateofeffectivity,togivethemsufficienttime to make necessary arrangements. In this case, notwithstanding the Ees knowledge of the cancellationofthedistributorshipagreement,they remained uncertain about the status of their employment when DAP failed to formally inform themabouttheredundancy.(DAPCorp.v.CA,G.R. No.165811,Dec.14,2005) b.Proceduraldueprocess Q: What are the 2fold requirements of a valid dismissalforajustcause? A: 1. 2. Substantiveitmustbeforajustcause Procedural there must be notice and hearing 1. The reqt of notice is intended to inform the Ee concerned of the Ers intent to dismiss him and the reason for the proposeddismissal On the otherhand the reqt of hearing affords the Ee the opportunityto answer his Ers charges against him and accordingly to defend himself there from before dismissal is effected. (Salaw v. NLRCG.R.No.90786Sep.27,1991)
Note:Failuretocomplywiththereqtofthe 2 notices makes the dismissal illegal. The procedure is mandatory. (Loadstar Shipping Co.Inc.v.Mesano,G.R.No.138956,Aug.7, 2003)

2.

Q: What is the process to be observed by the employer (Er) for termination of the employment basedonanyofthejustcausesfortermination? A: 1. A written notice should be served to the Ee specifying the ground/s for termination and giving the said Ee reasonableopportunitytoexplain.
Note: This first written notice must apprise the Ee that his termination is being considered due to the acts stated in the notice. (Phil. Pizza Inc. v. Bungabong, G.R. No.154315,May9,2005)

Q: While it may be true that the Er enjoys wider latitude of discretion in terminating employees (Ees) should there exists valid and just cause, would this be sufficient for the Er to depart from givingtheEetherighttobeheard? A: Art. 277(b) of the LC mandates that an Er who seekstodismissanEemustaffordthelatterample opportunitytobeheardandtodefendhimselfwith theassistanceofhisrepresentativeifhesodesires. Expounding on this provision, the SC held that ample opportunity connotes every kind of assistancethatmanagementmustaccordtheEeto enable him to prepare adequately for his defense including legal representation. (UBIX Corp. vs. Bravo,G.R.No.177647,Oct.31,2008) Q: What is included in the opportunity to be heard? A:Theissuewasaddressedinanenbancdecision renderedbytheSupremeCourt.Witha141vote the Court through Chief Justice Corona held as follows: a) Ample opportunity to be heard in an employee dismissal case means any meaningful opportunity (verbal or written)giventotheemployeetoanswer thechargesagainsthimorherandsubmit evidence in support of the defences, whetherinahearing,conferenceorsome otherfair,justandreasonableway. A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similarcircumstancejustifyit. The ample opportunity to be heard standard in the Labor Code prevails over the hearing or conference requirement

2.

3.

A hearing or conference should be held during which the Ee concerned, with the assistanceofcounsel,iftheEesodesires, isgiventheopportunitytorespondtothe charge, present his evidence and present theevidencepresentedagainsthim. A written notice of termination If termination is the decision of the Er, it shouldbeservedontheEeindicatingthat upon due considerations of all the circumstance, grounds have been established to justify his termination, at leastonemonthpriortohistermination.
Note:Singlenoticeofterminationdoesnot comply with the requirements of the law. (Aldeguer & Co.,Inc. vs. Honeyline Tomboc, G.R.No.147633,July28,2008)

b)

Q:Whatisthepurposeofnoticeandhearing? A:

c)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

91

UST GOLDEN NOTES 2011


in the implementing rules and regulations. (Perez v. PT&T, G.R. No. 152048,Apr.7,2009) Q:Whohastheburdenofproof? A:Theburdenofproofrestsupontheemployerto showthatthedismissaloftheemployeeisforajust cause,andfailuretodosowouldnecessarilymean that the dismissal is not justified, consonant with theconstitutionalguaranteeofsecurityoftenure.
Note: Due process refers to the process to be followed; burden of proof refers to the amount of prooftobeadduced. Inmoneyclaims,theburdenofproofastotheamount to be paid the Ees rests upon the Er since he is in custodyofdocumentsthatwouldbeabletoprovethe amountdue,suchasthepayroll.

opportunity to explain his side and (2) another written notice indicating that, upon due consideration of all circumstances, grounds have been established to justify the Er's decision to dismisstheEe. There is however, no need for a hearing or conference. To be heard does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or pleadings. In other words, the existence of an actual, formal trial typehearing,althoughpreferred,isnotabsolutely necessary to satisfy the employees right to be heard. (Perez. v. Phil. Telegraph and Telephone Company,G.R.No.152048,April7,2009) Q: What are the guidelines in determining whetherpenaltyimposedonEeisproper? A: 1. 2. 3. 4. 5. Gravityoftheoffense PositionoccupiedbytheEe Degreeofdamagetotheemployer(Er) Previousinfractionsofthesameoffense Lengthofservice(ALUTUCPv.NLRC,G.R. No.120450,Feb.10,1999;PALv.PALEA, G.R.No.L24626,June28,1974)

Q:Whatisthedegreeofproof? A: In administrative or quasijudicial proceedings, substantial evidence is considered sufficient in determiningthelegalityofanemployersdismissal of an employee. (Pangasinan III Electric Cooperative,Inc.v.NLRC,G.R.No.89878,Nov.13, 1992) Q:PerezandDoriawereemployedbyPT&T.After investigation, Perez and Doria were placed on preventivesuspensionfor30daysfortheiralleged involvement in anomalous transactions in the shipping section. PT&T dismissed Perez and Doria fromserviceforfalsifyingdocuments.Theyfileda complaint for illegal suspension and illegal dismissal.TheLAfoundthatthe30dayextension of suspension and the subsequent dismissal were bothillegal.TheNLRCreversedtheLAsdecision,it ruledthatPerezandDoriaweredismissedforjust cause, that they were accorded due process and thattheywereillegallysuspendedforonly15days (without stating the reason for the reduction of the period of petitioners illegal suspension). On appeal,CAheldthattheyweredismissedwithout due process. Whether petitioners were illegally dismissed? A: Yes. The Er must establish that the dismissal is forcauseinviewofthesecurityoftenurethatEes enjoy under the Constitution and the LC. PT&T failedtodischargethisburden.PT&Tsillegalactof dismissingPerezandDoriawasaggravatedbytheir failure to observe due process. To meet the reqts ofdueprocessinthedismissalofanEe,anErmust furnish the worker with 2 written notices: (1) a written notice specifying the grounds for termination and giving to said Ee a reasonable

Q: Felizardo was dismissed from Republic Flour MillsSelectaicecreamCorporationfordishonesty and theft of company property for bringing out a pair of boots, 1 piece aluminum container and 15 pieces of hamburger patties. Is the penalty of dismissal commensurate with the offense committed? A: There is no question that the employer has the inherent right to discipline its Ees which includes therighttodismiss.Howeverthisrightissubjectto thepolicepoweroftheState.InthiscasetheCourt finds that the penalty imposedupon Felizardo was not commensurate with the offense committed consideringthevalueofthearticleshepilferedand thefactthathehadnopreviousderogatoryrecord during his 2 years of employment in the company. Moreover,itshouldalsobetakenintoaccountthat FelizardowasnotamanagerialorconfidentialEein whomgreatertrustisreposedbymanagementand from whom greater fidelity to duty is correspondinglyexpected.(ALUTUCPv.NLRC,G.R. No.120450,Feb.10,1999) (1)AgabonDoctrine Q:Ifthedismissalisforajustorauthorizedcause buttherequirementofdueprocessofnoticeand hearing were not complied with should the dismissalbeheldillegal?

92

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
A: No, In Agabon v. NLRC, G.R. No. 158693, Nov. 17,2004,itwasheldthatwhendismissalisforjust or authorized cause but due process was not observed,thedismissalshouldbeupheld. However, the employer (Er) should be held liable for noncompliance with the procedural reqts of dueprocess(e.g.damages).TheAgabonrulingwas modifiedbyJAKAFoodProcessingv.Pacot(G.R.No. 515378,Mar.28,2005)whereitwasheldthat: 1. Ifbasedonjustcause(Art.282)buttheEr failedtocomplywiththenoticereqt,the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputabletotheEe;and 2. If based on authorized causes (Art. 283) buttheErfailedtocomplywiththenotice reqt, the sanction should be stiffer because the dismissal process was initiated by Ers exercise of his managementprerogative. c.Reliefsforillegaldismissal (1)Reinstatementaspect Q:Whataretheremediesavailabletoanillegally dismissedemployee(Ee)? A:AnEewhoisunjustlydismissedfromworkshall byentitledto: 1. Reinstatement without loss of seniority rightsand 2. Full backwages. (Sec. 3, Rule I, Book VI, IRR) 3. Separationpayinlieuofreinstatement,if thelatterisnolongerfeasible Q:Whatisreinstatement? A:Itistherestorationoftheemployeetothestate from which he has been unjustly removed or separatedwithoutlossofseniorityrightsandother privileges. (a)Immediatelyexecutory:actualreinstatementand payrollreinstatement Q:Whataretheformsofreinstatement? A: 1. 2. Actual or physical the employee (Ee) is admittedbacktowork PayrolltheEeismerelyreinstatedinthe payroll
Note:AnorderofreinstatementbytheLAisnotthe same as actual reinstatement of a dismissed or separated Ee. Thus, until the Er continuously fails to actually implement the reinstatement aspect of the decision of the LA, their obligation to the illegally dismissedEe,insofarasaccruedbackwagesandother benefitsareconcerned,continuestoaccumulate.Itis only when the illegally dismissed Ee receives the separation pay (in case of strained relations) that it could be claimed with certainty that the ErEe realtionship has formally ceased thereby precluding thepossibilityofreinstatement.Inthemeantime,the illegally dismissed Ees entitlement to backwages, 13th month pay, and other benefits subsists. Until the paymentofseparationpayiscarriedout,theErshould notbeallowedtoremainunpunishedforthedelay,if not outright refusal, to immediately execute the reinstatementaspectoftheLAsdecision. Further, the Er cannot refuse to reinstate the illegally dismissed Ee by claiming that the latter had already foundajobelsewhere.Minimumwageearnersareleft with no choice after they are illegally dismissed from their employment, but to seek new employment in ordertoearnadecentliving.Surely,wecouldnotfault them for their perseverance in looking for and eventually securing new employment opportunities instead of remaining idle and waiting the outcome of the case. (TriadSecurity & AlliedServices, Inc. etal v. Ortega,G.R.No.160871,Feb.6,2006).

Q:DistinguishArts.223from279oftheLC? A:
Art.279 Presupposes that the judgment has already become final and executory. Consequently, there is nothing left to be done except the execution thereof. Art.223 Maybeavailedofassoon as the labor arbiter renders a judgment declaring that the dismissal of the Ee is illegal and ordering said reinstatement. It may be availed of even pending appeal

Note: An award or order for reinstatement is self executory.Itdoesnotrequiretheissuanceofawritof execution.(PioneerTexturizingCorp.v.NLRC,G.R.No. 118651,Oct.16,1997)

Q:PALdismissedGarcia,forviolatingPALsCode of Discipline for allegedly sniffing shabu in PALs Technical Center Toolroom Section. Garcia then filed for illegal dismissal and damages where the Labor Arbiter (LA) ordered PAL to immediately reinstate Garcia. On appeal, the NLRC reversed the decision and dismissed Garcias complaint for lackofmerit.Garciasmotionforreconsideration wasdeniedbytheNLRC.Itaffirmedthevalidityof the writ and the notice issued by the LA but suspended and referred the action to the

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

93

UST GOLDEN NOTES 2011


Rehabilitation Receiver for appropriate action. WhetherGarciamaycollecttheirwagesduringthe period between the LAs order of reinstatement pendingappealandtheNLRCdecisionoverturning thatoftheLA? A: Par. 3 of Art. 223 of the LC provides that the decision of the LA reinstating a dismissed or separatedEe,insofarasthereinstatementaspectis concerned, shall immediately be executory, pendingappeal. Even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on the part of the Er to reinstate and pay the wages of the dismissed Ee during the period of appeal until reversal by the higher court. On the other hand, if theEehasbeenreinstatedduringtheappealperiod and such reinstatement order is reversed with finality, the Ee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services duringtheperiod. In other words, a dismissed Ee whose case was favorably decided by the LA is entitled to receive wagespendingappealuponreinstatement,whichis immediatelyexecutory.Unlessthereisarestraining order,itisministerialupontheLAtoimplementthe order of reinstatement and it is mandatory on the Er to comply therewith. (Garcia vs. PAL, G.R. No. 164856,Jan.20,2009) Q: What is the effect of the reversal of LAs decisiontothereinstatedemployee(Ee) A: If the decision of the LA is later reversed on appeal upon the finding that the ground for dismissal is valid, then the Er has the right to require the dismissed Ee on payroll reinstatement to refund the salaries he/she received while the case was pending appeal, or it can be deducted from the accrued benefits that the dismissed Ee was entitled to receive from the employer under existing laws, CBA provisions, and company practices.However,iftheEewasreinstatedtowork during the pendency of the appeal, then the Ee is entitled to receive the compensation received for actual services rendered without need of refund (Citibank v. NLRC, G.R. No. 14273233, Dec. 4, 2007). Q: May a court order the reinstatement of a dismissedemployee(Ee)eveniftheprayerofthe complaintdidnotincludesuchrelief? A:Yes.SolongasthereisafindingthattheEewas illegally dismissed, the court can order the reinstatement of an Ee even if the complaint does not include a prayer for reinstatement, unless, of coursetheEehaswaivedhisrighttoreinstatement. Bylaw,anEewhoisunjustlydismissedisentitledto reinstatement among others. The mere fact that the complaint did not pray for reinstatement will not prejudice the Ee, because technicalities of law and procedure are frowned upon in labor proceedings (Pheschem Industrial Corp. v. Moldez, G.R.No.1161158,May9,2005). Q: What happens if there is an Order of Reinstatement but the position is no longer available? A: The employee (Ee) should be given a substantiallyequivalentposition.Ifnosubstantially equivalent position is available, reinstatement shouldnotbeorderedbecausethatwouldineffect compeltheemployertodotheimpossible.Insuch a situation, the Ee should merely be given a separation pay consisting of 1month salary for every year of service (Grolier Intl Inc. v. ELA, G.R. No.83523,Aug.31,1989) (2)Separationpayinlieuofreinstatement Q:Howcanseparationpaybeviewed? A: Under present laws and jurisprudence, separationpaymaybeviewedin4ways: 1. Inlieuofreinstatementinillegaldismissal cases,whereEeisorderedreinstatedbut reinstatementisnotfeasible. As Ers statutory obligation in cases of legal termination due to authorized causesunderArt.283and284oftheLC. Asfinancialassistance,asanactofsocial justiceandevenincaseoflegaldismissal underArt.282oftheLC. AsemploymentbenefitgrantedinCBAor companypolicy.(Poquiz,2005)

2.

3.

4.

Q: Is an illegally dismissed employee entitled to reinstatementasamatterofright? A:GR:Yes. XPNS: Proceeds from an illegal dismissal whereinreinstatementisorderedbutcannotbe carriedoutasinthefollowingcases: 1. Reinstatementcannotbeeffectedinview ofthelongpassageoftimeorbecauseof therealitiesofthesituation. 2. It would be inimical to the employers interest.Whenreinstatementisnolonger feasible.

94

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
3. 4. 5. 6. Whenitwillnotservethebestinterestof thepartiesinvolved. Company will be prejudiced by reinstatement. Whenitwillnotserveaprudentpurpose. When there is resultant strained relation (applies to both confidential and managerialemployees(Ees)only). When the position has been abolished (applies to both managerial, supervisory andrankandfileEes). asthatprovidedunderArt.283oftheLCincaseof retrenchmenttopreventlosses? A: No. The separation pay awarded to employees duetoillegaldismissalisdifferentfromtheamount ofseparationpayprovidedforinArt.283oftheLC. Prescinding from the above, Phil. Tobacco is liable for illegal dismissal and should be responsible for the reinstatement of the Lubat group and the payment of their backwages. However, since reinstatementisnolongerpossibleasPhil.Tobacco have already closed its Balintawak plant, members of the said group should instead be awarded normal separation pay (in lieu of reinstatement) equivalenttoatleastonemonthpay,oronemonth payforeveryyearofservice,whicheverishigher.It must be stressed that the separation pay being awarded to the Lubat group is due to illegal dismissal;hence,itisdifferentfromtheamountof separationpayprovidedforinArticle283incaseof retrenchmenttopreventlossesorincaseofclosure orcessationoftheErsbusiness,ineitherofwhich theseparationpayisequivalenttoatleastone(1) month or onehalf (1/2) month pay for every year ofservice,whicheverishigher.(Phil.TobaccoFlue Curing & Redrying Corp. v. NLRC, G.R. No. 127395, Dec.10,1998)

7.

Note:Insuchcases,itwouldbemoreprudenttoorder payment of separation pay instead of reinstatement. (Quijano v. Mercury Drug Corporation, G.R. No. 126561,July8,1998)

Q: Respondents are licensed drivers of public utility jeepneys owned by Moises Capili. When Capili assumed ownership and operation of the jeepneys, the drivers were required to sign individual contracts of lease of the jeepneys. The drivers gathered the impression that signing the contract was a condition precedent before they couldcontinuedriving.Thedriversstoppedplying their assigned routes and a week later filed with the Labor Arbiter a complaint for illegal dismissal praying not for reinstatement but for separation pay. Are the respondents entitled to separation pay? A:No.Whendriversvoluntarilychosenottoreturn to work anymore, they must be considered as having resigned from their employment. The common denominator of those instances where paymentofseparationpayiswarrantedisthatthe employeewasdismissedbytheemployer.(Capiliv. NLRC,G.R.117378,Mar.26,1997) Q: Two groups of seasonal workers claimed separation benefits after the closure of Phil. Tobacco processing plant in Balintawak and the transfer of its tobacco operations to Candon, Ilocos Sur. Phil. Tobacco refused to grant separation pay to the workers belonging to the first batch (Lubat group), because they had not been given work during the preceding year and, hence,werenolongerinitsemployatthetimeit closed its Balintawak plant. Likewise, it claims exemption from awarding separation pay to the secondbatch(Lurisgroup),becausetheclosureof its plant was due to "serious business losses," as defined in Art. 283 of the LC. Both labor agencies heldthattheLurisandLubatgroupswereentitled to separation pay equivalent to 1/2 month salary for every of service, provided that the Ee worked atleast1monthinagivenyear.Istheseparation pay granted to an illegally dismissed Ee the same

(a)Strainedrelationrule Q:Whatisthedoctrineofstrainedrelations? A:WhentheErcannolongertrusttheEeandvice versa, or there were imputations of bad faith to each other, reinstatement could not effectively serve as a remedy. This doctrine applies only to positionswhichrequiretrustandconfidence(Globe Mackayv.NLRC,G.R.No.82511,March3,1992).
Note: Under the circumstances where the employment relationship has become so strained to preclude a harmonious working relationship and that all hopes at reconciliation are naught after reinstatement, it would be more beneficial to accord theEebackwagesandseparationpay.

Q: What must be proven before the principle of strained relations can be applied to a particular case? A: 1. The Ee concerned occupies a position whereheenjoysthetrustandconfidence ofhisEr;and 2. That it is likely that if reinstated, an atmosphereofantipathyandantagonism may be generated as to adversely affect the efficiency and productivity of the Ee concerned. (Globe Mackay Cable & Wire

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

95

UST GOLDEN NOTES 2011


Corp. v. NLRC G.R. No. 82511, Mar. 3, 1992) Q: Does the doctrine of strained relationship alwaysbarreinstatementinallcases? A:No.Thedoctrineshouldbeappliedonacaseto casebasis,basedoneachcasespeculiarconditions and not universally. Otherwise, reinstatement can never be possible simply because some hostility is invariably engendered between the parties as a result of litigation. That is human nature. (Anscor Transportv.NLRC,G.R.No.85894,Sept.28,1990) Besides, no strained relations should arise from a valid and legal act of asserting one's right; otherwiseanEewhoshallasserthisrightcouldbe easilyseparatedfromtheservice,bymerelypaying his separation pay on the pretext that his relationship with his employer (Er) had already become strained. (Globe Mackay Cable & Wire Corp.v.NLRC,G.R.No.82511,Mar.3,1992) Q: Differentiate Art. 279 of the LC from Sec. 7 of R.A.10022. A:
Art.279,LC(Local Workers) Reinstatement Fullbackwagesfromthe timeofhiscompensation waswithheldfromhim uptothetimeofhis actualreinstatement. Sec.7,RA10022 (MigrantWorkers) FullReimbursementofhis placementfeewith interestof12%per annum. Note: The backwages to be awarded should not be diminished or reduced by earnings elsewhere during the period of his illegal dismissal. The reason is that the Ee while litigating the illegality of his dismissal must earn a living to support himself and his family. (Bustamantev.NLRC,G.R.No.111651,Mar.15,1996; Buenviajev.CA,G.R.No.147806,Nov.2002)

A: The payment of backwages is generally granted on the ground of equity. It is a form of relief that restorestheincomethatwaslostbyreasonofthe unlawfuldismissal;thegrantthereofisintendedto restoretheearningsthatwouldhaveaccruedtothe dismissedEeduringtheperiodofdismissaluntilitis determinedthattheterminationofemploymentis for a just cause. It is not private compensation or damages but is awarded in furtherance and effectuationofthepublicobjectiveoftheLC.Noris it a redress of a private right but rather in the nature of a command to the employer to make publicreparationfordismissinganEeeitherdueto the formers unlawful act or bad faith. (Tomas Claudio Memorial College Inc., v. CA, G.R. No. 152568,Feb.16,2004) Q: What is theperiod coveredby the payment of backwages? A: The backwages shall cover the period from the dateofdismissaloftheemployeeuptothedateof: 1. 2. Actual reinstatement, or if reinstatement isnolongerfeasible Finality of judgment awardingbackwages (Buhainv.CA,G.R.143709,July2,2002)

(a)Componentsoftheamountofbackwages Q: What is included in the computation of backwages? A:Theycoverthefollowing: 1. 2. 3.


Note: Facilities such as uniforms, shoes, helmets and ponchosshouldnotbeincludedinthecomputationof backwagesbecausesaiditemsaregivenforfree,tobe useonlyduringofficialtourofdutynotforprivateor personaluse. The award of backwages is computed on the basis of 30day month. (JAM Trans Co. v. Flores, G.R. No. L 63555,Mar.19,1993)

(3)Backwages Q:Whatarebackwages? A: It is the relief given to an employee (Ee) to compensate him for the lost earnings during the period of his dismissal. It presupposes illegal termination.
Note: Entitlement to backwages of the illegally dismissed Ee flows from law. Even if he does not ask forit,itmaybegiven.Thefailuretoclaimbackwages in the complaint for illegal dismissal is a mere procedural lapse which cannot defeat a right granted under substantive law. (St. Michaels Institute v. Santos,G.R.No.145280,Dec.4,2001)

Transportation and emergency allowances Vacation or service incentive leave and sickleave th 13 monthpay

Q:Whatisthebasisofawardingbackwagestoan illegallydismissedemployee(Ee)?

Q:Whatdoesthetermfullbackwagesmean?

96

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
A:TheLaborCodeasamendedbyR.A.6715points to "full backwages" as meaning exactly that, i.e., without deducting from backwages the earnings derived elsewhere by the concerned Ee during the periodofhisillegaldismissal.(Buenviajev.CA,G.R. 147806,Nov.12,2002) The underlying reason for this ruling is that the employee, while litigating the legality (illegality) of his dismissal, must still earn a living to support himselfandfamily,whilefullbackwageshavetobe paidbytheemployeraspartofthepricehehasto pay for illegally dismissing his Ee. (Bustamante v. NLRC,G.R.No.111651,Mar.15,1996) Q: Is an Ee entitled to backwages even after the closureofthebusiness? A: Yes. The closure of the business rendered the reinstatement of complainant to her previous position impossible but she is still entitled to the paymentofbackwagesuptothedateofdissolution orclosure.Anemployerfoundguiltyofunfairlabor practiceindismissinghisEemaynotbeorderedto pay backwages beyond the date of closure of businesswheresuchclosurewasduetolegitimate business reasons and not merely an attempt to defeat the order of reinstatement. (Pizza Inn v. NLRC,G.R.No.74531,June28,1988) Q:Whatarethecircumstancesthatpreventaward ofbackwages? A: 1. Dismissalforcause 2. Death, physical or mental incapacity of theemployee 3. Businessreverses 4. Detentioninprison (4)ConstructiveDismissal Q:Whatisconstructivedismissal? A:Aninvoluntaryresignationresortedtowhen: 1. 2. 3. continued employment becomes impossible,unreasonable,orunlikely thereisademotioninrankordiminution inpayor clear discrimination, insensibility or disdain by an Er becomes unbearable to the Ee. (Leonardo v. NLRC, G.R. No.125303,June16,2000) Q: Reynaldo was hired by Geminilou Trucking Service(GTS)asatruckdrivertohaulanddeliver productsofSanMiguelPureFoodsCompany,Inc. HewaspaidP400pertripandmade4tripsaday. HeclaimedthathewasrequestedbyGTStosigna contract entitled Kasunduan Sa PagUpa ng Serbisyowhichherefusedashefoundittoalter hisstatusasaregularEetomerelycontractual.He averred that on account of his refusal to sign the Kasunduan, his services were terminated promptinghimtofileacomplaintbeforetheNLRC for constructive dismissal against the GTS. Would Reynaldos refusal to sign the Kasunduan adequatelysupporthisallegationofconstructively dismissal? A:No.Thetestofconstructivedismissaliswhether a reasonable person in the employees (Ee's) position would have felt compelled to give up his job under the circumstances. In the present case, the records show that the lone piece of evidence submittedbyReynaldotosubstantiatehisclaimof constructive dismissal is an unsigned copy of the Kasunduan. This falls way short of the required quantumofproofwhichissubstantialevidence,or suchrelevantevidenceasareasonablemindmight accept as adequate to support a conclusion. Reynaldo was not dismissed, but that he simply failedtoreportforworkafteranaltercationwitha fellow driver. (Madrigalejos vs. Geminilou Trucking Service,G.R.No.179174,Dec.24,2008) Q: Flores, a conductor of JAM TransportationCo., Inc., had an accident where he had to be hospitalizedforanumberofdays.Uponreporting back to the company he was told to wait. For severaldaysthiscontinuedandhewaspromiseda routeassignmentwhichdidnotmaterialize.Upon speaking to Personnel Manager Medrano, he was toldthathewillbeacceptedbacktoworkbutasa newemployee.Floresrejectedtheofferbecauseit wouldmeanforfeitureofhis18yearsofserviceto the company. Is the offer for reinstatement as a newemployee(Ee)aconstructivedismissal? A: Yes. Flores reemployment as a new Ee would be very prejudicial to him as it would mean a demotion in rank and privileges, retirement benefitsashisprevious18yearsofservicewiththe company would simply be considered as non existent.Itamountstoconstructivedismissal.(JAM Transportation Co., Inc. v. Flores, G.R. No. 82829, Mar.19,1993) Q:Quinanolawastransferredfromthepositionof Executive Secretary to the Executive Vice PresidentandGeneralManagertotheProduction DeptasProductionSecretary.Quinanolarejected the assignment and filed a complaint for illegal

Note:Thereisnoformaldismissal.TheEeisplacedin a situation by the Er such that his continued employmenthasbecomeunbearable.Abandonmentis incompatiblewithconstructivedismissal.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

97

UST GOLDEN NOTES 2011


dismissal due to constructive dismissal. Did the transfer of Quinanola amount to constructive dismissal? A: No. Quinanolas transfer was not unreasonable since it did not involve a demotion in rank nor a changeinherplaceofworknoradiminutioninpay, benefits and privileges. It did not constitute a constructivedismissal.Furthermore,anemployees securityoftenuredoesnotgivehimavestedright inhispositionaswoulddeprivethecompanyofits prerogative to change his assignment or transfer himwherehewillbemostuseful.(PhilippineJapan Active Carbon Corp. v. NLRC, G.R. No. 83239, Mar. 8,1989) Q: Sangil was a utility man/assistant steward of thepassengercruisevesselCrownodysseyundera oneyear contract. Sangil suffered head injuries after an altercation with a Greek member of the crew. He informed the captain that he no longer intends to return aboard the vessel for fear that further trouble may erupt between him and the otherGreekcrewmembersoftheship.WasSangil constructivelydismissed? A:Yes.Thereisconstructivedismissalwheretheact of a seaman in leaving ship was not voluntary but was impelled by a legitimate desire for self preservation or because of fear for his life Constructive dismissal does not always involve diminutioninpayorrankbutmaybeinferredfrom an act of clear discrimination, insensibility or disdain by an Er may become unbearable on the partoftheEethatitcouldforecloseanychoiceby him except to forego his continued employment. (Sunga Ship Management Phils., Inc. v. NLRC, G.R. No.119080,April14,1998) (5)PreventiveSuspension Q:Whatispreventivesuspension? A:Duringthependencyoftheinvestigation,theEr may place the Ee under preventive suspension leading to termination when there is an imminent threatorareasonablepossibilityofathreattothe lives and properties of the Er, his family and representativesaswellastheoffenderscoworkers bythecontinuedserviceoftheEe. Q:Whatisthedurationofpreventivesuspension? A:Itshouldnotlastformorethan30days.TheEe shouldbemadetoresumehisworkafter30days.It can be extended provided the Ees wages are paid afterthe30dayperiod. This period is intended only for the purpose of investigating the offense to determine whether he istobedismissedornot.Itisnotapenalty.
Note: The Er may continue the period of preventive suspensionprovidedthathepaysthesalaryoftheEe. If more than 1 month, the Ee must actually be reinstated or reinstated in the payroll. Officers are liableonlyifdonewithmalice.

Q:CantorandPepitowerepreventivelysuspended pending application for their dismissal by Manila Doctors Hospital after being implicated by one Macatubal when they refused to help him when he was caught stealing xray films from the hospital.WasthepreventivesuspensionofCantor andPepitoproper? A: Where the continued employment of an Ee posesaseriousandimminentthreattothelifeand propertyoftheemployeroronhiscoEes,theEes preventive suspension is proper. In this case, no suchthreattothelifeandpropertyoftheErorof their coEes is present and they were merely implicated by the Macatubal. (Manila Doctors Hospitalv.NLRC,G.R.No64897,Feb.28,1985) (6)Quitclaim Q:Whatisaquitclaim?

A: It is a document executed by an employee in favor of the employer preventing the former from filing any further money claim against the latter arisingfromemployment. Q:Whataretheelementsofavalidquitclaim? A: Voluntarily entered into with full understanding of what the employee is doing 2. Representsareasonablesettlement Q:Whatconstitutesreasonablesettlement? A: Reasonable settlement requires that the consideration for the quitclaim is credible and reasonable.(Periquetv.NLRC,G.R.No.91298,June 22,1990) Q: Is dire necessity a ground to nullify a quitclaim? A: Dire necessity is not an acceptable ground for annulling the releases, especially since it has not beenshownthattheemployeeshadbeenforcedto executethem.Ithasnotevenbeenproventhatthe considerations for the quitclaims were 1.

98

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
unconscionably low and that the petitioners had beentrickedintoacceptingthem.Furthermore,no deception has been established on the part of the employer that would justify the annulment of the employees quitclaim. (Veloso v. DOLE, G.R. No. 87297,August5,1991.) (7)Terminationofemploymentbyemployee Q:Howcananemployee(Ee)terminatehisservice withhisemployer(Er)? A: 1. Without just cause by serving written notice on the Er at least 1 month in advance. The Er upon whom no such notice was served may hold the Ee liable fordamages. 2. WithjustcauseanEemayputanendto employment without serving any notice on the Er for any of the following just causes: a. Serious insult by the Er or his representative on the hour and personoftheEe b. Inhuman and unbearable treatment accorded the Ee by the Er or his representative c. Commissionofacrimeoroffenseby the Er or his representative against the person of the Ee or any of the immediatemembersofhisfamily d. Othercausesanalogoustoanyofthe foregoing Q:Whenisemploymentnotdeemedterminated? A: 1. Bona fide suspension of the operation of abusinessorundertakingforaperiodnot exceeding6months,or 2. The fulfillment by the Ee of a military or civic duty shall not terminate employment.
Note:Inallsuchcases,theErshallreinstatetheEeto hisformerpositionwithoutlossofseniorityrightsifhe indicateshisdesiretoresumehisworknotlaterthan1 monthfromtheresumptionofoperationsofhisEror fromhisrelieffromthemilitaryorcivicduty.(Art.286)

A: Itistheresultofabilateralactoftheparties,a voluntary agreement between the employer and the employees whereby the latter after reaching a certain age agrees and/or consents to sever his employment with the former. (Soberano v. Sec. of Labor, G.R. Nos. L4375356 and L50991, Aug. 29, 1980) Q:Whatarethekindsofretirementschemes? A: 1. Compulsoryandcontributoryinnature; 2. One set up by the agreement between theemployer(Er)andemployees(Ees)in the CBA or other agreements between them (other applicable employment contract); 3. One that is voluntarily given by the Er, expressly as announced company policy or impliedly as in the failure to contest the Ees claim for retirement benefits. (Marilyn Odchimar Gertach v. Reuters Limited, Phils., G.R. No. 148542, Jan. 17, 2005) Q: Who are covered by the LC provisions on retirement? A: GR:Allemployees(Ees)intheprivatesector: 1. Regardless of their position, designation orstatus;and 2. Irrespectiveofthemethodbywhichtheir wages are paid. (Sec.1, Rule II, Book VI, IRR) XPN: 1. Ees of the National Govt and its political subdivisions,includingGOCCs(iftheyare coveredbytheCivilServiceLaw) 2. Domestic helpers and persons in the personalserviceofanother 3. Ees of retail, service, and agricultural establishments or operations employing notmorethan10Ees(Sec.2,RuleII,Book VI,IRR) Q:Whatistheretirementage? A:Itistheageofretirementthatisspecifiedinthe: 1. CBA;or 2. Employmentcontract;or 3. Retirement plan (Sec. 3, Rule II, Book VI, IRR). 4. Optional retirement age for underground mining employees: 5060 years provided theyhaveatleastservedforaperiodof5 years.(Art.285asamendedbyR.A.8558)

3.RETIREMENTPAYLAW a.Coverage,Exclusionsfromcoverage,Components ofretirementpay Q:Whatisretirement?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

99

UST GOLDEN NOTES 2011


Q:Whatistheretirementageintheabsenceofa retirementplanorotherapplicableagreement? A: 1. Optional60yearsold/5yearsinservice (includes authorized absences, vacations, regular holidays, mandatory military or civicservice)
Note:Theoptiontoretireuponreachingthe ageof60yearsormorebutnotbeyond65 istheexclusiveprerogativeoftheemployee (Ee)ifthereisnoprovisiononretirementin a CBA or any other agreement or if the employer (Er) has no retirement plan. (R.A. 7641;Capiliv.NLRC,G.R.No.117378,Mar. 26,1997)

6 months being considered as 1 whole year. (Sec.5.1,RuleII,BookVI,IRR) Q: What comprises month salary or retirement pay? A:Unlesspartiesprovideforbroaderinclusions: 1. 15dayssalarybasedonlatestsalaryrate; 2. Cash equivalent of not more than 5 days of service incentive leaves (22.5/year of service) 3. 1/12ofthe13thmonthpay 4. Allotherbenefitsasmaybeagreedupon by the employer and employee (Ee). (Sec.5.2,RuleII,BookVI,IRR)
Note:UnderSec.26ofR.A.No.4670,otherwiseknown as Magna Carta for Public School Teachers, public school teachers having fulfilled the age and service reqtsoftheapplicableretirementlawsshallbegiven one range salary raise upon the retirement, which shallbethebasisofthecomputationofthelumpsum oftheretirementpayandmonthlybenefitthereafter.

2.

Compulsory 65 years old, regardless of yearsofservice(companyisnotboundto dismissEe;itisautomatic).(Sec.4,RuleII, BookVI,IRR)


Note: Retirement benefits, where not mandated by law, may be granted by agreement of the Ees and their Er or as a voluntary act on the part of the Er. Retirement benefits are intended to help theEeenjoytheremainingyearsofhislife, lessening the burden of worrying for his financialsupport,andareaformofreward forhisloyaltyandservicetotheEr(Aquino v.NLRC,G.R.No.87653,Feb.11,1992)

Q: Is compulsory retirement age below 60 allowed? A: Yes. Art. 287 permits Er and Ee to fix the applicableretirementageatbelow60.Thesameis legalandenforceablesolongasthepartiesagreeto begovernedbysuchCBA.(PantrancoNorthExpress v.NLRC,G.R.No.95940,July24,1996) Q: What is the rule for extension of service of retiree upon his reaching the compulsory retirementage? A:Uponthecompulsoryretirementofanemployee (Ee) or official in the public or private service, his employment is deemed terminated. The matter of extension of service of such Ee or official is addressed to the sound discretion of the Er. (UST FacultyUnionv.NLRC,G.R.No.89885,Aug.6,1990) Q:Whatareretirementbenefits? A: In the absence of an applicable agreement or retirement plan A retiree is entitled to a retirement pay equivalent to at least month salaryforeveryyearofservice,afractionofatleast

Q: Can Art. 287 of the LC (on retirement) as amendedbyR.A.7641beappliedretroactively? A:Yes,provided: 1. The claimant for retirement benefits was stilltheemployeeoftheemployeratthe timethestatutetookeffect;and 2. The claimant was in compliance with the reqts for eligibility under the statute for suchretirementbenefits.(PSVSIAv.NLRC, G.R.No.115019,April14,1997) Q: Are the provisions of the retirement plan bindingaspartoftheemploymentcontract? A: Yes. The retirement plan forms part of the employmentcontractsinceitismadeknowntothe Ees and accepted by them, and such plan has an expressprovisionthatthecompanyhasthechoice to retire an Ee regardless of age, with 20 years of service, said policy is within the bounds contemplated by the LC. Moreover, the manner of computationofretirementbenefitsdependsonthe stipulation provided in the company retirement plan. (Progressive Devt Corporation v. NLRC, G.R. No.138826,Oct.30,2000) Q: Rivera was employed as senior manufacturing pharmacistbyUNILAB.ShelaterbecameDirector of UNILAB's Manufacturing Division. UNILAB adopted a comprehensive retirement plan (the plan or retirement plan) supported by a retirement fund. A member is compulsorily retireduponreachingage60orhascompleted30

100

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

TERMINATION OF EMPLOYMENT
years of service, whichever comes first. Rivera completed30yearsofserviceandUNILABretired herpursuanttothetermsoftheplan,shereceived the benefits in 88. At Rivera's request, UNILAB allowedhertocontinueworkingforthecompany. She continued working beyond the compulsory separation from service that resulted from her retirement.From1993to1994,Riveraservedasa personal consultant under contract for UNILABs sister companies which assigned Rivera to render service involving UNILAB.In 1992, the company amended its retirement plan, providing, among others, for an increase in retirement benefits. Rivera asked that her retirement benefits be increased in accordance with the amended retirementprogram.WhetherRiveraisentitledto theadditionalretirementbenefitsoftheamended retirementplan? A: No. Whether these terms included renewed coverage in the retirement plan is an evidentiary gap that could have been conclusively shown by evidenceofdeductionsofcontributionstotheplan after1988.Twoindicators,however,tellusthatno suchcoveragetookplace.Thefirstisthattheterms of the retirement plan, before and after its 1992 amendment,continuedtoexcludethosewhohave rendered 30 years of service or have reached 60 years of age. Therefore, the plan could not have coveredher.Thesecondistheabsenceofevidence of, or of any demand for, any reimbursement of whatRiverawouldhavepaidascontributionstothe plan had her coverage and deductions continued after 1988. Thus, the Court concludes that her renewed service did not have the benefit of any retirement plan coverage. (Rivera v. United Laboratories,Inc.,G.R.No.155639,April22,2009) Q:Isaspecialretirementplandifferentfromthose contemplatedundertheLCasagreeduponbythe partiesvalid? A:Yes.Apilotwhoretiresafter20yearsofservice or after flying 20,000 hours would still be in the prime of his life and at the peak of his career, comparedtoonewhoretiresattheageof60years old. Based on this peculiar circumstance that PAL pilots are in, the parties provided for a special scheme of retirement different from that contemplated in the LC. Conversely, the provisions of Art. 287 of the LC could not have contemplated thesituationofPAL'spilots.Rather,itwasintended for those who have no more plans of employment after retirement, and are thus in need of financial assistanceandrewardfortheyearsthattheyhave rendered service. (PAL v. Airline Pilots Assn of the Phils.,G.R.No.143686,Jan.15,2002) Q: In 55, Hilaria was hired as a grade school teacher at the Sta. Catalina College.In 70, she applied for and was granted a 1 yr LOA without pay due to the illness of her mother.After the expiration in 71 of her LOA, she had not been heardfrombySta.Catalina.Inthemeantime,she was employed as a teacher at the San Pedro ParochialSchoolduringSY8081andattheLiceo deSanPedro,duringSY8182.In82,sheapplied anewatSta.Catalinawhichhiredher.OnMar22, st 97, during the 51 Commencement Exercises of Sta. Catalina, Hilaria was awarded a Plaque of Appreciation for 30 yrs of service and P12,000 as gratuity pay. On May 31, 97, Hilaria reached the compulsory retirement age of 65. Sta. Catalina pegged her retirement benefits at P59,038.35.Deducted was theamount of P12,000 representing the gratuity pay which was given to her. Should the gratuity pay be deducted from the retirementbenefits? A: No. As for the ruling of theCA affirming that of the NLRC that the P12,000 gratuity pay earlier awardedtoHilariashouldnotbedeductedfromthe retirement benefits due her, the same is in order. Gratuity pay is separate and distinct from retirement benefits. It is paid purely out of generosity. Q: What is the difference between gratuity pay andretirementbenefits? A:
GRATUITYPAY Itispaidtothe beneficiaryforthepast servicesorfavor renderedpurelyoutof thegenerosityofthe giverorgrantor.Itisnot intendedtopayaworker foractualservices renderedorforactual performance.Itisa moneybenefitorbounty giventotheworker,the purposeofwhichisto rewardEeswhohave renderedsatisfactory servicetothecompany. RETIREMENTBENEFITS Areintendedtohelpthe Eeenjoytheremaining yearsofhislife,releasing himfromtheburdenof worryingforhisfinancial support,andareaformof rewardforhisloyaltyto theEr.(Sta.Catalina CollegeandSr.Loreta Oranza,vs.NLRCand HilariaTercera,G.R.No. 144483.November19, 2003,J.CarpioMorales)

b.RetirementpayunderRA7641visvisretireent benefitsunderSSSandGSISlaws Q:WhatisretirementpayundertheLCinrelation toretirementbenefitsunderSSSandGSISlaws?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

101

UST GOLDEN NOTES 2011


A:
Social SecurityLaw Compulsory upon all E e s n o t o v e r 6 0 years of age andtheirErs. 1.Filipinos recruited in the Phils. by foreignbased Ers for employment abroadmaybe coveredbythe SSS on a voluntary basis. 2. Compulsory upon all self employed persons earning P1,800 or more per annum. Revised Government Service InsuranceAct Employees Compensation Act

Compulsory for all permanent Ees below 60 years of age upon appointment to permanent status, and for all elective officials for the duration oftheir tenure. 1. Any person, whether elected or appointed, in theserviceofan Er is a covered Ee if he receives compensation forsuchservice.

Compulsory upon all Ers and their Ees not over 60 years of age; Provided, that an Ee who isover 60 years of age and paying contributions to qualify for the retirement or life insurance benefit administered by the System shall be subject to compulsory coverage.

Note: The Ees Compensation Commission shall ensure adequate coverage of Filipino Ees employed abroad, subject to regulations as it may prescribe. (Art. 170) Any person compulsorily covered by the GSIS including the members of the AFP, and any person employed as casual, emergency, temporary, substitute or contractual, or any person compulsorily covered by theSSSarecoveredbytheEesCompensationProgram. (1997BarQuestion)

102

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

MANAGEMENT PREROGATIVE
E.MANAGEMENTPREROGATIVE Q:WhatisManagementPrerogative? A: GR: It is the right of an Er to regulate, accordingtohisowndiscretionandjudgment, allaspectsofemployment,including: 1. Hiring 2. Workassignments 3. Workingmethods 4. Time,placeandmannerofwork 5. Toolstobeused 6. Processestobefollowed 7. Supervisionofworkers 8. Workingregulations 9. TransferofEes 10. Worksupervision 11. Layoffofworkers 12. Discipline 13. Dismissal 14. Recallofworkers XPNs:Otherwiselimitedbyspeciallaws.
Note: So long as a companys prerogatives are exercised in good faith for the advancement of the Ersinterest and not for the purpose of defeating or circumventingtherightsoftheEesunderspeciallaws or under valid agreements, the Supreme Court will upholdthem.

the school's laudable mission which, as already stated, accords with high constitutionalprecepts.Thisanswerdoes not contradict the ruling in ChuaQua wheretheteachermerelyfellinlovewith a bachelor student and the teacher, also single, did not get pregnant out of wedlock.(2000BarQuestion) Q:LittleHandsGarmentCompany,anunorganized manufacturer of children's apparel with around 1,000workers,sufferedlossesforthe1stfirsttime in history when its US and European customers shiftedtheirhugeorderstoChinaandBangladesh. ThemanagementinformeditsEesthatitcouldno longer afford to provide transportation shuttle services. Consequently, it announced that a normal fare would be charged depending on the distance traveled by the workers availing of the service. WastheLittleHandsGarmentsCompanywithinits rights to withdraw this benefit which it had unilaterallybeenprovidingtoitsEes? A: Yes, because this is a management prerogative which is not due any legal or contractual obligation.Thefactsofthecasedonotstatethe circumstances through which the shuttle service maybeconsideredasabenefitthatripenedintoa demandable right. There is no showing that the benefit has been deliberately and consistently granted,i.e.withtheemployersfullconsciousness thatdespiteitsnotbeingboundbylaworcontract to grant it, it just the same granted the benefit. (2005BarQuestion) 1.DISCIPLINE Q:DiscussbrieflytheErsrighttodisciplinehisEes. A: TheErhastheprerogativetoinstilldisciplinein his Ees and to impose reasonable penalties, including dismissal, on erring Ees pursuant to company rules and regulations. (San Miguel Corporationv.NLRC,G.R.No.87277,May12,1989) Q: Is the power of the Er to discipline his Ees absolute? A: No. While management has the prerogative to discipline its Ees and to impose appropriate penalties on erring workers, pursuant to company rules and regulations, however, such management prerogativesmustbeexercisedingoodfaithforthe advancement of the Ers interest and not for the purposeofdefeatingorcircumventingtherightsof the Ees under special laws and valid agreements.

Q: 1. An exclusive school for girls, run by a religious order, has a policy of not employing unwedmothers,womenwithliveinpartners,and lesbians.Isthepolicyviolativeofanyprovisionof theLConemploymentofwomen? 2. The same school dismissed 2 female faculty membersonaccountofpregnancyoutofwedlock. Did the school violate any provision of the LC on employmentofwomen? A: 1. No,thepolicydoesnotviolatetheLC.The practiceisavalidexerciseofmanagement function. Considering the nature and reasonforexistenceoftheschool,itmay adopt such policy as will advance its laudable objectives. In fact, the policy accordswiththeconstitutionalpreceptof inculcating ethical and moral values in schools. The school policy does not discriminate against women solely on account of sex (Art. 135, LC) nor are the actsprohibitedunderArt.137oftheLC. 2. No,becausetotoleratepregnancyoutof wedlockwillbeablatantcontradictionof

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

103

UST GOLDEN NOTES 2011


(PLDT vs. Teves, G.R. No. 143511, November 10, 2010) Q: May the Er be compelled to share with its Ees the prerogative of formulating a code of discipline? Is a code of discipline unilaterally formulatedbytheErenforceable? A:TheErhastheobligationtosharewithitsEesits prerogativeofformulatingacodeofdiscipline.This is in compliance with the States policy stated in Article 211 of the Labor Code, to ensure the participation of workers in decision and policy making processes affecting their rights, duties and welfare. The exercise of management prerogatives has, furthermore, never been considered to be boundless.Thisobligationisnotdispensedwithby a provision in the collective bargaining agreement recognizing the exclusive right of the Er to make andenforcecompanyrulesandregulationstocarry outthefunctionsofmanagementwithouthavingto discuss the same with the union and much less obtain the latters conformity thereto. A code of discipline unilaterally formulated and promulgated by the Er would be unenforceable. (Philippine Airlines, Inc. vs. NLRC et al., G.R. No. August 13, 1993.) 2.TRANSFEROFEMPLOYEES Q: Discuss briefly the Ers right to transfer and reassignEes. A:Inthepursuitofitslegitimatebusinessinterests, especially during adverse business conditions, management has the prerogative to transfer or assign Ees from one office or area of operation to another provided there is no demotion in rank or diminution of salary, benefits and other privileges and the action is not motivated by discrimination, bad faith, or effected as a form of punishment or demotion without sufficient cause. This privilege is inherent in the right of Ers to control and manage theirenterpriseseffectively.
Note: The right of Ees to security of tenure does not givethemvestedrightstotheirpositionstotheextent ofdeprivingmanagementofitsprerogativetochange their assignments or to transfer them. (Endico v. Quantum Foods Distribution Center, G.R. No. 161615, Jan.30,2009)

Q: May the Er exercise his right to transfer an Ee and compel the latter to accept the same if said transfer is coupled with or is in the nature of promotion? A:No.ThereisnolawthatcompelsanEetoaccept promotion,asapromotionisinthenatureofagift

or a reward, which a person has a right to refuse. When an Ee refused to accept his promotion, he wasexercisinghisrightandcannotbepunishedfor it.Whileitmaybetruethattherighttotransferor reassign an Ee is an Ers exclusive right and the prerogative of management, such right is not absolute. (Dosch vs. NLRC and Northwest Airlines, G.R.No.51182,July5,1983) Q: Who has the burden of proving that the transferwasreasonable? A:TheErmustbeabletoshowthatthetransferis notunreasonable,inconvenientorprejudicialtothe Ee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits.ShouldtheErfailtoovercomethisburden of proof, the Ees transfer shall be tantamount to constructive dismissal. (Blue Dairy Corporation v. NLRC,314SCRA401[1999]) 3.PRODUCTIVITYSTANDARD Q:MayanErimposeproductivitystandardsforits workers? A: Yes. An Er is entitled to impose productivity standards for its workers, and in fact, non compliance may be visited with a penalty even more severe than demotion. The practice of a company in laying off workers because they failed tomaketheworkquotahasbeenrecognizedinthis jurisdiction. Failure to meet the sales quota assignedtoeachofthemconstituteajustcauseof their dismissal, regardless of the permanent or probationarystatusoftheiremployment.Failureto observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiencyisunderstoodtomeanfailuretoattain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. This management prerogative of requiring standards may be availed of so long as they are exercised in goodfaithfortheadvancementoftheErsinterest. (Leonardovs.NLRC,G.R.No.125303,June16,2000) 4.GRANTOFBONUS Q:Whatisabonus? A:ItisanamountgrantedandpaidtoanEeforhis industry and loyalty which contributed to the success of the Ers business and made possible the realizationofprofits. Q:Canbonusbedemanded?

104

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

MANAGEMENT PREROGATIVE
A: GR: Bonus is not demandable as a matter of right. It is a management prerogative given in addition to what is ordinarily received by or strictlyduetorecipient.(ProducersBankofthe Phil.v.NLRC,G.R.No.100701,March28,2001) XPNs:Givenforalongperiodoftime 1. Consistent and deliberate Er continued giving benefit without any condition imposedforitspayment 2. Er knew he was not required to give benefit 3. Nature of benefit is not dependent on profit 4. Made part of the wage or compensation agreed and stated in the employment contract. Q: The projected bonus for the Ees of Suerte Co. was 50% of their monthly compensation. Unfortunately, due to the slump in the business, the president reduced the bonus to 5% of their compensation. Can the company unilaterally reducetheamountofbonus?Explainbriefly. A: Yes. The granting of a bonus is a management prerogative,somethinggiveninadditiontowhatis ordinarily received by or strictly due the recipient. AnErcannotbeforcedtodistributebonuseswhen it can no longer afford to pay. To hold otherwise wouldbetopenalizetheErforhispastgenerosity. (Producers Bank of the Phil. v NLRC, G.R. No. 100701,March28,2001).(2002BarQuestion) 5.CHANGEOFWORKINGHOURS Q:DiscussbrieflytheErsrighttochangeworking hours. A:Wellsettledistherulethatmanagementretains theprerogative,wheneverexigenciesoftheservice sorequire,tochangetheworkinghoursofitsEes. Q: May the normal hours fixed in Article 83 be reducedbytheEr?Explain. A: The present article provides that the normal hours of work of an Ee shall not exceed eight (8) hoursaday.ThisimpliesthattheEr,intheexercise of its management prerogatives, may schedule a work shift consisting of less than eight hours. And following the principle of a fair days wage for a fairdayslabor,theErisnotobligedtopayanEe, workingfor lessthaneighthoursaday,thewages due for eight hours. Nonetheless, if by voluntary practiceorpolicy,theEeforaconsiderableperiod oftimehasbeenpayinghisEeswagesdueforeight hours work although the work shift less than eight hours (e.g. seven) it cannot later on increase the workinghourswithoutanincreaseinthepayofthe employees affected. An Er is not allowed to withdraw a benefit which he has voluntarily given. AnErisnotallowedtowithdrawabenefitwhichhe hasvoluntarilygiven. 6.MARITALDISCRIMINATION Q: Is a company policy prohibiting marriage betweencoworkersvalid? A: There must be a finding of a bona fide occupational qualification (BFOQ) to justify an Ers No Spouse Rule. There must be a compelling business necessity for which no alternative exists other than the discriminating practice. (Star Paper vs.Simbol,G.R.No.164774,April12,2006) Q: What are the factors that the Er must prove inordertojustifyBFOQ? A:TheErmustprove2factors: 1. That the employment qualification is reasonably related to the essential operationofthejobinvolved;and 2. Thatthereisafactualbasisforbelieving that all or substantially all persons meeting the qualification would be unabletoproperlyperformthedutiesof thejob.(StarPaperetal.vs.Simbol,G.R. No.164774,April12,2006) Q: Peds was employed by Glaxo as medical representativewhohasapolicyagainstEeshaving relationships against competitors Ees. Peds marriedJali,aBranchcoordinatorofAstra,Glaxos competitor.Pedswastransferredtoanotherarea. Pedsdid not accept such transfer.Is the policy of Glaxovalidandreasonablesoastoconstitutethe actofPedsaswillfuldisobedience? A: The prohibition against personal or marital relationships with Ees of competitorscompanies upon Glaxos Ees is reasonable under the circumstances because relationships of that nature might compromise the interest of the company. Glaxo does not impose an absolute prohibition against relationships between its Ees and those of competitorcompanies.ItsEesarefreetocultivate relationships with and marry persons of their own choosing.Whatthecompanymerelyseekstoavoid is a conflict of interest between the Ee and the company that may arise out of such relationships. Furthermore, the prohibition forms part of the employment contract and Peds was aware of such

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

105

UST GOLDEN NOTES 2011


restrictions when he entered into a relationship withJali.(DuncanAssociationofDetailmanPTGWO v. Glaxo Wellcome Phil. Inc., G.R. No. 162994, Sep. 17,2004) 7.POSTEMPLOYMENTBAN Q: Genesis Fulgencio had been working for Solidbank Corporation since 1977. He later on appliedforretirement.SolidbankrequiredGenesis to sign an undated Undertaking where he promised that "[he] will not seek employment with a competitor bank or financial institution within one (1) year from February 28, 1995, and that any breach of the Undertaking or the provisions of the Release, Waiver and Quitclaim would entitle Solidbank to a cause of action againsthimbeforetheappropriatecourtsoflaw. Equitable Banking Corporation (Equitable) employed Genesis. Is the postretirement employmentbanincorporatedintheUndertaking which Genesis executed upon his retirement is unreasonable, oppressive, hence, contrary to publicpolicy? A: No. There is a distinction between restrictive covenants barring an Ee to accept a post employment competitive employment or restraint ontradeinemploymentcontractsandrestraintson postretirement competitive employment in pensionandretirementplanseitherincorporatedin employment contracts or in collective bargaining agreements between the Er and the union of Ees, or separate from said contracts or collective bargaining agreements which provide that an Ee who accepts post retirement competitive employment will forfeit retirement and other benefitsorwillbeobligedtorestitutethesameto theemployer.Thestrongweightofauthorityisthat forfeitures for engaging in subsequent competitive employment included in pension and retirement plansarevalideventhoughunrestrictedintimeor geography. A postretirement competitive employment restriction is designed to protect the EragainstcompetitionbyformerEewhomayretire and obtain retirement or pension benefits and, at thesametime,engageincompetitiveemployment. (Rivera vs. Solidbank, G.R. No. 163269, April 19, 2006) 8.LIMITATIONSINITSEXERCISE Q: Is the exercise of management prerogative unlimited? A:No.Itiscircumscribedbylimitationsfoundin: 1. Law, 2. CBA,or 3. Generalprinciplesoffairplayandjustice Furthermore, a line must be drawn between management prerogatives regarding business operationsperseandthosewhichaffecttherights of Ees. In treating the latter, management should seetoitthatitsEesareatleastproperlyinformed of its decisions and modes of actions. So long as a companysprerogativesareexercisedingoodfaith fortheadvancementoftheErsinterestandnotfor the purpose of defeating or circumventing the rights of the Ees under special laws or under valid agreements, the Supreme Court will uphold them. (PAL v. NLRC, G.R. No. 85985, Aug. 13, 1993; San Miguel Brewery Sales v9. Ople, G.R. No. 53515, February8,1989)
Note:Itmustbeestablishedthattheprerogativebeing invokedisclearlyamanagerialone

106

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
F.SOCIALLEGISLATION Q:WhatisSocialLegislation? A: It consists of statutes, regulations and jurisprudence that afford protection to labor, especiallytoworkingwomenandminors,andisin fullaccordwiththeconstitutionalprovisionsonthe promotionofsocialjusticetoinsurethewellbeing andeconomicsecurityofallthepeople. 1.SOCIALSECURITYLAW (RA8282) Q:Whatisthepolicyobjectiveintheenactmentof (SSS)Law? A:ItisthepolicyoftheStatetoestablish,develop, promoteandperfectasoundandviabletaxexempt SSSsuitabletotheneedsofthepeoplethroughout the Phils., which shall promote social justice and provide meaningful protection to members and their beneficiaries against the hazards of disability, sickness, maternity, old age, death, and other contingenciesresultinginlossofincomeorfinancial burden.(Sec.2) TheenactmentofSSSlawisalegitimateexerciseof thepolicepower.Itaffordsprotectiontolaborand isinfullaccordwiththeconstitutionalmandateon the promotion of social justice. (Roman Catholic ArchbishopofManilav.SSS,G.R.No.15045Jan.20, 1961) Q:Arethepremiumsconsideredastaxes? A:No.ThefundscontributedtotheSystembelong to the members who will receive benefits, as a matterofright, wheneverthehazardsprovidedby the law occur. (CMS Estate, Inc., v. SSS, G.R. No. 26298Sep.28,1984) Q:ArebenefitsreceivedunderSSSLawpartofthe estateofamember? A:No.BenefitsreceivableundertheSSSLawarein thenatureofaspecialprivilegeoranarrangement secured by the law pursuant to the policy of the Statetoprovidesocialsecuritytotheworkingman. The benefits are specifically declared not transferable and exempt from tax, legal processes andliens.(SSSv.Davac,et.al.,G.R.No.21642,July 30,1966) Q:Howaredisputessettled? A:
DISPUTESETTLEMENT Disputesinvolving: 1. Coverage 2. Benefits 3. Contributions 4. Penalties 5. Anyothermatterrelated thereto.
Note: Disputes within the mandatory periodof20daysafterthesubmissionof evidence.(Sec.5a) Decision, in the absence of appeal, shall befinalandexecutory15daysafterdate ofnotification.(Sec.5b)

Social Security Commission (SSC)

CA/SC

Execution ofdecision

DecisionsofSSCshallbeappealableto: 1.CAquestionsoflawandfact(Sec. 5c) 2.SCquestionsoflaw.(Sec.5c) SSCmay,motupropriooronmotionof any interested party, issue a writ of execution to enforce any of its decisions or awards, after it has becomefinalandexecutory.(Sec.5d)

Q: Can the SSC validly reevaluate the findings of the RTC, and on its own, declare the latters decisiontobebereftofanybasis? A: No. It cannot review, much less reverse, decisionsrenderedbycourtsoflawasitdidinthe caseatbarwhenitdeclaredthattheCFIOrderwas obtained through fraud and subsequently disregardedthesame,makingitsownfindingswith respecttothevalidityofBailonandAlicesmarriage on the one hand and the invalidity of Bailon and Teresitasmarriageontheother.Ininterferingwith and passing upon the CFI Order, the SSC virtually acted as an appellate court. The law does not give theSSCunfettereddiscretiontotriflewithordersof regular courts in the exercise of its authority to determine the beneficiaries of the SSS. (SSS vs. Teresita Jarque Vda. De Bailon, G.R. No. 165545, Mar.24,2006,J.CarpioMorales) Q:Whoisanemployer(Er)? A: Any person, natural or juridical, domestic or foreign, who carries into the Phils. any trade, business, industry, undertaking or activity of any kindandusestheservicesofanotherpersonwhois under his orders as regards the employment, except the Government and any of its political subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government: Provided, That a selfemployed person shall be both Ee and Er at the same time. (Sec8[c])

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

107

UST GOLDEN NOTES 2011


Q:Whoisanemployee(Ee)? A: Any person who performs services for an Er in whicheitherorbothmentalandphysicaleffortsare used and who receives compensation for such services, where there is an ErEe relationship: Provided,Thataselfemployedpersonshallbeboth EeandEratthesametime.(Sec.8[d]) Q:Whatisemployment? A:GR:AnyserviceperformedbyanEeforhisEr. XPNs: 1. Employmentpurelycasualandnotforthe purposeofoccupationorbusinessofthe Er; 2. Service performed on or in connection with an alien vessel by an Ee if he is employedwhensuchvesselisoutsidethe Phils; 3. Service performed in the employ of the Phil. Government or instrumentality or agencythereof; 4. Service performed in the employ of a foreign government or international organization, or their whollyowned instrumentality: 5. Such other services performed by temporary and other Ees which may be excludedbyregulationoftheSSC.Eesof bona fide independent contractors shall notbedeemedEesoftheErengagingthe servicesofsaidcontractors.(Sec.8[j]) Q:Whatisacontingency? A: The retirement, death, disability, injury or sicknessandmaternityofthemember. a.Coverage Q:WhoarecoveredbySSS? A: 1. CompulsoryCoverage a. AllEesnot over60yearsofageand theirErs; b. Domestic helpers whose income is notlessthanP1000/monthandnot over60yearsofageandtheirErs; Limitations: a. Any benefit earned by the Ees under private benefit plans existing at the time of the approvaloftheActshallnotbe discontinued, reduced or otherwiseimpaired; b. Existing private plans shall be integrated with the SSS but if the Er under such plan is contributingmorethanwhatis required by this Act, he shall pay to the SSS the amount required to him, and he shall continue with his contributions lesstheamountpaidtoSSS; c. Any changes, adjustments, modifications, eliminations or improvementsinthebenefitsof theremainingprivateplanafter the integration shall be subject to agreementsbetween the Ers andtheEesconcerned;and d. The private benefit plan which theErshallcontinueforhisEes shall remain under the Ers managementandcontrolunless there is an existing agreement tothecontrary c. All selfemployed considered both anErandEe d. Professionals; e. Partners and single proprietors of business; f. Actors and actresses, directors, scriptwriters and news correspondents who do not fall within the definition of the term Ee; g. Professional athletes, coaches, trainersandjockeys;AND h. Individual farmers and fisherman. (Sec.9) Voluntary a. Spouses who devote full time to managing the household and family affairs, unless they arealso engaged in other vocation or employment which is subject to mandatory coverage;(Sec.9[b]) b. Filipinos recruited by foreignbased Ers for employment abroad may be covered by the SSS on a voluntary basis;(Sec.9[c]) c. Ee separated from employment to maintainhisrighttofullbenefits d. Selfemployed who realizes no incomeforacertainmonth ByAgreement Any foreign government, international organization, or their whollyowned

2.

3.

108

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
instrumentality employing workers in the Phils., may enter into an agreement with the Phil. government for the inclusion of such Ees in the SSS except those already covered by their respective civil service retirementsystems. Q: When is the compulsory coverage deemed effective? A: 1. Employeronthefirstdayofoperation 2. Employeeonthedayofhisemployment 3. Compulsory coverage of selfemployed uponhisregistrationwiththeSSS Q:Whatistheeffectofseparationofanemployee fromhisemploymentundercompulsorycoverage? A: 1. His Ers obligation to contribute arising from that employment shall cease at the endofthemonthofseparation, 2. But said Ee shall be credited with all contributions paid on his behalf and entitled to benefits according to the provisionsofR.A.9282. 3. He may, however, continue to pay the totalcontributionstomaintainhisrightto fullbenefit.(Sec.11)
Note: The above provision recognizes the once a member,alwaysamemberrule.

Q:Whatistheeffectofinterruptionofbusinessor professionalincome? A:Iftheselfemployedmemberrealizesnoincome inanygivenmonth: 1. He shall not be required to pay contributionsforthatmonth. 2. Hemay,however,beallowedtocontinue payingcontributionsunderthesamerules andregulationsapplicabletoaseparated Eemember: 3. Provided, that no retroactive payment of contributionsshallbeallowedotherthan asprescribedunderSec.22A.(Sec.11A) Q: On her way home from work, Asteria Benedicta, a machine operator in a sash factory, entersamoviehousetorelax.Butsheisstabbed by an unknown assailant. Her claim for benefits under the SSS Law is denied on the ground that her injury is not workconnected. Is the denial legal?Why?

A: No. It is not necessary, for the enjoyment of benefitsundertheSSSLawthattheinjuryiswork connected.Whatisimportantismembershipinthe SSS and not the causal connection of the work of theEetohisinjuryorsickness. Claims based on workconnected injuries or occupational diseases are covered by the State InsuranceFund. b.Exclusionsfromcoverage Q:Enumeratethekindsofemploymentwhichare exceptedfromcompulsorycoverageundertheSSS Law. A:UnderSection8(j)ofR.A.1161,asamended,the following services or employments are excepted fromcoverage: 1. Employmentpurelycasualandnotforthe purpose of occupation or business of the employer; 2. Service performed on or in connection withanalienvesselbyanemployeeifhe is employed when such vessel is outside thePhilippines; 3. Service performed in the employ of the PhilippineGovernmentorinstrumentality oragencythereof; 4. Service performed in the employ of a foreign government or international organization, or their whollyowned instrumentality: Provided, however,That this exemption notwithstanding,anyforeigngovernment, internationalorganizationortheirwholly owned instrumentality employing workers in the Philippines or employing Filipinos outside of the Philippines, may enter into an agreement with the Philippine Government for the inclusion ofsuchemployeesintheSSSexceptthose already covered by their respective civil service retirement systems:Provided, further,Thatthetermsofsuchagreement shall conform with the provisions of this Act on coverage and amount of payment of contributions and benefits:Provided, finally,ThattheprovisionsofthisActshall besupplementarytoanysuchagreement; and

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

109

UST GOLDEN NOTES 2011


5. Such other services performed by temporary and other employees which may be excluded by regulation of the Commission. Employees ofbona fideindependent contractors shall not be deemed employees of the employer engagingtheserviceofsaidcontractors. iv. 2% of the average monthly salary credit for each credited year of service in excess of 10 years;or b. 40% of the average monthly salary credit;or c. P1,000.00, provided that the monthly pension shall in no case be paidforanaggregateamountofless thansixty(60)months(Sec.12[a]) MinimumPension a. P1,200.00 members with at least 10creditedyearsofservice b. P2,400.00forthosewith20credited yearsofservice.(Sec.[b])

c.Benefits Q:WhatarethebenefitsundertheSSSAct? A: 1. MonthlyPension 2. RetirementBenefits 3. DeathBenefits 4. DisabilityBenefits 5. FuneralBenefits 6. SicknessBenefits 7. MaternityBenefits Q: Are the benefits provided for in the SSS Law transferable? A: Benefits provided for in the SSS Law are not transferable and no power of attorney or other document executed by those entitled thereto in favorofanyagent,attorneyoranyotherpersonfor the collection thereof on their behalf shall be recognized,exceptwhentheyarephysicallyunable to collect personally such benefits. (Sec.15, R.A. 1161,asamended) Q:WhatarethereportorialrequirementsoftheEr andselfemployed? A: 1. Er Report immediately to SSS the names, ages, civil status, occupations, salaries and dependentsofallhiscoveredEes 2. SelfemployedReporttoSSSwithin30days fromthefirstdayofhisoperation,hisname, age, civil status, occupation, average monthlynetincomeandhisdependents MonthlyPension Q:Howmuchisthemonthlypension? A: 1. Themonthlypensionshallbethehighest ofthefollowingamounts: a. Thesumofthefollowing: ii. P300.00;plus iii. 20% of the average monthly salarycredit;plus

2.

Q:Whatwillhappentothemonthlypensionofa retireeincaseofdeath? A: 1. Upon the death of the retired member, hisprimarybeneficiariesasofthedateof his retirement will get 100% of his monthly pension plus the dependent's pensionforeachchild.
Note: The above phrase primary beneficiaries (as of the date of his retirement) was declared unconstitutional bytheSCinDycaicov.SSSandSSC(G.R.No. 16137, June 6, 2006) because it is in violation of the equal protection, due processandsocialjustice.

Ifhedieswithin60monthsfromthestart of his pension and he has no primary beneficiaries, his secondary beneficiaries willreceivealumpsumbenefitequivalent to the difference of 60 multiplied by the monthly pension and the total monthly pensions paid by the SSS excluding the dependent'spension.(Sec.12B[d]) Q: Bonifacio and Elena are living together as husband and wife without the benefit of marriage. Bonifacio declared Elena and their children as his primary beneficiaries in his self employeddata record in SSS. A few months prior to his death, Bonifacio married Elena.Is Elena entitledtothesurvivorspension? A: Yes, she is considered primary beneficiary of Bonifacio. The phrase Upon the death of the retiredmember,hisprimarybeneficiariesasofthe date of his retirement will get 100 per cent of his monthly pension xxx of Sec. 12B d of RA 8282 is unconstitutional because it violates the: (1) equal protection clause because it impermissibly discriminates against dependent spouses whose 2.

110

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
respective marriages to the SSS members were contracted after the latters retirement; (2) due process clause because it outrightly deprives spouses who married the SSS members after their retirement of the survivors pension, a property interest, without giving them opportunity to be heard;and(3)socialjustice. Further, the survivorship pension applied for was classifiedasdeathbenefits.Hence,thecontingency that gives rise to the entitlement of Elena is the deathofBonifacioandnothisretirement.(Dycaico v.SSS,G.R.No.16137,June6,2006) Q:Whenisthemonthlypensionanddependents pensionsuspended? A: 1. Uponthereemploymentorresumptionof selfemployment 2. Recovery of the disabled member from hispermanenttotaldisability 3. Failuretopresenthimselfforexamination at least once a year upon notice by the SSS.(Sec.13A[b]) RetirementBenefit Q:Whatisaretirementbenefit? A:Itisacashbenefitpaidtoamemberwhocanno longerworkduetooldage. Q:Whatarethetypesofretirementbenefits? A: 1. Monthly Pension Lifetime cash benefit paidtoaretireewhohaspaidatleast120 monthlycontributionstotheSSSpriorto thesemesterofretirement. 2. LumpSumAmountGrantedtoaretiree who has not paid the required 120 monthlycontributions. Q:Whoareentitledforretirementbenefits? A: 1. Amemberwho a. has paid at least 120 monthly contributionspriortothesemesterof retirement; b. atleast60yearsold;and c. already separated from employment orhasceasedtobeselfemployed,OR 2. Atleast65yearsold,shallbeentitledfor as long as he lives to the monthly pension;(Sec12B[a]) 3.

Amember a. At least 60 years old at retirement; and b. Doesnotqualifyforpensionbenefits underparagraph(a)aboveentitled to a lump sum benefit equal to the total contributions paid by him and onhisbehalf; c. Must be separated from employment and is not continuing payment of contributions to the SSS onhisown.(Sec.12B[b])

Q: What happens when the retirement pensioner isreemployedorresumesselfemployment? A:Themonthlypensionofaretirementpensioner whoresumesemploymentandislessthan65years old will be suspended. He and his Er will again be subjecttocompulsorycoverage.(Sec.12B[c]) Q: Are the children of a retiree member entitled tothedependent'spension? A:Yes(Sec.12[A]).However,only5minorchildren, beginning from the youngest, are entitled to the dependents' pension. No substitution is allowed. Where there are more than 5 legitimate and illegitimate children, the legitimate ones will be preferred. Q:Forhowlongwillthedependentchildreceive thepension? A: Until the child reaches 21 years of age, gets married,getsemployedandearnsP300amonthor more,ordies. However, the dependent's pension is granted for lifetochildrenwhoareover21yearsold,provided theyareincapacitatedandincapableofselfsupport duetophysicalormentaldefectwhichiscongenital oracquiredduringminority. DeathBenefit Q: When is a beneficiary entitled to death benefits? A: 1. Upondeathofamember,ifhehaspaidat least 36 monthly contributions prior to thesemesterofdeath: a. primary beneficiaries shall be entitledtothemonthlypension;or b. Iftherearenoprimarybeneficiaries, secondary beneficiaries shall be

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

111

UST GOLDEN NOTES 2011


entitled to a lump sum benefit equivalent to 36 times the monthly pension. Upon death of a member If he has not paid the required 36 monthly contributions prior to the semester of death: a. Primary or secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the monthly pensionmultipliedbythenumberof monthly contributions paid to the SSS:or b. 12 times the monthly pension, whicheverishigher.(Sec.13) A: Disability pension shall cease upon his retirementordeath.(Sec13A[j]) FuneralBenefit Q:Whatisthefuneralbenefit? A:AfuneralgrantequivalenttoP12,000.00shallbe paid, in cash or in kind, to help defray the cost of expenses upon the death of a member or retiree. (Sec.13B) SicknessBenefit Q:Whatissicknessbenefit? A:Itisadailycashallowancepaidforthenumber ofdaysamemberisunabletoworkduetosickness orinjury. Q: What are the requirements to be entitled for sicknessbenefit? A: 1. The member paid at least 3 monthly contributions in the 12month period immediately preceding the semester of sicknessorinjury 2. Confined for more than 3 days in a hospital or elsewhere with the approval oftheSSS 3. He has used all current company sick leaveswithpayforthecurrentyear 4. Notified his Er or the SSS, if he is a separated, voluntary or selfemployed member Q:Whowillpaysicknessbenefits?andhowmuch isthebenefit? A:TheErshallpaythe: 1. Ee for each compensable confinementor fractionthereofor 2. SSS if member is selfemployed daily sickness benefit equivalent to 90% of his averagedailysalarycredit,subjecttothe followingconditions: a. In no case shall the daily sickness benefitbepaidlongerthan120days in 1 calendar year, nor shall any unused portion of the 120 days of sickness benefit granted be carried forward and added to the total number of compensable days allowableinthesubsequentyear;

2.

DisabilityBenefit Q:Whatisadisabilitybenefit? A: It is a cash benefit paid to a member who becomes permanently disabled, either partially or totally. Q:Whatisthedifferencebetweendeathbenefits andPermanentTotalDisabilitybenefits? A:
DeathBenefits Requisite atleast36monthlycontributions Benefitspayabletowhom PrimaryBeneficiaries Member Failuretomake36monthlypayments Benefitsshallbeinlumpsumequivalenttothe monthlypensiontimesthenumberofmonthly contributionspaidtoSSSor12timesthemonthly pension,whicheverishigher. PTDBenefits

Q: What is the effect of the death of the PTD pensioner? A: 1. Primary beneficiaries are entitled to receivemonthlypensionasofthedateof disability. 2. No primary beneficiaries and he dies within 60 months from the start of his monthlypensionsecondarybeneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the 5 year guaranteed period excluding the dependentspension.(Sec.13A[c]) Q: What is the effect of retirement or death to partialdisabilitypension?

112

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
b. Notpaidformorethan240dayson account of the same confinement; and Ee member shall notify his Er of the factofhissicknessorinjurywithin5 calendar days after the start of his confinement unless such confinement: i. isinahospital ii. the Ee became sick or was injured while working or withinthepremisesoftheEr (notification to the Er not necessary); Er shall be reimbursed only for each day th of confinement starting from the 10 calendar day immediately preceding the date of notification to the SSS if the notification to the SSS is made beyond 5 calendar days after receipt of the notificationfromtheEemember.(Sec.14 [c]) Q:WhenwillreimbursementbemadebySSS? A:GR: SSS shall reimburse the Er or pay the unemployed member only for confinement within1yearimmediatelyprecedingthedatethe claimforbenefitorreimbursementisreceivedby theSSS XPN:Confinementinahospitalinwhichcasethe claimforbenefitorreimbursementmustbefiled within 1 year from the last day of confinement. (Sec.14[c]) MaternityBenefit Q:Whatisthematernitybenefit? A: The maternity benefit is a daily cash allowance granted to a female member who was unable to workduetochildbirthormiscarriage. Q: What are the qualifications for entitlement to thematernitybenefit? A: 1. She has paid at least three monthly contributionswithinthe12monthperiod immediately preceding the semester of herchildbirthormiscarriage. 2. Shehasgiventherequirednotificationof her pregnancy through her employer if employed, or to the SSS if separated, voluntaryorselfemployedmember. Q:Isthevoluntaryorselfemployedmemberalso entitledtothematernitybenefit? A: Yes, A voluntary or a selfemployed member is entitledtothematernitybenefitprovidedthatshe meetsthequalifyingconditions. Q:Howmuchisthematernitybenefit? A: The maternity benefit is equivalent to 100 per cent of the members average daily salary credit multiplied by 60 days for normal delivery or miscarriage,78daysforcaesareansectiondelivery. Q:Howisthematernitybenefitcomputed? 2.

c.

3.

If the member is unemployed or self employed,heshalldirectlynotifytheSSS ofhisconfinementwithin5calendardays after the start thereof unless such confinementisinahospitalinwhichcase notificationisalsonotnecessary; Where notification is necessary, confinement shall be deemed to have started not earlier than the 5th day immediately preceding the date of notification.(Sec.14[b])

4.

Note:Thelawdoesnotrequirethatsicknessmustbe relatedtothedutiesofthebeneficiaries.

Q: When will compensable confinement commence? A: 1. Beginsonthe1stdayofsickness 2. Payment of such allowances shall be promptlymadebytheEr: a. every regular payday or on the 15th andlastdayofeachmonth, b. incaseofdirectpaymentbytheSSS as long as such allowances are due andpayable.(Sec.14[b]) Q:WhataretherequirementsinorderthatErmay claimreimbursementofthesicknessbenefit? A: 1. 100% of daily benefits shall be reimbursed by SSS if the following requirementsaresatisfied: a. Receipt of SSS of satisfactory proof ofsuchpaymentandlegalitythereof: b. The Er has notified the SSS of the confinement within 5 calendar days afterreceiptofthenotificationfrom theEemember:

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

113

UST GOLDEN NOTES 2011


A: 1.
Note: Semester refers to two consecutive quarters ending in the quarter of contingency. Quarter refers to three consecutive months ending March, June, SeptemberorDecember. anygainfuloccupationfor a continuous period exceeding 120 days regardless of whether he losestheuseofanyofhis bodyparts.

Exclude the semester of contingency (deliveryormiscarriage).

d.Beneficiaries Q:Whoareprimarybeneficiaries? A: 1. The dependent spouse until he or she remarries 2. The dependent legitimate, legitimated or legallyadopted,andillegitimatechildren,: Provided,Thatthedependentillegitimate children shall be entitled to 50% of the share of the legitimate, legitimated or legallyadoptedchildren. Q:Whoaresecondarybeneficiaries? A: In the absence of primary beneficiaries, the dependentparents. In the absence of all the foregoing, any other person designated by the member as his or her secondarybeneficiary.(Sec.8[k]) Q:Whoareconsidereddependents? A: 1. The legal spouse entitled by law to receivesupportfromthemember; 2. The legitimate, legitimated, or legally adopted,andillegitimatechildwho: a. Isunmarried, b. Notgainfullyemployed,and c. Hasnotreached21yearsofage,orif over 21 years of age, he is congenitallyorwhilestillaminorhas beenpermanentlyincapacitatedand incapable of selfsupport, physically ormentally. 3. The parent who is receiving regular supportfromthemember. Q:Whatismeantbydependentforsupport? A: The entitlement to benefits as a primary beneficiary requires not only legitimacy but also dependence upon the member Ee. (Gil v. SSC CA GRSP.37150,May8,1996) Ifawifewhoisalreadyseparateddefactofromher husband cannot be said to be "dependent for support"uponthehusband,absentanyshowingto

2.

Count12monthsbackwardsstartingfrom the month immediately before the semesterofcontingency. Identify the six highest monthly salary creditswithinthe12monthperiod.
Note: Monthly salary credit means the compensation base for contributions benefitsrelatedtothetotalearningsforthe month.

3.

4. 5. Addthesixhighestmonthlysalarycredits togetthetotalmonthlysalarycredit. Divide the total monthly salary credit by 180 days to get the average daily salary credit. This is equivalent to the daily maternityallowance. Multiplythedailymaternityallowanceby 60(fornormaldeliveryormiscarriage)or 78days(forcaesareansectiondelivery)to getthetotalamountofmaternitybenefit.

6.

Q:Whatisthedifferenceofcompensabilityunder theLaborLawandtheSocialSecurityLaw? A: The claims are different as to their nature and purpose. (Ortega vs. Social Security Commission, G.R.No.176150,June25,2008)
SOCIALSECURITYLAW Purpose Governs compensability Benefits are intended to provide insurance or of: protection against the 1. workrelated hazards or risks of disabilities 2. whenthereisloss disability, sickness, old of income due to age or death, inter alia, irrespective of whether workconnected or work theyarosefromorinthe of the aggravated injury course employment. orillness. Nature may be A disability is total and Disability permanentifasaresultof permanent total or the injury or sickness the permanentpartial. Ee is unable to perform LABORLAW

114

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
the contrary. Conversely, if it is proved that the husband and wife were still living together at the timeofhisdeath,itwouldbesafetopresumethat she was dependent on the husband for support, unless it is shown that she is capable of providing forherself.(SSSv.Aguas,G.R.No.165546,Feb.27, 2006) Q: Who is entitled to the benefits of an SSS member who was survived not only by his legal wife,whoisnotdependentuponthemember,but alsobytwocommonlawwiveswithwhomhehad illegitimateminorchildren? A: The illegitimate minor children shall be entitled to the death benefits as primary beneficiaries because the legal wife is not dependent upon the member.TheSSSLawisclearthatforaminorchild to qualify as a dependent the only requirements are that he/she must be below 21 yrs. of age, not marriednorgainfullyemployed.(Signeyv.SSS,G.R. No.173582,Jan.28,2008) Q:Whatiscompensation? A: All actual remuneration for employment, includingthemandatedcostoflivingallowance,as wellasthecashvalueofanyremunerationpaidin anymediumotherthancashexceptthatpartofthe remuneration received during the month in excess ofthemaximumsalary. Q: The owners of FALCON Factory, a company engaged in the assembling of automotive components, decided to have their building renovated. (50) persons, composed of engineers, architects and other construction workers, were hired by the company for this purpose. The work was estimated to be completed in 3 years. The Ees contended that since the work would be completed after more than1year,theyshouldbesubjecttocompulsory coverage under the Social Security Law. Do you agreewiththeircontention?Explainyouranswer fully. A: No. Under Sec. 8 (j) of R.A. 1161, as amended, employment of purely casual and not for the purpose of the occupation or business of the employer are excepted from compulsory coverage. An employment is purely casual if it is not for the purposeofoccupationorbusinessoftheEr. In the problem given, Falcon Factory is a company engaged in the assembly of automotive components. The 50 persons (engineers, architects and construction workers) were hired by Falcon Factory to renovate its building. The work to be performed by these 50 people is not in connection with the purpose of the business of the factory. Hence, the employment of these 50 persons is purely casual. They are, therefore, excepted from the compulsory coverage of the SSS law. (2000 Bar Question) 2.GSIS (R.A.8291) Q: What are the purposes behind the enactment oftheGSISAct? A: To provide and administer the following social securitybenefitsforgovernmentemployees(Ee): 1. Compulsorylifeinsurance 2. Optionallifeinsurance 3. Retirementbenefits 4. Disability benefits to workrelated contingencies;and 5. Deathbenefits Q:Who are considered employers (Er) under the GSISAct? A: 1. NationalGovernment 2. Its political subdivisions, branches, agencies,instrumentalities 3. GOCCs, and financial institutions with originalcharters 4. Constitutional Commissions and the Judiciary(Sec.2[c]) Q:CanSSSEesbecoveredbyGSIS? A:Yes. Q:WhoisanEmployeeormember? A:Anyperson,receivingcompensationwhileinthe service of an Er, whether by election or appointment,irrespectiveofstatusofappointment, including barangay and sanggunian officials. (Sec. 2[d]) Q:Whatiscompensation? A: The basic pay or salary received by an Ee, pursuant to his or her election or appointment, excluding per diems, bonuses, OT pay, honoraria, allowances and any other emoluments received in addition to the basic pay which are not integrated intothebasicpayunderexistinglaws.(Sec.2[i]) Q: Baradero is a member of the Sangguniang BayanoftheMunicipalityofLaCastellana,Negros

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

115

UST GOLDEN NOTES 2011


Occ.andispaidonaperdiembasis.Ontheother hand, Belo a ViceGovernor of Capiz is in a hold overcapacityandispaidonaperdiembasis.Are the services rendered by Baradero and Belo on a perdiembasiscreditableincomputingthelength ofserviceforretirementpurposes? A: Yes. The traditional meaning of per diem is a reimbursement for extra expenses incurred by the public official in the performance of his duties. Under this definition the per diem is intended to coverthecostoflodgingandsubsistenceofofficers and employees when the latter are on a duty outside of their permanent station. On the other hand, a per diem could rightfully be considered a compensation or remuneration attached to an office. The per diems paid to Baradero and Belo were in the nature of compensation or remuneration for their services as Sangguniang Bayan and Vice Governor, respectively, rather than a reimbursement for incidental expenses incurred whileawayfromtheirhomebase. If the remuneration received by a public official in theperformanceofhisdutiesdoesnotconstitutea mere allowance for expenses but appears to be hisactualbasepay,thennoamountofcategorizing the salary as a per diem would take the allowances received from the term service with compensation for the purpose of computing the numberofyearsofserviceingovernment.(GSISv. CSC,G.R.Nos.98395and102449,June19,1995) Q:WhatarethesourcesoffundsoftheGSIS? A: It comes from the monthly contributions of the coveredEesandErs.(Sec.5) The contributions of the Ees are deducted and withheld by the Er each month from the monthly salaryoftheformerandareremittedbythelatter, together with its own share, to the System within the first 10 days of each calendar month following themonthtowhichthecontributionsapply.(Sec.6) Q: What is the penalty in case of delayed remittanceornonremittanceofcontributions? A: The unremitted contributions shall be charged interests as prescribed by the GSIS Board of Trustees but shall not be less than 2% simple interest per month from due date to the date of paymentbytheemployersconcerned. a.Coverage Q: What government Ees are subject to coverage undertheGSIS? A: GR: All Ees receiving compensation who have not reached the compulsory retirement age, irrespectiveofemploymentstatus. XPNs: 1. Uniformedmembersofthe: a.AFP;and b.PNP. 2. Contractuals who have no Er and Ee relationshipwiththeagenciestheyserve. Q: Who are covered by life insurance, retirement andothersocialsecurityprotection? A: GR: All members of the GSIS shall have life insurance, retirement, and all other social security protections such as disability, survivorship, separation, and unemployment benefits.(Sec.3) XPNs:Membersof: 1. Thejudiciary;and 2. Constitutional commissions who shall havelifeinsuranceonly. b.Exclusionsfromcoverage Q: Who, under the GSIS, are excluded from the coverage? A: 1. Ees who have separate retirement schemes (members of the Judiciary, Constitutional Commissions and others similarlysituated) 2. Contractual Ees who have no ErEe with theagenciestheyserve 3. Uniformed members of the AFP, BJMP, whose coverage by the GSIS has ceased effectiveJune24,1997 4. Uniformed members of the PNP whose coveragebytheGSIShasceasedeffective February1,1996.(Sec.2.4,RuleII,IRR) Q:Forthepurposeofbenefitentitlement,howare themembersclassified? A: 1. Activemembers a. Still in the service and are paying integratedpremiums.

116

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
b. Covered for the entire package benefits and privileges being extendedbyGSIS. SeparationBenefits Q: When will amemberbeentitled to separation benefits and what comprises these separation benefits? A: A member who has rendered a minimum of 3 years creditable service shall be entitled to separation benefit upon resignation or separation underthefollowingterms: 1. A member with at least 3 years but less than 15 years: Cash payment equivalent to 100% of the AMC for every year of service the member has paid contributions: a. notlessthanP12,000.00 b. Payable upon reaching 60 years of age or upon separation, whichever comeslater. 2. A member with less than 15 years of service and less than 60 years of age at thetimeofresignationorseparation: a. Cashpaymentequivalentto18times the basic monthly pension (BMP), payableatthetimeofresignationor separation b. An oldage pension benefit equal to the basic monthly pension, payable monthly for life upon reaching the ageof60. Q:Whataretheeffectsofseparationfromservice withregardtomembership? A: A member separated from the service shall continue to be a member and shall be entitled to whateverbenefitshehasqualifiedto.
Note: A member separated for a valid cause shall automatically forfeit his benefits, unless the terms of resignationorseparationprovideotherwise. Inthecaseofforfeiture,theseparatedemployeeshall be entitled to receive only of the cash surrender valueofhisinsurance.

2.Policyholders a. Coveredforlifeinsuranceonly b. Canavailofpolicyloanprivilegeonly c. Mayalsoapplyforhousingloans d. Judiciary and Constitutional Commissions 3. RetiredMembers a. Former active members who have retired from the service and are already enjoying the corresponding retirementbenefitsappliedfor b. Not entitled to any loan privilege, exceptstockpurchaseloan(Sec.2.2, RulesII,IRR) c.Benefits Q: What are the benefits provided by the GSIS Act? A: 1. Separation 2. Unemploymentorinvoluntaryseparation 3. Retirement 4. Permanentdisability 5. Temporarydisability 6. Survivorship 7. Funeral 8. LifeInsurance 9. Such other benefits and protection as may be extended to them by the GSIS suchasloans. Q:WhatarethebenefitsunderP.D.1146(Revised GSIS Act of 1977) that may be granted to the separatedmembersofthePNP,BJMPandBFP? A:GR: 1. Oldagebenefit 2. Permanentdisabilitybenefit 3. Survivorshipbenefit 4. Funeralbenefit 5. Retirementbenefit XPN:Judiciary(Lifeinsuranceonlytaxexempt) Q: What are the reportorial requirements of the Er? A: Er must report to GSIS the names, employment status,positions,salariesoftheemployeeandsuch othermatterasdeterminedbytheGSIS.

UnemploymentBenefits Q: What are the conditions for entitlement to unemploymentbenefits? A: 1. The recipient must be a permanent employeeatthetimeofseparation; 2. Hisseparationwasinvoluntaryduetothe abolitionofhisofficeorpositionresulting fromreorganization;and

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

117

UST GOLDEN NOTES 2011


3. He has been paying the contribution for atleast1yearpriortoseparation. Q:Whataretheoptionsoftheretireewithregard tohisorherretirementbenefits? A:Theretireemaygeteitherofthefollowing: 1. Lumpsumequivalentto6monthsofthe basic monthly pension (BMP) payable at the time of retirement and an oldage pensionbenefitequaltoBMPpayablefor life, starting upon the expiration of the 5 yearscoveredbythelumpsum;or 2. Cash payment equivalent to 18 times his BMPandmonthlypensionforlifepayable immediately.(Sec.13[a]) PermanentDisabilityBenefits Q:Whatisdisability? A: Any loss or impairment of the normal functions ofthephysicaland/ormentalfacultyofamember, which reduces or eliminates his/her capacity to continuewithhis/hercurrentgainfuloccupationor engageinanyothergainfuloccupation. Q:Whatistotaldisability? A: Complete incapacity to continue with present employment or engage in any gainful occupation due to the loss or impairment of the normal functionsofthephysicaland/ormentalfacultiesof themember. Q:Whatispermanenttotaldisability(PTD)? A: Accrues or arises when recovery from impairment mentioned in Sec.2(q) (defining disability)ismedicallyremote. Q:Whatispermanentpartialdisability(PPD)? A: Accrues or arises upon the irrevocable loss or impairment of certain portions of the physical faculties, despite which the member is able to pursueagainfuloccupation. Q:Whataretheconditionsinordertobeentitled forpermanentdisabilitybenefits? A: The permanent disability was not due to any of theff: 1. Gravemisconduct 2. Notoriousnegligence 3. Habitualintoxication 4. Willfulintentiontokillhimselforanother

Q:Whatwillconsistofanunemploymentbenefit? A: It will consists of cash payment equivalent to 50%oftheaveragemonthlycompensation


Note:Amemberwhohasrenderedatleast15yearsof service will be entitled to separation benefits instead ofunemploymentbenefits.

RetirementBenefits Q:Whataretheconditionsinordertobeentitled toretirementbenefits? A: 1. Amemberhasrenderedatleast15years ofservice; 2. Heisatleast60yearsofageatthetime ofretirement;and 3. He is not receiving a monthly pension benefit from permanent total disability. (Sec.13A) Q:Whatistheruleincaseofextensionofservice inordertobeentitledforretirementbenefit? A:ThedoctrineinCenavs.CSC(G.R.No.97419,July 3, 1992), was modified in Rabor vs. CSC, (G.R. No. 111812,May31,1995),wheretheSCheldthat:The head of the government agency concerned is vested with discretionary authority to allow or disallowextensionoftheserviceofanofficialorEe who has reached 65 years old without completing the15yearsofgovernmentservice.However,this discretion is to be exercise conformably with the provisions of Civil Service Memorandum Circular No. 27, series of 1990 which provides that the extensionshallnotexceed1year. Q:Whatisthereasonforcompulsoryretirement? A: The compulsory retirement of government officials and Ees upon their reaching the age of 65 yearsisfoundedonpublicpolicywhichaimsbyitto maintain efficiency in the government service and atthesametimegivetotheretiringpublicservants the opportunity to enjoy during the remainder of their lives the recompense, for their long service anddevotiontothegovernment,intheformofa comparatively easier life, freed from the rigors of civil service discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose upon them. (Beronilla v. GSIS, G.R. No. 21723,Nov.26,1970)

118

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
Q: What are the two types of permanent disability? A: 1. Permanenttotaldisability(PTD)accrues or arises when recovery from any loss or impairment of the normal functions of the physical and/or mental faculty of a member which reduces or eliminates his capacity to continue with his current gainfuloccupationorengageinanyother gainful occupation is medically remote. [Section2(q)and(s)] 2. Permanent partial disability (PPD) accrues or arises upon the irrevocable lossorimpairmentofcertainportion/sof the physical faculties, despite which the member is able to pursue a gainful occupation.(Sec.2[u])
1. PTD PPD Causes and Completelossofsight Complete permanent loss of the ofbotheyes useof: 2. Lossof2limbsator abovetheankleor 1.Anyfinger wrist 3. Permanentcomplete 2.Anytoe 3.Onearm paralysisof2limbs 4.Onehand 4. Braininjuryresulting inincurableimbecility 5.Onefoot 6.Oneleg orinsanity 7.Oneorbothears 5. Suchothercasesas 8.Hearingofoneorboth maybedetermined ears bytheGSIS 9.Sightofoneeye Such other causes as determinedbyGSIS Benefits 1.Amemberisentitledto A member is entitled to payment in the monthly income cash benefit for life equivalent accordance with the scheduleofdisabilitiesto totheBMPwhen: a. Heisintheservice be prescribed by GSIS, if at the time of the he satisfies the given conditions of either (1) disabilityor b. If separated from or(2)ofSec.16(a). service c. He has paid at least 36 monthly contributions within 5 years immediately preceding his disability d. Hehaspaidatotal of at least 180 monthly contribution prior hisdisability Heisnotreceiving oldageretirement pensionbenefits

e.

2.Ifthememberdoesnot satisfy the conditions abovebuthasrenderedat least 3 years service, he shallbeadvancedthecash payment equivalent to 100% of his average monthlycompensationfor each year of service he has pad contributions but not less than P12,000.00 which should have been his separation benefit (he shall no longer receive separationbenefits)

Q: When will the payment of these benefits be suspended? A: 1. Incaseamemberisreemployed;or 2. Member recovers from disability as determinedbytheGSIS;or 3. Fails to present himself for medical examination when required by the GSIS. (Sec.16[c]) Q: Manioso was suffering from several diseases from1959to1994whenheworkedasAccounting ClerkIattheBudgetCommissionuptothetimehe was transferred and promoted to the DENR as Senior Bookkeeper. On 95, he was hospitalized.The results of his examinations showed that he was suffering from Acute Myocardial Infarction and Hypertensive Vascular Disease. From Jan May 95 when he compulsory retiredfromgovernmentserviceandafterserving for36yrs,henolongerreportedforwork.Hissick leave covering said period was duly approved. In the meantime, Manioso filed a claim for income benefits with the GSIS which found his ailments workrelated. He was granted Temporary Total Disability benefits for 2 months.He was later grantedPermanentPartialDisabilitybenefitsfor8 months. It appears that he appealed for more disability benefits with the GSIS which subjected him to a series of medical tests. In 97, he was brought to the PGH several times due to Chronic Renal Infection 2 to Obstructive Uropathy 2 to Staghorn Calculi (L) and Benign Prostatic Hypertrophy;DiabetesMellitusNeprophaty,Stage IV, and Hypertensive Nephrosclerosis. He then filed a request with the GSIS for additional disability benefits, claiming that the ailments for

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

119

UST GOLDEN NOTES 2011


which he was hospitalized several times in 97 developed from his workrelated illnesses. The GSISdisapprovedManiososrequest. Do Maniosos ailments which later developed fall underthecategoryofpermanenttotaldisability? A: Yes. Under Art. 192 (c) of P.D. No. 442, as amended (the LC), the following disabilities are deemed total and permanent:(1) Temporary total disability lasting continuously for more than 120 days. Under Section 2(b), Rule VII of the Amended Rules on Ees Compensation, [a] disability is total and permanent if as a result of the injury or sickness the Ee is unable to perform any gainful occupation for a continuous period exceeding 120 days,exceptasotherwiseprovidedunderRuleXof these Rules. In the case at bar, Manioso was on sick leave from Jan 11, 95 up to his date of retirement on May 15, 95 or for a period of more than 120 days. Surely, the DENR, in approving his more than 120 days leave must have passed upon his Medical Certificate relative to his ailments. Maniosos disability having lasted for more than 120 days, he is entitled to PTD benefits. (Manioso, v.GSIS,G.R.No.148323,Apr.29,2005) Q: Does Maniosos retirement from service preventhimfromentitlementtoPTDbenefits? A: No. Benefits due an Ee due to workrelated sickness shall be provided until he becomes gainfully employed, or until his recovery or death. None of these are present in Maniosos case. It would be an affront to justice if Manioso, a government Ee who had served for 36 years, is deprived of the benefits due him for workrelated ailments that resulted in his Permanent Total Disability. (Manioso v. GSIS, G.R. No. 148323,Apr. 29,2005) TemporaryDisabilityBenefits Q:Whendoestemporarytotaldisabilityarises? A: It accrues or arises when the impaired physical and/ormentalfacultiescanberehabilitatedand/or restoredtotheirnormalfunctions.(Sec2[t]) Q: What benefits are given for temporary disability? A: 1. Member is entitled to 75% of his current daily compensation for each day or fractionthereofoftotaldisabilitybenefit, th to start at the 4 day but not exceeding 120daysinonecalendaryearwhen: a. Hehasexhaustedallsickleaves b. CBAsickleavebenefits Provided,that: i. He was in the service at time of disability;or ii. If separated, he has rendered at least 3 years of service and has paid at least 6 monthly contributions in the year precedinghisdisability The temporary total disability benefits shallinnocasebelessthanP70aday.

2.

Note: A member cannot enjoy the temporary total disabilitybenefitandsickleavepaysimultaneously. AnapplicationfordisabilitymustbefiledwiththeGSIS within4yearsfromthedateoftheoccurrenceofthe contingency.

SurvivorshipBenefits Q:Whoareentitledtosurvivorshipbenefits? A: Upon the death of a member or pensioner, his beneficiaries shall be entitled to survivorship benefits.Suchbenefitshallconsistof: 1. The basic survivorship pension which is 50%ofthebasicmonthlypension;and 2. The dependent childrens pension not exceeding 50% of the basic monthly pension Q: Under what conditions are the primary beneficiaries entitled to the basic monthly pension? A: Upon the death of a member, the primary beneficiariesshallbeentitledto: 1. Survivorship pension: Provided, That the deceased: a. was in the service at the time of his death;or b. if separated from the service, has rendered at least 3 years of service atthetimeofhisdeathandhaspaid 36 monthly contributions within the fiveyear period immediately preceding his death; or has paid a total of at least 180 monthly contributionspriortohisdeath;or 2. The survivorship pension plus a cash payment equivalent to 100% of his average monthly compensation for every year of service: Provided, That the deceasedwasintheserviceatthetimeof

120

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
hisdeathwithatleast3yearsofservice; OR 3.Acashpaymentequivalentto100%ofhis average monthly compensation for each year of service he paid contributions, but not less than P12,000.00: Provided, That the deceased has rendered at least 3 years of service prior to his death but does not qualify for the benefits under item(1)or (2)ofthisparagraph.[Sec.21 (a)] Q:Aftertheendoftheguaranteed30months,are the beneficiaries still entitled to any survivorship benefits? A: Yes. The survivorship pension shall be paid as follows: 1. When the dependent spouse is the only survivor, he/she shall receive the basic survivorshippensionforlifeoruntilheor sheremarries; 2. When only dependent children are the survivors, they shall be entitled to the basic survivorship pension for as long as they are qualified, plus the dependent childrens pension equivalent to 10% of the basic monthly pension for every dependentchildnotexceeding5,counted from the youngest and without substitution; 3. When the survivors are the dependent spouse and the dependent children, the dependent spouse shall receive the basic survivorship pension for life or until he/she remarries, and the dependent children shall receive the dependent childrenspension.(Sec.21[b])
Note:Thedependentchildrenshallbeentitledtothe survivorship pension as long as there are dependent children and, thereafter, the surviving spouse shall receive the basic survivorship pension for life or until heorsheremarries.

2.

P12,000.00:Provided,Thatthememberis intheserviceatthetimeofhisdeathand hasatleast3yearsofservice;or Intheabsenceofsecondarybeneficiaries, the benefits under this par. shall be paid tohislegalheirs.(Sec.21[c])

Q: When are secondary beneficiaries entitled to survivorshipbenefits? A: In the absence of primary beneficiaries, the secondarybeneficiariesshallbeentitledto: 1. The cash payment equivalent to 100% of his average monthly compensation for each year of service he paid contributions, but not less than

Q:Whatarethebenefitsthatthebeneficiariesare entitledtouponthedeathofthepensioner? A: 1. Upon the death of an oldage pensioner or a member receiving the monthly income benefit for permanent disability, the qualified beneficiaries shall be entitled to the survivorship pension defined in Sec. 20 of this Act, subject to theprovisionsofpar.(b)ofSec.21. 2. When the pensioner dies within the period covered by the lump sum, the survivorship pension shall be paid only aftertheexpirationofthesaidperiod. Q: Gary Leseng was employed as a public school teacherattheMarinduqueHigh.OnApril27,1997, amemorandumwasissuedbytheschoolprincipal designating Gary to prepare the model dam project, which will be the official entry of the school in the search for Outstanding Improvised Secondary Science Equipment for Teachers. Gary compliedwithhissuperior'sinstructionandtook hometheprojecttoenablehimtofinishbefore the deadline. While working on the model dam project, he came to contact with a live wire and was electrocuted. The death certificate showed that he died of cardiac arrest due to accidental electrocution. Bella (Garys commonlaw wife) and Jobo (his onlyson)filedaclaimfordeathbenefitswiththe GSISwhichwasdeniedonthegroundthatGarys death did not arise out of and in the course of employment and therefore not compensable because the accident occurred in his house and not in the school premises. Is Bella entitled to file a claim for death benefits with the GSIS? Why? A: The beneficiaries of a member of the GSIS are entitled to the benefits arising from the death of said member. Death benefits are called survivorship benefits under the GSIS Law. Not beingabeneficiary,Bellaisnotentitled to receive survivorship benefits. She is not a beneficiary becausesheisacommonlawwifeandnotalegal dependentspouse.(1991BarQuestion) Q: Is the cause of death of Gary (cardiac arrest

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

121

UST GOLDEN NOTES 2011


due to accidental electrocution in his house) compensable?Why? A:Yes.TobecompensableundertheGSISLaw,the deathneednotbeworkconnected. Q: Abraham, a policeman, was on leave for a month.Whilerestingintheirhouse,heheardtwo of his neighbors fighting with each other. Abraham rushed to the scene intending to pacify the protagonists.However,hewasshotto death by one of the protagonists. Eva Joy, a housemaid, was Abraham's surviving spouse whom he had abandoned for another woman years back. When she learned of Abraham's death, Eva Joy filed a claim with the GSIS for death benefits. However, her claim was denied because:(a)whenAbrahamwaskilled,hewason leave; and (b) she was not the dependent spouse of Abraham when he died. Resolve with reasons whether GSIS is correct in denying the claim. A: Yes, because under the law, a dependent is one whoisalegitimatespouselivingwiththeEe. (Art.167[i],LC)In theproblemgiven,EvaJoy had been abandoned byAbrahamwhowasthenliving already with another woman at the time of his death. Moreover, Abraham was on leave when he was killed. The 24hour duty rule does not apply when thepolicemanisonvacationleave.(ECCv.CA,G.R. No. 121545, Nov. 14, 1996) Taking together jurisprudence and the pertinent guidelines of the ECC with respect to claims for death benefits, namely: 1. That the Ee must be at the place where hisworkrequireshimtobe; 2. That the Ee must have been performing hisofficialfunctions;and 3. That if the injury is sustained elsewhere, theEemusthavebeenexecutinganorder for the Er, it is not difficult to understand then why Eva Joy's claim was denied by the GSIS. (Tancinco v. GSIS, G.R. No. 132916,Nov.16,2001) In the present case, Abraham was resting at his house when the incident happened; thus, he was not at the place where his work required him to be.AlthoughatthetimeofhisdeathAbrahamwas performing a police function, it cannot be said that his death occurred elsewhere other than the place where he was supposed to be because he was executing an order for his Er. (2005 Bar Question) FuneralBenefits Q:Whatcomprisesthefuneralbenefit? A:CashnotlessthanP12,000tobeincreasedtoat leastP18,000after5years(specificallyyear2002). The amount shall be determined and specified by theGSISthroughaninformationcirculardistributed to all Ers for posting at their premises. (Sec. 23, par.1) Q:Whenwillitbepaid? A:Uponthedeathof: 1. Anactivemember 2. Amemberwhohasbeenseparatedfrom the service but is entitled to future separationorretirementbenefits 3. A member who is a pensioner (excluding survivorshippensioners) 4. A retiree who is at the time of his retirement was of pensionable age, at least 60 years old, who opted to retire under RA 1616 (An act further amending Sec.12, C.A. 186, as amended, by prescribingtwoothermodesofretirement andforotherpurposes). LifeInsurance Q:Whataretheclassesoflifeinsurancecoverage? A: 1. Compulsorylifeinsurance 2. Optionallifeinsurance
Note:Theplansmaybeendowmentorordinarylife.

Q:Whendoescompulsorylifeinsurancecoverage takeeffect? A: All Ees including the members of the Judiciary and the Constitutional Commissioners except for MembersoftheAFP,thePNP,BFPandBJMP,shall, under such terms and conditions as may be promulgated by the GSIS, be compulsorily covered with life insurance, which shall automatically take effectasfollows: 1. Those employed after the effectivity of this Act, their insurance shall take effect onthedateoftheiremployment; 2. For those whose insurance will mature after the effectivity of this Act, their insurance shall be deemed renewed on the day following the maturity or expiry dateoftheirinsurance;

122

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
3. Forthosewithoutanylifeinsuranceasof the effectivity of this Act, their insurance shalltakeeffectfollowingsaideffectivity. 2. Within15daysfromreceiptofthenotice ofdecisionoraward,theaggrievedparty mayappealthedecisionoftheGSISBoard of Trustees to the CA. Appeal shall be taken by filling a verified petition for review with the CA. (Sec 1 to 5, Rule 43, RulesofCourt) Whennoappealisperfectedandthereis no order to stay by the Board,by the CA orbytheSC,anydecisionorawardofthe Board shall be enforced and executed in thesamemannerasdecisionsoftheRTC. Note:Thesocialsecuritybenefitsshallbe exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasijudicial bodies or administrative agencies including the Commission on Audit, disallowances, and from all financial obligations of the members.

Q: When may a member obtain optional life insurancecoverage? A: 1. A member may at any time apply for himself and/or his dependents an insurance and/or preneed coverage embracing: a. Life b. Memorialplans c. Health d. Education e. Hospitalization f. Other plans as maybe designed by GSIS 2. Any employer may apply for group insurancecoverageforitsemployees. Q:WherecanGSISloansbeinvestedin? A: 1. In direct housing loans to members and group housing projects secured by first mortgage giving priority to the low incomegroups 2. In short and medium term loans to members such as salary, policy, educational, emergency stock purchase plan,andothersimilarloans Q: What is the prescriptive period to claim the benefits? A: GR:4Yearsfromthedateofcontingency XPN:Lifeinsuranceandretirement(Sec.28) Q: What is the process for the adjudication of claimsanddisputesregardingtheGSISbenefits? A:ThequasijudicialfunctionsoftheGSISshallbe vestedinitsBoardofTrustees. 1. The GSIS, in appropriate cases, or any person whose rights are or may be prejudiced by the operations or enforcementofR.A.8291andotherlaws administered by the GSIS, may file a petition before the GSIS either personally orthroughcounsel.

3.

Q:Mayamemberenjoythebenefitsprovidedfor in the Revised GSIS Act simultaneous with similar benefits provided under other laws for the same contingency? A:Wheneverotherlawsprovidesimilarbenefitsfor the same contingencies covered by this Act, the memberwhoqualifiestothebenefitsshallhavethe optiontochoosewhichbenefitswillbepaidtohim. However,ifthebenefitsprovidedbythelawchosen are less than the benefits provided under this Act, theGSISshallpayonlythedifference.(Sec.55) d.Beneficiaries Q:Whoaretheconsideredbeneficiaries? A: 1. Primarybeneficiaries a. The legal dependent spouse until he/sheremarriesand b. Thedependentchildren.(Sec.2[g]) 2. Secondarybeneficiaries a. Thedependentparentsand b. Subject to the restrictions on dependent children, the legitimate descendants.(Sec.2[h]) Q:Whoareconsidereddependents? A: 1. Legitimatespousedependentforsupport uponthememberorpensioner; 2. Legitimate, legitimated, legally adopted child,includingtheillegitimatechild, a. whoisunmarried,

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

123

UST GOLDEN NOTES 2011


b. c. notgainfullyemployed, not over the age of majority, or if over the age of majority, incapacitated and incapable of self support due to a mental or physical defect acquired prior to age of majority;and Parentsdependentuponthememberfor support.(Sec.2[f]) 3.LIMITEDPORTABILITYLAW (RA7699) Q:WhatistheLimitedPortabilityRule? A: A covered worker who transfers employment fromonesectortoanotherorisemployedonboth sectors, shall have creditable services or contributions on both Systems credited to his service or contribution record in each of the Systems and shall be totalized for purposes ofold age, disability, survivorship, and other benefits in eitherorbothSystems.(Sec.3) All contributions paid by such member personally, andthosethatwerepaidbyhisemployerstoboth Systems shall be considered in the processing of benefits which he can claim from either or both Systems.(Sec.4) Q:Howarethe"portability"provisionsofR.A.No. 7699 beneficial or advantageous to SSS and GSIS members in terms of their creditable employment servicesintheprivatesectororthegovernment,as the case may be, for purposes of death, disability orretirement? A: Portability provisions of R.A. No. 7699 shall benefit a covered worker whose creditable services or contributions in both systems credited tohisserviceorcontributionrecordineachofthe system and shall be totalized for purposes of old age, disability, survivorship and other benefits. (Sec. 3) The"portability"provisionsofR.A.7699allowthe transferoffundsfortheaccountandbenefitofthe workerwhotransfersfromonesystemtoanother. This is advantageous to the SSS and GSIS members for purposes of death, disability or retirement benefits. In the event the employees transfer from theprivatesectortothepublicsector,orviceversa, their creditable employment services and contributions are carried over and transferred as well.(2005BarQuestion) 4.EMPLOYEESSCOMPENSATION Q: Discuss briefly the Employees Compensation Program(ECP). A: It is the program provided for in Article 166 to 208 of the Labor Code whereby a fund known as the State Insurance Fund (SIF) is established through premium payments exacted from Ers and from which the Ees and their dependents in the event of workconnected disability or death, may promptly secure adequate income benefit, and medicalorrelatedbenefits. Coverage Q:WhoaresubjecttocoverageundertheECP? A:ErsandtheirEesnotoversixty(60)yearsofage are subject to compulsory coverage under this program. TheErmaybelongtoeitherthe: 1. Public sector covered by the GSIS, comprising the National Government, including GOCCs, PhilippineTuberculosesSociety,thePhilippine NationalRedCros,andthePhilippineVeterans Bank;and 2. Private sector covered by the SSS, comprising all Ers other than those defined in the immediatelyprecedingparagraph. TheEemaybelongtoeitherthe: 1. Public sector comprising the employed workers who are covered by the GSIS, including the members of the AFP, elective officials who are receiving regular salary and any person employed as casual emergency, temporary,substituteorcontractual; 2. Private sector comprising the employed workerswhoarecoveredbytheSSS. Q:Whendoescompulsorycoveragetakeeffect? A: 1. Employeronthefirstdayofoperation 2. Employeeonthedayofhisemployment Q:WhatisanOccupationalDisease? A: One which results from the nature of the employment, and by nature is meant conditions which all Ees of a class are subject and which produce the disease as a natural incident of a particular occupation, and attach to that

3.

124

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
occupationahazardwhichdistinguishesitfromthe usual run of occupations and is in excess of the hazardattendingtheemploymentingeneral To be occupational, the disease must be one wholly due to causes and conditions which are normalandconstantlypresentandcharacteristicof theparticularoccupation. Q:WhatisSickness? A: It means any illness definitely accepted as an occupational disease listed by the Commission or anyillnesscausedbyemployment,subjecttoproof thattheriskofcontractingthesameisincreasedby workingconditions(Art.167(l),LC). Q:DiscussbrieflythetheoryofIncreasedRisk. A:ThetermsicknessasdefinedinArticle167(l)of the Labor Code is a recognition of the theory of increased risk. To establish compensability under thesame,theclaimantmustshowsubstantialproof ofworkconnection,butwhatisrequiredismerely a reasonable workconnection and not a direct causalrelation.Proofofactualcauseoftheailment isnotnecessary.Thetestofevidenceofrelationof thediseasewiththeemploymentisprobabilityand notcertainty.(Jimenezv.EmployeesCompensation Commission, G.R. No. L58176, March 23, 1984; Panotesvs.ECC,G.R.No.L64802,March29,1984) Q: May an illness not listed by the Employees Compensation Commission as an occupational diseasebecompensable? A:WheretheillnessisnotlistedbytheEmployees Compensation Commission as an occupational disease, it must be established that the risk of contracting the same is increased by working conditions. Q:WhatdefensesmaybeinterposedbytheState Insurance Fund (SIF) against a claim for compensation made by a covered Ee or his dependents? A:Thefollowingdefensesmaybesetup: 1. Injury is not workconnected or the sicknessisnotoccupational 2. Disabilityordeathwasoccasionedbythe Eesintoxication,wilfulintentiontoinjure orkillhimselforanother,orhisnotorious negligence(Art.172,LC) 3. Nonoticeofsickness,injuryordeathwas giventotheEr(Art.206,LC) 4. Claim was filed beyond three (3) years fromthetimethecauseofactionaccrued (Art.201,LC,asamendedbyP.D.1921)

Note: Notorious negligence is equivalent to gross negligence; it is something more than mere carelessnessorlackofforesight.

Q: Abraham Dino works as a delivery man in a construction supply establishment owned by Abraham Julius. One day, while Dino was making reportsonhisdelivery,hehadanaltercationwith Julius; irked by the disrespectful attitude of Dino, JuliuspulledouthisgunandshotDino,hittinghim in the spinal column and paralyzing him completely.Juliuswasprosecutedfortheact. 1. Is the disability suffered by Abraham Dino compensable? 2. IfAbrahamDinorecoverscompensationfrom the SIF, can he still recover from Abraham Juliusdamagesinthecriminalcase?Why? A: 1. Yes.TheinjurywassustainedbyAbrahamDino in his place of work and while in the performanceofhisofficialfunctions. 2. No. Under Article 173 of the Labor Code, as amendedbyP.D.1921,theliabilityoftheState Insurance Fund under the Employees Compensation Program shall be exclusive and in place of all other liabilities of the Er to the Ee or his dependents or anyone otherwise entitled to recover damages on behalf of the Eeorhisdependents. Q: Socrates Benjie, a truck driver employed by a local construction company, was injured in an accident while on assignment in one of his employers project in Iraq. Considering that his injury was sustained in a foreign country, is SocratesBenjieentitledtobenefitsundertheECP? A:Yes.Filipinosworkingabroadintheserviceofan Er, domestic or foreign, who carries on in the Philippines any trade, business, industry, undertaking or activity of any kind, are covered by theECP.(Rule1,Section5,ECCRules;Art.169,LC) Q: What is the Going and Coming Rule? Is this ruleabsolute? A: GR: In the absence of special circumstances, an Ee injured while going to or coming fromhis place ofworkisexcludedfromthebenefitsofWorkmens CompensationAct. XPNS:

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

125

UST GOLDEN NOTES 2011


1. 2. WheretheEeisproceedingtoorfromhis workonthepremisesoftheEr; ProximityRulewheretheEeisaboutto enter or about to leave the premises of his Er by way of exclusive or customary meansofingressandegress; Eeischarged,whileonhiswaytoorfrom his place of employment or at his home, or during this employment with some dutyorspecialerrandconnectedwithhis employment;and Where the Er as an incident of the employment provides the means of transportation to and from the place of employment. 2. 3. 4. DisabilityBenefits DeathBenefits FuneralBenefits

3.

4.

Q:WhoareentitledtobenefitsundertheECP? A: The covered Ee, his dependents, and in case of hisdeath,hisbeneficiaries. Q:WhoarethedependentsoftheEe? A: 1. Legitimate, legitimated, legally adopted or acknowledged natural child who is unmarried, not gainfully employed, and not over twentyone (21) years of age or over twentyone (21) years of age provided he is incapacitated and incapableofselfsupportduetoaphysical or mental defect which is congenital or acquiredduringminority; 2. LegitimatespouselivingwiththeEe;and 3. ParentsofsaidEewhollydependentupon himforregularsupport.(Art.167(i),LC,as amendedbyP.D.1921) Q:Whoareincludedinthetermbeneficiaries? A: "Beneficiaries" means the dependent spouse untilheremarriesanddependentchildren,whoare the primary beneficiaries. In their absence, the dependent parents and subject to the restrictions imposed on dependent children, the illegitimate children and legitimate descendants who are the secondary beneficiaries;Provided, that the dependent acknowledged natural child shall be consideredasaprimarybeneficiarywhenthereare nootherdependentchildrenwhoarequalifiedand eligibleformonthlyincomebenefit.(Art.167,LC,as amendedbySec.I,P.D.1921) Q: What are the benefits which may be enjoyed undertheSIF? A: 1. MedicalBenefits

MedicalBenefit Q: What are the conditions of entitlement to MedicalServices? A:ForanEetobeentitledtomedicalservices,the followingconditionsmustbesatisfied: 1. HehasbeendulyreportedtotheSystem (SSSorGSIS); 2. He sustains a permanent disability as a resultofaninjuryorsickness;and 3. TheSystemhasbeennotifiedoftheinjury orsicknesswhichcausedhisdisability. DisabilityBenefit Q:Whataredisabilitybenefits? A: They are income benefits in case of temporary total disability, permanent total disability and permanentpartialdisability Q: What are the disabilities that are considered totalandpermanent? A: The following disabilities shall be deemed total andpermanent: 1. Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise providedforintheRules; 3. Completelossofsightofbotheyes; 4. Lossoftwolimbsatorabovetheankleor wrist; 5. Permanent complete paralysis of two limbs; 6. Brain injury resulting in incurable imbecilityorinsanity;and 7. SuchcasesasdeterminedbytheMedical Director of the System and approved by theCommission.(Art.192(c),LC) Q: May a permanent partial disability be converted to permanent total disability after the Eesretirement?Why? A:Yes.Thisisinlinewiththesocialjusticeprovision in the Constitution. A persons disability may not manifestitselffullyatoneprecisemomentintime but rather over a period of time. And disability should not be understood more on its medical significancebutonthelossofearningcapacity.

126

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

SOCIAL LEGISLATION
Q: May permanent total disability arise although the Ees does not lose the use of any part of his body? A: Yes. Where the Ee is unable, by reason of the injuryorsickness,toperformhiscustomaryjobfor more than 120 days, permanent total disability arises. (Ijares vs. CA, G.R. No. 105854, August 26, 1999) DeathBenefit Q: What are the conditions for entitlement to deathbenefits? A: The beneficiaries of a deceased Ee shall be entitledtoanincomebenefitifallofthefollowing conditionsaresatisfied: 1. The Ee has been duly reported to the System; 2. He died as a result of an injury or sickness;and 3. The System has been duly notified of his death, as well as the injury or sickness whichcausedhisdeath. Q: For how long are the primary beneficiaries entitledtothedeathbenefits? A: 1. Dependent Spouseuntil he or she remarries. 2. Dependent Childrenuntil they get married, or find gainful employment, or reachtwentyone(21)yearsofage. 3. Dependent Child suffering from physical or mental defectuntil such defect disappears. Q: If an Ee suffers disability or dies before he is duly reported for coverage to the System (SSS or GSIS),whowillbeliableforthebenefits? A: TheEr(Sec.1,RuleX;Sec.1,RuleXI;Sec.1,Rule XII;Sec.1,RuleXIII;ECCRules) FuneralBenefit Q:Whatisthefuneralbenefit? A: A funeral benefit of P10, 000.00 shall be paid upon the death of a covered Ee or permanently totallydisabledpensioner. Q: When is an Er liable to pay a penalty to the StateInsuranceFund(SIF)? A: In case the employee's injury or death was due to the failure of the employer to comply with any law, or to install and maintain safety devices, or takeotherprecautionsforthepreventionofinjury, saidemployershallpaytotheStateInsuranceFund a penalty of twentyfive percent of the lump sum equivalent of the income benefit payable by the System to the employee. All employers, especially those who should have been paying a rate of contribution higher than required of them under thisTitle,areenjoinedtoundertakeandstrengthen measuresfortheoccupationalhealthandsafetyof theiremployee.(Art.200,LC) Q:Whoarerequiredtomakecontributionstothe SIF? A: Contributions under this Title shall be paid in theirentiretybytheemployerandanycontractor device for the deduction of any portion thereof from the wages or salaries of the employees shall benullandvoid.(Art.183(c),LC) The Republic of the Philippines guarantees the benefits prescribed under this Title, and accepts general responsibility for the solvency of the State InsuranceFund.Incaseofanydeficiency,thesame shall be covered by supplemental appropriation fromthenationalgovernment.(Art.184,LC) Q: When does the right to compensation or benefit for loss or impairment of an Ees earning capacity due to workrelated illness or injury arise? A: It arises or accrues upon, and not before, the happening of the contingency. Hence, an Ee acquires no vested right to a program of compensation benefits simply because it was operative at the time he became employed. (San Miguel Corporation vs. NLRC, G.R. No. 57473, August15,1988) Q: Does recovery from the SIF bar a claim for benefitsundertheSSSLaw?Why? A:No,asexpresslyprovidedforinArticle173ofthe Labor Code, payment of compensation under the SIFshallnotbartherecoveryofbenefitsunderthe SSS Law, Republic Act No. 1161, as amended. BenefitsundertheSIFaccruetotheEesconcerned duetohazardsinvolvedandaremadeaburdenon the employment itself. On the other hand, social security benefits are paid to SSS members by reasonoftheirmembershipthereinforwhichthey contribute their money to a general fund. (Maao Sugar Central Co., Inc. vs. CA, G.R. No. 83491, August27,1990)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

127

UST GOLDEN NOTES 2011


G.LABORRELATIONSLAW 1.RIGHTTOSELFORGANIZATION a.Whomayunionizeforpurposesofcollective bargaining Q: What is the extent of the right to self organization? A:Itincludestheright: 1. To form, join and assist labor organizations for the purpose of collective bargaining (CB) through representatives of their own choosing;and 2. To engage in lawful and concerted activitiesforthepurposeofCBorfor theirmutualaidandprotection.(Art. 246) Q: Who are the persons/Ees eligible to join a labororganization(LO)forpurposesofCB? A:Theentitiescoveredareallpersonsemployedin: 1. Commercial industrial, and agricultural enterprises;and 2. In religious, charitable, medical or educational institutions whether operatingforprofitornot.(Art.243) Q: Who are the persons/Ees eligible to join a labororganizationformutualaidandprotection? A:Thefollowingenjoytherighttoselforganization formutualaidandprotection: 1. Ambulantworkers 2. Intermittentworkers 3. Itinerantworkers 4. Selfemployedpeople 5. Ruralworkers 6. Those without and definite Ers. (Art. 243) Q:Whoarethepersons/Eesnotgrantedtheright toselforganization: A: 1. High level or Managerial Government Ees.(Sec.3,E.O.180) 2. Ees of International organizations with immunities. (ICMC v. Calleja, G.R. No. 85750,Sep.28,1990) 3. ManagerialEmployees.(Art.212ofLC) 6. 5. 4. Members of the AFP including the police officers, policemen, firemen, and jail guards.(Sec.4,E.O.180) Confidential Employees. (Metrolab Industries Inc. v. Confesor, G.R. No. 108855,Feb.28,1996) Employees of cooperatives who are its members.(BenguetElec.Coop.v.Ferrer Calleja, G.R. No. 79025, Dec. 29, 1989); However they may form workers association. (NEECO Ees Assoc. v. NLRC, G.R.No.16066,Jan.24,2000) NonEes.(RosarioBros.v.Ople,G.R.No. L5390,July31,1984) GovtEes,includingGOCCswithoriginal charters.(Arizalav.CA,G.R.Nos.43633 34,Sep.14,1990) Aliens without a valid working permit or aliens with working permits but are nationalsofacountrywhichdonotallow Filipinos to exercise their right of self organization and to join or assist labor organizations.(Art.269ofLC;D.O.No.9 [1997],RuleII,Sec.2)

7. 8.

9.

b.BargainingUnit Q:Whatisabargainingunit? A:ItisagroupofEesofagivenEr,comprisedofall orlessthanalloftheentirebodyoftheEeswhich thecollectiveinterestofalltheEesconsistentwith equitytotheemployer,indicatetobebestsuitedto servethereciprocalrightsanddutiesoftheparties under the collective bargaining provisions of the law. Q:Whatisanappropriatebargainingunit? A: 1.Agroupofemployees(Ees) 2. Ofagivenemployer 3. Comprised of all or less than all of the entirebodyofEes 4. WhichthecollectiveinterestofalltheEes consistentwithequitytotheEr 5. Indicate to be best suited to serve the reciprocalrightsanddutiesoftheparties underthecollectivebargainingprovisions ofthelaw. (1)Testtodeterminetheconstituencyofan appropriatebargainingunit Q:Whatarethefactorsconsideredindetermining theappropriatenessofabargainingunit? A: 1. WilloftheEes.(GlobeDoctrine)

128

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


2. AffinityandunityoftheEesinterest,such as substantial similarity of work and duties, or similarity of compensation and working conditions. (Substantial Mutual InterestRule) Priorcollectivebargaininghistory Similarityofemploymentstatus.(SMCv. Laguesma, G.R. No. 100485, Sep. 21, 1994) A:No.Whiletheexistenceofabargaininghistoryis afactorthatmaybereckonedwithindetermining the appropriate bargaining unit, the same is not decisive or conclusive. Other factors must be considered. The test of grouping is community or mutuality of interests. This is so because the basic testofanassertedbargainingunitsacceptabilityis whetherornotitisfundamentallythecombination whichwillbestassuretoallEestheexerciseoftheir CB rights. (Democratic Labor Assn v. Cebu Stevedoring Company, Inc., G.R. No. L10321, Feb. 28,1958) Q:Whatisoneunion,onecompanypolicy? A:GR:ItistheproliferationofunionsinanErunit. Suchisdiscouragedasamatterofpolicyunless therearecompellingreasonswhichwoulddeny a certain class of Ees to the right to self organization for purposes of collective bargaining(CB). XPNs: 1. SupervisoryEeswhoareallowedtoform their own unions apart from the rank andfileEesand 2. ThepolicyshouldyieldtotherightofEes to form union for purposes not contrary tolaw,selforganizationandtoenterinto CBnegotiations.
Note: Two companies cannot be treated into a single bargaininguniteveniftheirbusinessesarerelated. Subsidiaries or corporations formed out of former divisions of a mother company following a re organization may constitute a separate bargaining unit.

3. 4.

Q:Whatarethefactorsconsideredindetermining thesubstantialmutualinterestdoctrine? A: 1. Similarity in the scale and manner of determiningearnings 2. Similarity in employment benefits, hours of work, and other terms and conditions ofemployment 3. Similarityinthekindsofworkperformed 4. Similarity in the qualifications, skills and trainingofEes 5. Frequency of contract or interchange amongtheEes 6. Geographicalproximity 7. Continuity and integration of production processes 8. Common supervision and determination oflaborrelationspolicy 9. HistoryofCB 10. DesiresoftheaffectedEesor 11. Extentofunionorganization Q:AregisteredlaborunioninUP,ONAPUP,fileda petitionforcertificationelection(PCE)amongthe nonacademicEes.Theuniversitydidnotoppose, however,anotherlaborunion,theAllUPWorkers Union assents that it represents both academic andnonacademicpersonnelandseekstouniteall workers in 1 union. Do Ees performing academic functions need to comprise a bargaining unit distinctfromthatofthenonacademicEes? A: Yes. The mutuality of interest test should be takenintoconsideration.Therearetwoclassesof rankandfileEesintheuniversitythatis,thosewho performacademicfunctionssuchastheprofessors andinstructors,andthosewhosefunctionarenon academic who are the janitors, messengers, clerks etc.Thus,notmuchreflectionisneededtoperceive that the mutuality of interest which justifies the formation of a single bargaining unit is lacking between the two classes of Ees. (U.P. v. Ferrer Calleja,G.R.No.96189,July14,1992) Q:Isthebargaininghistoryadecisivefactorinthe determination of appropriateness of bargaining unit?

Q:UnionfiledaPCEamongtherankandfileEes of three security agencies including the Veterans Security.Thelatteropposedallegingthatthethree security agencies have separate and distinct corporatepersonalities.MayasinglePCEfiledbya labor union in the three corporations instead of filing3separatepetitions? A: Yes. The following are indications that the 3 agencies do not exist and operate separately and distinctly from each other with different corporate direction and goals: 1) Veterans Security failed to rebut the fact that they are managed through the Utilities Management Corp with all their Ees drawing their salaries and wages from the said entity; 2) that the agencies have common and interlockingincorporatorsandofficers;3)thatthey haveasinglemutualbenefitsystemandfolloweda single system of compulsory retirement. 4) they could easily transfer security guards of one agency

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

129

UST GOLDEN NOTES 2011


to another and back again by simply fillingup a common proforma slip; 5) they always hold joint yearly ceremonies such as the PGA Annual Awards Ceremony;and6)theycontinuetoberepresented byonecounsel. Hence, the veil of corporate fiction of the 3 agencies should be lifted for the purpose of allowing the Ees of the 3 agencies to form single union.Asasinglebargainingunit,theEesneednot file 3 separate PCE. (Philippine Scout Veterans Security and Investigation Agency v. SLE, G.R. No. 92357,July21,1993) (2)VoluntaryRecognition Q: What are the 3 methods of determining the bargainingrepresentative? A: 1. 2. Voluntaryrecognition Certificationelectionwithorwithoutrun off Consentelection 3.
through the Labor Relations Division shall, within 10 daysfromreceiptofthenotice,recordthefactofVRin its roster of legitimate labor unions and notify the laborunionconcerned.

Q:Whatarethethree(3)conditionstovoluntary recognition(VR)? A:VRrequires3concurrentconditions: 1. VR is possible only in an unorganized establishment. Onlyoneunionmustaskforrecognition.If there 2 or more unions asking to be recognized, the Er cannot recognize any of them; the rivalry must be resolved throughanelection. The union voluntarily recognized should bethemajorityunionasindicatedbythe fact that members of the bargaining unit did not object to the projected recognition. If no objection is raised, the recognitionwillproceed,theDOLEwillbe informed and CBA recognition will commence. If objection is raised, the recognition is barred and a certification election or consent election will have to takeplace.

2.

3. Q:Whatisvoluntaryrecognition(VR)?

A:Theprocessbywhichalegitimatelaborunionis recognized by the employer (Er) as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office. (Sec. 1 [bbb],RuleI,BookV,IRR) Q:WhataretherequirementsforVR? A: The notice of VR shall be accompanied by the originalcopyand2duplicatecopiesofthefollowing reqts: 1. 2. JointstatementunderoathofVR Certificate of posting of joint statement for 15 consecutive days in at least 2 conspicuous places in the establishment ofthebargainingunit Certificateofposting Approximate number of Ees in the bargaining unit and the names of those whosupportedtherecognition Statementthatthelaborunionistheonly LLOoperatingwithinthebargainingunit.

Note: In an organized establishment, voluntary recognitionisnotpossible.ApetitiontoholdaCEhas tobefiledwithinthefreedomperiodwhichmeansthe last 60 days of the 5th year of the expiring CBA. The petition may be filed by any Legitimate Labor Organization(LLO),butthepetitionmusthavewritten support of at least 25% of the Ees in the bargaining unit.

3. 4.

Q:WhereandwhentofilethepetitionforVR? A: Within 30 days from such recognition, Er shall submit a notice of VR with the Regional Office which issued the recognized labor unions certificate of registration or certificate of creation ofacharteredlocal. Q: What are the effects of recording of fact of voluntaryrecognition(VR)? A: 1. The recognized labor union shall enjoy therights,privilegesandobligationsofan existing bargaining agent of all the employees(Ees)inthebargainingunit. Itshallalsobarthefilingofapetitionfor certification election by any labor

5.

Note: Where the notice of voluntary recognition is sufficient in form, number and substance and where thereisnoregisteredlaborunionoperatingwithinthe bargaining unit concerned, the Regional Office,

2.

130

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


organization for a period of 1 year from thedateofentryofVR. (3)CertificationElection Q:Whatiscertificationelection(CE)? A: It is the process of determining through secret ballot the sole and exclusive representative of the Eesinanappropriatebargainingunit,forpurposes ofCBornegotiation.(Sec.1[h],RuleI,BookV,IRR)
Note:TheprocessiscalledCEbecauseitservesasthe official, reliable and democratic basis for the BLR to determine and certify the union that shall be the exclusive bargaining representative of the Ees for the purposeofbargainingwiththeEr. Note:SomeoftheEesmaynotwanttohaveaunion; hence,nounionisoneofthechoicesnamedinthe ballot. If no union wins, the company or the bargaining unit remains ununionized for at least 12 months, the period is known as 12month bar. After thatperiod,apetitionforaCEmaybefiledagain.

Q:Distinguishtherequisitesforapetitionfor certificationelectionbetweenanorganizedandan unorganizedestablishment. A:


Art.256.ORGANIZED Art.257.UNORGANIZED Bargainingagent Present None Petitionfiled Hastobeaverified Noneedtobeverified petition FreedomPeriod NopetitionforCEexcept Notapplicable.No within60daysbeforethe freedomperiod.Petition expirationoftheCBA. canbefiledanytime. (SeeArt.253&253A) Substantialsupportrule Mustbedulysupported Nosubstantialsupport by25%ofallthe rule. membersofthe appropriatebargaining Why?Intentionoflawis unit(ABU). tobringintheunion,to implementpolicybehind Percentagebase:all Art.211(a). membersofanABU.

Q:Whatisthenatureofcertificationelection? A: A certification election is not a litigation but merely an investigation of a nonadversarial fact finding character in which BLR plays a part of a disinterested investigator seeking merely to ascertain the desire of the employees as to the matter of their representation. (Airline Pilots Assn ofthePhilippinesv.CIR,G.R.No.L33705,April15, 1977) Q:Whatisthepurposeofacertificationelection? A:Itisameansofdeterminingtheworkerschoice of: 1. Whether they want a union to represent them for collective bargaining or if they wantnouniontorepresentthematall. 2. And if they choose to have a union to represent them, they will choose which among the contending unionswill be the sole and exclusive bargaining representative of the employees in the appropriatebargainingunit. Q:Whataretheissuesinvolvedinacertification proceeding? A: Certification proceedings directly involve two issues: 1. 2. Proper composition and constituency of thebargainingunit;and The veracity of majority membership claims of the competing unions so as to identity the one union that will serve as the bargaining representative of the entirebargainingunit.

Note: The approval of the PCE in an unorganized bargainingunitisNEVERappealable,thereasonbeing thatthelawwantstheununionizedtobeunionized.

Q:Should the consent signatures of at least 25% of the Ees in the bargaining unit be submitted simultaneously with the filing of the petition for certificationelection(PCE)? A: No, the administrative rule requiring the simultaneous submission of the 25% consent signatures upon the filing of PCE should not be strictlyappliedtofrustratethedeterminationofthe legitimate representative of the workers. Accordingly,theCourtheldthatthemerefilingofa PCEwithinthefreedomperiodissufficientbasisfor the issuance of an order for the holding of a CE, subjecttothesubmissionoftheconsentsignatures within a reasonable period from such filing. (Port WorkersUnion ofthePhils.v.Laguesma,G.R.Nos. 9492930,Mar.18,1992) Q: Who may file a petition for certification election(PCE)? A: 1. Anylegitimatelabororganization(LLO)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

131

UST GOLDEN NOTES 2011


2. A national union or federation which has already issued a charter certificate to its localchapterparticipatingintheCE A local chapter which has been issued a chartercertificate An Er only when requested to bargain collectivelyinabargainingunitwhereno registered CBA exists. (Sec. 1, Rule VIII, BookV,IRRasamendedbyD.O.40F03)
bylaws Righttovoteisenjoyed onlybyunionmembers AllEeswhetherunionor nonunionmemberswho belongtotheappropriate bargainingunitcanvote ThewinnerinaCEisan entity,aunion,which becomesthe representativeofthe wholebargainingunit thatincludeseventhe membersofthedefeated unions.

3. 4.

Note:Anationalunionorfederationfilingapetitionin behalf of its local/chapter shall not be required to disclose the names of the local/chapters officers and members, but shall attach to the petition the charter certificate it issued to its local/chapter. (Sec. 1, Rule VIII,BookV,IRRasamendedbyD.O.40F03)

Winnersofunionelection becomeofficersand representativesofthe uniononly

Note: Both in CE and union election, the prescribed proceduresshouldbefollowed.

Q:Mayanemployeeinterveneinthepetitionfor certificationelection(PCE)? A: Yes, for the purpose of protecting his individual right.(Sec.1,RuleVIII,BookV,IRRasamendedby D.O.4003) Q:WhereisPCEfiled? A: It shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local.(ImplementingRules,asamendedbyD.O.40 03) Q:WhoshallhearandresolvethePCE? A:TheMediatorArbiter. Q:WhentofilePCE? A: The proper time to file the PCE depends on whethertheCertifiedBargainingUnithasaCBAor not: 1. IfithasnoCBA,thepetitionmaybefiled anytime outside the 12month bar (certificationyear). 2. IfithasCBA,itcanbefiledonlywithinthe th last60daysofthe5 yearoftheCBA.
Note: Attheexpirationofthefreedomperiod,theEr shall continue to recognize the majority status of the incumbentbargainingagentwherenoPCEisfiled.

Q:Cana"nounion"wininacertificationElection (CE)? A:Yes.BecausetheobjectiveinaCEistoascertain the majority representation of the bargaining representative,iftheEesdesiretoberepresented at all by anyone. Hence, no union is one of the choicesinaCE.(2006BarQuestion) AlternativeAnswer: No.AnounioncannotwininaCE.Thepurposeofa CE is to select an excusive bargaining agent and a nounionvotewouldpreciselymeanthatthevoter isnotchoosinganyofthecontendingunions.Ifthe nounion votes constitute a majority of the valid votescast,thisfactwillall themoremeanthatno union won in CE. A oneyear bar will consequently stop the holding of another CE to allow the Er to enjoyindustrialpeaceforatleastoneyear. Q: In what instance may a PCE be filed outside the freedom period of acurrentCBA? A: As a general rule, in an establishment where there is a CBA in force and effect, a PCE may be filed only during the freedomperiod of such CBA. But to have that effect, the CBA should have been filedandregisteredwiththeDOLE.(Art.231,253A and256,LC).(1997BarQuestion) Thus,aCBAthathasnotbeenfiledandregistered with the DOLE cannot be a bar to a CE and such electioncanbeheldoutsidethefreedomperiodof suchCBA. AlternativeAnswer: APCEmaybefiledoutsidethefreedomperiodof acurrentCBAifsuchCBAisanewCBAthathas been prematurely entered into, meaning, it was entered into before the expiry date of the old CBA. The filing of the PCE shall be within the

Q: Distinguish union election from certification election. A:


UNIONELECTION Heldpursuanttothe unionsconstitutionand CERTIFICATIONELECTION Theprocessisordered andsupervisedbyDOLE

132

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


freedomperiodoftheoldCBAwhichisoutsidethe freedom period of the new CBA that had been prematurelyenteredinto. Q: Are probationary employees (Ees) entitled to voteinaCE?Why? A: Yes, in a CE, all rankandfile Ees in the appropriate bargaining unit (ABU) are entitled to vote. This principle is clearly stated inArt.255 of the LC which states that the "labor organization designatedorselectedbythemajorityoftheEesin such unit shall be the exclusive representative of the Ees in such unit for the purpose of collective bargaining(CB)." CB covers all aspects of the employment relation and the resultant CBA negotiated by the certified unionbindsallEesinthebargainingunit.Hence,all rankandfileEes,probationaryorpermanent,have a substantial interest in the selection of the bargaining representative. The LC makes no distinction as to their employment status as basis for eligibility to vote in the petition for CE. The law refers to "all" the Ees in the bargaining unit. All they need to be eligible to vote is to belong to the "bargaining unit" (AirtimeSpecialists,Inc.v. FerrerCalleja, G.R. No. 8061216, Dec. 29, 1989). (1999BarQuestion) Q:Whatisdirectcertification? A: It is the process whereby the MedArbiter directly certifies a labor organization of an appropriate bargaining unit (ABU) of a company after a showing that such petition is supported by atleastamajorityoftheEesinthebargainingunit. Q: Does the failure of SAMAFIL (an independent union) to prove its affiliation with NAFLUKMU federation affect its right to file a PCE as an independentunion? A:No,asaLLO,ithastherighttofileaPCEonits own beyond question. Its failure to prove its affiliation with the NAFLUKMU cannot affect its right to file said PCE as an independent union. At the most, its failure will result in an ineffective affiliationwithNAFLUKMU.Despiteaffiliation,the localunionremainsthebasicunitfreetoservethe commoninterestofallitsmembersandpursueits own interests independently of the federation. (Samahan ng mga Manggagawa sa Filsystems v. SLE,G.R.No.128067,June5,1998) Q: May illegally dismissed Ees of the company participateinthecertificationelection(CE)? 4. 2. A: Yes, it is now wellsettled that Ees who have been improperly laid off but who have at present an unabandoned right to or expectation of re employment,areeligibletovoteinCEs.Thus,and to repeat, if the dismissal is under question, as in the case now at bar whereby a case of illegal dismissal and/or ULP was filed,the Ees concerned could still qualify to vote in the elections. (Phil. Fruits & Vegetables Industries v. Torres, G.R. No. 92391,July3,1992) Q:Isdirectcertification(DC)stillallowed? A: No. Even in a case where a union has filed a petition for CE, the mere fact that there was no opposition does not warrant a DC. More so in a casewhentherequiredproofisnotpresentedinan appropriate proceeding and the basis of the DC is the unions selfserving assertion that it enjoysthe support of the majority of the Ees, without subjecting such assertion to the test of competing claims. (Samahang Manggagawa sa Permex v. Secretary,G.R.No.107792,Mar.2,1998) Q:WhatarethegroundsfordenyingthePCE? A: 1. Thepetitioningunionorfederationisnot listed in the DOLEs registry of legitimate labor unions or that its registration certificate legal personality has been revokedorcancelledwithfinality Failure of a local chapter or national union/federation to submit a duly issued charter certificate upon filing of the petition Thepetitionwasfiledbeforeorafterthe FREEDOM PERIOD of a duly registered CBA; provided that the 60day period based on the original CBA shall not be affectedbyanyamendment,extensionor renewaloftheCBA;(contractbarrule) The petition was filed within 1 year from entry of voluntary recognition or within thesameperiodfromavalidcertification, consentorrunoffelectionandnoappeal ontheresultsofthecertification,consent or runoff election is pending; (12month bar;certificationyearbarrule) A duly certified union has commenced and sustainednegotiations with the Er in accordancewithArt.250oftheLCwithin the1yearperiod.(negotiationbarrule) There exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of avalidnoticeofstrikeorlockouttowhich an incumbent or certified bargaining agentisaparty.(deadlockbarrule)

3.

5.

6.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

133

UST GOLDEN NOTES 2011


In case of an organized establishment, failure to submit the 25% support reqt forthefilingofthePCE. 8. Nonappearance of the petitioner for 2 consecutive scheduled conferences before the medarbiter despite due notice,and 9. AbsenceofErEerelationshipbetweenall themembersofthepetitioningunionand the owner of the establishment where theproposedbargainingunitissoughtto berepresented.(Sec.14[a],RuleVIII,Book V,IRR,asamendedbyD.O.40F03) Q: What is a prohibited ground for the denial/suspension of the petition for certification election? A: The inclusion as union members of Ees outside the bargaining unit. Said Ees are automatically deemed removed from the list of membership of saidunions. Q: Does the filing of a petition to cancel the petitioners registration cause the suspension or dismissalofthepetitionforcertificationelection? A:No.ToserveasagroundfordismissalofaPCE, the legal personality of the petitioner should have beenrevokedorcancelledwithfinality. Q: UNIDAD, a labor organization claiming to represent the majority of the rank and file workers of BAGSAK Toyo Manufacturing Corp. (BMTC), filed a petition for CE during the freedom period obtaining in said corp. Despite the opposition thereto by SIGAW Federation on the ground that UNIDAD was not possessedwithalltheattributesofaduly registeredunion,theMedArbiterissuedanorder calling for a CE on July 25, 2001. This order was promulgated and served on the parties on July 12, 2001. On July 14, 2001, UNIDAD submitted and served the required documents for its registration as an independent union, which documentswereapprovedbytheDOLEonJuly15, 2001. During the elections, UNIDAD won over SIGAW. SIGAWquestionedUNIDAD'svictoryonthe ground that UNIDAD was not a duly registered union when it filed the petition for a CE. Shall SIGAWscaseprosperornot?Why? A: No, SIGAW's case will not prosper. The application of technicalities of procedural reqts in CE disputes will serve no lawful objective or purpose. It is a statutory policy that no obstacles shouldbeplacedontheholdingofaCE,(Samahang 7. ng Manggagawa sa Pacific Plastic vs. Laguesma, G.R.No.111245,Jan.31,1997)andthatthelawis indisputablypartialtotheholdingofaCE.(Western Agusanvs.TrajanoG.R.No.65833,May6,1991) At any rate, UNIDAD completed all the reqts for union registration on July 14,2001,andlegitimate union status was accorded on July 15, 2000, or at least10daysbeforethescheduleddateforholding theCE.(2001BarQuestion) Q:Whatismeantbycontractbarrule? A: Contractbar rule means that while a valid and registeredCBAissubsisting,theBLRisnotallowed toholdanelectioncontestingthemajoritystatusof the incumbent union except during the 60day period immediately prior to its expiration, which periodiscalledthefreedomperiod.
Note: Intheabsenceofsuchtimelynoticeorfilingof petition, the contract executed during the automatic renewalperiodisabartoCE. There shall be no amendment, alteration, or terminationofanyoftheprovisionsoftheCBAexcept togivenoticeofonepartysintentiontoamend,alter and terminate the provisions within the freedom period.

Q: What are the requirements in order to invoke thecontractbarrule? A:TheexistingCBAmust: 1. 2. 3. 4. 5. 6. 7. Beinwritingandsignedbyallcontracting parties Contain the terms and conditions of employment Cover employees in an appropriate bargainingunit Beforareasonableperiodorduration Beratified BeregisteredwiththeBLR;and The violation of the contract bar rule or the existence of a duly registered CBA mustbespeciallypleadedasadefense.

Q:Whatistheeffectofaninvalidorunregistered CBA? A: There is no bar and therefore a certification electionmaybeheld.


Note: Registration of CBA only puts into effect the contractbarrulebuttheCBAitselfisvalidandbinding evenifunregistered.

Q: What are the exceptions to the contract bar rule?

134

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


A: TheCBAisunregistered TheCBAisinadequateandincomplete The CBA was hastily entered into (Doctrineofprematureextension) 4. Withdrawal of affiliation from the contracting union brought about by schismormassdisaffiliation 5. Contract where the identity of the representative is in doubt. (ALU v. Ferrer Calleja,G.R.No.85085,Nov.6,1989) 6. CBAenteredintobetweentheErandthe union during the pendency of a petition for CE (Vassar Industries Ees Union v. Estrella,G.R.No.L46562,Mar.31,1978) 7. CBA conducted between the Er and the unionisnotbartoacertificationelection filed by another union and said CBA can berenegotiatedattheoptionofthenew bargainingagent.(ATUv.Hon.Noriel,G.R. No.L48367,Jan.16,1979) 8. ACBAregisteredwithfalsifiedsupporting documents 9. CBA was concluded in violation of an orderenjoiningthepartiesfromentering into a CBA until the issue of representationisresolved 10. Petition is filed during the 60day freedomperiod.
Note:Basictothecontractbarruleistheproposition thatthedelayoftherighttoselectrepresentativescan bejustifiedonlywherestabilityisdeemedparamount. Excepted from the contract bar rule are certaintypes of contracts which do not foster industrial stability, such as contracts where the identity of the representativeisindoubt.Anystabilityderivedfrom such contracts must be subordinated to the Ees freedom of choice because it does not establish the type of industrial peace contemplated by law. (Firestone Tire & Rubber Company Ees Union v. Estrella,G.R.No.L4551314,Jan.6,1978)

1. 2. 3.

bargainingwhich,despitenobleintentions,didnot concludeinanagreementbetweentheparties. Q:Whatisdeadlockbarrule? A: Apetitionforcertificationelection(PCE) cannot be entertained if, before the filing of the PCE, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had becomethesubjectofavalidstrikeorlockout. Q: What are the indications of a genuine deadlock? A: 1. 2. Thesubmissionofthedeadlocktoathird partyconciliatororarbitrator;and The deadlock is the subject of a valid noticestrikeorlockout.

Q: Can the BLR certify a union as the exclusive bargaining representative after showing proof of majority representation thru union membership cardswithoutconductinganelection? A:No.The LC (In Arts. 256,257and258)provides only for a CE as the mode for determining theexclusivecollectivebargaining representative if there is a question of representation in an appropriatebargainingunit.(1998BarQuestion) Q:Whendoesdeadlockarise? A: It arises when there is an impasse, which presupposes reasonable effort at good faith

Q:CapitolMedicalCenterEesAssociationAlliance ofFilipinoWorkers(CMCEAAFW)emergedasthe certifiedrepresentativeoftherankandfileEesat Capitol Medical Center (CMC). Due to CMCs refusaltobargaincollectively,CMCEAAFWfileda noticeofstrikeandlateronstagedthestrikeafter complying with the other legal reqts. The SLE assumed jurisdiction over the case and issued an order certifying the same to the NLRC for compulsoryarbitration.Duringalloftheseevents Capitol Medical Center Alliance of Concerned employees (Ees)Unified Filipino Service Workers filedapetitionforCEamongtheregularrankand fileEesofCMC.ThepetitionforCEwasdismissed and the CMC was directed to negotiate with CMCEAAFW.WasthedismissalofthePCEproper? A: Yes, if the law proscribes the conduct of a CE when there is a bargaining deadlock submitted to conciliationorarbitration,withmorereasonshould itnotbeconductedif,despiteattemptstobringan Er to the negotiation table by the certified bargaining agent, there was "no reasonable effort ingoodfaith"ontheErtobargaincollectively. Thecircumstancesinthiscaseshouldbeconsidered as similar in nature to a "bargaining deadlock" whennoCEcouldbeheld.Thisisalsotomakesure that no floodgates will be opened for the circumvention of the law by unscrupulous Ers to prevent any certified bargaining agent from negotiatingaCBA.Sec.3,(RuleVIII),BookVofthe IRRshouldbeinterpretedliberallysoastoincludea circumstancewhereaCBAcouldnotbeconcluded duetothefailureofonepartytowillinglyperform its duty to bargain collectively. (Capitol Medical CenterAllianceofConcernedEesv.Laguesma,G.R. No.118915,Feb.4,1997)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

135

UST GOLDEN NOTES 2011


Q:Shouldthecertificationelectionproceedingsbe suspended in view of the pending case for cancellation of the unions certificate of registration? A:No,thependencyofacancellationcaseisnota ground for the dismissal or suspension of a representation proceeding considering that a registeredlabororganization(LO)continuestobea legitimateoneentitledtoalltherightsappurtenant thereto until a final valid order is issued cancelling suchregistration. Once a LO attains the status of a LLO it begins to possess all of the rights and privileges granted by law to such organizations. As such rights and privileges ultimately affect areas which are constitutionallyprotected,theactivitiesinwhichLO, associationsandunionsareengageddirectlyaffect the public interest and should be zealously protected.(ProgressiveDevtCorp.v.SLE,G.R.No. 115077,April18,1997) Q:Whatisnegotiationbarrule? A:APCEcannotbeentertainedif,beforethefiling of the PCE, the duly recognized or certified union has commenced negotiations with the Er in accordancewithArt.250oftheLC. Q:Whatiscertificationyearrule? A: No PCE may be filed within one year from the date of a valid certification, consent, or runoff electionorfromthedateofvoluntaryrecognition. (4)RunoffElection Q:Whatisarunoffelection? A:Anelectionconductedwhen: 1. Anelectionwhichprovidesfor3ormore choicesresultsinnoneofthecontending unions receiving a majority of the valid votescast,and There are no objections or challenges whichifsustainedcanmateriallyalterthe results,provided The total number of votes for all the contending unions is at least 50% of the numberofvotescast.(Sec.1,RuleX,Book V,IRR) Not one of the choices obtained the majority of the valid votes cast (50%+ 1 secondmajority); The two choices which garnered the highest votes will be voted and the one which garners the highest number of votes will be declared the winner provided they get the majority votes of thetotalvotescast. Q:Whoarethechoicesinarunoffelection? nd A:Theunionsreceivingthehighestand2 highest number of the votes cast. (Sec.2, Rule X, Book V, IRR)
Note: No Union shall notbe achoice in the runoff election

(5)RerunElection Q:WhendoesRerunElectiontakeplace? A: 1.Ifonechoicereceivesapluralityofthe voteandtheremainingchoicesresultsina tie;or 2.Ifallchoicesreceivedthesamenumber ofvotes.

Note:Inbothinstances,thenounionisalsoachoice.

(5)ConsentElection Q:Whatisaconsentelection? A: An election voluntarily agreed upon by the parties, with or without the intervention by DOLE. (Sec.1[h],RuleI,BookV,IRR)
Note: To afford an individual employeevoter an informed choice where a local/chapter is the petitioning union, the local/chapter shall secure its certificate of creation at least 5 working days before thedateoftheconsentelection.(Sec.1,RuleVIII,Book V,IRRasamendedbyDO40F03)

Q: What are the requisites before a labor union canbedeclaredawinner(doublemajorityrule)? A: 1. 2. Majority of the eligible voters cast their votes. Majorityofthevalidvotescastisforsuch union.

2.

3.

4.

5.

Q:Howtodeterminethedoublemajorityrule? A: 1. Indeterminingtheeligiblevotescast(first majority)includespoiledballots 2. In determining valid votes (second majority), eliminate spoiled ballots but includedthechallengedvotes.

136

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


Q: A certification election was conducted among the rankandfile Ees of Holiday Inn Manila Pavilion Hotel. In view of the significant number of segregated votes, contending unions, National UnionofWorkersinHotels,RestaurantsandAllied IndustriesManila Pavilion Hotel Chapter (NUWHRAINMPHC) and Holiday Inn Manila Pavilion Hotel Labor Union (HIMPHLU), referred thecasebacktotheMedArbitertodecidewhich among those votes would be opened and tallied. 11 votes were initially segregated because they were cast by dismissed Ees, albeit the legality of theirdismissalwasstillpendingbeforetheCA.6 othervotesweresegregatedbecausetheEeswho cast them were already occupying supervisory positions at the time of the election. Still 5 other votes were segregated on the ground that they were cast by probationary Ees and, pursuant to the existing CBA, such Ees cannot vote. NUHWHRAINMPHC further avers that HIMPHLU, which garnered 169 votes, should not be immediatelycertifiedasthebargainingunit,asthe opening of the 17 segregated ballots would push the number of valid votes cast to 338, hence,the 169 votes which HIMPHLU garnered would be 1 vote short of the majority which would then become170. Was HIMPHLU able to obtain the required majority for it to be certified as the exclusive bargainingagent? A: No, it is wellsettled that under the double majority rule for there to be a valid certification election,majorityofthebargainingunitmusthave voted and the winning union must have garnered majorityofthevalidvotescast. Following the ruling that all the probationary Ees votes should be deemed valid votes while that of the supervisory Ees should be excluded, it follows thatthenumberofvalidvotescastwouldincrease. Under Art. 256 of the LC, the union obtaining the majorityofthevalidvotescastbytheeligiblevoters shall be certified as the sole exclusive bargaining agent of all the workers in the appropriate bargainingunit.Thismajorityis50%+1,inthiscase atleast170.HIMPHLUobtained169,clearlyitwas not able to obtain a majority vote. (NUWHRAIN MPHCv.SLE,G.R.No.181531,July31,2009) Q: Distinguish certification election, consent election, direct certification, and runoff and re runelections. A:
Purpose Participationof MedArbiter CertificationElection RequirespetitionforCE filedbyaunionorEr.A MedArbitergrantsthe petitionandanelection officerisdesignatedby regionaldirectorto supervisetheelection.
Note:MedArbitermay determineifthereisErEe relationshipandifthe votersareeligible.

Todeterminethesole andexclusivebargaining agentofalltheEesinan appropriatebargaining unitforthepurposeof collectivebargaining.

ConsentElection Todeterminetheissueof majorityrepresentation ofalltheworkersinthe appropriateCBunit mainlyforthepurposeof determiningthe Heldbyagreementofthe administratoroftheCBA unionswithorwithout theparticipationofthe whenthecontracting MedArbiter. unionsufferedmassive disaffiliationandnotfor thepurposeof determiningthe bargainingagentfor purposeofCB. DirectCertification MedArbiterdirectly ALOisdirectlycertified certifiesthatalabor asanappropriate unionistheexclusiveCB bargainingunitofa representativeoftheEes companyuponshowing ofanappropriate thatpetitionissupported bargainingunitwithout byatleastamajorityof holdingaCE,butmerely theEesinthebargaining onthebasisofevidence unit. ofinsupportofthe unionsclaimthatisthe Note:Directcertificationis choiceofthemajorityof nolongerallowed. theEes. RunOffElection Takesplacebetweenthe unionswhoreceivedthe twohighestnumberof votesinaCEwith3or morechoices,wherenot oneoftheunions obtainedthemajorityof thevalidvotescast, providedthetotalunion votesisatleast50%of thevotescast. RerunElection Takes place in 2 instances: 1. Ifonechoicereceivesa plurality of the vote and the remaining choicesresultsinatie; or 2. If all choices received the same number of

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

137

UST GOLDEN NOTES 2011


votes. In both instances, the no unionisalsoachoice.

2.

Note: Petition for cancellation of registration is not a bar to a PCE. No prejudicial question shall be entertained in a petition for certification election. (D.O.4003)

processedbytheLaborRelationsDivision attheRO. Federations, national unions or workers association operating in more than one regionItisfiledwiththeBLRoftheRO, butshallbeprocessedbytheBLR.

(7)AffiliationandDisaffiliationoftheLocalUnion fromtheMotherUnion Q:Howisalocalchaptercreated? A: A duly registered federation or national union may directly create a local/ chapter by issuing a chartercertificateindicatingtheestablishmentofa local/chapter. 1. Thechaptershallacquirelegalpersonality only for purposes of filing a petition for certificationelectionfromthedateitwas issuedachartercertificate 2. The chapter shall be entitled to all other rights and privileges of a legitimate labor organization (LLO) only upon the submissionofthefollowingdocumentsin additiontoitschartercertificate: a. Names of the chapters officers, their addresses, and the principal officeofthechapter b. Chaptersconstitutionandbylaws c. Where the chapters constitution and bylaws are the same as that of thefederationorthenationalunion, this fact shall be indicated accordingly 3. The genuineness and due execution of thesupportingrequirementsshallbe: a. Certifiedunderoathbythesecretary ortreasurerofthelocal/chapter,and b. Attestedtobyitspresident(Sec.2[e], Rule III, Book V, IRR, as amended by D.O.40F03)
Note: Under the LC and therules, the powergranted to LOs to directly create a chapter or local through chartering is given to a federation or national union only, not to a trade union center. (SMCEU v. San Miguel Packaging Products Ees Union, G.R. No. 171153,Sep.12,2007)

Q:WhatisthedutyoftheBLRafteraLOhadfiled the necessary papers and documents for registration? A:ItbecomesmandatoryfortheBLRtocheckifthe reqts under Art. 234 of the LC have been sedulously complied with. If its application for registration is vitiated by falsification and serious irregularities,especiallythoseappearingontheface oftheapplicationandthesupportingdocuments,a LO should be denied recognition as a LLO. (ProgressiveDevtCorp.PizzaHutv.Laguesma,G.R. No.115077,April18,1997) Q: Within what period should the BLR act on the applicationssubmittedbeforeit? A: It shall act on all applications for registration within10mdaysfromreceipteitherby: 1. Approvingtheapplicationandissuingthe certificate of registration/acknowledging thenotice/report;or 2. Denyingtheapplication/noticeforfailure of the applicant to comply with the requirementsforregistration/notice(D.O. 4003,RuleIV,Sec.4,seriesof2003)
Note:Allrequisitedocumentsshallbe: 1. Certified under oath by the secretary or treasurer of the organization, as the case maybeand 2. AttestedtoitbyitsPresident.

Q:MaytheBLRreviewtheissuanceofacertificate ofregistration? A: No. The BLR has the duty to review the application for registration not the issuance of a certificateofregistration. Q: Why is a lesser requirement imposed for a charteredlocal? A:Theintentofthelawinimposinglesserreqtsin the case of branch or local of a registered federation or national union is to encourage the affiliation of a local union in order to increase the local unions bargaining power respecting terms and conditions of labor. (Progressive Devt Corp v. SLE,G.R.No.96425,Feb.4,1992)

Q:Whereistheapplicationforregistrationfiled? A: 1. Independent labor unions, chartered localsorworkersassociationsItisfiled with the Regional Office (RO). where the applicant principally operates. It shall be

138

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


Q:Whataretherequirementsbeforeafederation canbeissuedacertificateofregistration? A: The application for registration of federations and national unions shall be accompanied by the followingdocuments: 1. A statement indicating the name of the applicant labor union, its principal address,thenameofitsofficersandtheir respectiveaddresses; The minutes of the organizational meeting(s) and the list of Ees who participatedinthesaidmeeting(s); The annual financial reports if the applicantunionhasbeeninexistencefor 1 or more years, unless it has not collectedanyamountfromthemembers, in which case a statement to this effect shallbeincludedintheapplication; Theapplicantunion'sconstitutionandby laws, minutes of its adoption or ratification, and the list of the members whoparticipatedinit.Thelistofratifying members shall be dispensed with where the constitution and bylaws was ratified or adopted during the organizational meeting(s). In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organizationalmeeting(s); Theresolutionofaffiliation ofatleast10 LLOs, whether independent unions or charteredlocals,eachofwhichmustbea duly certified or recognized bargaining agentintheestablishmentwhereitseeks tooperate;and The name and addresses of the companies where the affiliates operate and the list of all the members in each company involved. (D.O. 4003, Rule, III, Sec.2B,seriesof2003) 3. Thetotalnumberofmemberscomprising the labor union and the names of memberswhoapprovedtheaffiliation; The certificate of affiliation issued by the federation in favor of the independently registeredlaborunion;and Written notice to the employer concerned if the affiliating union is the incumbent bargaining agent. (D.O. 4003, Rule,III,Sec.7,seriesof2003)

4.

5.

2.

3.

4.

Q:Whatistheeffectofaffiliation? A:Thelaborunionthataffiliateswithafederationis subjecttothelawsoftheparentbodyunderwhose authority the local union functions. The constitution, bylaws and rules of the mother federation,togetherwiththecharteritissuestothe local union, constitutes an enforceable contract between them and between the members of the subordinate union inter se. Thus, pursuant to the constitution and bylaws, the federation has the righttoinvestigateandexpelmembersofthelocal union. (Villar v. Inciong, G.R. No. L5028384, April 20,1983) Q: May a local union disaffiliate from the federation? A: GR: A labor union may disaffiliate from the mother union to form an independent union only during the 60day freedom period immediately preceding the expiration of the CBA. XPN: Even before the onset of the freedom period,disaffiliationmaystillbecarriedout,but such disaffiliation must be effected by the majority of the union members in the bargainingunit.
Note:Thishappenswhenthereisasubstantialshiftin allegianceonthepartofthemajorityofthemembers of the union. In such a case, however, the CBA continues to bind the members of the new or disaffiliated and independent union up to determine the union which shall administer the CBA may be conducted. (ANGLOKMU v. Samahan ng Manggagawang Nagkakaisa sa Manila Bay Spinning MillsatJ.P.Coats,G.R.No.118562,July5,1996)

5.

6.

Q:Whataretherequirementsforaffiliation? A: The report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by the followingdocuments: 1. Resolution of the labor union's board of directorsapprovingtheaffiliation; 2. Minutes of the general membership meetingapprovingtheaffiliation;

Q:Whatisthelimitationtodisaffiliation? A: Disaffiliation should be in accordance with the rulesandproceduresstatedintheconstitutionand bylaws of the federation. A local union may disaffiliatewithitsmotherfederationprovidedthat thereisnoenforceableprovisioninthefederations

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

139

UST GOLDEN NOTES 2011


constitution preventing disaffiliation of a local union.(TropicalHutEesUnionv.TropicalHut,G.R. Nos.L4349599,Jan.20,1990)
Note: A prohibition to disaffiliate in the Federations constitutionandbylawsisvalidbecauseitisintended foritsownprotection. CHARTEREDLOCALUNION Independently Unregistered Registered Howtoaffiliate? Byapplicationofwiththe federationforthe Bysigningcontractof issuanceofacharter affiliation certificatetobe submittedtotheBLR EffectofDisaffiliationtotheunion(local) WouldceasetobeLLO Wouldnotaffectitsbeing andwouldnolonger aLLOandthereforeit havethelegalpersonality wouldcontinuetohave andtherightsand legalpersonalityandto privilegesgrantedbylaw possesallrightsand toLLO,unlessthelocal privilegesofLLO. chapteriscoveredbyits dulyregisteredCBA. EffectofDisaffiliationtotheCBA TheCBAwouldcontinue AnexistingCBAwould tobevalid.Thelocal continuetobevalidas chapterwillnotloseits theLOcancontinue personality,unlessit administeringthenCBA. registersanew. EntitlementtounionduesafterDisaffiliation Unionduesmayno LOentitledtotheunion longerbecollectedas duesandnotthe therewouldnolongerbe federationfromwhich anylaborunionthatis theLOdisaffiliated. allowedtocollectsuch unionduesfromtheEes.

Q:Whatistheeffectofcancellationofregistration ofafederationoranationalunion? A: GR:Itshalloperatetodivestitslocals/chapters oftheirstatusasLLO. XPN: Locals/chapters retain status as LLO if theyarecoveredbyadulyregisteredCBA.
Note Locals or chapters who retained status as LLO shall be allowed to register as independent unions. If they fail to register, they shall lose their legitimate statusupontheexpirationoftheCBA.

Q: PSEA is a local union in Skylander company which is affiliated with PAFLU. PSEA won the certification election among the rank and file Ees oftheSkylandercompanybutitsrivalunionPSEA WATU protested the results. Pending the resolution of such controversy, PSEA disaffiliated with PAFLU and hence affiliated with NCW which wassupportedbyitsmembers.Mayalocalunion disaffiliatewithitsmotherfederationpendingthe settlementofthestatusasthesoleandexclusive bargainingagent? A: Yes. The pendency of an election protest does not bar the valid disaffiliation of the local union which was supported by the majority of its members. The right of a local union to disaffiliate with the federation in the absence of any stipulation in the constitution and bylaws of the federation prohibiting disaffiliation is well settled. Local unionsremainasthebasicunitofassociation,free toservetheirowninterestsubjecttotherestraints imposedbytheconstitutionandbylawsofnational federationandarefreetorenouncesuchaffiliation upon the terms and conditions laid down in the agreement which brought such affiliation to existence.Inthecaseatbar,noprohibitionexisted under the constitution and bylaws of the federation.Hence,theunionmayfreelydisaffiliate withthefederation.(PhilippineSkylandersv.NLRC, G.R.No.127374,Jan.31,2002) Q: Distinguish between an independently registeredandunregisteredcharteredlocalunion. A:

Q:Whatistheformofthedecisionofthedenialof applicationforregistration? A:Itshallbe: 1. Inwriting 2. Stating in clear terms the reason for the decision 3. Applicantunionmustbefurnishedacopy ofsaiddecision. Q:Isthedenialofregistrationappealable? A:Yes. 1. Decisions of the Regional Office shall be appealabletotheBLRandCA. 2. The BLRs decisions on cases appealed from Regional Director are final and not appealabletotheSLE. 3. Decisions of the BLR denying the registration of a LO (federation or national union) is appealable to the SLE within 10 days from receipt of the decision,ongroundsof: a. Graveabuseofdiscretion;or b. Grossincompetence. 4. DecisionofSLEappealabletoCA.

140

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


Q: How is appeal taken with regard to denial or cancellationofregistration? A:
DENIALORCANCELLATIONOFREGISTRATION ByRegionaloffice ByBLR Transmitrecordswithin24hours fromreceiptoftheMemoofAppeal BLRwilldecideonthe SLEdecidesonthematter matterwithin20days within20daysfrom fromreceiptofthe receiptofrecords records AppealtoCAviaRule65 Note: Appeal is by memo of appeal within 10 days fromreceiptofnotice.

a.

2.

Failure to comply with any of the reqtsunderArt.234,237and238of theLC. b. ViolationofanyprovisionunderArt. 239,LC. For federations, national or industry unions, trade union centers Only members of the labor organization (LO) concerned may file if the grounds are actions involving violations of Art. 241, subjecttothe30%rule.

Q:Whatistheeffectofcancellationofregistration if the cancellation is made in the course of the proceedings? A: Where a labor union is a party in a proceeding and later it loses its registration permit in the course or during the pendency of the case, such union may continue as party without need of substitution of parties, subject however to the understanding that whatever decision may be renderedwillbebindingonlyuponthosemembers oftheunionwhohavenotsignifiedtheirdesireto withdrawfromthecasebeforeitstrialanddecision onthemerits.
Note: Rationale: Principle of agency is applied the Eesaretheprincipals,andtheLOismerelyanagentof the former, consequently, the cancellation of the unionsregistrationwouldnotdeprivetheconsenting memberEesoftheirrighttocontinuethecaseasthey areconsideredastheprincipals.

Q:Whocancelsthecertificateofregistration? A: The certificate of registration of any LLO, whethernationalorlocal,maybecancelledbythe BLR, after due hearing, only on the grounds specifiedinArt.239.(asamendedbyR.A.9481) Q:Whatistheeffectofapetitionforcancellation orofunionregistration? A: It shall not suspend the proceedings for certification election (CE) nor shall it prevent the filingofCE. Incaseofcancellation,nothinghereinshallrestrict the right of the union to seek just and equitable remediesintheappropriatecourts. Q: Where is a petition for cancellation of registration or application for voluntary dissolutionfiled? A: 1. For legitimate independent labor unions, local/chapter and workers association It shall be filed with the Regional Office which issued its certificate of registration orcreation. For federations, national or industry and tradeunioncentersItshallbefiledwith the BLR. (Sec. 1, Rule XIV, Book V, IRR as amendedbyD.O.40F03)

2.

Q: Who may file a petition for cancellation of registration? A: 1. For legitimate individual labor union, charteredlocalandworkersassociation Any partyininterest may file a petition for cancellation of registration if the groundis:

Q:Whatarethegroundsforcancellationofunion registration? A: 1. Misrepresentation, false statement or fraudinconnectionwiththe: a. Adoption or application of the constitution and bylaws or amendmentsthereto b. Minutesofratificationand c. Listofmemberswhotookpartinthe ratification; d. Electionofofficers e. Minutes of the election of officers and f. Listofvoters(Art.239asamended) 2. Voluntary dissolution by the members. (asamendedbyR.A.9481)
Note:Apronouncementastothelegalityofthestrike isnotwithinthemeaningofArt.239oftheLC.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

141

UST GOLDEN NOTES 2011


Q: What are the prohibited grounds for cancellationofunionregistration? A: 1. TheinclusionasunionmemberofEeswho are outside the bargaining unit shall not be a ground to cancel the union registration. The ineligible Ees are automatically deemd removed from the list of membership of the union as.(Art. 245AasamendedbyRA9481) 2. The affiliation of the rankandfile and supervisory unions operating within the same establishment to the same federationornationalunionshallnotbea ground to cancel registration of either union. (Sec. 6, Rule XIV, Book V, as insertedbyD.O.40F03) Q: How is voluntary cancellation of registration made? A: Registration may be cancelled by the organizationitselfprovided: 1. At least of its general membership votes to dissolve the organization, in a meetingdulycalledforthatpurpose;and 2. An application to cancel registration is thereaftersubmittedbytheboardofthe organization,attestedbyitspresident. Q: What are the reportorial requirements required to be submitted by a legitimate labor organization(LLO)? A: The following documents are required to be submittedtoBLRbytheLLOconcerned: 1. Within 30 days from adoption or ratification of the constitution and by laws(CBL)oramendmentsthereto: a. CBLoramendmentsthereto b. Minutesofratification c. Listofmemberswhotookpartinthe ratification of the constitution and bylaws; Within 30 days from date of election or appointment: a. Listofelectedandappointedofficers and agents entrusted with the handingofunionfunds b. Minutesofelectionofofficers c. Listofvoters Annual financial report within 30 days afterthecloseofeveryfiscalyear List of members at least once a year or wheneverrequiredbytheBureau.(Sec.1, Rule V, Book V, IRR, as amended by D.O. 40F03)
Note:Failuretosubmitreportorialrequirementsisno longer a ground for cancellation but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty (Art. 242A,asinsertedbyR.A.9481).

Q:Whatisthesuccessorininterestdoctrine? A: GR: It is when an Er with an existing CBA is succeeded by another Er, the successorin interest who is the buyer in good faith has no liability to the Ees in continuing employment and the bargaining agreement because these contractsareinpersonam. XPNs: 1. When the successorininterest expressly assumesanobligation; 2. The sale is a device to circumvent the obligation;or 3. Thesaleortransferismadeinbadfaith. (a)SubstitutionaryDoctrine Q:Whatisthesubstitutionarydoctrine? A: It is where there occurs a shift in the Ees union allegiance after the execution of a collective bargaining (CB) contract with the Er, the Ees can change their agent (labor union) but the CB contract which is still subsisting continues to bind the Ees up to its expiration date. They may however, bargain for the shortening of said expirationdate.
Note: The Er cannot revoke the validly executed CB contract with their Er by the simple expedient of changing their bargaining agent. The new agent must respectthecontract.(BenguetConsolidatedInc.v.BCI EesandWorkersUnionPAFLU,G.R.No.L24711,April 30,1968) Itcannotbeinvokedtosupportthecontentionthata newlycertifiedCBagentautomaticallyassumesallthe personalundertakingsoftheformeragentliketheno strikeclauseintheCBAexecutedbythelatter.

2.

(8)UnionDuesandSpecialAssessments (a)UnionDues Q:Whatareuniondues? A:Theseareregularmonthlycontributionspaidby the members to the union in exchange for the

3. 4.

142

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


benefits given to them by the CBA and to finance theactivitiesoftheunioninrepresentingtheunion. Q:Whatischeckoff? A:ItisamethodofdeductingfromanEespayata prescribed period, the amounts due the union for fees,finesandassessments. Deductionsforunionservicefeesareauthorizedby law and do not require individual checkoff authorizations. Q:Whatisthenatureandpurposeofcheckoff? A:Unionduesarethelifebloodoftheunion. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperativeundertakings.(Art.277[a]) Q:Whataretherequisitesofavalidcheckoff? A: GR: No special assessments, attys fees, negotiationfeesoranyotherextraordinaryfees maybecheckedofffromanyamountduetoan employee (Ee) without individual written authorizationdulysignedbytheEe. Theauthorizationshouldspecificallystatethe: 1. Amount 2. Purpose& 3. Beneficiaryofthededuction. XPNs: 1. FormandatoryactivitiesundertheLC 2. Foragencyfees 3. Whennonmembersoftheunionavailof thebenefitsoftheCBA: a. Nonmembers may be assessed unionduesequivalenttothatpaidby unionmembers; b. Only by board resolution approved by majority of the members in general meeting called for the purpose. (b)SpecialAssessments Q: What are special assessments or extraordinary fees? A:Theseareassessmentsforanypurposeorobject other than those expressly provided by the labor organizationsconstitutionandbylaws. Q: What are the requisites for a valid levy of specialassessmentorextraordinaryfees? A: 1. Authorization by a written resolution of themajorityofallmembersatthegeneral membership meeting duly called for that purpose; 2. Secretarys record of the minutes of the meeting,whichmustincludethe: a. Listofmemberspresent b. Votescast c. Purposeofthespecialassessments d. Recipientofsuchassessments; 3. Individualwrittenauthorization tocheck off duly signed by the Ee concerned to levysuchassessments. Q: What is the effect of failure to strictly comply therequirementssetbylaw? A: It shall invalidate the questioned special assessments. Substantial compliance of the requirementsisnotenoughinviewofthefactthat the special assessment will diminish the compensationofunionmembers.(Palacolv.Ferrer Calleja,G.R.No.85333,Feb.26,1990) Q:Whohasjurisdictionovercheckoffdisputes? A: Being an intraunion dispute, the Regional Director of DOLE has jurisdiction over check off disputes. Q:Distinguishcheckofffromspecialassessments. A:
SpecialAssessment Howapproved (UnionDues) Byobtainingtheindividual Bywrittenresolution approvedbymajorityof writtenauthorizationduly allthemembersatthe signedbytheEewhich meetingcalledforthat mustspecify: purpose. 1. Amount 2. Purpose 3. Beneficiary Exceptiontosuchrequirement Checkoff

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

143

UST GOLDEN NOTES 2011


(Agencyfees) Notnecessarywhen: 1. Formandatoryactivities undertheLC 2. Foragencyfees 3. Whennonmembersof theunionavailofthe benefitsoftheCBA: a. Saidnonmembers maybeassessed unionduesequivalent tothatpaidbyunion members; b. OnlybyBoard resolutionapproved bymajorityofthe membersingeneral meetingcalledforthe purpose UnionDues Isdeductedfrom membersforthe paymentofuniondues Maynotbededucted fromthesalariesofthe unionmemberswithout thewrittenconsentof theworkersaffected. AgencyFee Isdeductedfromnon membersofthe bargainingagent(union) fortheenjoymentofthe benefitsundertheCBA. Maybedeductedfrom thesalaryoftheEes withouttheirwritten consent.

Noexception;written resolutionismandatory inallinstances.

2.RIGHTTOCOLLECTIVEBARGAINING Q:Whatiscollectivebargaining(CB)? A: 1. It is the process of negotiation by an organization or group of workmen, in behalfofitsmembers,withtheemployer (Er), concerning wages, hours of work, and other terms and conditions of employmentand 2. Thesettlementofdisputesbynegotiation between an Er and the representative of hisemployees(Ee) 3. It is the obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either partybutsuchdoesnotcompelanyparty to agree to a proposal or to make any concession.(Art.252,LC)
Note: GR:Nocourtoradministrativeagencyorofficial shallhavethepowertosetorfixwages,ratesof pay,hoursofwork,orothertermsandconditions ofemployment XPNs:AsotherwiseprovidedundertheLC: 1. National Wages and Productivity CommissionandRTWPBastowagefixing. (Art.99and122,LC) NCMB and NLRC as to wage distortion. (Art.124,LC) SLE and President of the Philippines as to certification and assumption of powers overlabordisputes.(Art.236[g],LC)

Q: Are Ees who are members of another union consideredfreeriders? A: No. When the union bids to become the bargaining agent, it voluntarily assumes the responsibilityofrepresentingalltheEes. (9)AgencyFees Q:Whatisanagencyfee? A:Itisanamountequivalenttouniondues,whicha nonunion member pays to the union because he benefitsfromtheCBAnegotiatedbytheunion.
Note:AgencyfeecannotbeimposedonEesalreadyin the service and are members of another union. If a closed shop agreement cannot be applied to them, neither may an agency fee, as a lesser form of union security, be imposed to them. Payment by nonunion membersofagencyfeesdoesnotamounttoanunjust enrichment basically the purpose of such dues is to avoid discrimination between union and nonunion members. Q:WhataretherequisitesforassessmentofAgency fees(Art.248[e],LC)? A:

1. 2. 3.

Theemployeeispartofthebargainingunit Heisnotamemberoftheunion HepartookofthebenefitsoftheCBA

Note:TheindividualauthorizationrequiredunderArt. 242, par. O of the LC shall not apply to the non members of the recognized collective bargaining agent.

2. 3.

Q:Distinguishunionduesfromagencyfees. A:

144

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


Q:Whatisthepurposebehindthisrule? A: It is to encourage a truly democratic method of regulatingtherelationsbetweentheemployersand employeesbymeansofagreementsfreelyentered intothroughCB. Q:WhoarethepartiestoaCB? A: 1. Employer 2. Employees, represented by the exclusive bargainingagent Q: What are the jurisdictional preconditions in collectivebargaining? A: 1. Possession of the status of majority representation of the employees representative in accordance with any of the means of selection or designation providedfortheLaborCode 2. Proofofmajorityrepresentation 3. AdemandtobargainunderArt.250(a)of the LC. (Kiok Loy v. NLRC, G.R. No. L 54334,Jan.22,1986) a.DutytoBargainCollectively Q: When does the duty of the employer (Er) to bargaincollectivelyarise? A:OnlyaftertheunionrequeststheErtobargain.If thereisnodemand,theErcannotbeindefault.
Note: Where a majority representative has been designated, it is an ULP for the Er, as a refusal to collectively bargain, to deal and negotiate with the minority representative to the exclusion of the majorityrepresentative. Wherethereisalegitimaterepresentationissue,there isnodutytobargaincollectivelyonthepartoftheEr (LakasngmgaManggagawangMakabayanv.Marcelo Enterprises,G.R.No.L38258,Nov.19,1982) Note: The certification of the CBA by the BLR is not required to make such contract valid. Once it is duly enteredintoandsignedbytheparties,aCBAbecomes effectiveasbetweenthepartieswhetherornotithas been certified by the BLR. (Liberty Flour Mills Ees Association v. Liberty Flour Mills, G.R. Nos. 5876870, Dec.29,1989)

Q:Whatisazipperclause? A: It is a stipulation in a CBA indicating that issues that could have been negotiated upon but not contained in the CBA cannot be raised for negotiationwhentheCBAisalreadyineffect.
A CBA is not an ordinary contract but one impressed with public interest, only provisions embodied in the CBA should be so interpreted and complied with. Where a proposal raised by a contracting party does not find print in the CBA, it is not a part thereof and the proponent has no claim whatsoever to its implementation. (SMTFMUWP v. NLRC , G.R. No. 113856,Sept.7,1998)

Q: What is a collective bargaining agreement (CBA)? A: It is a contract executed upon request of either theErortheexclusivebargainingrepresentativeof theEesincorporatingtheagreementreachedafter negotiationswithrespecttowages,hoursofwork, terms and conditions of employment, including proposals for adjusting any grievance or questions undertheagreement.

Q:Whenshallbargainingcommence? A: It commences within 12 months after the determinationandcertificationoftheEesexclusive bargainingrepresentative.(certificationyear) Q:WhatistheprocedureinCB? A:Whenapartydesirestonegotiateanagreement: 1. It shall serve a written notice upon the otherpartywithastatementofproposals 2. Reply by the other party shall be made within10dayswithcounterproposals 3. In case of differences, either party may request for a conference which must be heldwithin10calendardaysfromreceipt ofrequest 4. If not settled, NCMB may intervene and encourage the parties to submit the disputetoavoluntaryarbitrator 5. If not resolved, the parties may resort to any other lawful means (either to settle the dispute or submit it to a voluntary arbitrator).
Note:DuringtheconciliationproceedingintheNCMB, the parties are prohibited from doing any act which may disrupt or impede the early settlement of disputes.(Art.250[d],LC)

Q:WhatarethestagesinCB? A:

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

145

UST GOLDEN NOTES 2011


1. Preliminary process: Sending a written notice for negotiation which must be clearandunequivocal Negotiationprocess. Execution process: The signing of the agreement Publication for at least 5 days before ratification Ratification by the majority of all the workers in the bargaining unit represented in the negotiation (not necessaryincaseofarbitralaward) Registrationprocess. Administration process: The CBA shall be jointly administered by the management andthebargainingagentforaperiodof5 years. InterpretationandApplicationprocess. 2. Parties cannot stipulate terms and conditions of employment which are below the minimum reqts prescribed by law.

2. 3. 4. 5.

6. 7.

8. Q: Does a petition for cancellation of a unions certificate of registration involve a prejudicial questionthatshouldfirstbesettledbeforeparties couldberequiredtocollectivelybargain? A: No. A pending cancellation proceeding is not a bartosetmechanicsforcollectivebargaining(CB). Ifacertificationelectionmaystillbeheldevenifa petition for cancellation of a unions registration is pending,moresothattheCBprocessmayproceed. The majority status of the union is not affected by the cancellation proceedings. (Capitol Medical Centerv.Trajano,G.R.No.155690,June30,2005) Q: What is the duty to bargain collectively when thereisnoCBA? A:Itistheperformanceofamutualobligation: 1. 2. To meet and convene promptly and expeditiouslyingoodfaith(GF) For the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditionsofemployment Including proposals for adjusting any grievances or questions arising under suchagreement;and To execute a contract incorporating such agreements if requested by either party. (Art.252)

Q:Mayeitherpartybargaintoanimpasse? A:Itdepends: 1. Where the subject of a dispute is a mandatory bargaining subject, either party may bargain to an impasse as long ashebargainsinGF. 2. Where the subject is nonmandatory, a party may not insist in bargaining to the point of impasse. His instance may be construedasevasionofdutytobargain. Q:Whatisthetestofbargaininginbadfaith? A: There is no perfect test of good faith (GF) in bargaining. The GF or BF is an inference to be drawnfromthefactsandislargelyamatterforthe NLRCsexpertise.ThechargeofBFshouldberaised whilethebargainingisinprogress.
Note:WiththeexecutionoftheCBA,BFcannolonger be imputed upon any of the parties thereto. All provisions in the CBA are supposed to have been jointly and voluntarily incorporated therein by the parties. This is not a case where private respondent exhibited an indifferent attitude towards CB because the negotiations were not the unilateral activity of petitionerunion.TheCBAisgoodenoughthatprivate respondent exerted reasonable effort of GF bargaining. (Samahang Manggagawa sa Top Form ManufacturingUnited Workers of the Phils v. NLRC, G.R.No.113856,Sept.7,1998)

3.

4.

Q:Whatarethelimitationstothedutytobargain collectively? A: 1. Such duty does not compel any party to agree to a proposal or to make any concession.

Q: Does an Ers steadfast insistence to exclude a particular substantive provision in the negotiations for a CBA constitute refusal to bargainorbargaininginBF? A: No. This is no different from a bargaining representatives perseverance to include one that they deem of absolute necessity. Indeed, an adamantinsistenceonabargainingpositiontothe point where the negotiations reach an impasse doesnotestablishbadfaith.Obviously,thepurpose ofCBisthereachingofanagreementresultingina contract binding on the parties; but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an

146

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


agreement. While the law makes it an obligation for the Er and the Ees to bargain collectively with each other, such compulsion does not include the commitmenttoprecipitatelyacceptoragreetothe proposals of the other. All it contemplates is that both parties should approach the negotiation with anopenmindandmakereasonableefforttoreach a common ground of agreement. (Union of Filipro Ees v. Nestle Phils., G.R. Nos. 15893031, Mar. 3, 2008) Q:Whatisadeadlock? A: It is synonymous with impasse or a standstill which presupposes reasonable effort at GF bargaining but despite noble intentions does not concludeanagreementbetweentheparties. Q: In case of deadlock in the renegotiationof the CBA, what are the actions that may be taken by theparties? A:Thepartiesmay: 1. Call upon the NCMB to intervene for the purpose of conducting conciliation or preventivemediation; 2. Referthematterforvoluntaryarbitration orcompulsoryarbitration; 3. Declare a strike or lockout upon compliance with the legal reqts (This remedyisaremedyoflastresort). Q: May economic exigencies justify refusal to bargain? A: No. An employer is not guilty of refusal to bargain by adamantly rejecting the unions economicdemandswhereheisoperatingataloss, on a low profit margin, or in a depressed industry, as long as he continues to negotiate. But financial hardship constitutes no excuse for refusing to bargaincollectively. Q: What is the duty to bargain collectively when thereisaCBA? A: 1. When there is a CBA the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreementduringitslifetime. 2. Eitherpartycanserveawrittennoticeto terminate or modify the agreement at least60dayspriortoitsexpirationdate. 3. Itshallbethedutyofbothpartiestokeep the status quo and to continue in full forceandeffectthetermsandconditions of the existing agreement during the 60 dayperiodand/oruntilanewagreement isreachedbytheparties.(Art.253,LC) Q:WhatistheautomaticrenewalclauseofCBAs? A:AlthoughaCBAhasexpired,itcontinuestohave legaleffectsasbetweenthepartiesuntilanewCBA hasbeenenteredinto(Pier & Arrastre Stevedoring Services, Inc. v. Confessor, G.R. No. 110854, February 13, 1995). This is so because the law makes it a duty of the parties to keep the status quo and to continue in full effect the terms and conditions of the existing agreement until a new agreementisreachedbytheparties.(Art.253,LC). (2008BarQuestion) Q:Whatmaybedoneduringthe60dayfreedom period? A: 1. A labor union may disaffiliate from the mother union to form a local or independentuniononlyduringthe60day freedom period immediately preceding theexpirationoftheCBA. 2. Eitherpartycanserveawrittennoticeto terminate or modify agreement at least 60dayspriortoitsexpirationperiod. 3. A petition for certification election may befiled. Q:WhentofileCBA? A:Within30daysfromexecutionofCBA. Q:Whataretherequirementsforregistration? A: The application for CBA registration shall be accompaniedbytheoriginaland2duplicatecopies ofthefollowingreqts: 1. 2. CBA A statement that the CBA was posted in at least 2 conspicuous places in the establishment concerned for at least 5 daysbeforeitsratification Statement that the CBA was ratified by the majority of the Ees in the bargaining unit.

3.

Note: The following documents must be certified under oath by the representative of the Er and the labor union. No other document shall be required in theregistrationoftheCBA.

Q:Whatisasingleenterprisebargaining?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

147

UST GOLDEN NOTES 2011


A: It involves negotiation between one certified laborunionandoneEr.Anyvoluntarilyrecognized or certified labor union may demand negotiations with its Er for terms and conditions of work coveringEesinthebargainingunitconcerned. Q:WhatisamultiErbargainingscheme? A: It involves negotiation between and among severalcertifiedlaborunionsandErs. Q:WhatisthedurationofaCBA? A: 1. Withrespecttotherepresentationaspect (referstotheidentityandmajoritystatus of the union that negotiated the CBA as the exclusive bargaining representative): 5years 2. Withrespecttoallotherprovisions(refers to the rest of the CBA, economic as well as noneconomic provisions other than representationalprovisions):3yearsafter theexecutionoftheCBA Q:WhataretheeconomicprovisionsofaCBA? A: 1. Wages 2. Familyplanning 3. Effectivityoftheagreement 4. Other terms and conditions of employment Q: What are the noneconomic provisions of a CBA? A: 1. Coverageofthebargainingunit 2. Unionsecurityclauses 3. Management prerogatives and/or rights/responsibilitiesofemployees 4. Grievance machinery and voluntary arbitration 5. Nostrikenolockoutprovision Q:Whatistheeffectivityandretroactivitydateof othereconomicprovisionsoftheCBA? A: 1. If the CBA is the very first for the bargainingunit,thepartieshavetodecide theCBAeffectivitydate. 2. Thosemadewithin6monthsafterdateof expiry of the CBA are subject to automatic retroaction to the day immediatelyfollowingthedateofexpiry. 3. Those not made within 6 months, the parties may agree to the date of retroaction.

Note: This rule applies only if there is an existing agreement. If there isno existing agreement, there is no retroactive effect because the date agreed upon shallbethestartoftheperiodofagreement. Art. 253A on retroactivity does not apply if the provisions were imposed by the SLE by virtue of arbitration. It applies only if the agreement was voluntarilymadebytheparties.

Q:MaytheeconomicprovisionsofanexistingCBA be extended beyond the 3 year period as prescribed by law in the absence of a new agreement? A:Yes.Undertheprincipleofholdover,untilanew CBAhasbeenexecutedbyandbetweentheparties, they are duty bound to keep the status quo and mustcontinueinfullforceandeffectthetermsand conditionsoftheexistingagreement.Thelawdoes notprovideforanyexceptionorqualificationasto which of the economic provisions of the existing agreement are to retain force and effect. Therefore, it must be encompassing all the terms and condition in the said agreement. (New Pacific Timberv.NLRC,G.R.No.124224,Mar.17,2000) Q: Mindanao Terminal Company and respondent union has an existing CBA which was about to expire. Thus, negotiations were held regarding certain provisions of the CBA which resulted in a deadlock. Thus the union filed a notice of strike. During the conference called by the NCMB the companyandtheunionwereabletoagreeonall of the provisions of the CBA except for one. However, the last unresolved provision was subsequently settled but no CBA was signed. Hence,intherecordsoftheMediationArbiter,all issues were settled before the lapse of the 6 monthperiodaftertheexpirationoftheoldCBA. DoesthesigningoftheCBAdeterminethedateit wasenteredintowithinthe6monthperiod? A:No.ThesigningoftheCBAdoesnotdetermine whethertheagreementwasenteredintowithinthe 6 month period from the date of expiration of the old CBA. In the present case, there was already a meeting of the minds between the company and the union prior to the end of the 6 month period after the expiration of the old CBA. Hence, such meeting of the mind is sufficient to conclude that anagreementhasbeenreachedwithinthe6month period as provided under Art. 253A of the LC.

148

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


(MindanaoTerminalandBrokerageServicesInc.,v. Confessor,G.R.No.111809,May5,1997) Q:WhenistheeffectivityofaCBAarbitralaward concludedbeyond6monthsfromtheexpirationof theoldCBA? A:TheCBAarbitralawardsgranted6monthsfrom theexpirationofthelastCBAshallretroacttosuch time agreed upon by both the Er and the union. Absent such agreement as to retroactivity, the awardshallretroacttothe1stdayafterthe6month period following the expiration of the last day of the CBA should there be one. In the absence of a CBA, the SLEs determination of the date of retroactivity as part of his discretionary powers over arbitral award shall control. (Manila Electric Company v. Quisumbing, G.R. No. 127598, Feb. 22 andAug.1,2000) Q: PAL was suffering from a worsened financial condition resulting to a retrenchment which downsized its labor force by more than 1/3 thereby affecting numerous union members. Hence, the union wenton strike. The PAL offered that shares of stock be transferred to its Ees but the union refused. Thus, PAL claimed it has no alternative left but to close. Hence, the union PALEA offered that the CBA be suspended for 10 yearsandtowaivesomeoftheeconomicbenefits in the CBA provided they remain the certified bargaining agent. PAL agreed and resumed operations. Is the agreement to suspend the CBA for 10 years abdicated the workers right to bargain? A:No.TheprimarypurposeofaCBAistostabilize labormanagement relations in order to create a climateofasoundandstableindustrialpeace.The assailedagreementwastheresultofthevoluntary CB negotiations undertaken in the light of severe financialsituationfacedbyPAL. Q: Is the agreement in conflict with Art. 253A of theLC? A:No.Thereisnoconflictbetweentheagreement and Art. 253Aof the LCfor the latter hasa 2fold purpose namely: a) to promote industrial stability and predictability and b) to assign specific time tables wherein negotiations become a matter of right and requirement. In so far as the first purpose, the agreement satisfies the first purpose. Asregardthesecondpurpose,nothinginArt.253A prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remediestoenforcethesame. Q: Does the agreement violate the 5 year representation limit as provided under Art. 253A oftheLC? A:No.Forunderthesaidarticle,therepresentation limit of the exclusive bargaining agent applies only when there is an existing CBA in full force and effect. In this case, the parties agreed to suspend the CBA and put in abeyance the limit on representation.(Riverav.Espiritu,G.R.No.135547, Jan.23,2002) b.MandatoryprovisionsoftheCBA Q:WhatarethemandatoryprovisionsoftheCBA? A: 1. 2. 3. 4. 5. 6. 7.
Note: In addition, the BLR requires the CBA should includeaclearstatementofthetermsoftheCBA. Ersdutytobargainislimitedtomandatorybargaining subjects; as to other matters, he is free to bargain or not.

Grievancemachinery Voluntaryarbitration Wages Hoursofwork Familyplanning Ratesofpay Mutualobservanceclause

Q: How are cases arising from the Interpretation or implementation of CBAs handledanddisposed? A: They are disposed through the grievance machinery and if not resolved by the grievance machinery,throughvoluntaryarbitration.(1995Bar Question) Q:Whatisgrievance? A:Itisanyquestionbyeithertheemployerorthe union regarding the interpretation or implementation of any provision of the CBA or interpretation or enforcement of company personnelpolicies.(Sec.1[u],RuleI,BookV,IRR) Q: What provisions must the parties include in a CBA? A: 1. Provisions that will ensure the mutual observanceofitstermsandconditions. 2. A machinery for adjustment and resolutionofgrievancesarisingfromthe: a. Interpretation/implementation of theCBAand

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

149

UST GOLDEN NOTES 2011


b. Interpretation/ enforcement of company personnel policies. (Art. 260,par.1). 2. (1)GrievanceProcedure Q:Whatisgrievancemachinery? A: It refers to the mechanism for the adjustment and resolution of grievances arising from the interpretation or enforcement of company personnel policies. It is part of the continuing processofcollectivebargaining(CB).
Note: It is a must provision in any CBA and no collectiveagreementcanberegisteredintheabsence ofsuchprocedure.

daysfromreceipt,VA/paneldesignatedin the CBA shall commence arbitration proceedings If the CBA does not designate or if the parties failed to name the VA/panel, the regional branch of NCMB appoints VA/panel

(2)VoluntaryArbitration Q:Whatisvoluntaryarbitration? A: It refers to the mode of settling labor managementdisputesbywhichthepartiesselecta competent,trainedandimpartialthirdpersonwho shall decide on the merits of the case and whose decision is final and executory. (Sec.1 [d], Rule II, NCMBRevisedProceduralGuidelinesintheConduct ofVoluntaryArbitrationProceedings,Oct.15,2004) Q: What is the difference between compulsory andvoluntaryarbitration? A: Compulsory arbitrationisa systemwherebythe parties to a dispute are compelled by the government to forego their right to strike and are compelledtoaccepttheresolutionoftheirdispute rd through arbitration by a 3 party. The essence of arbitrationremainssincearesolutionofadisputeis arrived at by resort to a disinterested third party whose decision is final and binding on the parties, but in compulsory arbitration, such a third party is normallyappointedbythegovernment. Under voluntary arbitration, on the other hand, referral of a dispute by the parties is made, pursuant to a voluntary arbitration clause in their collective agreement, to an impartial third person for a final and binding resolution. Ideally, arbitration awards are supposed to be complied withbybothpartieswithoutdelay,suchthatonce an award has been rendered by an arbitrator, nothing is left to be done by both parties but to complywiththesame.Afterall,theyarepresumed to have freely chosen arbitration as the mode of settlement for that particular dispute. Pursuant thereto, they have chosen a mutually acceptable arbitrator who shall hear and decide their case. Above all, they have mutually agreed to be bound by said arbitrator's decision. (Luzon Devt Bank v. AssnofLuzonDevtBankEes,G.R.No.120319,Oct. 6,1995) Q:Whatisthebasisforvoluntaryarbitrationand itsrationale? A: The State shall promote the principle of shared responsibilitybetweenworkersandemployersand

Q:Howisgrievancemachineryestablished? A: 1. Agreementbytheparties 2. Agrievancecommitteecomposedofat least 2 representatives each from the members of the bargaining unit and the employer, unless otherwise agreed upon bythepartiesshallbecreatedwithin10 daysfromthesigningofCBA
Note: Although Art. 260 of the Labor Code mentions parties to a CBA, itdoes not meanthata grievance machinerycannotbesetupinaCBAlessenterprise.In anyworkplacewheregrievancecanarise,agrievance machinerycanbeestablished.

Q:Whatisgrievanceprocedure? A: It refers to the internal rules of procedure establishedbythepartiesintheirCBAwhichusually consists of successive steps starting at the level of thecomplainantandhisimmediatesupervisorand ending, when necessary, at the level of the top union and company officials and with voluntary arbitrationastheterminalstep. Q: What will happen to grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of their submission? A:Theyshallautomaticallybereferredtovoluntary arbitration prescribed in the CBA. (Art. 260, par.2, LaborCode) Eitherpartymayservenoticeupontheotherofits decisiontosubmittheissuetovoluntaryarbitration (VA): 1. If the party upon whom such notice is served fails/refuses to respond within 7

150

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrialpeace(Sec.3,Art.XIII,1987Constitution). (3)NoStrikeNoLockoutClause Q:WhendoestheNoStrikeNoLockoutclausein theCBAapply? A: The no strikeno lockout clause in the CBA applies only to economic strikes. It does not apply toULPstrikes.Hence,ifthestrikeisfoundedonan unfair labor practice of the employer, a strike declared by the union cannot be considered a violationofthenostrikeclause.(MasterIronLabor Unionv.NLRC,G.R.No.92009,Feb.17,1993) (4)LaborManagementCouncil Q: What is the role of the Department of Labor and Employment in the creation of Labor ManagementCouncils? A:TheDepartmentshallpromotetheformationof labormanagement councils in organized and unorganized establishments to enable the workers to participate in policy and decisionmaking processes in the establishment, insofar as said processes will directly affect their rights, benefits and welfare, except those which are covered by collective bargaining agreements or are traditional areasofbargaining. The Department shall promote other labor management cooperation schemes and, upon its own initiative or upon the request of both parties, may assist in the formulation and development of programs and projects on productivity, occupational safety and health, improvement of quality of work life, product quality improvement, andothersimilarschemes.(Sec.1,RuleXXI,BookV, IRR) Q: How is the representative in the Management CouncilSelected? A: In organized establishments, the workers representatives to the council shall be nominated by the exclusive bargaining representative. In establishments where no legitimate labor organizationexists,theworkersrepresentativeshall beelecteddirectlybytheemployeesatlarge.(Sec. 2,RuleXXI,BookV,IRR) c.ULPinCollectiveBargaining Q:WhataretheformsofULPinbargaining? A: 1. 2. 3. Failuretomeetandconvene Evading the mandatory subjects of bargaining. Bad faith in bargaining (boulwarism), including failure to execute the CBA if requested GrossviolationoftheCBA SurfaceBargaining Blueskybargaining

4. 5. 6.

Note:ViolationsofCBA,exceptthosewhicharegross in character, shall no longer be treated as ULP but a grievanceunderCBA.(Art.261,LC,Silvav.NLRC,G.R. No.110226,June191997)

Q:Whenisthererefusaltobargain? A:Aunionviolatesitsdutytobargaincollectivelyby entering negotiations with a fixed purpose of not reachinganagreementorsigningacontract. Q:Whatisfeatherbedding/makeworkactivities? A:Itreferstothepracticeoftheunionoritsagents incausingorattemptingtocauseanemployer(Er) to pay or deliver or agree to pay or deliver money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, as when a union demands that the Er maintain personnel in excess of the lattersrequirements.
Note:Itisnotfeatherbeddingiftheworkisperformed nomatterhowunnecessaryoruselessitmaybe.

Q:Whatisthesweetheartdoctrine? A:ItiswhenaLOasksfororacceptsnegotiationsor attysfeesfromemployersaspartofthesettlement ofanyissueinCBoranyotherdispute.


Note:TheresultingCBAisconsideredasasweetheart contractaCBAthatdoesnotsubstantiallyimprove theemployeeswagesandbenefitsandwhosebenefits arefarbelowthanthoseprovidedbylaw.

Q:Whatisblueskybargaining? A: It is defined as making exaggerated or unreasonableproposals.


Note:Whetherornottheunionisengagedinbluesky bargainingisdeterminedbytheevidencepresentedby the union as to its economic demands. Thus, if the unionrequiresexaggeratedorunreasonableeconomic demands,thenitisguiltyofULP.(StandardChartered Bankv.Confessor,G.R.No.114974,June16,2004)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

151

UST GOLDEN NOTES 2011


Q:Whendoesboulwarismoccur? A: It occurs when employer (Er) directly bargains withtheemployee(Ee)disregardingtheunion;the aim was to deal with the labor union through Ees ratherthanwiththeEesthrutheunion.Ersubmits itsproposalsandadoptsatakeitorleaveitstand. d.UnfairLaborPractice (1)ULPofEmployers Q: What are the ULP that may be committed by Ers? A: 1. Interference 2. Yellowdogcondition 3. Contractingout 4. Companyunionism 5. Discrimination for or against union membership 6. Discriminationbecauseoftestimony 7. Violationofdutytobargain 8. Paidnegotiation 9. GrossviolationofCBA (a)Interference Q:Whatismeantbyinterference? A:TheactofErtointerferewith,restrainorcoerce Eesintheexerciseoftheirrighttoselforganization. Q:Whatisthetestofinterference? A:WhethertheErhasengagedinconductwhich,it mayreasonablybesaid,tendstointerferewiththe freeexerciseoftheEesrighttoselforganization.
Note:DirectevidencethatanEewasinfactintended orcoercedbythestatementsofthreatsoftheErisnot necessaryifthereisareasonableinterferencethatthe antiunion conduct of the Er does have an adverse effect on selforganization and CB. (The Insular Life AssuranceNATUv. The InsularLife Co.Ltd, G.R.No.L 25291,Jan.30,1971)

1. 2. 3.

Thecircumstancesunderwhichtheywere uttered The history of the particular Ers labor relationsorantiunionbias Their connection with an established collateralplanofcoercionorinterference. (The Insular Life AssuranceNATU v. The Insular Life Co. Ltd, G.R. No.L25291, Jan. 30,1971)

Q:Whatisthetotalityofconductdoctrine? A:ItstatesthattheculpabilityofErsremarksisto be evaluated not only on the basis of their implications, but against the background of and in conjunctionwithcollateralcircumstances. Under this doctrine, expressions of opinion by an Er,thoughinnocentinthemselves,frequentlywere heldtobeULPbecauseof:

Q: Phil. Marine Officers Guild (PMOG) is a union representing some of Philsteams officers and CebuSeamensAssociation(CSA)isanotherunion representing some of Philsteams officers. PMOG sentalettertoPhilsteamrequestingforCBbutthe company asked the former to first prove it represents the majority. Simultaneously, Philsteam interrogated its captains, deck officers andengineerswhileCSAlikewisesentitsdemands to Philsteam. The company recognized CSA as representingthemajorityandenteredintoaCBA. Hence PMOG declared a strike. PMOG was subjected to vilification and Philsteams pier superintendent participated in the solicitation of membership for CSA. Is the company guilty of ULP? A: Yes. Although the company is free to make interrogationsastoitsEesunion,thesameshould beforalegitimatepurposeandmustnotinterfere withtheexerciseofselforganizationotherwiseitis considered as ULP. Moreover, Philsteams supervisoryEesstatementthatPMOGisamoney makingunion,whichismadetoappeartobesaid in behalf of the union and the participation of the companys pier superintendent in soliciting membership for the competing union, is ULP for interfering with the exercise of the right to self organization. (Philsteam and Navigation v. Philippine Marine Officers Guild, G.R. Nos. L20667 andL20669,Oct.29,1965) Q:Whatisalockout? A: It means any temporary refusal of an Er to furnish work as a result of an industrial or labor dispute.(Art.212[p]) Q:WhendoeslockoutorclosureamounttoULP? A: A lockout, actual or threatened, as a means of dissuading the Ees from exercising their rights is clearly an ULP. However, to hold an Er guilty, the evidence must establish that the purpose was to interferewiththeEesexerciseoftheirrights. Q: What are other examples of acts of interference?

152

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


A: 1. 2. Outrightandunconcealedintimidation In order that interrogation would not be deemedcoercive: a. The Er must communicate to the Ee thepurposeofquestioning b. Assure him that no reprisal would takeplace c. ObtainEeparticipationvoluntarily d. Must be free from Er hostility to unionorganization e. Mustnotbecoerciveinnature IntimidatingexpressionsofopinionbyEr

3.

Note: An Er who interfered with the right to self organization before a union is registered can be held guilty of ULP. (Samahan ng mga Manggagawa sa BandolinoLMLC v. NLRC, G.R. No. 125195, July 17, 1997) It is the prerogative of the company to promote, transfer or even demote its Ees to other positions when the interests of the company reasonably demand it. Unless there are circumstances which directlypointtointerferencebythecompanywiththe Ees right to selforganization, the transfer of an Ee shouldbeconsideredaswithintheboundsallowedby law. (RubberworldPhils.v.NLRC, G.R.No.75704, July 19,1989)

Q:Whatarethe3usualprovisionsunderayellow dogcontract? A: 1. ArepresentationbytheEethatheisnota memberofalaborunion. 2. A promise by the Ee not to join a labor union. 3. A promise by the Ee that upon joining a laborunion,hewillquithisemployment. (c)ContractingOut Q:WhatiscontractingoutasaformofULP? A: It is to contract out services or functions being performed by union members when such will interferewith,restrainorcoerceEesintheexercise oftheirrightstoselforganization. Q: Does it mean that an Er cannot contract out work? A: GR:ContractingoutservicesisnotULPperse. XPNs:ItisULPonlywhentheff.exists: 1. The services contracted out are being performedbyunionmembers;and 2. Such contracting out interferes with, restrains,orcoerceEesintheexerciseof theirrighttoselforganization.
Note: When the contracting out is being done for business reasons such as decline in business, inadequacyofequipmentortoreducecost,thenitisa validexerciseofmanagementprerogative.

(b)YellowDog Q:Whatisayellowdogcondition? A:Itistorequireasaconditionofemploymentthat apersonoranEeshallnotjoinalabororganization orshallwithdrawfromonetowhichhebelongs. Q:Whatisayellowdogcontract? A:Itisapromiseexactedfromworkersascondition of employment that they are not to belong to or attempt to foster a union during their period of employment. Q:Isyellowdogcontractvalid? A:No.Itisnullandvoidbecause: 1. It is contrary to public policy for it is tantamounttoinvoluntaryservitude. 2. It is entered into without consideration for Ees in waiving their right to self organization. 3. Ees are coerced to sign contracts disadvantageoustotheirfamily.
Note: This is one of the cases of ULP that may be committedintheabsenceofanErEerelationship.

Q: Company "A" contracts out its clerical and janitorial services. In the negotiations of its CBA,theunioninsistedthatthecompanymay no longer engage in contracting out these types of services, which services the union claims to be necessaryinthecompany'sbusiness,without prior consultation. Is the union's stand valid or not?Forwhatreason(s)? A: The union's stand is not valid. It is part of management prerogative to contract out any work,task,joborprojectexceptthatitisanULP to contract out services or functions performed by union members when such will interfere with,restrainorcoerceEesintheexerciseoftheir rights to selforganization. (Art.248[c]oftheLC). (2001BarQuestion) Q:Whatisarunawayshop?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

153

UST GOLDEN NOTES 2011


A:Itisanindustrialplantmovedbyitsownersfrom onelocationtoanothertoescapelaborregulations or State laws or to discriminate against Ees at the oldplantbecauseoftheirunionactivities. Q:IsresortingtorunawayshopULP? A: Yes. Where a plant removal is for business reasonsbuttherelocationishastenedbyantiunion motivation, the early removal is ULP. It is immaterialthattherelocationisaccompaniedbya transfer of title to a new employer (Er) who is an alteregooftheoriginalEr. (d)CompanyUnionism Q:Whatisacompanyunion? A: Any labor organization whose formation, functionoradministrationhasbeenassistedbyany actdefinedasULP.(Art.212[i]) Q:Whataretheformsofcompanyunionism? A: 1. Initiationofthecompanyunionideaby: a. Outright formation by Er or his representatives b. Eeformationonoutrightdemandor influencebyErand c. Manageriallymotivatedformationby Ees 2. Financialsupporttotheunionby: a. Erdefraysunionexpenses b. Pays attys feesto the attorneywho drafted the Constitution or bylaws oftheunion. 3. Er encouragement assistance Immediately granting of exclusive recognition as bargaining agent without determining whether the union representsthemajorityoftheemployees 4. Supervisory assistance Soliciting membership, permitting union activities during work time or coercing Ees to join the union by threats of dismissal or demotion Q: What is meant by the act of company dominationofunion? A: This is to initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization including giving of financial or other support to it or its organizers or supporters. Q: Why is company unionism/captive unionism a formofULP? A: ItisconsideredULPbecausetheofficerswillbe beholdentotheErsandtheywillnotlookafterthe interestofwhomtheyrepresent. (e)Discriminationfororagainstunionmembership Q: What is meant by discrimination as a form of ULP? A:Itistodiscriminateinregardtowages,hoursof work and other terms and conditions of employment in order to encourage or discourage membershipinanylabororganization. Q:WhenisadischargeofanEediscriminatory? A: For the test of determining whether or not a discharge is discriminatory, it is necessary that the underlyingreasonforthedischargebeestablished. The fact that a lawful cause for discharge is available is not a defense where the Ee is actually discharged because of his union activities. If the discharge is actually motivated by lawful reason, thefactthattheEeisengagedinunionactivitiesat thetimewilllieagainsttheErandpreventhimfrom the exercise of business judgment to discharge an Eeforcause.(Phil.MetalFoundriesInc.v.CIR,G.R. Nos.L3494849,May15,1979) Q:Jobohas3hotels,theTaalVistaLodge,Manila Hotel and the Pines Hotel. Among the 3, Pines HotelhadmoreEesandtheonlyonewithalabor organization(LO).Whenthebonuswasdistributed among the 3 hotels, Pines Hotel Ees received the leastamountcomparedtotheEesofManilaHotel and Taal Vista Lodge. Did the company commit ULP? A:Yes.Thesharingofthebonusesisdiscriminatory andsuchconstituteULP.ThePinesHotelEeswould bereceivingfewerbonusescomparedtotheEesof Taal Vista Lodge and Manila Hotel where neither has a LO nor does the complainant union has a member. Taking into account that Pines Hotel is realizingprofitcomparedtothatofTaalVista.Same analogyappliesinthesalaryincrease.(ManilaHotel Co. v. Pines Hotel Ees Assn, G.R. No.L30139, Sep. 28,1972) Q:Whencantherebeavaliddiscrimination?

154

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


A: The employer is not guilty of ULP if it merely complies in good faith with the request of the certified union for the dismissal of employees expelled from the union pursuant to the union securityclauseintheCBA.(Sorianov.Atienza,G.R. No.L68619,Mar.16,1989) Q:Aprofitsharingschemewasintroducedbythe companyforitsmanagersandsupervisorswhoare notmembersoftheunion,hencedonotenjoythe benefitsoftheCBA.Therespondentunionwanted toparticipatewiththeschemebutwasdeniedby the company due to the CBA. Subsequently the company distributed the profit sharing to the manager, supervisors and other nonunion memberEes.Asaresulttheunionfiledanoticeof strike alleging ULP. Is the nonextension of the profit sharing scheme to union members discriminatoryandanULP? A: No. There can be no discrimination when the Eesarenotsimilarlysituated.Thesituationofunion members is different and distinct from nonunion members because only union members enjoy the benefit under the CBA. The profit sharing scheme was extended to those who do not enjoy the benefits of the CBA. Hence, there is no discriminationandULPisnotcommitted.(Wiseand Co.,Inc.v.NLRC,G.R.No.L87672,Oct.13,1989) Q: Is dismissal of an Ee pursuant to a union securityclauseaformofULP? A: No. Union security clauses in the CBA, if freely andvoluntarilyenteredinto,arevalidandbinding. Thus, the dismissal of an Ee by the company pursuant to a labor unions demand in accordance with a union security agreement does not constitute ULP. (Malayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos, G.R. No. 113907,Feb.28,2000) A union member who is employed under an agreement between the union and his Er is bound by the provisions thereof since it is a joint and several contract of the members of the union enteredintobytheunionastheiragent.(Manalang v.ArtexDevt,G.R.No.L20432,Oct.30,1967) Q: Is notice and hearing required in case an Ee is dismissedpursuanttoaunionsecurityclause? A: Yes. Although a union security clause in a CBA may be validly enforced and dismissal pursuant to thereto may likewise be valid, this does not erode the fundamental requirement of due process. The reason behind the enforcement of union security clauses which is the sanctity and inviolability of contractscannoterodeonesrighttodueprocess. Notwithstanding the fact that the dismissal was at theinstanceofthefederationandthatitundertook toholdthecompanyfreefromanyliabilityresulting fromsuchdismissal,thecompanymaystillbeheld liable if it was remiss in its duty to accord the wouldbe dismissed Ees their right to be heard on thematter. Q: Mabeza and her coEes were asked by the company to sign an affidavit attesting to the latters compliance with pertinent labor laws. Mabeza signed the affidavit but refused to swear toitsveracitybeforetheCityprosecutor.Mabeza then filed a LOA which was denied by management. After sometime, she attempted to returntoworkbutthecompanyinformedhernot toreportforworkandcontinuewithherunofficial leave.DidthecompanycommitULP? A: Yes. The act of compelling an Ee to sign an instrument indicating the Ers compliance with Laborlawswhichthecompanymighthaveviolated together with the act of terminating or coercing those Ees to cooperate is an act of ULP. This is analogous with Art. 248 (f) of the LC which provides: to dismiss, discharge or otherwise prejudice or discriminate against an Ee for having given or being about to give testimony under this Code. For in not giving a positive testimony in favoroftheEr,Mabezareservednotonlyherright to dispute the claim but also to work for better terms and condition. (Mabeza v. NLRC, G.R No. 118506,April18,1997) (f)ViolationofDutytoBargain Q: What is violation of the duty to bargain as a kindofULP? A: This is the act of violating the duty to bargain collectivelyasprescribedintheLC. Q:WhataretheformsofULPinbargaining? A: 1. Failureorrefusaltomeetandconvene 2. Evading the mandatory subject of bargaining 3. Badfaith(BF)bargaining,includingfailure toexecutetheCBAifrequested 4. GrossviolationoftheCBA
Note: A companys refusal to make counterproposal, if considered in relation to the entire bargaining process, may indicate BF and this is especially true where the unions request for a counter proposal is left unanswered. (Kiok Loy v. NLRC, G.R. No. L54334, Jan.22,1986)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

155

UST GOLDEN NOTES 2011


Q:WhataretheexamplesofULPinbargaining? A: 1. Delaying negotiations by discussing unrelatedmatters 2. Refusaltoacceptrequesttobargain 3. Rejecting a unions offer to prove its majorityclaim 4. Shutdowntoavoidbargaining 5. Engaginginsurfacebargaining Q: Balmar Farms Ees Association (BFEA) is affiliated with Associated Labor Union (ALU). ALU won in the certification election held in the company. Thus, ALU sent its proposal for a CBA, butthecompanyrefusedtoactonitallegingthat BEA is the sole and exclusive bargaining representativeandthatBFEAthroughitspresident had sent a letter informing the company of its disaffiliation with ALU. Is the company guilty of ULPforrefusingtobargaincollectively? A: Yes. ALU is the certified exclusive bargaining representative after winning the certification election. The company merely relied on the letter of disaffiliation by BFEAs president without proof and consequently refusing to bargain collectively constitutes ULP. Such refusal by the company to bargain collectively with the certified exclusive bargainingrepresentativeisaviolationofitsdutyto collectively bargain which constitutes ULP. (Balmar Farmsv.NLRC,G.R.No.73504,Oct.15,1991) Q: The Kilusang Kabisig, a newlyformed labor union claiming to represent a majority of the workers in the Microchip Corp., proceeded to presentalistofdemandstothemanagementfor purposes of collective bargaining (CB). The Microchips Corp.,amultinationalcorp.engagedin the production of computer chips for export, declined to talk with the union leaders, alleging that they had not as yet presented any proof of majority status. The Kilusang Kabisig then charged Microchip Corp. with ULP, and declared a "wildcat" strike wherein means of ingress andegress wereblocked and remote and isolated acts of destruction and violence were committed. Was the company guilty of an ULP when it refused to negotiate with the Kilusang Kabisig? A: No.ItisnotanULPnottobargainwithaunion which has not presented any proof of its majority status. The LC imposes on an Er the duty to bargain collectively only with a legitimate labor organizationdesignatedorselectedbythemajority oftheEesinanappropriateCBunit.ItisnotaULP for an Er to ask a union requesting to bargain collectively that such union first show proof of its beingamajorityunion.(1997BarQuestion) Q:Whatissurfacebargaining? A: It is the act of going through the motions of negotiating without any legal intent to reach an agreement. It involves the question of whether or nottheErsconductdemonstratesanunwillingness to bargain in good faith or is merely hard bargaining. (Standard Chartered Bank v. Confessor, G.R.No.114974,June16,2004)
Note: Occurs when the Er constantly changes its positionovertheagreement.

(g)PaidNegotiation Q:Whatismeantbypaidnegotiationasaformof ULP? A:Itistheactoftheemployertopaynegotiationor attys fees to the union or its officers or agents as part of the settlement of any issue in collective bargainingoranyotherdispute. (h)GrossViolationofCBA Q: When is the violation of CBA considered as ULP? A:OnlywhentheviolationisgrossTheremustbe a flagrant and/or malicious refusal to comply with theeconomicprovisionoftheCBA.
Note:AlltheULPactsmusthavearelationtotheEes exercise of their right to selforganization. Antiunion orantiorganizationmotivemustbeprovedbecauseit isadefinitionalelementofULP. If violation is not gross, it is not ULP but a grievance under CBA. The grossly violate phrase is an amendmentbyR.A.6715.

Q:AcomplaintforULPwasfiledbyaprosecutorof the CIR against Alhambra company, upon the charges of the union that 15 of its members employedasdriversandhelpersarediscriminated for being deprived of the benefits under the CBA with no justifiable reason other than union membership.IsthecompanyguiltyofULP? A: Yes. The refusal to extend the benefits and privileges under the CBA to Ees constitutes ULP. Failure on the part of the company to live up in good faith to the terms of the CBA is a serious violation of the duty to collectively bargain which againamountstoULP.The15driversandhelpers are found to be Ees of the company, hence, the benefit and privileges under the CBA should be

156

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


extendedtothem.(AlhambraIndustriesv.CIR,G.R. No.L25984,Oct.30,1970) Q:WhatarethereliefsavailableinULPcases? A:Thefollowingreliefsmaybeavailedof: 1. Ceaseanddesistorder 2. Affirmativeorder 3. Courtmayordertheemployertobargain. CBAmaybeimposed. 4. Strikebyunionmembers
Note:ULPcasesarenotsubjecttocompromiseinview of the public interest involve. The relation between capital and labor is not merely contractual. They are impressed with public interest that labor contracts mustyieldtocommongood.

5.

Q: Is the commission of an ULP by an employer subject to criminal prosecution? A: Yes,becauseULPsarenotonlyviolationsofthe civil rights of both labor and management but are alsocriminaloffensesagainstthe State which shall be subject to prosecution and punishment. (Art. 247LC;SeealsoB.P.Blg.386as amendedbyR.A. 6715).However,thecriminalaspectcanonlybe filed when the decision of the labor tribunals, finding the existence of ULP, shall have become finalandexecutory.(2005BarQuestion) (2)ULPofLaborOrganizations Q:WhataretheULPofLOs? A: It shall be ULP for a LO, its officers, agents or representatives: 1. To restrain or coerce Ees in the exercise of their rights to selforganization. However, a LO shall have the right to prescribeitsownruleswithrespecttothe acquisitionorretentionofmembership To cause or attempt to cause an Er to discriminate against an Ee, including discrimination against an Ee with respect to whom membership in such organization has been denied or to terminateanEeonanygroundotherthan the usual terms and conditions under which membership or continuation of membership is made available to other members To violate the duty, or refuse to bargain collectivelywiththeEr,provideditis the representativeoftheEes TocauseorattempttocauseanErtopay or deliver or agree to pay or deliver any money or other things of value, in the

2.

3.

4.

6. Q:IsinterferencebyaLOanULP? A:No,becauseinterferencebyaLOintheexercise of the right to organize is itself a function of self organizing. Q:Whatareexamplesofinterferencewhichdoes notamounttoULP? A: 1. Union campaigns for membership even amongmembersofanotherunion 2. Filingbyaunionofapetitiontodislodge anincumbentbargainingunion 3. A bargaining union, through a union security clause, requires an incoming employeetojointheunion. Q:MayaunioncoerceEestojoinastrike? A:No.Aunionviolatesthelawwhen,torestrainor coercenonstrikersfromworkingduringthestrike, it: 1. Assaultsorthreatenstoassaultthem 2. Threatensthemwiththelossoftheirjobs 3. Blockstheiringresstooregressfromthe plant 4. Damages nonstrikers automobiles or forcesthemoffthehighway 5. Physicallypreventingthemfromworking 6. Sabotages the Ers property in their presence, thereby creating an atmosphereoffearorviolence 7. Demonstrates loudly in front of a non strikers residence with signs and shouts accusingthenonstrikerofscabbing 8. Holdingthenonstrikeruptoridicule 9. Seekingpubliccondemnationofthenon striker Q:Whatisacaseofunioninduceddiscrimination bylabororganization(LO)? A: This pertains to the arbitrary use of union securityclause. A union member may not be expelled from the union, and consequentlyfrom his job, for personal

nature of an exaction, for services which are not performed or not to be performed, including the demand for fee forunionnegotiations Toaskfororacceptnegotiationsorattys feesfromErsaspartofthesettlementof any issue in collective bargaining (CB) or anyotherdisputeor ToviolateaCBA.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

157

UST GOLDEN NOTES 2011


andimpetuousreasonsorforcausesforeigntothe closed shop agreement. (Manila Mandarin Ees Unionv.NLRC,G.R.No.76989,Sep.29,1987) Laborunionsarenotentitledtoarbitrarilyexclude qualified applicants for membership and a closed shop applicants provision will not justify the employerindischarging,oraunionininsistingupon thedischargeofanemployeewhomtheunionthus refuses to admit to membership without any reasonable ground thereof. (Salunga v. CIR, G.R. No.L22456,Sep.27,1967) Q:Whenisthererefusaltobargain? A:Aunionviolatesitsdutytobargaincollectivelyby entering negotiations with a fixed purpose of not reachinganagreementorsigningacontract. 3.RIGHTTOPEACEFULCONCERTEDACTIVITIES Q: What is the constitutional basis of strikes, lockoutsandotherconcertedactivities? A: The State shall guarantee the rights of all workers to selforganization, collective bargaining andnegotiations,andpeacefulconcertedactivities, includingtherighttostrikeinaccordancewithlaw (Sec.3,Art.XIII,1987Constitution).
Note: The law does not look with favor upon strikes and lockouts because of their disturbing and perniciouseffectsuponthesocialorderandthepublic interests;topreventoravertthemandtoimplement Sec.6,Art.XIVoftheConstitution,thelawhascreated severalagencies,namely:theBLR,theDOLE,theLabor Management Advisory Board, and the CIR. (Luzon Marine Devt Union v. Roldan, G.R. No. L2660, May 30,1950)

Q:Whatisaconcertedaction? A: It is an activity undertaken by 2 or more employees,byoneonbehalfoftheothers. Q:Areallconcertedactionsstrikes? A:Notallconcertedactivitiesarestrikes.Theymay only be protest actions they do not necessarily cause work stoppage by the protesters. A strike in contrast is always a group action accompanied by workstoppage. Q: The Ees wrote and published a letter to the bank president, demanding his resignation onthe grounds of immorality, nepotism, favoritism and discrimination in the appointment andpromotion ofbankEes.Thebankdismissedthe8Eesonthe allegedlibelousletter.WeretheEesengagedina concertedactivity?

A:Yes,assumingthattheyactedintheirindividual capacities when they wrote the letter, they were nonethelessprotected,fortheywereengagedina concertedactivity,intheirrightofselforganization that includes concerted activity for mutual aid and protection.Anyinterferencemadebythecompany willconstituteasULP. Thejoininginprotestsordemands,evenbyasmall group of Ees, if in furtherance of their interests as such is a concerted activity protected by the IndustrialPeaceAct.Itisnotnecessarythatunion activitybeinvolvedorthatcollectivebargainingbe contemplated. (Republic Savings Bank v. CIR, G.R. No.L20303,Oct.31,1967) Q:Whatisastrike? A:Itmeansanytemporarystoppageofworkbythe concerted action of employees as a result of an industrialorlabordispute.(Sec.1[uu],RuleI,Book V,IRR) It shall comprise not only concerted work stoppages, but also slowdowns, mass leaves, sitdowns, attempt to damage, destroy or sabotage plantequipmentandfacilities,andsimilaractivities. (Samahang Manggagawa sa Sulpicion Lines v. SulpicioLines,Inc.,G.R.No.140992,Mar.25,2004) Q:Whatisthepurposeofastrike? A: A strike is a coercive measure resorted to by laborerstoenforcetheirdemands.Theideabehind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less, paralyzed. (Phil. CanCo.v.CIR,G.R.No.L3021,July13,1950) Q:Whatisalockout? A: It means any temporary refusal of an employer tofurnishworkasaresultofanindustrialorlabor dispute.(Art.212[p]) Q:Whatispicketing? A:Itistheactofmarchingtoandfrotheemployers premises which is usually accompanied by the display of placard and other signs, making known thefactsinvolvedinalabordispute. The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedomofspeechguaranteedbytheConstitution. If peacefully carried out, it can not be curtailed

158

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


evenintheabsenceofErEerelationship.(PAFLUv. Cloribel,G.R.No.L25878,Mar.28,1969) Q:Istherighttopicketanabsoluteright? A: No, while peaceful picketing is entitled to protectionasanexerciseoffreespeech,thecourts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interests, and to insulate establishments or persons with no industrial connectionorhavinginteresttotallyforeigntothe context of the dispute. (Liwayway Pub., Inc. v. Permanent Concrete Workers Union, G.R. No. L 25003,Oct.23,1981) Therighttopeacefulpicketingshallbeexercisedby the workers with due respect for the rights of others.No person engaged in picketing shall commit any act of violence, coercion or intimidation.Stationary picket, the use of means like placing of objects to constitute permanent blockade orto effectively close points of entry or exitincompanypremisesareprohibitedbylaw. Q:Whoisastrikebreaker? A: Any person who obstructs, impedes, or interfereswithbyforce,violence,coercion,threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of selforganization or collectivebargaining.(Art.212[r]) Q:Whatisastrikearea? A:Itmeanstheestablishment,warehouses,depots, plants or offices, including the sites or premises usedasrunawayshops,oftheErstruckagainst,as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment.(Sec.1[vv],RuleI,BookV,IRR) Q:Whatisaninternaluniondispute? A:Itincludesalldisputesorgrievancesarisingfrom anyviolationofordisagreementoveranyprovision oftheconstitutionandbylawsofaunion,including any violation of the rights and conditions of union membershipprovidedforinthisLC.(Art.212[q]) Q:Whatisaboycott? A: It is an attempt, by arousing a fear of loss, to coerce others, against their will to withhold from one denominated unfriendly to labor their beneficialbusinessintercourse. Q:Whatisaslowdown? A: It is a method by which ones employees, without seeking a complete stoppage of work, retard production and distribution in an effort to compelcompliancebytheemployerwiththelabor demandsmadeuponhim. Q: Does an overtime boycott or work slowdown by the employees constitute a strike and hence a violation of the CBAs No strike, no lockoutclause? A: Yes, the concept of a slowdown is a "strike on theinstallmentplan."Itisawillfulreductioninthe rateofworkbyconcertedactionofworkersforthe purpose of restricting the output of the employer (Er),inrelationtoalabordispute;asanactivityby which workers, without a complete stoppage of work, retard production or their performance of duties and functions to compel management to granttheirdemands. Such a slowdown is generally condemned as inherentlyillicitandunjustifiable,becausewhilethe employees (Ees) "continue to work and remain at theirpositionsandacceptthewagespaidtothem," they at the same time "select what part of their allotted tasks they care to perform of their own volition or refuse openly or secretly, to the Er's damage, to do other work;" in other words, they "work on their own terms." (Interphil Laboratories Ees UnionFFW v. Interphil Laboratories, Inc., G.R. No.142824,Dec.19,2001) Q:Whatarethecharacteristicsofastrike? A: 1. ExistenceofanErEerelationship 2. Existenceofalabordispute 3. Employment relation is deemed to continuealthoughinastateofbelligerent suspension 4. Temporaryworkstoppage 5. Workstoppageisdonethroughconcerted action 6. The striking group is a legitimate labor organization; in case of a bargaining deadlock, it must be the employees sole bargainingrepresentative Q: PAL dismissed strike leader Capt. Gaston as a result of which the Union resolved to undertake the grounding of all PAL planes and the filing of applications for protest retirement of members whohadcompleted5yearsofcontinuousservice, and protest resignation for those who had rendered less than 5 years of service in the company. PAL acknowledged receipt of said letters and among the pilots whose protest

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

159

UST GOLDEN NOTES 2011


resignation or retirement was accepted by PAL wereEnriquezandEcarma. Before their readmission, PAL required Enriquez and Ecarma to accept 2 conditions, namely: that theysignconformitytoPALsletterofacceptance of their retirement and or resignation and that theysubmitanapplicationforemploymentasnew employees(Ees)withoutprotestorreservation.As aresultofthistheirseniorityrightswerelost. Are the pilots entitled to the restoration of their seniorityrights? A:No,anEehasnoinherentrighttoseniority.He hasonlysuchrightsasmaybebasedonacontract, statute, or an administrative regulation relative thereto. Seniority rights which are acquired by an Ee through longtime employment are contractual and not constitutional. The discharge of an Ee thereby terminating such rights would not violate the Constitution. When the pilots tendered their respective retirement or resignation and PAL immediately accepted them, both parties mutually terminated the contractual employment relationship between them thereby curtailing whatever seniority rights and privileges the pilots hadearnedthroughtheyears. Q:DoestheactionoftheEesofPALfallunderthe ambitofconcertedactionsprotectedbylaw? A: No, the pilots mass action was not a strike because Ees who go on strike do not quit their employment. Ordinarily, the relationship of Er and Ee continues until one of the parties acts to sever therelationshiportheymutuallyacttoaccomplish thatpurpose.Astheydidnotassumethestatusof strikers,theirprotestretirement/resignationwas not a concerted activity which was protected by law.(Enriquev.Zamora,G.R.No.L51382,Dec.29, 1986) Q:Whatisalabordispute? A: Any controversy or matter concerning terms or conditions or representation of persons in negotiating, fixing, maintaining, changing or arrangingthetermsandconditionsofemployment, regardlessofwhetherornotthedisputantsstandin the proximate relation of Ers and Ees. (Gold City Integrated Port Services, Inc. v. NLRC, G.R. No. 103560,July6,1995) Q: When is a person or entity considered as participatingorinterestedinalabordispute? A: 1. 2. Ifreliefissoughtagainsthimorit,and He or it is engaged in the same industry, trade, craft, or occupation in which such disputeoccurs,or Hasadirectorindirectinteresttherein,or Is a member, officer, or agent of any associationcomposedinwholeorinpart of employees or employers engaged in suchindustry,trade,craft,oroccupation.

3. 4.

Q:LiwaywayPublicationInc.isasecondsublessee of a part of the premises of the Permanent Concrete Products, Inc. It has a bodega for its newsprintinthesubletpropertywhichitusesfor its printing and publishing business. The daily supply of newsprint needed to feed its printing plant is taken from its bodega. The Ees of the Permanent Concrete Products Inc. declared a strike against their company.The union members picketed, stopped and prohibited Liwayways trucks from entering the compound to load newsprintfromitsbodega. Does the lower court have jurisdiction to issue a writ of preliminary injunction considering that there was a labor dispute between Permanent ConcreteProducts,Inc.andtheunion? A:Yes,LiwaywayPublicationInc.isnotinanyway relatedtothestrikingunionexceptforthefactthat it is the sub lessee of a bodega in the companys compound. The business of Liwayway is exclusively the publication of magazines which has absolutely no relation or connection whatsoever with the cause of the strike of the union against their company, muchlesswiththeterms,conditionsordemandsof rd the strikers. Liwayway is merely a 3 person or an innocent bystander. (Liwayway Pub., Inc. v. Permanent Concrete Workers Union, G.R. No. L 25003,Oct.23,1981) Q: Because of financial problems, the company decidedtotemporarilyshutdownitsoperationsat the dyeing and finishing division. It notified the DOLE of the shutdown. Raymund Tomaroy with 16 members of the union staged a picket in front ofthecompanyscompound,carryingplacards.He th demanded a resumption of work and 13 month pay. The company filed a petition to declare the strike illegal. The union argues that they did not stageastrike,forconsideringthatthedyeingand finishing division of the company was shut down, itcouldnothavecausedaworkstoppage.Wasthe actionoftheunionastrike?

160

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


A:Yes,theconcertedeffortsofthemembersofthe union and its supporters caused a temporary work stoppage.Theallegationthattherecanbenowork stoppagebecausetheoperationinthedivisionhad been shut down is of no consequence. It bears stressing that the other divisions were fully operational. (Bukluran ng Manggagawa sa Clothman Knitting Corp. v. CA, G.R. No. 158158, Jan.17,2005) a.FormsofConcertedActivities Q:Whatarethetypesofstrike? A: 1. Economic strike used to secure the economic demands such as higher wages and better working conditions for the workers ULP strike protest against ULP of management 3.
existenceoftheunionis threatened.Itmuststillobserve themandatory7daystrikeban periodbeforeitcanstagea validstrike

Q:Whatarethedifferentformsofstrike? A: 1. Legal Strikeone called for a valid purpose and conducted through means allowed by law. Illegal Strikeone staged for a purpose not recognizedbylaw,orifforavalidpurpose, conducted through means not sanctioned bylaw. EconomicStrikeonestagedbyworkersto forcewageorothereconomicconcessions from the employer which he is not required by law to grant (Consolidated Labor Association of the Phil. vs. Marsman, G.R. No. L 17038,July31,1964) ULPStrikeonecalledtoprotestagainstthe employers acts of unfair practice enumerated in Article 248 of the Labor Code, as amended, including gross violation of the collective bargaining agreement(CBA)andunionbusting. Slow Down Strikeone staged without the workers quitting their work but by merely slackening or by reducing their normal workoutput. WildCat Strikeone declared and staged without filing the required notice of strike and without the majority approval of the recognizedbargainingagent. Sit Down Strikeone where the workers stop working but do not leave their place ofwork. b.Whomaydeclareastrikeorlockout Q:Whomaydeclareastrikeorlockout? A: 1. Any certified or duly recognized bargainingrepresentativemaydeclarea strike in cases of bargaining deadlock and unfair labor practice. Likewise, the employer may declare a lockout in the samecases. In the absence of a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike but only on the ground of unfair labor practice. (Section 2, Rule XIII Book V,

2.

2.

Q:Distinguishbetweenaneconomicstrikeandan ULPstrike. A:
ULPSTRIKE Astonature Involuntarystrike;theLO is forcedtogoonstrikebecause Voluntarystrike oftheULPcommittedagainst becausetheEewill thembytheEr.Itisanactof declareastriketo selfdefensesincetheEesare compel beingpushedtothewalland managementto theironlyremedyistostagea grantitsdemands strike Whowillinitiate TheCBagentof theappropriate EithertheCBagentortheLLOin bargainingunitcan behalfofitsmembers declarean economicstrike Astothecoolingoffperiod 30daysfrom noticeofstrike beforethe 15daysfromthefilingofthe intendeddateof noticeofstrike actualstrike subjecttothe7 daystrikeban Astotheexceptiontothecoolingoffperiod Noexception Thecoolingoffperiodmaybe mandatory dispensedwith,andtheunion maytakeimmediateactionin caseofdismissalfrom Note:noticeof employmentoftheirofficers strikeandstrike dulyelectedinaccordancewith votemaybe theunionsconstitutionandby dispensedwith; laws,whichmayconstitute theymaystrike unionbustingwherethe immediately ECONOMICSTRIKE

4.

5.

6.

7.

2.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

161

UST GOLDEN NOTES 2011


Omnibus Rules Implementing The Labor Code,asamended). c.Requisitesforavalidstrike/lockout Q:Whataretherequisitesofalawfulstrike/ lockout? A: The requirements for a valid strike or lockoutareasfollows: 1. Itmustbebasedonavalidandfactual ground; 2. A strike or lockout NOTICE shall be filed with the National Conciliation and MediationBoard(NCMB)atleast15days before the intended date of the strike or lockout if the issues raised are unfair labor practices, or at least 30 days beforethe intended date thereof if the issueinvolvesbargainingdeadlock. 3. Incasesofdismissalfromemploymentof union officers duly elected in accordance with the union constitution and bylaws, which may constitute UNION BUSTING where the existence of the union is threatened,the15daycoolingoffperiod shall not apply and the union may take actionimmediatelyafterthestrikevoteis conducted and the result thereof submitted to the Department of Labor andEmployment. 4. A strike must be approved by a majority vote of themembers of the Union and a lockout must be approved by a majority vote of the members of the Board of Directors of the Corporation or Association or of the partners in a partnership,obtainedbysecretballotina meetingcalledforthatpurpose. AstrikeorlockoutVOTEshallbereported to the NCMBDOLE Regional Branch at least7daysbeforetheintendedstrikeor lockoutsubjecttothecoolingoffperiod. In the event the result of the strike/lockout ballot is filed within the coolingoffperiod,the7dayrequirement shall be counted from the day following the expiration of the coolingoff period. (NSFW vs. Ovejera, G.R. No. 59743,May31,1982) Incaseofdismissalfromemploymentof unionofficerswhichmayconstituteunion busting, the time requirement for the filing of the Notice of Strike shall be dispensed with but the strike vote requirement, being mandatory in character, shall in every case be compliedwith. 7. Thedisputemustnotbethesubjectofan assumption of jurisdiction by the President or the Secretary of Labor and Employment, a certification for compulsory arbitration, or submission to compulsoryorvoluntaryarbitrationnora subject of a pending case involving the samegroundsforthestrikeorlockout.

Q:Whatarethevalidgroundsfordeclaringa strikeorlockout? A: The law recognizes 2 grounds for the valid exerciseoftherighttostrikeorlockout,namely: 1. Collective Bargaining Deadlock (CBD) economic; 2. UnfairLaborPractice(ULP)political
Note:Itispossibletochangeaneconomicstrikeintoa ULP strike. (Consolidated Labor Assn of the Phils. v. MarsmanandCo.,G.R.No.L17038,July31,1964) Violations of CBA must be gross to be considered as ULP.

5.

6.

Q:Whatisconversiondoctrine? A: It is when a strike starts as economic and later, asitprogresses,itbecomesaULP,orviceversa. Q:Canastrikebeconvertedintoalockout? A:No,astrikecannotbeconvertedintoapureand simple lockout by the mere expedient of filing beforethetrial courtanoticeofoffertoreturnto work during the pendency of the labor dispute between the union and the employer. (Rizal Cement Workers Union v. CIR, G.R. No. L18442, Nov.30,1962). Q: Give examples of strike and explain their legality. A: 1. Sitdown strike Characterized by a temporaryworkstoppageofworkerswho seize or occupy property of the Er or refusetovacatethepremisesoftheEr.

162

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


Illegal Amounts to a criminal actbecauseoftheEestrespass onthepremisesoftheEr 2. Wildcat strike A work stoppage that violates the labor contract and is not authorizedbytheunion. Illegal Because it fails to comply with certain reqts of thelaw,towit:noticeofstrike, voteandreportonstrikevote SlowdownStrikeonaninstallmentplan; an activity by which workers, without complete stoppage of work, retard productionortheirperformanceofduties and functions to compel management to granttheirdemands Illegal Ees work on their own terms;whiletheEescontinueto work and remain in their positionsandacceptwagespaid tothem,theyatthesametime select what part on their allotted tasks they care to performontheirownvolitionor refuseopenlyorsecretly Sympathetic strike Work stoppages of workers of one company to make common cause with other strikers or other companies without demands or grievancesoftheirownagainsttheEr Illegal There is no labor dispute between the workers whoarejoiningthestrikersand thelattersEr Secondary strike Work stoppages of workers of one company to exert pressureontheirErsothatthelatterwill in turn bring pressure upon the Er of another company with whom another unionhasalabordispute Illegal There is no labor disputeinvolved.
Note: A strike can validly take placeonlyinthepresenceofand in relation to a labor dispute betweenErandEe.

IllegalItisapoliticalrally 7. Quickie strikes brief and unannounced temporaryworkstoppage Illegal failure to comply with notice requirementsandetc. Q: Two unions, joined a welga ng bayan. The unions, led by their officers, staged a work stoppagewhichlastedforseveraldays,prompting FILFLEX and BIFLEX Corporations to file a petition to declare the work stoppage illegal for failure to comply with procedural reqts. Whether the Ees committedanillegalworkstoppage? A:Yes.Ees,whohavenolabordisputewiththeirEr but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage. There being no showing that the two unions notified the corporations of their intention, or that they were allowed by the corporations, to join the welga ng bayan, their work stoppage is beyond legal protection.(BIFLEX Phils. Inc. Labor Union (NAFLU) vs.FILFLEXIndustrialandManufacturingCorp.,G.R. No.155679,Dec.19,2006) Q:Whatarethetestsindeterminingthelegalityof strike? A:Thefollowingmustconcur: 1. Purpose test the strike must be due to either bargaining deadlock and/or the ULP 2. Compliance with the procedural and substantive reqts of the law. (See requisitesofavalidstrike) 3. Means employed test It states that a strike may be legal at its inception but eventuallybedeclaredillegalifthestrike is accompanied by violence which is widespread, pervasive and adopted as a matter of policy and not mere violence whichissporadicwhichnormallyoccurin astrikearea. Q:Whataretheinstanceswhenastrikeorlockout cannotbedeclared? A:Nonstrikableissues: 1. CBAviolationsnotgrossincharacter 2. Grounds involving inter/intraunion disputes 3. When there is no notice of strike or lockout or without the strike or lockout vote

3.

4.

5.

6.

Welga ng bayan (Cause Oriented Strikes) A political strike and therefore there is neitherabargainingdeadlocknoranyULP

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

163

UST GOLDEN NOTES 2011


4. 5. After assumption of jurisdiction by the SLE After certification or submission of dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for strikeorlockout Labor standards cases such as wage orders. (Guidelines governing Labor Relations [Oct. 19, 1987] issued by Sec. Drilon.SeealsoArt.261,LC) its own initiative or upon request of anyparty. FurnishtheregionalbranchoftheNCMB with a notice to conduct a strike vote, at least 24hours before the meeting for such purpose (Sec. 10, Rule XXII of the OmnibusRulesoftheNLRC). 7Daystrikebana7daywaitingperiod before the date of the purported strike (within which the union intending to conduct a strike must at least submit a report to DOLE as to the result of the strikevote)
Note:TogiveDOLEanopportunitytoverify whether the projected strike really carries theimprimaturofthemajorityoftheunion members in addition to the coolingoff period before the actual strike. (Lapanday Workers Union, et.al. v. NLRC, G.R. Nos. 9549497,Sep.7,1995)

4.

6.

5.

Q: What are the procedural and substantive requisitesbeforeastrikemaybedeclared? A: 1. Notice of strike filed with the NCMB taking into consideration the coolingoff period
Note: The failure of the union to serve the company a copy of the notice of strike is a clearviolationofSection3,RuleXXII,BookV of the Rules Implementing the LC. The Constitutional precepts of due process mandatethattheotherpartybenotifiedof the adverse action of the opposing party. (Filipino Pipe and Foundry Corp. v. NLRC, G.R.No.115180,Nov.r16,1999)

2.

3.

30/15 day Coolingoff period before the intended date of actual strike notice of strike is filed with the NCMB taking into consideration the coolingoff period, at least: a. 30 days before the intended strike forbargainingdeadlocks; b. 15 days before the intended strike forULP Strikevote a. Thedecisiontodeclareastrikemust be approved by a majority of the total union membership in the bargainingunitconcerned. b. It must be obtained by secret ballot throughmeetingsorreferendacalled forthepurpose. c. Its purpose is to ensure that the intendedstrikeisamajoritydecision. The report on the strike vote must besubmittedtoDOLEatleast7days beforetheintendedstrikesubjectto thecoolingoffperiod. d. The regional branch may supervise theconductofthesecretballotingat

Q:Whatisacoolingoffperiod? A: It is the period of time given the NCMB to mediateandconciliatetheparties.Itisthespanof time allotted by law for parties to settle their disputes in a peaceful manner before staging a strikeorlockout.
Note: Coolingoff and waiting period may be done simultaneously.

Q: What is the effect of noncompliance with the requisitesofastrike? A:Thestrikemaybedeclaredillegal. Q: What is the purpose of giving notice of the conduct of a strike vote to the NCMB at least 24 hoursbeforethemeetingforthesaidpurpose? A: 1. Inform the NCMB of the intent of the uniontoconductastrikevote; 2. Give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent any acts of violence and or irregularities; 3. Ample time to prepare for the deployment of the requisite personnel. (Capitol Medical Center v. NLRC, G.R. No. 147080,April26,2005) Q:Isanostrike/lockoutclauselegal?

164

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


A:Yes,butitisapplicableonlytoeconomicstrikes, not ULP strikes. As a provision in the CBA, it is a valid stipulation although the clause may be invokedbyanemployer(Er)onlywhenthestrikeis economic in nature or one which is conducted to force wage or other concessions from the Er that arenotmandatedtobegrantedbythelawitself.It would be inapplicable to prevent a strike which is grounded on ULP. (PanayElectricCo.v.NLRC,G.R. No. 102672, Oct. 4, 1995; Malayang Samahan ng mgaManggagawasaGreenfieldv.Ramos,G.R.No. 113907,Feb.28,2000) Q:Whatisapreventivemediationcase? A: It involves labor disputes which are the subject ofaformalorinformalrequestforconciliationand mediation assistance sought by either or both parties or upon the initiative of the NCMB. (Sec. 1 [mm],RuleI,BookV,IRR)
Note: The regional branch may treat the notice as preventive mediation case upon agreement of the parties.

2.

3.

4.

The regional branch of the NCMB may, upon agreement of the parties, treat a noticeasapreventivemediationcase. During the proceedings, the parties shall not do any act which may disrupt or impede the early settlement of the dispute.Theyareobliged,aspartoftheir duty to bargain collectively in good faith and to participate fully and promptly in conciliation meetings called by the regionalbranchoftheNCMB. A notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration.

Q:Whatarethecontentsofthenoticeofstrikeor lockout? A: 1. NameandaddressesofEr 2. Unioninvolved 3. Nature of the industry to which the Er belongs 4. Numberofunionmembers 5. Workersinthebargainingunit 6. Otherrelevantdate 7. In case of bargaining deadlocks: unresolved issues, written proposals of the union, counterproposals of the Er and proof of request for conference to settledifferences 8. In case of ULP: The acts complained of, and the efforts taken to resolve the dispute
Note:NCMBshallinformtheconcernedpartyincase noticedoesnotconformwiththereqts.

Q:Wasthestrikeheldbytheunionlegalbasedon the fact that the notice of strike only contained generalallegationsofULP? A:No.RuleXIIISec.4BookVoftheImplementing RulesoftheLCprovides:IncasesofULP,thenotice of strike shall as far as practicable, state the acts complainedofandtheeffortstoresolvethedispute amicably. (Tiu v. NLRC, G.R. No. 123276, Aug. 18, 1997) Q: NFSW, the bargaining agent of Central Azucarera de la Carlota (CAC) rank and file employees, filed a notice of strike based on non th payment of the 13 month pay and 6 days thereafter they held the strike. A day after the commencement of the strike, a report of the strikevote was filed by NFSW with MOLE. CAC filed a petition to declare the strike illegal due to noncompliancewiththe15daycoolingofperiod andthestrikewasheldbeforethelapseof7days from the submission to the MOLE of the result of thestrikevote.WasthestrikeheldbyNFSWlegal? A:No.ThecoolingoffperiodinArt.264(c)andthe 7day strike ban after the strikevote report prescribed in Art. 264 (f) were meant to be mandatory.Thelawprovidesthatthelaborunion may strike should the dispute remain unsettled untilthelapseoftherequisitenumberofdaysfrom thefilingofthenotice,thisclearlyimpliesthatthe union may not strike before the lapse of the coolingoffperiod.Thecoolingoffperiodisforthe Ministry of Labor and Employment to exert all efforts at mediation and conciliation to effect a voluntarysettlement. Themandatorycharacterofthe7daystrikebanis manifest in the provision that in every case the unionshallfurnishtheMOLEwiththeresultsofthe votingatleast7daysbeforetheintendedstrike. Thisperiodistogivetimetoverifythatastrikevote

Q:Whatactionwilltheboardtakeonthenoticeof strikeofstrikeorlockout? A: 1. Upon receipt of notice, the regional branchoftheBoardshallexertallefforts at mediation and conciliation to enable thepartiestosettlethedisputeamicably. It shall also encourage the parties to submit the dispute to voluntary arbitration.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

165

UST GOLDEN NOTES 2011


was actually held. (NFSW v. Ovejera, G.R. No. L 59743,May31,1982) Q:FilTransitEesUnionfiledanoticeofstrikewith the BLR because of alleged ULP of the company. Because of failure to reach an agreement the union went on strike. Several employees (Ees) were dismissed because of the strike. The union filedanothernoticeofstrikeallegingULP,massive dismissalofofficersandmembers,coercionofEes and violation of workers rights to self organization. The Ministry of Labor and Employment, after assuming jurisdiction over the dispute, ordered all striking Ees including those who were dismissed to return to work. The company however countered that no strike vote had been obtained before the strike was called andtheresultofthestrikevotewasnotreported to Ministry of Labor and Employment. Was the strikeheldbytheunionillegalforfailuretoholda strikevote? A: Yes, there is no evidence to show that a strike vote had in fact been taken before a strike was called. Even if there was a strike vote held, the strike called by the union was illegal because of nonobservance by the union of the mandatory 7 day strike ban counted from the date the strike voteshouldhavebeenreportedtotheDOLE.(First City Interlink Transportation Co., Inc. v. Confessor, G.R.No.106316,May5,1997) Q: The company conceived and decided to retrench its Ees and selected about 40 Ees to be dismissedbecauseofthelackofwork.Becauseof this about 200 Ees during breaktime boarded busesandwenttotheMinistryofLaborbutthey wereadvisedtoreturntowork. Upon returning to the companys premises, the Ees were only allowed to stay in the canteen and were not given work because according to the company the machines were undergoing repairs. Are the Ees entitled to reinstatement and backwages? A:TheEesareentitledtoreinstatementbutnotto backwages. Both parties being in pari delicto, having conducted an illegal strike and lockout respectively, there must be a restoration of the statusquoanteandmustbringthepartiesbackto their respective positions prior to the illegal strike andlockoutwhichshallbedonebyreinstatingthe remaining Ees. However, it is the general rule that strikersarenotentitledtobackwages.Theprinciple of no work, no pay is applicable in view of the finding of the illegality of the strike. (Philippine InterFashion,Incv.NLRC,G.R.No.L59847,Oct.18, 1982) Q:Whataretheexceptionstothenobackwages ruleofstrikers? A: 1. When the Ees were illegally locked thus compellingthemtostageastrike 2. WhentheErisguiltyofthegrossestform ofULP 3. WhentheErcommitteddiscriminationin therehiringofstrikersrefusingtoreadmit those against whom there were pending criminalcaseswhileadmittingnonstrikers who were also criminally charged in court; 4. When the workers who staged a voluntary ULP strike offered to return to work unconditionally but the Er refused toreinstatethem.(ManilaDiamondHotel vs.ManilaDiamondHotelEesUnion,G.R. No.158075,June30,2006) d.AssumptionofJurisdictionbytheSecretaryof LabororCertificationoftheLabordisputetothe NLRCforcompulsoryarbitration Q: Discuss the assumption of jurisdiction by the Secretary of Labor and Employment (SLE) on strikes/lockouts. A: 1. Discretionary a. If in his opinion there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensabletothenationalinterest. b. He may certify the same to the NLRC forcompulsoryarbitration c. Effect Automatically enjoins the intended or impending strike/lockout butifonehasalreadytakenplace,all striking or locked out Ees shall immediatelyreturntoworkandtheEr shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout (Trans Asia Shipping Lines, Inc.Unlicensed Crews Ees Union v. CA, G.R. No. 145428,July7,2004)
Note: Amotionforreconsiderationdoesnot suspend the effects as the assumption order isimmediatelyexecutory.

2.

Mandatory(within24hours) a. In labor disputes adversely affecting the continued operation of hospitals, clinicsormedicalinstitutions.

166

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


Mayassumejurisdictionorcertifyitto theNLRCforcompulsoryarbitration c. DutyofstrikingunionorlockingoutEr to provide and maintain an effective skeletal workforce of medical and other health personnel, where movement and service shall be unhampered and unrestricted as are necessary to insure the proper and adequate protection of the life and health of its patients most especially emergency cases for the duration of thestrikeorlockout(Art.263[g]) Q:Whatdoesthephraseunderthesameterms andconditionscontemplate? A: GR: It contemplates only actual reinstatement. This is in keeping with the rationale that any work stoppage or slowdown in that particular industry can be inimical to the national economy. XPN: Payroll reinstatement in lieu of actual reinstatement but there must be showing of special circumstances rendering actual reinstatement impracticable, or otherwise not conducivetoattainingthepurposeofthelawin providing for assumption of jurisdiction by the SLE in a labor dispute that affects the national interest. (Manila Diamond Hotel Ees Union v. SLE,G.R.No.140518,Dec.16,2004) Q:WhatareissuesthattheSLEmayresolvewhen heassumesjurisdictionoveralabordispute? A: 1. IssuessubmittedtotheSLEforresolution and such issues involved in the labor dispute itself. (St. Scholasticas College v. Torres,G.R.No.100158,June2,1992) 2. SLE may subsume pending labor cases before LAs which are involved in the dispute and decide even issues falling under the exclusive and original jurisdictionofLAssuchasthedeclaration of legality or illegality of strike (Intl. Pharmaceuticals v. SLE, G.R. Nos. 92981 83,Jan.9,1992)
Note: Power of SLE is plenary and discretionary. (St. Lukes Medical Center v. Torres, G.R. No. 99395, June 29,1993)

b.

A: No, the mere issuance of an assumption order automaticallycarrieswithitareturntoworkorder althoughnotexpresslystatedtherein.(TSEUFFWv. CA,G.R.Nos.14301314,Dec.18,2000) Q: What is the extent of the powers of the Presidentduringstrikes/lockouts? A: 1. May determine the industries, which are in his opinion indispensable to national interest 2. May intervene at any time and assume jurisdictionoveranysuchlabordisputein order to settle or terminate the same. (Art.263[g])
Note: The decision of the President/SLE is final and executoryafterreceiptthereofbytheparties.

Q:IsitnecessaryfortheSLEtoissueareturnto workorderinanassumptionorder?

Q: May a return to work order be validly issued pending determination of the legality of the strike? A: Yes. Where the return to work order is issued pending the determination of the legality of the strike, it is not correct to say that it may be enforced only if the strike is legal and may be disregardedifillegal.Precisely,thepurposeofthe return to work order is to maintain the status quo whilethedeterminationisbeingmade.(Sarmiento v.Tuico,G.R.Nos.7527173,June27,1988) e.NatureofAssumptionOrderorCertification Order Q: What is the nature of the power of SLE under Art.263(g)? A:Theassumptionofjurisdictionisinthenatureof a police power measure. This is done for the promotionofthecommongoodconsideringthata prolonged strike or lockout can be inimical to the national economy. The SLE acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not intended to impede the workers right to strike but to obtain a speedy settlementofthedispute.(PhiltreadWorkersUnion v.Confesor,G.R.No.117169,Mar.12,1997) Art.263(g)doesnotinterferewiththeworkersright to strike but merely regulates it, when in the exercise of such right national interest will be affected. The LC vests upon the SLE the discretion to determine what industries are indispensable to nationalinterest. Q: What is the nature of assumption and certificationordersoftheSecretaryofLabor?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

167

UST GOLDEN NOTES 2011


A: The underlying principle embodied in Art. 264 (g) on the settlement of labor disputes is that assumptionandcertificationordersareexecutorin character and are strictly complied with by the parties even during the pendency of any petition questioning their validity. This extraordinary authoritygiventotheSecretaryofLaborisaimedat arriving at a peaceful and speedy solution to labor disputes,withoutjeopardizingnationalinterests. Q: A notice of strike was filed by the PSBA Ees UnionFFW,allegingunionbusting,coercionofEes and harassment on the part of PSBA. The conciliation being ineffective, the strike pushed through.AcomplaintforULPandforadeclaration of illegality of the strike with a prayer for preliminary injunction was filed by PSBA against theunion. While the cases were pending, a complaint was filedintheRTCofManilabysomePSBAstudents againstPSBAandtheunion,seekingtoenjointhe union and its members from picketing and from barricading themselves in front of the schools main gate. A TRO was then issued by the RTC, which the union opposed on the ground that the case involves a labor dispute over which the RTC had no jurisdiction. The Acting SLE later on assumed jurisdiction over the labor dispute and ordered the striking Ees to return to work. Was the SLE correct in ordering the striking Ees to returntowork? A: Yes. In the opinion of the Acting SLE, the labor dispute adversely affected the national interest, affecting as it did 9,000 students. He is authorized by law to assume jurisdiction over the labor dispute, after finding that it adversely affected the nationalinterest.Thispowerisexpresslygrantedby Art.263(g)oftheLC,asamendedbyB.P.Blg.227. Q:DoestheRTChavejurisdictiontodecideonthe casefiledbythePSBAstudents? A: No, the RTC was without jurisdiction over the subject matter of the case filed by some PSBA students, involving as it does a labor dispute over whichthelaboragencieshadexclusivejurisdiction. That the regular courts have no jurisdiction over labor disputes and to issue injunctions against strikes is wellsettled. (PSBA v. Noriel, G.R. No. 80648,Aug.15,1988) Q: Members of the union learned that a redundancy program would be implemented by thecompany.ThereuponitfiledaNoticeofstrike on the grounds of ULP. A number of conciliation meetings were conducted but to no avail so the union staged a strike while the company terminated 383 union members from service pursuanttoitsredundancyprogram.Pursuantto Art. 263(g) of the LC the SLE certified the labor dispute for compulsory arbitration. Accordingly the SLE enjoined the strike staged by the union andallstrikingworkersweredirectedtoreturnto work within 24 hours except for those who were terminatedduetoredundancy. WastheSLEcorrectinexceptingfromthereturn toworkorderthosewhowereterminateddueto redundancy? A: No, Art. 263(g) is clear and unequivocal in stating that all striking or lockout Ees shall immediately return to work and the Er shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. Records of the case would show that the strike occurred one day before the members of the union were dismissed due to alleged redundancy. Thus the abovementioned article directs that the Er must readmit all workers under the same terms and conditions prevailing before the strike. (PLDT v. Manggagawa ng Komunikasyon sa Pilipinas, G.R. No.162783,July14,2005) f.EffectofdefianceofAssumptionorCertification Order Q:Whatistheeffectofdefiancetothereturnto workorder? A:Itshallbeconsideredanillegalactcommittedin the course of the strike or lockout and shall authorizetheSLEortheNLRC,asthecasemaybe, to enforce the same under pain or loss of employment status or entitlement to full employment benefits from the lockingout Er or backwages, damages and/or other positive and/or affirmative reliefs, even to criminal prosecution against the liable parties. (Sec. 6, Rule IX, of the New Rules of Procedure of the NLRC; St. Scholasticas College v. Torres, G.R. No. 100158, June2,1992) g.IllegalStrike Q:Whenisastrikeillegal? A: 1. Contrary to specific prohibition of law, such as strike by employees (Ees) performinggovernmentalfunctions; 2. Violatesaspecificreqtoflaw;

168

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


3. Declaredforanunlawfulpurpose,suchas inducingtheemployer(Er)tocommitULP againstnonunionEes; Employsunlawfulmeansinthepursuitof its objective, such as widespread terrorismofnonstrikers; Declared in violation of an existing injunction; Contrary to an existing agreement, such as a no strike clause or conclusive arbitrationclause Q: What is the rule on reinstatement of striking workers? A:Strikingemployeesareentitledtoreinstatement, regardless of whether or not the strike was the consequence of the employers ULP because while out on strike, the strikers are not considered to haveabandonedtheiremployment,butratherhave only ceased from their labor; the declaration of a strikeisnotarenunciationofemploymentrelation. Q:Whoarenotentitledtoreinstatement? A: 1. Union officers who knowingly participate intheillegalstrike 2. Any striker or union who knowingly participates in the commission of illegal actsduringthestrike
Note:Thoseunionmemberswhohavejoinedanillegal strike but have not committed any illegal act shall be reinstatedbutwithoutbackwages. Theresponsibilityfortheillegalactscommittedduring the strike must be on an individual and not on a collectivebasis.(FirstCityInterlinkTransportationCo., Inc.v.Confesor,G.R.No.106316,May5,1997)

4.

5. 6.

Q:Whatisgoodfaith(GF)strikedoctrine? A:Astrikemaybeconsideredlegalwheretheunion believedthatthecompanycommittedULPandthe circumstances warranted such belief in GF, although subsequently such allegations of ULP are found out as not true. (Bacus v. Ople, GR No. L 56856, Oct. 23, 1984, Peoples Industrial and CommercialEesandOrganization(FFW)v.Peoples Industrial and Commercial Corp., G.R. No.37687, Mar.15,1982) Q: What is the effect of the GF of strikers on the legalityofstrike? A: GR:AstrikegroundedonULPisillegalifnosuch actsactuallyexist. XPN:EvenifnoULPactsarecommittedbythe Er,iftheEesbelieveinGFthatULPactsexistso as to constitute a valid ground to strike, then the strike held pursuant to such belief may be legal. Where the union believed that the Er committed ULP and the circumstances warrantedsuchbeliefinGF,theresultingstrike may be considered legal although, subsequently, such allegations of ULP were found to be groundless. (NUWHRAINInterim Juntav.NLRC,G.R.No.125561,Mar.6,1998) (1)LiabilityofOfficersoftheUnionandOrdinary Workers Q: Should separation pay and backwages be awardedtotheparticipantsofanillegalstrike? A: No backwages will be awarded to union membersasapenaltyfortheirparticipationinthe illegalstrike.Asfortheunionofficers,forknowingly participating in an illegal strike, the law mandates that a union officer may be terminated from employmentandtheyarenotentitledtoanyrelief. (GoldCityIntegratedPortServices,Inc.v.NLRC,G.R. No.86000,Sep.21,1990)

Q: Are strikers entitled to their backwages or strikedurationpay? A: GR:No,evenifsuchstrikewaslegal. XPN: 1. Where the strikers voluntarily and unconditionallyofferedtoreturntowork, but the employer refused to accept the offerworkersareentitledtobackwages fromthedatetheirofferwasmade 2. Whenthereisareturntoworkorderand the Ees are discriminated against other Ees, workers are entitled to back wages fromthedateofdiscrimination 3. IncaseofaULPstrike,inthediscretionof theauthoritydecidingthecase Q:Whatistheruleinstrikesinhospitals? A: 1. It shall be the duty of the striking employees or lockingout employer to provideandmaintainaneffectiveskeletal workforce of medical and health personnelforthedurationofthestrikeor lockout. 2. SLE may immediately assume jurisdiction within 24 hours from knowledge of the

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

169

UST GOLDEN NOTES 2011


occurrence of such strike or lockout certify it to the NLRC for compulsory arbitration. Q:Moreorless1400Eesofthecompanystageda masswalkout,allegedlywithoutanybodyleading them as it was a simultaneous, immediate and unanimous group action and decision, to protest thenonpaymentoftheirsalariesandwages.The MinisterofLaborandEmploymentwhofoundthe strike to be illegal granted the clearance to terminate the employment of those who were instigatorsintheillegalstrike.Wasthedecisionof the Minister of Employment in granting the clearancecorrect? A: No, a mere finding of the illegality of a strike shouldnotbeautomaticallyfollowedbywholesale dismissal of the strikers from their employment. While it is true that administrative agencies exercisingquasijudicialfunctionsarefreefromthe rigiditiesofprocedure,itisequallywellsettledthat avoidance of technicalities of law or procedure in ascertaining objectively the facts in each case should not, however, cause denial of due process. (Bacusv.Ople,G.R.No.L56856,Oct.23,1984) Q: 2 days after the union struck, the SLE ordered the striking workers to return to work within 24 hours. But the striking union failed to return to workandinsteadtheycontinuedtheirpickets.As a result, violence erupted in the picket lines. The service bus ferrying nonstriking workers was stonedcausinginjuriestoitspassengers.Threats, defamation,illegaldetention,andphysicalinjuries also occurred. The company was directed to acceptback all striking workers, except theunion officers, shop stewards, and those with pending criminal charges. Was the SLE correct in not including the union officers, shop stewards and thosewithpendingcriminalchargesinthereturn toworkorder? A:No,toexcludeunionofficers,shopstewardsand thosewithpendingcriminalchargesinthedirective tothecompanytoacceptbackthestrikingworkers without first determining whether they knowingly committed illegal acts would be tantamount to dismissal without due process of law. (Telefunken Semiconductors Ees UnionFFW v. SLE, G.R. No. 122743&127215,Dec.12,1997) (2)WaiverofIllegalityofStrike Q: When is there a waiver of the illegality of a strikebytheemployer? A: When an employer accedes to the peaceful settlement brokered by the NLRC by agreeing to accept all employees who had not yet returned to work, it waives the issue of the illegality of the strike. (Reformist Union v. NLRC, G.R. No. 120482,Jan.27,1997) j.Injunctions Q:Whatisaninjunction? A: Itisanorderorawritthatcommandsaperson to do or not to do a particular act. It may be a positive (mandatory) or a negative (prohibitory) command. (1)RequisitesforLaborInjunctions Q:Maythecourtorquasijudicialentityissueany injunctionduringstrikes/lockouts? A:GR:Nocourtorentityshallenjoinanypicketing, strikeorlockout,oranylabordispute. XPN: 1. When prohibited or unlawful acts are beingorabouttobecommittedthatwill causegraveorirreparabledamagetothe complainingparty.(Art.218[e]) 2. Onthegroundofnationalinterest 3. The SLE or the NLRC may seek the assistanceoflawenforcementagenciesto ensure compliance with this provision as well as with such orders as he may issue toenforcethesame(Art.263[g]) (2)InnocentBystanderRule Q: What must an innocent bystander satisfy beforeacourtmayenjoinalaborstrike? A:Theinnocentbystandermustshow: 1. Compliancewiththegroundsspecifiedin Rule58oftheRulesofCourt,and 2. That it is entirely different from, without any connection whatsoever to, either party to the dispute and, therefore, its interestsaretotallyforeigntothecontext thereof. (MSF Tire & Rubber v. CA, G.R. 128632,Aug.5,1999) Q:MaytheRTCtakecognizanceofthecomplaint where the same is but an incident of a labor dispute? rd A: No, where the subject matter of the 3 party claim is but an incident of the labor case, it is a matter beyond the jurisdiction of the RTC, such

170

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

LABOR RELATIONS LAW


courtshavenojurisdictiontoactonlaborcasesor various incidents arising therefrom, including the executionofdecisions,awardsororders. Aparty,byfilingits3rdpartyclaimwiththedeputy sheriff, it submitted itself to the jurisdiction of the NLRCactingthroughtheLA. The broad powers granted to the LA and to the NLRCbyArt.217,218and224oftheLCcanonlybe interpreted as vesting in them jurisdiction over incidents arising from, in connection with or relatingtolabordisputes,asthecontroversyunder consideration, to the exclusion of the regular courts.TheRTC,beingacoequalbodyoftheNLRC, hasnojurisdictiontoissueanyrestrainingorderor injunctiontoenjointheexecutionofanydecisionof the latter. (Deltaventures v. Cabato, G.R. No. 118216,Mar.9,2000) Q:TheemployerfiledwiththeRTCacomplaintfor damages with preliminary mandatory injunction againsttheunion,themainpurposeofwhichisto dispense the picketing of the members of the union.Theunionfiledamotiontodismissonthe groundoflackofjurisdiction.TheRTCdeniedthe motion to dismiss and enjoined the picketing, it said that mere allegations of ErEe relationship does not automatically deprive the court of its jurisdiction and even the subsequent filing of charges of ULP, as an afterthought, does not deprive it of its jurisdiction. Was the issuance by theRTCoftheinjunctionproper? A:No,theconcertedactiontakenbythemembers of the union in picketing the premises of the departmentstore,nomatterhowillegal,cannotbe regarded as acts not arising from a labor dispute over which the RTCs may exercise jurisdiction. (SamahangManggagawangLibertyCommercialv. Pimentel,G.R.No.L78621,Dec.2,1987)

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

171

UST GOLDEN NOTES 2011


H.PROCEDUREANDJURISDICTION 1.LABORARBITER a.Jurisdiction Q:Whatisthedistinctionbetweenthejurisdiction of the labor arbiter (LA) and the National Labor RelationsCommission(NLRC)? A: 1. The NLRC has exclusive appellate jurisdictiononallcasesdecidedbytheLA. 2. The NLRC does not have original jurisdiction on the cases over which the LAhaveoriginalandexclusivejurisdiction. 3. The NLRC cannot have appellate jurisdiction if a claim does not fall within the exclusive original jurisdiction of the LA. Q: What is the nature of jurisdiction of labor arbiters(LAs)? A:Itisoriginalandexclusive.LAshavenoappellate jurisdiction. Q:Whatarethecasesfallingunderthejurisdiction oflaborarbiters(LAs)? A: Exclusive and original jurisdiction to hear and decidethefollowingcasesinvolvingallworkers: 1. 2. 3. ULPcases Terminationdisputes If accompanied with a claim for reinstatement, those that workers file involving wages, rates of pay, hours of work and other terms and conditions of employment Claims for actual, moral, exemplary and other forms of damages arising from Er Eerelations Cases arising from any violation of Art. 264, including questions involving the legalityofstrikesandlockouts; Except claims for Employment Compensation, Social Security, Philhealth and maternity benefits, all other claims arising from ErEe relations, including those of persons in domestic or household service, involving an amount exceeding P5000 regardless of whether accompanied with a claim for reinstatement Monetary claims of overseas contract workersarisingfromErEerelationsunder the Migrant Workers Act of 1995 as amendedbyRA10022 8. Wage distortion disputes in unorganized establishments not voluntarily settled by thepartiespursuanttoRA6727 9. Enforcement of compromise agreements when there is noncompliance by any of the parties pursuant to Art. 227 of the LaborCode(LC),asamended;and 10. Othercasesasmaybeprovidedbylaw

Note: Although the provision speaks of exclusive and originaljurisdictionofLAs,thecasesenumeratedmay instead be submitted to a voluntary arbitrator by agreementofthepartiesunderArt.262oftheLC.The lawprefersvoluntaryovercompulsoryarbitration.

Q:Whatisthenatureofthecaseswhichthelabor arbiter(LA)mayresolve? A: The cases that an LA can hear and decide are employment related. Where no ErEe relationship existsbetweenthepartiesandnoissueisinvolved which may be resolved by reference to the LC, other labor statutes, or any collective bargaining agreement, it is the RTC that has jurisdiction. (Lapanday Agricultural Devt. Corp v. CA, G.R. No. 112139,Jan.31,2000) TheLAhasjurisdictionovercontroversiesinvolving Ers and Ees only if there is a reasonable causal connectionbetweentheclaimassertedandtheEr Ee relations. Absent such link, the complaint is cognizable by the regular court. (Eviota v. CA, G.R. No.152121,July29,2003) Q: Do labor arbiters exercise concurrent jurisdictionwiththeNLRC? A:Yes,withrespecttocontemptcases. Q: What are the cases referred to grievance machineryandvoluntaryarbitration? A:Disputesarisingfromthe: 1. Interpretation or implementation of the CBA 2. Interpretation or enforcement of companypersonnelpolicies Q: What is the extent of the jurisdiction of the labor arbiter (LA) if there are unresolved matters arisingfromtheinterpretationoftheCBA? A: GR:LAshavenojurisdictionoverunresolvedor unsettled grievances arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcementofcompanypersonnelpolicies.

4.

5.

6.

7.

172

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


XPN:Actualterminationdisputes
Note: Where the dispute is just in the interpretation, implementation or enforcement stage of the termination, it may be referred to the grievance machinery set up by the CBA or by voluntary arbitration. Where there was already actual termination, i.e., violation of rights, it is already cognizable by the LA. (Maneja v. NLRC, G.R. No. 124013,June5,1998)

Q: Does the use of the word may in the provisions of the Grievance Procedure allow the alternativeofsubmittingthecasebeforethelabor arbiter(LA)? A: Yes. The use of the word may shows the intention of the parties to reserve the right to submit the illegal termination dispute to the jurisdiction of the LA, rather than to a voluntary arbitrator.Petitionervalidlyexercisedhisoptionto submithiscasetoaLAwhenhefiledhiscomplaint before the proper government agency. In other words, the CA is correct in holding that voluntary abitration is mandatory in character if there is a specific agreement between the parties to that effect.Itmustbestressedhoweverthat,inthecase at bar, the use of the word may shows the intention of the parties to reserve the right of recourse to LAs. (Vivero v. CA, G.R. No. 138938, Oct.24,2000) Q:Whatarethecaseswhichdonotfallunderthe jurisdictionofthelaborarbiters(LA)? A:LAshavenojurisdictionovertheff: 1. 2. 3. Foreign governments (JUSMAGPhils. v. NLRC,G.R.No.108813,Dec.15,1994) Intl agencies (Lasco v. NLRC, G.R. Nos. 109095109107,Feb.23,1995) Intracorporate disputes which fall under P.D. 902A and now falls under the jurisdictionoftheregularcourtspursuant to the new Securities Regulation Code (Nacpil v. IBC, G.R. No. 144767, Mar. 21, 2002) Executing money claims against government(DeptofAgriculturev.NLRC, G.R.No.104269,Nov.11,1993) Cases involving GOCCs with original charters which are governed by civil servicelaw,rulesorregulations(Art.IXB, Sec.2,No.1,1987Constitution) Localwaterdistrict(TanjayWaterDistrict v.Gabaton,April17,1989) except where NLRC jurisdiction is invoked (Zamboanga

City Water District v. Buat, G.R. No. 104389,May27,1994) 7. The aggregate money claim does not exceed P5000 and without claim for reinstatement(RajahHumabonHotel,Inc. v. Trajano, G.R. Nos. 10022223, Sep.14, 1993) 8. Claim of employee (Ee) for cash prize under the Innovation Program of the company, although arising from ErEe relationship, is one requiring application of general civil law on contracts which is within the jurisdiction of the regular courts(SMCv.NLRC,G.R.No.80774,May 31,1988) 9. Cause of action based on quasidelict or tort which has no reasonable connection with any of the claims enumerated in Art.217oftheLC(Ochedav.CA, G.R.No. 85517,Oct.16,1992) 10. Complaint arising from violation of training agreement (Singapore Airlines v. Pano,G.R.No.L47739,June22,1983) Q: FASAP, the sole and exclusive bargaining representative of the flight attendants, flight stewardsandpursersofPAL,andrespondentPAL entered into a CBA incorporating the terms and conditions of their agreement for the years 01 05. Sec. 144, Part A of the CBA provides that compulsoryretirementshallbe55forfemalesand 60 for males. They filed an action with the RTC claiming that the CBA provision is discriminatory andhenceunconstitutional.TheRTCissuedaTRO. The appellate court ruled that the RTC has no jurisdictionoverthecaseatbar.WhetherRTChas jurisdictionoverthepetitioners'actionchallenging the legality of the provisions on the compulsory retirementagecontainedintheCBA? A: Yes. The subject of litigation is incapable of pecuniaryestimation,exclusivelycognizablebythe RTC, pursuant to Sec. 19 (1) of BP Blg. 129, as amended.Beinganordinarycivilaction,thesameis beyondthejurisdictionoflabortribunals. Not every controversy or money claim by an employee (Ee) against the employer (Er) or vice versa is within the exclusive jurisdiction of the LA. Actions between Ees and Er where the ErEe relationship is merely incidental and the cause of action precedes from a different source of obligationiswithintheexclusivejurisdictionofthe regularcourt.Here,theErEerelationshipbetween the parties is merely incidental and the cause of action ultimately arose from different sources of obligation, i.e., the Constitution and CEDAW. (Halaguena vs. PAL Incorporated, G.R. No. 172013, Oct.2,2009)

4.

5.

6.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

173

UST GOLDEN NOTES 2011


Q: Who has the exclusive appellate jurisdiction overallcasesdecidedbyLaborArbiters? A:TheNLRC. Q:Whatistheeffectofperfectionofanappealon execution? A: The perfection of an appeal shall stay the execution of the decision of the Labor Arbiter on appeal,exceptexecutionforreinstatementpending appeal.
Note:TheprovisionofArt.223isclearthatanaward by the LA for reinstatement shall be immediately executor even pending appeal and the posting of a bondbytheemployershallnotstaytheexecutionfor reinstatement.(PioneerTexturizingCorp.v.NLRC,G.R. No.118651,Oct.16,1997)

A: 1. Theappealisperfected: a. Filed within the reglementary period providedinSec.1ofthisRules b. Verified by the appellant himself in accordancewithSec.4,Rule7ofthe RulesofCourt,asamended c. In the form of a memorandum of appealwhichshallstatethegrounds relied upon and the arguments in support thereof, the relief prayed for,andwithastatementofthedate the appellant received the appealed decision,resolutionororder d. In 3 legibly typewritten or printed copies e. Accompaniedby(i)proofofpayment of the required appeal fee; (ii) posting of a cash or surety bond as providedinSec.6ofthisRule;(iii)a certificate of nonforum shopping; and (iv) proof of service upon the otherparties. Merenoticeofappealwithoutcomplying withtheotherrequisitesaforestatedshall not stop the running of the period for perfectinganappeal.

b.Effectofselfexecutingorderofreinstatementon backwages Q: May dismissed employees (Ees) collect their wages during the period between the Labor Arbiters (LAs) order of reinstatement pending appeal and the NLRC decision overturning that of theLA? A: Yes. Par. 3 of Art. 223 of the Labor Code provides that the decision of the LA reinstating a dismissed or separated Ee, insofar as the reinstatement aspect is concerned, shall immediatelybeexcutory,pendingappeal. Even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on the part of theemployer(Er)toreinstateandpaythewagesof the dismissed Ee during the period of appeal until reversalbythehighercourt.Ontheotherhand,if theEehasbeenreinstatedduringtheappealperiod and such reinstatement order is reversed with finality, the Ee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. (Pfizer v. Velasco, G.R. No. 177467,March9,2011) Unless there is a restraining order, it is ministerial upon the LA to implement the order of reinstatement and it is mandatory on the Er to complytherewith.(Garciav.PAL,G.R.No.164856, Jan.20,2009) c.RequirementstoperfectappealtoNLRC Q:HowisanappealfromLAtoNLRCperfected?

2.

Q: Is the posting of an appeal bond required for theperfectionofanappealfromaLaborArbiters (LAs)decisioninvolvingmonetaryaward? A:Yes.IncasethedecisionoftheLAortheRegional Director involves a monetary award, an appeal by the employer may be perfected only upon the postingofabond.(Sec.6,RuleVI,NLRC2005Rules ofProcedure) Q:Whataretheformsoftheappealbond? A: It shall either be in the form of cash deposit or suretybondequivalentinamounttothemonetary award, exclusive of damages and attorney's fees. (Sec.6,RuleVI,NLRC2005RulesofProcedure) Q:Whomayissueasuretybond? A: It shall be issued by a reputable bonding companydulyaccreditedbytheCommissionorthe SC,andshallbeaccompaniedbyoriginalorcertified truecopiesof: 1. A joint declaration under oath by the Er, his counsel, and the bonding company, attestingthatthebondpostedisgenuine, andshallbeineffectuntilfinaldisposition ofthecase.

174

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


2. 3. AnindemnityagreementbetweentheEr appellantandbondingcompany; Proof of security deposit or collateral securingthebond:provided,thatacheck shall not be considered as an acceptable security; A certificate of authority from the InsuranceCommission; CertificateofregistrationfromtheSEC; Certificate of authority to transact surety businessfromtheOfficeofthePresident; Certificate of accreditation and authority fromtheSC;and A notarized board resolution or secretary's certificate from the bonding company showing its authorized signatoriesandtheirspecimensignatures. (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure)
Note: The mere filing of a motion to reduce bond withoutcomplyingwiththerequisitesinthepreceding paragraphsshallnotstoptherunningoftheperiodto perfectanappeal(Sec.6,RuleVI,NLRC2005Rulesof Procedure).

4. 5. 6. 7. 8.

Q: Company "A", within the reglementary period,appealed the decision of a Labor Arbiter directing the reinstatement of an Ee and awarding backwages. However, A's cash bond wasfiledbeyondthe ten day period. Shouldthe NLRCentertaintheappeal?Why? A:No,theNLRCshouldnotentertaintheappeal,as the same was not perfected for failure to file a bond. In ABA vs. NLRC, G.R. No.122627, July 18, 1999, the SC ruled: "An appeal bond is necessary...the appeal may be perfected only upon the posting of cash or surety bond issued by a reputable bonding company duly accredited bytheCommissionintheamountequivalenttothe monetary award in the judgment appealed from." (2001BarQuestion) Q: Is a motion for reconsideration (MR) of the NLRC decision required before certiorari may be availedof? A:Yes.AMRisrequiredtoenableNLRCtocorrect its mistakes. If no MR is filed, NLRCs decision becomesfinalandexecutory. Q:WhatistheremedyincaseofdenialoftheMR? A:Ifthemotionisdenied,theaggrievedpartymay file a petition for certiorari not later than 60 days fromnoticeofthejudgment,orderorresolution.In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not,the60dayperiodshallbecountedfromnotice of the denial of said motion. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days.(Sec.4,Rule65,RulesofCourt.) Q:Whatistheeffectifnoserviceofsummonswas made? A: Intheabsenceofserviceofsummonsoravalid waiver thereof, the hearings and judgment renderedbythelaborarbiterisnullandvoid. Q:Whatiscompulsoryarbitration? A:Theprocessofsettlementoflabordisputesbya government agency which has the authority to investigate and make an award binding on all the parties.

Note: The appellant shall furnish the appellee with a certifiedtruecopyofthesaidsuretybondwithallthe abovementionedsupportingdocuments.

Q: What is the period within which a cash or suretybondshallbevalidandeffective? A: From the date of deposit or posting, until the case is finally decided, resolved or terminated, or theawardsatisfied.Thisconditionshallbedeemed incorporated in the terms and conditions of the suretybond,andshallbebindingontheappellants and the bonding company. (Sec. 6, Rule VI, NLRC 2005RulesofProcedure) Q:Whatistheeffectifthebondisverifiedbythe NLRCtobeirregularornotgenuine? A: The Commission shall cause the immediate dismissal of the appeal, and censure or cite in contempt the responsible parties and their counsels, or subject them to reasonable fine or penalty. (Sec.6, Rule VI, NLRC 2005 Rules of Procedure)
Note: The appellee shall verify the regularity and genuineness of the bond and immediately report any irregularitytotheNLRC.

Q:Maythebondbereduced? A: GR:No. XPN: On meritorious grounds, and only upon the posting of a bond in a reasonable amount in relationtothemonetaryaward.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

175

UST GOLDEN NOTES 2011


Q:CantheLaborArbiter(LA)conductcompulsory arbitration? A: Yes. Under the Labor Code, it is the LA who is clothed with the authority to conduct compulsory arbitration on cases involving termination disputes [Art.217,P.D.442,asamended].(PALv.NLRC,G.R. No.55159,Dec.22,1989) Q:Whataretherulesonvenueoffilingcases? A: 1. All cases which the Labor Arbiters (LAs) have authority to decide may be filed in the Regional Arbitration Branch (RAB) having jurisdiction over the workplace of thecomplainant/petitioner.
Note: Workplace is understood to be the placeorlocalitywheretheemployee(Ee)is regularlyassignedwhenthecauseofaction arose.ItshallincludetheplacewheretheEe issupposedtoreportbackafteratemporary detail,assignmentortravel. In case of field Ees, as well as ambulant or itinerant workers, their workplace is where theyare a.Regularlyassigned b. Supposed to regularly receive their salariesandwages c.Receivetheirworkinstructionsfrom d. Reporting the results of their assignmenttotheiremployers(Er)

2.NATIONALLABORRELATIONSCOMMISSION (NLRC) Q:WhatistheNLRC? A: It is an administrative body with quasijudicial functionsandtheprincipalgovernmentagencythat hearsanddecideslabormanagementdisputes;itis attachedtotheDOLEsolelyforprogramandpolicy coordinationonly. Q: How are the powers and functions of theNLRC allocated? A: 1. EnBanc a. Promulgating rules and regulations and governing the hearings and disposition of cases before any of its divisionsandregionalbranches. b. Formulating policies affecting its administrationandoperations. c. Ontemporaryoremergencybasis,to allow cases within the jurisdiction of anydivisiontobeheardanddecided by any other division whose docket allows the additional workload and suchtransferwillnotexposelitigants tounnecessaryadditionalexpense. 2. Division(8Divisionswith3members) a. Adjudicatory; b. All other powers, functions and duties; c. Exclusive appellate jurisdiction over cases within their respective territorialjurisdiction. Q: Does an individual Commissioner have adjudicatorypower? A: No. The law lodges the adjudicatory power on each of the eight divisions, not on the individual commissioners nor on the whole commission. The division is a legal entity, not the person whosits in it. Hence, an individual commissioner has no adjudicatory power, although of course, he can concurordissentindecidingacase. a.Jurisdictions Q: What are the two kinds of jurisdiction of the NLRC? A: 1. ExclusiveOriginalJurisdiction a. Certified labor disputes causing or likely to cause a strike or lockout in anindustryindispensabletonational

2.

3.

Where 2 or more RABs have jurisdiction over the workplace, the first to acquire jurisdictionshallexcludeothers. Improper venue when not objected to before filing of position papers shall be deemedwaived. Venue may be changed by written agreement of the parties or when the NLRCortheLAsoorders,uponmotionby theproperpartyinmeritoriouscases. ForOverseasContractWorkerswherethe complainant resides or where the principal office of the respondent Er is located,attheoptionofthecomplainant.
Note: The Rules of Procedure on Venue is merely permissive, allowing a different venue when the interest of substantial justice demands a different one. (Dayag v. Canizares,GR.No.124193,Mar.6,1998)

4.

5.

176

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


interest, certified to it by the Secretary of Labor or the President forcompulsoryarbitration b. Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which,ifnotrestrainedorperformed forthwith, may cause grave or irreparabledamagetoanyparty c. Injunction in strikes or lockouts underArt.264oftheLaborCode(LC) d. Contemptcases ExclusiveAppellateJurisdiction a. All cases decided by the Labor Arbiters under Art. 217(b) of the LC and Sec. 10 of R.A.8042 (Migrant WorkersAct);and b. Cases decided by the Regional OfficesofDOLEintheexerciseofits adjudicatory function under Art.129 of the LC over monetary claims of workersamountingtonotmorethan P5000andnotaccompaniedbyclaim forreinstatement. validjudgment.
Note:Whenevertherequiredmembershipin a division is not complete and the concurrence of the Commissioners to arrive at judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from theotherdivisionsasmaybenecessary.

2.

It shall be mandatory for the division to meetforpurposesofconsultation.


Note: The conclusion of a division on any case submitted to it for decision should be reached in consultation before the case is assignedto a member forthewritingof the opinion.

2.

Q:WhatisthecompositionoftheNLRC? A: 1. Chairman 2. 23Members a. 8memberseach,shallbechosenonly from among the nominees of the workers and employers (Er) organizationrespectively. b. The Chairman and the 7 remaining members shall come from the public sector, with the latter to be chosen preferably from among the incumbentLaborArbiters. c. Upon assumption into office, the members nominated by the workers and Ers organization shall divest themselves of any affiliation with or interest in the federation or associationtowhichtheybelong.
Note: There is no need for the Commission on Appointments to confirm the positions in the NLRC. Suchrequirementhasnoconstitutionalbasis.(Calderon v.Carale,GR.No.91636,April23,1992)

Q:HowdoestheNLRCadjudicatecases? A: 1. The NLRC adjudicates cases by division. A concurrence of 2 votes is needed for a

Acertificationthataconsultationhasbeen conducted, signed by the presiding commissioner of the division, shall be issued(copyattachedtotherecordofcase andservedupontheparties). Q:WhatarethequalificationsoftheChairmanand theCommissioners? A: 1. MemberofthePhilippineBar 2. Engaged in the practice of law in the Philippinesforatleast15years 3. Atleast5yearsexperienceorexposurein handlinglabormanagementrelations 4. Preferably a resident of the region where heistoholdoffice Q: What are the qualifications of an Executive LaborArbiter? A: 1. MemberofthePhilippineBar 2. Engaged in the practice of law in the Philippinesforatleast10years 3. Atleast5yearsexperienceorexposurein handlinglabormanagementrelations Q: What is the term of office of the Chairman, CommissionersandLaborArbiters(LAs)? A: They shall hold office duringgood behavior until theyreachtheageof65unlessremovedforcauses as provided by law or become incapacitated to dischargethefunctionofhisoffice. Provided, however, that the President of the Philippines may extend the services of the Commissioners and LAs up to the maximum age of 70 years upon the recommendation of the

3.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

177

UST GOLDEN NOTES 2011


Commissionenbanc. Q: Some disgruntled members of Bantay Labor Union filed with the Regional Office of the DOLE a written complaint against their union officers for mismanagement of union funds. The Regional Director (RD) did not rule in the complainants' favor. Not satisfied, the complainants elevated the RDs decision to the NLRC. The union officers moved to dismiss on the groundoflackofjurisdiction.Aretheunionofficers correct?Why? A:Yes,theunionofficersarecorrectinclaimingthat the NLRC has no jurisdiction over the appealed ruling of the RD. in Barles v. Bitonio, G.R. No. 120220,June16,1999,theSCruled: Appellate authority over decisions of the RD involvingexaminationofunionaccountsisexpressly conferred on the Bureau of Labor Relations (BLR) under the Rule of Procedure on Mediation Arbitration. Sec. 4. Jurisdiction of the BLR (b) The BLR shall exercise appellate jurisdiction over all cases originating from the RD involving complaints for examinationofunionbooksofaccounts. The language of the law is categorical. Any additional explanation on the matter is superfluous."(2001BarQuestion) Q:Company"A"andUnion"B"couldnotresolve their negotiations for a new CBA. After conciliation proceedings b e f o r e t h e NCMB proved futile, Bwentonstrike.Violenceduring the strike prompted A to file charges against strikermembers of B for their illegal acts. The SLE assumed jurisdiction, referred the strike to the NLRC and issued a returntowork order. The NLRC directedthe parties to submit their respective position papers and documentary evidence. At the initial hearing before the NLRC, the parties agreed to submit the case for resolution after the submission of the position papersandevidence. Subsequently, the NLRC issued an arbitral award resolving the disputed provisions of the CBA and ordered the dismissal of certain strikers for having knowingly committed illegal acts during the strike. The dismissed employees elevated their dismissal to the CA claiming that they were deprived of their right to due process and that the affidavits submitted by A were self serving and of no probative value. Should the appeal prosper? State the reason(s) for your answerclearly. A:Theappealshouldnotprosper.TheSC,inmany cases, has ruled that decisions made by the NLRC maybebasedonpositionpapers.Inthequestion,it isstatedthatthepartiesagreedtosubmitthecase for resolution after the submission of position papers and evidence. Given this fact, the striker membersofBcannotnowcomplainthattheywere denied due process. They are in estoppel. After voluntarily submitting a case and encountering an adversedecisiononthemerits,itistoolateforthe loser to question the jurisdiction or power of the court. A party cannot adopt a posture of double dealing. (Marquez vs. Secretary of Labor, G.R. No. 80685,March16,1989).(2001BarQuestion) Q: Is barangay conciliation available in labor cases? A: No. Labor cases are not subject to barangay Conciliation since ordinary rules of procedure are merely suppletory in character visvis labor disputes which are primarily governed by labor laws. (Montoya v. Escayo, G.R. No. 8221112,Mar. 21,1989) Q:WhatarethepowersoftheNLRC? A: 1. Rule making power promulgation of rulesandregulations: a. Governing disposition of cases before any of its division/regional offices. b. Pertainingtoitsinternalfunctions c. Asmaybenecessarytocarryoutthe purposesoftheLaborCode. 2. Power to issue compulsory processes (administer oaths, summon parties, issue subpoenas) 3. Power to investigate matters and hear disputes within its jurisdiction (adjudicatory power original and appellatejurisdictionovercases) 4. Contemptpower 5. OcularInspection 6. Powertoissueinjunctionsandrestraining orders b.EffectofNLRCreversalofLaborArbitersorderof reinstatement Q: May dismissed employees (Ees) collect their wages during the period between the Labor Arbiters (LAs) order of reinstatement pending appeal and the NLRC decision overturning that of theLA?

178

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


A: Yes. Par. 3 of Art. 223 of the Labor Code provides that the decision of the LA reinstating a dismissed or separated Ee, insofar as the reinstatement aspect is concerned, shall immediatelybeexcutory,pendingappeal. Even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on the part of theemployer(Er)toreinstateandpaythewagesof the dismissed Ee during the period of appeal until reversalbythehighercourt.Ontheotherhand,if theEehasbeenreinstatedduringtheappealperiod and such reinstatement order is reversed with finality, the Ee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. (Pfizer v. Velasco, G.R. No. 177467,March9,2011) c.RequirementstoperfectappealtoCourtof Appeals Q: Is judicial review of the NLRCs decision available? A: Yes, through petitions for certiorari (Rule 65) which should be initially filed with the CA in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired.TheCAisprocedurallyequippedtoresolve unclear or ambiguous factual finding, aside from the increased number of its component divisions. (St.MartinFuneralHomev.NLRC,G.R.No.130866, Sep.16,1998) Q: Within what period should the petition for certioraribefiledwiththeCourtofAppeals? A: Under Section 4, Rule 65 (as amended by A.M. No.00203SC)oftheRulesofCivilProcedure,the petition must be filed within sixty (60) days from notice of the judgment or from notice of the resolution denying the petitioners motion for reconsideration. This amendment is effective September1,2000,butbeingcurativemaybegiven retroactiveapplication.(Narzolesv.NLRC,G.R.No. 141959,Sep.29,2000) The period within which a petition for certiorari againstadecisionoftheNLRCmaybefiledshould be computed from the date counsel of record of the party receives a copy of the decision or resolution,andnotfromthedatethepartyhimself receives a copy thereof. Article 224 of the Labor Code,whichrequiresthatcopiesoffinaldecisions, orders or awards be furnished not only the partys counselofrecordbutalsothepartyhimselfapplies totheexecutionthereofandnottothefilingofan appeal or petition for certiorari. (Ginete v. Sunrise ManningAgency,G.R.No.142023,June21,2001) Q: What is an injunction or a temporary restrainingorder(TRO)? A: Orders which may require, forbid, or stop the doingofanact.ThepoweroftheNLRCtoenjoinor restrain the commission of any or all prohibited or unlawfulactsunderArt.218ofLaborCodecanonly beexercisedinalabordisputes.
Note: A restraining order is generally regarded as an ordertomaintainthesubjectofcontroversyinstatus quountilthehearingofanapplicationforatemporary injunction. (BF Homes v. Reyes, G.R. No. L30690 November19,1982)

Q:WhomayissueaTRO? A: 1. President(Art.263[g]) 2. SecretaryofLabor(Art.263[g]) 3. NLRC(Art.218)


Note: Art. 218 of the Labor Code limits the grant of injunctive power to the NLRC. The LA is excluded statutorily. Hence, no NLRC Rules can grant him that power.

Q: What is the procedure for the issuance of restrainingorder/injunction? A: 1. Filingofaverifiedpetition 2. Hearingafterdueandpersonalnoticehas been served in such manner as the Commissionshalldirectto: a. All known persons against whom reliefissought b. Also the Chief Executive or other public officials of the province or city within which the unlawful acts have been threatened or commercial charged with the duty to protect the complainants property. 3. Reception at the hearing of the testimonies of the witnesses with opportunity for crossexamination, in support of the allegations of the complaint made under oath as well as testimonyinoppositionthereto. 4. Finding of fact of the Commission to the effectthat: a. Prohibited or unlawful acts have been threatened and will be committed,orhavebeenandwillbe continued unless restrained, but no

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

179

UST GOLDEN NOTES 2011


injunction or TRO shall be issued on account of any threat, prohibited or unlawful act, except against the persons, association or organization makingthethreatorcommittingthe prohibitedorunlawfulactoractually authorizing or ratifying the same afteractualknowledgethereof. The substantial and irreparable injurytothecomplainantsproperty.
Note: Irreparable Injury an injury which cannot be adequately compensated in damages due to the natureoftheinjuryitselforthenature of the right or property injured or when there exist no pecuniary standard for the measurement of damages. 4. 5. 6. 7. 8. 9. POEA OWWA SSSECC RTWPB NWPC Regular courts disputes.

over

intracorporate

b.

c.

d.

That as to each item of relief to be granted, greater injury will be inflicted upon the complainant by the denial of the relief than will be inflicteduponthedefendantsbythe grantingoftherelief. That complainant has no adequate remedyatlaw
Note: Adequate remedy one that affords relief with reference to the matter in controversy and which is appropriate to the particular circumstances of the case if the remedyisspecificallyprovidedby law. (PALv.NLRC,GR.No.120567,Mar.20, 1998)

e.

5.

Thatpublicofficerschargedwiththe duty to protect complainants property are unable or unwilling to furnishadequateprotection. Postingofabond.

3.BUREAUOFLABORRELATIONS(BLR)MED ARBITERS a.Jurisdiction Q: What is covered by the BLRs jurisdiction and functions? A: The BLR no longer handles all labor management disputes; rather its functions and jurisdictionarelargelyconfinedto: 1. Unionmatters 2. Collectivebargainingregistryand 3. Laboreducation.
Note:Jurisdictionoverlabormanagementproblemsor disputesisalsoexercisedbyotheroffices: 1. DOLERegionalOffices 2. OfficeoftheSecretaryofLabor 3. NLRC

Q:Whoisamediatorarbiter? A: An officer in the Regional Office or Bureau authorized to hear, conciliate and decide representation cases or assist in the disposition of intraorinteruniondisputes. Q: What kinds of cases fall within BLRs jurisdiction? A: The BLR has original and exclusive jurisdiction over: 1. Interuniondisputes 2. Intrauniondisputes 3. Otherrelatedlaborrelationsdisputes Q: What is the coverage of inter/intraunion disputes? A:Theyshallinclude: 1. Conduct or nullification of election of unionandworkersassociationofficers 2. Audit/accounts examination of union or workersassociationfunds 3. Deregistration of collective bargaining agreements(CBAs) 4. Validity/invalidity of union affiliation or disaffiliation 5. Validity/invalidity of acceptance/ non acceptanceforunionmembership 6. Validity/invalidityofvoluntaryrecognition 7. Opposition to application for union or CBAregistration 8. Violations of or disagreements over any provision of the constitution and bylaws ofunionorworkersassociation 9. Disagreements over chartering or registration of labor organizations or the registrationofCBAs; 10. Violations of the rights and conditions of membership in a union or workers association; 11. Violationsoftherightsoflegitimatelabor organizations(LLO),exceptinterpretation ofCBAs; 12. Validity/invalidity of impeachment/ expulsion/suspension or any disciplinary action meted against any officer and member, including those arising from

180

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


noncompliance with the reportorial requirementsunderRuleV; 13. Such other disputes or conflicts involving the rights to selforganization, union membershipandCB a. BetweenandamongLLOand b. Between and among members of a unionorworkersassociation.(Sec.1, Rule XI, Book V, IRR as amended by D.O.40F03) Q: What is covered by the phrase other related laborrelationsdisputes? A: 1. Anyconflictbetween: a.Alaborunionandtheemployer(Er);or b.Alaborunionandagroupthatisnota labororganization(LO);or c. Alaborunionandanindividualwhois notamemberofsuchunion 2. Cancellationofregistrationofunionsand workersassociationsfiledbyindividual/s other than its members, or group that is notaLO. 3. ApetitionforInterpleaderinvolvinglabor relations. (Sec. 2, Rule XI, Book V, IRR as amendedbyD.O.40F03) Q:Whomayfileacomplaintorpetitioninvolving intra/interuniondisputes? A: A legitimate labor organization or its members. (Sec.5,RuleXI,D.O.4003) Q: What if the issue involves the entire membership? A:Thecomplaintmustbesignedbyatleast30%of theentiremembershipoftheunion. Q:Whatiftheissueinvolvesamemberonly? A: Only the affected member may file the complaint.(Sec.5,RuleXI,D.O.4003)
Note: GR:Redressmustfirstbesoughtwithintheunion itself in accordance with its constitution and by laws XPNs: 1. Futilityofintraunionremedies; 2. Improperexpulsionprocedure; 3. Undue delay in appeal as to constitute substantialinjustice; 4. Theactionisfordamages; 5. Lackofjurisdictionoftheinvestigatingbody; action for the administrative agency is patentlyillegal,arbitraryandoppressive; Issueispurelyaquestionoflaw; Where the administrative agency had alreadyprejudgedthecase;and Where the administrative agency was practically given the opportunity to act on thecasebutitdidnot.

6. 7. 8.

Q: May a decision in an inter/intraunion dispute beappealedfrom? A:Yes. Q:Withinwhatperiodmayanappealtoadecision of the medarbiter or regional director in an inter/intrauniondisputebefiled? A: The decision may be appealed by any of the parties within 10 days from receipt thereof. (Sec. 16,RuleXI,D.O.4003) Q:Towhomisthedecisionappealable? A:Thedecisionisappealabletothe: 1. Bureau of Labor Relations (BLR): if the case originated from the MedArbiter or RegionalDirector; 2. SLE:ifthecaseoriginatedfromtheBLR. Q: What is the extent of the Bureau of Labor Relations(BLRs)authority? A: 1. Itmayholdareferendumelectionamong the members of a union for the purpose ofdeterminingwhetherornottheydesire tobeaffiliatedwithafederation. 2. ButtheBLRhasnoauthorityto: a. Order a referendum among union memberstodecidewhethertoexpel orsuspendunionofficers. b. Forward a case to the Trade Union Congress of the Philippines for arbitrationanddecision. Q: Is Katarungang Pambarangay applicable to labordisputes? A: No. Art. 226 of the LC grants original and exclusive jurisdiction over the conciliation and mediationofdisputesgrievancesorproblemsinthe regionalofficesoftheDOLE.ItistheBureauandits divisions (now the NCMB) and not the Barangay Lupong Tagapamayapa which are vested by law with original and exclusive authority to conduct

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

181

UST GOLDEN NOTES 2011


conciliation and mediation proceedings on labor controversies before endorsement to the appropriatelaborarbiterforadjudication.
Note: ConciliationMediation is now done by the NCMB,notBureauLaborRelations.

3.

4.

Q: What are the administrative functions of the BureauLaborRelations(BLR)? A: 1. Regulationofthelaborunions 2. Keepingtheregistryoflaborunions 3. MaintenanceofafileoftheCBA 4. Maintenanceofafileofallsettlementsor final decisions of the SC, CA, NLRC and otheragenciesonlabordisputes Q: What are the effects of filing or pendency of inter/intrauniondisputeandotherlaborrelations disputes? A: 1. Therightsrelationshipsandobligationsof thepartylitigantsagainsteachotherand other partiesininterest prior to the institution of the petition shall continue to remain during the pendency of the petitionanduntilthedateofthedecision rendered therein. Thereafter, the rights, relationshipsandobligationsoftheparty litigants against each other and other partiesininterest shall be governed by thedecisionordered. 2. The filing or pendency of any inter/intra union disputes is not a prejudicial question to any petition for certification election, hence it shall not be a ground for the dismissal of a petition for certification of election or suspension of the proceedings for the certification of election.(Sec.3,RuleXI,DO4003) Q: State the rules on appeal in intra/interunion disputes. A: 1. FormalRequirements a. Underoath b. Consistofamemorandumofappeal. c. Based on either of the following grounds: i. Graveabuseofdiscretion ii. Grossviolationoftherules iii. Withsupportingargumentsand evidence 2. Period within 10 days from receipt of decision.

Towhomappealable a. BLRifthecaseoriginatedfromthe MedArbiter/RegionalDirector. b. SLEifthecaseoriginatedfromthe BLR. Where Filed Regional Office or to the BLR, where the complaint originated (records are transmitted to the BLR or Sec. within 24 hours from the receipt of the memorandum of appeal). (Rule XI, D.O.4003)

4.NATIONALCONCILIATIONANDMEDIAITON BOARD(NCMB) Q: What are the alternative modes of settlement oflabordisputeunderArt.211oftheLaborCode? A: 1. VoluntaryArbitration 2. Conciliation 3. Mediation a.Conciliationvs.Mediation Q:WhatisConciliatonandMediation? A:
CONCILIATION Is conceived of as a mild form of intervention by a neutralthirdparty The conciliator Mediator, relying on his persuasive expertise, who takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, andgenerallybeinga goodfellowwhotries to keep things calm and forwardlooking inatensesituation It is the process whereadisinterested 3rd party meets with management and labor, at their requestorotherwise, during a labor dispute or in MEDIATION Isamildintervention by a neutral third party The conciliator mediator, whereby hestartsadvisingthe parties or offering solutions or alternatives to the problems with the end in view of assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute

Itiswhena3rdparty studies each side of the dispute then makes proposals for the disputants to consider. The mediator cannot make an award nor

182

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


collective bargaining conferences, and by coolingtempers,aids in reaching an agreement renderadecision

Conciliation is conceived of as a mild form of intervention by a neutral third party, the ConciliatorMediator, relying on his persuasive expertise, who takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tries to keepthingscalmandforwardlookinginatense situation. rd It is the process where a disinterested 3 party meetswithmanagementandlabor,attheirrequest orotherwise,duringalabordisputeorincollective bargaining conferences, and by cooling tempers, aidsinreachinganagreement. Mediationisamildinterventionbyaneutralthird party, the ConciliatorMediator, whereby he starts advising the parties or offering solutions or alternativestotheproblemswiththeendinviewof assisting them towards voluntarily reaching their ownmutuallyacceptablesettlementofthedispute. rd It is when a 3 party studies each side of the disputethenmakesproposalsforthedisputantsto consider.Themediatorcannotmakeanawardnor renderadecision. Q:WhatistheLegalBasisofConciliationand Mediation? A:Article13,Section3,ofourNewConstitution provides: The State shall promote xxx the preferential use of voluntary modes of setting disputes including conciliation and shall ensure mutual compliance by the parties thereof in order to fosterindustrialpeace. Note: A similar provision is echoed in the
Declaration of Policy under Article 211 (a) of the LaborCode,asamended.

Q:WhocanavailofConciliationandMediation ServicesoftheNCMB? A:Anypartytoalabordispute,eithertheunion or management, may seek the assistance of NCMB or any of its Regional Branches by means of formal request for conciliation and preventive mediation. Depending on the nature

of the problem, a request may be filed in the form of consultation, notice of preventive mediationornoticeofstrike/lockout. Q: Where can a request for Conciliation and Mediationbefiled? A:Aninformalorformalrequestforconciliation and mediation service can be filed at the NCMB Central Office or any of its Regional Branches. There are at present fourteen (14) regional offices of the NCMB which are strategically located all over the country for the convenient useofprospectiveclients. b.PreventiveMediation Q:WhatisPreventiveMediationCases? A: Refer to the potential labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought byeitherorbothpartiesorupontheinitiativeof theNCMBtoavoidtheoccurrenceofactuallabor disputes. Q: What are the valid issues for a notice of strike/lockoutorpreventivemediationcase? A: A notice of strike or lockout maybe filed on ground of unfair labor practice acts, gross violation of the CBA, or deadlock in collective bargaining. A complaint on any of the above ground must be specified in the NCMB Form or theproperformusedinthefilingofcomplaint. In case of preventive mediation, any issue maybebroughtbeforetheNCMBCentralOffice oritsregionalofficesforconciliationandpossible settlementthroughaletter.Thismethodismore preferable than a notice of strike/lockout because of the nonadversarial atmosphere that pervadesduringtheconciliationconferences. Q: What advantage can be derived from conciliationandmediationservices? A: Conciliation and mediation is non litigious/nonadversarial, less expensive, and expeditious. Under this informal setup, the parties find it more expedient to fully ventilate their respective positions without running around with legal technicalities and, in the course thereof, afford them a wider latitude of possibleapproachestotheproblem. Q: Are the parties bound by the agreement enteredintobythem?

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

183

UST GOLDEN NOTES 2011


A:Certainly,thepartiesareboundtohonorany agreement entered into by them. It must be pointed out that such an agreement came into existenceasaresultofpainstakingeffortsamong the union, management, and the Conciliator Mediator.Therefore,itisonlylogicaltoassume that the Conciliator assigned to the case has to followupandmonitortheimplementationofthe agreement. Q: Is conciliation and mediation service still possibleduringactualstrikeorlockout? A: Definitely, it is possible to subject an actual strikeoractuallockouttocontinuingconciliation and mediation services. In fact, it is at this criticalstagethatsuchconciliationandmediation services by fully given a chance to work out possible solution to the labor dispute. With the ability of the ConciliatorMediator to put the parties at ease and place them at a cooperative mood, the final solutions of all the issues involvedmayyetbeeffectedandsettled. Q:Whenthedisputehasalreadybeenassumed or certified to the NLRC, is it also possible to remandthesametoconciliationandmediation services? A: Yes, the parties are not precluded from availing the services of an NCMB Conciliator Mediator as the duty to bargain collectively subsists until the final resolution of all issues involved in the dispute. Conciliation is so pervasive in application that, prior to a compulsory arbitration award, the parties are encouraged to continue to exhaust all possible avenues of mutually resolving their dispute, especially through conciliation and mediation services. Q: What benefit can the parties have in appearingduringconciliationconferences? A: Generally speaking, any party appearing during scheduled conciliation conferences has the advantage of presenting its position on the labor controversy. The issue raised in the complaint can be better ventilated with the presence of the concerned parties. Moreover, the parties can observe a norm of conduct usuallyfollowedinlikeforum. c.Artbitration Q:Whatisarbitration? A: It is the submission of a dispute to an impartial person for determination on the basis of evidence andargumentsoftheparties.Thearbitersdecision orawardisenforceableuponthedisputants.Itmay be voluntary (by agreement) or compulsory (requiredbystatutoryprovision).(LuzonDevtBank v. Assn of Luzon Devt Bank Employees, G.R. No. 120319,Oct.6,1995) Q:Canthecourtfixresorttovoluntaryarbitration (VA)? A:ResorttoVAdispute,shouldnotbefixedbythe court but by the parties relying on their strengths andresources. Q:Whoarethepartiestolaborrelationscases? A: 1. Employeesorganization 2. Management 3. Thepublic
Note: Employer and Ees are active parties while the publicandtheStatearepassiveparties.(Poquiz,2006, p.3)

Q:Whatistheconceptoftripartism? A:Itistherepresentationof3sectors.Theseare: 1. Thepublicorthegovernment 2. Theemployers 3. Theworkers inpolicymakingbodiesofthegovt. Q: Can workers insist that they be represented in thepolicymakinginthecompany? A: No. Such kind of representation in the policy making bodies of private enterprises is not ordained, not even by the Constitution. What is provided for is workers participation in policy and decisionmaking process directly affecting their rights,benefits,andwelfare. 5.DOLEREGIONALDIRECTORS a.SmallMoneyClaims Q: What is the rule on the recovery of simple moneyclaims? A: 1. The aggregate money claim of each employee (Ee) or househelper (HH) does notexceedP5,000. 2. TheclaimispresentedbyanEeorperson employed in the domestic or household serviceorHH.

184

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


3. 4. TheclaimarisesfromErEerelationship. The claimant does not seek reinstatement.
andother laborlaws

Note: In the absence of any of the ff. requisites, it is the labor arbiter (LA) who shall have the jurisdiction over the claims arising from ErEe relations, except claims for Ees compensation, SSS, Philhealth, and maternity benefits, pursuant to Art.217 of the Labor Code. The proceedings before the Regional Office shall be summaryandnonlitigiousinnature.

Enforcement oflabor legislationin general

Limitedto monetaryclaims

Allotherclaims arisingfromEr Eerelations LAdecidescase within30 calendardays after submissionof thecasebythe partiesfor decision 1)Allother claimsarising fromErEe relations 2)Including thoseof personsin domesticor household service 3)Involvingan amount exceeding P5,000 4)Whetheror not accompanied withaclaimfor reinstatement

Q:WhatistheadjudicatorypoweroftheRegional Director(RD)? A: The RD or any of his duly authorized hearing officerisempoweredthroughsummaryproceeding and after due notice, to hear and decide cases involving recovery of wages and other monetary claimsandbenefits,includinglegalinterests. Q:Anairlinewhichfliesboththeinternationaland domestic routes requested the SLE to approve the policy that all female flight attendants upon reaching age 40 with at least 15 years of service shall be compulsorily retired; however, flight attendantswhohavereachedage40buthavenot worked for 15 years will be allowed to continue workinginordertoqualifyforretirementbenefits, but in no case will the extension exceed 4 years. Does the SLE have the authority to approve the policy? A: Yes. Art.132 (d) of the Labor Code provides that theSLEshallestablishstandardsthatwillensurethe safety and health of women employees including the authority to determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flightattendantsandthelike.(1998BarQuestion) Q: What is the difference between the power of SecretaryofLaborandEmployment(SLE),Regional Director(RD)andLaborArbiter(LA)? A:
Art.128 VPandEPof SLE Inspectionof establishments andissuance ofordersto compel compliance withlabor standards, wageorders Art.129 RD Art.217(a)(6) LA

Proceedingis anoffshootof routine inspections

Initiatedby sworncomplaints filedbyany interestedparty

No jurisdictional reqts

Jurisdictional reqts: 1)Complaint arisesfromErEe relationship 2)Claimantisan Eeorperson employedin domesticor household serviceoraHH 3)Complaint doesNOTinclude aclaimfor reinstatement 4)Aggregate moneyclaimof EACHclaimant doesnotexceed P5,000

Appealableto SLE(Incase compliance orderisissued byRegional Office)

Appealableto NLRC

Appealableto NLRC

6.DOLESECRETARY a.VisitorialandEnforcementPowers Q:Whatarethe3kindsofpowersoftheSecretary ofLaborandEmployment(SLE)? A: 1. Visitorialpowers 2. Enforcementpowers 3. Appellateorpowertoreview Q:Whatconstitutevisitorialpower?

Adjudicationof Eesclaimsfor wagesand benefits

LAexercises originaland exclusive jurisdiction

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

185

UST GOLDEN NOTES 2011


A: 1. Access to employers records and premisesatanytimeofthedayornight, wheneverworkisbeingundertaken Tocopyfromsaidrecords Question any employee and investigate any fact, condition or matter which may be necessary to determine violations or whichmayaidintheenforcementofthe Labor Code and of any labor law, wage order, or rules and regulation issued pursuantthereto. Require Ers to keep and maintain such employmentrecordsasmaybenecessary in aid to the visitorial and enforcement powers 5. Conduct hearings within 24 hours to determinewhether: a. An order for stoppage of work or suspension of operations shall be liftedornot;and b. Er shall pay employees concerned their salaries in case the violation is attributabletohisfault.(Asamended by RA 7730; Guico v. Secretary, G.R. No.131750,Nov.16,1998) Q:WhataretheviolationsunderArt.128? A: 1. Obstruct, impede, delay or otherwise renderineffectivetheordersoftheSLEor hisauthorizedrepresentatives 2. Any government employee found guilty of,orabuseofauthority,shallbesubject to administrative investigation and summarydismissalfromservice. Q:Whatarethelimitationstoothercourts? A: Inrelationtoenforcementordersissuedunder Art.128,noinferiorcourtorentityshall: 1. Issue temporary or permanent injunction orrestrainingorderor 2. Assumejurisdictionoveranycase Q: What are the instances when enforcement powermaynotbeused? A: 1. Case does not arise from the exercise of visitorialpower 2. WhenErEerelationshipceasedtoexistat thetimeoftheinspection 3. If employer contests the finding of the Labor Regulation Officer and such contestable issue is not verifiable in the normalcourseofinspection b.PowertoSuspendEffectsofTerminationArt.277 (b),LC Q: Does the DOLE Secretary have the power to suspendtheeffectsoftermination? A:Yes,underArticle277(b)oftheLaborCode,the Secretary of Labor may suspend the effects of the terminationpendingresolutionofthedisputeinthe event of a prima facie finding by the appropriate 4.

2. 3.

Q: Give 4 instances where the visitorial power of theSLEmaybeexercisedundertheLaborCode. A:Powerto: 1. Inspect books of accounts and records of any person or entity engaged in recruitment and placement, require it to submit reports regularly on prescribed forms and act in violations of any provisions of the LC on recruitment and placement.(Art.37) 2. Have access to employers records and premises to determine violations of any provisions of the LC on recruitment and placement.(Art.128) 3. Conduct industrial safety inspections of establishments.(Art.165) 4. Inquire into the financial activities of legitimate labor organizations (LLO) and examinetheirbooksofaccountsuponthe filing of the complaint under oath and dulysupportedbythewrittenconsentof at least 20% of the total membership of theLOconcerned. Q:Whatisenforcementpower? A:ItisthepoweroftheSLEto: 1. Issuecomplianceorders 2. Issue writs of execution for the enforcement of their orders, except in cases where the employer (Er) contests thefindingsofthelaborofficerandraise issues supported by documentary proof which were not considered in the course ofinspection 3. Order stoppageof work or suspension of operationwhennoncompliancewiththe laworimplementingrulesandregulations poses grave and imminent danger to health and safety of workers in the workplace

186

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


official of the Department of Labor and Employment before whomsuch dispute is pending that the termination may cause serious labor disputeorisinimplementationofamasslayoff. 7.VOLUNTARYARBITRATORS a.SubmissionAgreement Q:Howisarbitrationinitiated? A: 1. Submission agreement Where the partiesdefinethedisputestoberesolved 2. Demand notice Invoking collective agreementarbitrationclause Q:Whoisavoluntaryarbitrator(VA)? A: 1. Any person accredited by the NCMB as such 2. Any person named or designated in the CBAbythepartiestoactastheirVA 3. One chosen with or without the assistance of the NCMB, pursuant to a selection procedure agreed upon in the CBA 4. Anyofficialthatmaybeauthorizedbythe SLEtoactasVAuponthewrittenrequest and agreement of the parties to a labor dispute.(Art.212[n]) Q:Whatarethepowersofavoluntaryarbitrator? A: 1. Holdhearings 2. Receiveevidence 3. Take whatever action necessary to resolve the dispute including efforts to effect a voluntary settlement between parties.(Art.262A) Q: How is a voluntary arbitrator (VA)/panel chosen? A: 1. The parties in a CBA shall designate in advance a VA/panel, preferably from the listingofqualifiedVAsdulyaccreditedby theNCMB,or 2. Includeintheagreementaprocedurefor the selection ofsuch VA or panel of VAs, preferably from the listing of qualified VAs duly accredited by the NCMB. (Art.260,par.3) Q: Who will designate the voluntary arbitrator (VA)/panelincasethepartiesfailtoselectone? A:ItistheNCMBthatshalldesignatetheVA/panel based on the selection procedure provided by the CBA. (Manila Central Line Free Workers Union v. Manila Central Line Corp., G.R. No. 109383, June 15,1998) Q: May Labor Arbiters (LA) be designated as voluntaryarbitrators(VA)? A:Yes.ThereisnothinginthelawthatprohibitsLAs fromalsoactingasVAsaslongasthepartiesagree tohavehimhearanddecidetheirdispute.(Manila Central Line Free Workers Union v. Manila Central LineCorp.,G.R.No.109383,June15,1998) Q: What falls under the jurisdiction of Voluntary Arbitrators(VA)? A: Generally, the arbitrator is expected to decide only those questions expressly delineated by the submission agreement. Nevertheless, the arbitrator can assume that he has the necessary power to make a final settlement since arbitration is the final resort for the adjudication of the disputes. (Ludo and Luym Corp. v. Saornido, G.R. No.140960,Jan.20,2003) Q:WhatcasesarewithinthejurisdictionofVA? A:Originalandexclusivejurisdictionover: 1. All unresolved grievances arising from the: a. Implementation or interpretation of theCBA b. Interpretation or enforcement of companypersonnelpolicies 2. Wage distortion issues arising from the application of any wage orders in organizedestablishments 3. Those arising from interpretation and implementation of productivity incentive programsunderR.A.6971 4. ViolationsofCBAprovisionswhicharenot grossincharacterarenolongertreatedas ULP and shall be resolved as grievances undertheCBA
Note:GrossviolationofCBAprovisionsshall mean flagrant and/or malicious refusal to comply with the economic provisions of suchagreement.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

187

UST GOLDEN NOTES 2011


5. Anyotherlabordisputesuponagreement by the parties including ULP and bargainingdeadlock.(Art.262) A:GR:DecisionsofVAarefinalandexecutoryafter 10 calendar days from receipt of the copy of the awardordecisionbytheparties.(Art.262A) XPNs: 1. AppealtotheCAviaRule43oftheRules of Court within 15 days from the date of receipt of VAs decision. (Luzon Devt Bank v. Assn of Luzon Devt Bank Ees, G.R.No.120319,Oct.6,1995) 2. If decision of CA is adverse to a party, appeal to the SC via Rule 45 on pure questionsoflaw.
Note:AVAbythenatureofherfunctionsactsinquasi judicial capacity. There is no reason why the VAs decisions involving interpretation of law should be beyond the SCs review. Administrative officials are presumedtoactinaccordancewithlawandyettheSC will not hesitate to pass upon their work where a question of law is involved or where a showing of abuseofauthorityordiscretionintheirofficialactsis properly raisedin petitions for certiorari. (Continental MarbleCorporationv.NLRC,G.R.No.L43825,May9, 1988)

Q: May the NLRC and DOLE entertain disputes/grievances/matters under the exclusive and original jurisdiction of the voluntary arbitrator? A:No.Theymustimmediatelydisposeandreferthe same to the grievance machinery or voluntary arbitrationprovidedintheCBA The parties may choose to submit the dispute to voluntary arbitration proceedings before or at the stageofcompulsoryarbitrationproceedings. Q: What is the effect of the award of voluntary arbitrator(VA)? A:ThedecisionorawardoftheVAactingwithinthe scope of its authority shall determine the rights of thepartiesandtheirdecisionsshallhavethesame legal effects as judgment of the courts. Such mattersonfactandlawareconclusive. Q: Are both the employer and the bargaining representative of the employees required to go through the grievance machinery in case a grievancearises? A: Yes, because it is but logical, just and equitable that whoever is aggrieved should initiate settlement of grievance through the grievance machinery. To impose compulsory procedure on employersalonewouldbeoppressiveofcapital. Q: Who has jurisdiction over actual termination disputes and complaints for illegal dismissal filed byworkerspursuanttotheunionsecurityclause? A: The Labor Arbiter and not the grievance machinery. Q:Whatisthenatureofthepowerofavoluntary arbitrator? A:Arbitratorsbythenatureoftheirfunctions,act inaquasijudicialcapacity(BP129,asamendedby R.A. 9702); where a question of law is involved or thereisabuseofdiscretion,courtswillnothesitate topassuponreviewoftheiracts. b.Rule43,RulesofCourt Q: Are decisions of voluntary arbitrators (VAs) appealable?

Q: PSSLU had an existing CBA with Sanyo Phils., Inc. which contains a union security clause which provides that: all members of the union covered by this agreement must retain their membership ingoodstandingintheunionasconditionofhis/ her continued employment with the company. On account of antiunion activities, disloyalty and for joining another union, PSSLU expelled 12 employees (Ees) from the Union. As a result, PSSLU recommended the dismissal of said Ees pursuant to the union security clause. Sanyo approvedtherecommendationandconsideredthe said Ees dismissed. Thereafter, the dismissed Ees filed with the Arbitration Branch of the NLRC a complaintforillegaldismissal. Does the voluntary arbitrator (VA) have jurisdictionoverthecase? A: No, the VA has no jurisdiction over the case. Although the dismissal of the Ees concerned was made pursuant to the union security clause provided in the CBA, there was no dispute whatsoever between PSSLU and Sanyo as regards the interpretation or implementation of the said union security clause. Both PSSLU and Sanyo are united and have come to an agreement regarding the dismissal of the Ees concerned. Thus there is no grievance between the union and management whichcouldbebroughttothegrievancemachinery. The dispute is between PSSLU and Sanyo, on the one hand, and the dismissed union members, on the other hand. The dispute therefore, does not

188

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


involve the interpretation or implementation of a CBA. (Sanyo Philippines Workers UnionPSSLU v. Canizares,G.R.No.101619,July8,1992) Q: X was employed as telephone operator of Manila Midtown Hotel. She was dismissed from her employment for committing the following violations of offenses subject to disciplinary actions, namely: falsifying official documents and culpable carelessnessnegligence or failure to follow specific instructions or established procedures. X then filed a complaint for illegal dismissalwiththeArbitrationbranchoftheNLRC. The Hotel challenged the jurisdictionof the Labor Arbitrator (LA) on the ground that the case falls within the jurisdictional ambit of the grievance procedure and voluntary arbitration under the CBA. DoestheLAhavejurisdictionoverthecase? A: Yes, the LA has jurisdiction. The dismissal of X doesnotcallfortheinterpretationorenforcement ofcompanypersonnelpoliciesbutisatermination dispute which comes under the jurisdiction of the LA. The dismissal of X is not an unresolved grievance.Neitherdoesitpertaintointerpretation ofcompanypersonnelpolicy.(Manejav.NLRC,G.R. No.124013,June5,1998) Q: Sime Darby Salaried Employees (Ees) AssociationALU (SDSEAALU) wrote petitioner Sime Darby Pilipinas (SDP) demanding the implementationofaperformancebonusprovision identical to the one contained in their own CBA with SDP. Subsequently, SDP called both respondent SDEA and SDEAALU to a meeting wherein the former explained that it was unable togranttheperformancebonus.Inaconciliation meeting, both parties agreed to submit their dispute to voluntary arbitration. Their agreement toarbitratestated,amongotherthings,thatthey were"submittingtheissueofperformancebonus tovoluntaryarbitration." Doesthevoluntaryarbitrator(VA)havethepower topassuponnotonlythequestionofwhetherto grant the performance bonus or not but also to determinetheamountthereof? A:Yes,intheiragreementtoarbitrate,theparties submitted to the VA the issue of performance bonus.Thelanguageoftheagreementtoarbitrate may be seen to be quite cryptic. There is no indication at all that the parties to the arbitration agreement regarded the issue of performance bonusasatwotieredissue,onlyonetierofwhich wasbeingsubmittedtoarbitration.Possibly,Sime Darbys counsel considered that issue as having dual aspects and intended in his own mind to submit only one of those aspects to the VA, if he did, however, he failed to reflect his thinking and intent in the arbitration agreement. (Sime Darby Phils.v.Magsalin,G.R.No.90426,Dec.15,1989) Q:Apalisok,productionchiefforRPNStation,was dismissed due to her alleged hostile, arrogant, disrespectful, and defiant behavior towards the Station Manager. She informed RPN that she is waiving her right to resolve her case through the grievance machinery as provided in the CBA. The voluntary arbitrator (VA) resolved the case in the employees(Ees)favor. Onappeal,theCAruledinfavorofRPNbecauseit considered the waiver of petitioner to file her complaint before the grievance machinery as a relinquishment of her right to avail herself of the aidoftheVA.TheCAsaidthatthewaiverhadthe effect of resolving an otherwise unresolved grievance, thus the decision of the VA should be setasideforlackofjurisdiction.Istherulingofthe CAcorrect? A: No. Art. 262 of the Labor Code provides that uponagreementoftheparties,theVAcanhearand decideallotherlabordisputes. Contrary to the finding of the CA, voluntary arbitration as a mode of settling the dispute was notforceduponrespondents.Bothpartiesindeed agreed to submit the issue of validity of the dismissalofpetitionertothejurisdictionoftheVA by the Submission Agreement duly signed by their respective counsels. The VA had jurisdiction over thepartiescontroversy. TheEeswaiverofheroptiontosubmithercaseto grievance machinery did not amount to relinquishing her right to avail herself of voluntary arbitration.(Apalisokv.RPN,G.R.No.138094,May 29,2003) 8.COURTOFAPPEALS Q: Is judicial review of the NLRCs decision available? A: Yes, through petitions for certiorari (Rule 65) which should be initially filed with the CA in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired.TheCAisprocedurallyequippedtoresolve unclear or ambiguous factual finding, aside from the increased number of its component divisions.

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

189

UST GOLDEN NOTES 2011


(St.MartinFuneralHomev.NLRC,G.R.No.130866, Sep.16,1998)
Note:Rule65,Section1,RulesofCourt Petition for CertiorariWhen any tribunal, board or officerexercisingjudicialorquasijudicialfunctionshas actedwithoutorinexcessofitsorhisjurisdiction,or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verifiedpetitioninthepropercourt,allegingthefacts withcertaintyandprayingthatjudgmentberendered annulling or modifying the proceedings of such tribunal,boardorofficer,andgrantingsuchincidental reliefsaslawandjusticemayrequire. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certificationofnonforumshoppingasprovidedinthe thirdparagraphofsection3,Rule46.

resolution appealed from. (Sea Power Shipping Enterprises, Inc. v. CA, G.R. No. 138270, June 28, 2001)
Note:Rule45,Section1,RulesofCourt: FilingofpetitionwithSupremeCourt.Apartydesiring toappealbycertiorarifromajudgment,finalorderor resolution of the Court of Appeals,theSandiganbayan,theCourtofTaxAppeals, the Regional Trial Court or other courts, whenever authorized bylaw, may file withthe Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunctionorotherprovisionalremediesandshallraise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remediesbyverifiedmotionfiledinthesameactionor proceedingatanytimeduringitspendency.

Q: Within what period should the petition for certioraribefiledwiththeCourtofAppeals? A: Under Section 4, Rule 65 (as amended by A.M. No.00203SC)oftheRulesofCivilProcedure,the petition must be filed within sixty (60) days from notice of the judgment or from notice of the resolution denying the petitioners motion for reconsideration. This amendment is effective September1,2000,butbeingcurativemaybegiven retroactiveapplication.(Narzolesv.NLRC,G.R.No. 141959,Sep.29,2000) The period within which a petition for certiorari againstadecisionoftheNLRCmaybefiledshould be computed from the date counsel of record of the party receives a copy of the decision or resolution,andnotfromthedatethepartyhimself receives a copy thereof. Article 224 of the Labor Code,whichrequiresthatcopiesoffinaldecisions, orders or awards be furnished not only the partys counselofrecordbutalsothepartyhimselfapplies totheexecutionthereofandnottothefilingofan appeal or petition for certiorari. (Ginete v. Sunrise ManningAgency,G.R.No.142023,June21,2001) 9.SUPREMECOURT Q:Howdoesapartyappealfromajudgment,or finalorderorresolution,oftheCourtofAppeals? A: A party desiring to appeal may file with the Supreme Court a verified petition for review on certiorari under Rule 45 within fifteen (15) days from notice of the judgment, final order or

Q:GivethepolicyoftheSupremeCourtregarding appealsinlaborcases. A: The Supreme Court is very strict regarding appeals filed outside the reglementary period for filingthesame.Toextendtheperiodoftheappeal is to delay the case, a circumstance which could give the employer the chance to wear out the efforts and meager resources of the worker that the latter is constrained to give up for less than whatisduehim.(FirestoneTireandRubberCo.of the Philippines v. FirestoneTire and Rubber Co. EmployeesUnion,G.R.No.75363,Aug.4,1992) 10.PRESCRIPTIONOFACTIONS Q:Givetherulesasregardstheprescriptiveperiod providedforintheLaborCode(LC). A:
SUBJECT Offensespenalized undertheLC ULP PRESCRIPTIVEPERIOD 3years One(1)yearfrom accrualofsuchULP; otherwiseforever barred(Art.290) 3yearsfromthetime thecauseofaction accrued;otherwise foreverbarred Withinone(1)year fromthedateof effectivity,in accordancewithIRR; otherwise,theyshall foreverbebarred Dec.31,1974shallbe filednotlaterthanMar. 31,1975beforethe

MoneyClaims

Allmoneyclaims accruingpriortothe effectivityoftheLC Workmens Compensationclaims accruingpriortothe

190

LABORLAWTEAM: ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM

PROCEDURE AND JURISDICTION


effectivityoftheLCand betweenNov.1,1974 Dec.31,1974 appropriateregional officesofthe DepartmentofLabor. (Art.291) 4years.Itcommences torunfromthedateof formaldismissal. (Mendozav.NLRC,G.R. No.122481,Mar.5, 1998)

IllegalDismissalCases

ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA Facultad de Derecho Civil VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ

191