Labor Law and Social Legislation-Pre-Week

SAN BEDA COLLEGE OF LAW
2003 CENTRALIZED BAR OPERATIONS

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PREWEEK IN
LABOR AND SOCIAL
LEGISLATION
1. Employee A, filed a complaint before the DOLE for underpayment of wages, illegal
deduction, non-payment of night shift differential pay, overtime pay etc. The
aggregate amount did not exceed P 5,000.00. X Corp. filed its position papers.
Subsequently, A claimed backwages on account of his alleged constructive
dismissal. The Regional Director ruled for A. X Corp.s motion for reconsideration
was denied. On appeal, X Corp. claimed that it was the Labor Arbiter, not the
Regional Director who has jurisdiction as the case involved a termination dispute.
Resolve.
The contentions of X Corp. are not meritorious.
(1)
(2)
X Corp. is estopped from questioning the jurisdiction of the Regional Director. It took
part in the proceedings before the Regional Director by submitting its position
papers. It even asked the Regional Director to reconsider its decision after the
resolution was adverse to its interest.
The Regional Director did have jurisdiction over the complaint which was originally
for violation of Labor Standards (Art. 128(b) ). Only later did A ask for backwages on
account of his constructive dismissal. Once vested, that jurisdiction continued until
the entire controversy was decided. (Odin Security Agency v Hon. De La Serna).
2. (a) A 3-star hotel would like to have an apprenticeship program covering

dishwashers. Will this be allowed?
(b) What are highly technical industries?
(a) No. Apprenticeship is allowed only in a trade, form of employment or occupation which
requires for proficiency more that three (3) months of practical training on the job supplemented
by related theoretical instruction and only in highly technical industries. This is referred to as
an apprenticeable occupation (Article 58[c], LABOR CODE). The Secretary of Labor and
Employment by appropriate orders determines what trades or occupations are apprenticeable.
In the present problem, the work of dishwasher cannot be deemed
apprenticeable. Proficiency therein can be attained within a very short period. Besides, the
hotel industry is not highly technical.
(b) They are industries engaged in the application of advanced technology. (Implementing
Rules, Book II, Rule VI, Section 2[j])
3. Who is an understudy?
An understudy is any qualified Filipino citizen designated by a local employer to be
trained by a foreign national allowed to work in the country by virtue of an employment
permit granted him by the Secretary under an approved understudy training program.
(Implementing Rules, Book I, Rule I, Section 1[l])
PREWEEK IN LABOR LAW
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There must be at least two (2) understudies for every alien worker. Such understudies
must be the most ranking regular employees in the section or department for which the
expatriates are being hired to insure transfer of technology. (Implementing Rules, Book I,
Rule XIV, Section 5[c])
4. Maria works as clerk-typist in the Our Lord Orphanage, a private charitable institution
that subsists on donation or voluntary contributions. She worked for ten (10) hours a
day. Is she entitled to overtime compensation? Why?
Yes, she is entitled to overtime compensation for two hours daily. The fact that her employer
is a charitable and a non-profit institution is of no significance. The provision of the Labor Code
on overtime covers both profit and non-profit establishments or undertakings.
5. Some sales personnel of Company X start their field work at 8:00 a.m. after
reporting to the office, and come back to the office at 4:00 p.m. of the same day.
(a) Are the sales personnel considered as field personnel under Article 82
of the Labor Code? Why?
(b) Are the sales personnel entitled to regular holiday pay?
(a) Yes. Their actual hours of work in the field cannot be determined with reasonable
certainty. The period between 8:00 a.m. and 4:00 p.m. comprises their hours of work in the
field, the extent or scope and result of which are subject to their individual capacity and industry.
In deciding whether or not an employees actual working hours in the field can be determined
with reasonable certainty, query must be made as to whether or not such employees time and
performance is constantly supervised by the employer.
(b) No. Since they are considered as field personnel they are not entitled to regular holiday
pay. (Union of Filipro Employees vs. Vivar Jr.; G.R. No. 79255; January 20, 1992)
6.
Faculty members of a non-profit educational institution are paid by the hour and are
obliged to work and consent to be paid only for work actually done. Are they entitled
to holiday pay for unworked regular holidays?
No. Regular holidays specified as such by law are known to both school and faculty
members as no class days, certainly the latter do not expect payment for said unworked days,
and this was clearly in their minds when they entered into the teaching contracts. There is no
diminution of the income of the faculty members. (Jose Rizal College vs. NLRC; G.R. No. L65482; December 1, 1987)
7. Under the New Labor Code, name at least three (3) provisions which are designed to
protect working women.
Some provisions of the Labor Code of the Philippines which are designed to protect
working women are as follows: [i] Nightwork prohibition (Art. 130); [ii] Facilities for women
(Art. 132); [iii] Maternity leave benefits (Art. 133, superseded by Section 14-A of the Social
Security Law); [iv] Family planning services (Art. 134); [v] Discrimination prohibited (Art.
135); [vi] Stipulation against marriage (Art. 136); [vii] Prohibited acts (Art. 137); and, [viii]
Classification of certain women workers in nightclubs and similar establishments (Art. 138)
4.
What is wage distortion and how is wage distortion settled?

Wage distortion is a situation where an increase in prescribed wage rates results in the
elimination or sever contraction on intentional quantitative differences in wages or salary
between and among employee groups in an establishment as to effectively obliterate the
distinction embodied in such wage structure based on skills, length of service and other
logical basis of differentiation.
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Four principles in wage distortion
a. Existence of grouping or classification of employees which establishes distinction among
them for some relevant basis.
b. Government decreed increase in minimum wage or merger of two companies.
c. Reestablishment of substantial or significant gaps between wage rates of employees.
d. Reestablishment is based on process established by law.
The processes of settling wage distortion are as follows:
a. If with union
Negotiation between union and management
If unresolved, grievance procedure
If unresolved, voluntary arbitration
b. If no union
Employer and employees endeavor to correct distortion

If unresolved, settlement through National Conciliation and Mediation Board
If unresolved, NLRC
5. Discuss the state policy on the assessment of the attorneys fees within the context
of Art. 111 and 222 (b) of the Labor Code.
In Article 111 of the Labor Code, attorneys fees shall not exceed 10% of the amount of
wages recovered, in cases of culpable withholding of wages of an employee. On the other
hand Article 222 states that Attorneys fees arising from any collective bargaining
negotiations or conclusion of the collective agreement, shall not be imposed on any
individual member of the contracting union. However, it may be charged against union
funds in an amount to be agreed upon by the parties.
6. What is a RED CIRCLE RATE ALLOWANCE? Is it part of the basic salary?
A red circle rate allowance is an amount, not included in the basic salary that is granted
by the company to an employee who is promoted to a higher position grade but whose
actual basic salary at the time of the promotion already exceeds the maximum salary for the
position to which he or she is promoted (Meralco v Secretary of Labor, G.R. No. 127598,
January 27, 1999)
7. Does promotion of an employee automatically entitle him to an increase in his salary?
Explain.
No. While promotion is usually accompanied by an increase in salary, such increase is
dependent upon the employer in the absence of a contractual stipulation or established
company policy. Promotion may denote an advancement merely in rank without an
equivalent increase in salary. The matter of salary increases is a management prerogative
(National Federation of Labor Unions, et al., vs. NLRC, et al.; G.R. No. 103575; April 5,
1993)
8. When may a non-lawyer appear before the NLRC or Labor Arbiter?
a) If he represents himself as a party to the case;
b) If he represents an organization or its members, provided that he shall be made to
present written proof that he is properly authorized, or
c) If he is a duly-accredited member of any legal aid office duly recognized by the DOLE or
IBP in cases referred to by the latter.
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9. What is the Accretion Doctrine in Labor Relations?

Accretion in Labor Relations occurs when a large entity absorbs or integrates one or
more plants engaged in the same or substantially the same business and have employees
during the same or substantially the same kind of work but with existing separate collective
agreements with different labor unions.
10. What are the requisites for a valid quitclaim?
a) it must be voluntary
b) there was no fraud on the part of any parties
c) consideration of the quitclaim is credible and reasonable
d) the contract is not contrary to law, public order, public policy, morals and good customs or
prejudicial to a third person with a right recognized by law (More Maritime Agencies, Inc. v
NLRC, G.R. No. 124927, May 18, 1999)
11. What is the PRINCIPLE OF SHARED RESPONSIBILITY?
It refers to the provision of 1987 Constitution which mandates the workers to participate
in policy and decision-making processes of the establishment insofar as said processes
directly affect their rights, benefit and welfare.
16. What is the basis of the right to self-organization?
Under the1987 Philippine Constitution:
Art. III Sec. 8 The Right of the people, including those employed in the public and private
sectors to form union, associations, or societies for purposes not contrary to law shall
not be abridged.
Art. XIII Sec. 3 The State shall guarantee the rights of all workers to self-organization,
collective bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law.
Under the Labor Code:
Art. 3 The State shall afford protection to labor, promote full employment, ensure equal
work opportunities regardless of sex, race or creed, and regulate the relations between
workers and employees. The State shall assure the rights of workers to selforganization, collective bargaining, security of tenure, and just and humane conditions of
work.
Art. 246. NON-ABRIDGEMENT OF RIGHT TO SELF-ORGANIZATION - It shall be unlawful
for any person to restrain, coerce, discriminate against or unduly interfere with
employees and workers in their exercise of the right to self-organization. Such right shall
include the right to form, join, assist labor organizations for the purpose of collective
bargaining through representatives of their own choosing and to engage in lawful
concerted activities for the same purpose or for their mutual aid and protection.
Art. 269 All aliens, natural or juridical, as well as foreign organizations are strictly
prohibited from engaging directly or indirectly in all forms of trade union activities without
prejudice to normal contacts between Philippine labor unions and recognized
international labor centers: provided, however, That aliens working in the country with
valid permits by the DOLE, may exercise the right to self-organization and join or assist
labor organizations of their own choosing for purposes of collective bargaining; Provided,
further, That said aliens are nationals of a country which grants the same or similar rights
to Filipino workers.
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17. When is the mechanics of collective bargaining set in motion?

The mechanics of collective bargaining is set in motion only when the following
jurisdictional preconditions are present:
1) possession of majority status of the employees representative in accordance with any of
the means of selection under the Labor Code;
2) proof of majority representation;
3) a demand to bargain which must be unequivocal and clear; hence, an employer is not in
default respecting the duty to bargain until a request therefore has been made.(Kiok
Loy vs. NLRC)
12. What are the requisites that must be complied with in order that the special
assessment for Unions incidental expenses, attorneys fees, and representation
expenses be valid?
1) authorization by a written resolution of the majority of all the members at the general
membership meeting duly called for the purpose;
2) secretarys record of the minutes of the meeting; and
3) individual written authorization for check-off duly signed by the employee concerned.
19. May aliens join labor unions in the Philippines?
As a general rule, aliens cannot join labor unions in the Philippines; they are prohibited
under Article 269 of the Labor Code from engaging directly or indirectly in all forms of trade
union activities. However, under the same article, as amended by Republic Act 6715, aliens
working in the Philippines with valid permits issued by the Department of Labor and
Employment may exercise the right to self-organization and join or assist labor organizations
of their own choosing for purposes of collective bargaining provided that said aliens are
nationals of a country which grants the same or similar rights to Filipino workers.
20. What are the factors in determining an appropriate bargaining unit?
1) Community or Mutuality of Interest Test reflected by substantial similarity of work,
duties, compensation and working conditions;
2) Globe Doctrine or the Express Will or Doctrine of the Employees Test In such a case
where the considerations are so evenly balanced as to render doubt in determining the
appropriate bargaining unit, the desires of the employees themselves become relevant
and the best way to determine their preference is through a referendum;
3) Prior Collective Bargaining History it may be assumed that the court will not disturb the
composition of a considered bargaining unit which has an established existence, and
has in its past dealings with the employer, demonstrated its services to the collective
bargaining purposes of the act.
4) Employment Status there are certain positions and categories of work which, by their
nature, place the employees in a position wherein a conflict of duties and interest exists.
21. How would you reconcile union security clause with security of tenure?
A union security clause is a contractual limitation upon the security of tenure of an
employee. Pursuant to the union security clause, such as closed shop, union shop or
maintenance of membership clause, voluntarily entered into by the workers bargaining
representative, and the employer, an individuals employment may be validly terminated. Laws
recognizing the validity of union security clauses are enacted pursuant to the police power of the
State; they are intended to make unions strong, thereby becoming effective instruments for the
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protection of the workers rights. The security of tenure of an employee must yield to the
operation of a valid union security clause.
22. Distinguish between the following
a) Discrimination as an act of unfair labor practice when committed by an employer
and discrimination when committed by a labor organization
BY AN EMPLOYER
BY A LABOR ORGANIZATION
Exists when one is denied privileges given to A labor organization commits discriminatory
the other under identical or similar acts amounting to unfair labor practice if it:
conditions, EITHER:
Causes or attempts to cause an
For purposes of encouraging or
employer to discriminate against an
discouraging membership in any
employee;
labor organization, OR
Discriminates against an employee
To retaliate against an employee for
whose membership in the union has
having given or being about to give
been denied; or
testimony regarding the exercise of
Terminates the membership of an
the rights of self-organization by the
employee with the union on grounds
workers.
other than the usual terms and
conditions made available to other
union members.
b) Agency fee v check-off as a form of union financial security
AGENCY FEE
Levied from non-members of the
bargaining agent (union) for the
enjoyment of the benefits under the
CBA.
May be deducted from the salary of
employees without their consent.
CHECK-OFF
Levied from the members of a union
for the payment of union dues.
May not be deducted from the
salaries of the union members
without the written consent of the
workers affected.
23. What is the bystander rule? What is the exception to the said rule?
As a general rule, certification election is the sole concern of the workers and the
employer is regarded as nothing more than a bystander with no right to interfere at all in the
election. (Philippine Scout Veterans Security and Investigation Agency vs. Torres, 224 SCRA
682 [1993]; Belyca Corporation v. Ferrer-Calleja, 168 SCRA 184 [1988]) The only instance
or exception is where the employer is obliged to file a petition for a certification election by
reason of its workers request to bargain collectively. Even then, the employers involvement
ceases, and it becomes a neutral bystander after the order for a certification election issues.
(California Manufacturing Corporation v. Laguesma, 209 SCRA 606 [1992])
24. Union leaders of 123 Union alleged that the management refused to implement a
provision of the CBA despite a letter written by the union requesting for the said
action. As a result, the union decided to call for a strike based on unfair labor
practice. Comment on the action of the union.
The action of the union is erroneous. According to Article 261 of the Labor Code, mere
violation of the CBA is not unfair labor practice. To be considered as ULP, there should be a
flagrant and malicious refusal to comply with the economic provisions of the agreement. In
this case, since the union only sent one letter, this does not amount to a flagrant and
malicious refusal of the company to comply with the CBA.
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The proper action for the union is to file a complaint in the grievance machinery. If it remains
unresolved, the case shall be referred to the voluntary arbitrator.
a) Assuming that the union sent 10 letters, which remained unanswered, and the
companys act constitute ULP, can the case be referred for VOLUNTARY
ARBITRATION without passing the grievance machinery?
Yes. Generally, ULP is subject to compulsory arbitration (Labor Arbiter). But ULP can
also be submitted for voluntary arbitration upon agreement of the parties, without passing
the grievance machinery.
As a general rule, voluntary arbitrators have jurisdiction over unresolved grievances.
However, this unresolved grievance refers to interpretation and implementation of the CBA,
which does not constitute ULP. In case it becomes ULP, this can be referred to voluntary
arbitrators under Article 262 which grants VA power to hear and decide all other labor
disputes, including ULP and bargaining disputes.
25. What is a yellow dog contract?
It is a promise exacted from workers as a condition of employment that they are not to
belong to, or attempt to foster, a union during their period of employment.
26. What is featherbedding?
Featherbedding refers to the practice of the union or its agents in causing or attempting
to cause an employer 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. The essence of featherbedding is the exaction of money or other things of value
from the employer by the union. It is not featherbedding where work is performed no matter
how unnecessary or useless it may be.
27. What is the totality of conduct doctrine in Labor Relations?
The culpability of an employers remarks were to be evaluated not only on the basis of
their implicit implications, but were to be appraised against the background of and in
conjunction with collateral circumstances. Under this doctrine, expressions of opinion by an
employer which, though innocent in themselves, frequently were held to be culpable
because of the circumstances under which they were uttered, the history of the particular
employers labor relations or anti-union bias or because of their connection with an
established collateral plan of coercion or interference (Insular Life Association Co.
Employees Association v Insular Life Association Co., 37 SCRA 244)
28. Due to the strike and the losses of the corporation, Mr. Tan decided to close the
airline. The union opposed the action of Mr. Tan saying that the assumption of
jurisdiction of the Secretary of Labor prevents Mr. Tan from closing the company.
Decide.
Mr. Tan may close his corporation in the exercise of his management prerogative.
Management prerogative refers to the rights of the management to regulate all aspects of
employment, provided that this is done in good faith and not for the purposes of defeating
the rights of workers under law or collective bargaining agreements.
The provision on Article 264 on the effect of assumption of jurisdiction refers to strike or
lockout. Lockout is a temporary refusal of employer to furnish work due to an industrial or
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labor dispute. Closure contemplated is due to losses of the corporation and is permanent in
nature.
29. Due to financial loses San Miguel Corporation (SMC) shut shown some of its plants
and declared 55 positions as redundant. San Miguel Corp. Employees Union
(SMCEU), herein private respondent union, filed several cases for the retrenched
employees.
During the grievance proceedings, most of the employees were
redeployed while the others accepted early retirement. As a result, only 17
employees remained to proceed with stage 3 of the procedure for the settlement of
the grievances. Upon being informed that if the remaining 17 could not be
redeployed within the specified date their services would be terminated, a
representative of SMCEU declared a deadlock. SMCEU filed a notice of strike before
the NCMB. SMC filed complaint with NLRC praying that the notice of strike should be
dismissed in view of the no-strike clause and order the SMCEU to submit issues in
the notice of strike to grievance and arbitration. Should the notice of strike be
dismissed.
The notice of strike should be dismissed.
In the case under consideration, the grounds relied upon by the private respondent
union are non-strikeable. The issues which may lend substance to the notice of strike filed
by the private respondent union are: collective bargaining deadlock and petitioners alleged
violation of the collective bargaining agreement. These grounds, however, appear more
illusory than real.
Collective Bargaining Deadlock is defined as situation between the labor and the
management of the company where there is failure in the collective bargaining negotiations
resulting in a stalemate. This situation, is non-existent in the present case since there is a
Board assigned on the third level (Step 3) of the grievance machinery to resolve the
conflicting views of the parties. Instead of asking the Conciliation Board composed of five
representatives each from the company and the union, to decide the conflict, petitioner
declared a deadlock, and thereafter, filed a notice of strike. For failing to exhaust all the
steps in the grievance machinery and arbitration proceedings provided in the Collective
Bargaining Agreement, the notice of strike should have been dismissed by the NLRC and
private respondent union ordered to proceed with the grievance and arbitration proceedings.
As regards the alleged violation of the CBA, we hold that such a violation is chargeable
against the private respondent union. In abandoning the grievance proceedings and
stubbornly refusing to avail of the remedies under the CBA, private respondent violated the
mandatory provisions of the collective bargaining agreement.
Abolition of departments or positions in the company is one of the recognized
management prerogatives. Noteworthy is the fact that the private respondent does not
question the validity of the business move of petitioner. In the absence of proof that the act
of petitioner was ill-motivated, it is presumed that petitioner San Miguel Corporation acted in
good faith.
30. Who has jurisdiction over the legality of a strike or lockout?
General Rule: The Labor Arbiter in the Appropriate Arbitration Branch of the NLRC.
However, where the issue of legality is raised in the dispute over which the Secretary
assumed jurisdiction or in dispute certified by the Secretary to the NLRC for compulsory
arbitration, the same may be resolved by the Secretary or Commission, respectively.
If the issue is submitted by the parties to voluntary arbitration, the question may be
resolved by the voluntary arbitrator or panel of voluntary arbitrators (NCMB Primer).
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31. Y corporation, in order to improve the output capacity of their factories, came out
with an order limiting the employees privilege of having their coffee breaks to 5
minutes and the privilege of going to the restrooms to 2 times a day. Mr. A, who is an
avid Starbucks coffee drinker and who is suffering from urinary tract disease did not
like the idea, so he filed a complaint with the Labor Arbiter.
a. If you were the Labor Arbiter what would be your action?
The Labor Arbiter should dismiss the complaint for lack of jurisdiction. This case should
be discussed in the grievance machinery. The grievance machinery has jurisdiction over
cases involving the interpretation and/or implementation of company personnel policies. This
case involves company personnel policies.
b. When the grievance was not resolved, the case was submitted for voluntary
arbitration. Assuming that Mr. A lost in the voluntary arbitration, is it proper for Mr. A
to appeal to the NLRC?
NO. While there is an express mode of appeal from the decision of a Labor Arbiter,
Republic Act No. 6715 is silent with respect to an appeal from the decision of a voluntary
arbitrator. Pursuant to Luzon Development Bank (64 SCRA 918,1995) ruling, the decision
or award of the voluntary arbitrator is appealable to the Court of Appeals in line with the
procedure outlined in Revised Administrative Circular No. 1-95 issued by the Supreme
Court.
In Volkschel Labor Union vs. NLRC, on the settled premise that the judgments of
courts and awards of quasi-judicial agencies must become final at some definite time, this
Court ruled that the awards of voluntary arbitrators determine the rights of parties, hence,
their decisions have the same legal effect as judgment of a court. In Oceanic Bic Division vs.
Romero, this Court ruled that a Voluntary Arbitrator by the nature of her functions acts in a
quasi-judicial capacity. Thus, whether acting solely or in a panel, it enjoys in law the status of
a quasi-judicial agency but independent of, and apart, from the NLRC, since its decisions
are not appealable to the latter but to the Court of Appeals.
32. The company terminated certain employees under a union security clause in the CBA
for disloyalty. The employees filed a case for illegal dismissal with the Labor Arbiter
of the NLRC. The Union alleges that the jurisdiction lies with the grievance machinery
in the CBA. Who has jurisdiction?
The Labor Arbiter has jurisdiction. The reasons are the following:
a. While the interpretation/implementation of CBA provisions fall within the jurisdiction
of the grievance machinery/voluntary arbitration, whenever there is a dispute it shall
fall with the Labor Arbiter;
b. At the time that the employees were terminated, they had already left the union and
were therefore not under the CBA providing for the grievance machinery. Only
disputes between the union and the company are settled in the grievance machinery.
In the present case, the company and the union are united and the dispute is
between the company and the non-union employees. (Sanyo Phils. Workers vs.
Caniares, 211 SCRA 361).
33. Union leaders of Kagandahan Union alleged that the management refused to
implement a provision of the CBA despite a letter written by the union requesting for
the said action. As a result, the union decided to call for a strike on ULP.
a. Comment on the action of the union.
The action of Kagandahan Union is erroneous. According to Art. 261 of the Labor code,
mere violation of the CBA is not ULP. To be considered as ULP, there should be a flagrant
and malicious refusal to comply with the economic provisions of the agreement. In this case,
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since the union only sent one letter, this does not amount to a flagrant and/or malicious
refusal of the company to comply with the CBA.
The proper action for the union is to file a complaint in the grievance machinery. If it
remains unresolved, the case shall be referred to the voluntary arbitrator.
b. Assuming that the union sent 10 letters, which remained unanswered and the
companys act constitute ULP, can the case be referred for VOLUNTARY
ARBITRATION without passing the grievance machinery?
YES. Generally, ULP is subject to compulsory arbitration (Labor Arbiter). But the ULP
can also be submitted to voluntary arbitration upon agreement of the parties to the dispute,
without passing the grievance machinery.
As a general rule, voluntary arbitrators have jurisdiction over unresolved grievances.
However, this unresolved grievance refers to interpretation and implementation of the CBA,
which does not constitute ULP. In case it becomes ULP, this can be referred to voluntary
arbitrators under Art. 262 which grants the voluntary arbitrator power to hear and decide ALL
OTHER LABOR DISPUTES, including ULP and bargaining disputes.
34. Under the CBA, the union cannot strike due to the no-strike clause. Does this
provision cover both ULP strike and economic strike.
A non-strike clause prohibition in a CBA is applicable only to economic strikes. Thus, a
strike due to ULP, is still no violation of the stipulation.
35. What is the Doctrine of MEANS and PURPOSE?
A strike is legal when lawful means concur with lawful purpose. Or, a strike may be legal
at the start but it may be declared illegal when the means used in attaining the same is
illegal.
36. X was hired by Y University to teach on a probationary basis. Attainment of a
permanent status is conditioned upon passing the PBET or Professional Board
Examination for Teacher. X failed to pass the PBET for three times. X University did
not renew her contract of employment on the ground that she failed to qualify as
regular teacher. X filed a complaint for illegal dismissal, payment of backwages, and
reinstatement against Y University. He contends that the prerequisite prescribed by Y
University that teachers pass PBET to attain regular employment has no legal basis
because it is not stipulated in the CBA. Is the contention of X correct?
No. The provision in the CBA does not mention that passing the PBET is a prerequisite
for attaining permanent status as a teacher. Nevertheless, CBA provision must be read in
conjunction with statutory and administrative regulations governing faculty qualifications. It
is settled that an existing law enters into and forms part of a valid contract without the need
for parties expressly making reference to it (Escorpizo v University of Baguio)
37. X, the union president stopped working. This was followed by the walk-out of other
members of the union form their jobs. Y Corporation dismissed the said employees.
The union filed against Y Corp. contends a case for unfair labor practice and illegal
dismissal before the NLRC. Y Corp contends that the employees were dismissed due
to abandonment of work. Is the dismissal of the union members valid due to
abandonment of work?
Abandonment, as a just and valid ground for dismissal means the deliberate and
unjustified refusal of an employee to resume his employment. The burden of proof is on the
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employer to show an unequivocal intent on the part or the employee to discontinue
employment.
For abandonment to be valid ground for dismissal, two elements must be proved: the
intention of an employee to abandon, coupled with an overt act from which it may be
inferred that the employee has no more intent to resume his work.
It must be stressed that abandonment of work does not per se sever the employeremployee relationship. It is merely a form of neglect of duty, which is in turn a just cause for
termination of employment, the operative act that will ultimately put an end to this
relationship is the dismissal of an employee after complying with the procedure prescribed
by law. If the employer does not follow this procedure, there is illegal dismissal (De
Paul/King Philip Customs Tailor, et al. v NLRC)
38. On June 5, 1990, in the course of inspection, a labor inspector interviewed Ms. X
about the operation of Times Cooperative Canteen. As a result of the interview made
without authority from Times, private respondent was dismissed from the service on
the ground of serious misconduct. Ms. X filed a complaint for illegal dismissal,
underpayment of wages, non-payment of wages and 13 th month pay. But, in the
meantime, she sought employment at the University of Northern Philippines MultiPurpose Coop. Ind. (UNP Coop., hereafter). The labor arbiter decided the case in
favor of Ms. X which was later on affirmed by NLRC.
It was alleged by Times in its motion for reconsideration that the income earned by
Ms. X from UNP Coop. During the pendency of the action for illegal dismissal should
be deducted from the total amount of backwages and other benefits awarded.
Whether or not the amount earned by Ms. X during the pendency of the illegal
dismissal case should be deducted from the monetary awards.
The amount earned by Ms. X during the pendency of the illegal dismissal case should
not be deducted from the monetary awards.
Times stance that Ms. Xs earnings elsewhere, if any, be deducted from the backwages
awarded to him, has now completely lost legal and doctrinal support. As held in
Bustamante v NLRC, comformably with the evident legislative intent as expressed in Rep.
Act No. 6715, backwages to be awarded to an illegally dismissed employee, should not, as
a general rule, be diminished or reduce by the earnings derived by him elsewhere during the
period of his illegal dismissal. 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
himself and family, while full backwages have to be paid by the employer as part of the price
or penalty he has to pay for illegally dismissing his employee.
39. Four requisites for losses to be a valid ground for retrenchment
1)
2)
3)
4)
Losses expected should be substantial

Losses must be imminent
The retrenchment must be reasonably necessary to prevent expected losses.
The expected imminent losses (or losses actually incurred) must be proven by sufficient
and convincing evidence (Catatista v NLRC, 247 SCRA 46)
40. May the employer and the employee validly agree to extend the probationary period
beyond six months?
Such an extension may lawfully be agreed upon, despite the seemingly restrictive language
of Article 281. A voluntary agreement extending the original probationary period to favor the
Page 11 of

employee constitute a lawful exception to the statutory limit (Mariwasa Manufacturing, Inc.
v Hon. Leogardo Jr., Jan. 26, 1989)
41. a. What is the rationale for the payment of back wages?
In Bustamante vs. NLRC, it was held that the evident legislative intent as expressed in
R.A. 6715, back wages to be awarded to an illegally dismissed employee, should not, as a
general rule be diminished or reduced by the earnings derived by him elsewhere during the
period of his illegal dismissal. The underlying reason is that the employee, while litigating the
legality of his illegal dismissal, must still earn a living to support himself and his family, while
full back wages have to be paid as part of the price or penalty the employer has to pay for
illegally dismissing his employee.
b. Distinguish between back wages and unpaid wages.
Back wages are the wages that could have been earned by an employee and must be
paid due to illegal dismissal. Unpaid wages are wages earned prior to illegal dismissal but
are not yet paid to the employee.
c. Distinguish between back wages and separation pay.
Payment of back wages is specifically designed to restore an employees income that
was lost because of his unjust dismissal. On the other hand, payment of separation pay is
intended to provide the employee money during the period in which he will be looking for
another employment.
In case of dismissal with a just or authorized cause but there was a violation of the
employees right to procedural due process, back wages and separation pay may be granted
at the same time.
42.
Distinguish the exercise of the visitorial and enforcement powers of the Secretary
of Labor and Employment under Article 128 from that of the adjudicatory power of the
DOLE Regional Directors by virtue of the provisions of Article 129 and that of the Labor
Arbiters pursuant to Article 217 as well as those of Voluntary Arbitrators in the light of
the provisions of Article 261 and 262 of the Labor Code.
How Initiated
Existence of
EmployerEmployee
Relationship
Jurisdictional
Limit
Subject Matter
ART 128
Routine
Inspection
With
ART 129
Complaint
ART 217
Complaint
VA
Complaint
Without
Without
With
no limit
P5,000.00 below No Limit
No limit
Labor Standards
and other Social
Legislations
Money claim
arising out of
employeremployer
relationship
involving any
employee or a
person engaged
in household
service
Art. 261
Interpretation
and
implementation
of CBA and
Interpretation
and Enforcement
of Company
Personnel
Policies.
Art. 262
Other matters
submitted by the
Art 217
All cases and
other claims
involving
employeremployee
relationship
except
otherwise
provided in Art.
128, 129. 261
and 262.
Page 12 of

parties for
voluntary
arbitration.
Court of Appeals
Where to
Appeal
Appeal to Sec.
of
Labor
Appeal to the
appropriate
NLRC Division
Appeal to the
appropriate
NLRC Division
Posting of
Bond
Required if it
involves a
monetary award
or judgment
7) 10 calendar
days
8) Not
Applicable
9) Sec. of Labor
or his duly
authorized
Representative
Not required
Required if it
involves money
Judgment
Not required
5 calendar days
from receipt
Without
10 calendar
days
With or Without
15 days
Regional
Div/Head Office
Labor Arbiter
VA as previously
determined by
the parties in the
CBA or as may
be designated by
the NCMB
Period of
Appeal
Claim for
Reinstatement
Who exercise
the power
Without
43. X, a bachelor, dies after being a member of the SSS for ten (10) years. Death benefits
are claimed by Miss K., his girlfriend of many years and whom he designated as his
beneficiary. The claim is contested by Y, the brother of the deceased. Y argues that he is
preferred over Miss K. Decide with reasons.
Miss K is entitled to the death benefits. Y, the brother of the deceased is not among the
primary or the secondary beneficiaries specified by law. On the other hand, since the
deceased had no blood relatives qualified to be his primary or secondary beneficiaries, he
could designate any other person, like Miss K as his beneficiary.
44. Mr. Y worked in the government for 10 years before resigning and working in a private
corporation. He subsequently retired. May his contribution under the GSIS be
credited to the SSS record?
YES. Under R.A. 7699 instituting a LIMITED PORTABILITY SCHEME IN THE SOCIAL
SECURITY SYSTEM, a covered employee or worker who transfers employment from one
sector (public or private sector) to another, is employed in both sectors, shall have his
creditable services or contributions in both systems credited to his service or contribution
record in each of the systems and shall be totalized for purposes of old age, disability,
survivorship and other benefits in case the covered member does not qualify for such
benefits in either or both systems without totalization, Provided, however, that overlapping
periods of membership shall be credited only once for purposes of totalization.
The theory of portability and totalization schemes as regards employees creditable
contributions to the GSIS and the SSS means that, the contributions of an employee with
the afore named government agencies could be transferred to either and shall be computed
in the totality for purposes of the availment of benefits by an employee either under the
GSIS and SSS laws.
45. What are the benefits under the SSS?
The SSS law provides not only retirement benefits but also death and funeral benefits,
permanent disability benefits, sickness benefits and maternity leave benefits.
Page 13 of

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SAN BEDA COLLEGE OF LAW

2003 CENTRALIZED BAR OPERATIONS

2. (a) A 3-star hotel would like to have an apprenticeship program covering

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