Professional Documents
Culture Documents
LABOR
LAW
Prepared by: Dean Ana Maria D. Abad and
Adamson University
Of these four tests however, the most important test is the element of
control, which has been defined as [MEMORIZE THIS] one where
the employer has reserved the right to control not only the work
to be achieved, but the manner and method by which such work
is to be achieved.. (LVN Pictures vs. LVN Musicians Guild, 1 SCRA
132).
Page | 1
While respondent and SSCP no longer had any legal relationship with the
termination of the Agreement, petitioners remained at their post securing the
premises of respondent while receiving their salaries, allegedly from SSCP.
Clearly, such a situation makes no sense, and the denials proffered by
respondent do not shed any light to the situation. It is but reasonable to
conclude that, with the behest and, presumably, directive of respondent,
petitioners continued with their services. Evidently, such are indicia of
control that respondent exercised over petitioners. With the conclusion that
respondent directed petitioners to remain at their posts and continue with
their duties, it is clear that respondent exercised the power of control over
them; thus, the existence of an employer-employee relationship.
Distinguish between rules that fix methodology vs. rules that are
mere guidelines.
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3.
5.
7.
Paradigm shift towards mutual cooperation - It is high time that employer and
employee cease to view each other as adversaries and instead recognize that there is a
symbiotic relationship, wherein they must rely on each other to ensure the success of the
business. (Toyota Motor Phils. Workers vs. NLRC, 537 SCRA 171)
B. MANAGEMENT PREROGATIVES:
1. GENERAL PRINCIPLE: Management is free to regulate, according to its discretion and
judgment, all aspects of employment, including hiring, work assignments, working
methods, time, place and manner of work, processes to be followed, supervision of
workers, working regulations, transfer of employees, work supervision, lay-off of
workers, and discipline, dismissal and recall of workers. Julies Bakeshop vs. Arnaiz,
666 SCRA 1010 [2012]; see also: Reyes-Rayal vs. Philippine Luen Thai Holdings, 676
SCRA 183 [2012].
2. 2013-2015 CASES:
Page | 5
G.J.T. Rebuilders Machine Shop et al. vs. Ricardo Ambos et. al., G.R. No. 174184, 28
January 2015. Although the employer may close its business as an exercise of
management prerogative that courts cannot interfere with, it failed to sufficiently prove
its alleged serious business losses. Thus, it must pay respondents their separation pay
equivalent to one-month pay or at least one-half-month pay for every year of service,
whichever is higher.
Mirant Philippines vs. Joselito A. Caro, G.R. No. 181490, 23 April 2014. While the
adoption and enforcement by petitioner corporation of its Anti-Drugs Policy is
recognized as a valid exercise of its management prerogative as an employer, such
exercise is not absolute and unbridled. In the exercise of its management prerogative, an
employer must therefore ensure that the policies, rules and regulations on work-related
activities of the employees must always be fair and reasonable and the corresponding
penalties, when prescribed, commensurate to the offense involved and to the degree of
the infraction. The Anti-Drugs Policy of Mirant fell short of these requirements.
Royal Plant Workers Union vs. Coca-Cola Bottlers Phils., G.R. 198783, 15 April 2013 - Question: Is the decision of Coca-Cola Bottlers to take out the chairs of employees in
an assembly line in exchange for additional periods of rest/breaks, a valid exercise of
management prerogatives, or is it a diminution of benefit which cannot be withdrawn
without employees consent?
Answer: For Management. Valid exercise of management prerogatives. The decision to
remove the chairs was done with good intentions as Company wanted to avoid instances
of operators sleeping on the job while in the performance of their duties and
responsibilities and because of the fact that the chairs were not necessary considering
that the operators constantly move about while working. In short, the removal of the
chairs was designed to increase work efficiency. Hence, companys exercise of its
management prerogative was made in good faith without doing any harm to the
workers rights.
The rights of the Union under any labor law were not violated. There is no law that
requires employers to provide chairs for bottling operators. The CA correctly ruled that
the Labor Code, specifically Article 132 thereof, only requires employers to provide
seats for women. No similar requirement is mandated for men or male workers. It must
be stressed that all concerned bottling operators in this case are men.
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The Union should also not complain too much about standing and moving about for one
and one-half (1 ) hours because studies show that sitting in workplaces for a long time
is hazardous to ones health. The report of VicHealth, Australia disclosed that
prolonged workplace sitting is an emerging public health and occupational health issue
with serious implications for the health of our working population. Importantly,
prolonged sitting is a risk factor for poor health and early death, even among those who
meet, or exceed, national activity guidelines.
C. KINDS OF EMPLOYMENT
1.
REGULAR EMPLOYEES those who are hired for activities which are necessary
or desirable in the usual trade or business of the employer.
2015 CASES:
Nelson Begino, et al., vs. ABS-CBN , etc., G.R. No. 199166, 20 April 2015. -- The
Court finds that, notwithstanding the nomenclature of their Talent Contracts and/or
Project Assignment Forms and the terms and conditions embodied therein,
petitioners are regular employees of ABS-CBN. As cameraman/editors and
reporters, petitioners were performing functions necessary and essential to ABSCBNs business of broadcasting television and radio content. It matters little that
petitioners services were engaged for specified periods for TV Patrol Bicol and that
they were paid according to the budget allocated therefor. Respondents repeated
rehiring of petitioners for its long-running news program positively indicates that the
latter were ABS-CBNs regular employees.
Romeo Basau, et al., vs. Coca-Cola Bottlers Philippines, G.R. No. 174365-66, 04
February 2015. -- Route helpers are regular employees; their nature of work are
necessary and desirable in the usual trade or business of the employer; hence,
entitled to security of tenure.
2.
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3.
TERM EMPLOYEES those who are hired for a specific period, the arrival of the
date specified in the contract of which automatically terminates the employeremployee relationship. (Brent School vs. NLRC, 181 SCRA 702 [1989], reiterated in
AMA Computer Paranaque vs. Austria, 538 SCRA 438 [November 2007]).
3.1 A contract of employment for a definite period terminates by its own terms at the
end of such period
3.2 The decisive determinant in term employment should not be the activities that
the employee is called upon to perform, but the day certain agreed upon by the
parties for the commencement and the termination of their employment relation.
3.3 Criteria for fixed term employment contracts so that the same will not circumvent
security of tenure:
A. The fixed period of employment was KNOWINGLY AND
VOLUNTARILY AGREED UPON by the parties, without any force,
duress or improper pressure being brought to bear upon the
employee and absent any other circumstances vitiating his consent;
AND
B. It satisfactorily appears that the employer and employee DEALT WITH
EACH OTHER ON MORE OR LESS EQUAL TERMS with no moral
dominance whatever being exercised by the former on the latter.(PNOC vs.
NLRC [G.R. No. 97747, 31 March 1993] and Brent School vs. NRLC, 181
SCRA 702]
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The length of service or the re-hiring of construction workers on a project-toproject basis does not confer upon them regular employment status, since their
PALS BAR OPS PILIPINAS 2016
In this case, Gadia is properly a project employee: (a) Sykes BPO informed the
petitioner of their employment status at the time of their engagement, as
evidenced by their employment contracts which provided that they were hired in
connection with the Alltel Project, and that their positions were project-based
and as such is co-terminus to the project; and (b) Sykes duly submitted an
Establishment Employment Report and an Establishment Termination Report to
the DOLE Makati Field Office regarding the cessation of the Alltel Project and
the list of employees affected thereby. Case law deems such submission as an
indication that the employment was indeed project-based.
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.
Omni Hauling Services, Inc., et al vs. Bernardo Bon, et al., G.R. No. 199388,
03 September 2014. - A project employee is assigned to a project which begins
and ends at determined or determinable times (Goma v. Pamplona Plantation,
Incorporated, 579 Phil. 402, 412 [2008]). Unlike regular employees who may
only be dismissed for just and/or authorized causes under the Labor Code, the
services of employees who are hired as project employees may be lawfully
terminated at the completion of the project. (GMA Network, Inc. v. Pabriga,
G.R. No. 176419, November 27, 2013, 710 SCRA 690,703).
In this case, records are bereft of any evidence to show that respondents were
made to sign employment contracts explicitly stating that they were going to be
hired as project employees, with the period of their employment to be coterminus with the original period of Omnis service contract with the Quezon
City government. Neither is petitioners allegation that respondents were duly
apprised of the project-based nature of their employment supported by any other
evidentiary proof. Thus, the logical conclusion is that respondents were not
clearly and knowingly informed of their employment.
MacArthur Malicdem and Hermenigildo Flores vs. Marulas Industrial
Corporation, et al., G.R. No. 204406, 26 February 2014. -- Malicdem and
Flores were hired as extruder operators (operate the machines that produces the
sacks) for a period of one (1) year under a Project Employment Contract
which stipulates a probationary period of six (6) months from its
commencement, wherein they would be reclassified as project employees with
respect to the remaining period of the effectivity of the contract. Every year
thereafter, they would sign a Resignation/Quitclaim in favor of Marulas a day
after their contracts ended, then sign another contract for another year, and so
on. Malicdem and Flores are regular employees for the following reasons:
a. An employee who is allowed to work after a probationary period
shall be considered a regular employee. (Article 281, Labor Code.)
b. A project or work pool employee, who has been continuously, as
opposed to intermittently, rehired by the same employer for the
same tasks or nature of tasks; and whose task are vital, necessary
and indispensable to the usual trade or business of the employer,
must be deemed a regular employee. (Maraguimot, Jr. v. NLRC, 248
Phil. 580 [1998].)
c. There is no actual project; hence, Marulas cannot invoke the
exception in Art. 280 of the Labor Code.
5.
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Gapayao vs. Fulo and SSS, G.R. No. 193493, 13 June 2013 (Sereno, C.J.) -- Farm
workers generally fall under the definition of seasonal employees. We have
consistently held that seasonal employees may be considered as regular employees.
Regular seasonal employees are those called to work from time to time. The nature
of their relationship with the employer is such that during the off season, they are
temporarily laid off; but reemployed during the summer season or when their
services may be needed. They are in regular employment because of the nature of
their job, and not because of the length of time they have worked.
Universal Robina Sugar Milling Corporation and Rene Cabati, G.R. No. 186439. 15
January 2014. -- The respondents are neither project, seasonal nor fixed-term
employees, but regular seasonal workers of URSUMCO.xxx THEIR SEASONAL
WORK, HOWEVER, DOES NOT DETRACT FROM CONSIDERING THEM IN
REGULAR EMPLOYMENT since in a litany of cases, this Court has already
settled that seasonal workers who are called to work from time to time and are
temporarily laid off during the off-season are not separated from the service in said
period, but are merely considered on leave until re-employment
Be this as it may, REGULAR SEASONAL EMPLOYEES, LIKE THE
RESPONDENTS IN THIS CASE, SHOULD NOT BE CONFUSED WITH THE
REGULAR EMPLOYEES OF THE SUGAR MILL such as the administrative or
office personnel who perform their tasks for the entire year regardless of the season.
The NLRC, therefore, gravely erred when it declared the respondents regular
employees of URSUMCO without qualification and that they were entitled to the
benefits granted, under the CBA, to URSUMCOS regular employees.
Hacienda Cataywa, et al. vs. Rosario Lorezo, G.R. No. 179640, 18 March 2015. -Farm workers generally are seasonal workers. Seasonal employees may become
regular employees when they are called to work from time to time. They acquire
regular employment because of the nature of their work, not because of the length
of time they have worked. However, seasonal workers who work only for one
season, cannot become regular employees. (Hacienda Fatima vs. NFSW, 444 Phil.
587[2003].) Respondent performed hacienda work, such as planting sugarcane
point, fertilizing, weeding, replanting dead sugarcane fields and routine
miscellaneous hacienda work. Thus, he is considered a regular seasonal worker.
Since cultivation of sugarcane is only for six months, he cannot be considered a
regular employee during the months when there is no cultivation.
6.
CASUAL EMPLOYEES those who are hired to perform work or service which is
merely incidental to the business of the employer. Any casual employee who has
rendered at least one (1) year of service, whether it be continuous or broken, shall
be considered a regular employee with respect to the activity for which he is
employed, and his employment shall continue while such activity exists.
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9.
FRAMEWORK:
General rule: Employment is deemed regular
Exception:
Probationary
Term
Project
Seasonal
Casual
Exception to exception:
Probationary employees allowed to work after probn. period
Casual workers rendering service for more than one year
Term employee allowed to work after term has expired/ended
Project employee allowed to work after project without any contract; or project
employee allowed to work project after project but no termination reports.
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Fuji Television Network, Inc. vs. Arlene S. Espiritu G.R. No. 204944-45,
03
December 2014 citing DOLE D.O. 18-A [2011], sec. 5 (b); Sonza vs. ABS-CBN,
supra, see page __ hereof. -- There are different kinds of independent contractors:
those engaged in legitimate job contracting, and those who have unique skills and
talents that set them apart from ordinary employees. Since no employer-employee
exist between independent contractors and their principals, their contracts are
governed by the Civil Code provisions on contracts and other applicable laws.
ADAS NOTE: In the above 2014 case of Fuji Television Network vs. Arlene Espiritu, the
Supreme Court made an exhaustive distinction between Independent Contractor vs. Fixedterm employment and/or regular employment. The main factor that distinguishes
independent contracting from fixed-term or regular employment is that of CONTROL.
Where the alleged employer has no actual control over the conduct of the work of the
complainant, then there is no employer-employee relationship. However, if control over
the conduct of work can be established, then this is one of fixed-term or regular
employment depending on the circumstances of the case..
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D.2
OR
D.3
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4.3 The right of management to outsource parts of its operations is within the
purview of management prerogative, but said right may limited by law, CBA
provisions or the general principles of fair play and justice. Goya Inc. vs. Goya
Employees Union FFW, G.R. No. 170054 21 January 2013.
4.4
The law and its implementing rules recognize that management may rightfully
exercise its prerogatives in determining what activities may be contracted out,
REGARDLESS OF WHETHER SUCH ACTIVITY IS PERIPHERAL OR
CORE IN NATURE. (Alviado et. al. vs. Procter & Gamble, and Promm
Gemm, G.R. No. 160506, 09 March 2010, Del Castillo, J).
4.5
4.6 General Rule: The DOLE certification simply gives rise to a presumption that
the contractor is a legitimate one. It does NOT prohibit the Supreme Court, in
the exercise of its plenary judicial powers of review, to determine sufficiency of
evidence other than the certification, in ruling that one is, or is not, an
independent contractor. RAMY GALLEGO VS. BAYER PHILS. G.R. No.
179807, 31 July 2009,
Exception: Even where there is a DOLE Certificate of Registration, Supreme
Court may still may consider other factors in the determination of whether or not
a contractor complies with the requisite elements of a legitimate sub-contracting
as enumerated in the Labor Code and the Dept. Order No. 18-02. This may be
done, especially in instances where there are contradictory findings between the
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Court of Appeals and the NLRC/Labor Arbiter. [COCA COLA BOTTLERS VS.
RICKY DELA CRUZ, ET AL. (G.R. No. 184977, 07 December 2009) and
COCA COLA BOTTLERS VS. AGITO ET AL (G.R. 179546, 13 Feb 2009, J.
Chico-Nazario]
4.7 IMPORTANT VELASCO CASE: Fonterra Brands Phils. Vs. Largado and
Estrellado, G.R. No. 205300, 18 March 2015
Question: Whether or not fixed-term employees who were repeatedly hired by a
contractor, but had resigned and transferred to another contractor to work with
the same principal, may claim regular employment status and illegal dismissal?
Answer: NO. Not regular ees. As correctly held by the Labor Arbiter and the
NLRC, the termination of respondents employment with Zytron was brought
about by the cessation of their contracts with the latter. We give credence to the
Labor Arbiters conclusion that respondents were the ones who refused to renew
their contracts with Zytron, and the NLRCs finding that they themselves
acquiesced to their transfer to A.C. Sicat.
By refusing to renew their contracts with Zytron, respondents effectively
resigned from the latter. Resignation is the voluntary act of employees who are
compelled by personal reasons to dissociate themselves from their employment,
done with the intention of relinquishing an office, accompanied by the act of
abandonment.
Here, it is obvious that respondents were no longer interested in continuing their
employment with Zytron. Their voluntary refusal to renew their contracts was
brought about by their desire to continue their assignment in Fonterra which
could not happen in view of the conclusion of Zytrons contract with Fonterra.
Hence, to be able to continue with their assignment, they applied for work with
A.C. Sicat with the hope that they will be able to continue rendering services as
TMRs at Fonterra since A.C. Sicat is Fonterras new manpower supplier.
Art. 1708. The laborers wages shall not be subject to execution or attachment except
for debts incurred for food, shelter, clothing, and medical attendance.
Art. 1709. The employer shall neither seize nor retain any tool or other articles
belonging to the laborer.
SECTOR/
INDUSTRY
BASIC
WAGE
COLA
INTEGR
ATION
NEW
BASIC
WAGE
NEW
COLA
NEW
MINIM
UM
WAGE
RATES
Non-agricultural
(Incl hospitals
P466.00
P15.00
P481.00
P10.00
P491.00
with 100 bed
capacity or less)
Agriculture
429.00
15.00
444.00
10.00
454.00
(plantation and
non-plantation
Retail/Service
establishmts
429.00
15.00
444.00
10.00
454.00
employing 15
persons or less
Manufacturing
establishments
429.00
15.00
444.00
10.00
454.00
E
regularly
X less
employing
C workers
than 10
L
USIONS:
Kasambahay
Persons in the personal service of another, including family drivers
Workers registered in Barangay Micro-Business Enterprises (BMBE)
with Certificates of Authority per R.A. 9178
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Hours of work: Hours of worked shall include: (a) all time during which an
employee is required to be on duty or to be at the prescribed workplace, and
(b) all time during which an employee is suffered or permitted to work. The
normal working hours shall be no more than eight (8) hours a day. Meal
PALS BAR OPS PILIPINAS 2016
and rest period: meal break of less than one (1) hour and short rest periods
shall be considered compensable working time
Holiday pay. -- The employee is entitled to the payment of his regular daily
basic wage (100%) during said holidays, even if the worker did not report
for work on said days; PROVIDED THAT HE WAS PRESENT OR WAS
ON LEAVE OF ABSENCE WITH PAY ON THE WORK DAY
IMMEDIATELY PRECEDING THE HOLIDAY. If the employee was
suffered to work during the said holidays, they will be entitled to payment of
holiday premium of 200% of his basic wage (100% of basic wage PLUS
100%).
a.
b.
c.
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d.
2015 CASE: Emer Milan, et al. vs. NLRC, et al., G.R. No. 202961, February
04, 2015. -- An employer can withhold terminal pay and benefits pending the
employees return of its properties. An employer is allowed to withhold
terminal pay and benefits pending the employees return of its properties. The
return of the propertys possession became an obligation or liability on the
part of the employees when the employer-employee relationship ceased. The
NLRC has jurisdiction to determine, preliminarily, the parties right over a
property, when it is necessary to determine an issue related to rights or claims
arising from an employer-employee relationship.
Requisites for voluntary employer practice such that the same cannot be
unilaterally withdrawn anymore: (a) It should have been practiced over a
long period of time; and (b) It must be shown to have been consistent and
deliberate. (Sevilla Trading Company vs. Semana, 428 SCRA 239 [2004],
citing Globe Mackay Cable and Radio Corp. vs. NLRC, 163 SCRA 71
[1988].
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b. Davao Integrated Port Stevedoring Services vs. Abarquez (220 SCRA 197
[1983]): three (3) years and nine (9) months
c. Sevilla Trading Company vs. Semana, (428 SCRA 239 [2004]: two (2) years.
Answer:
giving of the benefit is done over a long period of time, and that it has
been made consistently and deliberately. Jurisprudence has not laid down
any hard-and-fast rule as to the length of time that company practice
should have been exercised in order to constitute voluntary employer
practice. The common denominator in previously decided cases appears
to be the regularity and deliberateness of the grant of benefits over a
significant period of time. It requires an indubitable showing that the
employer agreed to continue giving the benefit knowing well that the
employees are not covered by any provision of the law or agreement
requiring payment thereof. In sum, the benefit must be characterized by
regularity, voluntary and deliberate intent of the employer to grant the
benefit over a considerable period of time.
All employers are required to pay all their rank-and-file employees a 13th month
pay not later than December 24 of every year.
5. Employers of those who are paid on commission, boundary, or task basis, and
those who are paid a fixed amount for performance of a specific work,
irrespective of the time consumed in the performance thereof.
Exception: Where the workers are paid on a piece-rate basis, in which case the
employer shall grant the required 13th month pay to such workers.
3.
Piece Rate employees who are paid a standard amount for every
piece or unit of work produced that is more or less regularly
replicated, without regard to the time spent in producing the same.
BONUS
3.1 Nature of a bonus: a prerogative, not an obligation. -- The matter of giving a bonus
over and above the workers lawful salaries and allowances is entirely dependent on
the financial capability of the employer to give it. (Traders Royal Bank vs. NLRC,
189 SCRA 274 [1990]).
EXCEPTION: When demandable under a contract.
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4. HOURS OF WORK.
4.1 Hours of worked shall include: (a) all time during which an employee is required to
be on duty or to be at the prescribed workplace, and (b) all time during which an
employee is suffered or permitted to work. (Art. 84, Labor Code; See also Rada vs.
NLRC, 205 SCRA 69 [1992].)
4.2 Rest period of short duration during working hours shall be counted as hours
worked. (Art. 84, Labor Code.) Example: coffee break of 15 minutes; meal period
of less than one hour, e.g., 30 minutes.
4.3 Exemptions. (See Art. 82, Labor Code.) . -- The following employees are not
covered by the Labor Code provisions on hours of work:
a)
b)
c)
d)
e)
f)
5.
Government employees;
Managerial employees (International Pharmaceuticals, Inc. vs. NLRC, 287
SCRA 213 [1998].);
Field Personnel;
Members of the employer who are dependent upon him for support;
Domestic helpers and persons in the personal service of another;
Workers who are paid by results, e.g., piece workers. (Red V Coconut
Products, Ltd. vs. CIR, 17 SCRA 553 [1966], citing Lara vs. del Rosario, 94
Phil. 780) (Note: Reason is that workers who are paid by the result are
compensated on the basis of the work completed, and NOT in respect of the
time spent working on it).
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company to attend to the needs of the companys guest and other persons
availing of said facilities, then they are NOT household helpers as defined by
law but employees of the company. (Apex Mining Company, Inc. vs. NLRC,
ibid.)
BENEFITS ACCORDED TO HOUSE-HELPERS (Book III, Title 3, Chapter
III, LC)
1. Not to be assigned to non-household work;
2. Reasonable compensation (minimum cash wage);
3. Lodging, food and medical attendance;
4. If under 18 years, an opportunity for elementary education (cost of which
shall be part of househelpers compensation);
5. Contract for household service shall not exceed 2 years (renewable from
year to year);
6. Just and humane treatment;
7. Right not to be required to work for more than 10 hrs. a day (if the
househelper agrees to work overtime and there is additional compensation,
the same is permissible);
8. Right to 4 days vacation each month with pay (if the helper does not ask for
the vacation, the number of vacation days cannot be accumulated, he is
only entitled only to its monetary equivalent);
9. Funeral expenses must be paid by the employer if the house-helper has no
relatives with sufficient means in the place where the head of the family
lives;
10. Termination only for just cause;
11. Indemnity for unjust termination of service;
12. Employment certification as to nature and duration of service and
efficiency and conduct of the house-helper.
5.2
Homeworker, defined.-- one who performs in or about his home any processing
of goods or materials, in whole or in part, which have been furnished directly or
indirectly, by an employer and thereafter to be returned to the latter. (Book III,
Rule XIV, Section 1 of the Omnibus Rules Implementing the Labor Code.)
HOUSEHELPERS
Minister to the personal needs and
comfort of his employer in the latters
home
HOME WORKERS
Performs in or about his own home any
processing or fabrication of goods or
materials, in whole or in part, which have
been furnished directly or indirectly, by
an employer and sold thereafter to the
latter.
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6.
2.
The employment does not endanger the childs life, safety, health and morals;
The employment does not impair the childs normal development;
The employer parent or legal guardian provides the child with the primary
and/or secondary education prescribed by the Department of Education
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APPRENTICESHIP
NATURE
highly-technical
PERIOD
COMITMT
TO HIRE
At option of
employer
LEARNERSHIP
semi-skill; nonapprenticeable
At option of learner
WAGES
DOLE
Page | 26
May be paid or
Approval
DEDUCTIO
N for
Expenses
None.
8. DISABLED WORKERS
8.1
8.2
Qualified disabled employees shall be subject to the same terms and conditions
of employment and the same compensation, privileges, benefits, fringe
benefits, incentives or allowances as a qualified able-bodied person.
1. Private entities that employ disabled persons who meet the required skills or
qualifications either as regular employee, apprentice or learner, shall be entitled
to an additional deduction from their gross income, equivalent to 25% of the
total amount paid as salaries and wages to disabled persons; Provided, that the
following are complied with:
a. Presentation of proof certified by DOLE that disabled persons are
under their employ; and
b. Disabled employee is accredited with DOLE and DOH as to his
disability, skills and qualifications.
2. Private entities that improve or modify their physical facilities to provide
reasonable accommodation for disabled persons shall also be entitled to an
additional deduction from their taxable income, equivalent to 50% of the direct
costs of the improvements or modifications. This does not apply to
improvements required under B.P. Blg. 344.
9.3 CASES:
a) Question: Is an employee who was terminated for authorized causes
(redundancy), also entitled to avail of early retirement benefits? Otherwise
stated, may an employee be paid both retirement and separation pay benefits?
Answer: YES, as a general rule. Exception: When there is an explicit
provision in the company rules prohibiting the availment of both .
Goodyear vs. Marina Angus, G.R. No. 185499, 14 November 2014. -Employees are legally entitled to recover both separation pay and retirement
benefits in the absence of a specific prohibition in the Retirement Plan or
CBA. In such an instance where both the company rules or CBA and the
retirement plan are silent, an employee is not barred from claiming his early
retirement benefits, even if he/she had already received his retrenchment pay,
and has executed a Quitclaim to that effect. This must be so because he is
legally entitled thereto as a general rule.
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b.
DIFFERENCE BETWEEN VOLUNTARY AND INVOLUNTARY
RETIREMENT.
Voluntary retirement cuts employment ties leaving no residual employer
liability; involuntary retirement amounts to a discharge, rendering the
employer liable for termination without cause. The employees intent is the
focal point of analysis. In determining such intent, the fairness of the process
governing the retirement decision, the payment of stipulated benefits, and the
absence of badges of intimidation or coercion are relevant parameters. (ibid.)
2015 CASE: Zenaida Paz vs. Northern Tobacco Redrying Co., Inc., et al.,
G.R. No. 199554,
18 February 2015. -- If optional retirement is
involuntary, the employee shall be deemed to be illegally dismissed.
c.
shipboard employee, upon his written request, may retire from service if he
has reached the eligibility age of 60 years. In this case, the option to retire
lies with the employee. Records show that respondent was only 41 years old
when he applied for optional retirement, which was 19 years short of the
required eligibility age. Thus, he cannot claim optional retirement benefits as
a matter of right.
e.
General Rule: Any employee may be eligible to join and be a member of a labor
union, beginning on his first day of service, whether employed for a definite period
or not. (Article 277 [c], Labor Code; See also: UST Faculty Union vs. Bitonio)
2.2
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Managerial employees
Confidential employees
Government Employees, including GOCCs WITH original charter
3.
(e) Four copies of the constitution and by-laws of the applicant union,
minutes of its adoption or ratification, and the list of the members who
participated in it.
3.2.2 Local or a of Chapter Federations/National Unions will acquire legal
personality only for the purpose of filing a petition for certificate of
registration upon issuance of the CHARTER CERTIFICATE by the
registered Federation/National Union. The Chapter/Local shall be entitled
to all other rights appurtenant thereto ONLY upon submission of the
following other documents.
ART. 234-A. Chartering and Creation of a Local Chapter. - A duly
registered federation or national union may directly create a local chapter
by issuing a charter certificate indicating the establishment of the local
chapter. The chapter shall acquire legal personality only for purposes of
filing a petition for certification election from the date it was issued a
charter certificate. The chapter shall be entitled to all other rights and
privileges of a legitimate labor organization only upon the submission of
the following documents in addition to its charter certificate:
(a) The names of the chapters officers, their addresses, and the principal
office of the chapter; and
(b) The chapters constitution and by-laws: Provided, That where the
chapters constitution and by-laws are the same as that of the
federation or the national union, this fact shall be indicated
accordingly.
The additional supporting requirements shall be certified under oath by the
secretary or treasurer of the chapter and attested by its president.
ADAS NOTES: For purposes of filing a petition for certification
election, the charter certificate is already sufficient to vest the local chapter
with legal personality. In short, once a charter certificate is issued by the
Federation, the LLO may already file a petition for CE. However, the local
chapter/union will not be considered to have legal personality for purposes
of other rights and privileges (e.g., to bargain, to enter into contracts, etc.)
UNLESS the other documents (a) and (b) as adverted
above are
SUBMITTED to the DOLE Regional Office or Bureau of Labor Relations,
and a certificate of registration having been issued thereafter.
3.3
3.4
There are ONLY THREE GROUNDS allowed, whereas the old law provides for
at least seventeen (17) different grounds for cancellation.
ART. 239. Grounds for cancellation of union registration. - The following
may constitute grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws or amendments
thereto, the minutes of ratification, and the list of members who took part in
the ratification;
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3.7
4. 2014-2015 CASES:
4.1
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1. Bargaining unit, defined. - A "bargaining unit" has been defined as a group of employees
of a given employer, comprised of all or less than all of the entire body of employees,
which the collective interest of all the employees, consistent with equity to the
employer, indicate to be the best suited to serve the reciprocal rights and duties of the
parties under the collective bargaining provisions of the law. (Golden Farms vs. Calleja,
supra.)
2. What is a proper bargaining unit?
A proper bargaining unit may be said to be a group of employees of a given
employer, comprised of all or less than all of the entire body of employees, which
the collective interest of all of the employees indicate to be best suited to serve
the reciprocal rights and duties of the parties under the Collective bargaining
provisions of the law. (Golden Farms vs. Calleja, supra.) It is that group of jobs
that serves as the election constituency in the enterprise.
3. General Rule: community or mutuality of interests.
The most efficacious bargaining unit is one which is comprised of workers
enjoying community of interests. This is so because the basic test of a
bargaining units acceptability is whether it will best assure to all employees
concerned of the exercise of their collective bargaining rights.
Factors to be considered: (a) similarity in scale and manner of determining earnings;
(b) similarity in employment benefits, hours of work, other terms and conditions of
employment; (c) similarity in kind of work performed; (d) similarity in qualifications,
skills, training of employees; (e) frequency of contact or interchange between
employees; (f) geographic proximity; (g) continuity or integration of production
processes; (h) common supervision and determination of collective bargaining; etc.
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Art. 258-A, LC. -- In all cases, whether the petition for certification
election is filed by an employer or a legitimate labor organization, the
employer shall not be considered a party thereto with a concomitant right
to oppose a petition for certification election. The employers participation
in such proceedings shall be limited to: (1) being notified or informed of
petitions of such nature; and (2) submitting the list of employees during
the pre-election conference should the Med-Arbiter act favorably on the
petition
Exception: Where the employer has to file a petition for certification election pursuant to
Art. 258 of the Labor Code because it was requested to bargain collectively. Even then,
it becomes a neutral bystander.
With duly registered CBA - only during freedom period (60 days
prior to the expiration of the 5-yr representation term of the
CBA)
3.2 Denial of the petition; Grounds. The Med-Arbiter may dismiss the petition
on any of the following grounds:
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4.2 With Bureau of Labor Relations, for the following complaints - Complaints or petitioners involving federations, national or industry unions,
trade union centers and their chartered locals, affiliates or member
organizations, its officers or member organizations. (Note, if filed with the
Regional Office, the complaint/petition shall stil be heard and resolved by
the Bureau).
When two or more petitions involving the same parties and the same causes of
action are filed, the same shall be automatically consolidated.
the
an
vs.
No.
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o Union Shop. There is union shop where an employer may hire new
employees, but once they become regular employees, they are required to join
the union within a certain period as a condition for their continued
employment. (PICOP Resources, Inc. (PRI) vs. Anacleto L. Taneca et. al.,
G.R. No. 160828, 09 August 2010).
o Modified Union Shop Agreement. -- A union shop agreement with a
provision exempting certain employee groups from its operation, such
as old employees already with the company at a designated date, key
personnel, persons with religious scruples in joining labor unions.
(Ibid.)
o Maintenance of membership shop. -- There is maintenance of membership
shop when employees, who are union members as of the effective date of the
agreement, or who thereafter become members, must maintain union
membership as a condition for continued employment until they are promoted
or transferred out of the bargaining unit, or the agreement is terminated.
(PICOP Resources, Inc. (PRI) vs. Anacleto L. Taneca et. al., G.R. No.
160828, 09 August 2010; see also: Bank of Philippine Islands vs. BPI
Employees Union Davao Chapter Federation of Unions in BPI Unibank,
G.R, No. 164301, 10 August 2010, En Banc.)
o Open shop -- An arrangement on recruitment whereby an employer may hire
any employee, union member or not, but the new employee must join the
union within a specified time and remain a member in good standing.
(LABSTAT Updates of the Department of Labor and Employment, Vol. 1 No.
12, August 1997).
o Agency shop -- An arrangement whereby non-members of the contracting
union must pay the union a sum equal to union dues known as agency fees for
the benefits they received as a consequence of the bargaining negotiations
effected through the efforts of the union. (LABSTAT Updates of the
Department of Labor and Employment, Vol. 1 No. 12, August 1997).
b.
c.
5. 2010-2014 CASES:
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5.1
Philippine Electric Corporation (Philec) vs. CA, G.R. No. 168612, 10 December
2014. -- nature of collective bargaining agreements; training allowance
increases. The refusal by management of the Unions demand for payment of
training allowance is not malicious or flagrant refusal as to be considered as ULP.
Management had questions on the applicability of the training allowance to Lipo
and Ignacio, who had already been promoted as supervisory employees.
Considering that at the time that they were selected for training, Lipio and Ignacio
were admittedly rank-and-file employees and as such, entitled to the payment of the
increased training allowances under the new CBA. Thus, it is clear that training is a
condition precedent for promotion. Selection for training does not mean automatic
transfer OUT of the bargaining unit of the rank-and-file.
5.2 IMPT 2014 ULP CASE NOT ASKED IN 2015 BAR: WHERE THE EMPLOYER
HAS ORCHESTRATED ACTIVITIES TO SUBVERT CERTIFICATION
ELECTIONS. (T & H Shopfitters Corporation/ Gin Queen Corporation et. al. vs. T
& H Shopfitters Corporation/Gin Queen Workers Union, et. al., G.R. No. 191714,
26 February 2014, J. Mendoza).
The various questioned acts of petitioners show interference in the right to selforganization by the employees, namely: 1) sponsoring a field trip to Zambales for
its employees, to the exclusion of union members, before the scheduled certification
election; 2) the active campaign by the sales officer of petitioners against the union
prevailing as a bargaining agent during the field trip; 3) escorting its employees
after the field trip to the polling center; 4) the continuous hiring of subcontractors
performing respondents functions; 5) assigning union members to the Cabangan
site to work as grass cutters; and 6) the enforcement of work on a rotational basis
for union members.
Indubitably, the various acts of petitioners, taken together, reasonably support an
inference that, indeed, such were all orchestrated to restrict respondents free
exercise of their right to self-organization. The Court is of the considered view that
petitioners undisputed actions prior and immediately before the scheduled
certification election, while seemingly innocuous, unduly meddled in the affairs of
its employees in selecting their exclusive bargaining representative.
5.3 IMPORTANT: IS SUSPENSION OF CBA NEGOTIATION AN UNFAIR LABOR
PRACTICE? (Manila Mining Corp. Employees Association, et al. vs.. Manila
Mining corp, et al., G.R. Nos. 178222-23, 29 September 2010)
Answer: NO. Article 2521 of the Labor Code defines the phrase duty to bargain
collectively. For a charge of unfair labor practice to prosper, it must be shown that
the employer was motivated by ill-will, bad faith or fraud, or was oppressive to
labor. The employer must have acted in a manner contrary to morals, good
customs, or public policy causing social humiliation, wounded feelings or grave
anxiety. In this case, it cannot be said that MMC deliberately avoided the
negotiation. It merely sought a suspension and even expressed its willingness to
negotiate once the mining operations resume. There was valid reliance on the
suspension of mining operations for the suspension of the CBA negotiation. The
Union failed to prove bad faith.
1
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5.4
2.
Requisites of a valid strike: (a) Must have a lawful purpose; (b) conducted through
lawful means; and (c) must be in compliance with the procedural requirements under
the Labor Code
2.1
Lawful purpose
(a) Economic strike - is intended to force wage and other concessions
from the employer which is not required by law to grant. Usually, the
consequence of a deadlock in collective bargaining negotiations; and
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(b) ULP strike - is called against the unfair labor practices of the
employer, usually for the purpose of making him desist from further
committing such practices.
2.2
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Lawful means -- Even if the strike is valid because its objective or purpose
is lawful, the strike may still be declared invalid where the means
employed are illegal.
PALS BAR OPS PILIPINAS 2016
2.2.1 Article 264 (b): No person shall obstruct, impede or interfere with by
force, violence, coercion, threats or intimidation any peaceful
picketing by employees during any labor controversy, or in the
exercise of the right of self-orgn., or collective bargaining, or shall aid
or abet such destruction or interference. No employer shall use or
employ any person to commit such acts, nor shall any person be
employed for such purpose (prohibition against strike-breakers was
added under Dept. Order No. 9).
Article 264 [e]: No person engaged in picketing shall commit any act
of violence, coercion or intimidation, or obstruct the free ingress to
and egress from the employers premises for lawful purposes, or to
obstruct public thoroughfares.
2.2.2 What are the consequences if any of the prohibited activities as
mentioned above are committed during the conduct of the strike? The
otherwise valid strike may be converted into an illegal one
Association of Independent Unions in the Philippines (AIUP) vs.
NLRC, March 25, 1999. -- To be valid, a strike must be pursued within
legal bounds. Among such limits are the prohibited activities under
Article 264 of the Labor Code, particularly paragraph (e), which states
that no person engaged in picketing shall:
a. commit any act of violence, coercion, or intimidation or
b. obstruct the free ingress to or egress from the employers premises for
lawful purposes or
c. obstruct public thoroughfares.
2.2.3 What are the liabilities of the workers who participated in the
commission of the prohibited activities as mentioned above are
committed during the conduct of the strike? Loss of employment
status
2.3
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2.3.3
2.3.4
Seven Day Strike ban (Dept. Order No. 9. R22, S7[e]) - after the
strike vote is taken, it is required that the union must file the result
of the strike vote with the NCMB at least 7 days prior to the
intended date of strike.
Note:
Both cooling off period and 7-day strike ban must be
complied with and is mandatory. Otherwise, illegal strike.
(National Federation of Sugar Workers vs. Ovejera, 114 SCRA
354)
3.
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3.2
3.4
b)
c)
5. 2010-2015 CASES
5.1
2015 CASE: Club Filipino, Inc., et al. vs. Benjamin Bautista, et al., G.R. No.
168406, 04 January 2015. -- The law requires knowledge of the illegality of the
strike on the part of the union officer before he can be dismissed; when second
motion for reconsideration may be allowed; illegal dismissal case is not res
judicata to illegal strike case.
a. The law requires knowledge of the illegality of the strike as a condition
sine qua non before a union officer can be dismissed for participating
in an illegal strike.
b. As a general rule, the filing of a second Motion for Reconsideration is
prohibited. (Rule 52, Section 2 of the Rules of Court.) It is only allowed
under extraordinary persuasive reasons and only upon express leave
first obtained. (McBurnie v. Ganzon, 707 SCRA 646 [2013], En Banc.)
The grant of leave to file a second motion will not toll the reglamentary
period for the decision to become final and executory after 15 days. It
only means that the Entry of Judgment issued may be lifted should the
second motion be granted.
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L. LAW ON TERMINATION
BASIC PRINCIPLES IN DISCIPLINARY CASES
1. Code of Conduct vs. security of tenure
Balancing of interests in disciplinary cases
MANAGEMENT
VS.
Management prerogatives
LABOR
Security of tenure
Right to continuous
employment until
termination for just or
authorized cause
STATE
Police power/social justice
Interpretation in favor of labor
Adas Notes: Thus, in the context of the balancing of interests relative to the
conduct of human relationships and work performance within the business,
certain parameters will have to be observed:
a)
Burden of proof is upon the employer to show just cause for the
imposition of a penalty upon the employee.
HOWEVER, employee must first prove the fact of dismissal.
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d)
Thus: for valid termination, there must both be JUST CAUSE AND
DUE PROCESS. (exception: Agabon ruling, see Section 4 hereunder)
a)
St. Lukes Medical Center vs. Maria Theresa V. Sanchez, G.R. No.
212054, 11 March 2015. - Violation of Company Rules as Wilfull
Disobedience; see discussion above)
b) The Coffee Bean and Tea Leaf Philippines, Inc. vs. Rolly P. Arenas,
G.R. No. 208908, 11 March 2015. -- Willful disobedience Company
official cannot be held liable for the dismissal of an employee unless he
acted with malice or bad faith.
c) Joel N. Montallana vs. La Consolacion College Manila, et al., G.R. No.
208890, 08 December 2014. - What is willfulness in willful
disobedience?
In order for willful disobedience under Art. 296 (a) [formerly Article 282
(a) of the Labor Code] to be properly invoked as a just cause for dismissal,
the conduct must be willful or intentional, willfulness being characterized
by a wrongful and perverse mental attitude. (Nissan Motors Phil., Inc. vs.
Angelo, G.R. No. 164181, 14 September 2011, 657 SCRA 520.)
Moreover, willfulness was described as attended by a wrongful and
perverse mental attitude rendering the employees act inconsistent with
proper subordination. (Dongon v. Rapid Movers and Forewarders Co.,
Inc. G.R. No. 163431, 28 August 2013, 704 SCRA 56)
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Failure to report five tires damaged as a result of undercuring brought about by negligence of another
employee.
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4.1
INCOMPETENCE
International School Manila vs. International School Alliance Of
Educators (ISAE), G.R. No. 167286, 05 February 2014. -- Complainant
taught Spanish classes for 12 years, and took a one year break. Upon
return to school, there was only one class of Spanish available so she
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DISEASE
1 MO PAY OR
MONTH FOR EVERY
YEAR OF SERVICE
INSTALLATION OF LABOR 1 MO PAY OR 1
SAVING DEVICES
MONTH FOR EVERY
YEAR OF SERVICE
RETRENCHMENT
1 MO PAY OR
MONTH FOR EVERY
YEAR OF SERVICE
REDUNDANCY
1 MO PAY OR 1
MONTH FOR EVERY
YEAR OF SERVICE
CLOSURE NOT DUE TO 1 MO PAY OR
SERIOUS
BUSINESS MONTH FOR EVERY
LOSSES
YEAR OF SERVICE
3.1
DISEASE (separation pay of 1/2 month pay for every year of service)
3.3
RETRENCHMENT (Sepn. Pay: 1/2 month pay for every year of service)
Retrenchment is the termination of employment by the employer through
no fault of the employees, and is usually resorted to by the employer
primarily to avoid or minimize economic or business reverses during
periods of business recession, industrial depression, seasonal fluctuations,
re-organization or automation of the company operations. 3 Where the
employer suffers serious and actual business losses, management has the
final say as to whether it will continue to risk its capital or not.4 However,
the employer bears the burden to prove his allegation of business losses.5
Elements for valid retrenchment:
Under Article 283 of the Labor Code, in conjunction with Section 2,
Rule XXIII of the Implementing Rules of the Labor Code, the
following elements must be strictly complied with in order that the
retrenchment may be considered as valid:
a) The losses expected should be substantial and not merely de
minimis in extent. -b) The substantial losses apprehended must be reasonably imminent;
c) The retrenchment must be reasonable necessary and likely to
effectively prevent the expected losses; and
d) The alleged losses, if already incurred and the expected imminent
losses sought to be forestalled, must be proved by sufficient and
convincing evidence.6
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GENERAL RULE:
The twin requirements of NOTICE and HEARING are the essential
elements of due process in termination cases, which cannot be dispensed
with without violating the constitutional right to due process
2.
3.
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Should employee seek damages on this account, may file with regular court.
[Governed exclusively by the Civil Code. (Shoemart vs. NLRC, supra.)]
from the date of the LAs decision up to the date the NLRC decision becomes
final and executory
8. ON BACKWAGES
8.1 FULL BACKWAGES For termination effected after effectivity of RA 6715
FULL backwages to be computed from the time of termination to the
time of actual reinstatement.
With the passage of RA 6715 which took effect on 21 March 1989,
Article 2709 of the Labor Code was thus amended to include payment of
full backwages. The Mercury drug rule which limited the award of
backwages of illegally dismissed workers to three (3) years without
deduction or qualification, is no longer applicable. (Ferrer vs. NLRC)
8.2
8.4
2014-2015
SC
WAGES/BACKWAGES:
CASES
ON
COMPUTATION
OF
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