Labor Law Areas 2019

Labor Law Areas in the 2019 Bar
Atty. Genesis M. Auza - #auzalawreview – 09207025338

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GENERAL PRINCIPLES 4. Other monetary welfare benefits, including
occupational safety and health standards (Batong Buhay
SOCIAL JUSTICE Gold Mines inc. vs. Dela Serna, 312 SCRA 22 [1991]).
Social justice is neither communism, nor despotism, nor
atomism nor anarchy, but the humanization of laws and LABOR RELATIONS LAW
the equalization of social and economic forces by the That which defines the status, rights, and duties and
State so that justice in its rational and objectively secular institutional mechanisms that govern the individual and
conception may at least be approximated. collective interactions of employers and employees.
Social justice means the promotion of the welfare of all - That which requires payment of benefits by
people, the adoption by the government of measures government agencies to the worker or his family when
calculated to ensure economic stability of all component an while he cannot work, by reason of sickness,
elements of the society through the maintenance of disability, old age, death and similar hazards.
proper economic and social equilibrium in the
interrelations of the members of the community, LABOR SOCIAL
constitutionally, through the adoption of measures legally LEGISLATION LEGISLATION
justifiable, or extra constitutionally, through the exercise Directly affects Governs the effects of
of powers underlying the existence of all governments, employment (like employment (like
on the time honored principle of salus populi est wages) compensation for
suprema lex ( Calalang vs. Williams, GR No. 47800, Dec. injuries)
2, 1940) Designed to meet the Involves long range
daily needs of the benefits
INTERPRETATION OF LABOR LAWS worker
Art. 1700. The relations between capital and labor are Affects work of the Affects life of the
not merely contractual. They are so impressed with employee employee
public interest that labor contracts must yield to the Covers employment Covers employment
common good. Therefore, such contracts are subject to for profit or gain for profit and non-
the special laws on labor unions, collective bargaining, profit
strikes and lockouts, closed shop, wages, working Benefits are paid by Benefits are paid by
conditions, hours of labor and similar subjects. employers government agencies
It is well settled doctrine that if doubts exist between the LABOR AS PROPERTY RIGHT
evidence presented by the employer and the employee, the Under the mantle of constitutional protection, labor is
scale of justice must be tilted in favor of the latter. It is a treated as a property right. No person shall be deprived
time honored rule that in controversies between labor and of his life, liberty or property without due process of law,
the employee, doubts necessarily arising from the evidence, nor shall he be denied equal protection of the same.
or in the implementation of the agreement and writing
should be resolved in favor of the labor EQUAL PROTECTION CLAUSE (B-A-G-A) for
there to be a valid classification:
LABOR LEGISLATION a. Classification must be BASED on substantial
Consists of statutes, regulations and jurisprudence distinction which makes real differences;
governing the relations between capital and labor, by b. Classification must APPLY to present and future
providing for certain employment standards and a legal conditions;
framework for negotiating, adjusting and administering c. Classification must be GERMANE to the
those standards and other or their representatives. purpose of the law; and
It seeks to stabilize the relation between employers and d. Classification must apply to ALL persons
employees, to forestall and thresh out their differences belonging to the same class.
through the encouragement of collective bargaining and
settlement of labor disputes through conciliation, RIGHTS OF LABOR
mediation, and voluntary and compulsory arbitration. BASIC RIGHTS OF WORKERS AS GURANTEED BY
THE CONSTITUTION: (art XIII, section 3, 2nd par.)
LABOR STANDARD VS. LABOR RELATIONS a. Under Labor Standards –
LABOR STANDARDS LAW 1. Right to security of tenure;
The minimum requirements prescribed by existing laws, 2. Right to receive a living wage;
rules and regulations relating to – 3. Right to share in the fruits of production;
1. Wages; 4. Right to work under humane conditions.
2. Hours of work;
3. Cost living allowance; and
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b. Under Labor Relations – EXCEPTIONS:
1. Right to organize themselves; 1. Government employees;
2. Right to conduct collective bargaining or negotiation 2. Employees of government corporations created by
with the management; special or original charter (Juco vs. NLRC, GR No.
3. Right to engage in peaceful concerted activities 98107, Aug. 18, 1987);
including strike; and 3. Foreign governments (JUSMAG Philippines vs.
4. Right to participate in policy and decision –making NLRC, GR No. 108813, Dec. 15, 1994);
process. 4. International Agencies (Lasco vs. UNRFNRE, GR No.
109095 – 109107, Feb. 23, 1995);
CO-DETERMINATION 5. Employees of inter-governmental or international
Under Art. XIII, Sec. 3 of the Constitution, the workers organization (SEAFDEC- AQD vs. NLRC, GR No.
shall participate in policy and decision-making affecting 86773, Feb. 14, 1992);
their rights, duties, welfare and benefits, through 6. Corporate officers/ Intra-corporate disputes which fall
labor-management councils (See, Art. 211[g] and 255 of under PD 902-A and now fall under the jurisdiction of the
the Labor Code). The workers‘ rights do not include Regular Courts pursuant to the New Securities
membership in the Board of Directors of a Corporation Regulation Code (NACPIL vs. IBC, GR No. 144767,
(See Meralco v. Meralco Employees, G.R. No. 127598, March 21, 2002).; and
January 27, 1999). 7. Local water district (Tanjay Water District vs.
Gabaton, GR No. 63742 and 84300, April 17, 1989)
RIGHTS OF EMPLOYER: MANAGEMENT
PREROGATIVE JURISDICTION
Under the “doctrine of management prerogative”, every
employer has the inherent right to regulate, according to NATIONAL LABOR RELATIONS
his own discretion and judgment, all aspects of COMMISSION
employment, including hiring, work assignments, A. Exclusive and Original
working methods, the time, place and manner of 1. Certified cases – cases certified to it for compulsory
work, work supervision, transfer of employees, arbitration by the Secretary of Labor under art. 263 or
lay-off of workers, and discipline, dismissal, and the President under art. 264.
recall of employees (Rural Bank of Cantilan vs. Julve, 2. Injunction cases under arts. 218 and 264; and
GR No. 169750, Feb. 27, 2007). 3. Contempt cases.
THE EMPLOYER HAS THE RIGHT TO:
1. Conduct business; B. Exclusive Appellate
2. Prescribe rules; 1. Cases decided by Labor Arbiter under art. 217[b] of
3. Select and hire employees; the LC, and sec. 10 of RA 8042 (Migrant Worker’s Act);
4. Transfer or discharge employees; and
5. Return of investment and expansion of business.
2. Cases decided by the Regional Offices of DOLE in the
Management prerogative, however, is subject to exercise of adjudicatory functions under art. 129 over
limitations provided by - monetary claims or workers amounting to not more than
a) Law; 5,000, without claim for reinstatement.
b) Contract, or CBAs;
c) General principles of justice and fair play (Mendoza LABOR ARBITER
vs. Lukban, GR No. 155421, July 7, 2004). EXCLUSIVE ORIGINAL JURISDICTION OF LABOR
ARBITERS: (clue words/summary)
INJUNCTION IN LABOR CASES 1. ULP cases;
As a rule no injunction. Exception: Labor secretary, in 2. Termination disputes;
cases where there is strike or lockout in industries 3. Claims involving wages, rates of pay, hours of work,
indispensable to national interest, may issue a return to and other terms/conditions of employment, with a claim
work order which is treated as automatic injunction. for reinstatement;
(Infra) 4. Claims for damages (Actual, moral, exemplary and
other forms of damages) arising from ERR;
APPLICABILITY OF LABOR CODE Moral damages would be recoverable where dismissal of
GR: The code applies to all workers, whether agricultural employee was not only effected without just or
or non-agricultural, including employees in a government authorized cause or due process but also –
corporation incorporated under the Corporation Code a. Was attended with bad faith or fraud;
(see art. 244). b. Constituted an act oppressive to labor;
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c. Done in a manner contrary to morals, good customs pursuant to the new Securities Regulation Code (Nacpil
or public policy (Suario vs. BPI, GR No. 50459, Aug. vs. IBC, March 21, 2002).
1989).. Controversy concerns the –
a. Election; or
5. Cases arising from violation of art. 264 (prohibited b. Appointment of directors, trustees, officers or
activities); managers of corporations, partnerships or associations
6. Employer’s claim for actual damages against the (Dy, et al. v. NLRC, GR No. 68544, Oct. 27, 1986).
employee arising as it does from EER and being
necessarily connected with the dispute over the Ruling holds true even if the complainant is claiming for
employee’s dismissal should be entered as a backwages, employment benefits, and damages.
counterclaim in illegal dismissal case; it cannot be filed (Espino vs. NLRC and PAL, GR No. 109642-43, Jan. 5,
with a regular court (Banez vs. Hon. Valdevilla, GR No. 1995)
128024, May 9, 2000);
7. Questions involving legality of strikes and lockouts; 4. Exacting money claims against the government (GR
8. All other claims arising from EER; No. 104269, Nov. 11, 1993);
9. Claims of persons in domestic or household service 5. Cases involving GOCC’s with original charters, which
involving an amount exceeding 5,000 whether or not are governed by civil service law, rules and regulations
accompanied by a claim for reinstatement (art. 129); (art. IX-B, sec. 2, 1987 Constitution);
10. Monetary claims of overseas contract workers 6. Local water district (Tanjay Water District vs.
arising from EER under RA 8042, sec. 10; Gabaton, supra);
11. Wage distortion disputes in unorganized 7. The aggregate money claim does not exceed 5,000
establishments not voluntarily settled by the parties pesos and without claim for reinstatement (art. 129, LC);
pursuant to RA 6727; 8. Claim of employee for cash prize under the innovation
This happens when the parties failed to settle their program of the company, although arising from EER, is
dispute in the NCMB. one requiring application of general civil law on contracts
which is within the jurisdiction of the regular courts (San
12. Enforcement of compromise agreements when there Miguel Corp. vs. NLRC, GR No. L-80774, May 31,
is non-compliance by any of the parties pursuant to 1988);
article 227 of the Labor Code; 9. Cause of action is based on quasi-delict or tort which
13. Questioning the enforcement order issued under art. has no reasonable connection with any of the claims
128; and enumerated in art. 217, LC (Ocheda vs. CA, GR No.
14. Other cases as may be provided by law. 85517, Oct. 16, 1992);
a. Sec. 10, R.A. 8042, [effective June 7, 1995], what we have 10. Complaint arising from violation of a training
is a claim "arising out of an employer-employee relationship or agreement (Singapore Airlines vs. Pano, GR No.
by virtue of any law or contract involving Filipino workers for L-47739, June 22, 1983);
overseas deployment including claims for actual, moral, 11. The Labor Arbiter is without jurisdiction over the case
exemplary and other forms of damages", cognizable by the
"Labor Arbiters of the National Labor Relations Commission" once his judgment has assumed the character of finality
(NLRC) who have the original and exclusive jurisdiction (Cayena
thereon
VOLUNTARY ARBITRATOR
Note: Even if there is no EER, so long as the case involves Filipino JURISDICTION OF VOLUNTARY ARBITRATORS
Overseas by virtue of any law or contract (EXLUSIVE ORIGINAL JURISDITION Conferred by
Law):
BE CAREFUL: Although the provision speaks of EXCLUSIVE and 1. All grievances arising from the interpretation of the
ORIGINAL jurisdiction of Labor Arbiters, the cases CBA;
enumerated may instead be SUBMITTED to a VOLUNTARY 2. Those arising from the interpretation or enforcement
ARBITRATOR/S by AGREEMENT of the parties under art. 262, of company personnel policies;
3. Hear and decide wage distortion issues arising from
LC.
the application of any wage orders in organized
establishments (art. 124,LC); and
LABOR ARBITER HAS NO JURISDICTION OVER THE
4. Unresolved grievances arising from the interpretation
FOLLOWING: and implementation of the productivity incentive
1. Foreign governments (JUSMAG Philippines vs. programs under RA 6071.
NLRC, GR No. 108813, Dec. 15, 1994);
2. International agencies (Lasco vs. UNRFNRE, GR No.
109095 – 109107, Feb. 23, 1995). NCMB
3. Intra-corporate disputes which fall under PD 902-A, EXCLUSIVE AND ORIGINAL JURISDICTION OF THE
and now under the jurisdiction of the regular courts BLR:
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To act at its own initiative or upon the request of either or NOTE: The POEA has the power to order refund or
both parties on all – reimbursement of fees fraudulently or illegally collected, or in
1. INTRA –union conflicts; excess of what is legally allowed (Eastern Assurance and
2. INTER – union conflicts; Surety Corporation vs. Secretary of Labor, GR No. 79436-50,
3. Other related labor relations disputes. Jan. 17, 1990).
NOTE: The parties may, by agreement, settle their differences JUDICIAL REVIEW (RULES)
by submitting their cases to a voluntary arbitrator rather than No law allows an appeal from a decision of the Secretary
taking the case to the BLR (ART. 262, LC). of Labor or the NLRC, or of a Voluntary Arbitrator.
INTRA-UNION DISPUTES Decisions of voluntary arbitrators are appealable to the
Refer to any conflict between and among union CA under Rule 43 of the Rules of Court in relation to
members, including grievances arising from any violation sec. 9 of BP 129. Voluntary arbitrators are considered as
of the rights and conditions of membership, violation of quasi-judicial agencies whose decisions are appealable
or disagreement over any provision of union’s to the CA (Luzon Dev’t Bank vs. Association of Luzon
constitution and by-laws, or disputes arising from Dev’t Bank, GR No. 120319, Oct. 6, 1995).
chartering or affiliation.
INTER-UNION DISPUTES 1. The way to review NLRC decisions is be special civil
Refer to any conflict between and among legitimate labor action for certiorari, prohibition and mandamus under
organizations involving representation questions for purposes Rule 65, Rules of Court.
of collective bargaining or to any other conflict or dispute
between legitimate labor organizations based on any A petition for certiorari shall not stay or suspend the
violations of their rights as labor organizations. execution of the assailed decision of the NLRC, unless a
TRO is issued by CA or SC (sec. 10, Rule XI, NLRC
Rules, 2005).
REGIONAL TRIAL COURT
Where no EER exists between the parties and no issue is 2. Jurisdiction belongs to the SC and CA, but in line with
involved which may be resolved by reference to the LC, other the doctrine of hierarchy of courts, the petition should be
labor statutes or any collective bargaining agreement, it is the initially presented to the CA (St. Martin’s Funeral Home
RTC that has jurisdiction (Lapanday Agricultural Dev’t Corp. vs. NLRC, supra).
vs. CA, GR No. 112139, Jan. 31, 2000).
INTRA-CORPPORATE DISPUTE LABOR RELATIONS

It is a conflict between the stockholders, members, or
partners and the corporation, association, or partnership,
EXCLUSIVE BARGAINING REPRESENTATIVE
Legitimate labor union duly recognized or certified as the sole
regarding the regulation of the corporation. The
controversy must arise out of intra-corporate relations of and exclusive bargaining representative or agent of all the
the parties, or between such corporation and the state in employees in a bargaining unit.
so far as it concerns their individual franchise.
Jurisdiction lies with the RTC designated as Special AUTOMATIC RENEWAL CLAUSE
Commercial Courts pursuant to new Securities Art. 253 provides that it is the duty of the parties to keep the
Regulation Code. status quo and to continue in full force and effect the terms
and conditions of the existing agreement during the freedom
Dismissal of vice-president of a corporation is not always period and/or until a new agreement is reached.
an intra-corporate dispute. The office must be created
under its Articles of Incorporation or the By-Laws, for the
dismissal to be an intra-corporate dispute. Otherwise, it BARGAINING REPRESENTATIVE
is an ordinary dismissal of employment of a laborer Bargaining representative" means a legitimate labor
which falls in the jurisdiction of the Labor Arbiter. organization whether or not employed by the employer.
SECRETARY OF LABOR METHODS OF DETERMINING BA.

The DOLE Secretary (art. 35) and the POEA
Administrator (sec. 1, Rule II, Book VI, New Rules on A. CERTIFICATION ELECTION
Overseas Employment) have CONCURRENT The process of determining by secret ballot the sole and
JURISDICTION to suspend or cancel a license (Trans exclusive bargaining agent in an appropriate bargaining
Action Overseas Corp. vs. Sec. of Labor, GR No. unit, for purposes of collective bargaining.
109583, Sept. 5, 1997). Included in the election are employees in the 3 payroll
periods prior to the certification election).
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Note: Certification Election is not necessary when representation of all the workers in the appropriate
employer voluntarily recognizes the said union and the bargaining unit mainly for the purpose of determining the
employees designate the union as the bargaining administrator of the CBA when the contracting union
representative. suffered massive disaffiliation but not for the purpose of
determining the bargaining agent for purposes of
NATURE: Certification is not a litigation but merely an collective bargaining.
investigation of a non-adversarial fact-finding character in Direct Certification
which the BLR plays the part of a disinterested investigator The process whereby the Med-Arbiter directly certifies a
seeking merely to ascertain the desire of the employees as to labor organization of an appropriate bargaining unit of a
the matter of their representation (Airline Pilots Ass. of the company after a showing that such petition is supported
Phils. vs. CIR, 76 SCRA 274). by at least a majority of the employees in the bargaining
unit. This is no longer allowed by virtue of EO No. 111,
effective on March 4, 1987).
REQUISITES BEFORE A LABOR UNION CAN BE
DECLARED A WINNER (Double Majority Rule)
C. VOLUNTARY RECOGNITION – the process whereby
1. Majority of the ELIGIBLE VOTERS (in the
the employer recognizes a labor organization as the
appropriate bargaining unit) cast their votes; and
exclusive bargaining representative of the employees in
2. Majority of the VALID VOTES cast is for such union.
the appropriate bargaining unit after a showing that the
labor organization is supported by at least majority of the
HOW DOUBLE MAJORITY RULE DETERMINED
employees in the bargaining unit.
1. In determining whether majority of the members of the
bargaining unit (BU) cast their votes [1st Majority] –
Note: Voluntary Recognition is allowed only in an enterprise
include the spoiled ballots.
2. In determining the majority of the valid votes cast [2nd being unionized for the first time and there is only one
Majority] – exclude spoiled ballots BUT include legitimate labor organization seeking recognition to represent
challenged votes (but separated- only opened if it is the bargaining unit.
material to the determination of the winner).
RUN-OFF ELECTION
CLOSED SHOP PROVISION
A run-off election is proper if the following conditions
DIFFERENT KINDS OF UNION SECURITY
exist –
ARRANGEMENTS (exceptions to the employees’
1) Valid election took place, that is majority of the
right to self-organization)
members of the BU have cast their votes;
1. Closed-Shop Agreement
2) The said election presented at least 3 choices (e.g.
Union A, Union B, and No Union);
The employer undertakes not to employ any individual
REMEMBER: No Union is not a choice in the Run-off who is not a member of the contracting union and the
election. said individual once employed MUST, for the duration of
the agreement, remain a member of the union in good
3) Not one of the choices obtained the majority (50% + 1 standing a condition for continued employment.
– 2nd Majority) of valid votes cast;
4) The total votes for the unions is at least 50% of the ▪ Not retroactive.
votes cast; ▪ Apply only to new hires.
5) There is no unresolved challenged votes or election
protest which if sustained can materially alter the results; Exceptions:
and a. Employees belonging to religious sect which forbids
6) The two choices which garnered the highest votes will affiliation of their members with any labor organization
be voted and the one which garners the highest number (Victoriano vs. Elizalde Rope Workers, GR No. L-25246,
of votes (in the run-off election) will be declared the Sept. 12, 1974).
winner provided that they get the majority of the total
b. Members of rival union;
votes cast.
c. Confidential employees excluded from the
rank-and-file bargaining unit;
WHO PARTICIPATES IN THE RUN-OFF
d. Employees excluded by express terms of the
The unions receiving the highest and second highest number
agreement.
of votes cast.
2. Union Shop Agreement
B. CONSENT ELECTION – voluntarily agreed upon by Stipulation whereby any person can be employed by the
the parties with or without the intervention of DOLE. To employer but once employed such employee must,
determine the issue of majority within a specific period, become a member of the
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contracting union and remain as such in good standing 2) The deadlock is the subject is the subject of a valid
for continued employment for the duration of the CBA. notice of strike.
Note: Exceptions in number 1 applies.
3. Negotiation Bar Rule
3. Maintenance of Membership Shop Agreement.
A petition for certification election cannot be entertained
The agreement does not require non-members to join if, before the filing of the petition for certification election,
the contracting union, but provides that those who are the duly recognized or certified union has commenced
members thereof at the time of the execution of the CBA negotiations with the employer in accordance with art.
and those who may thereafter on their own volition, 250, LC.
become members must for the duration of the But in one case the winning union failed to conclude a
agreement maintain their membership in good standing CBA within one year, hence another union filed for
as a condition for continued employment in the company certification election. Although filed outside the one year
for the duration of the CBA. bar, the petition was nonetheless dismissed, and the
court upheld the dismissal and explained that ordinarily,
4. Preferential Shop Agreement a bargaining agent who failed to secure a CBA within 1
year could be suspected as a tool of management and
An agreement whereby the employer merely agrees to should deserve to be replaced. But if the circumstances
give preference to the members of the bargaining union show that the reason for not having concluded a CBA
in hiring, promotion or filing vacancies and retention in was not the union’s fault, such union should not be
case of lay-off. The employer has the right to hire from blamed, and certification election should not be
the open market if union members are not available. authorized. The situation takes the nature of a “deadlock
5. Agency Shop Agreement bar” (Capitol Medical Center
An agreement whereby employees must either join the Alliance, vs. Laguesma, GR No. 118915, Feb. 4, 1997).
union or pay to the union as exclusive bargaining agent
a sum equal to that paid by the members. 4. Certification Year Rule
Note: this is directed against “free riders” employees who
benefit from the union activities without contributing support No petition for certification election may be filed within
one year from the date of a valid certification election,
to the union, to prevent a situation of non-union members
consent election, or run-off election or from the date of
enriching themselves at the expense of the union members. voluntary recognition.
The principle underlying this is that “no one shall unjustly The 12 month prohibition presupposes that there was an
enrich himself at the expense of another. actual conduct of election. In case there was no
certification election conducted precisely because first
petition was dismissed on the ground that it did not
include all the employees who should be properly
BAR IN CERTIFICATION ELECTION included in the collective bargaining unit, the certification
year bar does NOT apply (Transport Corp. vs.
1. Contract Bar Rule Laguesma, GR No. 106830, Nov. 6, 1993).
While a valid and registered CBA of a fixed duration is
subsisting, the BLR is not allowed to hold an election Certification year rule will not apply if in fact there was
contesting the majority status of the incumbent union failure of election because less than majority of the
except during the 60-day period immediately prior to the members of the bargaining unit voted. Another petition
expiration of the CBA. for certification election may be filed within 6 months.
2. Deadlock Bar Rule Certification year rule WILL APPLY even if “no union”
A petition for certification election cannot be entertained choice won during the certification election (Samahang
if, before the filing of the petition for certification election, Mangagawa sa Permex vs. Sec. of Labor, GR No.
a bargaining deadlock to which an incumbent or certified 107792. March 2, 1998).
bargaining agent is a party, had been submitted to
conciliation or arbitration or had become the subject of a CBA COVERAGE
valid notice of strike or lockout. The benefits of a CBA are extendible to all employees
Deadlock – arises when there is an impasse, which
regardless of their membership in the union because to
presupposes a reasonable effort at good faith bargaining withhold the same from non-union members would be to
which, despite noble intentions, did not conclude in an discriminate against them. (National Brewery & Allied
agreement between the parties.
Industries Labor Union of the Philippines v. San Miguel
Indications of a genuine deadlock: Brewery, Inc., G.R. No. L-18170, August 31,1963)
1) The submission of the deadlock to a 3rd party
conciliator or arbitrator; or
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CBA INTERPRETATATION determines whether he has rank-and-file or managerial
Any dispute should be resolved thru the grievance status (Engineering Equipment, Inc. vs. NLRC, GR No.
machinery in the CBA. Unresolved issue should be L-59221, Dec. 26, 1984).
brought to NCMB. Failure in NCMB, go to Voluntary A union whose membership is a mixture of supervisors
Arbitrator. From VA, mode of appeal is to CA pursuant to and rank-and-file is not and cannot become a legitimate
Rule 43 (supra) labor organization, it cannot be recognized as the
bargaining representative, it cannot strike (Toyota Motor
MANDATORY SUBJECT OF BARGAINING Phil. vs. Toyota Motor Phil. Labor Union and Sec. of
Labor, GR No. 121084, Feb. 19, 1997).
WAGE INCREASE NOTE: The rank-and-file union and the supervisor’s union
Non-union members will benefit also from the increase
operating within the same establishment may join the same
under the CBA. Bargaining representative (union) does
federation or national union (as amended by RA 9481).
not act for its members alone. It represents all the
employees covered by the bargaining unit. (Mactan
Workers Union v. Aboitiz, G.R. No. L-30241, June 30,
1972) However, nonmembers who avail of CBA benefits RELIGIOUS OBJECTORS
are required under the law to pay agency fees. May not be compelled to join labor union if their religion
forbids them BUT they may form their own separate
CONFIDENTIAL EMPLOYEES union, if they so desire.
A confidential is one entrusted with confidence on delicate
matters, or with the custody, handling, or care and protection RIGHT TO STRIKE: Requisites
of employer’s property. TESTS IN DETERMINING LEGALITY OF A STRIKE
A. Purpose Test – the strike must be due to either
The confidential relationship must exist between the bargaining deadlock or ULP.
employee and his supervisor, and the supervisor must handle
the prescribed responsibilities relating to labor relations. As B. Compliance with Procedural and Substantive
such, the rationale behind the ineligibility of managerial
Requirements of Law –
employees to form, assist or join a labor union equally applies
1. Notice of Strike – must be filed prior to the intended
to them. (PIDI vs. NLRC, GR No. 88957, June 25, 1992). Under
strike, taking into consideration the cooling-off period.
the doctrine of necessary implication, confidential employees
are similarly disqualified (NATU-Republic Planters Bank vs. The failure of the union to serve the company a copy of the
Torres, GR No. 93468, Dec. 29, 1994).
notice of strike is a clear violation of sect. 13, Rule XXII, Book
V, IRLC. The constitutional precepts of due process mandate
MANAGERIAL EMPLOYEES VS. the other party be notified of the adverse action of the
SUPERVISORY VS. RANK AND FILE
opposing party (Filipino Pipe and Foundry Corporation vs.
NLRC, 318 SCRA 68).
MANAGERIAL EMPLOYEES
Those who are vested with powers or prerogatives to lay
down and execute management policies and/or to hire
transfer suspend, lay-off, recall, discharge, assign or 2. Cooling-off Period before the intended date of actual
discipline employees. strike subject to the 7-day strike ban.
The prohibition of unionization of managerial employees a. Bargaining deadlock – 30 days.
does not violate the Philippine Constitution (United-Pepsi b. ULP – 15 days.
Cola Products, Phils. vs. Laguesma, GR No. 122226, c. Union Busting – no cooling-off period needed and
March 25, 1998). union may take action immediately after the strike vote is
conducted and results are submitted to the Regional
SUPERVISORY EMPLOYEES Branch.
Those who, in the interest of the employer, effectively Cooling-Off Period – That period of time given the
recommend such managerial actions if the exercise of NCMB to mediate and conciliate the parties. It is that
such authority is not merely routinary or clerical in nature span of time allotted by law for the parties to settle their
but requires the use of independent judgment. disputes in a peaceful manner, before staging a strike or
Supervisory employees may form, assist, or join a lockout.
labor organization on their own and not with the 3. 24-hour prior notice rule – mandatory requirement.
rank-and-file employees. Notice to the NCMB prior to the taking of the strike vote.
NOTE: It is the nature of the employee’s functions and 4. Strike Vote – a requirement wherein the decision to
not the nomenclature or title given to his job which declare a strike must be –
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a. Approved by a majority of the total union membership the “no strike clause” (Philippine Metal Foundries, Inc. vs.
in the bargaining unit (not the whole bargaining unit); CIR, 90 SCRA 135, [1979]).
and
b. Obtained by a secret ballot in a meeting or referenda STRIKE: INJUNCTION IN INDUSTRIES
called for the purpose.
INDESPENSABLE TO NATIONAL INTEREST
Purpose: To ensure that the intended strike is a majority RETURN TO WORK ORDER (Assumption
decision. Power)
5. 7-day Strike Ban – The 7-day waiting period before
the date of the purported strike (within which the union WHEN CAN Secretary of labor assume jurisdiction
intending to conduct a strike must at least submit a over a strike:
report to the Department as to the result of the strike There exists a labor dispute causing or likely to cause a
vote) intended to give the Department an opportunity to strike or lockout in an industry indispensable to national
verify whether the projected strike really carries the interest.
imprimatur of the majority of the union members IN The discretion to assume jurisdiction may be exercised
ADDITION to he cooling-off period before actual strike. by the Secretary of Labor WITHOUT the necessity of
prior notice of hearing given to any of the parties
GOOD FAITH STRIKE DOCTRINE disputants (Magnolia Poultry Employees Union vs.
A strike may be considered legal where the union Sanchez, GR No. 76227-28, Nov. 5, 1986).
believed that the company committed ULP and the
circumstances warranted such belief in good faith, WHAT TO DO – the Sec. of Labor may –
although subsequently such allegations of ULP are a. Assume jurisdiction and decide the case; or
found out as not true (Bacus vs. Ople, 56856, Oct. 23, b. Certify the same to the NLRC for compulsory
1984). arbitration.
NON-STRIKEABLE ISSUES (art. 263 [b]; Department What constitutes industry “indispensable to national interest”
Order No. 9, Rule 12, sec. 2): is based solely upon the (sound) discretion of the Sec. of
1. Violations of the CBA which are not gross in character Labor.
shall be resolved via he grievance machinery;
2. Inter-union or intra-union disputes falling under the
No strike or lockout shall be declared after
BLR – Med-Arbiter under art. 226,LC;
assumption of jurisdiction by the President or the
3. Labor standards cases such as wage orders; Minister or after certification or submission of the
4. Those issues which had already been brought to dispute to compulsory or voluntary arbitration or
voluntary or compulsory arbitration; during the pendency of cases involving the same
5. Wage distortion disputes. grounds for the strike or lockout.
DOCTRINE OF MEANS AND PURPOSES DISMISSAL DUE TO STRIKE

A strike is legal if lawful means concur with lawful Any union officer who knowingly participates in an illegal
purpose (GOP –CCP Workers vs. CIR, Sept. 10, 1979). strike and any worker or union officer who knowingly
WHEN STRIKE IS ILLEGAL: (6 Factors Affecting participates in the commission of illegal acts during a strike
Legality of Strike/s) may be declared to have lost his employment status:
1. Contrary to specific prohibition of law; Provided, That mere participation of a worker in a lawful
2. Violates specific requirement of law; strike shall not constitute sufficient ground for termination
3. Declared for an unlawful purpose, such as inducing of his employment, even if a replacement had been hired by
the employer to commit ULP against non-union the employer during such lawful strike.
employees;
4. Employs unlawful means pursuant to its objective EFFECTS of assumption of Jurisdiction by the
such as widespread terrorism of non-strikers; Secretary:
5. Declared in violation of an existing injunction; 1. AUTOMATICALLY ENJOINS the intended or
6. Contrary to an existing agreement, such as no strike impending strike or lockout as specified in the
clause or conclusive arbitration clause (I Teller 314 – assumption or certification order;
317). 2. If one has already taken place at the time of
assumption or certification, all striking or locked-out
Note: A “no strike clause” in a CBA is applicable only to employees shall immediately RETURN TO WORK; and
economic strikes. Therefore, if the strike is founded on an
unfair labor practice, the strike declared is not a violation of Note: T hose strikers who defy the order and refuse to
return to work cannot complain if they are deemed to
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have forfeited their employment as a consequence of ▪ An employer who interfered with the right to
their intransigence (Sarmiento vs. Tuico, GR No.
self-organization before a union is registered can be held
75272-73).
guilty of ULP (Samahan ng Mangagawa sa
Both union officers and union members who defy
Bandolino-LMLC vs. NLRC, GR No. 125195, July 17,
return-to-work order are subject to dismissal. They are
1997).
deemed to have participated in an illegal act (St.
Scholastica’s College vs. Torres, GR No. 100158, June
29, 1992). ▪ It is a prerogative of the company to promote, transfer,
BUT to justify dismissal, the defiance of the or even demote its employees to other positions when
return-to-work order must be proved to be deliberate. the interest of the company reasonably demands it.
The employee must be afforded enough time to resume Unless there are circumstances which directly point to
to work from time of the receipt of the return-to-work interference by the company with the employees’ right to
order (Batangas Laguna Tayabas Bus Co. vs. NLRC, self-organization, the
GR No. 101858, Aug. 21, 1992). transfer of an employee should be considered as within
3. The employer shall immediately resume operations the bounds allowed by law (like despite transfer to lower
and RE-ADMIT all workers under the same terms and position, his original rank and salary remained
conditions prevailing before the strike or lockout. undiminished) [Rubberworld Phils. vs. NLRC, GR No.
75704, July 19, 1989).
Note: A Motion for Reconsideration (of the assumption
order) does not suspend the effects as the assumption order ▪ In the absence of showing that the illegal dismissal
is immediately executory (St. Scholastica’s College vs. Torres,
was dictated by anti-union motives, the same does not
GR No. 100158, June 19, 1992)..
constitute an unfair labor practice as would be a valid
ground to strike. The remedy is an action for
UNFAIR LABOR PRACTICES reinstatement with backwages and damages
UNFAIR LABOR PRACTICE BY EMPLOYER/S: (AHS/Philippine Employees Union vs. NLRC, GR No.
1. Interference – to interfere with, restrain or coerce 87321, March 31, 1987).
employees in the exercise of their right to
self-organization. EXAMPLES of unlawful acts to discourage
membership in a labor union:
TEST: Whether the employer has engaged in conduct 1) Dismissal of union members upon their refusal to give
which, it may reasonably be said, tends to interfere with up their membership, under the pretext of retrenchment
the free exercise of the employees’ right and it is not due to reduced dollar allocation (Manila Pencil Co. vs.
necessary that there be direct evidence that any CIR, 14 SCRA 953);
employee was in fact intimidated or coerced by the 2) Refusal over a period of time to give salary
statements of threats or the employer if there is a adjustment according to the improved salary scales in
reasonable inference that the anti-union conduct of the the CBA (Benguet Consolidated vs. BCI Employees and
employer does not have an adverse effect of Workers Union, 22 SCRA 129);
self-organization and collective bargaining (The Insular 3) Dismissal of an old employee allegedly for
Life Assurance-NATU vs. The Insular Life Assurance inefficiency, on account of her having joined a union and
Co. Ltd No. L-25291, Jan. 30, 1971). engaging in union activities (East Asiatic Co. vs. CIR, 16
TOTALITY OF CONDUCT DOCTRINE SCRA 820);
The culpability of the employer’s remarks is to be 4) Dismissal of teachers for fear by the school that there
evaluated not only on the basis of their implications, but would be strike the following semester (Rizal Memorial
against the background of and in conjunction with Colleges Faculty Union vs. NLRC, GR No. 59012-13,
collateral circumstances (Ibid.) Oct 12, 1989);
Expression of opinion by an employer, though innocent 5) A company’s capital reduction efforts, to camouflage
in themselves, frequently were held to be culpable the fact that it has been making profits to justify the mass
because of the circumstances under which they were lay-off of its employees especially union members
uttered, the history of the particular employer’s labor (Madrigal and Company, Inc. vs. Zamora, GR No.
relations or anti-union bias or because of their L-4823, June 30, 1987).
connection with an established collateral plan of
coercion or interference. 2. Yellow Dog Conditions – a promise exacted from
Under this doctrine, an expression which might be workers as a condition of employment that a person or
permissibly uttered by one employer might be deemed an employee shall not join a labor organization or shall
improper when spoken by a more hostile employer and withdraw from one to which he belongs.
consequently actionable as an ULP.
YELLOW DOG CONTRACT
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A promise exacted from workers as a condition of
employment that they are not to belong to, or attempts to Soliciting membership, permitting union activities during
foster, a union during their period of employment. It is work time or coercing employees to join the union by
null and void because – threats of dismissal or demotion.
1) It is contrary to public policy for it is tantamount to 5. Discrimination

involuntary servitude;
2) It is contrary to law. To discriminate in regard to wages, hours of work, and
other terms and conditions of employment in order to
3. Contracting Out encourage or discourage membership in any labor
organization.
To contract out services or functions being performed by TEST: Whenever benefits or privileges given to one is
union members when such will interfere with, restrain or not given to the other under similar or identical
coerce employees in the exercise of their right to conditions when directed to encourage or discourage
self-organization. union membership.
NOTE: Contracting out services is not ULP per se. it is 3 COMPONENTS OF DISCRIMINATION:
ULP only when the following condition exists – a. It prohibits discrimination in terms and conditions of
1) The service contracted out are being performed by employment in order to encourage or discourage
union members; and membership in the union;
2) Such contracting out interferes with, restrains, or b. It gives validity to union security agreements; and
coerce employees in the exercise of their right to c. It allows an agency shop arrangement whereby
self-organization. agency fees may be collected from non-union members.
However, when the contracting out is being done for business To constitute an ULP, the discrimination committed by
the employer must be in regard to the hire or tenure of
reasons such as decline in business, inadequacy of equipment
employment or any term or condition of employment to
or to reduce cost, then it is a valid exercise of management encourage or discourage membership in any labor
prerogative. organization. The exaction by the company, from
returning strikers to work, of a promise not to destroy
company property and not to commit acts of reprisals
4. Company Domination of Union against union members who did not participate in the
To initiate, dominate, assist, or otherwise interfere with strike, cannot be considered as intended to encourage
the formation or administration of any labor organization, or discourage union membership. It is actually an act of
including the giving of financial or other support to it or self-preservation and designed to for the maintenance of
its organizers or officers. peace and order in the premises (Pagkakaisan
COMPANY UNIONISM/CAPTIVE UNIONISM Itinataguyod ng mga Magagawa sa Ang Tibay vs. Ang
Considered ULP because the officers will be beholden to Tibay, GR No. L-22273, may 16, 1967).
the employers and they will not look after the interest of There is unfair and unjust discrimination in the granting
whom they represent. of salary adjustments where the evidence shows that –
FORMS: a) The management paid the employees of
a. Initiation of the company union idea by – UN-unionized branch;
1) Outright formation of the employer of his b) Salary adjustment was granted to employees of
representatives; un-unionized branch despite the fact that it is losing in its
2) Employee formation on outright demand or influence operations;
by employer; and c) Total salary adjustment given every ten of its
3) Managerially motivated formation by employees. unionized employee would not even equal the salary
adjustments given one employee in the non-unionized
b. Financial support to the union by – branch (Manila Hotel Company vs. Pines Hotel
1) Employer defrays union expenses; Employees; Assn., GR No. L-308818).
2) Pays attorney’s fees of the lawyer who drafted the
constitution and by-laws of the union. CONSTRUCTIVE DISCHARGE
A ULP where employer prohibits employees from
c. Employer encouragement and assistance – exercising their rights under the Code, on pain of
discharge, and the employee quits as a result of the
Immediately granting of exclusive recognition as prohibition.
bargaining agent without determining whether the union 6. Discrimination because of testimony
represents majority of the employees.
d. Supervisory assistance –
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To dismiss, discharge or otherwise prejudice or membership or continuation of membership is made
discriminate against an employee for having given or available to other members;
being about to give testimony under the LC. Note: A union member may not be expelled from the
Note: Subject matter of testimony can be anything under union, and consequently from his job, for personal or
the Labor Code. impetuous reasons or for causes foreign to the
What is ULP is the employer’s retaliatory act regardless closed-shop agreement (Manila Mandarin Employees
of the subject of the employee’s complaint or testimony. Union vs. NLRC, GR No. L-76989, Sept. 29, 1987).
In effect, if a retaliatory act is done under art 118, the
consequence is ULP under art. 248[f] (Mabeza vs. c. To violate the duty, or refuse to bargain collectively
NLRC, GR No. 118506, April 18, 1997). with the employer, provided it is the representative of the
employees;
SURFACE BARGAINING
Is going through the motions of negotiating without any BLUE-SKY BARGAINING
legal intent to reach an agreement. It involves the Defined as the making exaggerated or unreasonable
question of whether or not the employer’s conduct proposals. Whether or not the union is engaged in
demonstrates and unwillingness to bargain in good faith blue-sky bargaining is determined by the evidence
or merely hard bargaining (Standard Chartered Bank vs. presented by the union as to its economic demands.
Confessor, GR No. 114974, June 16, 2004). Thus, if the union requires exaggerated or unreasonable
economic demands, it is guilty of ULP (Standard
Chartered Bank vs. Confessor, supra).
8. Paid negotiation d. To cause or attempt to cause an employer to pay or
To pay negotiation or attorney’s fees to the union or its deliver or agree to pay or deliver any money or other
officers or agents as part of the settlement of any issue things of value, in the nature of an exaction, for services
in collective bargaining or any other disputes. which are not performed or not to be performed,
including the demand for fee for union negotiations;
9. Violation of CBA
FEATHERBEDDING (make-work activities)
The violation must be gross, flagrant and/or malicious
refusal to comply with the economic provisions of the Refers to the practice of the union or its agents in
CBA (art. 261, LC). causing or attempting to cause an employer to pay or
Note: If the violation is not gross, it is not ULP but a deliver or agree to pay or deliver money or other things
grievance under the CBA. of value, in the nature of exaction, for services which are
NOTE: All the aforementioned acts (except art. 248[f]) not performed or not to be performed, as when a union
must have a relation to the employees exercise of their demands that the employer maintain personnel in
right to self-organization. Anti-union or anti-organization excess of the latter’s requirements.
motive must be proved because it is a definitional Note: It is not featherbedding if the work is performed no
element of ULP. matter how unnecessary or useless it may be.
e. To ask for or accept negotiation or attorney’s fees
from employers as part of the settlement of any issue in
collective bargaining or any other dispute; or
ULP COMMITTED BY UNION
SWEETHEART DOCTRINE
a. To restrain or coerce employees in the exercise of
their right to self-organization. However, a labor Considers it ULP for a labor organization to ask for or
organization shall have the right to prescribe its own accept negotiation or attorney’s fees from the employer
rules with respect to the acquisition or retention of in the settling a bargaining issue or dispute.
membership; The resulting CBA is considered a “sweetheart
contract” , a CBA that does not substantially improve the
NOTE: Interference by a labor organization is not ULP employees’ wages and benefits and whose benefits are
as long as the interference does not amount to restrain far below those that are provided by law.
or coercion. f. To violate a collective bargaining agreement.
b. To cause or attempt to cause an employer to The provisions of the preceding paragraph notwithstanding,
discriminate against an employee, including only the officers, members of governing boards,
discrimination against an employee with respect to
representatives or agents or members of labor associations
whom membership in such organization has been
denied or to terminate an employee on any ground other or organizations who have actually participated in, authorized
than the usual terms and conditions under which or ratified unfair labor practices shall be held criminally liable.
_----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(As amended by Batas Pambansa Bilang 130, August 21, employed in attaining it, and those that control or fix the
1981) methodology and bind or restrict the party hired to the use of
such means. The fist, which aim only to promote the result,
create no EER unlike the second, which address both the
LABOR STANDARDS result and the means used to achieve it and hence, EER exists
EER-RELATIONSHIP: FOUR-FOLD TEST (Insurance Life Assurance Co. Ltd. vs. NLRC, GR No. 84484,
Nov. 15, 1989).
ELEMENTS OF EER: (4 FOLD TEST)
1. Selection and engagement of the employee (hiring); ECONOMIC RELATIONS TEST (Sevilla Doctrine –
Sevilla vs. CA)
An employment relation arises from contract of hire, A subordinate/alternative test. Existing economic
express or implied (Ruga vs. NLRC, 181 SCRA 266). conditions between the parties are used to determine
2. Payment of wages; whether EER exists, like –
1. Payment of PAG-IBIG FUND contributions;
Payment of compensation by way of commission does 2. Payment or remittance of contributions to the State
not militate against the conclusion that EER exists. Insurance Fund;
Under art. 97, LC, wage shall mean however 3. Deduction of withholding tax;
designated, capable of being expressed in terms of
4. Deduction/remittance of SSS contributions.
money, whether fixed or ascertained on a time, task,
price or commission basis (Insular Life Assurance Co.
NOTE: The Labor Code applies with or without
vs. NLRC, GR No. 119930, March 12, 1998).
employment relationship between disputants, depending
3. Power of dismissal; and
on the kind of issue involved. The presence or absence
of employer-employee relationship (EER) is itself a labor
Disciplinary power exercised by employer over the
question (Azucena, 2007).
worker and the corresponding sanction imposed in case
INSTANCES WHERE LABOR CODE APPLIES
of violation of any of its rules and regulations.
DESPITE ABSENCE OF EER:
4. Power of control.
1. Yellow Dog Contract [ULP] – art 248 (b);
2. Violation of Anti-Sexual Harassment Act (making
CONTROL TEST
condition for employment sexual favors) – RA 7877;
Refers to the employer’s power to control or right to
control not only as to the result of the work to be done 3. Labor contracting (independent) – employee of the
but also as the means and methods by which the same contractor has no EER with the Principal (person who
is to be accomplished. hired the contractor);
The control test is the most important test our courts 4. Illegal recruitment.
apply in distinguishing an employee from an
independent contractor. This test is based on the extent CASES WHERE THERE IS NO EER:
of control the hirer exercises over a worker. The greater 1. Farm workers are not employees of the sugar central
the supervision and control the hirer exercises, the more (Victorias Milling Co. Inc. vs. NLRC, GR No. 116347,
likely the worker is deemed as employee. The converse Oct. 3, 1996);
holds true as well – the less control the hirer exercises, 2. Working scholars are not employees of the schools
the more likely that the worker is considered an (Filamer Christian Institute vs. IAC, supra.);
independent contractor (Sonza vs. ABS-CBN 3. Collecting agents on commission basis (Singer
Broadcasting Corp. GR No. 138051, June 10, 2004). Sewing Machine Co. vs. Drilon, GR No. 91116, Jan. 24,
1991);
The control test merely calls for the existence of the right 4. Shoe shine boys (Besa vs. Trajano, GR No. 72409,
of control the manner of doing the work, not the actual Dec. 29, 1986);
exercise of the right. (Zannote Shoes vs. NLRC, GR No. 5. Softdrinks company vs. independent contractors
100665, Feb. 13, 1995). selling softdrinks (Mafinco Trading Corp. vs. Ople, GR
No. L-37790, March 25, 1976).
NOTE: The issuance by the principal of (mere) 6. Resident physicians in training provided there is a
guidelines does not establish control by principal (Coca training agreement between them and the training
Cola Bottlers Phil. Inc. vs. Climaco, GR No. 146881, program is duly accredited or approved by the
Feb. 5, 2007). appropriate government agency.
Not every form of control will have the effect of establishing 7. “Masiador” and “Sentenciador” in cockpit (Semblante
the ERR. The line should be drawn between rules that merely vs. CA, GR No. 196426, Aug. 15, 2011).
serve as guidelines towards the achievement of mutually
desired results without dictating the means or methods to be
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EMPLOYMENT OF ALIENS including such facilities as may be reasonable and
Alien Employment Permit (AEP) necessary to finish their chosen courses under such
Is required for entry into the country for employment agreement (sec. 14, Rule X, Book II, RILC).
purposes and is issued after determination of the
non-availability of a person in the Philippines who is NOTE: This is only for the purpose of benefits available
competent, able and willing at the time of application to to employees. BUT this rule will not apply to
TORTUOUS acts committed by the student under art.
perform the services for which the alien is desired.
2180, NCC.
Under this article, the student is not considered as an
REQUISITE FOR EMPLOYMENT OF RESIDENT
employee. But if he causes damage or injury to a 3rd person,
ALIENS:
the school may be held liable under art. 2180, NCC (Filamer
Immigrants and resident aliens are not required to secure a
Christian Institute vs. IAC, GR No. 75112, Aug. 17, 1992).
working permit. They are required to secure their Alien
Employment Registration Certificate [AERC] (Almodiel vs.
NLRC, GR no. 100641, June 14, 1993). EMPLOYMENT OF CHILDREN
GR: No child below 15 shall be employed.
Exceptions/conditions of employment of a child
APPRENTICESHIP below 15:
Apprenticeship" means practical training on the job
1. When the child works directly under the sole
supplemented by related theoretical instruction. responsibility of his/her parents or legal guardian who
employs members of his/her family – under the following
LEARNERSHIP conditions:
Learners are persons hired as trainees in semi-skilled and a. Employment does not endanger the child’s life, safety,
other industrial occupations which are non-apprenticeable health and morals;
and which may be learned through practical training on the b. Employment does not impair the child’s normal
job in a relatively short period of time which shall not exceed development; and
three (3) months. c. The parent/legal guardian provides the child with the
primary and/or
APPRENTICESHIP LEARNERSHIP secondary education and prescribed by DepEd.
Duration
Not less than 3 months Practical training on the 2. When the child’s employment or participation in public
practical training on the job not to exceed 3 entertainment or information through cinema, theater,
job but not more than 6 months radio, or television is essential, provided that –
months a. Employment does not involve advertisements or
Concept commercials promoting alcoholic beverages, intoxicating
Practical training on the Hiring of persons as drinks, tobacco, and its by-products or exhibiting
job supplemented by trainees in semi-skilled violence;
related theoretical and other industrial b. There is written contract approved by the DOLE;
instruction occupations which are c. The conditions prescribed for the employment of
non-apprenticeable and minors are met (person between ages of 15 and 18 may
which may be learned be employed in any non- hazardous work).
through practical training
on the job in a relatively NON-HAZARDOUS WORK or UNDERTAKING
short period of time One where the employee is not exposed to any risk
Commitment to hire which constitutes an imminent danger to his safety and
No commitment to hire With a commitment to health.
employ the learner as HAZARDOUS WORKPLACES:
regular employee if he 1. Nature of the work exposes the workers to dangerous
desires upon completion environmental elements, contaminants or work
of learnership conditions;
Effect of pretermination 2. Workers are engaged in construction work, logging,
fire fighting, mining, quarrying, blasting, stevedoring,
dock work, deep-sea fishing, and mechanized farming;
WORKING SCHOLAR 3. Workers are engaged in the manufacture or handling
There is NO EER between students on one hand, and of explosives and other pyrotechnic products;
schools on the other hand, when there is agreement 4. Workers use or are exposed to heavy or power-driven
between them under which the former agree to work for machinery or equipment; and
the latter in exchange for the privilege to study free of 5. Workers use or are exposed to power-driven tools.
charge, provided students are given real opportunities,
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service within a definite or predetermined period,
HOUSEHELPERS regardless of whether such job, work, or service is to be
RA 10361- Kasambahay Law. performed or completed within or outside the premises
of the principal.
"Domestic or household service" shall mean service in
the employer’s home which is usually necessary or
SOLIDARY LIABILITY
desirable for the maintenance and enjoyment thereof
Every employer or indirect employer shall be held
and includes ministering to the personal comfort and
responsible with his contractor or subcontractor for any
convenience of the members of the employer’s
violation of any provision of this Code. For purposes of
household, including services of family drivers.
determining the extent of their civil liability under this
Chapter, they shall be considered as direct employers.
NOTE: The definition of a “househelper” cannot be
interpreted to include househelp or laundrywomen working
NOTE: The principal shall be SOLIDARILY liable with
in staffhouses of a company, like petitioner who attends to
the contractor in the event of any violation of any
the needs of the company’s guests and other persons availing provision of the LC, including failure to pay wages. This
of said facilities (Apex Mining Co. vs. NLRC, GR No. 94951, will not prevent the principal from claiming
April 22, 1991). reimbursement from the contractor (AISA vs. NLRC, GR
No. 111722, May 27, 1997).
HOMEWORKER
Industrial worker who accepts work to be fabricated or LABOR-ONLY CONTRACTING
processed at home for a contractor, which work, when An arrangement where the contractor or subcontractor
finished, will be returned to or repurchased by said merely recruits, supplies or places workers to perform a
contractor. job, work or service for principal, and any of the following
elements is present –
HANDICAPPED WORKERS a. No substantial capital or investment which relates to
Handicapped workers are those whose earning capacity is the job, worked or service to be performed;
impaired by age or physical or mental deficiency or injury. b. The contractor or subcontractor are performing
HANDICAPPED HANDICAPPED activities which are directly related to the main business
WORKER (art. 78, LC) PERSONS (RA 7277, of the principal;
Magna Carta for Disabled c. The contractor does not exercise the right to control
Persons) over the performance of the work of the contractual
employee.
those whose earning Those suffering from
SUBSTANTIAL CAPITAL
capacity is impaired by age restriction or different
or physical or mental disabilities, as a result of a Capital stocks and subscribed capitalization in the case
deficiency or injury mental, physical or of corporations, tools, equipment, implements,
machineries and work premises, actually and directly
sensory impairment, to
perform an activity in the used by the contractor or subcontractor on the
manner or within the range performance or completion of the job, work or service
contracted out.
considered normal for a
human being.
PROHIBITED LABOR CONTRACTING
1. Labor-only contracting;
2. Contracting that terminates the employment of regular
ANTI-SEXUAL HARASSMENT employees, or reduces their work hours, or reduces or
(AIM-WET-IHO) splits a bargaining unit, if such contracting out is not
Asking of sexual favors (express or implied) by a person done in good faith and not justified by business
who has AUTHORITY, INFLUENCE, OR MORAL exigencies;
ASCENDANCY in a WORK-ENVIRONMENT, 3. Contracting with a cabo – person/s or labor group
EDUCATIONAL OR TRAINING INSTITUTION, which which, in the guise of labor organization, supplies
causes INTIMIDATING, HOSTILE AND OR workers to an employer, with or without any monetary or
OPPRESSIVE ENVIRONMENT. other consideration whether in the capacity of an agent
of the employer or as an ostensible independent
INDEPENDENT CONTRACTOR (JOB contractor;
CONTRACTING) 4. Contracting with in-house agency;
An arrangement whereby a principal agrees to put-out or 5. Contracting because of a strike or lockout; and
farm-out with a contractor or subcontractor the 6. Contracting that constitutes ULP under art. 248, LC.
performance or completion of a specific job, work or
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RECRUITMENT AND PLACEMENT Individual workers who are able to secure contracts for
"Recruitment and placement" refers to any act of overseas employment on their own efforts and
canvassing, enlisting, contracting, transporting, utilizing, representations without the assistance or participation of any
hiring or procuring workers, and includes referrals, agency. Their hiring nonetheless, shall pass through the POEA
contract services, promising or advertising for for processing purposes (POEA Rules).
employment, locally or abroad, whether for profit or not:
Provided, That any person or entity which, in any
manner, offers or promises for a fee, employment to two
or more persons shall be deemed engaged in ILLEGAL RECRUITMENT
recruitment and placement. (Art. 13-b) Any recruitment activities, including the prohibited
practices enumerated under Article 34 of this Code, to
GR: No person or entity shall engage in the recruitment be undertaken by non-licensees or non-holders of
and placement of workers, locally and overseas. authority, shall be deemed illegal and punishable under
Exceptions: Article 39 of this Code. The Department of Labor and
1. Public employment offices; Employment or any law enforcement officer may initiate
2. Private recruitment entities; complaints under this Article.
3. Private employment agencies;
ECONOMIC SABOTAGE
4. Shipping or manning agents or representatives;
Illegal recruitment when committed by a syndicate or in
5. POEA;
large scale shall be considered an offense involving
6. Construction contractors if authorized by the DOLE
economic sabotage.
and the Construction Industry Authority;
7. Members of the Diplomatic Corps (but hiring must Illegal recruitment is deemed committed by a syndicate if
also go through the POEA);
carried out by a group of three (3) or more persons conspiring
8. Other persons as may be authorized by the DOLE
and/or confederating with one another in carrying out any
Secretary; and
unlawful or illegal transaction, enterprise or scheme defined
9. Name-hirees.
under the first paragraph hereof. Illegal recruitment is
JURISDICTION TRANSFERRED TO THE LABOR deemed committed in large scale if committed against three
ARBITERS OF THE NLRC (sec. 10, RA 8042) (3) or more persons individually or as a group.
1. Claims arising out of an EER relationship or by virtue
of any law or contract involving Filipino workers for WAGE DISTROTION
overseas deployment including claims for actual, moral, A situation where an increase in prescribed wage rates results
exemplary or other forms of damages. in the elimination or severe contraction of intentional
2. Venue of money claims or claims for damages should quantitative differences in wage or salary rates between and
be filed before the Regional Arbitration branch of the among employee groups in an establishments as to
NLRC where the complainant resides or where the effectively obliterate the distinctions embodied in such wage
principal office of the respondent/employer is situated, at
structure based on skills, length of service or other logical
the option of the complainant (2005, NLRC Rules of
basis of differentiation.
Procedure). (Supra)
CORRECTION OF WAGE DISTORTION:
CLAIM FOR PREMATURE TERMINATION OF A. Organized establishment (with a union) –
CONTRACT 1. Employer and union shall negotiate to correct the
Under sec. 10 R.A. 8042, a worker dismissed from distortion;
overseas employment without just, valid or authorized 2. Any dispute arising therefrom should be resolves
cause is entitled to full reimbursement of his placement through grievance procedure under their CBA;
fee with interest at 12% per annum, 3. If the dispute remains unresolved, it shall be resolved
through voluntary arbitration.
GR: Direct hiring of Filipino workers for overseas
employment is not allowed.
B. Unorganized establishment (without a union)
EXCEPTIONS: 1. The employer and employees shall endeavor to
1. Members of diplomatic corps; correct the distortion;
2. International organizations; 2. Any dispute arising therefrom shall be settled through
3. Other employers as may be allowed by the Secretary the National Conciliation and Mediation Board (NCMB);
of DOLE; 3. If it remains unresolved after 10 days of conciliation, it
4. Name hirees. shall be referred to the NLRC, Regional Arbitration
Branch – Labor Arbiter.
NAME HIREES
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CORRECTION OF WAGE DISTORTION: One whose primary duty One who is vested with
A. Organized establishment (with a union) – consists of the powers or prerogatives
1. Employer and union shall negotiate to correct the management of the to lay down and execute
distortion; establishment in which management policies
2. Any dispute arising therefrom should be resolves they are employed or of a and/or to hire, transfer,
through grievance procedure under their CBA; department or subdivision suspend, lay-off, recall,
3. If the dispute remains unresolved, it shall be resolved thereof and to other discharge, assign or
through voluntary arbitration. members of the discipline employees
managerial staff
B. Unorganized establishment (without a union) Supervisors are deemed Supervisors are not
1. The employer and employees shall endeavor to members of the members of the m
correct the distortion; managerial staff (National
2. Any dispute arising therefrom shall be settled through Sugar Refineries Corp.
the National Conciliation and Mediation Board (NCMB); vs. NLRC, March 24,
3. If it remains unresolved after 10 days of conciliation, it 1993)
shall be referred to the NLRC, Regional Arbitration
Branch – Labor Arbiter. CONDITIONS FOR A VALID CWW SCHEME:
1. It is expressly and voluntarily supported by majority of
the employees affected;
UNPAID WAGES (PREFERENCE OF CREDIT 2. If work is hazardous, a certification is needed from an
accredited safety organization or the firm’s safety
IN FAVOE OF EMPLOYEES) committee that work beyond 8 hours is within the limits
or levels of exposure set by the DOLE’s occupational
safety and health standards;
▪ Establish a preference of credit and not a lien 3. The DOLE is duly notified.
(Development Bank of the Philippines vs. Secretary of
Labor, GR No. 79351. Nov. 28, 1989). CONSIDERED AS WORKED HOURS
▪ Applicable only to ordinary preferred credit, hence, A. Waiting Time – considered as hours worked if
must yield to special preferred credits (secured waiting –
creditors). 1. An integral part of work;
▪ This article did not sweep away the overriding 2. The employee is required or engaged by the employer
to wait; or
preference accorded under the scheme of Civil Code to
3. When the employee is required o remain on call in the
tax claims of the government.
employer’s premises or so close thereto that he cannot
use the time effectively and gainfully for his own
WORKING HOURS purpose.
Coverage. Apply to employees in all establishments and
undertakings whether for profit or not, but not to
government employees, managerial employees, field B. Working While On Call –
personnel, members of the family of the employer who are
dependent on him for support, domestic helpers, persons in ▪ When employee is required to remain on call in the
the personal service of another, and workers who are paid by employer’s premises or so close thereto that he cannot
results as determined by the Secretary of Labor in use the time effectively and gainfully for his own
appropriate regulations. purpose.
MANAGERIAL MANAGERIAL
EMPLOYEES (under EMPLOYEES (under ▪ However, if he is not required to remain on the
Labor Standards – art. Labor Relations – art. employer’s premises but is merely required to leave
82) 212) word at his home or with company officials where he
Used only for purposes of Used only for purposes may be reached, he is not considered working while on
Book III (working of Book V (forming and call.
conditions, rest periods, joining unions,
hours of work, etc.) certification elections, C. Preliminary and Postliminary Activities –
collective bargaining) Preliminary – before work
Postliminary - after actual work; compensable when:
1. Controlled or required by employer; and
2. Are pursued necessarily and primarily for the
employer’s benefit.
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3) Employee does not perform any productive work
D.Travel Time – during such attendance.(sec. 6, Rule I, Book III, IRLC).
a) Travel from Home to Work - Normal travel from H. Attendance in Labor Relations Activities –
home to work which is not work time;
GR: NOT COMPENSABLE. 1. CBA Negotiations – GR: not compensable, except if:
Exceptions: a. There is an agreement, for compensability in the
1) Where the worker is made to work on an emergency parties’ Ground Rules;
call and travel is necessary in proceeding to the b. There is an established practice or policy allowing
workplace; compensability; and
2) Travel is done through a conveyance provided by the c. When it is done during regular work hours.
employer;
3) Travel is done under the control and supervision of 2. Grievance Meeting – GR; compensable, except
the employer; when there is a CBA, policy or practice to the contrary.
4) Travel is done under vexing and dangerous
conditions.
NIGHT SHIFT DIFFERENTIAL
b) Travel that is all in day’s work – The time spent by Every employee shall be paid a night shift differential of not
an employee in travel as part of his principal activity, like
less than ten percent (10%) of his regular wage for each hour
travel from jobsite to jobsite during the work day;
of work performed between ten o’clock in the evening and six
COMPENSABLE
o’clock in the morning.
c) Travel away from home – Travel that keeps an
employee away from home overnight; COMPENSABLE
when it cuts across an employee’s workday because it OVERTIME
substitutes for the hours the employee should have been The employee is given OT pay because he is made to work
in the office. longer than what is commensurate with his agreed
compensation for the statutorily fixed or voluntarily agreed
The fact of picking up employees at certain specified hours of labor he is supposed to do (PNB vs. PEMA, GR No. L-
points in going to the project site and drops them of at 30279, July 30, 1982).
the same time on his way back from the field office going
home is not merely incidental to petitioner’s job as a NOTE: A verbal instruction to render OT work prevails
driver. Said transportation arrangement is primarily for over a memorandum prohibiting such work (A. L.
the benefit of the employer. Then the time required of Ammen Transportation Co. vs. Borja, GR No. L-17750,
and used by petitioner in going from his residence to the Aug. 31, 1962).
field office and back should be paid as overtime work OVERTIME PAY INTEGRATED IN THE BASIC
(Rada vs. NLRC, 205 SCRA 69, [1992]). SALARY (“Built In” Overtime Pay)
E. Power Interruptions The stipulation between employer and employee that the
1) 1st 20 minutes is compensable; latter’s regular or basic salary already includes the overtime
2) Succeeding minutes not compensable;
pay is not per se illegal. This is also called composite or
3) If despite the lapse of the 1st 20 minutes, the
package pay or all-inclusive salary.
employees are required to stay in their workplaces, such
time is compensable. WAIVER OF OVERTIME PAY
GR: Overtime pay cannot be waived expressly or
impliedly. Any contrary stipulation is NULL and VOID, as
F. Semestral Break of Teachers
it is intended to benefit laborers and employees.
Exceptions:
Compensable hours worked for it is a form of interruption
1. When the waiver is made in consideration of benefits
beyond their control. Applies only to regular full-time
teachers (University of Pangasinan Faculty Union vs. and privileges which may be more than what will accrue
to them in overtime pay; and
University of Pangasinan, GR N0. L-63122, Feb. 20,
1984). 2. Compressed work week.
G. Lectures, Meetings, Trainings, Programs. QUITCLAIM IN RELATION TO OVERTIME PAY
A quitclaim whereby laborers agree to forego their benefits
Not counted as working time if all the following due from their employer is NULL and VOID in its entirety since
conditions are met – it runs counter with article 22 of the NCC which provides
1) Attendance is outside of the employee’s working against unjust enrichment and is contrary to public policy
hours; (Pampanga Sugar Development Co. Inc. vs. CIR, GR No.
2) Attendance is in fact voluntary; L-39387, June 29, 1982).
_----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Undertime not offset by overtime. Undertime work on any
particular day shall not be offset by overtime work on any f. Under other circumstances analogous or similar to the
other day. Permission given to the employee to go on leave foregoing as determined by the Secretary of Labor and
on some other day of the week shall not exempt the Employment.
employer from paying the additional compensation
FORMULA TO COMPUTE WAGES ON HOLIDAYS
Emergency overtime work. Any employee may be (Memorandum Circular No. 1, Series of 2004)
required by the employer to perform overtime work in 1. For Regular Holidays –
any of the following cases: a. If it is an employee’s regular work day
a. When the country is at war or when any other national I. Unworked - 100%
or local emergency has been declared by the National II. Worked -----200% for the first 8 hours, and additional
Assembly or the Chief Executive; 30% of hourly rate on such day
b. When it is necessary to prevent loss of life or property b. If it is employee’s rest day also
or in case of imminent danger to public safety due to an I. Unworked – 100%
actual or impending emergency in the locality caused by II. Worked ------200% plus 30% of such 200%, and an
serious accidents, fire, flood, typhoon, earthquake, additional 30% for Overtime pay of hourly rate on said
epidemic, or other disaster or calamity; day.
c. When there is urgent work to be performed on 2. For declared Special Days such as Special
machines, installations, or equipment, in order to avoid non-Working Day, Special Public Holiday, Special
serious loss or damage to the employer or some other National Holiday, and nationwide special days; the
cause of similar nature; following rules apply –
a. Unworked – No pay, unless a favorable company
d. When the work is necessary to prevent loss or policy, practice, or CBA grants such payment even if
damage to perishable goods; and unworked;
b. Worked – daily wage rate of 100% plus 30% of the
e. Where the completion or continuation of the work daily rate; in case of overtime, plus 30% of hourly rate on
started before the eighth hour is necessary to prevent said day.
serious obstruction or prejudice to the business or c. Falling on the employee’s rest day and if worked –
operations of the employer. I. Daily wage of 100% plus 50% of the daily rate.
II. In case of overtime, plus 30% of the hourly rate on
Any employee required to render overtime work under this said day.
Article shall be paid the additional compensation required
3. For those declared as Special Working Holidays
REST DAY
When employer may require work on a rest day. The For work performed, an employee is entitled only to his basic
employer may require his employees to work on any rate. No premium pay is required since work performed on
day: said days is considered work on ordinary working days.
a. In case of actual or impending emergencies caused
by serious accident, fire, flood, typhoon, earthquake,
epidemic or other disaster or calamity to prevent loss of TERMINATION OF EMPLOYMENT
life and property, or imminent danger to public safety;
b. In cases of urgent work to be performed on the DISMISSAL: AUTHORIZED CAUSE

machinery, equipment, or installation, to avoid serious AUTHORIZED CAUSES FOR TERMINATION OF
loss which the employer would otherwise suffer; EMPLOYMENT:
1. Installation of Labor-Saving Devices
c. In the event of abnormal pressure of work due to (Automation/Robotics).
special circumstances, where the employer cannot 2. Redundancy.
ordinarily be expected to resort to other measures; 3. Retrenchment (Downsizing).
4. Closure or Cessation of Operation (in good faith).
d. To prevent loss or damage to perishable goods; 5. Other authorized causes.
e. Where the nature of the work requires continuous AUTOMATION/ROBOTICS

operations and the stoppage of work may result in There can be no question as to the right of the
irreparable injury or loss to the employer; and manufacturer to use new labor-saving devices with a
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view to effecting more economy and efficiency in its 2. The apprehended substantial losses are reasonably
method of production (Philippine Sheet Metal Workers’ imminent, can be perceived objectively and in good faith
Union vs. CIR, 83 Phil. 433. by the employer;
REDUNDANCY 3. Retrenchment must be reasonably necessary to
Exists where the services of an employee are in excess prevent the expected losses; and
of what is reasonably demanded by the actual 4. Expected or actual losses must be proved by
requirements of the enterprise (Wiltshire File Co., Inc. sufficient and convincing evidence (Central Azucarrera
vs. NLRC, GR No. 82249, Feb. 7, 1991). dela Carlota vs. NLRC, GR No. 100092, Dec. 29, 1995).
The redundancy should not have been created by the
employer. REQUIREMENTS FOR VALID RETRENCHMENT:
1. Retrenchment is reasonably necessary and likely to
Note: Reorganization as a cost-saving device is prevent business losses, which, if already incurred, are
acknowledged by jurisprudence. An employer is not not merely minimal, but substantial, serious, actual and
precluded from adopting a new policy conducive to a real, or if only expected, are reasonably imminent as
more economical and effective management, and the perceived objectively and in good faith;
law does not require that the employer should be 2. The employer serve a written notice to both
suffering financial losses before he can terminate the employees and the DOLE at least 1 month prior to the
services of the employee on the ground of redundancy intended date of retrenchment;
(Dole Philippines, Inc. vs. NLRC, et al). 3. Payment of separation pay equivalent to 1 month pay
REQUISITES for a valid redundancy program: (DAP or at least ½ month for every year of service;
vs. CA, GR No. 165811, Dec. 14, 2005) 4. Retrenchment must be in good faith and not for the
1. A written notice on both employees and the DOLE at purpose of violating the employee’s right to security of
least one month prior to the intended date of tenure;
retrenchment; 5. The employer used fair and reasonable criteria in
2. Payment of separation pay equivalent to at least one ascertaining who should be dismissed and who would be
month pay or at least one month pay for every year of retained among the employee, such as –
service, whichever is higher; a. Status
3. Good faith in abolishing the redundant position; b. Efficiency
4. Fair and reasonable criteria in ascertaining what c. Seniority
positions are to be declared redundant and accordingly d. Physical fitness
abolished.
e. Age
f. Financial hardships of certain workers (Asian Alcohol
RETRENCHMENT Corp. vs. NLRC, GR No. 131108, March 25, 1999).
Reduction of personnel usually due to poor financial
returns so as to cut down on costs of operations in terms
of salaries and wages to prevent bankruptcy of the
company. This is linked with losses and is resorted to as “LAST IN, FIRST OUT” RULE
it is a cost-cutting measure made immediately necessary It applies to termination of employment in the line of work.
by business reduction or reverses. What is contemplated in the rule is that when two or more
employees are occupying the same position in the company
Note: The phrase “to prevent losses” means that affected by the retrenchment program, the last one
retrenchment or termination from service of some
employed will necessarily be the first to go (Maya Farms
employees is authorized to be undertaken by the
employer sometime before the losses anticipated are Employees Organization vs. NLRC, GR No. 106256, Dec. 28,
actually sustained or realized. Actual losses need not set 1994).
in prior to retrenchment (Cajucom vs. IPI Philippines
Cement Corporation, GR No. 149090, Feb. 11, 2005).
The employer, to achieve economy and efficiency in its
operations, can phase out positions or group of positions CLOSURE or CESSATION OF OPERATION OF THE
and thereafter engage the services of an independent ESTABLISHMENT OR UNDERTAKING
contractor to do the functions of the abolished positions, Must be in good faith.
unless in a CBA the employer is prohibited from such Rules:
cost-saving recourse (Serrano vs. NLRC, and Isetann 1. Where closure is due to serious business losses, no
Dept. Store, GR No. 117040. Jan. 27, 2000). separation pay is required (North Davao Mining Corp.
GENERAL STANDARDS OF RETRENCHMENT: vs. NLRC, GR No. 112546, March 13, 1996).
1. The losses expected are substantial and not merely 2. Where closure is not due to serious business losses,
de minimis in extent; workers are entitled to separation pay.
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3. Where closure is due to an act of the government, the Habitual Neglect – implies repeated failure to perform
workers are not entitled to separation pay (National one’s duties over a period of time, depending upon the
Federation of labor vs. NLRC, GR No. 127718, March 2, circumstances (JGB and Associates, Inc. vs. NLRC, GR
2000). No. 10939, March 7, 1996).
In order to constitute a just cause for the employee’s
Note: Article 283 includes both the complete cessation of all dismissal, the neglect of duties must not only be gross
business operation of an establishment and the cessation of but also habitual.
only part of a company’s business (Cheniver Deco Print
However, there is a case wherein the SC held that
Technics Corp. vs. NLRC, GR No. 122876, Feb. 17, 2000). although the Gross negligence of the employee is not
habitual, the employer was justified in terminating the
employee when the employer suffered substantial
DISMISSAL: JUST CAUSES damage due to the gross negligence of the employee. In
CONSTRUCTIVE DISMISSAL this particular case, the service motorcycle of the
1. Serious Misconduct employee was stolen because the employee left the key
Misconduct – has been defined as the transgression of on the motorcycle while he was away despite the
some established and definite rule of action, a forbidden warning of the employer never to leave the key on the
act, a dereliction of duty, willful in character, and implies motorcycle alone.
wrongful intent and not mere error in judgment (DOLE
Manual, Sec. 4343, 01). Forms of Neglect of Duty:
The misconduct to be serious must be: 1) Habitual tardiness and absenteeism;
1) Of such grave and aggravated character and not 2) Abandonment –
merely trivial (Micro Sales Operation Network vs. NLRC, a. Failure to report to work or absence without valid or
Oct. 11, 2005); and justifiable reason;
2) In connection with the employees’ work. b. Clear intention to sever EER being manifested by
some overt acts (Labor, et al. vs. NLRC, GR No.
Samples: 110388, Sept, 14, 1995).
a. Sexual harassment;
b. Fighting within company premises; The filing of the complaint for illegal dismissal (with a
c. Uttering obscene, insulting or offensive words against prayer for reinstatement) is inconsistent with the charge
of abandonment (Kams International, Inc. vs., NLRC,
a superior;
GR No. 128806, Sept. 28, 1999).
d. Falsification of time records;
The rule has no application where the complainant does
e. Gross immorality.
not pray for reinstatement and asks for separation pay
instead (Jo, et al. NLRC, GR No. 121605, Feb. 2, 2000).
2. Willful Disobedience or Insubordination
4. Fraud or Willful Breach of Duty
Requisites:
To constitute a just cause for terminating an employee –
1) The employee’s assailed conduct has been willful or
a. The fraud must be committed against the employer or
intentional, the willfulness being characterized by a
his representative; and
“wrongful and perverse attitude”; and
b. In connection with the employee’s work.
2) The order violated must have been –
a. Reasonable and lawful;
Like:
b. Made known to the employee; and
1) Falsification of time cards;
c. In connection with the duties which he had been
2) Theft of company property;
engaged to discharge (Acesite Corporation vs. NLRC, 3) Unauthorized use of company vehicle.
GR No. 152308, Jan. 26, 2005).
Guidelines for the Doctrine of Loss of Confidence to
Note: There is no law that compels an employee to Apply:
accept a promotion for the reason that a promotion is in
a. Loss of confidence should not be simulated
the nature of a gift or reward, which a person has the
(reasonable basis for loss of confidence);
right to refuse. Hence, the exercise by the employee of
b. Not used as a subterfuge for causes which are
the right to refuse a promotion cannot be considered in
improper, illegal or unjustified;
law as insubordination, or willful disobedience of a lawful
c. Not arbitrarily asserted in the face of overwhelming
order of the employer (PT and T Corp. vs. CA, Sept. 29,
evidence to the contrary;
2003).
3. Gross Habitual Neglect of Duty Gross neglect – d. Must be genuine, not a mere afterthought to justify
means an absence of that diligence that an ordinarily a earlier action taken in bad faith;
prudent man would use in his own affairs.
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e. The employee involved holds a position of trust and Refers to an offense by the employee against the person
confidence. of his employer or any immediate member of his family
▪ Generally, employers are allowed wider latitude of or his duly authorized representative and thus, the
conviction of a crime involving moral turpitude is not
discretion in terminating the employment of managerial
analogous thereto as the element of relation to his work
personnel or those who, while not of similar rank, or to his employee is lacking
perform functions which by nature require the employer’s Note: Conviction of the employee is not necessary to
full trust and confidence (Coca-Cola Bottlers vs. NLRC,
warrant his dismissal by his employer.
GR No.82580, April 25, 1989). The immediate members of the family referred to are
limited to –
▪ If the employees are ordinary rank-and-file workers, a) Spouse
such as electricians and operators of equipment, there b) Ascendants;
has to be some kind of proof that they are involved in the c) Descendants;
loss of company property. Mere accusations will not d) Legitimate, or illegitimate, or adopted brothers and
suffice (Lamsan Trading, Inc. vs. Leogardo, GR No. sisters;
73245, Sept. 30, 1986). e) Relatives by affinity within the same degree -
i. Parents-in-law;
▪ For loss of trust and confidence to be a valid ground ii. Son/daughter-in-law;
for an employee’s dismissal, it must be substantial and iii. Brother/sister-in-law.
not arbitrary, and must be founded on clearly established
facts sufficient to warrant the employee’s separation DISMISSAL NOT AFFECTED BY ACQUITTAL
from work (Labor, et al. vs. NLRC, GR No. 110388, The conviction of an employee in a criminal case is not
Sept. 14, 1995). indispensable to warrant his dismissal by his employer.
The fact that a criminal complaint against an employee
has been dropped by the city fiscal is not binding and
conclusive upon the labor tribunal (Starlite vs. NLRC,
GUIDELINES TO DETERMINE THE VALIDITY OF
GR No. 78491, March 16, 1989)
TERMINATION:
1. Gravity of the offense; 6. Analogous Cases
2. Position occupied by the employee;
3. Degree of damage to the employer; Must be due to the voluntary act/or willful act or omission
4. Previous infractions of the same offense; of the employee (Nadura vs. Benguet Consolidated, GR
5. Length of service; No. L-17780, Aug. 24, 1962).
Note: Length of service may be overshadowed by the Samples:
gravity of the offense. 1) Violation of company rules and regulations;
6. Nature of business; 2) Drunkenness;
7. Nature of employment; 3) Gross inefficiency;
8. Totality of infractions; 4) Illegal diversion of employer’s products.
9. Principle of equity; 5) Habitual absenteeism and tardiness;
10. Principle of charity/understanding 6) Habitual infractions;
7) Conviction of a crime (carrying a penalty of
TOTALITY OF INFRACTIONS DOCTRINE imprisonment);
It is the totality, not the compartmentalization of company 8) Violation of safety rules;
infractions that the employee had consistently committed, 9) Immorality;
which justifies the penalty of dismissal (like number of 10) Sexual harassment;
violations during the period of employment] (Manila Electric 11) Change of ownership (in good faith);
Co. vs. NLRC, GR No. 114129, Oct. 24, 1996). 12) Failure to qualify.
13) Use of dangerous drugs (sec. 36 [d], RA 9165).
DOCTRINE OF INCOMPATIBILITY
Where the employee has done something that is DUE PROCESS REQUIREMENT (TWIN
contrary or incompatible with the faithful performance of NOTICE RULE)
his duties, his employer has a just cause for terminating
his employment (Manila Chauffer’s League vs. DUE PROCESS TO BE OBSERVED BY THE
Bacharach Motor Co., 40 OG 159). EMPLOYER IN TERMINATION OF EMPLOYEES:
5. Commission of a Crime or Offense 1. Notice (Twin Notice Rule) – the employer is required
to furnish an employee who is to be dismissed with 2
written notices before such termination:
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a. Pre-Notice - a written notice served on the employee Closure to due serious No separation pay
specifying the ground/s for termination, and giving to business losses or (North Davao Mining
said employee reasonable opportunity within which to financial reverses and Development
explain his side. Corp. vs. NLRC, 254
b. Post-Notice – a written notice of termination served SCRA 721)
on the employee indicating that upon due consideration Closure/cessation of No separation pay
of all circumstances, grounds have been established to operations due to an act of (National Federation of
justify his termination. [which comes only after the the government labor, vs. NLRC, GR
employee is given a reasonable period from receipt of No. 127718, March 2,
first notice to answer the charge] (Pepsi-Cola vs. NLRC, 2000)
GR No. 90964, Feb. 10, 1992).
2. Hearing or Conference – a hearing or conference

REINSTATEMENT
Take Note: there is no reinstatement of an illegally dismissed
should be held during which the employee concerned,
with the assistance of counsel, if he so desires, is given OFW or a seaman.
the opportunity to respond to the charge, present his
evidence or rebut the evidence presented against him NOTE: There is no reinstatement of an illegally
(GR No. 157757, June 28, 2005). dismissed househelper. Reason: Fiduciary nature of
his/her work.
SEPARATION PAY
The posting of the bond of the employer does not have the
effect of staying the execution of the reinstatement aspect
TERMINATION of the decision of the Labor Arbiter (Pioneer Texturizing
CAUSE PAY 80 SCRA 806 [1997]).
Corp. v. NLRC,2
Installation of labor saving Equivalent to at least 1
devices and Redundancy month pay or at least 1
month for every year of PAYROL REINSTATEMENT
service, whichever is Payroll Reinstatement: one where an employee is paid his
higher. A fraction of at monthly salary without making him perform actual work. It
least 6 months is applies in termination cases where the labor court declares
considered as 1 whole the dismissal illegal and orders reinstatement of the
year employee, but the employer does not want to actually or
Retrenchment Equivalent to at least 1 physically reinstate him instead.
month pay or at least ½
month pay for every
year of service,
REGULAR EMPLOYEES
An employment shall be deemed to be regular where the
whichever is higher. A
fraction of at least 6 employee has been engaged to perform activities which are
months is considered 1 usually necessary o r desirable i n the usual business or trade
whole year. of the employer, except where the employment has been
Closure of Cessation NOT Equivalent to at least 1 fixed for a specific project or undertaking the completion or
due to serious business month pay or at least ½ termination of which has been determined at the time of the
losses or financial month pay for every engagement of the employee or where the work or service to
reverses year of service, be performed is seasonal in nature and the employment is for
whichever is higher. A the duration of the season.
fraction of at least 6
months is considered 1 Any employee who has rendered at least one year of service,
whole year whether such service is continuous or broken, shall be
Disease Equivalent to at least 1 considered a regular employee with respect to the activity in
month pay or at least ½ which he is employed and his employment shall continue
month pay for every while such activity exists.
year of service,
whichever is higher. A
CASUAL EMPLOYMENT
fraction of at least 6
Employment arrangement where an employee is
months is considered 1
engaged to perform activities which are not necessary
whole year.
and desirable in the usual business or trade of the
employer.
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▪ The status of regular employment attaches to the 3. It arises through a contract with the following elements
–
casual employee who has rendered at least one year of
a. The employee must learn and work at a particular
service, whether such service is continuous or broken,
type of work;
with respect to the activity in which he is employed and
b. Such work calls for certain qualifications;
his employment shall continue while such activity exists.
c. The probation is fixed;
▪ A casual employee is only casual for one year, and it is d. The employer reserves the power to terminate during
the passage of time that gives him regular status or at the end of the trial period; and
(KASAMMA-CCO vs. CA, GR No. 159828, April 19, e. And if the employee has learned the job to the
2006). satisfaction of the employer, he may be became a
▪ A “permanent casual” is a regular employee. regular employee if he is allowed to continue working
beyond the probationary period.
TEMPORARY or FIXED-PERIOD EMPLOYMENT
Employment arrangement where an employee is DURATION
engaged to work on a specified period of time agreed GR: Probationary employment shall not exceed 6
upon before the commencement of the employment. months form the date the employee started working.
A fixed-period employee does not become regular Exceptions:
employee because his employment is coterminous with 1. When it is covered by an apprenticeship agreement
a specific period of time. stipulating a longer period;
2. When the same is established by company policy;
CRITERIA FOR FIXED-PERIOD EMPLOYMENT TO BE 3. When the same is required by the nature of the work
VALID: performed (Buiser vs. Leogardo, GR No. L-63316, July
1. The fixed period employment was knowingly and 13, 1984).
voluntarily agreed upon by the parties without any force, 4. By agreement of the parties granting extension of
duress, or improper pressure being brought to bear upon period of probation.
the employee and absent any other circumstances
vitiating consent; or NOTE: The probationary period set for private
2. It satisfactorily appears that the employer and the professors, instructors and teachers is 3 consecutive
employee dealt with each other on more or less equal years of satisfactory service (UST vs. NLRC, GR No.
terms with no moral dominance exercised by the former 85519, Feb. 15, 1990)..
or the latter (Brent School vs. Zamora, GR No. L-48494, EXTENSION OF PROBATION
Feb. 5, 1990). The employer and employee may extend by agreement
the probationary period of employment beyond 6 months
Fixed-term employment will not be considered valid to give the employee a chance to qualify as a regular
where it is apparent that the periods have been imposed employee (Mariwasa Manufacturing, Inc. vs. Leogardo,
to preclude acquisition of tenurial security by the Jr., GR No. 74246, Jan. 26, 1989).
employee. It shall be struck down or disregarded as By voluntarily agreeing to such an extension, the
contrary to public policy (Purefoods Corp. vs. NLRC, GR employee waived any benefit attaching to the completion
No. 122563, Dec. 12, 1997). of the period if he still failed to make the grade during the
period of extension (Mariwasa Manufacturing, Inc. vs.
Note: Seafarers cannot be considered as regular employees. Leogardo,supra).
Their employment is governed by the contracts they signed
everytime they are rehired and their employment is DOUBLE or SUCCESSIVE PROBATION NOT
terminated when the contract expires. Their employment is ALLOWED:
The evil sought to be prevented is to discourage
fixed for a certain period of time (Ravago vs. Esso Eastern
scheming employers from using the system of
Maritime, Ltd. GR No. 158324, March 14, 2005).
double/successive probation to circumvent the mandate
of the law of regularization and make it easier for them to
PROBATIONARY EMPLOYEES dismiss their employees (Holiday Inn Manila vs. NLRC,
Exists where the employee, upon his engagement, is made to GR No. 109114, Sept 14, 1993).
undergo a trial period during which the employer determines TERMINATION OF PROBATIONARY EMPLOYMENT
his fitness to qualify for regular employment based on Also protected by the security of tenure clause of the
reasonable standards made known to his at the time of his Constitution. Before the expiration of the probationary
engagement. period, employment may be terminated on two grounds
CHARACTERISTICS: –
1. It is an employment for a trial period; a. Just cause; and/or
2. It is a temporary employment status prior to regular b. Failure to meet the standards for qualifications for a
employment; regular employment.
_----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The age of retirement is that specified in the CBA or in
Note: Probationary employee is entitled to procedural the employment contract.
due process prior to dismissal from the service. A. Employees other than underground mining
workers -
REGULAR STATUS AFTER PROBATIONARY 1. Optional – 60 years old but not beyond 65 years old.
PERIOD 2. Compulsory –not beyond 65 years old.
If the probationary employee is allowed to work beyond
the period of 6 months or the agreed probationary B. Underground mining workers –
period, said employee becomes a regular employee BY 1. Optional – 50 but not beyond 60 years old.
OPERATION LAW. 2. Mandatory – not beyond 60 years old.
SEASONAL EMPLOYEES Compulsory retirement at age below 60 is allowable if

Employment arrangement where an employee is duly provided for in the CBA (Pantranco North Express
engaged to work during a particular season on an vs. NLRC, GR No. 95940, July 24, 1996).
activity that is usually necessary or desirable in the usual Restriction in private retirement plan will not prevent the
business or trade of the employer. employee from retiring optionally at age 60 (Manuel L.
During off-season, the relationship of employer and Quezon University vs. NLRC, GR No. 102612, June 19,
employee is not severed; the seasonal employee is 1997).
merely considered on leave of absence without pay. EXTENSION OF SERVICE OF RETIREE
Seasonal workers who are repeatedly engaged from Upon the compulsory retirement of an employee or
season to season performing the same tasks are official in the public or private service, his employment is
deemed to have acquired regular employment. deemed terminated. The matter of extension of service
of such employee or official is addressed to the sound
Seasonal employees are in regular employment discretion of the employer (UST Faculty Union vs.
because of the nature of their job and not because of the NLRC, GR No. 89885, Aug. 6, 1990).
length of time they have worked. (Philippine Tobacco Note: Under section 26, RA 4670, Magna Carta for
Flue-curing and Redrying Corp. vs. NLRC, GR No. Public School Teachers, public school teachers having
127395, Dec. 10, 1998). fulfilled the age and service requirements of the
applicable retirement laws shall be given ONE RANGE
SALARY RAISE upon retirement, which shall be the
PROJECT EMPLOYEES basis of the computation of the lump sum of the
PROJECT EMPLOYMENT retirement pay and the monthly benefit thereafter.
Employment has been fixed for a specific project or EXEMPTED FORM THE PAYMENT OF RETIREMENT
undertaking, the completion or termination of which has PAY:
been determined at the time of engagement of the 1. Retail, service and agricultural establishments or
employee. business operations employing NOT more than 10
employees;
RETIREMENT 2. Government employees (covered by Civil Service
It is the result of a bilateral act of the parties; a voluntary Law);
agreement between the employer and the employees 3. Domestic helpers and those in the personal service of
whereby the latter, after reaching a certain age, agrees another.
and/or consents to sever his employment with the former
(Brion vs. SPUM of Seventh Day Adventist Church, GR No. In the absence of a retirement plan or agreement
135136, May 19, 1999). providing for retirement benefits of employees in the
establishment, an employee upon reaching the age of
KINDS OF RETIREMENT SCHEMES: sixty (60) years or more, but not beyond sixty-five (65)
1. Compulsory and contributory in nature; years which is hereby declared the compulsory
retirement age, who has served at least five (5) years in
2. One set up by agreement between the parties in CBA
the said establishment, may retire and shall be entitled
or other agreements between them (other applicable
to retirement pay equivalent to at least one-half (1/2)
employment contract);
month salary for every year of service, a fraction of at
3. One that is voluntarily given by the employer,
least six (6) months being considered as one whole
expressly as an unannounced company policy or
year.
impliedly as in failure to contest the employee’s claim for
retirement benefits (Marilyn Odchimar Gerlach vs.
Unless the parties provide for broader inclusions, the term
Reuters Limited, Philippines, GR No. 148542, Jan. 17,
‘one-half (1/2) month salary’ shall mean fifteen (15) days plus
2005).
one-twelfth (1/12) of the 13th month pay and the cash
RETIREMENT AGE
_----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
equivalent of not more than five (5) days of service incentive
leaves. PORTABILITY PROVISION
The "portability" provisions of R.A. No. 7699 allow the
SOCIAL LEGISLATION LAWS transfer of funds for the account and benefit of the
worker who transfers from one system to another.
GSIS BENEFITS This is advantageous to the SSS and GSIS members for
(1) Employees compensation which shall include
purposes of death, disability or retirement benefits. In the
both income and medical and related benefits,
event the employees transfer from the private sector to
including rehabilitation;
the public sector, or vice-versa, their creditable
(2) Temporary total disability benefit;
employment services and contributions are carried over
(3) Permanent total disability benefit;
and transferred as well.
(4) Separation benefit; and
(5) Retirement benefit.
MATERNITY BENEFITS “Believe that all your dreams will come

1. R.A. No.11210; Act increasing the maternity
leave period of 105 days for female workers true. You will be rewarded of your
with an option to extend for an additional of hardwork and devotion by the will of the
30 days without pay and additional 15 days
for solo mothers both in public and private Greatest, the Supreme and Divine.”
sector. (IRR)
2. 60 days paid leave for miscarriage and -Atty. Genesis M. Auza

emergency termination of pregnancy.
FREQUENCY OF GRANT
Maternity leave shall be granted to a qualified female
worker in every instance of pregnancy, miscarriage or
emergency termination of pregnancy regardless of
redundancy. (Sec. 5, IRR of R.A. No. 11210)
Maternity benefit after termination of employment such

as full payment shall be granted when pregnancy or
miscarriage occur not more than 15 days after the
termination of employment as the right already accrued.
This period shall not apply if the worker is terminated
from employment without just cause, in which case, the
employee shall be paid the full payment, in addition to
the other daily cash maternity benefits she may receive
had she not been illegally dismissed.
PATERNITY LEAVE
Every married male employee in the private and public
sectors shall be entitled to a paternity leave of seven (7) days
with full pay for the first four (4) deliveries of the legitimate
spouse with whom he is cohabiting. (R.A. 8187)
SSS COMPULSORY COVERAGE

Any person who performs services for an
employer in which either or both mental and
physical efforts are used and who receives
compensation for such service, where there is
an Employer-Employee Relationship.

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Labor Law Areas in the 2019 Bar

Atty. Genesis M. Auza - #auzalawreview – 09207025338

INTRA-CORPPORATE DISPUTE LABOR RELATIONS

SECRETARY OF LABOR METHODS OF DETERMINING BA.

DOCTRINE OF MEANS AND PURPOSES DISMISSAL DUE TO STRIKE

1) It is contrary to public policy for it is tantamount to 5. Discrimination

b. In cases of urgent work to be performed on the DISMISSAL: AUTHORIZED CAUSE

e. Where the nature of the work requires continuous AUTOMATION/ROBOTICS

2. Hearing or Conference – a hearing or conference

SEASONAL EMPLOYEES Compulsory retirement at age below 60 is allowable if

MATERNITY BENEFITS “Believe that all your dreams will come

2. 60 days paid leave for miscarriage and -Atty. Genesis M. Auza

Maternity benefit after termination of employment such

SSS COMPULSORY COVERAGE

You might also like

Labor Law Areas 2019

Uploaded by

Copyright:

Available Formats

Labor Law Areas 2019

Uploaded by

Document Information

Original Description:

Original Title

Copyright

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Share this document

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Did you find this document useful?

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Copyright:

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Labor Law Areas 2019

Uploaded by

Copyright:

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Labor Law Areas in the 2019 Bar

Atty. Genesis M. Auza - #​auzalawreview – 09207025338

INTRA-CORPPORATE DISPUTE LABOR RELATIONS

SECRETARY OF LABOR METHODS OF DETERMINING BA.

DOCTRINE OF MEANS AND PURPOSES DISMISSAL DUE TO STRIKE

1) It is contrary to public policy for it is tantamount to 5. Discrimination

b. In cases of urgent work to be performed on the DISMISSAL: AUTHORIZED CAUSE

e. Where the nature of the work requires continuous AUTOMATION/ROBOTICS

2. ​Hearing or Conference ​– a hearing or conference

SEASONAL EMPLOYEES Compulsory retirement at age below 60 is allowable if

MATERNITY BENEFITS “Believe that all your dreams will come

2. 60 days paid leave for miscarriage and -​Atty. Genesis M. Auza

Maternity benefit after termination of employment such

SSS COMPULSORY COVERAGE

You might also like

Atty. Genesis M. Auza - #auzalawreview – 09207025338

2. Hearing or Conference – a hearing or conference

2. 60 days paid leave for miscarriage and -Atty. Genesis M. Auza