I.

GENERAL PROVISIONS

Define Labor Standards Law

Answer – Labor standards law sets out the minimum terms,
conditions and benefits of employment that employers must
provide or comply with and to which employees are entitled
as a matter of legal right. The laws on wages and work
hours, on safety and health of employees, on employment
benefits such as paid leaves and medical services for work-
connected injuries are labor standards laws.

Define Labor Relations Law

Answer – Labor relations law defines the status, rights and
duties, as well as the institutional mechanisms, that
govern the individual and collective interactions between
employers, employees and their representatives.
Unionization, negotiation, and dispute settlements fall in
the area of labor relations.
Cite important constitutional provisions affecting labor,
management and social justice.
Answer – The following are constitutional provisions affecting
labor, management and social justice:
Article II-Section 9. The State shall promote a just
dynamic social order that will ensure the prosperity and
independence of the nation and free the people from poverty
through policies that provide adequate social services, promote
full employment, a rising standard of living, and an improved
quality of life for all.
Article II-Section 10. The State shall promote social
justice in all phases of national development.
Article II-Section 11. The State values the dignity of
every human person and guarantees full respect for human rights.
Article II-Section 13. The state recognizes the vital role
of the youth in nation-building and shall promote and protect
their physical, moral, spiritual, intellectual, and social well-
being.
It shall inculcate in the youth patriotism and nationalism, and
encourage their involvement in public and civic affairs.

Article II-Section 14. The State recognizes the role of

women in nation-building, and shall ensure the fundamental
equality before the law of women and men.

Article II-section 18. The State affirms labor as a

primary social economic force. It shall protect the rights of
workers and promote their welfare.

Article II-Section 20. The State shall recognizes the

indispensable role of the sector, encourages private
enterprises, and provides incentives to need investments.

Article II-Section 21. The State shall promote

comprehensive rural development and agrarian reform.
 Article III-Section 1. No person shall be deprived of life,
liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.

Article III-Section 4. No law shall be passed abridging the

freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the government for
redress of grievances.

Article III-Section 8. The right of the people, including

those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall
not be abridged.

Article XIII-Section 1. The Congress shall give highest

priority to the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social, economic,
and political inequalities, and remove cultural inequalities by
equitably diffusing wealth and political power for the common good.
 To this end, the State shall regulate acquisition,
ownership, use, and disposition of property and its increments.

Article XIII-Section 2. The promotion of social justice

shall include the commitment to create economic opportunities
based on freedom of initiative and self-reliance.

Article XIII-Section 3. The state shall afford full

protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of
employment opportunities for all.

It shall guarantee the rights of all workers to self-

organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of
tenure, humane conditions of work, and a living wage. They
shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.
 Article XIII-Section 14. The State shall protect
working women by providing safe and healthful working
conditions, taking into account their maternal
functions, and such facilities and opportunities that
will enhance their welfare and enable them to realize
their full potential in the service of the nation.

What is the basic policy mandated under the Labor Code?

Answer-Under Article 3 of the Labor Code, the State

shall afford protection to labor, promote full
employment, ensure equal work opportunities regardless
of sex, race or creed, and regulate the relations
between workers and employees. The state shall assure
the rights of workers to self-organization, collective
bargaining, security of tenure and just and humane
conditions of work.
How are labor laws construed?
Answer-Under Article 4 of the Labor code, all doubts in
the implementation and interpretation of the provisions
of the Labor Code and its implementing rules and
regulations, shall be resolved in favor of labor. (1996
bar exam)
II. RECRUITMENT AND PLACEMENT OF WORKERS

What is the regulatory power of the Secretary of Labor with

respect to recruitment and placement activities?
Answer- Under Article 36 of Labor Code, the Secretary of Labor
shall have the power to restrict and regulate the recruitment
and placement of all agencies and is hereby authorized to issue
orders and promulgate rules and regulations to carry out of the
objectives and implement the provisions of Title I, Recruitment
and Placement of Workers, Labor code.

What is the visitorial power of the Secretary of Labor with

respect to recruitment and placement?
Answer-The Secretary of Labor or his duly authorized
representative may, at any time, inspect the premises, books of
accounts, and records of any person or entity covered by this
title, and require it to submit reports regularly on
prescribed forms and act on violations of any provisions of
Title I, Recruitment and Placement of Workers, Labor Code.

Define recruitment and placement

Answer-Recruitment and placement refers to any act of (1)
canvassing, (2) enlisting, (3) contracting, (4) transporting,
(5) utilizing, (6) hiring, or (7) procuring workers, and
includes referrals, contract services, promising or advertising
for 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 recruitment and placement (2007 bar)

Distinguish license from authority

Answer-License means a document issued by the Department of
labor authorizing a person or entity to operate a private
employment agency while authority means a document issued by
the Department of Labor authorizing a person or association
Engage in recruitment and placement activities as a private
recruitment agency. (2007 bar)

Who has jurisdiction over all cases including money claims,

arising out any law or contract involving overseas Filipino
workers in overseas employment including seamen>
Answer- The National Labor Relations Commission has
jurisdiction under the Migrant Workers Act (R.A. 8042) as
amended by R.A. 10022.

How much does a worker dismissed from overseas employment

receive under the said Migrant Worker’s Act as amended by R.A
10022?
Answer-A worker dismissed from overseas employment without
just, valid or authorized cause as defined by law or contract
is entitled to the full reimbursement of his placement fee with
interest at 12% per annum, plus salary for the unexpired
portion of his employment contract or for three (3) months for
every year of the unexpired term, whichever is lesser.
What is the prohibition with respect to travel agencies?
Answer-Under Article 26 of the Labor Code, travel
agencies and sales agencies of airline companies are
prohibited from engaging in the business of recruitment
and placement of workers for overseas employment whether
for profit or not. (2007 bar)

What is the requirement for corporations in order for it

to participate in the recruitment and placement of
workers?
Answer-Article 27 of the labor Code provides that
Corporations, partnerships or entities with at least 75%
of the authorized and voting capital stock of which is
owned and controlled by Filipino citizens shall be
permitted in the recruitment and placement of workers,
locally or overseas (1998 bar)
Is a license or authority transferable?
Answer-No. Under Article 29 of the Labor code, no license or
authority shall be used directly or indirectly by any person
other than the one in whose favor it was issued or at any other
place other than that stated in the license or authority, nor
may such license or authority be transferred, conveyed or
assigned to any other person or entity.(1998 bar)

Define illegal recruitment under the Migrant Workers’ Act

amended by R.A. 10022?
Answer-Illegal recruitment shall mean any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring, or
procuring workers and includes referring, contract services,
promising or advertising for employment abroad, whether for
profit or not, when undertaken by non-license or non-holder or
authority contemplated under Article 13 (f) of Presidential
Decree No. 442, as amended (Labor code of the Philippines);
provided, that any such non-licensee or
Non-holder who, in any manner, offers or promises for a free
employment abroad to two or more persons shall be deemed so
engaged. It shall likewise include the following acts, whether
committed by any person, whether a non-licensee, non-holder,
licensee or holder of authority:

a. to charge or accept directly or indirectly any amount

greater than that specified in the schedule of allowable
fees prescribed by the Secretary of Labor and Employment, or
to make a worker pay or acknowledge any amount greater than
that actually received by him as a loan or advance;
b. to furnish or publish any false notice or information or
documentation in relation to recruitment or employment;
c. to give any false notice, testimony, information or document
or commit any act of misrepresentation for the purpose of
securing a license or authority under the Labor Code, or for
the purpose of documenting hired workers through a job order
that pertains to non-existent work, work different employer
whether registered or not with the POEA;
d. to include or attempt to induce a worker already employed to
quit his employment in order to offer him another unless the
transfer is designed to liberate a worker from oppressive terms
and conditions of employment;
e. to influence or attempt to influence any person or entity not
to employ a worker who has not applied for employment through
his agency or who has formed, joined or supported, or has
contacted or is supported by any union workers’ organization;
f. to engage in the recruitment or placement of workers in jobs
harmful to public health or morality or to the dignity of the
Republic of the Philippines;
g. to fail to submit reports on the status of employment,
placement vacancies, remittance of foreign exchange earnings,
separation from jobs, departures and such other matters or
information as may be required by the Secretary of Labor and
Employment;
h. to substitute or alter to the prejudice of the worker,
employment contracts approved and verified by the Department of
labor and Employment from the time of actual signing thereof by
the parties up to and including the period of the expiration of
the same without the approval of the Department of labor and
Employment;
i.for an officer or agent of a recruitment or placement agency
to become an officer or member of the Board of any corporation
engaged in travel agency or to be engaged directly or
indirectly in the management of travel agency;
j. to withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations, or
for any other reasons, other than authorized under the Labor
Code and its implementing rules and regulations;
k. failure to actually deploy a contracted worker without valid
reason as determined by the department of labor and Employment;
l. failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for purposes
of deployment, in cases where the deployment does not actually
take place without the worker’s fault. Illegal recruitment when
committed by a syndicate or in large scale shall be considered
an offense involving economic sabotage;
m. to allow a non-Filipino citizen to head or manage a licensed
recruitment/manning agency;
n. grant a loan to an overseas Filipino worker with interest
exceeding eight (8%) per annum, which will be used for payment of
legal and allowable placement fees and make the migrant worker
issue, either personally or through a guarantor or accommodation
party, postdated checks in relation to the said loan;
o. impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to avail of a loan only from
specifically designated institutions, entities or persons;
p. refuse to condone or renegotiate a loan incurred by an overseas
Filipino worker after the latter’s employment contract has been
prematurely terminated through no fault of his or her own;
q. impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to undergo health
examinations only from specifically designated medical clinics,
institutions, entities or persons, except in the case of a
seafarer whose medical examination cost is shouldered by the
principal/shipowner;
r. impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to undergo training, seminar,
instruction or schooling of any kind only from specifically
designated institutions, entities or persons, except for
recommendatory trainings mandated by principal/shipowners where the
latter shoulder the cost of such trainings;
s. for a suspended recruitment activity including the processing of
pending worker’s applications; and
t. for a recruitment agency or a foreign principal/employer to pass
on the overseas Filipino worker or deduct from his or her salary
the payment of the cost of insurance fees, premium or other
insurance related charges, as provided under the compulsory
worker’s insurance coverage.

When shall illegal recruitment be considered as an offense

involving economic sabotage?
Answer-Illegal recruitment shall be considered an offense involving
economic sabotage if it is committed by a syndicate or it is
committed in large scale.(2007, 2002 bar)
When is illegal recruitment deemed committed by a syndicate? When
is it deemed committed in large scale?
Answer-Illegal recruitment is deemed committed by a syndicate if it
is carried out by a group of three (3) or more person conspiring or
confederating with one another. It is deemed committed in large
scale if committed against three (3) or more persons individually
or as a group. (2007, 2002 bar)

What are the elements of illegal recruitment in large scale?

Answer-The elements of illegal recruitment in large scale are:
a) the accused engages in the recruitment and placement of workers,
as defined in Article 13 (b) or in any prohibited activities
under Article 34 of the Labor Code;
b) accused has not complied with the guidelines issued by the
Secretary of Labor and Employment, particularly with respect to
workers, whether locally or overseas; and
c) accused commits the same against three or more persons, (People
v. Ladera, 344 SCRA 647)
Who are liable for illegal recruitment in case the recruitment
agency is judicial person?
A. In case of judicial persons, the officer having control,
management or direction of their business shall be liable.

What are the penalties for illegal recruitment as provided by Sec.

7 of the Migrant Workers’ act as amended by R.A. 10022?
Answer-The penalties for illegal recruitment are as follows:
a. any person found guilty of illegal recruitment shall suffer the
penalty of imprisonment of not less than twelve (12) years and one
(1) day but not more than twenty (20) years and a fine of not less
than one million pesos (P1,000,000.00) nor more than two million
pesos (P2,000,000.00).
b. the penalty of life imprisonment and a fine of not less than two
million pesos (P2,000,000.00) nor more than five million pesos
(P5,000,000.00) shall be imposed if illegal recruitment constitutes
economic sabotage; provided, however, that the maximum penalty
shall be imposed if the person illegally recruited is less than
eighteen years of age or committed by a non-licensee or non-holder
of authority;
EMPLOYMENT OF NONRESIDENT ALIEN

What is the prohibition with respect to nonresident aliens who were

already issued employment permits?
Answer-Under article 41 of the Labor Code, after the issuance of
the employment permit, the alien shall not transfer to another job
or change his employer without prior approval of the Secretary of
Labor. (2000 bar)
III. WORKING CONDITIONS

HOURS OF WORK

Who are excluded from the coverage under Article 82 of the Labor
Code?
Answer-The following are excluded from the coverage of Article 82
of the labor Code:(1) government employees;(2) managerial
employees;(3) filed personnel;(4) members of the family of the
employer who are dependent on him for support;(5) domestic
helpers;(6) persons in the personal service of another; and (7)
workers paid by results as determined by the Secretary of Labor

Define Managerial Employee

Answer-Managerial employees refer to those whose primary duty
consists of the management of the establishment in which they are
employed or of a department or subdivision thereof, and to other
officers or member of the managerial staff. Under Book V of the
Labor Code, managerial employees is also one who is vested with
power or prerogatives to lay down, and execute management
policies and or/ to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees. (2003, 2002, 1999 bar)

What are the conditions to be considered in determining a

managerial employee?
Answer-The conditions to be considered as a managerial employee
are:
a) their primary duty consists of the management of the
establishment in which they are employed or of a department or
subdivision thereof;
b) they customarily and regularly direct the work of two or more
employees therein;
c) they have the authority to hire or fire other employees or lower
rank; or
d) their suggestions and recommendations as to the hiring and
firing and as to the promotion or any other change of status of
other employees are given particular weight. (Asia Pacific
Chartering (Phils). Inc. v. Farolan, 393 SCRA 454)
Define field personnel
Answer-Field personnel shall refer to non-agricultural employees
who regularly perform their duties away from the principal place of
business or branch office of the employer and whose actual hours of
work in the field cannot be determined with reasonable certainty.

Define supervisory employees

Answer-Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the
exercise of such authority is not merely routinary or clerical in
nature but requires the use of independent judgment.

What are the normal hours of work?

Answer-Under article 83 of the Labor Code, the normal hours of work
of any employee in all establishments and undertakings whether for
profit or not exceed eight hours a day.
Is coffee break or rest periods compensable?
Answer-Yes if waiting is an integral part of the employee’s work.

Is sleeping while on duty compensable?

Answer- Yes if the nature of the employee’s work allows sleeping
without interrupting or prejudicing work.

Is working while on call compensable?

Answer-Yes if employee is required to remain on call in the
employer’s premises.

Is time travel compensable?

Answer-We must distinguish. First, if travel time from home to
work, then it is not compensable. Second, travel time in all of a
day’s work, it is compensable. Third, travel time away from home,
it is also compensable.
is work interruption due to brownouts compensable?
Answer-We must distinguish. If brownout is not exceeding 20
minutes, then it is not compensable. If more than 20 minutes, it is
not compensable when (a) employees can leave workplace whether
within or without the work premises and (b) employees an use the
time effectively for their own interest.

As a tireman in a gasoline station, open twenty four hours a day

with only five (5) employees, Goma worked from 10:00 P.M. until
7:00 A.M. of the following day. He claims he is entitled to night
shift differential. Is he correct?
Answer-The Omnibus Rules Implementing the Labor Code (Book III,
Rule II dealing with night shift differential) provides that
provisions on the night shift differential shall not apply to
employees of retail and service establishments regularly employing
not more than five workers. Because of the provision, Goma is not
entitled to night shift differential because the gasoline station
where he works has only five employees (2002 UP Bar Q and A).
What does the law on night shift differential provides?
Answer-Under article 86 of the labor Code, every employee shall be
paid a night shift differential of not less than 10% of his regular
wage for each hour of work performed between ten o’clock in the
evening and six o’clock in the morning.

Who are excluded from the payment of night shift differential?

answer-The following are excluded from the payment of such benefit:
1. Those of the government and any of its political subdivision,
including government owned or controlled corporations;
2. 2. Those retail and service establishments regularly employing
not more than five workers;
3. domestic helpers and persons in the personal service or another;
4. managerial employees;
5. field personnel and other employees whose time and performance
are unsupervised by the employer, including those who are
engaged on task or contract basis, purely commission basis,
or those who are paid a fixed amount for performance thereof.

May undertime be offset by overtime?

Answer-Under Article 88, Labor Code, undertime work on any
particular day shall be offset by overtime work on any other day.

Can overtime pay be waived?

Answer-As a rule, the right to overtime pay cannot be waived. The
right is intended for the benefit of the laborers and employees.
Any stipulation that the laborer shall work beyond the regular
eight hours without additional compensation is waiver of overtime
pay is in consideration of benefits and privileges which may even
exceed the overtime pay, the waiver may be permitted. An example of
a situation where overtime pay can be waived is the compressed work
week.

Under what conditions may a compressed work week schedule be

legally authorized as an exception to the eight-hour a day
requirement under the Labor Code?
Answer-A compressed work week schedule may be authorized under the
following conditions:
a)The employee voluntarily agrees to;
b)There is no diminution in their weekly or monthly take home pay
or fringe benefits;
c)The benefits are more than or at least commensurate or equal to
what is due the employees without the compressed week;
d) Overtime pay will be due and demandable when they are required
to work on those days which should have ceased to be working days
because the compressed work week schedule;
e) No strenuous physical exertion or that they are given adequate
rest periods;
f)It must be for a temporary duration as determined by the
Department of Labor.

Define overtime pay.

Answer-Overtime pay is the additional compensation for work done
beyond the normal work hours on ordinary days.
Define premium pay.
Answer-Premium pay is the additional compensation for work rendered
by the employee on days normally he should not be working, such as
special holiday and weekly rest days.

Who are excluded from overtime pay?

Answer-The following are excluded from payment of overtime pay:
1. government employees;
2. managerial employees;
3. non-agricultural field personnel;
4. members of the family of the employer who are dependent upon him
for support;
5. domestic helpers and persons in the personal service of another;
6. workers who are paid by result such as those paid on piece rate
or task basis
When may the employer require his employees to work on a rest day?
Answer-Article 92 provides that the employer may require his
employees to work on any day:
1. 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 life and property, or
imminent danger to public safety.
2. In cases of urgent work to be performed on the machinery,
equipment, or installation, to avoid serious loss which the
employer would otherwise suffer;
3. In the event of abnormal pressure of work due to special
circumstances, where the employer cannot ordinarily be expected
to resort to other measures;
4. To prevent loss or damage to perishable goods;
5. Where the nature of the work may result in irreparable injury or
loss to the employer; and
6. Under other circumstances analogous or similar to the foregoing
as determined by the Secretary of Labor.
Who are not entitled to holiday pay?
Answer-The following are not entitled to holiday pay:
1. government employees and any of its political subdivisions
including government owned or controlled corporations;
2. those of retail establishments regularly employing less than ten
workers;
3. domestic helpers in the personal service of another;
4. managerial employees;
5. Field personnel and other employees whose time and who are
engaged on task or contact basis, purely commission basis or
those who are paid a fixed amount for performing work
irrespective of the time consumed in the performance thereof.

Enumerate the regular holidays

Answer-The regular holidays are:
1)New year’s day
2)Maundy Thursday
3)Good Friday
4)Eidul Feitr
5)Eidul Adha
6) Araw ng Kagitingan
7)Labor Day
8)Independence Day
9)National Heroes Day
10)Bonificio Day
11)Christmas Day
12)Rizal Day

Enumerate the Special National Days

Answer-The Special National Days are:
1)Ninoy Aquino Day
2)All Saint’s Day
3)Last Day of the Year

Juan is paid Php 320 per day.

A)How much is his overtime rate?
Answer-Php320/8 = Php 40
b) How much is his overtime rate?
Answer-Php40x 125% = Php50 per hour

c) If Juan works on Christmas Day, how much is his rate?

Answer-Php320 x 130% = Php416

f)If Juan works on All Saint’s Day (Special Day) which happened to
be Juan’s rest day, how much is his rate?
Answer-Php416 x 150% = Php624

What is service incentive leave?

Answer-Service incentive leave is a yearly leave benefit of five
(5) days with pay. It is enjoyed by an employee who has rendered at
least one year of service.

Who are not entitled to service incentive leave?

Answer-The following are not entitled to such benefit:
1. those of the government and any of its political subdivisions
including government owned or controlled corporations;
2. domestic helpers and persons in the personal service of another;
3. managerial employees;
4. field personnel and other employees whose performance is
unsupervised by the employer, including those who are engaged on
task or contract basis, purely commission basis, or those who
are paid a fixed amount for performing work irrespective of the
time consumed in the performance thereof;
5. those who are already enjoying the benefits herein provided;
6. those enjoying vacation leave with pay of at leave days;
7. those who are employed in establishments employing less ten
workers.

What is maternity leave?

Answer-maternity leave is granted to a covered female employee who
has paid at least three monthly maternity contributions in the
twelve-month period preceding the semester of her childbirth,
abortion or miscarriage and who is currently employed.
The covered female employee, who need not be legally married shall
be paid a daily maternity benefit equivalent to one hundred percent
of her present basic salary, allowances and other benefits or the
cash equivalents of such benefits for sixty days.

What is paternity leave?

Answer-Paternity leave is a benefit under R.A. 8187 which allows
every married male employee in the private and public sectors not
to work for seven days but continues to earn his compensation on
the condition that his legitimate spouse has delivered a child or
suffered a miscarriage for the purpose of enabling him to
effectively lend support to his wife in her period of recovery
and/or in the nursing of the newly-born child.

What is parental leave?

Answer-Under the Solo Parents’ Welfare act of 2000, parental leave
is a leave of not more than seven working days every year granted
to a solo parent employee who has rendered service of at least one
year in addition to leave privileges provided under existing laws.
What is meant by victims of violence against women leave?
Answer-Victims of violence against women under R.A. 9262 shall be
entitled to take a paid leave of absence up to ten days in addition
to other paid leaves under the Labor Code and Civil Service Rules
and Regulations. Said leave may also be extended when the necessity
arises as prescribed in the protection order granted to the victim
pursuant to R.A. 9262.

What is the leave benefit provided for omen under the law of Magna
Carta Women Act or R.A. 9710?
Answer-Under R.A. 9710, leave benefits of two (2) months with full
pay based on gross monthly compensation are given for women
employees who undergo surgery cause by gynecological disorders,
provided that they have rendered continuous aggregate employment
service of at least six (6) months for the last twelve (12) months.

Who are covered by the13th Month Pay given to an employee?

Answer-All rank and file employees, regardless of their designation
or employment status, and irrespective of the method
by which their wages are paid, and who have worked at least one
month during the calendar year are entitled to 13th month pay.

How much is the 13th Month pay given to an employee?

th
Answer-The 13 month pay shall be in the amount not less than 1/12
of the total basic salary earned by the employee within the
calendar year.

How is the13th month pay computed?

Answer-Only basic salary is included in the computation of
13thmonth pay. Allowances and monetary benefits which are not
considered or integrated as part of the regular or basic salary,
such as the cash equivalent of unused vacation and sick leave
credits, overtime, premium, night differential and holiday pay, and
cost-of-living allowances, shall be excluded from the computation,
However, these salary-related benefits should be included as part
th
of the basic salary in the computation of the 13 month pay if by
the individual or collective agreement company practice or policy,
the same are treated as part of the basic salary of the employees.
When shall the 13thmonth pay be paid?
Answer-The required 13th month pay shall be paid not later than
December 24 of each year. An employer however, may give to his
employees one halt of the required 13th month pay before the opening
of the regular school year and the other half on or before the 24 th

of December of every year. the frequency of payment of this

monetary benefit may be the subject of agreement between the
employer and the recognized/collective bargaining agent of the
employees.

What employees are excluded from the coverage of the 13 th

month pay
law?
Answer-The following employees are excluded from the coverage of
the 13th month pay law:
a. Managerial employees;
b. those covered under civil service law;
th
c. those already receiving 13 month pay or its equivalent.
Christmas bonus, mid-year bonus, cash bonuses and other payments
amounting to not less that 1/12 of the basic salary are treated as
equivalent of 13th month pay;
d. household helpers and persons in the personal service of
another;
e. those paid only pure commission, boundary, or task basis, and
those who are paid fixed amount for performing specific work except
those paid on a piece-rate basis.

Does the 13 thMonth Pay law (P.D. 851) cover a casual employee who
is paid a daily wage?
th
Answer-Yes. A casual employee is entitled to 13 month pay if such
casual employee has worked for at least one month during a calendar
year. In Jackson Building Condominium Corporation v. NLRC, 246 SCRA
329, the Supreme Court held: xxx employees are entitled to the
thirteenth month pay benefits regardless of their designation and
irrespective of the method by which wages are paid. (1998 UP Bar Q
and A)

What is a bonus? When is it demandable as a matter of right?

Answer-A bonus is money given in addition to an employee’s usual
compensation. It may be given as a gratuity, as an act of
liberality. But a bonus is demandable as a matter of right if it
is made a legal obligation by law or in a collective bargaining
agreement or in a contract of employment or by its having been
given for such a long time such that the receipt of a bonus has
ripened into a right.(1995 UP Bar Q and A)
IV. WAGES

Define wage

Answer-Wage means the remuneration of earnings, however designated,

capable of being expressed in terms of money, whether fixed or
ascertained on a time, task, piece, or commission basis, or other
method of calculating the same, which is payable by an employer to
an employee under a written or unwritten contract of employment for
work done or to be done, or for services rendered or to be rendered
and includes the fair and reasonable value as determined by the
Secretary of Labor, of board, lodging or other facilities
customarily furnished by the employer to the employee. (1994 bar)

Distinguish facilities from supplements

Answer-Facilities are items of expense necessary for the laborer’s
and his family’s existence and subsistence, so that by express
provision of law, they form part of the wage and when
 by the employer are deductible therefrom. Supplements on the other
hand, constitute extra remuneration or special privileges or
benefits given to or received by the laborers over and above their
ordinary earnings or wages.

what is the non-diminution of benefits rule?

/answer-Said rule means that benefits being given to employees
cannot taken back or reduce unilaterally by the employer because
the benefit has become part of the employment contract, written or
unwritten.

An employee in a mine site resulted in the death of fifty miners.

At the time of the accident:
1. The Mining Company has not yet paid the wages, overtime, holiday
and rest day compensation of the deceased miners;
2. All the deceased miners owed the Miners Cooperative Union sums
of money;
3. The Mining Company was served by a sheriff’s writs of
garnishment of wages of some of the deceased miners by virtue of
final judgments in several collection suits.
After the accident, the wives, paramours, brothers, sisters and
parents of the deceased miners filed their claims for unpaid wages,
overtime, holiday and rest day compensation. The Company has
acknowledged its obligations. However, it is in a quandary as to
how to adjudicate the conflicting claims; and whether it can deduct
from the monies due miners their unpaid debts with the credit
union. How will you advise the mining company on the following:
a. Can the Mining Company defer payment of the money claims
until the appropriate court has ruled o the conflicting claims?
Answer-I will advise the Mining Company to pay to the respective
heirs of the deceased miners whatever were the unpaid wages,
overtime, holiday and rest day compensation of said deceased miners
without the necessity of intestate proceedings. The claimants, if
they are all of age, shall execute an affidavit attesting to their
relationship to the deceased and the fact that they are his heirs,
to the exclusion of all other persons. If any of the heirs is a
minor, the affidavit shall be executed on his behalf by his natural
guardian or next of kin. The affidavit shall be presented to the
employer who shall make payment
through the Secretary of Labor or his representative. The
representative of the secretary of Labor shall act as referee in
dividing the amount paid among the heirs. (Article 105 (b) of the
Labor Code)(1998 UP Bar Q and A)

How are the wages of the employee protected?

Answer-Under Article 112 of the Labor Code, no employer shall limit
or otherwise interfere with the freedom of any employee to dispose
of his wages. He shall not in any manner force, compel or oblige
his employees to purchase merchandise, commodities or other
properties from the employer or from ant other person, or otherwise
make use of any store or service of such employer or any other
person.

When may the wages of the employee be deducted without the

employee’s consent?
Answer-Under Article 113 of Labor Code, no employer, in his own
behalf or in behalf of any person, shall make any deduction from
the wages of the employee, except:
1. in cases where the worker is insured with his consent by the
employer for the amount paid by him as premium on the insurance;
2. for union dues, in cases where the right of the worker or his
union to check-off has been recognized by the employer or
authorized in writing by the individual worker concerned; and
3. in cases where the employer is authorized by law or regulations
issued by the Secretary of Labor.

What are the requirements before an employer may deduct the value
of facilities from the employee’s wages?
Answer-Before an employer may deduct the value of facilities from
the employee’s wages, it must first satisfy the following:
(a) proof that such facilities are customarily furnished by the
trade;
(b) the provision of deductible facilities is voluntarily accepted
in writing by the employee; and
(c) the facilities are charged at fair and reasonable value- the
law is clear that mere availment is not sufficient to allow
deductions from employee’s wages. (Mayon Hotel and Restaurant v.
Adana, 458 SCRA 609)
What are the essential elements of wage distortion?
Answer: Wage Distortion arises when four essential elements are
present:
1) An existing hierarchy of positions with corresponding salary
rates;
2) A significant change or increase in the salary of lower pay
class without a corresponding increase in the salary of a higher
one;
3) The elimination of the distinction between two groups or
classes; and
4) The distortion exists in the same region of the country
(Prubanker Association v. Prudential Bank and Trust Co., 302 SCRA
74) (2006 UP Q and A)

How should a wage distortion be settled?

Answer-Any dispute arising from wage distortion shall be resolved
through the grievance procedure as provided in the applicable
collective bargaining agreement and if the dispute remains
unresolved, then through voluntary arbitration.
 In cases where there are no collective bargaining agreements
or recognized labor unions, the employer s and workers shall
endeavor to correct such wage distortions. Any dispute arising
Mediation Board and if it remains unresolved after ten (10)
calendar days of conciliation, the issue of wage distortion shall
be referred to the appropriate branch of the National Labor
Relations Commission (NLRC). (2006 bar)

Can the issue of wage distortion be raised in a notice of strike?

Answer-in Ilaw ng Manggagawa v. NLRC, 198 SCRA 586 (1991), the
Supreme Court held that any issue involving wage distortion shall
not be a ground for a strike or lockout. The legislative intent is
to solve wage distortion problems through voluntary negotiation or
arbitration. (2006 UP Bar Q and A)
V. SPECIAL WORKERS

EMPLOYMENT OF WOMEN

An airline which flies both the international and domestic routes

requested the Secretary of Labor and Employment to approve the
policy that all female flight attendants upon reaching age forty
(40) with at least fifteen years of service shall be compulsorily
retired; however, flight attendants who have reached age forty (40)
but have not worked for fifteen (15) years will be allowed to
continue working in order to qualify for retirement benefits, but
in no case will extension exceed four year. Does Secretary of Labor
have the authority to approve the policy?

Answer-Yes, the Secretary of Labor has the authority to approve a

policy dealing with the retirement of flight attendants of
airlines. Under Article 132 of (d) of the Labor Code, it provides
that the Secretary of labor shall establish standards that will
ensure the safety and health of women employees, including the
authority to determine appropriate minimum age and other
Standards for retirement of termination in special occupations such
as those of flight attendants and the like.

Enumerate the acts of discrimination committed by an employer

against any woman employee on account of her sex.
Answer-Under Article 135 of the Labor Code, it shall be unlawful
for an employer to discriminate against any woman employee with
respect to terms and conditions of employment on account of her
sex. The following are acts of discrimination:
(1) Payment of a lesser compensation, including wage, salary or
other form of remuneration and fringe benefits, to a female
employee as against a male employee, for work of equal value;
and
(2) favoring a male employees over a female employee with respect
to promoting, training opportunities, study and scholarship
grants solely on account of their sexes. (2000 UP Bar Q and A)
What are the prohibited acts committed by an employer against a
woman employee?
Answer-Under Article 137 of the Labor Code, it shall be unlawful;
for any employer:
1. To deny any woman employee the benefits provided for by law or
to discharge any woman employed by him for the purpose of
preventing her from enjoying any of the benefits provided under the
Labor Code;
2. to discharge such woman on account of her pregnancy, or while
on leave or in confinement due to her pregnancy;
3. to discharge or refuse the admission of such woman upon
returning to her work for fear that she may again be pregnant.

Define Sexual Harassment.

Answer-Under Section 3, R.A. 7877, Sexual Harassment Act of 1995,
work. Education, or training-related sexual harassment is committed
by an employer, manager, supervisor, agent of the employer,
teacher, instructor, professor, coach, trainer, or any other person
who, having authority, influence or moral ascendancy over another
in a work or training or education environment,
demands, requests or otherwise requires any sexual favor or
requirement for submission is accepted by the object of this Act.

When is sexual harassment committed in a work related or employment

environment?
Answer-Sexual harassment is committed in a work related or
employment environment as follows:
a) The sexual favor is made as a condition in hiring or in the
employment of said individual, or in granting said individual
favorable compensation, terms, conditions, promotions, or
privileges; or the refusal to grant sexual favor results in
limiting, segregating or classifying the employee which in a way
would discriminate, deprive or diminish employment opportunities
or otherwise adversely affect said employee;
b) The above acts would impair the employee’s rights or privileges
under existing labor laws; or
c) The above acts would result in intimidating, hostile, or
offensive environment for the employee.
Who are liable for sexual harassment committed in a work-related or
employment environment?
Answer-The following are liable for sexual harassment:
a) Employer;
b) Manager;
c) Supervisor
d) Agent of the Employer;
e) Teacher;
f) Instructor;
g) Professor;
h) Coach;
i) Trainer;
j) Any of the person with authority, influence or moral ascendancy
over another in a work or training or education environment;
k) Any person who directs or induces another to commit any act of
sexual harassment, or who cooperates in the commission thereof
by another without which it would not have been committed.
What is discrimination against women?
Answer-Under the Magna Carta of Women Law, discrimination against
women is defined as follows:
a) Any gender-biased distinction, exclusion or restriction which
has the effect or purpose of impairing or nullifying the
recognition, enjoyment, or exercise by women, irrespective of their
marital status, on a basis of quality of men and women, of human
rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field;
b) Any act or omission, including by law, policy, administrative
measure, or practice, that directly or indirectly excludes or
restricts women in the recognition and promotion of their rights
and their access and enjoyment of opportunities, benefits, or
privileges;
c) A measure or a practice of general application that fails
provide for mechanisms to offset or address sex or gender-biased
disadvantages or limitations of women, as a result of which women
are denied or restricted in their access to and enjoyment of
opportunities, benefits or privileges; or women, more than men are
shown to have suffered the greater adverse effects of those
measures or practices; and
d) Discrimination compounded, such as ethnicity, age, poverty, or
religion.

What is the minimum employable age?

Answer-Under Article 139 (a) of the Labor Code, no person under
eighteen years of age shall be employed in an undertaking which is
hazardous or deleterious in nature as determined by the Secretary
of Labor.

Discuss the statutory restrictions on the employment of minors.

Answer-There are certain laws providing for restrictions on the
employment of minors such as:
a. Article 140, Labor Code – it provides that employers shall not
discriminate against any person in respect to terms and conditions
of employment on account of his age. The employer is duty-bound to
submit a report to Department of Labor and Employment of all
children under his employ, with a separate report on children found
to be handicapped after a conduct of medical examination. Moreover,
an employer in any commercial industrial, or agricultural
establishments or enterprise is required to keep a register of all
children under his employ,
Indicating therein their respective dates of birth; and a separate
file on written consent of their respective parents/guardian,
another file for their educational and medical certificates, and a
separate file for their educational and medical certificates, and a
separate file for special work permits issued by the Secretary of
DOLE.

b. Article 273 of the Revised Penal Code – the law provides that no
person hall retain a minor in service against his will, in payment
of a debt incurred by an ascendant, guardian or person entrusted
with the custody of the minor;

c. Article 278 of the Revised Penal Code – The law enumerates the
various acts of exploitations of minors prohibited under the law,
to wit:
(1) Any person who shall cause any boy or girl under 16 years of
age perform any dangerous feat of balancing strength or
contortion;
(2) Any person, being an acrobat, gymnast, rope-walker, diver, wild
animal tamer or circus manager or engaged in a similar calling,
shall employ in exhibitions of these kinds of children under 16
years of age who are not his children or descendants;
(3) Any person engaged in any of these callings enumerated in the
next paragraph who shall employ any descendant of his under 12
years of age in such dangerous exhibitions;
(4) Any ascendant, guardian, teacher or person entrusted in any
capacity with the care of a child graciously to any person
following any of the callings enumerated in par. 2 hereof, or to
any habitual vagrant or beggar.

d. Article 107 of the Child and Youth Welfare Code – the law
provides that children below 16 years of age may only be employed
to perform light work which is not harmful to their safety, health
or normal development, and which is not prejudicial to their
studies.

e. R.A. 9231 amending R.A. 7610 – the law included a provision

allowing a minor below 15 years of age to participate in public
entertainment or information through cinema, theater, radio or
television, provided the contract is conducted by the child’s
parents or legal guardian, with the express agreement of the child,
and approval of the DOLE. The employer is charged to secure a work
permit for the child with DOLE prior to engaging to the child to
work. The employer is also required to: (1) ensure the protection,
health, safety, morals and normal development of the child; (2)
institute measures to prevent the child’s exploitation and
discrimination taking into account the system and level of
remuneration, and the durations and arrangement of working time;
and (3) formulate and implement a continuing program for training
and skills acquisition of the child. The design under its non-
formal program aimed at promoting the intellectual, moral and
vocational efficiency to working children who have not undergone or
finished elemntary or secondary education.
Determine whether the following minors should be prohibited from
being hired and from performing their respective duties indicated
hereunder.

1. A 17 year old boy working as a miner at the Walwaldi

Mining Corporation
Answer-Yes, he should be prohibited from being hired and
from performing the duties of a miner because such
constitutes hazardous work under D.O No. 04 series of 1999.
under Article 139 (c) of the Labor Code expressly prohibits
the employment of persons below 18 years of age in an
undertaking which is hazardous of deleterious in nature as
determined by the Secretary of Labor. (2006 UP bar Q and A)

2. An 11 year old boy who is an accomplished singer and

performer in different parts of country.
Answer-No, he should not be prohibited from being hired and
from performing as a singer. Under article VIII, Sec. 12,
par. 2 of R.A. 7610 as amended by R.A. 7658, this constitute
an exception to the general prohibition against the employment
of children below 15 years of age, provided
the following requirements are complied with: a) the employer
shall ensure the protection, health, safety and morals of the
child; b) the employer shall institute measures to prevent the
child’s exploitation or discrimination taking into account the
system and level of remuneration and the duration and
arrangement of working time; and c) the employer shall
formulate and implement, subject to the approval and
supervision of competent authorities, a continuing program for
training and skill acquisition of the child. Moreover, the
child must directly under the sole responsibility of his
parents or guardian and his employment should not in any way
interfere with his schooling. (2006 UP Bar Q and A)

3. A 15 year old girl working as library assistant in a

girl’s high school.
Answer-No, she should not be prohibited from working because
working as a library assistant is not one of the undertakings
identified as hazardous under D.O. 04 Series of 1999. (2006 UP
Bar and A)
Define Domestic or household service
Answer-Domestic or household service shall mean serves
4. A 16-year old girl working as model promoting alcoholic
beverages.
Answer-Yes, she should be prohibited from working as a model
promoting alcoholic beverages. R.A. 7610 categorically
prohibits the employment of child models in all commercials or
advertisements promoting alcoholic beverages and intoxicating
drinks, among other things. (2006 UP Bar Q and A)

5. A 17-year old boy working as dealer in a casino.

Answer-Yes, he should be prohibited from working as dealer in
a casino, because Article 140 of the Labor Code prohibits
employment of persons below 18 years of age in an undertaking
which is hazardous or deleterious in nature as identified in
the guidelines issued by the DOLE Secretary. Working as a
dealer in a casino is classified as hazardous under D.O. No.
04 Series of 1999 as it exposes children to physical,
psychological or sexual abuses. (200 UP bar Q and A)
Define Domestic or household service
Answer- Domestic or household service shall mean services in the
employer’s home which us usually necessary or desirable for the
maintenance and enjoyment thereof and includes ministering to the
personal comfort and convenience of the members of the employer’s
household, including services of family drivers (2007 UP Bar Q and
A)

What are the benefits accorded to househelpers?

Answer-The benefits accorded househelpers are as follows:
1. Entitlement to minimum wage (Article 144, Labor Code)
2. Non-assignment to no-household work if the salary is
lower than that provided for in a commercial, industrial
or agricultural work (Article 146, Labor Code)
3. Opportunity for education (Article 146, Labor Code)
4. Treatment of househelpers in a just and humane manner
(article 147, Labor Code)
5. Free board, lodging and medical attendance (Article 148,
Labor Code)
 6. Issuance of employment certification after termination
(Article 151, Labor Code)

Define an industrial homeworker

Answer-Industrial homework is a system of production under which
work for an employer or contractor is carried out by a homeworker
at his/her home. Materials may or may not be furnished by the
employer or contractor.

How is a homeworker paid?

Answer – Immediately upon the receipt of the finished goods or
Articles, the employer shall pay the homeworker or the contractor
or subcontractor, as the case may be, for the work performed less
the corresponding homeworker’s share of SSS, PHILHEALTH and ECC
premium contributions which shall be remitted by the
contractor/subcontractor to the SSS with the employer’s share.
What are the conditions when a homeworker is deducted from his/her
earnings by the employer, contractor or subcontractor?
Answer-As a rule, no employer, contractor or subcontractor shall
make any deduction from the homeworker’s earnings for the value of
materials which have been lost, destroyed, soiled or otherwise
damaged unless the following conditions are met:
a) The homeworker concerned is clearly shown to be responsible for
the or damage;
b) The homeworker is given reasonable opportunity to show cause why
deductions should not be made;
c) The amount of such deduction is fair and reasonable and shall
not exceed the actual loss or damage; and
d) The deduction is made at such rate that the amount deducted does
not exceed 20% of the homeworker’s earnings in a week.

What is disabled person under R.A. 7277?

Answer- A disabled person is a person suffering from restriction or
different abilities, as a result of a mental, physical or sensory
impairment, to perform an activity in the manner or within the
range considered normal for a human being.
What is meant by a handicap?
/answer-Handicap refers to a disadvantage for a given individual,
resulting from impairment or disability, that limits or prevents
the function or activity, that is considered normal given the age
and sex of the individual.

How are the handicapped workers classified with respect to

employment?
Answer-Under Section 7 of R.A. 7277, disabled persons shall be
eligible as apprentices or learners provided that their handicap is
not much as to effectively impede the performance of job operations
in the particular occupation for which they hired. Provided
further, that after the lapse of the period of apprenticeship, if
found satisfactory in job performance, they shall be eligible for
employment.

What are the incentives given to employers who employ

handicap/disabled workers under R.A. 7277?
Training period exceeding three months while leaners are persons
hired as trainees in semi-skilled and other industrial occupations
which are non-apprenticeable and which may be learned through
practical on the job in a relatively short period of time which
shall not exceed three months.
VI. TEMINATION OF EMPLOYMENT

What are the four-fold tests in determining the existence of

employer-employee relationship?
Answer-The guidelines in determining the existence of employer-
employee are the following:
(1) The selection and engagement of employee;
(2) the payment of wages;
(3) the power of dismissal; and
(4) the employers’ power to control the employee with respect to
the means and methods by which the work is to be accomplished
(Chavez vs. National Labor Relations Commission, 448 SCRA 478)

Which takes precedence in conflicts arising between employer’s

Management prerogative and employee’s right to security of tenure?
Answer-The employer’s right to security to tenure takes precedence
over the employer’s management prerogative. Thus, an employer’s
management prerogative includes the right to terminate the services
of an employee but this management prerogative is
Limited by the Labor Code which provides that the employer can
terminate an employee only just cause or when authorized by law.
This limitation on management prerogative is made possible because
the Constitution recognizes and guarantees an employee’s right to
security of tenure (Article 279 of the Labor Code and Article XIII,
Section 3 of the 1987 Constitution). (1993 UP Bar Q and A)

How is probationary employment terminated?

Answer- Termination of a probationary employee may be done either
a) for a just cause or b) when the employee fails to qualify as a
regular employee in accordance with reasonable standards made known
by the employer to the employee at the start of the employment.
(Aberdeen Court, Inc. v. Agustin Jr. 456 SCRA 32)

When is the regular employment?

Answer-under Article 280 of the Labor Code, an employment shall be
deemed regular when the employee has been engaged to perform
activities which are usually necessary or desirable in the usual
business or trade of the employer (1993, 1996, 1998, 2005, 2007
bar)
What are the two types of the regular employees?
Answer-The two kinds of regular employees are:
1. those who are engaged to perform activities which are
usually necessary or desirable in the usual business or
trade of the employer; and
2. those who have rendered at least one year of service,
whether continuous or broken, with respect to the
activity in which they are employed.

When does a private school teacher acquire permanent status?

Answer-The following requisites concur before a private school
teacher acquires permanent status: a) the teacher is a full time
teacher; b) the teacher must have rendered three consecutive years
of service and c) such service must have been satisfactory. (Saint
Mary’s university v. Court of appeals 453 SCRA 61)

Are seafarers regular employees?

Answer-Seafarers are not covered by the term regular employment, as
defined under Article 280 of the Labor Code- they are considered
contractual employees whose rights and obligations are
Governed primarily by the Philippine Overseas Employment
Administration (POEA) Standard Employment Contract for Filipino
Seamen, the Rules and Rules and Regulations Governing Overseas
Employment and more importantly by R.A. 6042; It is an accepted
maritime industry practice that the employment of seafarers is for
a fixed period only (Dela Cruz v. Maersk Filipina Crewing, Inc. 551
SCRA 284)

Define project employee

Answer- A project employee is one whose employment has been fixed
for a specific project or undertaking, the completion termination
of which has been determined at the time of the engagement of the
employee.

What is the requirement before a project employee can be validly

dismissed?
Answer-before an employee hired on a per project basis can be
dismissed, a report must be made to the nearest employment office
of the termination of the services of the worker every time it
completed a project, pursuant to Policy Instruction No. 20.
(Liganza v. RBL Shipyard Corporation, 504 SCRA 678). An employer’s
failure to file termination reports is an indication that the
employee is not a project but a regular employee.
(Philippine Long Distance Telephone Company, Inc. (PLDT) v. Ylagan,
508 SCRA 31)

When does a member of a work pool acquire the status of a regular

employee?
Answer-In a work pool, the workers do not receive salaries and are
free to seek other employment during temporary breaks in the
business. Once a project or work pool employee has been: a)
continuously, as opposed to intermittently, rehired by the same
employer for the same tasks or nature of tasks; and b) these tasks
are vital, necessary and indispensable to the usual business or
trade of the employer, then the employee must be deemed a regular
employee (Integrated Contractor and Plumbing Works, Inc. v. NLRC,
466 SCRA 265).
What are circumstances to determine a project employee in the
construction industry?
Answer- Guidelines Governing the Employment of Workers in the
Constructions industry provides the circumstances as indication
that an employee is a project employee:
a) The duration of the specific/identified undertaking for which
the worker is engaged is reasonably determinable;
b) The duration, as well as the specific work/service to be
performed is defined in an employment agreement and is made
clear to the employee at the time of hiring;
c) the work/service is performed by the employee in connection with
the particular project/undertaking for which he is engaged;
d) The employee, while not employed and awaiting engagement, is
free to offer his services to any other employer;
e) The termination of his employment in the particular
project/undertaking is reported to the Department of Labor and
workplace within 30 days following the date of his separation
from work using the prescribed from on employee’s termination or
dismissals or suspensions;
f) An undertaking I the employment contract by the employer to pay
completion bonus to the project employee as practice by most
construction companies.

Define seasonal employment

Answer-Seasonal employment exists when the work or services to be
performed is seasonal in nature and the employment is for the
duration of the season in the Philippines.

Define fixed period employment

Answer-Fixed period employment exists when the parties by free
choice have assigned a specific date for the commencement and
termination of the employment relationship. Stipulations in
employment contracts providing for “term employment” or “fixed-
period employment” are valid when the period has been agreed upon
knowingly and voluntarily by the parties, without force, duress or
improper pressure exerted on the employee, and when such
stipulations are not designed to circumvent the laws on security of
tenure.
Kitchie tempo was one of approximately 500 production operators at
HITEC Semiconductors, Inc., an export-oriented enterprise whose
business depended on order for computer chips from overseas. She
was hired as a contractual employee four years ago. Her contracts
would be for duration of five (5) months at a time, usually after a
one-month interval. Her re-hiring was contingent on her performance
for the immediately preceding contract. Six months after the
expiration of her last contract, Kitchie went to HITEC’s personnel
department for another temporary contract. She was told that her
performance during her last stint was “below average”. Since there
was no union to represent her, Kitchie seeks advice as a labor
lawyer about her changes of getting her job back. What will your
advice be?

Answer – Kitchie’s below average rating will not matter. She was a
regular employee from 1 day of her service as her work was
evidently usually necessary or desirable to HITEC’s usual business.
Under paragraph 1 of article 280, Kitchie is a regular employee.
Also, Kitchie obtained permanent regular employment when she was
repeatedly re-hired by HITEC. As a permanent
Regular employee, working for an indefinite period, Kitchie is
entitled to the reliefs of reinstatement and full backwages as
mandated in Article 279 of the Labor Code.

A below average rating would matter if Kitchie was made to

undergo probationary employment, or was a probationary employee
under Article 281 of the Labor Code, she was not obviously, she was
qualified and competent production operator; she would not have
been repeatedly re-hired if she were not that qualified and
competent. I will thus, advise her to sue for illegal dismissal
with prayer for regularization and full backwages provided for in
Article 279 of the Labor Code. (2005 UP Bar Q and A)

When is there permissible job contracting?

Answer-There is permissible job contracting when following
conditions are met:
(1) The contractor carries on a independent business and undertakes
the contract on his own manner and method, free form the control
and direction of his employer or principal in all matter connected
with the performance of the work except as the results thereof; and
Answer-NEDA shall be held solidarily with CMI for the payment of
salary differentials a due to the complainants, because NEDA is the
indirect employer of said complainants. The Labor Code provides
that xxx (a) person, partnership, association or corporation which,
not being an employer, contracts with an independent contractor for
the performance of any work, task, job or project shall be jointly
and severally liable with his contractor or subcontractor to such
employees (of the contractor or subcontractor) to the extent of the
work performed under the contract xxx (Article 106 and 107 of the
Labor Code) (20054 UP Bar and Q and A)

Anotonio Antuquin, a security guard, was caught sleeping on the job

while on duty at the Yosi Cigarette Factory. As a result, he was
dismissed from employment by the Wagan Security Agency, an
independent contractor. At the time of his dismissal, Antonio had
been serving as a watchman in the factory for many years, often at
holidays, without overtime, night time and rest day benefits
against Yosi Cigarette Factory, which he claimed was his actual and
direct employer.
As the Labor Arbiter assigned to hear the case, how would you
correctly resolved the following:
(a) Antonio’s charge of illegal dismissal; and
(b) Antonio’s claim for overtime and other benefits

Answer-(a) This is a case involving permissible job contracting.

Antonio’s charge of illegal dismissal against Yosi Cigarette
Factory will not prosper. Wagan Security Agency, an independent
contractor, is Antonio’s direct employer. Yosi is only indirect
employer under Article 109 of the Labor Code. By force of law,
there is in reality no employer-employee relationship between Yosi
and Antonio (Baguio, et. al. v. NLrC, 202 SCRA 465) (2005 UP Bar Q
and A)

(b) Anotonio’s claim for overtime and other benefits should be paid
by Yosi Cigarette Factory Wagan Security Agency fails to pay
Antonio’s wages and other benefits. The Labor Code provides that in
the event that the contractor or subcontractor fails to pay the
wages of his employees, the employer shall be jointly and severally
liable to the extent of the work performed under the contract in
the same manner and extent that he is liable to
Employees directly employed by his contractor or subcontractor for
any violation of any provision of the Labor Code. (2005 UP Bar Q
and A)

Sta. Monica Plywood Corporation entered into a contract with Arnold

for the milling of lumber as well as the hauling of waste wood
product. The company provided the equipment and tools because
Arnold had neither tools and equipment nor capital for the job.
Arnold, on the other hand, hired his friends, relatives and
neighbors for the job. Their wages were paid by Sta. Monica Plywood
Corp. to Arnold, based on their production or the number of workers
and the time used in certain areas of work. All work activities and
schedule were fixed by the company.
A. Is Arnold a job contractor?
B. Who is liable for the claims of the workers hired by Arnold?
Answer- A. No. The Supreme Court held that there is job contracting
where (1) the contractor carries on independent business and
undertakes the contract work in his own account, under his own
responsibility according to his own work manner and method, free
from the control and direction of his employer or principal in all
matters connected with the performance of the work except as to the
results thereof; and (2) the contractor has substantial capital or
investment in the form of tools, equipment and machineries, work
premises and other materials which are necessary in the conduct of
his business. (Lim v. NLRC, 303 SCRA 432). In the problem given,
Arnold did not have sufficient capital or investment for one. For
another Arnold was not free from the control and direction of Sta.
Monica Plywood Corp. because all work activities and schedules were
fixed by the company. Therefore, Arnold is not a job contractor. He
is engaged in labor-only contracting. (2002 UP Bar Q and A)

B. Sta. Monica Plywood Corp. is liable for the claims of the

workers hired by Arnold. A finding that Arnold is a labor-only
contractor is equivalent to declaring that there exist an
Employer-employee relationship between Sta. Monica Plywood corp.
and workers hired by Arnold. This is so because Arnold is
considered a mere agent of Sta. Monica Plywood Corp. (Lim v. NLRC,
303 SCRA 432)(2002 UP Bar Q and A)

When is there labor-only contracting?

Answer: Under Article 106 of the Labor Code, there is labor-only
contracting where the person supplying workers to an employee does
not have substantial capital or investment in the form of tools,
equipment, machineries, work premises, among others and the workers
recruited and place by such persons are performing activities which
are directly related to the principal business of the employer.
(1993, 1994, 2000, 2004 bar)

What is meant by substantial capital or investment?

Answer-Substantial capital or invest refers to capital stocks and
subscribed capitalization in the case of corporations, tools,
equipment, implements, machineries and work premises, actually and
directly used by the contractor or subcontractor in the performance
or completion of the job, work or service contracted
Out.(Almeda v. Asahi Glass Philippines, Inc. 564 SCRA 115; Sasan
th
Sr. v. NLRC, 4 Division, 595 SCRA 670)

When does a firm be considered a labor-only contractor?

Answer-Any film is connected a labor-only contractor for the
following reasons; (1) it is not registered as a building
contractor with the SEC; (2) it has no contract with the principal;
and (3) there is no proof of its financial capability and has no
list of equipment, tools, machineries and implement used in the
business. (Grandspan Development corporation v. Bernardo, 470 SCRA
461)

RS, a security guard, filed a complaint for illegal dismissal

against star Security Agency. He alleged he was constructively
dismissed after ten years of service to the Agency. Having been
place on “off-detail” and “floating status” for 6 months already,
he claimed the Agency just really wanted to get rid of him because
it required him to take a neuro-psychiatric evaluation test by
Mahusay Medical Center. RS said he already submitted the result of
his evaluation test by Brent Medical Clinic as precondition to a
new assignment, but the report was rejected
by the agency. RS added that Mahusay Medical Center had close ties
with stat’s president. It could manipulate tests to favor only
those guards whom the Agency wanted to retain. Star defended its
policy of reliance on Mahusay Medical Center because it has been
duly accredited by the Philippine National Police. It is not one of
those dubious testing centers issuing ready-made reports. Star
cited its sad experience last year when a guard ran amuck and shot
an employee of a client-bank. Star claimed management prerogative
in assigning its guards and prayed that Rs’ complaint be dismissed.

What are the issue? Identify and resolve them.

Answer-The facts in the question raises these issues:
(a)When RS was placed on off-detail or floating status for more
than six months, can RS claim that he was terminated? (b) Is
there is a valid reason for the termination of RS?

On the first issue, RS can be considered as terminated

because he has been placed on off-detail or floating status for a
period which is more than six months.
On the second issue, it is true that disease is a ground for
termination. But the neuro-psychiatric evaluation test by the
Mahusay medical Center is not the certification required for
disease to be a ground for termination. The rules and Regulations
implementing the Labor Code require a certification by a public
health authority that the disease is such of a nature or at such a
stage that it cannot be cured within a period of six months even
with proper medical treatment. (2004 UP Bar Q and A)

What are the just causes for termination of employment?

Answer-Under Article 282, the employer may terminate an employment
for any of the following causes:
(1)Serious misconduct or willful disobedience by the employee of
the lawful orders of his employer or representative in
connection with his work;
(2)Gross and habitual neglect by the employee of his duties;
(3)Fraud or willful breach by the employee of the trust reposed in
him by his employer or duly authorized representative;
(4)Commission of a crime or offense by the employee against family
or his duly authorized representative; and
(5) Other causes analogous to the foregoing. (1999, 2000, 2001,
2006 bar)

What are the requisites for misconduct to be a just cause for

dismissal?
Answer-The requisites for misconduct or improper behavior to be a
just cause for dismissal are:
(a)It must be serious;
(b) Must relate to the performance of the employee’s duties; and
(c)Must show that the employee has become unfit to continue working
for the employer. (Lopez v. NLRC, 477 SCRA 596)

What are the requisites for willful disobedience to constitute as a

just cause for terminating an employee?
Answer-The requisites for willful disobedience or insubordination
to constitute as a just cause for terminating an employee are as
follows:
1. The employee’s assailed conduct must have been willful or
intentional, the willfulness being characterized by a wrongful and
perverse attitude; and
2. The order violated must have been reasonable or lawful, made
known to the employee and must pertain to the duties which he had
been engaged to discharge. (2003 bar)

What are the requisites for insubordination to constitute as a just

cause for terminating an employee?
Answer-The requisites for insubordination to constitute as a just
cause for terminating employment are:
(1)The order must be reasonable and lawful;
(2) Sufficiency known to the employee;
(3) In connection with the duties which the employee has been
engaged to discharge. (Acesite Corporation v. NLRC, 449 SCRA 360)

What are the guidelines to b observed in terminating an employee

based on loss of confidence?
Answer- In Nokom v. NLRC, G.R. No. 140034, July 18, 2000, The
Supreme Court gave the following guidelines in terminating the
employee based on loss confidence:
1) Loss of confidence should not be simulated;
2) It should be used as a subterfuge for causes which are improper,
illegal or unjustified;
3) It may not be arbitrarily asserted in the face of overwhelming
evidence to the contrary; and
4) It must be genuine, not a mere after thought to justify their
action. (2001 bar)

What is the procedure to be observed in terminating the services of

an employees based on just cause?
Answer- The Labor Code provides the following procedure in
terminating the services of an employee based on just causes as
defined in Article 282 of the Labor Code:
(1) A written notice must be serve on the employee specifying
the ground or grounds for termination and giving him reasonable
opportunity within which to explain his side;
(2) A hearing or conference shall be conducted during which
the employee concerned, with the assistance of counsel if he so
desires, is given an opportunity to respond to the charge, present
his evidence or rebut the evidence presented against him; and
 (3)A written notice of termination must be served on the
employee indicating that upon due consideration of all the
circumstances, grounds have been established to justify his
termination. (2006 UP Bar Q and A)

What is the Agabon doctrine?

Answer-Under the Agabon doctrine (Agabon v. national Labor Relation
Commission, 442 SCRA 573 (2004), it was held that where the
dismissal is for a just cause, the lack of statutory due process
should not nullify the dismissal, or render it illegal or
ineffectual-however, the employer should indemnify the employee for
violation of his statutory rights in the form or nominal damages.

What are the elements of abandonment?

Answer- Abandonment is the deliberate and unjustified refusal of an
employee to resume his employment; to constitute abandonment, there
must be a concurrence of: a0 failure to report for work or absence
without valid or justifiable reason; b) permanently; c) overt act
or acts from which it may be inferred that the
Employee had no more intention to resume his work. (City Trucking
Inc. v. Balajadia, 498 SCRA 309)

What is resignation?
Answer- Resignation is the voluntary act of an employee who finds
himself in a situation where he believes that personal reasons
cannot be sacrificed in favor of the exigency of the service and
that he has no other choice but to disassociate himself form
employment. (Globe Telecom v. Crisologo, 529 SCRA 811)Furthermore,
it is done with the intention of relinquishing an office,
accompanied by the act of abandonment. (Vicente v. Court of
Appeals, 531 SCRA 240)

When is there constructive dismissal?

Answer- Constructive dismissal exists when an act of clear
discrimination, insensibility or disdain on the part of the
employer has become so unbearable as to leave an employee with no
choice but to forego continued employment. (Veterans Security
Agency, Inc. v. Gonzalvo, Jr. 478 SCRA 298)
Furthermore, constructive dismissal or constructive dismissal
discharge has been defined as a quitting because continued
employment is rendered impossible, unreasonable or unlikely, as an
offer involving a demotion in rank and a diminution in pay. (Suldao
v. Cimech System Construction, Inc. 506 SCRA 256)

When may the employer place an employee under preventive

suspension?
Answer-Employer may place the worker concerned under preventive
suspension if his continued employment poses a serious and imminent
threat to the life or the property of the employer or his co-
workers.

What are the authorized causes for the termination of employment?

Answer-Under Article 283 of the Labor Code, the employer may also
terminate the employment of any employee due to:
(1) installation of labor saving devices;
(2) redundancy;
(3) retrenchment to prevent losses;
(4) closing or cessation of operation of the establishment
or undertaking. (1998, 1999, 2001, 2003 2005, 2006 bar)
What is meant by retrenchment?
Answer-Retrenchment, as one of the authorized causes for
termination under the Labor Code, has been defined as the
termination of employment initiated by the employer through no
fault of the employee and without prejudice to the latter resorted
by management during periods of business recession industrial
depression, or seasonal fluctuations; or during lulls occasioned by
lack of order, shortage of materials, conversions of the plant for
new production program or the introduction of new methods or more
efficient machinery, or of automation. (Tanjuan v. Philippine
Postal Savings Bank Inc., 411 SCRA 168)

What conditions must prevail and what requirements, if any, must an

employer comply to justify a valid retrenchment program?\
Answer-In the case of Asian Alcohol Corp. v. NLRC, G.R. No. 131108,
March 25, 1999, the Supreme Court stated that the requirements of a
valid retrenchment, it must be proved by clear and convincing
evidence:
(1) that the retrenchment is reasonably necessary and likely
to prevent business losses which, if already incurred, are
Are not merely de minimis, but substantial, serious, actual and
real or if only expected, are reasonable imminent as perceived
objectively and in good faith by the employer;
(2) that the employer served written notice both to the
employees and to the Department of Labor Employment at least one
month prior to the intended date of retrenchment;
(3) that the employer pays the retrenched employees
separation pay equivalent to one month pay or at least one month
pay of every year of service, whichever higher;
(4) that the employer exercises its prerogative to retrench
employees in good faith for the advancement of its interest and not
to defeat or circumvent the employees’ right to security of tenure;
and
(5) that the employer used fair and reasonable criteria in
ascertaining who would be dismissed and who would be retrained
among the employees, such a status (whether they are temporary,
casual, regular or managerial employees), efficiency, seniority,
physical fitness, age, and financial hardship for certain workers
(2001 UP Bar Q ad A)
What is redundancy and what are the requirements for a valid
redundancy program?
Answer-Redundancy exists when the service capability of the work is
in excess of what is reasonably needed to meet the demands on the
enterprise. A redundant position is one rendered superfluous by any
number of factors, such as overhiring of workers, decreased volume
of business, dropping of a particular line previously manufactured
by the company or phasing out a service activity previously
undertaken by the business. Under these conditions, the employer
has no obligation to keep its payroll more employees than are
necessary for the operation of its business.

For a valid redundancy program to be valid, the requirements are:

1) written notice service on both the employee and the
Department of Labor and Employment at least one month prior to the
intended date;
2) payment of separation pay equivalent to at least one month
pay or at least one month pay for every year of service whichever
is higher;
 3) good faith in abolishing the redundant positions;
4)fair and reasonable criteria in ascertaining what
positions are to be declared redundant and accordingly
abolished;

What are the requisites before losses be considered as an

authorized cause for termination of employment?
Answer- Losses as a ground for reduction of personnel requires the
following requisites:
1. Losses or expected losses should be substantial and not merely
de minimis;
2. The expected losses must be reasonably imminent, and such
imminence can be perceived objectively and in good faith by the
employer;
3. It must be necessary and likely to prevent the expected losses.
The employer must have taken other measures to cut costs other
than labor costs; and
4. Losses if already realized, or the expected losses must be
proved by sufficient and convincing evidence. (Lopez Sugar Corp.
v. Federation of Sugar Workers, 189 SCRA 179) (2003 bar)
What are the requirements necessary for a valid cessation of
business operations?
Answer-Under Article 283 of the Labor Code, three requirements are
necessary for a valid cessation of business operations: a) service
of a written notice to the employees and to the DOLE at least one
month before the intended date thereof; b) the cessation of
business must be bona fide in character; c) payment to the
employees of termination pay amounting to one month pay or at least
one-half month for every year of service, whichever is higher.
(Industrial Timber Corporation v. Abandon, 480 SCRA 171)

Coronet Records, Phil. (CRP) manufacturers audio/video record

players, compact disc, video disc, cassettes and the like. CRP’s
shareholding is 40% foreign and 60% domestic. CRP signed a
Collective Bargaining Agreement with its rank-and-file workers for
three years starting from January 1, 1990 and ending on December
31, 1993. Before he expiration of the CBA, CRP decided to sell all
its assets to Lyra Music effective September 30, 1993. In this
regard, notice was sent on August 30, 1993 to each employee
advising them of the sale of the Company’s assets to
Lyra Music Corporation and the closure of the company’s operations
effective September 30, 1993. CRP, likewise, requested that each
employee receive his separation pay equivalent to one-and-one-half
(1 and 1/2 ) month’s pay per year of service, exclusive of all
th
unused leaves which were also converted to cash, and his 13 month
pay for 1993. The employees received their respective separation
pay under protest and thereafter filed an action against CRP and
Lyra Music Corporation for unfair labor practice. The Arbiter ruled
in favor of the workers and ordered Lyra Music Corporation to
absorb the former workers of CRP. Was the Labor arbiter correct in
his decision?
Answer-No. The Labor Arbiter is not correct . In San Felipe Neri
School of Mandaluyong v. NLRC, when there is a legitimate sale of a
company’s assets, the buyer in good faith cannot be legally
compelled to absorb the employees of the seller in good faith. In
this case at bar, the employees of the CRP were validly terminated
based on Article 284 under closure of operations and separation pay
was paid at a rate much higher than the law. (1994 UP Bar Q and A)
What is the principle of absorption?
Answer-Under the principle of absorption, a bona fide buyer or
transferee of all, or substantially all, the properties of the
seller or transferor is not obliged to absorb the latter’s
employees. Furthermore, the liabilities of the previous owner to
its employees are not enforceable against the buyer or transferee,
unless the latter unequivocally assumes them or the sale or
transfer was made in bad faith. (Barayoga v. Asset Privatization
Trust, 473 SCRA 690)

The Secretary of labor Employment, after receipt of a Notice to

Terminate Employment of one hundred (100) workers, enjoined the
employer from implementing their termination. Has the Secretary of
Labor and employment the authority to enjoin the employer from
terminating the authority to enjoin the employer from terminating
the employment of the workers? If so, on what grounds?
Answer- The Secretary of Labor and Employment has the authority to
enjoin an employer from terminating the employment of workers.
Under Article 277 (b) of the Labor Code, the Secretary of Labor and
Employment may suspend the effectivity of the termination
Of workers pending the resolution of a labor dispute in the event
of a prima facie finding of an appropriate official of the
Department of Labor and Employment before whom such dispute is
pending that the termination may cause a serious labor dispute or
is in implementation of a mass lay off. (1988 UP Bar Q and A)

Company A was engaged in the manufacture of goods using the by-

products of coconut plantation in Quezon Province. The land upon
which A conducted its operation was subjected to land reform under
R.A, 6657 for distribution to the tenants and residents of the
land. Consequently, A had to close its operation and dismiss its
workers. The union representing the employees demanded that A pay
the dismissed workers separation pay under Article 283 of the Labor
Code that requires among others, the payment of separation pay to
employees in cases of “closing or cessation of operations of the
establishment or undertaking”. Is the union’s claim correct or not?
Answer- The union’s claim is not correct. In the case of National
Federation of Labor v. NLRC, G.R. No. 127718, March 2, 2000, the
Supreme Court ruled that there is no obligation to pay separation
Pay if the closure is not a unilateral and voluntary act of
employer. In this question, the closure was brought about not by a
unilateral and voluntary act of the employer but due to the act of
government in the implementation of the Comprehensive Agrarian
Reform Law (2001 UP Bar Q and A)

How is termination of employment due to union security clause take

effect?
Answer- A labor union may terminate an offending union member by
giving notice to the subject employee and giving him opportunity to
answer the charges hurled against him by the union and the
subsequent notice of termination issued by thee employer if the
latter is satisfied that the erring union member was given
procedural due process by the union.

When may the employee terminate employer-employee relationship?

Answer-We must distinguish. Under Article 285, the employee may
terminate the employer-employee relationship without just cause by
serving a written notice on the employer at least one (1) month in
advance. On the other hand, the employee may also put an end to the
employer-employee relationship without serving notice
On the employer for any of the following just causes:
1. serious insult by the employer or his representative on
the honor and person of the employee;
2. inhuman and unbearable treatment accorded the employee by
the employer or his representative;
3. commission of a crime or offense by the employer or his
representative against the person of the employee or any of the
immediate members of his family; and
4. other causes analogous to any of the foregoing.

What is reinstatement?
Answer- Reinstatement is the restoration to a state or condition
from which one had been removed or separated. Payment of separation
pay as a substitute for reinstatement is allowed only under
exceptional circumstances. (Pheschem Industrial Corporation v.
Moldez, 458 SCRA 339)

What is meant by payroll reinstatement and when does it apply?

Answer-Payroll reinstatement is a form of reinstatement which a
employer may opt to exercise in lieu of an actual reinstatement.
Here, the illegally dismissed employee is to receive his basic pay
without the obligation of rendering any service to the employer.
This occurs when a Labor Arbiter decides that an employee was
illegally dismissed and as a consequence awards reinstatement,
pursuant to Article 279 of the Labor Code. Such award of
reinstatement, according to article 223 of the Labor Code, is
immediately executory even pending appeal. (2005 bar)

What are the instances when non-compliance by the employer with a

reinstatement order of an illegally dismissed employee is allowed?
Answer-An employer may not reinstate an employee despite a
reinstatement order in the following instances:
1.When the position may not reinstate an employee despite a longer
exists;
2. When reinstatement has been rendered moot and academic by
supervening events, such as insolvency of the employer as declared
by the court or closure of the business;
3. The existence of strained relations between the employer and the
illegally dismissed employee, provided that the matter is raised
before the Labor Arbiter. (2007 bar)
“A”, an employee of Company “B” was found to have been illegally
dismissed and was ordered to be reinstated and paid backwages from
the time of dismissal until actual reinstatement. The case was
elevated all the way to Supreme Court. By the time the Supreme
Court’s decision became final and executory, B had closed down and
was in the process of winding up. Nonetheless, B paid A his
backwages and separation pay. A complained that b’s comoutation was
erroneous in that A’s allowances was not included. Is A correct in
his claim?
Answer- A is correct. After its amendment by R.A. 6715, the
backwages that an employee who has been unjustly dismissed is
entitled to receive is not limited to his full backwages but also
includes his allowances and the other benefits or their monetary
equivalent. (2001 UP Bar Q and A)

An employee was ordered reinstated with backwages. Is he entitled

to the benefits and increases granted during the period of his lay-
off?
Answer-Yes. An employee who is ordered reinstated with backwages is
entitled to the benefits and increases granted during the period of
his lay-off. The Supreme Court ruled: backwages are
granted for earnings a worker lost due to his illegal dismissal and
an employer is obliged to pay an illegally dismissed employee the
whole amount of salaries plus all other benefits and bonuses and
general increases to which the latter should have been normally
entitled had he not been dismissed. (Sigma personnel Services v.
NLRC, 224 SCRA 181 ) (2002 bar)

What economic components constitute backwages for a rank and file

employee? Are these components equally applicable to a managerial
employee?
Answer-Under article 279 of the Labor Code, the law provides that
an employee who is unjustly dismissed from work is entitled to
reinstatement and also to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent
computed from the time of his compensation was withheld from him up
to his actual reinstatement. An employee is entitled to all the
above benefit regardless of whether he is a rank-and-file or a
managerial employee. However, backwages may also include the 13th
month pay which are paid to rank-and-file employees, as well as
benefits arising from a collective
Bargaining agreement given only to employees in the bargaining
unit. Managerial employees cannot however be given the same since
they are ineligible to join a labor organization. (2001 bar)

May the general manager of a company be held jointly and severally

liable for backwages of an illegally dismissed employee?
Answer- Yes. The General Manager may be held employee if he or she
actually authorized or ratified the wrongful dismissal of the
employee under the rule of respondent superior. In case of illegal
dismissal, corporate directors and officers are solidarily liable
with the corporation where termination of employment are done with
malice or bad faith. (Bogo-Medellin Sugar Planters Assoc., Inc. v.
NLRC, 295 SCRA 108) (2002 bar)

How is the doctrine of strained relations applied?

Answer- Under the doctrine of strained relations, the payment of
separation pay has been considered an acceptable alternative to
reinstatement when the option of said reinstatement is no longer
desirable or viable. On the other, the payment releases the
employer from the grossly unpalatable obligation of maintaining
in its employ a worker it could no longer trust. (Coca Cola
Bottlers Phil. v. De Leon G.R. No. 156893, June 21, 2005)

As a rule, when is retirement due?

Answer-Article 287 of Labor Code provides two types of retirement:
1. Optional retirement-which may be availed of by an employee upon
reaching of the age of 60 years;
2. Compulsory retirement – which may be availed of by an employee
upon reaching the age of 65 years. In both instances, the law
imposes the minimum service requirement of 5 years with the
establishment. (2007 bar)

B.Ukol was compulsory retired by his employer Kurot Bottling

Corporation, upon the former’s reaching 65 years of age, having
rendered 30 years of service. Since there was no CBA, B.Ukol was
paid his retirement benefits computed 15 days pay for every year of
service, based on B.Ukol’s highest salary during each year of his
employment. Not satisfied, B.Ukol filed action with the Arbitration
Branch of the NLRC claiming that his retirement benefits were not
computed properly. Is B.Ukol’s claim
meritorious? What are the components of his retirement benefits?
Answer-B.Ukol’s claim meritorious. His retirement benefits I to be
computed in accordance with Article 287 which reads: In the absence
of a retirement plan or agreement providing for retirement benefits
of employees in the establishment, an employee may retire and shall
be entitled to retirement pay service, a fraction of at least six
months being considered as one whole year. The same Article also
explains that the term one-half month salary means fifteen days
plus one-twelfth (1/12) of the 13 th month pay and the cash
equivalent of not more that five (5) days of the service incentive
leave.

The components of retirement pay are:

(1) 15 days day
th
(2) 1/12 of the 13 month pay; and
(3) Cash equivalent of not more than (5) days of service
incentive leave. (2001 UP Bar Q and A)
When is retirement due for underground miners?
Answer-Under R.A. 8558, in the absence of a retirement plan or
other applicable agreement providing for retirement benefits of
underground mines employees in the establishment, any such employee
may retire upon reaching the age of 50 years or more if he has
served for at least 5 years as underground mine employee or in
underground mine of the establishment. (2007 bar)
MANAGEMENT PREROGATIVE

What is covered by the doctrine of management prerogative?

Answer-Under the doctrine of management prerogative, every employer
has inherent right to regulate, according to his own discretion and
judgment, all aspects of employment, including hiring, work
assignments, working method, the time, place and manner of work,
work supervision, transfer of employees, lay-off of workers, and
disciplne, dismissal and recall of employees; employees are not
excused from complying with valid company policies and reasonable
regulations for their governance and guidance. (Rural Bank of
Cantilan, Inc. v. Julve, 517 SCRA 17)

What are the some of the limitations on the employee’s right to

security of the tenure?
Answer- Under the doctrine of management prerogative, an employee’s
right to security of tenure does not give him such a vested right
in position as would deprive the company of its prerogative to
change his assignment or transfer him where he
will be most useful. (Solid Development Corporation Workers
Association (SDCWA-UWP) vs. Solid Development Corporation, 530 SCRA
132)

What is the proof required of a n employer with respect to transfer

of an employee in the exercise of its management prerogative?
Answer-The employer bears the burden of showing that the transfer
is not unreasonable, inconvenient or prejudicial to the employee,
and does not involve demotion in rank or a diminution of his
salaries, privileges and other benefits and should it fail to
overcome this burden of proof, the employee’s transfer shall be
tantamount to constructive dismissal (San Miguel Corporation v.
Pontillas, 554 SCRA 50)

What is a bonus?
Answer-A bonus is an amount granted and paid to an employee to his
industry and loyalty which contributed to the success of the
employer’s business and made possible the realization of profits
(Producers Bank of the Philippines v. NLRC, 355 SCRA 489)
Is a bonus a demandable and enforceable obligation?
Answer-No. A bonus is not a demandable and enforceable obligation,
except when it is made part of the wage, salary or compensation of
the employee. An employer cannot be forced to distribute bonuses
which it can no longer afford to pay, for to hold otherwise would
be to penalize the employer for his past generosity. (Producers
Bank of the Philippines v. NLRC, 355 SCRA 489)
VII. LABOR RELATIONS LAW

Who may unionize for purposes of collective bargaining?

Answer-Under Article 234 of the Labor Code, all persons employed in
(1) commercial, (2) industrial, and (3) agricultural enterprises
and in (4) religious, (5) charitable, (6) medical or (7)
educational institutions whether operating for profit or not shall
have the right to self-organization and to form, join or assist
labor organizations of their own choosing for purposes of
collective bargaining. Ambulant, intermittent and itinerant
workers, self-employed people, rural workers and those without any
definite employers may form labor organizations for their mutual
aid and protection. (1996, 2000, 2004, 2006 bar)

What is an appropriate bargaining unit for purposes of collective

bargaining?
Answer-An appropriate bargaining unit is a group of employees of a
given employer comprised of all or less than all of the entire body
of employees, which the collective interest of all the employees,
consistent with the interest of the employer, indicate to be the
best suited to serve reciprocal rights and duties of
the parties under the collective bargaining provisions of the law.
(University of the Philippines v. Ferrer-Caleja, 211 SCRA 451)(1998
UP Bar Q and A)

What matters are considered mandatory subjects of collective

bargaining?
Answer –The matters considered as mandatory subjects of collective
bargaining are:
1) Wages and other types of compensation;
2) Working hours and working days including work shift;
3) Vacation and holidays;
4) Bonuses;
5) Pensions and retirement plans;
6) Seniority
7) Transfer;
8) Lay-offs;
9) Employee workloads;
10)Work rules and regulations;
11)Rent of company houses; and
12)Union security arrangements.
What jurisdictional pre-conditions must be present to set in motion
the mechanics of collective bargaining?
Answer- The following jurisdictional pre-conditions must be present
to set in motion the mechanics of collective bargaining:
1. The employees in a bargaining unit should form a labor
organization;
2. The labor organization should be legitimate labor organization;
3. The labor organization should recognized or certified as the
collective bargaining representative of the employees of the
bargaining unit; and
4. The labor organization as the collective bargaining
representative should request the employer to bargain
collectively (1996 UP Bar Q and A)

Is it required that an employer-employee relationship exists

between an employer and the employees in the appropriate bargaining
unit before a certification election can be ordered?
Answer- Yes, it is required that a employer-employee relationship
is existing between the employer and the employees in the
appropriate bargaining unit before a certification election can
be ordered for the simple reason that a certification election is
held for the purpose of determining which labor organization shall
be the exclusive bargaining unit. There could be no collective
bargaining between persons who do not have any employer-employee
relationship. (1998 UP Bar Q and A)

Who cannot form, join or assist labor organizations?

Answer-Under Article 245 of the Labor Code, managerial employees
are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in a
labor organization of the rank and file employees but may join,
assist or form separate labor organizations of their own. (1994,
1999, 2003, 2004 bar)

What are the requirements for registration of any applicant labor

organization?
Answer-Under article 234 of the Labor Code as amended by R.A. 9481,
a federation, national union or industry or trade union center or
an independent union shall acquire legal personality and shall be
entitled to the rights and privileges granted by law of
registration based on the following requirements:
(1) Fifty pesos registration fee;
(2) The names of its officer, their addresses, the principal
address of the labor organization, the minutes of the
organizational meetings and the list of the workers who
participated in such meetings;
(3) in case the applicant is an independent union, the names of all
its members comprising at least twenty percent (20%) of all the
employees in the bargaining unit where it seeks to operate;
(4) If the applicant union has been in existence for one or more
years, copies of its annual financial reports; and
(5) Four copies of the constitution and by-laws of the applicant
union, minutes of its adoption or ratification and the list of
the members who participated in it. (1996 bar)

What are the grounds for cancellation of union registration?

Answer-Under Article 239 Labor Code as amended by R.A. 9481, the
following shall constitute grounds for cancellation of union
registration:
A. Misrepresentation, false statement or fraud in connection with
amendments thereto, the minutes of ratification, and the lists of
members who took part in the ratification;
b. Misrepresentation, false statements or fraud in connection with
the election of officers, minutes of the election of officers, and
the list of voters;
c) Voluntary dissolution by the members.

What must be proved to de-certify a union?

Answer- For purpose of the de-certifying a union, it is not enough
to establish that the rank-and-file union includes ineligible
employees in its membership – it must be shown that there was
misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws or
amendments thereto, the minutes of ratification, or in connection
with the election of officers, minutes of the election of officers,
list of voters, or failure to submit these documents together with
the list of newly elected-appointed officers and their postal
addresses to the Bureau of the Labor Relations. (Air Philippines
Corporation v. Bureau of Labor Relations, 492 SCRA 234).
On what ground may a union member be expelled from the
organization?
Answer-Union members may be expelled from the labor organization
only on valid grounds provided for in the Union Constitution, by-
laws, or conditions for union membership. Union members may also be
expelled for any violation of the rights such as: 1) refusal to pay
union dues and special assessments; 2) disloyalty to the union.
(2002 bar)

Distinguish an intra-union conflict from inter-union conflict

Answer- Intra-union conflict would refer to a conflict within or
inside a labor union while and inter-union controversy or dispute,
is one occurring or carried on between or among unions. (Bautista
v. Court of Appeals, 452 SCRA 406)

What is the substitutionary doctrine?

Answer-Substitutionary doctrine is a principle in labor law which
states that even during the effectivity of a collective bargaining
agreement executed between the employer and the employees thru
their agent, the employees can change said agent but the contract
continues bind them up into its expiration date.
The Samahan ng Mga Manggagawa sa Pids and Co. Inc. lost its
majority status in the bargaining Agreement. Bickerings among all
other three other unions in the bargaining unit were a daily
occurence, with each union asserting majority status. To resolve
this pestering problem, the company and the three other unions
agreed to hold a consent election under the supervision of the
Bureau of Labor Relations. In the consent election, Pids and Co.
Worker’s Union won and was accordingly recognized by the Company as
the exclusive bargaining representative in the bargaining unit. Is
the Pids and Co. Workers Union bound by the collective bargaining
agreement signed between the Company and the Samahan ng Mga
Mangagawa sa Pids and Co. Inc?
Answer-Yes, because the Collective Bargaining is not invalidated by
the change of the bargaining agent while the CBA is still
effective. The substitutionary doctrine applies. (Benguet
Consolidated Inc. v. BCI Employees, 23 SCRA 465)(2000 UP bar Q and
A)
What is the globe doctrine?
Answer-Under the globe doctrine, the bargaining units may be formed
through separation of new units form existing ones whenever
plebiscites had shown the workers’ desire to have their own
representatives (Democratic Labor Union v. Cebu Stevedoring Co.,
103 Phil 1103) (2007 bar)

What is the community of interest rule?

Answer-The community of interest Rules provides that in choosing
the appropriate bargaining unit, there must be a determination of
the community of interest of employees. A bargaining unit under
D.O. 40-03 refers to a group of employees sharing mutual interests
within a given employer unit, comprised of all or less than all of
the entire body of employees in the employer unit or any specific
occupation or geographical grouping within such employer unit. The
test grouping is community or mutuality of interests, such as
substantial similarity of workers and duties or of compensation and
working conditions, because the basic test of an asserted
bargaining unit’s acceptability is whether or not
it is fundamentally the combination which will best assure to all
employees the exercise of their collective bargaining rights. (2007
bar)

What are the rights of legitimate labor organization?

Answer-Under Article 242 of the Labor Code, a legitimate labor
organization shall have the right:
(1) To act as the representative of its members for the purpose of
collective bargaining;
(2) to be certified as the exclusive representative of all the
employees in an appropriate collective bargaining unit for
purposes of collective bargaining;
(3) to be furnished by the employer, upon written request, with the
annual audited financial statements, including the balance sheet
and the profit and loss statement, within thirty calendar days
from the date of receipt of the request, after the union has
been duly recognized by the employer or certified as the sole
and exclusive bargaining representative of the employees in the
bargaining unit, or within sixty calendar days before the
expiration of the existing collective
Bargaining agreement, or during the collective bargaining
negotiation;
(4) To own property, real or personal, for the use and benefit the
labor organization and its members;
(5) To sue and be sued in tis registered name; and
(6) To undertake all other activities designed to benefit the
organization and its members including cooperative, housing welfare
and other projects not contrary to law.

The union deducted Php20.00 from Rogelio’s wages for January. Upon
inquiry he learned that it was for the death aid benefits and that
the deduction was made pursuant to a board resolution of the
directors of the union. Can Rogelio object to the deduction?
Answer-Yes. In order that the special assessment (death aid
benefit) may be upheld as valid, the following requisites must be
complied with: 1) Authorization by a written resolution of the
majority of all the members at the general membership meeting duly
called for the purpose; 2) secretary’s record of the meeting; and
3) individual written authorization for the check off duly signed
by the employee concerned.
meeting; and 3) individual written authorization for the check off
duly signed by the employee concerned. (ABS-CBN Supervisors
Employees Union Members v. ABS-CBN Broadcasting Corp. and Union
Officers, 304 SCRA 489) (2002 UP Bar Q and A)

Discuss in full the jurisdiction over the civil and criminal

aspects of a case involving an unfair labor practice for which a
charge is pending with the Department of Labor and Employment
Answer-Unfair labor practices are not only violations of the civil
rights of both labor and management but are also criminal offenses
against the state. The civil aspect of all cases involving unfair
labor claims for actual, moral, exemplary and other forms of
damages, attorney’s fee and other affirmative relief, shall be
under the jurisdiction of the Labor Arbiters. However, no criminal
prosecution shall be instituted without a final judgment, finding
that an unfair labor practice was committed, having been first
obtained in the administrative proceeding, the running of the
period for prescription of the criminal offense shall be
interrupted. The final judgment in the administrative proceeding
shall not be binding in the criminal
Case nor be considered as evidence of guilt but merely as proof of
compliance of the requirements set forth by law (Article 247, Labor
Code). (2007 bar)

Enumerate Unfair Labor Practices of Employers

Answer-Under Article 248 of the Labor Code, it shall be unlawful
for an employer to commit any of the unfair labor practice:
1. To interfere with, restrain or coerce employees in the exercise
of their right to self-organization;
2. To impose a yellow dog contract;
3. To contract out services performed by union members when such
will violate their right to self-organization;
4. To engage in company domination of a labor union;
5. To discriminate in regard to wages and other conditions of
employment in order to encourage or discourage membership in a
labor union;
6. To dismiss, discharge or otherwise prejudice or discriminate
against an employee for testifying, or about to testify under
the Labor Code;
7. To violate the duty to bargain collectively;
8. To pay negotiation fees or attorney’s fees as settlement for a
collective bargaining agreement or labor dispute;
9.To violate a collective bargaining agreement (1994, 1996,
2001,2002 bar)

Who may be liable for unfair labor practice committed by employers?

Answer- Under article 248 of the Labor Code, only the officers and
agents of corporations, associations or partnerships who have
actually participated, authorized or ratified unfair labor
practices shall be held criminally liable.

In a certification election conducted by the Department of Labor

and Employment, Associated Workers Organization in Laguna (AWOL)
headed by Ceasar Montanyo, won over Pangkat ng mga Manggagawa sa
Laguna (PML), headed by Eddie Graciaa. Hence, AWOL was certified as
the exclusive bargaining agent of the rank and file employees of
the Laguna Transportation Company (LTC). Shortly, thereafter a
collective bargaining agreement was concluded by LTC and AWOL
which provided for a closed shop. Consequently, AWOL, demanded that
Eddie Graciaa and all the PML members be required to become members
of AWOL pursuant to the closed shop provision of the CBA? Why?
Answer-Eddie Graciaa and all the PML members cannot be required to
become members of AWOL pursuant to the closed shop provision cannot
be applied to those employees who are already members of another
union at the time of signing of the CBA, (1999 UP Bar Q and A)

Define a closed shop agreement

Answer- A closed shop agreement is that agreement embodied in a
collective bargaining agreement whereby the employer binds itself
not to hire any person unless he is first a union member of the
collective bargaining representative. (1997 UP Bar Q and A)

Define an Agency shop agreement

Answer-Under the agency shop agreement, the employer binds itself
to check off from those who are not union members of the collective
bargaining representative a reasonable fee equivalent to the dues
and other fees paid by union members if the non-union
members accept the benefits of the collective bargaining
agreement.(1997 UP Bar Q and A)

What is discrimination?
Answer-Discrimination has been defined as the failure to threat all
persons equally when no reasonable distinction can be found between
those favored and those not favored. (Portuguez v. GSIS Family Bank
(Comsavings Bank), 517 SCRA 309)

What is surface bargaining?

Answer- It is bargaining going through the motions of negotiating
without any legal intent to reach an agreement.

What is meant by shifting bargaining positions?

Answer- It is meant as repeated shifts in position and attitude on
the part of the employer whenever a tentative agreement is reached.
membership or continuation of membership is made available by
other members;
3. to violate the duty, or refuse to bargain collectively with the
employer, provided it is the representative of the employees;
4. to cause or attempt to cause an employer to pay or deliver or
agree to pay or deliver any money or other things of value in the
nature of an exaction, for services which are not performed or not
to be performed, including the demand for fee for union
negotiations;
5. to ask for or accept negotiations or attorney’s fees from
employers as part of the settlement of any issue in collective
bargaining or any other dispute; or
6. to violate a collective bargaining agreement.

What is featherbedding?
Answer-Featherbedding arises when a union cause or attempt to cause
the employer to pay for services not performed.
What is a yellow dog contract?
Answer- A yellow dog contract arises when a promise is exacted from
workers as a condition of employment that they are not to belong
to, or attempt to foster, a union during their period of
employment.

Jenson and Jenson is a domestic corporation engaged in the

manufacturing of consumer products. Its rank-and-file workers
organized the Jenson Employees Union (JEU), a duly registered local
union affiliated with PAFLU, a national union. After having been
certified as the exclusive bargaining agent of the appropriate
bargaining unit, JEU-PAFLU submitted its proposals for a collective
bargaining agreement with the company. In the meantime, a power
struggle occurred within the national union PAFLU between its
National President Manny Pakyao, and its National Security General
Gabriel Miro.

The representation issue within PAFLU is pending resolution before

the Office of the Secretary of Labor. By reason of this intra-union
dispute within PAFLU, Jenson and Jenson obstinately and
consistently refused to offer any counter-proposal and to
Bargain collectively with JEU-PAFLU until the representation issue
within PAFLU shall have been resolved with finality. JEU-PAFLU
filed a notice of strike. The Secretary of Labor subsequently
assumed jurisdiction over the Labor dispute.

(1)Will the representation issue that has arisen involving the

national union PAFLU to which the duly registered local union
JEU is affiliated bar collective bargaining negotiation with
Jenson and Jenson?
Answer- The representation issue that has arisen involving the
national union PAFLU should not bar collective bargaining
negotiation with Jenson and Jenson. It is the local union that has
the right to bargain with the employer Jenson and Jenson and not
the national PAFLU has been resolved with finality or not. Said
squabble could not possibly serve as a bar to any collective
bargaining since PAFLU is not the real property in interest to the
talks; rather, the negotiations are confined to the corporation and
the local union JEU, possesses the legal standing to negotiate with
the corporation. A duly federation does not
lose its legal personality or independence (Adamson and Adamson
Inc. v. The Court of Industrial relations and Adamson and Adamson
Supervising Union, 127 SCRA 268)(1999 UP Bar Q and A)

(2)Can the Secretary of Labor decide the labor dispute by awarding

the JEU CBA proposals as the collective bargaining agreement of the
parties?
Answer-Yes. The Secretary of Labor can decide the labor dispute by
awarding the JEU CBA proposals as the Collective Bargaining
Agreement of the parties because when the Secretary of Labor
assumes jurisdiction over a labor dispute causing or likely to
cause a strike or lockout in an industry indispensable to the
national interest, the Secretary of Labor exercises the power of
compulsory arbitration over the labor dispute, meaning, that a an
exception to the general rule, the of pay, hours of work or terms
and conditions of employment by determining what should be the
collective bargaining agreement of the parties (divine Word
University v. Secretary of Labor 213 SCRA 759) (1999 UP Bar Q and
A)
Define the duty to bargain collectively
Answer-Under article 252 of Labor Code, the duty to bargain
collectively means the performance of a mutual obligation to meet
and convene promptly and expeditiously in good faith for the
purpose of negotiating an agreement with respect to wages, hours of
work and all other terms and conditions of employment including
proposals for adjusting any grievances or questions arising under
such agreement and executing a contract incorporating such
agreements if requested by either party but such duty does not
compel any party to agree to a proposal or to make any concession.

What is Kiok Loy ruling?

Answer-In the case of Kiok Loy vs. NLRC, G.R. No. 54344, January
22, 1986, the Supreme Court laid down the jurisdictional
preconditions to collective bargaining:
1. Possession of the status of majority representation of the
employee’s representative in accordance with any of the means or
selection or designation provided for by the Labor Code;
2. Proof of majority representation; and
3. Demand to bargain under Article 250 paragraph A of the Labor
Code

Distinguish contract bar rule and dead-lock bar rule

Answer- Under the contract bar rule, a certification election
cannot be held if there is in force and effect a collective
bargaining agreement that has been duly registered with the freedom
period prior to the expiry date of said CBA. (Article 231, 253-A
and 256 of the Labor Code)

Deadlock bar rule, on the other hand, states that a

certification election can not be held if a bargaining deadlock to
which an incumbent or certified bargaining agent is a party had
been submitted to conciliation or mediation or had become the
subject of a valid notice of strike or lockout (Section 3, Rule XI,
Book V of the Implementing Rules and Regulations of the Labor Code)
(1999 UP Bar Q and A)
What is the automatic renewal clause in a collective bargaining
agreement?
Answer- The automatic renewal clause in a collective bargaining
agreement refers to that provision of the Labor Code under Article
253 which states that it shall be duty of both parties to a
collective bargaining agreement to keep the status quo and to
continue in full force and effect the terms and conditions of the
existing agreement during the 60-day freedom period and/or until a
new agreement is reached by the parties.

What are the modes of determining an exclusive bargaining agent and

define each mode?
Answer: The modes in determining the exclusive bargaining agent
are:
(1) Voluntary recognition – There is voluntary recognition when in
an unorganized establishment with only one legitimate labor
organization, the employer voluntarily recognizes the
representation status of such a union. Within thirty days from such
recognition labor, the employer and union shall submit a notice of
voluntary recognition with the regional Office of the Department of
Labor and Employment which issued the recognized
labor union’s certificate of registration or certificate of
creation of chartered local.
(2) Certification election – refers to the process of determining
through secret ballot the sole and exclusive representative of the
employees in an appropriate bargaining unit for purposes of
collective bargaining or negotiation. A certification election is
ordered by the Department of Labor and Employment, while a consent
election is voluntarily agreed upon by the parties, with or without
the intervention by the Department.
(3) Consent election- When the process of determining through
secret ballot the sole and exclusive representative of the
employees in an appropriate bargaining unit is not ordered by the
Department of Labor and Employment, but has been voluntarily agreed
upon by the parties with or without the intervention of the
Department of Labor and Employment, then the process is a consent
election. (2006 bar)
What is the basis in the computation in a quorum in a certification
election?
Answer- The Computation of quorum in a certification election
should be based on the membership of the rank and file unit in the
particular worksite petitioning and not all the employees in the
other work sites. (St. James School of Quezon City v. Samahang
Manggagawa sa St. James School of Quezon City, 476 SCRA 12)

What is the employer bystander rule?

Answer- Under Article 258-A of R.A. 9481, the law amending the
Labor Code, in all cases, whether the petition for certification
election is filed by an employer shall not be considered a party
thereto with a concomitant right to oppose a petition for
certification election. The employer’s participation in such
proceeding shall be limited to: (1) being notified or informed of
petitions of such nature; and (2) submitting the list of employees
during the pre-election conference should the Med-Arbiter act
favorably on the petition.
What is the principle of codetermination?
Answer-Under article 255, the principle of codetermination is one
which grants to the workers the right to participate in policy and
decision-making processes affecting their rights and benefits.
(2007 bar)

Bulacan Medical Hospital (BMH) entered into a Collective Bargaining

Agreement (CBA) with its Union, wherein it is expressly stipulated
in the Management Prerogative Clause that BMH shall,, in the
exercise of its management prerogatives, have the sole and
exclusive right to promulgate , amend and modify rules and
regulations for the employees within the bargaining unit. A year
after the contract was signed, BMH issued its Revised Rules and
Regulations and furnished a copy thereof to the Union for
dissemination to all employees covered by the CBA. The Union wrote
BMH demanding that the Revised Rules and Regulations be first
discussed with them before its implementation. BMH refused. So, the
Union filed an action for unfair labor practice against BMH. Is the
Union correct?
Answer-The Union is correct. Under article 255 of the of the Labor
Code, workers have the right to participate in policy and decision-
making processes affecting their rights, benefits and welfare.
(1994 UP Bar Q and A)

What is grievance machinery?

Answer-Under article 260 of the Labor Code, it is a machinery
established for the adjustment and resolution of grievances arising
from the interpretation or implementation of their Collective
Bargaining Agreement and those arising for the interpretation or
enforcement of company personnel policies. This grievance machinery
should be included as a provision in the collective bargaining
agreement.

What is Labor Management Council?

Answer-Under Article 255 of the Labor Code, Labor Management
Council is created where workers have the right to participate in
policy and decision-making processes of the establishment where
they are employed insofar as said processes will directly affect
their rights, benefits and welfare.
4. notice of the strike filed at least 24 hours prior taking a
strike vote by secret balloting, informing said office of the
decision to conduct a strike vote, and the date, place and time
thereof;
5. strike vote where majority of union members approve the strike;
6. strike vote report should be submitted to the National
Conciliation and Mediation Board at least seven days before the
intended date of strike;
7. except in cases of union-busting, the cooling-off period
prescribed (30 days for collective bargaining, deadlock, 15 days
for unfair labor practice) should be fully observed;
8. seven day waiting period or strike ban after submission of the
strike vote report to the NCMB should fully observed;
9. not on the grounds of unfair labor practice in violation of no-
strike clause in the Collective Bargaining Agreement;
10. no person engaged in picketing should commit any act of
violence, coercion or intimidation or obstruct the free ingress to
or egress from the employer’s premises for lawful purposes or
obstruct public thoroughfares;
Define a labor dispute
Answer-A labor dispute is any controversy or matter concerning
terms or conditions of employment or the association or
representation of persons in negotiating, fixing, maintaining,
changing or arranging the terms and conditions of employment,
regardless of whether the disputants stand in the proximate
relation of employer and employee. (Bukluran ng Manggagawa sa
Clothman Knitting Corp. Solidarity of Unions in the Phils. For
Empowerment and Reforms v. Court of Appeals, 448 SCRA 642)

Discuss the requirements of a valid strike.

Answer-The legal requirements of a valid strike are as follows:
1. It must have a valid and factual ground;
2. Notice of strike filed by the bargaining agent at least 30 days
before the intended date (if collective bargaining deadlock) or
a registered union in the affected bargaining unit at least 15
days before the intended date (if unfair labor practice);
3. Notice of the strike filed with the National Conciliation and
Mediation Board;
11. no strike shall be declared after the Secretary of Labor
assumes jurisdiction.

Define sympathy strike

Answer-General strike is defined as a stoppage of work by the
concerted action of the employees but is not the result of a labor
or industrial dispute. In this kind of strike, the workers go on a
sympathy strike to show their sympathy for certain workers who are
on strike. (2004 bar)

Define general strike

Answer-General strike is defined as a stoppage of work by concerted
action of employees but is not the result also of a labor or
industrial dispute. In this kind of strike, the workers in the
country or in a region, province or city or municipality go on a
strike to publicly protest a certain policy or taken by the
government. (2004 bar)
The Kilusang Kabisig, a newly formed labor union claiming t o
represent a majority of the workers in the Microchip Corporation,
proceeded to present a list of demands to the management for
purposes of collective bargaining. The Microchips Corporation, a
multinational corporation engaged in the production of computer
chips for export, declined to talk with the union leaders, alleging
that they had not as yet presented any proof of majority status.
The Kilusang Kabisig then charged Microchip Corporation with unfair
labor practice and declared a wildcat strike wherein means of
ingress and egress were blocked and remote and isolated acts of
destruction and violence were committed
a) Was the strike legal?
b) Was the company guilty of an unfair labor practice when it
refuse to negotiate with the Kilusang Kabisig?

Answer-a) Because what was declared is a wildcat strike, the strike

is illegal. A wildcat strike is one that declared by a group of
workers without formal union approval. Thus, it is illegal because
the Labor Code requires that for a strike to be legal among others,
the decision to declare a strike must be approval by a majority of
the total union membership in the
Bargaining unit concerned, obtained by a secret ballot in meetings
or referenda called for that purpose.

b) No. It is not unfair labor practice not to bargain with a union

which has not presented any proof of its majority status. The Labor
Code imposes on an employer the duty to bargain collectively only
with a legitimate labor organization designated or selected by the
majority of the employees in an appropriate collective bargaining
unit. It is a ULP for an employer to ask a union requesting to
bargain collectively that such union first show proof of its being
a majority union. (1997 UP Bar Q and A)

Is the Secretary of Labor authorized by law to examine the

financial records of the union?
Answer-Under article 274 of the Labor Code, the Secretary of Labor
is expressly authorized to examine the financial records of the
union to determine compliance or non-compliance with the pertinent
provisions of the Labor Code and to prosecute any violation of the
law and the union constitution and by-laws. But this authority may
be exercised only upon the filing of a complaint under oath and
duly supported by the written consent
of at least 20% of the total membership of the labor organization
concerned. However, the Labor Code provides that and examination of
the books of a union shall not be conducted during the sixty (60)
day freedom period nor within thirty (30) days immediately
preceding the date of election union officials.

/the Secretary of Labor assumed jurisdiction over a strike under

Article 263 (g) of the Labor Code and issued a return-to-work
order. The Union defied the return-to-work order and continued the
strike. The Company proceeded to declare all those who participated
in the strike as having lot their employment status.
1) Was the Company’s action valid?
2) Was the Company still duty bound to observe the requirements of
due process before declaring those who participated in the
strike as having lost their employment status?
Answer-1) The company’s action is valid. Any declaration of a
strike after the Secretary of Labor has assumed jurisdiction over a
labor dispute is considered an illegal act and any worker or union
officer who knowingly participates in a strike defying a return to
work order may consequently be declared to have lost his employment
status and forfeited his right to be readmitted,
having abandoned his position, and so could validly be replaced.
For the moment a worker defies a return-to-work order, he is deemed
to have abandoned his job, as it is already in itself knowingly
participating in an illegal act, otherwise the worker will simply
refuse to return to his work and cause a stand still in company
operations while returning the position he refuses to discharge or
allow management to fill.(St. Scholastica’s College v. Hon. Ruben
Torres, Secretary of Labor, et. al., G.R. 100158, June 29, 1992)
(1994 UP Bar Q and A)

2) Considering that the workers who defied the return-to-work order

are deemed to have abandoned their employment, the only obligation
required of an employer is to serve notices declaring them to have
lost their employment status at the worker’s last known address.
(Section 2, Rule XIV, Book of the Implementing Rules of the Labor
Code) (1994 UP Bar Q and A)

What are the six categories of illegal strikes?

Answer-There are six categories of illegal strike:
a. When it is contrary to a specific prohibition of law, such as
b. when it violates a specific requirement of law;
c. When it is declared for an unlawful means in the pursuit of its
objectives;
e. When it is declared in violation to an existing injunction; and
f. when it is contrary to an existing agreement, such as a no-
strike clause or conclusive arbitration clause (Toyota Motor Phils.
Corp. Workers Association (TMPCWA) v. NLRC, 537 SCRA 171)

What is the innocent bystander rule?

Answer-Innocent bystander rule provides that when employees of
another company who are prevented ingress and egress by a picketing
union, these employees and their employer as an innocent bystander,
may seek to enjoin a labor strike and must satisfy the court that
aside from the grounds specified in Rule 58 of the Rules of Court,
it its entirely different from, without any connection whatsoever
to either party to the dispute and therefore, its interests are
totally foreign to the context thereof (MFS Tire and Rubber, Inc.
vs. CA, G.R. No. 128632, 1999).
VII. PROCEDURE AND JURISDICTION

Give the original and exclusive jurisdiction of Labor Arbiters.

Answer-Labor arbiters shall have original and exclusive
jurisdiction to hear and decide the following cases involving all
workers, whether agricultural or non-agricultural:
a) Unfair labor practice cases;
b) Termination disputes;
c) If accompanied with a claim for reinstatement, those cases that
workers may file involving wages, rates of pay, hours of work
and other terms and conditions of employment;
d) Claims arising from employer-employee relations;
e) Cases arising form any violation of article 264 of the Labor
Code, as amended, including questions involving the legality of
strikes and lockouts;
f) Except claims for employees compensation, social security,
Philhealth, and maternity benefits, all other claims arising
form employer-employee relation, including those of persons in
domestic or household service, involving an amount exceeding
Five Thousand Pesos (P5,000.00), whether or not accompanied
with a claim for reinstatement;
g) Money claims arising out of employer-employee relationship or by
virtue of any law or contract, involving Filipino workers for
overseas deployment, including claims for actual, moral, exemplary
and other forms of damages;
h) Wage distortion disputes in unorganized establishments not
voluntarily settled by the parties pursuant to article 227 of the
Labor code, as amended; and
j. Other cases as may be provided by law.

Cases arising for the interpretation or implementation of

collective bargaining agreements and those arising from the
interpretation or enforcement of company personnel policies shall
be disposed of the Labor Arbiter by referring the same to the
grievance machinery and voluntary arbitration, as may be provided
in said agreements.
Is a Complaint for reimbursement of training expenses within the
jurisdiction of the Labor Arbiter?
Answer-No. An employer’s complaint for reimbursement of training
expenses is not within the jurisdiction of the labor Arbiter – the
jurisdiction of labor arbiters, as well as of the National Labor
Relations Commission is limited to disputes arising from an
employer-employee relationship which can only be resolved by
reference to the Labor Code, other labor statues, or their
collective bargaining agreement, not one to collect sum of money
based on civil laws, on obligations and contracts. (U-Bix
Corporation v. Hollero, 570 SCRA 373)

What is the jurisdiction of the National Labor Relations

Commissions?
Answer- National Labor Relations Commission has jurisdiction over:
a) Exclusive appellate jurisdiction over all cases decided by Labor
Arbiters;
b) Exclusive appellate jurisdiction over all cases decided by the
Regional Directors or hearing officers involving the recovery
of wages and other monetary claims and benefits arising from
employer-employee relations where the aggregate money claim of each
employee or househelper does not exceed five thousand pesos
(Php5,000.00)
c) Original exclusive jurisdiction to act as a compulsory
arbitration body over labor disputes certified to NLRC by the
Secretary of Labor Employment;
d) Original exclusive jurisdiction to issue a labor injunction
under Article 218 (e) of the Labor Code;
e) Original exclusive jurisdiction over contempt cases committed
against the Commission or any of its members under Article 218 (d)
and (e);
f) Exclusive jurisdiction over cases involving petition for relief
form judgment resulting from a decision or order involving from a
labor dispute by reason of fraud, accident, mistake or excusable
negligence.
What is the effect if the Labor Arbiter’s order of reinstatement is
reversed by the National Labor Relations Commission and the
latter’s order becomes final executory?
Answer-If the order of reinstatement of the Labor Arbiter is
reversed on appeal, it is obligatory on the part of the employer to
reinstate and pay the wages of the dismissed employee during the
period of appeal until reversal by a higher court. If the
reinstatement order is reversed with finality and the employee has
already been reinstated during appeal, the employee is not required
to reimburse whatever salary he received for he is entitled to
such, more so if he actually rendered services during the period.

What matter may be taken up by the National Labor Relations

Commissions en banc?
Answer-Yes, non lawyers may appear before the labor arbiter or
NLRC but only in the following instances:
1. If they represent themselves; or
2. If they represent their organization or members thereof (Article
222, Labor Code) provided that he presents a verified
2. If they represent their organization or members thereof
(Article 222, Labor Code) provided that he presents a verified
certification from the said organization that he is properly
authorized;
3. He is duly accredited member of any legal aid office duly
recognized by the DOJ or IBP (Kanlaon Construction Enterprises v.
NLRC, 279 SCRA 337) (2007 Bar)

What is the original and exclusive jurisdiction of the Bureau of

Labor Relations?
Answer-Under Article 226 of the Labor Code, the cases under the
original and exclusive jurisdiction of the Bureau of Labor
Relations are:
a) Inter-union conflicts;
b) Intra-union- conflicts; and
c) all disputes, grievances or problems arising form or affecting
labor- management relations in all workplaces whether
agricultural or non-agricultural, except those arising from the
implementation which shall be the subject of grievance procedure
and/or voluntary arbitration.
What cases are under the appellate jurisdiction of the Bureau of
Labor Relations?
Answer-The cases under the appellate jurisdiction of the Bureau of
labor Relations are:
a) Review of a decision of the Regional Office in a Petition to
cancel union’s certificate of registration;
b) Decisions of Med-Arbiters

What is the National Conciliation and Mediation Board (NCMB)?

Answer- the National Conciliation and Mediation Board was created
and absorbed the conciliation, mediation and voluntary arbitration
functions of the Bureau of Labor Relations. The Board is composed
of an Administrator and two Deputy Administrator. The NCMB is an
attached agency under the administrative supervision of the
Department of Labor and Employment.

What are the functions of the National Conciliation and Mediation

Board?
Answer-The function of the National Conciliation and Mediation
Board are:
a) Formulate policies, programs, standards, procedure, manuals of
operation and guidelines pertaining to effective mediation and
conciliation of labor disputes;
b) Perform preventive mediation and conciliation functions;
c) Coordinate and maintain linkages with other sectors or
institutions, and other government authorities concerned with
matters relative to the prevention and settlement of labor
disputes;
d) Formulate policies, plans, programs, standards, procedures,
manuals of operations and guidelines pertaining to the promotion
of cooperative and non-adversarial schemes grievance handling,
voluntary arbitration and other voluntary modes of dispute
settlement;
e) Administer the voluntary arbitration program; maintain/update a
list of voluntary arbitrations; compile arbitration awards and
decisions;
f) Provide counseling and preventive mediation assistance
particularly in the administration of collective agreements;
g) Monitor and exercise technical supervision over the Board
programs being implemented in the regional offices; and
h) Perform such other functions as may be provided by law or
assigned by the secretary of DOLE.

What are the visitorial and enforcement powers of the Secretary of

Labor and his duly authorized representative?
Answer-The visitorial and enforcement powers of the Secretary of
Labor and his duly authorized representative are:
a) Article 37 of the Labor Code – The power to inspect the
premises, books of accounts and records of any person or entity
engaged in recruitment and placement, require it to submit
reports regularly on prescribed forms, and act on violations of
any provisions of the Labor Code on recruitment and placement;
b) Article 128 of the Labor Code – the power to have access to
employer’s records and premises to determine violations of or
enforce the Labor Code and any labor law, wage, order or rules
and regulations issued pursuant thereto;
c) Article 165 of the Labor code – the power to conduct industrial
safety inspection of establishments;
d) Article 274 of the Labor Code – the power to inquire into the
financial activities of legitimate labor organizations and examine
and duly supported by the written consent of at least 20% of the
total membership of the labor organization;
e) Article 128 (b) of the Labor Code- the power to issue compliance
orders to give effect to the labor standards provisions of the Code
and other labor legislation based on the findings of the labor
employment and enforcement officers or industrial safety engineers
in the course of inspection.
f) Article 128 (b) of the Labor code – the power to issue writs of
execution to the appropriate authority for the enforcement of their
orders, except in cases where the employer contests findings of the
labor employment and enforcement officer and raises issues
supported by documentary proofs which were not considered in the
course of inspection.
What are the requisites for simple money claims filed before the
Office of the Regional Director of DOLE?
Answer-The requisites for simple money claims are:
a) The claim is presented by an employee or person employed in
domestic service;
b) The claim arises from an employer-employee relationship;
c) The complaint does not include a claim for reinstatement,
d) Aggregate money claim including legal interest does not exceed
Php5,000.00

When shall the Secretary of Labor exercise its power to suspend the
effects of termination?
Answer- Under Article 277 (b), the Secretary of Labor may suspend
the effects of termination during the pendency of a resolution of a
dispute filed before the Department of Labor and Employment in the
event of a prima facie finding by the appropriate official of the
DOLE where the case is pending that the termination may cause a
serious labor dispute or is an implementation of a mass lay-off.
(1998 bar)
Does the Secretary of Labor and Employment have the appellate
jurisdiction to review a decision of the Bureau of Labor Relations
rendered in the exercise of its appellate power?
Answer-No. The appellate jurisdiction of the Secretary of Labor and
Employment is limited only to a review of cancellation proceedings
decided by the Bureau of Labor Relations in the exercise of its
exclusive and original jurisdiction – he has no jurisdiction over
decisions of the Bureau of Labor Relations rendered in the exercise
of its appellate power to review the decision of the Regional
Director in a petition to cancel the union’s certificate of
registration, said decisions being final and inappealable. (Abbott
Laboratories Philippines, Inc. v. Abbott Laboratories Employees
Union, 323 SCRA 392)

What is the remedy of an aggrieved party in a Decision of the

Secretary of DOLE?
Answer-The remedy of an aggrieved party in a Decision or Resolution
of the Secretary of DOLE is to timely file a motion for
reconsideration as a precondition for any further or subsequent
remedy, and then seasonably file a special civil action
certiorari under rule 65 of the 1997 Rules of civil Procedure.
(Manila Pearl Corporation v. Manila Pearl Independent workers
Union, 456 SCRA 258)

What cases are under the original and exclusive jurisdiction of the
Voluntary Arbitrators?
Answer-Under article 261 and 262 of the Labor Code, the cases under
the original and exclusive jurisdiction of the voluntary
Arbitrators are:
a) All unresolved grievances arising from the interpretation or
implementation of the collective bargaining agreement;
b) All unresolved grievances arising from the interpretation or
implementation of company personnel policies;
c) All other labor disputes including unfair labor practices and
bargaining deadlocks.
The employer company, in a directive to the union president,
ordered the transfer of some of its employees, including a number
of union officials to its plant offices. The order was opposed by
the union. Ultimately, the union filed an unfair labor practice
against the company alleging that the purported transfer of its
union officials was unjust and in violation of the Collective
Bargaining Agreement (CBA). Pursuant to the terms of the CBA, the
dispute was referred to a voluntary arbitrator who later ruled on
the issues raised by the parties. Could it later be validly
asserted that the decision of the voluntary arbitrator would have
no compulsory effect on the parties?
Answer – No. The award of voluntary arbitrators acting within the
scope of their authority determines the rights of the parties, and
their decisions have the same legal effects as a judgment of the
Court. Such decisions on matters of fact or law are conclusive, and
all matters in the award are thenceforth res judicata on the theory
that the matter has been adjudged by the tribunal which the parties
have agreed to make final as tribunal of last resort.
(Volkschel Labor Union v. NLRC,98 SCRA 314) (2003 UP Bar Q & A)
What is compulsory arbitration?
Answer – Compulsory arbitration has been defined both as the process of
settlement of labor disputes by a government agency which has the
authority to investigate and to make an award which is binding on all
the parties, and as a mode of arbitration where the parties are
compelled to accept the resolution of their dispute through arbitration
by a third party. (Ludo and Luym Corporation v. Saornido, 395 SCRA 451)

What is the remedy of an aggrieved party of a decision of the Panel of

Voluntary Arbitrators? Does a dissenting opinion of any of the voluntary
arbitrator bind the parties?
Answer – As a rule, decision of the panel of voluntary arbitrators would
become final and executory after ten (10) calendar days from receipt of
copies of the decision by the parties even without receipt of the
dissenting opinion unless, in the meantime, a motion for reconsideration
or a petition for review to the Court of Appeals under Rule 43 of the
Rules of Court is filed within the same 10-day period.
No, a dissenting opinion is not binding on the parties as it is a
mere expression of the individual view of the dissenting member
from the conclusion held by the majority of he Court. (Coca-Cola
Bottlers Philippines, Inc. Sales Force Union-PTGWO-Balais vs.
Coca-Cola Bottlers Philippines, Inc. 464 SCRA 507)

The national council of X Union, the exclusive bargaining

representative of all daily paid workers of Z Corporation, called
a general meeting and passed a resolution which provides that
each union member was to be assessed P1,000.00 to be deducted
from the lump sum of P10,000.00 which each employee was to
receive under the CBA. Sergio, a union member, protested and
refused to sign the authorization slip for the deduction. X Union
then passed a resolution expelling Sergio from the union. Sergio
filed a complaint before the Labor Arbiter for illegal deduction
and expulsion from the union. Will the complaint prosper?
Answer – The complaint will not prosper before the Labor Arbiter
because there is here an intra-union conflict which is under the
jurisdiction of the Med- Arbiter pursuant to Article 226 and Rule V
of Book V of the Rules and Regulations Implementing the Labor Code.
(1996 UP Bar Q and A)

Company “A” and Union “B” could not resolve their negotiations for
a new CBA. After conciliation proceedings before the NCMB proved
futile, B went on strike. Violence during the strike prompted A to
file charges against striker-members of B for their illegal acts.
The Secretary of Labor assumed jurisdiction, referred the strike to
the NLRC and issued a return-to-work order. The NLRC directed the
parties to submit their respective position papers and documentary
evidence. At the initial hearing before the NLRC, the parties
agreed to submit the case for resolution after the submission of
the Position Papers and evidence.
Subsequently, the NLRC issued an arbitral award resolving the
disputed provisions of the CBA and ordered the dismissal of certain
workers for having knowingly committed illegal acts during the
strike. The dismissed employees elevated their dismissal of their
right to due process and that the affidavits submitted by A were
self-serving and of noprobative value. Should the appeal prosper?

Answer – The appeal should not prosper. In CMP Federal Security

Agency v. NLRC, G.R. No. 125298, February 11, 1999, the Supreme
Court ruled: the standard of due process that must be met in
administrative tribunals allows a certain degree of latitude as
fairness is not ignored. Hence, it is not legally objectionable for
being violative of due process, for the labor arbiter to resolve a
case based solely on the position papers, affidavits or documentary
evidence submitted by the parties. The affidavits of witnesses in
such case may take the place of direct testimony. (2001 UP Bar Q
and A)
May a decision of the Labor Arbiter which has become final and
executory be novated through a compromise agreement of the
parties?
Answer – Yes. Although Article 221 of the Labor Code requires the
labor arbiter to exert all efforts to amicably settle the case
before him, it must be noted that neither the Labor Code nor its
implementing rules as well as the NLRC rules prohibit the amicable
settlement of cases during the pendency of the proceedings or after
a judgment is issued thereupon. (2007 bar)

Does a judgment issued by the Labor Arbiter based on the compromise

agreement have the effect of res judicata upon employees who did
not agree thereto?
Answer – No. A judgment of the Labor Arbiter based on the
compromise agreement does not have the effect of res judicata upon
employees who did not agree thereto – a compromise agreement is not
valid when a party in the case has not signed
the same or when someone signs for and in behalf of such party
without authority to do so. (Golden Donuts, Inc. v. National Labor
Relations Commission, 322 SCRA 294)

How do you stay a decision, award or order of the Labor Arbiter?

Answer – Under Article 223 of the Labor Code, a decision, award or
order of the Labor Arbiter may be stayed by perfecting an appeal to
the National Labor Relations Commission, through the filing of a
Notice of Appeal with Appeal with Appeal Memorandum within ten days
from receipt of such decision, verified by the appellant and
accompanied with a Certificate of Non-forum shopping, proof of
service on the other party, proof of payment of the appeal fee and
cash or surety bond in the amount equivalent to the monetary award
in the judgment appealed from. Reinstatement is immediately
executory. (2007 bar)
What are the grounds for appealing the decision of the Labor
Arbiter or the Regional Director?
Answer – The grounds for appealing the decision of the labor
Arbiter or the Regional Director of DOLE are:
a) if there is prima facie evidence of abuse of discretion on the
part of the Labor Arbiter or the Regional Director of DOLE:
b) if the decision, resolution or order was secured through fraud
or coercion, including graft and corruption;
c) if made purely on questions of law; and/or
d) if serious errors in the findings of fact are raised which, if
not corrected, would cause grave or irreparable damage or injury to
the appellant.
What are the requisites for perfection of an appeal before the
NLRC?
Answer – The requisites for perfection of an appeal are:
a) the appeal shall be filed within ten days from receipt of the
decision;
b) verified by the appellant in accordance with Section 4 of Rule 7
of the Rules of Court;
c) in the form of memorandum of appeal which shall state the
grounds relied upon and the arguments in support thereof, the
relief prayed for, and with a statement of the date the appellant
received the appealed decision, resolution or order;
d) the notice of appeal accompanied by the memorandum of appeal
shall be in three legibly typewritten or printed copies accompanied
by proof of payment of the required appeal fee and the posting of a
cash or surety bond as provided in Section 6 of the 2005 NLRC Rules
of Procedure;
e) it must be accompanied by a certificate of non-forum shopping;
and
f) proof of service on the other parties.

May the NLRC or the courts take jurisdictional cognizance over

compromise agreements/settlements involving labor matters?
Answer- No. Under Article 227 of the Labor Code, any compromise
agreement, including those involving labor standard laws,
voluntary agreed upon by the parties with the assistance of the
Bureau or the Regional Office of the Department of Labor, shall be
final and binding upon the parties. The National Labor Relations
Commission or any court shall not assume jurisdiction over issues
involved therein except in case of non-compliance thereof or if
there is prima facie evidence that the settlement was obtained
through fraud, misrepresentation or coercion. (2007 bar)
How do you execute a labor judgment which on appeal had become
final and executory?
Answer-Execution shall issue upon an order, resolution or
decision that finally disposes of the action or proceedings
after the counsel of record and the parties shall have been
furnished with copies of the decision in accordance with the
Rules but only after the expiration of appeal if no appeal has
been duly perfected.

The Labor Arbiter, the Regional Director or his duly

authorized hearing officer of origin shall, motu proprio or
upon motion of any interested party, issue a writ of execution
on a judgment executory, so requiring the sheriff or duly
deputized officers to execute the same. No motion for
execution shall be entertained nor a writ be issued unless the
Labor Arbiter is in possession of the records of the case
which shall include an entry of judgment in case of appeal
except that, as provided for in section 10 of Rule IV, and in
Those cases where partial execution is allowed by law, the
Labor arbiter shall retain duplicate original copies of the
decision to be implemented and proof of service thereof for
the purpose of its immediate enforcement. (2007 bar)

What are the two instances when an order of execution may be

appealed?
Answer – An order of execution may be appealed in the
following instances:
1. Where the order of execution varies or goes beyond the
terms of the judgment it seeks to enforce or terms of the
judgment are ambiguous (DBP v. Union Bank, 419, SCRA 131)
2. Where the implementation of the Order was irregular
(Metrobank v. C.A. 356 SCRA 563)
Can the quitclaim be annulled on the ground of direct
necessity?
Answer- A quitclaim can be annulled on the ground of its being
entered into involuntarily by employees because of “dire
necessity”. Thus, if it was dire necessity that forced a
worker to sign a quitclaim even if the amount of money given
to him by the employer was very much less than that the
workers was entitled to receive, then the quitclaim was not
voluntary and thus, the said quitclaim is null and void. (1999
UP Bar Q and A)

Can a final executory judgment be compromised under “Release

and Quitclaim” for a lesser amount?
Answer- A final executory judgment cannot compromised under a
“Release and Quitclaim” if said “Release and Quitclaim” is
clearly to grave disadvantage of the affected employees by
paying them lesser amounts than what they were entitled to
Can the quitclaim be annulled on the ground of direct
necessity?
Answer- A quitclaim can be annulled on the ground of its being
entered into involuntarily by employees because of “dire
necessity”. Thus, if it was dire necessity that forced a
worker to sign a quitclaim even if the amount of money given
to him by the employer was very much less than that the
workers was entitled to receive, then the quitclaim was not
voluntary and thus, the said quitclaim is null and void. (1999
UP Bar Q and A)

Can a final executory judgment be compromised under “Release

and Quitclaim” for a lesser amount?
Answer- A final executory judgment cannot compromised under a
“Release and Quitclaim” if said “Release and Quitclaim” is
clearly to grave disadvantage of the affected employees by
paying them lesser amounts than what they were entitled to
receive under the judgment. (Alba Patio de Makati v. NLRC, 201
SCRA 355)(1999 Bar Q and A)

What is the effect of an appointment of a management receiver

over a corporation?
Answer- With the appointment of a management receiver, all
claims and proceedings against the corporation, including
labor claims, are deemed suspended during the existence of the
receivership-the labor arbiter, the NLRC, as well as the Court
of Appeals should not proceed to resolve complaints for
illegal dismissal and should instead direct the employees to
lodge their claim before the duly-appointed receiver. (Clarion
Printing House, Inc. v. NLRC, 461 SCRA 272)
What is the mode judicial review of the decision of the
National Labor Relations Commission?
Answer- The mode of judicial review of the decision of the
NLRC is a petition for certiorari under Rule 65 of the Revised
Rules of the Civil Procedure – the different modes of appeal,
namely, writ of error (Rule 41), petition for review (Rule 42
and 43) and petition for review certiorari (Rule 45), cannot
be availed of because there is no provision on appellate
review of the NLRC decisions in the Labor Code, as amended.
(Marival Trading , Inc. v. National Labor Relations
Commission, 525 SCRA 708)

What is the prescriptive period for cases involving illegal

dismissal?
Answer- In all cases involving illegal dismissal, the
complaint must be filled within four years from the time the
cause of action accrued.
What is the prescriptive period for cases involving offenses
penalized under the Labor Code and its implementing rules and
regulations?
Answer- In all cases involving offenses penalized under the
Labor Code and its implementing rules and regulations, the
complaint must be filed within three years from the cause of
action accrued.

What is the prescriptive period for cases involving illegal

recruitment?
Answer- Under the Migrant Workers and Overseas Filipinos Act,
illegal recruitment prescribes in five years, provided
however, that illegal recruitment involving economic sabotage
shall prescribe in 20 years.
The general manager of Junk Food Manufacturing Corporation
dismissed Andrew tan, a rank and file employee, on the ground
of insubordination. The general manager served on Andrew Tan
the letter of termination effective upon receipt which was on
March 8, 1992. Shocked by his unexpected dismissal, Andrew Tan
confronted the general manager and hit the latter on the head
with the lead pipe. Junk Food Manufacturing filed a physical
injuries. Somehow, Andrew Tan was acquitted by the court
assigned to hear the criminal case. A few day following his
acquittal, or on March 1, 1996, Andrew Tan filed a complaint
against the company for illegal dismissal, reinstatement and
the payment of backwages and damages. Was the complaint filed
by Andrew Tan for illegal dismissal within the reglementary
period granted by law?
Answer-Yes. The complaint was filed within four (4) years from
the date Andrew Tan was dismissed by his employer. Illegal
dismissal, as a cause of action, prescribes after four years
from the time cause of action, namely, illegal dismissal took
place. This pursuant to article 1146 of the Civil Code which
provides that actions upon an injury to the rights of a person
should be initiated within four (4) years from the time the
right of action accrues. (1997 UP Bar Q and A)
IX. SOCIAL LEGISLATION

SOCIAL SECURITY LAWS

What employee are subject to the compulsory coverage of the
social Security System?
Answer- The following employees are subject to the compulsory
coverage of the SSS;
a. A private employee, whether permanent, temporary or
provisional, who is not over 60 years old;
b. A househelper earning at least Php1,000 a month is
compulsory covered starting September 1, 1993;
c. A Filipino seafarer upon the signing of the standard
contract of employment between the seafarer and the manning
agency which, together with the foreign ship owner , act as
employers;
d. An employee of a foreign government, international
organization or their wholly-owned instrumentality based in
the Philippines, which entered into an administrative
agreement with the SSS for the coverage of its Filipino
workers;
e. The parent, spouse or child below 21 years old of the owner
of a single proprietorship business.

What are the requisites for self-employed members to be

subject to compulsory coverage of the SSS?
Answer- The requisite for a self-employed person to be subject
to compulsory coverage of the SSS are: he/she must be a self-
employed person regardless of trade, business or occupation
with an income of at least Php1,000 a month and not over 60
years old; included but not limited to the following are
categorized as self-employed persons:
a. self-employed professionals;
b. Business partners, single proprietors and board directors;
c. actors, actresses, directors, scripwriters and news
reporters who are not under an employer-employee relationship;
d. Professional athletes, coaches, trainers and jockeys;
e. Farmers and fisherfolks; and
f. Workers in the informal sector such as cigarette vendors,
watch-your-car boys, hospitality girls, among others.

What employers are subject to the compulsory coverage of the

Social Security System?
Answer- The following employers are subject to the compulsory
coverage of the Social Security System:
a. An employer, or any person who uses the services of another
person in business, trade, industry of any undertaking. A
social, civic, professional, charitable and other non-profit
organization which hire the services of employees are
considered employers;
b. A foreign government, international organization or its
wholly-owned instrumentality such as embassy in the
Philippines, may enter into an administrative agreement with
the SSS for the coverage of its Filipino employees.

When does the overage of members take effect?

Answer- Coverage of compulsory members take effect as follows:
a. Employee – on the first day of his/her employment;
b. Employer- on the first day he/she hires employees;
C. Self-employed- upon payment of the first valid
contribution, in case of initial coverage.

Coverage of Voluntary members take effect as follows:

a. Overseas Filipino worker-upon first payment of
contribution, in case of initial coverage;
b. non-working spouse-upon first payment of contribution;
c. a separated member-on the month he/she resumed payment of
contribution.

Who are subject to the voluntary coverage of the Social

Security System?
Answer- the following are subject to voluntary coverage of the
SSS:
a. Separated members – a member separated from employment or
ceased to be self-employed/OFW/non-working spouse and would
like to continue contributing;
b. Overseas Filipino Workers – a Filipino recruited in the
Philippines by a foreign-based employer for employment abroad
or one who legitimately entered a foreign country and is
eventually employed;
c. non-working spouse of SSS members – a person legally
married to currently employed and actively paying SSS member
who devotes full time in the management of household and
family affairs may be covered on a voluntary basis provided
there is approval of the working spouse. The person should
never have been a member of the SSS. The contributions will be
based on 50 percent of the working spouse’s last posted
monthly salary credit but in case shall be lower that
Php1,000.

Who are the legal dependents of a member of the Social

Security System?
Answer- The legal dependents of a member are:
a. Primary beneficiaries – the legally married dependent
spouse until he or she remarries, the dependent legitimated or
legally adopted and illegitimate children;
b. If single, the dependent parents are considered the primary
beneficiaries;
c. Secondary beneficiary – in the absence of a primary
beneficiary, any other person designated by the member shall
be considered as the secondary beneficiary.
What benefits will a member of the social Security System
receive?
Answer- The benefits that a member of the SSS will receive
are:
a. Sickness benefit;
b. Maternity benefit;
c. Retirement benefit;
d. Disability benefit;
e. Death benefit;
f. Employee’s Compensation benefit for sickness, injury,
disability or death resulting from an employment accident.
What is the sickness benefit?
Answer- The sickness benefit is a daily cash allowance paid
for the number of days a member is unable to work due to
sickness or injury.
How does an SSS member qualify for the sickness benefit?
Answer- an SSS member may qualify for sickness benefit
provided:
a. he/she is unable to work due to sickness or injury and
confined either in a hospital or at home for at least four
days;
b. he/she has paid at least three months of contributions
within the 12 month period immediately before the semester of
sickness;
c. That all company sick leaves with pay for the current year
has been used up;
d. That the employer has been notified, or if a separated,
voluntary or self-employed member, to the SSS directly.

What is the maternity benefit?

Answer- The maternity benefit is a daily cash allowance
granted to a female member who was unable to work due to
childbirth or miscarriage.

What are the qualifications for entitlement to the maternity

benefit?
Answer- The qualifications for entitlement to maternity
benefit are:
a. The member has paid at least three monthly contributions
within the 1 month period immediately preceding the semester
of childbirth or miscarriage;
b. That she has given the required notification of her
pregnancy through her employer if employed, or to the SSS if
separated, voluntary or self-employed member.

How much is the maternity benefit?

Answer- The maternity is equivalent to 100 percent of the
member’s average daily salary credit multiplied by 60 days for
normal delivery or miscarriage, 78 days for caesarean section
delivery.
How many deliveries are covered under existing laws?
Answer- The maternity benefit shall be paid only for the first
four deliveries or miscarriages starting May 24, 1997 when the
social Security Act of 1997 took effect.

What is the retirement benefit?

Answer- It is cash benefit either monthly pension or lump sum
paid to a member who can no longer work due to old age.

Who may qualify for a retirement benefit?

Answer- a member may qualify for retirement benefits provided:
a. A member who is 60 years old, separated from employment or
ceased to be self-employed, and has paid at least 120 monthly
contributions prior to the semester of retirement; or
b. a member who is 65 years old whether employed or not and
has paid at least 120 monthly contributions prior to the
semester of retirement.

For underground mineworkers:

a. Has reached the age of 55 years old and is an underground
mineworker for at least 5 years (either continuous or
accumulated) prior to the semester of retirement but whose
actual date of retirement is not earlier than march 13, 1998;
separated from employment or in case of self-employed, has
ceased self-employment, and has paid at least 120 monthly
contributions prior to the semester of retirement; or
b. has reached the age of 60 years whether employed or not

What is the new Disability program?

Answer- The new SSS Disability Program is a re-designed
disability program that implements the revised manual of
disability assessment. The new program adopts the World Health
Organization’s definition of disability that states as any
restriction or lack (resulting from impairment) of ability to
perform an activity in the manner or within the range
considered normal for a human being.

Who is qualified for disability benefit?

Answer- A member who suffers partial or total disability with
at least one monthly contribution paid to SSS prior to the
semester of contingency is qualified.

What is the death benefit?

Answer- It is a cash benefit either in monthly pension or lump
sum paid to the beneficiaries of a deceased member.

Who are the beneficiaries of a deceased member?

Answer- The primary beneficiaries are the legitimate dependent
spouse until the person remarries and the dependent
legitimate, legitimated or legally adopted and illegitimate
children of the member who are not yet 21 years old. In the
absence of primary beneficiaries in the member’s record.
How are the portability provisions of R.A. 7699 beneficial or
advantageous to SSS and GSIS members in terms of their
creditable employment services in the private sector or the
government, as the case may be, for purposes of death,
disability or retirement?
Answer- The portability provisions of R.A. 7699 allows the
transfer of funds for the account and benefit of the worker
who transfers from one system to another. This is advantageous
the SSS and GSIS members for purposes of death, disability or
retirement benefits. In event the event the employees transfer
from the private sector to the public sector, or vice-versa,
their creditable employment services and contributions are
carried over and transferred from one system to the other.
(2005 bar)
Government Service Insurance System Laws

What are the requisites for members to the subject to the

compulsory coverage of the GSIS?
Answer- the requisites for members to the subject to the
compulsory coverage of the GSIS are:
a. he/she is either elected or appointed to such office;
b. he/she either temporary, casual, permanent or contractual
with employee-employer relationship;
c. Who are receiving basic pay or salary but not per diems,
honoraria, or allowances; and
d. Who have not reached the retirement age of 65 years.
(Primer on the GSIS Act 1997)
Who are excluded from the compulsory membership of the GSIS?
Answer- The following are excluded from the compulsory
membership of the GSIS:
a. Uniformed members of the Armed Forces of the Philippines
and the Philippine National Police including the Bureaus of
Jail Management and Penology and Fire Protection; and
b. Those who are receiving per diems, honoraria or allowances
(Primer on the GSIS Act of 1997)

How are the members of the GSIS classified?

Answer- Members of the GSIS are classified as follows:
a. Active members- those covered by the GSIS with the complete
social security program and paying the integrated
contributions;
b. Retired members – GSIS retirees and pensioners and those
who have received their lump sum but still in their guaranteed
period;
c. policyholders- those who have separate retirement schemes
under special laws and are covered by a life insurance policy
only such as members of the Armed Forces of the Philippines
(AFP), judiciary, Constitutional Commissions and other
similarly situated government officials; and
d. Separated or inactive members – those who have paid the
integrated contributions for the complete GSIS social security
program but are separated from the service or whose coverage
has ceased but have et to receive future benefits from the
GSIS. (Primer on the GSIS Act of 1997)

What are the contingencies compensable under the GSIS Act of

1997
Answer- The contingencies compensable are as follows:
a. Retirement;
b. Separation;
c. Unemployment;
d. Disability
e. Survivorship;
f. Death (Life Insurance and Funeral).

Who are the primary beneficiaries of a member of the GSIS?

Answer- The primary beneficiaries of a member of the GSIS are:
a)The legitimate spouse dependent for support upon the member
or pensioner;
b) The legitimate, legitimated, legally adopted child,
including the illegitimate child, who is unmarried, not
gainfully employed, not over the age of majority or is over
the age of majority but incapacitated and incapable of self
support due to a mental or physical defect acquired prior to
age of majority.
Who are the secondary beneficiaries of a member of the GSIS?
Answer- Under Section 4 of GSIS Act of 1997, a member
separated from the service shall continue to be a member, and
shall be entitled to whatever benefits he as qualified to in
the event of any contingency compensable under the said GSIS
Act.

Who is eligible for retirement benefit?

Answer- A member is eligible for retirement benefit when he
has satisfied all the following conditions:
a. Has rendered at least 15 years of service;
b. Is at least 60 years of age at time of retirement; and
c. Is not receiving a monthly pension benefit from permanent
total disability.
What is the unemployment benefit?
Answer- The unemployment benefit is paid when a permanent
employee is involuntarily separated from the service as a
result of the abolition of his office or position usually
resulting from reorganization.

EMPLOYEE’S COMPENSATION
Who are under the compulsory coverage of the Employee’s
Compensation Program?
Answer- Under the Implementing Rules of Book IV of the Labor
Code, coverage shall be compulsory over:
a. Every employer;
b. Every employee over 60 years of the age shall be covered if
he had been paying contributions to the System prior to age 60
and has not been compulsorily retired;
d. An employee who are members by the GSIS and SSS shall also
be compulsorily covered by both Systems.

Who is an employer for purposes of the Employee’s Compensation

Program?
Answer- An employer for purposes of the Employee’s
Compensation Program is defined as follows:
a. any person, natural or judicial, domestic or foreign, who
carries on in the Philippines any trade, business, industry,
undertaking or activity of any kind and uses he services of
another person who is under his orders as regards the
employment; and who belongs to: (1) the public sector covered
by the GSIS, comprising the National Government, including
government owned or controlled corporations, the Philippine
Tuberculosis Society, the National Red Cross and the
Philippine Veterans Bank; or (2) belonging to the private
sector covered by the SSS.
Who is an employee for purposes of the Employee’s Compensation
Program?
Answer- An employee for purposes of the Employee’s
Compensation Program are:
a. Those who belong to the public sector covered by the GSIS,
including members of the Armed Forces of the Philippines,
elective officials who are receiving regular salaries and any
person employed as casual, emergency, temporary, substitute or
contractual;
b. Those who belong to the private sector covered by the SSS
and
c. Filipinos working abroad in the service of an employer.

What are the benefits under the Employee’s Compensation

Program?
Answer- Benefits under the Employee’s Compensation program
are:
a. Medical services, appliances and supplies provided to the
afflicted member beginning on the first day of injury or
sickness, during the subsequent period of disability, and as
the progress of recovery may require;
b. rehabilitation services, consisting of medical, surgical
and hospital treatment; and
c. Income cash benefit for: (1) temporary disability, (2)
permanent total disability, (3) permanent partial disability;
and (4) death.

Under what conditions can an injury, sickness or death be

compensable under the Employee’s Compensation program?
Answer- A sickness, injury, disability or death resulting from
an employment accident is compensable if:
a. the employee is injured at the workplace;
b. the employee is performing official functions; and
c. If the injury is sustained elsewhere, the employee is
executing an order for the employer.

Under what conditions can an injury, sickness or death be

deemed not compensable under the Employee’s Compensation
program?
Answer- No compensation will be allowed to an employee or the
dependents if the injury, sickness, disability or death is due
to:
a. drunkenness;
b. Willful intention to injure or kill himself or another; or
c. Notorious negligence.

Who are the legal dependents of a member?

Answer: The primary beneficiaries are:
a. Legitimate spouse living with the employee at the time of
his/her death until he remarries; and the
b. legitimate, legitimated, legally adopted or acknowledged
natural children, who are unmarried, not gainfully employed,
not over 21 years of the age, or over 21 years of age, provided
that they are incapacitated and incapable of self-support due
to physical or mental defect which is congenital or acquired
during minority; provided further, that a dependent
acknowledged natural child shall be considered as a primary
beneficiary only when there are no other dependent children who
are qualified and eligible for monthly income benefit; provided
finally, that if there are two or more acknowledged natural
children ,they shall be counted from the youngest and without
substitution, but not exceeding five.

The secondary beneficiaries are:

a. Legitimate parents wholly dependent upon the employee for
regular support;
b. The legitimate descendants and illegitimate children who are
unmarried, not gainfully employed, and not over 21 years of
b. legitimate, legitimated, legally adopted or acknowledged
natural children, who are unmarried, not gainfully employed,
not over 21 years of the age, or over 21 years of age, provided
that they are incapacitated and incapable of self-support due
to physical or mental defect which is congenital or acquired
during minority; provided further, that a dependent
acknowledged natural child shall be considered as a primary
beneficiary only when there are no other dependent children who
are qualified and eligible for monthly income benefit; provided
finally, that if there are two or more acknowledged natural
children ,they shall be counted from the youngest and without
substitution, but not exceeding five.

The secondary beneficiaries are:

a. Legitimate parents wholly dependent upon the employee for
regular support;
b. The legitimate descendants and illegitimate children who are
unmarried, not gainfully employed, and not over 21 years of
age provided that they are incapacitated and incapable of self-
support due to physical or mental defect which is congenital or
acquired during minority.

What will happen to the monthly death pension if the member has
no primary and secondary beneficiaries?
Answer- If the deceased member has no primary and secondary
beneficiaries at the time of death, the benefit will accrue to
the Employee’s Compensation Fund.

What is permanent total disability?

Answer- Permanent total disability means disablement of an
employee to earn wages in the same kind of work or work of a
similar nature that he has trained for a accustomed to perform,
or any kind of work which a person of his mentality and
attainment can do –it does not mean a state of absolute
helplessness but inability to do substantially all material
acts necessary to the prosecution of a gainful occupation
without serious discomfort or pain and without material injury
or danger to life (Seagull Maritime Corp. v. Dee, 520 SCRA 109)

When is injury and resulting disability compensable?

Answer- for the injury and the resulting disability to be
compensable, the injury must be the result of an employment
accident satisfying all of the following: 1) the employee must
have been injured at the place where his work requires him to
be; 2) the employee must have been performing his official
functions; and 3) if the injury is sustained elsewhere, the
employee must have been executing an order for the employer.
(Government Service Insurance System v. Mecayer, 521 SCRA 100)