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Sec. 16. All persons shall have the right to a The State shall regulate the relations between
speedy disposition of their cases before all judicial, workers and employers, recognizing the right of
quasi-judicial, or administrative bodies. labor to its just share in the fruits of production and
the right of enterprises to reasonable returns to
Sec. 18(2). No involuntary servitude in any form investments, and to expansion and growth.
shall exist except as a punishment for a crime
whereof the party shall have been duly convicted. Sec. 13. The State shall establish a special agency
for disabled person for their rehabilitation, self-
Q: Under the Labor Code, what are the development, and self-reliance, and their
requirements for the lawful dismissal of an integration into the mainstream of society.
employee?
Sec. 14. The State shall protect working women by
A: To constitute valid dismissal from employment, providing safe and healthful working conditions,
two requisites must concur: (1) dismissal must be taking into account their maternal functions, and
for a just or authorized cause; and (2) employee such facilities and opportunities that will enhance
must be afforded an opportunity to be heard and their welfare and enable them to realize their full
defend himself. (Nacague v. Sulpicio Lines, G.R. potential in the service of the nation.
No. 172589, 2010)
C. Articles 1700 to 1703 Civil Code
3. Social Justice
Q: What are the Civil Code provisions relevant
Q: What are the constitutional provisions on to Labor?
Social Justice and Human Rights relevant to
Labor? A: Article 1700. The relations between capital and
labor are not merely contractual. They are so
A: Sec. 2. The promotion of social justice shall impressed with public interest that labor contracts
include the commitment to create economic must yield to the common good. Therefore, such
opportunities based on freedom of initiative and contracts are subject to the special laws on labor
self-reliance. unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of
Sec. 3. The State shall afford full protection to labor and similar subjects.
labor, local and overseas, organized and
unorganized, and promote full employment and Article 1702. In case of doubt, all labor legislation
equality of employment opportunities for all. and all labor contracts shall be construed in favor
of the safety and decent living for the laborer.
It shall guarantee the right of all workers to self-
organization, collective bargaining and Article 1703. No contract which practically
negotiations, and peaceful concerted activities, amounts to involuntary servitude, under any guise
including the right to strike in accordance with law. whatsoever, shall be valid.
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.
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A: Art. 13(b) of the Labor Code defines 2. It is immaterial whether he is a holder or not of
“recruitment and placement” activity as referring to any license or authority.
any act of:
2. Prohibited Activities
1. Canvassing;
2. Enlisting; Q: What are the prohibited activities under the
3. Contracting; Labor Code?
4. Transporting;
5. Utilizing; A: It shall be unlawful for any individual, entity,
6. Or Hiring or procuring workers. licensee, or holder of authority:
1. To charge or accept, directly or indirectly, any
It also includes: amount greater than that specified in the
1. Referrals; schedule of allowable fees prescribed by the
2. Contract services; Secretary of Labor, or to make a worker pay
3. Promising; or any amount greater than that actually received
4. Advertising for employment, locally or by him as a loan or advance;
abroad, whether for profit or not. 2. To furnish or publish any false notice or
information or document in relation to
Q: What are the elements of simple illegal recruitment or employment;
recruitment for local workers under the Labor 3. To give any false notice, testimony,
Cde? information or document or commit any act of
misrepresentation for the purpose of securing
A: The following elements must concur: a license or authority under this Code.
4. To induce or attempt to induce a worker
1. That the offender undertakes any activity within already employed to quit his employment in
the meaning of “recruitment and placement” order to offer him to another unless the
defined under Article 13(b), or any prohibited transfer is designed to liberate the worker from
practices enumerated under Article 34 of the oppressive terms and conditions of
Labor Code. employment;
5. To influence or to attempt to influence any
2. That the offender has no valid license or person or entity not to employ any worker who
authority required by law to enable him to lawfully has not applied for employment through his
engage in the recruitment and placement of agency;
workers, and (Ritualo v. People, 591 SCRA 24, 6. To engage in the recruitment or placement of
2009). workers in jobs harmful to public health or
morality or to the dignity of the Republic of the
Philippines;
7. To obstruct or attempt to obstruct inspection
by the Secretary of Labor or by his duly
authorized representatives;
8. To fail to file reports on the status of
employment, placement vacancies,
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remittance of foreign exchange earnings, 8. Giving any false notice, testimony, information
separation from jobs, departures and such or document or commit any act of
other matters or information as may be misrepresentation for the purpose of securing
required by the Secretary of Labor. a license or authority under this Code
9. To substitute or alter employment contracts 9. Inducing or attempting to induce a worker to
approved and verified by the Department of quit his employment in place of another
Labor from the time of actual signing thereof UNLESS the transfer is designed to liberate
by the parties up to and including the periods the worker from oppressive terms and
of expiration of the same without the approval conditions of employment
of the Secretary of Labor; 10. Allowing a Non-Filipino citizen to head or
10. To become an officer or member of the Board manage a licensed recruitment/manning
of any corporation engaged in travel agency or agency
to be engaged directly or indirectly in the 11. Failing to actually Deploy without valid reason
management of a travel agency; and as determined by DOLE.
11. To withhold or deny travel documents from 12. Influencing or attempting to influence any
applicant workers before departure for person or entity not to employ any worker who
monetary or financial considerations other has not applied for employment through his
than those authorized under this Code and its agency
implementing rules and regulations. (Labor 13. Failing to file reports on the Status of
Code, Art. 34; PERT/CPM Manpower v. employment, placement vacancies,
Vinuya, G.R. No. 197528, 2012) remittance of foreign exchange earnings,
separation from jobs, departures and such
Q: What are the prohibited activities under the other matters or information as may be
Overseas Filipinos and Migrant Workers Act, required by the Secretary of Labor
as amended? 14. Charging or accepting, directly or indirectly,
any amount greater than that specified in the
A: Illegal recruitment shall likewise include the schedule of allowable fees prescribed by the
following acts, whether committed by any person, Secretary of Labor, or to make a worker pay
whether a non-licensee, non-holder, licensee or any amount greater than that actually received
holder of authority (SHOW-FROG-IN-DISC) by him as a loan or advance
1. Substituting or altering DOLE-approved
employment contracts In addition to the acts enumerated above, it shall
2. Recruiting workers in jobs that are Harmful to also be unlawful for any person or entity to commit
public health or morality of the Philippines the following prohibited acts: (8-LR2A2I)
3. Becoming an Officer or member of the Board • Grant a loan to an overseas Filipino worker
of a travel agency or to be engaged directly or with interest exceeding eight percent (8%) per
indirectly in the management of a travel annum, which will be used for payment of legal
agency and allowable placement fees and make the
4. Withholding or denying travel documents from migrant worker issue, either personally or
applicant workers before departure for through a guarantor or accommodation party,
unauthorized monetary or financial postdated checks in relation to the said loan;
considerations • Impose a compulsory and exclusive
5. Furnishing or publishing any false notice or arrangement whereby an overseas Filipino
information or document in relation to worker is required to avail of a Loan only from
recruitment or employment specifically designated institutions, entities or
6. In case of non-deployment, failing to persons;
Reimburse expenses incurred by the worker in • Refuse to condone or renegotiate a loan
connection with his documentation and incurred by an overseas Filipino worker after
processing for purposes of deployment the latter's employment contract has been
7. Obstructing or attempting to obstruct prematurely terminated through no fault of his
inspection by the Secretary of Labor or by his or her own;
duly authorized representatives • For a suspended recruitment/manning agency
to engage in any kind of Recruitment activity
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Q: What are the elements of illegal recruitment 4. Illegal recruitment versus estafa
in large scale?
Q: Can a person guilty of illegal recruitment be
A: To constitute illegal recruitment in large scale, similarly guilty or estafa?
three elements must concur:
A: Yes. It is well-established in jurisprudence that
1. The offender has no valid license or authority a person may be charged and convicted for both
required by law to enable him to lawfully illegal recruitment and estafa. Illegal recruitment is
engage in recruitment and placement of malum prohibitum where the criminal intent of the
workers; accused is not necessary for conviction, while
estafa is mala in se and such intent is imperative.
2. The offender undertakes any of the activities (People v. Chua, 680 SCRA 575, 2012).
within the meaning of "recruitment and
placement" under Article 13(b) of the Labor Q: What are the differences between illegal
Code, or any of the prohibited practices recruitment and estafa?
enumerated under Article 34 of the same
Code (now Section 6 of Republic Act No. A:
8042); and, ILLEGAL
ESTAFA
RECRUITMENT
3. The offender committed the same against It is malum prohibitum. It is mala in se.
three (3) or more persons, individually or as a The criminal intent of
group (People v. Cagalingan, G.R. No. The criminal intent is
the accused is not
198664, November 23, 2016). imperative.
necessary.
Penalized under the Penalized under the
Q: What are the elements of illegal recruitment Labor Code. Revised Penal Code.
by a syndicate? Wider in scope and
covers deceits
A: To constitute illegal recruitment by a syndicate, Limited in scope whether related or not
the following must concur: to recruitment
1. The offender undertakes either any activity activities.
within the meaning of “recruitment and
placement” defined under Art. 13(b), or any of 5. Liability of Local Recruitment Agency and
the prohibited practices enumerated under Foreign Employer
Art. 34 of the Labor Code;
(a) Solidary Liability
2. He has no valid license or authority required
by law to enable one to lawfully engage in Q: What kind of liability does the foreign
recruitment and placement of workers; and employer and recruitment agency share?
3. The illegal recruitment is committed by a A: They are solidarily liable with each other. This
group of three (3) or more persons conspiring is imposed by law against recruitment agencies
or confederating with one another. (People v. and foreign employers as a means to assure the
Gallo, G.R. No. 187730, 2010) aggrieved worker of immediate and sufficient
payment of what is due him. This is in line with the
policy of the State to protect and alleviate the plight
of the working class. (P.I. Manpower Placements,
Inc. v. NLRC, 276 SCRA 451, 1997).
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(b) Theory of Imputed Knowledge the OFW was not illegally dismissed. (GBMLT
Manpower Services vs Malinao, G.R. No. 189262,
Q: How does the theory of imputed knowledge 2015)
apply to foreign employers and the recruitment
agency? 7. Ban on Direct hiring
A: The theory of imputed knowledge ascribes the Q: What is the general rule as regards ban on
knowledge of the agent or recruitment agency to direct hiring?
the principal and not the other way around. The
knowledge of the principal-foreign employer A: GR: No employer may hire a Filipino worker for
cannot, therefore, be imputed to its agent or overseas employment except through the boards
recruitment agency. (Sunace International and entities authorized by the Secretary of Labor.
Management Services, Inc. v. National Labor
Relations Commission, 480 SCRA 146, 2006). EXC:
1. Members of the diplomatic corps;
6. Termination of contract of migrant worker 2. International organizations; and
without just or valid cause 3. Such other employers as may be allowed by the
Secretary of Labor is exempted from this
Q: What is the effect of the pre-termination of provision. (Labor Code, Art. 18)
the contract of a migrant worker? 4. Name hires – those individuals who are able to
secure contracts for overseas employment on
A: In case of termination of overseas employment their own efforts and representation without the
without just, valid, or authorized cause as defined assistance or participation of any agency. Their
by law or contract, the workers shall be entitled to hiring, nonetheless, has to be processed through
full reimbursement of his placement fee with the POEA. (Part III, Rule III of the POEA Rules
interest at 12% per annum plus his salaries for Governing Employment as amended in 2002)
the unexpired portion of his employment
contract. (Serrano v. Gallant, G.R. No. 167614, Q: What is the reason for said rule?
2009)
A: The reason for the ban is to ensure full
As to other money claims (e.g. salary for the regulation of employment in order to avoid
unexpired portion) under RA 8042 based on a final exploitation.
judgment after July 1, 2013 and there was no
stipulation as to the applicable interest rate in the Q: What are the entities authorized to engage
contract, it shall be subject to the 6% interest in recruitment and placement?
per annum per BSP Circular 799. (Sameer v.
Cabiles, G.R. No. 170139, 2014) A:
1. Public employment offices
Q: Can a foreign employer and an OFW enter 2. Philippine Overseas Employment
into a contract that allows termination without Administration (POEA)
cause provided there is prior notice? 3. Private recruitment entities
4. Private employment agencies
A: Yes, stipulations providing that either party 5. Shipping or manning agents or representatives
may terminate a contract even without cause 6. Such other persons as may be authorized by the
are legitimate if exercised in good faith. Thus, DOLE Secretary
while either party has the right to terminate the 7. Construction contractors
contract at will, it cannot not act purposely to injure
the other. The monetary award provided in Section
10 of R.A. 8042 applies only to an illegally
dismissed overseas contract worker or a worker
dismissed from overseas employment without just,
valid or authorized cause as defined by law or
contract. It finds no application to cases in which
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A: The Secretary of Labor or his duly authorized A: There are seven (7) classifications of
representatives may, at any time, inspect the employees excluded from the provisions:
premises, books of accounts and records of any 1. Governmental employees
person or entity covered by this Title, require it to 2. Managerial employees
submit reports regularly on prescribed forms, and 3. Field personnel
act on violations of any provisions of this Title. 4. Members of the family of the employer
(Labor Code, Art. 37) who are dependent on him for support
5. Domestic helpers
6. Persons in the personal service of another
7. Workers who are paid by result
(Labor Code, Art. 82)
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Q: What is a Compressed Work Week? Q: What are the regular work hours of hospital
and clinic personnel?
A: A compressed work week scheme is one
wherein the normal 6-day workweek is A: Hospital and clinic personnel can start and end
compressed to 5 days, which may result in more work at any hour on any day but would not work
than an 8-hour workday. No overtime pay would for more than 8 hours in a day, nor more than 40
be paid for the excess. (Department Order No. 21- hours in one week. (Labor Code, Art. 83)
90/ DOLE Advisory No. 2-09 and No. 02-04)
Q: Is there overtime work for hospital and
Q: What standards must be met for a valid clinic personnel?
compressed work week?
A: Yes. Hospital and clinic personnel may be
A: According to the Department Advisory Opinion scheduled to work for more than 5 days or 40
No. 32-2004, CWW schemes must: hours in a week, if they are paid overtime. (+ at
1. Result from an express and voluntary least 30% regular rate. (Labor Code, Art. 83)
agreement of the majority of the covered
employees. Q: What are the rules governing
2. In firms using substances and processes that compensability during power interruptions
prolonged exposure to which may pose (brownout)?
hazards to the employee’s health or safety,
there must be certification that work beyond 8 A: If a worker’s work is interrupted due to brownout
hours is within the threshold limits to and –
exposure. 1. Brownout does not exceed 20 minutes, it will
3. Employer must notify DOLE, through the be treated as hours worked
regional office, of the CWW scheme. This 2. Brownout exceeds 20 minutes and the
must follow the CWW Report Form of DOLE. employees can leave freely, it will not be
compensable
Q: What standards must be met for a valid 3. Brownout exceeds 20 minutes and the
reduction of work hours pursuant to a employees can use the time however they
compressed work week? want, it will not be compensable
A: While financial losses must be shown to reduce In each case, the employer may extend the
the work hours of employees, no guidelines have working hours of his employees outside the
been set to determine the sufficiency of losses to regular schedules to compensate for the loss of
justify the reduction. productive hours without paying overtime.
(Durabuilt Recapping Plant & Co. vs. NLRC, G.R.
In the case of Linton Commercial vs. Hellera (G.R. No. 76746, July 27, 1987)
No. 163147, 2007), the SC applied the standards
for suspension of work [not to exceed 60 days] and Q: When is Meal Break compensable?
retrenchment:
1. The losses incurred are substantial and not de A: General Rule: Not less than 1-hour time-off for
minimis; regular meals – non-compensable
2. The losses are actual or reasonably imminent;
3. The retrenchment is reasonably necessary Exception: Meal period of not less than 20
and is likely to be effective in preventing the minutes in the following cases are compensable
expected losses; and hours worked:
4. The alleged losses, if already incurred, or the 1. Where the work is non-manual work in nature
expected imminent losses sought to be or does not involve strenuous physical
forestalled, are proven by sufficient and exertion;
convincing evidence 2. Where the establishment regularly operates
not less than 16 hours a day;
3. In case of actual or impending emergencies or
there is urgent work to be performed on
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A: No. The right to claim overtime pay is governed Q: How much is an employee entitled to for
by law and not merely by the agreement of the overtime?
parties. (Manila Terminal v. CIR, G.R. No. L-4148,
1952) A: Regular wage rate + at least 25% (Labor Code,
Art. 87)
Q: Is there an exception?
Q: How much is an employee entitled to for
A: YES. If the waiver is done in exchange for night shift differential?
certain valuable privileges which compensate for
such work, the waiver may be valid. If there is a A: Regular wage rate + at least 10%. (10pm-6am)
stipulation regarding built-in overtime pay, duly (Labor Code, Art. 86)
approved by DOLE, then the non-payment of
overtime is valid. (Bisig Manggagawa sa Tryco v. Q: What if someone is certified unfit for
NLRC, G.R. No. 151309, 2008) nightwork?
Q: Is Composite or Package Pay illegal per se? A: They should be transferred, whenever
practicable, to another job similar to their old one.
A: No. Composite or “package pay” or “all- If not practicable, these workers they should be
inclusive salary” is an arrangement where the granted the same benefits as other workers unfit
overtime pay is already built-in. (Trans-Asia Phils. for work.
Employees Association v. NLRC, G.R. No.
118289, 1999.) If the unfitness is temporary, he enjoys the same
protection against dismissal or notice as other
Q: May under-time be offset by overtime? workers prevented for work by reason of health.
(R.A. No. 10151)
A: No. Under-time work on any particular day shall
not be offset by overtime work on any other day.
Permission given to the employee to go on leave
on some other day of the week shall not exempt
the employer from paying the additional
compensation. (Labor Code, Art. 88)
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Q: Can an employer and an employee enter cash and stock dividends, COLA and all other
into an agreement reducing or increasing the allowances regularly enjoyed by the employee
minimum percentage provided for night as well as non-monetary benefits.
differential pay, overtime pay, and premium 3. Employers of persons in the personal service
pay? of another in relation to such workers
4. Employers of those who are paid on
A: While as a general rule, the parties may enter commission, boundary, or task basis, and
into any kind of stipulation in a contract and the those who are paid a fixed amount for
same shall be considered as the law between performance of a specific work, irrespective of
them, however, it must be emphasized that a labor the time consumed in the performance thereof
contract is not an ordinary contract since it is EXCEPTION: where the workers are paid on
impressed with public interest. Thus, the parties a piece-rate basis, in which case the employer
are prohibited to enter into any stipulation shall grant the required 13th month pay to
which may result in the reduction of any such workers.
employee benefits. (Labor Code, Art. 100; 5. Distressed employers, such as (1) those
Republic Planters Bank v. NLRC, G.R. 117460, which are currently incurring substantial
1997). losses or (2) in the case of non-profit
institutions and organizations, where their
However, the same may not be said on the matter income, whether from donations,
of increasing said benefits. The employer and the contributions, grants and other earnings from
employee are not prohibited under the law to any source, has consistently declined by more
enter into an agreement for the increase of than forty (40%) percent of their normal
whatever benefit being mandated by law for the income for the last two (2) years, subject to the
simple reason that any such increase certainly provision of Section 7 of this issuance (IRR,
redounds to the benefit of the employee. Thus, the Section 3(a) P.D. No. 851).
employer and the employee may legally and
validly agree to increase the minimum percentage Q: What are the rules on distribution of service
provided for night differential pay, overtime pay, charges?
and premium pay. (Republic Planters Bank v.
NLRC, G.R. 117460, 1997). A:
1. 85% distributed equally among the covered
Q: Who are entitled to claim 13th month pay and employees
other bonuses? 2. 15% for the disposition by management to
answer for losses and breakages and
A: All employers are required to pay all their rank- distribution to managerial employees at the
and-file employees, a 13th month pay not later discretion of the management in the latter
than December 24 of every year. (P.D. No. 851) case
o Distributed and paid to the employees not less
Q: Who are the employers not required to give than once every 2 weeks or twice a month at
the 13th month pay and other bonuses? intervals not exceeding 16 days.
3. Supervisors share in the 15%. Labor Code
A: The following are excluded: speaks of “management” and not “managerial
1. Government and any of its political employee.” (Labor Code, Art. 96)
subdivisions, including GOCCs, except those
corporations operating essentially as private
subsidiaries of the Government;
2. Employers already paying their employees
13th month pay or more in a calendar year or
its equivalent at the time of issuance of PD 851
NOTE: “Its equivalent” – includes Christmas
bonus, mid-year bonus, cash bonuses and
other payments amounting to not less than
1/12 of the basic salary but shall not include
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1. The ATM system of payment is with the written A: The term “benefits” mentioned in the non-
consent of the employees concerned; diminution rule refers to monetary benefits or
2. The employees are given reasonable time to privileges given to the employee with monetary
withdraw their wages from the bank facility equivalents. This removed the chairs provided to
which time, if done during working hours, shall the employees from the purview of Article 100 of
be considered compensable hours worked; the Labor Code. (Royal Plant Workers Union vs.
3. The system shall allow workers to receive their Coca-Cola Bottlers Philippines, Inc.-Cebu Plant,
wages within the period or frequency and in the G.R. 198783, 2013).
amount prescribed under the Labor Code, as
amended;
4. There is a bank or ATM facility within a radius
of one kilometer to the place of work;
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A: There is diminution of benefits when it is shown A: From a legal point of view, a bonus is not
that: demandable. It becomes so when it is made part
1. The grant or benefit is founded on a policy or of the wage or salary or compensation. In that
has ripened into a practice over a long period case, the latter would be a fixed amount and the
of time former would be a contingent one dependent upon
2. The practice is consistent and deliberate the realization of profits. Without profit, no bonus.
3. The practice is not due to error in the (Luzon Stevedoring v. CIR, G.R. L-17411, 1965).
construction or application of a doubtful or
difficult question of law Q: What is the rule on prohibition regarding
4. Diminution or discontinuance is done wages?
unilaterally by the employer. (Supreme Steel
v. Nagkakaisang Manggagawa, G.R. No. A: As a general rule, an employer, by himself or
185556, 2011). through his representative, is prohibited from
making any deductions from the wages of his
Q: What is the rule regarding non-diminution employees. The employer is not allowed to make
of benefits? unnecessary deductions without the knowledge or
authorization of the employees. (Galvadores v.
A: General Rule: Nothing in the Labor Code shall Trajano, G.R. No. L-70067, 1986)
be construed to eliminate or in any way diminish
supplements, or other employee benefits being Q: What deductions are allowed under Article
enjoyed at the time of promulgation of the Labor 113?
Code. Benefits being given to employees shall not
be taken back or reduced unilaterally by the A:
employer because the benefit has become part of 1. In cases where the worker is insured with his
the employment contract, written or unwritten. consent by the employer, and the deduction is
(Labor Code, Art. 100) to recompense the employer for the amount
paid by him as premium for the insurance;
Exception: To correct an error, otherwise, if the 2. For union dues, in cases where the right of
error is left uncorrected for a reasonable period of the worker or his union to check-off has been
time, it ripens into a company policy and recognized by the employer or authorized in
employees can demand for it as a matter of right. writing by said worker;
3. In cases where the employer is authorized by
The non-diminution principle is applicable if it is law or regulations issued by the SOLE.
shown that:
1. The practice is consistent and deliberate Q: What are the other deductions allowed?
(Metrobank v. NLRC, G.R. No. 152928, 2009)
2. The diminution or discontinuance is done A: The Labor Code and other laws provide for
unilaterally by the employer (Steel Corporation other allowable deductions: (DUMP-LAW-CAT)
v. Nagkakaisang Manggagawang Supreme 1. In cases where the employee is indebted to
Independent Union, G.R. No. 185556, 2011); employer, where such indebtedness has
3. The grant of the benefit is founded on a policy become Due and demandable
or has ripened into a practice over a long 2. Union dues
period (Phil. Appliance Corp. v. CA, G.R. No. 3. Deductions for value of Meals and other
149434, 2004); and facilities
4. The practice is not due to error in the 4. In court awards, Wages may be the subject of
construction or application of a doubtful or execution or attachment, but only for debts
difficult question of law (Vergara, Jr., v. Coca incurred for food, shelter, clothing, and
Cola, G.R. No. 176985, 2013) medical attendance
5. SSS, Medicare, Pag-IBIG Premiums
6. Deductions for Loss or damage
7. Agency fee
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2. Maternity Leave
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Q: How can Maternity Leave be availed of? Q: What are the conditions for entitlement of
Paternity Leave? (MAC-BG)
A:
1. Employee shall have Notified her employer of A:
her pregnancy and the probable date of her 1. A married male employee at the time of
childbirth, which notice shall be transmitted to delivery of his child;
the SSS. 2. Cohabiting with his spouse at the time she
2. Full payment shall be Advanced by the gives birth or suffers a miscarriage;
employer within 30 days from the filing of the 3. Applied for paternity leave within a reasonable
maternity leave. period from the expected date of delivery or
3. Payment of daily maternity benefits shall be a within such period as may be provided by
Bar to the recovery of sickness benefits company rules or by CBA; prior application is
provided by the SSS Law for the same period not required in case of miscarriage;
for which daily maternity benefits have been 4. Wife has given birth or suffered a miscarriage.
received. 5. Where a male employee is already enjoying
4. The maternity benefits provided under this the paternity leave benefits by reason of
section shall be paid only for the first 4 contract, company policy or CBA, the greater
deliveries/miscarriages. benefit prevails.
5. The SSS shall immediately Reimburse the
employer of 100% of the amount of maternity 4. Parental Leave for solo parents
benefits advanced to the employee by the
employer upon receipt of satisfactory proof of Q: What is a solo parent's leave and how can
such payment and legality thereof; it be availed?
6. If an employee member should give birth or
suffer miscarriage without the required A: A parental leave of not more than 7 working
contributions having been remitted for her by days every year shall be granted to any solo
her employer to the SSS, or without the latter parent employee who has rendered service of at
having been previously notified by the least 1 year.
employer of the time of the pregnancy, the
employer shall pay to the SSS Damages Conditions for Entitlement: (1NI)
equivalent to the benefits which said 1. Has rendered at least 1 year of service, whether
employee member would otherwise have continuous or broken;
been entitled to (R.A. No. 9282, Sec. 14-A) 2. Has notified the employer within a reasonable
period
3. Paternity Leave 3. Has presented a Solo Parent ID to the employer
which may be obtained from the DSWD office of
Q: What is a Paternity Leave? the city or municipality where the employee
resides (R.A. No. 8972)
A: Paternity Leave refers to the benefits granted
to a married male employee allowing him not to
report for work for seven (7) days but continues to
earn the compensation therefor, on the condition
that his spouse has delivered a child or suffered a
miscarriage for purposes 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. (R.A. No. 8187, Sec. 3)
claims, which may include claims for Q: What are the prohibited acts under Art. 137?
damages and other affirmative reliefs. The
actions hereby authorized shall proceed A: Art. 137 Prohibited Acts (DEP-R-TeC)
independently of each other. It is unlawful for any employer:
3. Favoring a male applicant with respect to 1. To Deny any woman the benefits provided for
hiring where the particular job can equally be under the Code
handled by a woman; and 2. To discharge any woman employed by him for
4. Favoring a male employee over a female the purpose of preventing such woman from
employee with respect to dismissal of Enjoying the maternity leave, facilities and
personnel other benefits provided under the Code
3. To discharge such woman employee on
Q: When is a rule against marriage valid? account of her Pregnancy, or while on leave or
When is it not valid? in confinement due to her pregnancy (Del
Monte v. Velasco, G.R. No. 153477 (March 6,
A: As a general rule, the Labor Code considers as 2007).
an unlawful act of the employer to require as a 4. To discharge or refuse the admission of such
condition for or continuation of employment that a woman upon Returning to her work for fear
woman employee shall not get married or stipulate that she may be pregnant
expressly or tacitly that upon getting married, a 5. To discharge any woman or child or any other
woman employee shall be deemed resigned or employee for having filed a complaint or
separated. having Testified or being about to testify under
the Code
In Duncan v. Glaxo Welcome, where the 6. To require as a Condition for a continuation of
stipulation prohibits an employee from having a employment that a woman employee shall not
relationship with another employee from a get married or to stipulate expressly or tacitly
competitor company, this stipulation is a valid that upon getting married, a woman employee
exercise of management prerogative. n laying shall be deemed resigned or separated, or to
down the assailed company policy, the employer actually dismiss, discharge, discriminate or
only aims to protect its interests against the otherwise prejudice a woman employee
possibility that a competitor company will gain merely by reason of her marriage
access to its trade secrets, manufacturing
formulas, marketing strategies and other Q: Who commits sexual harassment?
confidential programs and information. (G.R. No.
162994, 2004) A: When a person demands, requests, or
otherwise requires any sexual favor from the other,
However, in PT&T v. NLRC, a company policy of regardless of whether the demand, request or
not accepting or considering as disqualified from requirement for submission is accepted by the
work any woman worker who contracts marriage latter. It is not necessary that a demand, request
runs afoul of the right against discrimination or requirement of sexual favor be articulated in a
afforded all women workers by our labor laws and categorical oral or written statement. It may be
by no less than the Constitution. (G.R. No. discerned, with equal certitude, from acts of the
118978, 1997) offender. (Domingo v. Rayala, G.R. No. 155831
February 18, 2008).
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2. Minors 3. Kasambahay
Q: What are the conditions in order that a child Q: What are the rights and privileges of a
below 15 years of age is allowed to work? (SH- Kasambahay? (ANPACE)
20-4-8-6)
a. The domestic worker shall not be subjected to
A: The following conditions must be met: any kind of Abuse or any form of physical
1. Must be directly under the sole supervision of violence or harassment or any act tending to
his parents or guardian (Labor Code, art. 139) degrade his or her dignity.
2. Cannot be made to work for more than 20 b. The employer shall provide for the basic
hours a week Necessities of the domestic worker to include
3. Work shall not be more than 4 hours per day at least three (3) adequate meals a day and
4. Should not work between 8pm and 6am humane sleeping arrangements that ensure
5. Work is not hazardous or deleterious to the safety.
child’s health or morals (R.A. 9231, Sec. 3) c. Respect for the Privacy of the domestic worker
shall be guaranteed at all times and shall
Q: What are the hazardous workplaces? extend to all forms of communication and
personal effects.
A: d. The employer shall grant the domestic worker
• Exposure to dangerous environmental Access to outside communication during free
elements, contaminants time.
• Construction work, deep sea fishing and e. All communication and information pertaining
mechanized farming to the employer or members of the household
• Handling of explosives and other pyrotechnic shall be treated as privileged and Confidential,
products and shall not be publicly disclosed by the
• Exposure to use of heavy power-driven domestic worker during and after employment.
machinery f. The employer shall afford the domestic worker
• Exposure to or use of power-driven tools (sec. the opportunity to finish basic Education and
12-D, R.A. 7610, as amended) may allow access to alternative learning
systems and, as far as practicable, higher
Q: What are the maximum working hours and education or technical and vocational training.
night work prohibition for minors? (R.A. 10361 – Kasambahay Law)
A:
15 AND
AGE BELOW 15
BELOW 18
Not more Not more
DAY
than 4 hours than 8 hours
Not more Not more
WEEK
than 20 hours than 40 hours
8pm to 6am 10pm to 6am
PROHIBITION of the of the
following day following day
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Q: May a Kasambahay be assigned to work in Q: Who are excluded from the provisions on
commercial, industrial or agricultural night work?
enterprise?
A: Those employed in
A: As a general rule, the employer shall not assign 1. agriculture,
the Kasambahay to work, whether in full or part- 2. stock raising,
time, in a commercial, industrial, or agricultural 3. fishing,
enterprise at a wage rate lower than that provided 4. maritime transport and inland navigation,
for agricultural or non-agricultural workers. during a period of not less than 7 consecutive
hours, including the interval from midnight until
The mere fact that the househelper or domestic 5am, to be determined by the SOLE after
servant is working within the premises of the consulting the workers’ representatives and
business of the employer and in relation to or in employers. (Labor Code, Art. 154)
connection with its business, as in its staffhouses
for its guests or even for its officers and Q: What are night workers entitled to?
employees, warrants the conclusion that such
househelper or domestic servant is and should be A: Under R.A. 10151, the new law on night work,
considered as a regular employee of the employer they are entitled to –
and not as a mere family househelper or domestic 1. A health assessment, at their request, without
servant as contemplated in Rule XIII, Section 1(b), charge, and to receive advice on how to
Book 3 of the Labor Code, as amended. (Apex reduce health problems associated with their
Mining Co., Inc. v. National Labor Relations work
Commission, G.R. No. 94951, April 22, 1991) a. Before taking up assignment as a night
worker, or
4. Homeworkers b. At regular intervals during such
assignment, or
Q: Who is a Homeworker? c. If they experience health problems during
such an assignment which are not caused
A: Any person who performs industrial homework by factors other than the performance of
for an employer, contractor or sub-contractor. nightwork.
(Labor Code, Art. 153)
2. Mandatory facilities
5. Night workers a. Suitable first aid facilities
b. Arrangements where workers, when
necessary, can be immediately taken to a
Q: Who is a night worker?
place for appropriate treatment
A: A night worker is any employed person whose c. Safe and healthful working conditions
work requires performance of a substantial d. Resting quarters
number of hours of night work which exceeds a e. Transportation to and from work to
specified limit. (Labor Code, Art. 154) nearest point to residence.
f. These are subject to guidelines and
exceptions by DOLE
Q: Who are covered by the provisions on night
work?
6. Migrant Workers (see Part II, supra)
A: All persons who shall be employed or permitted
or suffered to work at night. (Labor Code, Art. 154)
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A:
LEARNERS APPRENTICES
1. Practical training on the job
1. Persons hired as trainees in semi- skilled and 2. Supplemented by related
other industrial occupations 3. theoretical
2. Non- apprenticeable 4. instruction
3. May be learned through practical training on the 5. Covered by a
job in a relatively short period of time 6. Written apprenticeship agreement with an
4. Shall not exceed 3 months individual employer or entity
7. Needs DOLE approval
8. Shall not exceed 6 months
Training Agreement
Governed by Learnership Agreement Apprenticeship Agreement
Occupation
learnable occupations consisting of semi-skilled Apprenticeable occupations or any trade, form of
and other industrial occupations which are non- employment or occupation approved for
apprenticeable apprenticeship by the DOLE Secretary
Theoretical instructions
Learnership may or may not be supplemented by Apprenticeship should always be supplemented by
related theoretical instructions related theoretical instructions
Ratio of theoretical instructions and on OJT
For both, the normal ratio is one hundred (100) hours for every two thousand 2,000 hours of practical or
on-the-job training
Competency-based system
It is required that learnership be implemented on Not required
the TESDA-approved competency-based system
Duration of training
Not exceeding three (3) months of practical training More than three (3) months, but not over six (6)
months
Qualifications
Law does not mention any qualification Art. 59 of the Labor Code:
1. Be at least fifteen (15) years of age; (IRR and
R.A. 7610, as amended by R.A. 7658)
2. Possess vocational aptitude and capacity for
appropriate tests; and
3. Possess the ability to comprehend and follow
oral and written instructions.
Circumstances justifying hiring of trainees
Art. 74. Pre-requisites before learners may be Law does not expressly mention any
validly employed:
1. When no experienced workers are available;
2. The employment of learners is necessary to
prevent curtailment of employment
opportunities; and
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Q: What are the requisites for a valid Q: Define persons with disability under R.A.
apprenticeship? 7277 as amended by R.A. 9442 vis-a-vis
Impairment and Disability.
A: The following are the requisites for a valid
apprenticeship: A: Persons with Disability are those suffering
1. Qualifications of apprentice are met from restriction or different abilities, as a result of
2. The apprentice earns not less than 75% of the a mental, physical or sensory impairment, to
prescribed minimum salary perform an activity in the manner or within the
3. Apprenticeship agreement duly executed and range considered normal for a human being.
signed
4. Apprenticeship program approved by the Q: What is the meaning of equal opportunity
Secretary of Labor; otherwise, the apprentice for employment?
shall be deemed as a regular employee
5. Period of apprenticeship not exceed 6 months A: No disabled person shall be denied access to
opportunities for suitable employment. Qualified
At the termination of the apprenticeship, the disabled employees shall be subject to same
employer is not required to continue the terms and conditions of employment and the same
employment. compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able-
8. Disabled Workers bodied person.
A: Those whose earning capacity is impaired by A: Under the law, PWDs are entitled to equal
age or physical or mental deficiency or injury, opportunity for employment. Consequently, no
disease or illness. (Labor Code, Art. 78) PWD shall be denied access to opportunities for
suitable employment. A qualified employee with
There must be a link between the deficiency and disability shall be subject to the same terms and
the work which entitles the employer to lessen the conditions of employment and the same
worker’s wage. If the disability of the person is not compensation, privileges, benefits, fringe benefits,
in any way related to the work for which he was incentives or allowances as a qualified able-
hired, he should not be so considered as a bodied person.
handicapped worker.
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Q: What is the rule against discrimination on Q: What is the most important element of the
employment? four-fold test?
A: No entity, whether public or private, shall A: (DEL CASTILLO) The most determinative
discriminate against a qualified PWD by reason of factor in ascertaining the existence of employer-
disability in regard to job application procedures, employee relationship is the "right of control test".
the hiring, promotion, or discharge of employees, It is deemed to be such an important factor that the
employee compensation, job training, and other other requisites may even be disregarded. This
terms, conditions and privileges of employment. holds true where the issues to be resolved is
(R.A. No. 7277, Sec. 32) whether a person who performs work for another
is the latter's employee or is an independent
Q: What are incentives for employers that contractor, as in this case. For where the person
employ disabled persons? for whom the services are performed reserves the
right to control not only the end to be achieved, but
A: Private entities that employ disabled persons also the means by which such end is reached,
who met the required skills or qualifications, either EER is deemed to exist (Royale Homes Marketing
as regular employee, apprentice or learner, shall Corp v. Alcantara, G.R. No. 195190, 2014)
be entitled to an additional deduction, from their
gross income, equivalent to 25% of the total HOWEVER: Not every form of control that a hiring
amount paid as salaries and wages to disabled party imposes on the hired party is indicative of
persons. employee-employer relationship. Rules and
regulations that merely serve as guidelines
Private entities that improve or modify their towards the achievement of a mutually desired
physical facilities in order to provide reasonable result without dictating the means and methods of
accommodation for disabled persons shall also be accomplishing it do not establish employer-
entitled to an additional deduction from their net employee relationship (Royale Homes
taxable income, equivalent to 50% of the direct Marketing Corp v. Alcantara, G.R. No. 195190,
costs of the improvements or modifications. 2014)
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2. It satisfactorily appears that the employer and The determination of "adequate performance" is
the employee dealt with each other on more or not, in all cases, measurable by quantitative
less equal terms with no moral dominance specification. It is also hinged on the qualitative
exercised by the former or the latter. assessment of the employee’s work; by its nature,
this largely rests on the reasonable exercise of the
Q: Does the DOLE Secretary have the power to employer’s management prerogative. A good
decide whether or not an employer-employee example would be the case of probationary
relationship exists? employees whose tasks involve the application of
discretion and intellect, such as – to name a few –
A: Yes. DOLE now has the authority to determine lawyers, artists, and journalists. (Abbott v. Alcaraz,
the existence of an employer-employee G.R. No. 192571, 2014)
relationship. Under Article 128(b) of the Labor
Code, as amended by RA 7330, the DOLE is fully (DEL CASTILLO) The fixed-term character of
empowered to make a determination as to the employment essentially refers to the period
exercise of an employer-employee relationship in agreed upon between the employer and the
the exercise of its visitorial and enforcement employee; employment exists only for the duration
power, subject to judicial review, not review by the of the term and ends on its own when the term
NLRC (see People’s Broadcasting Service v. expires. In a sense, employment on probationary
Secretary of Labor, G.R. 179652, 2012) status also refers to a period because of the
technical meaning "probation" carries in Philippine
Q: What limitations, if any, do law and labor law – a maximum period of six months, or in
jurisprudence impose on an employer’s right the academe, a period of three years for those
to terminate the services of a probationary engaged in teaching jobs. Their similarity ends
employee? there, however, because of the overriding
meaning that being "on probation" connotes,
A: A probationary employee may be terminated at i.e., a process of testing and observing the
any time but only for just and authorized causes. character or abilities of a person who is new to
Termination is also valid, according to Article 281 a role or job. (Colegio del Santissimo Rosario vs.
of the Labor Code, when such employee fails to Rojo, G.R. 170388, September 3, 2013)
qualify as a regular employee in accordance with
reasonable standards made known by the NOTE: For teachers on probationary employment,
employer to the employee at the time of his in which case a fixed term contract is not
engagement. specifically used for the fixed term it offers, it is
incumbent upon the school to have not only
In all cases of probationary employment, the set reasonable standards to be followed by
employer shall make known to the employee the said teachers in determining qualification for
standards under which he will qualify as a regular regular employment, the same must have also
employee at the time of his engagement. Where been communicated to the teachers at the start
no standards are made known to the employee at of the probationary period, or at the very least,
the time he shall be deemed a regular employee. at the start of the period when they were to be
(Aberdeen Court vs. Agustin, G.R. 149371, 2005). applied. These terms, in addition to those
expressly provided by the Labor Code, would
Double or successive probation is not allowed. serve as the just cause for termination of the
The evil sought to be prevented is to discourage probationary contract. The specific details of this
scheming employers from using the system to finding of just cause must be communicated to the
circumvent the mandate of the law on affected teachers as a matter of due process.
regularization and make it easier for them to Corollarily, should the teachers not have been
terminate their employees. (Holiday Inn Manila vs. apprised of such reasonable standards at the
NLRC, G.R. No. 109114, 1993) time specified above, they shall be deemed
regular employees. (Colegio del Santissimo
Rosario vs. Rojo, G.R. 170388, Sep. 3, 2013)
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Q: What are the rules on students who are unpaid wages and
allowed to work in their schools in exchange other labor standards
for a free education (is there an employer- violations.
employee relationship)?
PERMISSIBLE PROHIBITED
A: There is no EER between the student and the (D.O. No. 174-17)
school, college or university, where the student
work for the latter in exchange for the privilege to Q: What are the elements in labor-only
study free of charge, provided the student is given contracting?
real opportunity, including such facilities as may be
reasonable, necessary to finish their chosen A: The elements are as follows –
courses under such arrangement. (IRR Labor 1. The contractor does NOT
Code, Sec. 14, Rule X, Book III) a. have substantial capital
- or -
3. Subcontracting versus Labor-Only b. have investments in the form of tools,
Contracting equipment, machineries, supervision,
work premises among others, and
Q: Differentiate legitimate contracting from 2. The contractor’s or subcontractor’s
labor-only contracting? employees recruited and placed are
performing activities which are directly
Job Contracting v. Labor-Only Contracting related to the main business operation of
JOB LABOR-ONLY the principal; or
CONTRACTING CONTRACTING 3. The contractor or subcontractor does not
Has sufficient exercise the right of control over the work of
substantial capital OR Has NO substantial the employee (D.O. No. 174-17, Sec. 5)
investment in capital OR investment
machinery, tools or in the form of Performing activities directly related to the
equipment directly or machinery, tools or principal business of the employer is only one of
intended to be related equipment the two indicators that "labor-only" contracting
to the job contracted exists; the other is lack of substantial capital or
Carries an investment. Labor-only contracting exists when
independent business Has no independent any of the two elements is present. (Quintanar,
different from the business et al. v. Coca-Cola, G.R. No. 210565, 2016)
employer’s
Undertakes to Q: How does one determine whether or not
perform the job under Performs activities there is labor-only contracting?
its own account and directly related to the
responsibility, FREE main business of the A: (DEL CASTILLO) To determine whether a
from the principal’s principal contractor is engaged in labor-only contracting or
control permissible job contracting, “the totality of the facts
Principal treated as and the surrounding circumstances of the case are
NO EER except when to be considered.”
direct employer of the
the contractor or
person recruited in all
subcontractor fails to The law presumes a contractor to be a labor-
instances (contractor
pay the employees’ only contractor and the employees are not
is deemed agent of the
wages. expected to prove the negative fact that the
principal)
LIMITED liability contractor is a labor-only contractor. As held
Principal’s liability in Alilin v. Petron Corporation, "where the
(principal solidarily
extends to all rights, principal is the one claiming that the contractor is
liable with contractor
duties and liabilities a legitimate contractor, the burden of proving the
or subcontractor only
under labor standard supposed status of the contractor rests on the
when latter fails to
laws including the right principal."(Petron v. Caberte, G.R. No. 182255,
comply with
to self-organization June 15, 2015)
requirements as to
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Q: What are the effects of labor-only Q: What is the liability of a principal in a labor
contracting? only contracting agreement?
C. Termination By Employee
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Q: When is constructive dismissal considered or any immediate member of his family or duly
an involuntary resignation? authorized representative
5. Other analogous cases (Labor Code, Art. 297)
A:
1. Continued employment becomes impossible, Q: What are the elements of serious
unreasonable, or unlikely; misconduct?
2. There is a demotion in rank or diminution in
pay; or A:
3. Clear discrimination, insensibility or disdain by 1. There must be misconduct;
an employer becomes unbearable to the 2. The misconduct must be of such grave and
employee. (Leonardo v. NLRC, G.R. No. aggravated character;
125303, June 16, 2000) 3. Relates to the performance of the employee’s
duties; and
Q: When is there Constructive Dismissal 4. A showing that the employee becomes unfit to
despite voluntary resignation? continue working for the employer. (D.O. No.
147-15, Sec. 5.2[a])
A: Constructive dismissal exists when an act of
clear discrimination, insensibility or disdain on the Q: Is theft of company property a serious
part of the employer has become so unbearable misconduct?
as to leave an employee with no choice but to
forego continued employment. (McMer v. NLRC, A: (DEL CASTILLO) YES. Jurisprudence has
G.R. No. 193421, 2014) classified theft of company property as a serious
misconduct and denied the award of separation
Q: What are the legal implications of an pay to the erring employee. The employee in this
employee being on “floating status?” case attempted to steal the property of her long-
time employer. (Reno Foods v. Nagkakaisang
A: Being placed on floating status is legal. It Lakas ng Manggagawa-Katipunan, G.R. No.
means “waiting to be posted.” However, this status 164016, March 15, 2010)
must not exceed 6 months. Otherwise, it would
amount to constructive dismissal. (Reyes vs. RP Q: What is the ‘totality of infractions’ doctrine?
Guardians Security Agency, Inc., 695 SCRA 620,
2013). A: The totality of infractions or the number of
violations committed during the period of
D. Termination By Employer employment shall be considered in determining
the penalty to be imposed upon an erring
1. Just Causes employee. Fitness for continued employment
cannot be compartmentalized into tight little
Q: What are the various just causes for cubicles of aspects of character, conduct and
termination? ability separate and independent of each other.
While it may be true that petitioner was penalized
A: Just causes: (SoMe WiD GAN FWeT CO) for his previous infractions, this does not and
1. Serious Misconduct or Willful Disobedience by should not mean that his employment record
the employee of the lawful orders of his would be wiped clean of his infractions. After all,
employer or representative in connection with the record of an employee is a relevant
his work (work-related) consideration in determining the penalty that
2. Gross And habitual Neglect by the employee should be meted out since an employee's past
of his duties misconduct and present behavior must be taken
3. Fraud or Willful breach by employee of the together in determining the proper imposable
Trust reposed in him by his employer or duly penalty. (Merin v. NLRC, G.R. No. 171790)
authorized representative (not mere
suspicion)
4. Commission of a Crime or offense by the
employee against the person of his employer
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Q: In what instances are the procedural and Conviction or prosecution of the employee is not
substantive requirements of due process in necessary. A criminal case need not be actually
the termination of an employee based on loss filed. Commission of acts constituting a crime is
of trust and confidence deemed violated? sufficient. (Nicolas v. NLRC, G.R. No. 113948,
1996)
A: For the procedural aspect, there is a violation
when the employee was not given notice nor an Previous offenses may be used as justification for
opportunity to face the accusations against him. dismissal from work only if the past infractions are
For the substantive aspect, there is a violation related to the subsequent offense upon which the
when the purported loss of trust and confidence basis of termination is decreed. (Salas v. Aboitiz
was inexistent at the time the employee received One Inc., G.R. No. 178236, 2008)
his notice of termination. The employer is held
liable for full backwages, separation pay and Q: What is the Bona Fide Occupational
attorney’s fees. (Mega-Pro International Qualification (BFOQ)?
Resources, Inc v Maximo Domingo, GR No.
213146, November 12, 2014) A: General Rule: Where the job itself necessarily
requires a particular qualification, then the job
Q: What is the process to be observed in the applicant or worker who does not possess it may
dismissal of a rank-and-file employee for loss be disqualified on that basis and such will not be
of confidence? considered unlawful discrimination.
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Q: What are the elements of ‘analogous Q: What are the requisites for an employer to
causes?’ justify or effect a valid redundancy program?
A: A:
1. There must be an act or omission similar to 1. A written notice served on both the employees
those specified just causes; and the DOLE at least one month prior to the
2. The act or omission must be voluntary and/or intended date of retrenchment;
willful on the part of the employees (D.O. No. 2. Payment of separation pay equivalent to at
147-15, Sec. 5.2[g]) least one month pay or at least one month pay
for every year of service, whichever is higher;
NOTE: No act or omission shall be considered as 3. Good faith in abolishing the redundant
analogous cause unless expressly specified in positions; and
the company rules and regulations or policies. 4. Fair and reasonable criteria in ascertaining
what positions are to be declared redundant
2. Authorized Causes and accordingly abolished. (DAP v. CA, G.R.
165811, 2005).
Q: What are the Authorized causes for
termination? (RRLCD) Q: How is the “last in first out” policy to be
1. Redundancy effected in a retrenchment or redundancy
2. Retrenchment program?
3. Introduction of labor-saving devices
4. Cessation or Closure of Establishment of A: The decisions of the Supreme Court only posits
Operation of the Establishment or Undertaking the rule that seniority need not be strictly followed
5. Disease in effecting a retrenchment or redundancy
program and should be included in the fair and
Q: What are the elements of ‘redundancy?’ reasonable criteria along with a) less-preferred
status (i.e. temporary employees); and b)
A: The elements are the following: efficiency rating. (Asiaworld v. Ople, G. R. No.
1. There must be superfluous positions or 56398, 1987)
services of employees;
2. The positions or services are in excess of what In Philippine Tuberculosis Society vs. National
is reasonably demanded by the actual Labor Union, (G.R. No. 115414, 1998), the
requirements of the enterprise to operate in an Supreme Court held a retrenchment invalid for
economical and efficient manner; failing to consider the seniority factor in choosing
3. There must be good faith in abolishing those to be retrenched, a failure which, to their
redundant positions; mind, should invalidate the retrenchment, as the
4. There must be fair and reasonable criteria in omission immediately makes the selection
selecting the employees to be terminated; and process unfair and unreasonable.
5. There must be an adequate proof of
redundancy such as but not limited to the new Q: What are the elements of ‘retrenchment?’
staffing pattern, feasibility studies/ proposal,
on the viability of the newly created positions, A:
job description and the approval by the 1. The retrenchment must be reasonably
management of the restructuring. (DO 147-15) necessary and likely to prevent business
losses;
2. The losses, if already incurred, are not merely
de minimis, but substantial, serious, actual
and real, or if only expected, are reasonably
imminent.
3. The expected or actual losses must be proved
sufficient and convincing evidence such as
financial statements (audited by an
independent firm) over a span of several years
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OR a some reasonable period of time, and not Q: What are the elements of a valid termination
merely the actual year of business loss; based on ‘installation of labor-saving
4. The retrenchment must be in good faith for the devices?’
advancement of its interest and not to defeat
or circumvent the employees’ right to security A:
of tenure; and 1. There must be introduction of machinery,
5. There must be fair and reasonable criteria in equipment or other devices;
ascertaining who would be dismissed and who 2. The introduction must be done in good faith;
would be retained among the employees, 3. The purpose for such introduction must be
such as status, efficiency, seniority, physical valid such as to save on cost, enhance
fitness, age, and financial hardship for certain efficiency and other justifiable economic
workers. (D.O. No. 147-15, Sec. 5.4[c]) reasons;
4. There is no other option available to the
Q: What does “prevent losses” mean? employer than the introduction of machinery,
equipment or device and the consequent
A: The phrase “to prevent losses” means that termination of employment of those affected
retrenchment or termination from the service of thereby; and
some employees is authorized to be undertaken 5. There must be fair and reasonable criteria in
by the employer sometime before the losses selecting employees to be terminated. (D.O.
anticipated are actually sustained or realized. No. 147-15)
Actual losses need not set in prior to retrenchment
(Cajucom VII v. TPI Phil. Cement Corp., G.R. No. Q: What are the elements of ‘closure or
149090, 2005) cessation of business operations?’
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Q: The Labor Code is silent on the requirement A: After serving the first notice, the employer
of procedural due process due to disease. should schedule and conduct a hearing or
Must the two-notice rule be followed? conference wherein the employee will be given
the opportunity to:
A: YES. The Labor Code and its IRR are silent on 1. explain and clarify his defenses to the
the procedural due process required in charge/s against him;
terminations due to disease. Despite the seeming 2. present evidence in support of his defenses;
gap in the law, Section 2, Rule 1, Book VI of the and
IRR expressly states that the employee should 3. rebut the evidence presented against him by
be afforded procedural due process in all the management. (Unilever v. Rivera, G.R.
cases of dismissals. (Deoferio v. Intel No. 201701, 2013)
Technology, G.R. No. 202996, 2014)
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Q: What are the guiding principles with respect Q: What are the consequences for non-
to the hearing requirement? compliance with the due process
requirements?
A: "Ample opportunity to be heard" means any
meaningful opportunity (verbal or written) given to A: Consequences for Non-Compliance of
the employee to answer the charges against him Procedural Due Process
and submit evidence in support of his defense,
whether in a hearing, conference or some other Just or Authorized Cause Exists + Due
fair, just and reasonable way. Process
1. Valid Dismissal
A formal hearing or conference becomes 2. Employer is not liable; but pays separation pay
mandatory only when requested by the employee only in authorized causes.
in writing or substantial evidentiary disputes exist
or a company rule or practice requires it, or when Just or Authorized Cause + No Due Process
similar circumstances justify it. 1. Valid Dismissal
2. Employer is liable for damages due to
The "ample opportunity to be heard" standard in procedural infirmities.
the Labor Code prevails over the "hearing or 3. Employer pays separation pay if for authorized
conference" requirement in the implementing rules causes.
and regulations (Perez v. PT&T, G.R. No. 152048,
2009) No Just or Authorized Cause + Due Process
1. Illegal Dismissal
Q: Distinguish the procedural requirements in 2. Employer is liable to reinstate employee or
termination cases. pay separation pay.
3. If reinstatement is not possible, pay full
A: backwages.
AUTHORIZED
JUST CAUSES No Just or Authorized Cause + No Due Process
CAUSES
First Notice specifying Notice to the following: 1. Illegal Dismissal
the grounds for which - Employee; and 2. Employer is liable to reinstate employee or
dismissal is sought - DOLE pay separation pay.
3. If reinstatement is not possible, pay full
Hearing or At least 1 month prior backwages.
opportunity to be to effectivity of the
heard separation E. Reliefs from Illegal Dismissal
Second Notice of the Q: What are the various remedies for an illegal
decision to dismiss dismissal?
NOTE: For Notice in Authorized Causes: A: An employee who is unjustly dismissed from
1. Notice is not needed when Employee consented work shall be entitled to reinstatement without
to the retrenchment or voluntarily applied for one loss of seniority rights and other privileges and to
(Int’l Hardware v. NLRC, G.R. No. 80770, 1989) his full backwages, inclusive of allowances and to
his other benefits or their monetary allowances,
2. Notice must be individual, and not collective and to his other benefits or their monetary
(Shoppers Gain Supermart v. NLRC, G.R. No. equivalent computed from the time his
110731, 1996) compensation was withheld from him up to the
time of his actual reinstatement. (Section 34, R.A.
3. Voluntary Arbitration satisfies notice No. 6715)
requirement for authorized causes (Revidad v.
NLRC, G.R. No. 111105, 1995)
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Q: May reinstatement and backwages be A: According to the SC, “in lieu of reinstatement,
awarded together? petitioner is entitled to separation pay equivalent
to one (1) month salary for every year of service
A: General Rule: Yes, reinstatement and reckoned from the time he commenced his
backwages may be awarded together. employment with TAWTRASCO until finality of this
Decision.” (Bañares vs. TAWTRASCO, 694 SCRA
Exceptions: 312, 2013).
• Separation pay
• Closure of business (Retuya v. Hon. Q: What are the four kinds of separation pay?
Dumarpa, G.R. No. 148848, 2003)
• Economic Business Conditions (Union of A:
Supervisors v. Secretary of Labor, G.R. No. L- 1. Statutory separation pay, in authorized causes
39889, 1981) (Labor Code, Arts. 288-299)
• Employee’s unsuitability (Divine Word High 2. Separation pay as financial assistance
School v. NLRC, G.R. No 72207, 1986) 3. Separation pay in lieu of reinstatement where
• Employee’s retirement / overage (New Phil. reinstatement is not feasible; and
Skylanders v. Dekila, G.R. No. 199547, 2012) 4. Separation pay as a benefit in the CBA or
• Antipathy and antagonism (Wensha Spa company policy
Center v. Yung, G.R. No. 185122, 2010)
• Job with a totally different nature (DUP Sound Q: When may separation pay as financial
Phils. v. CA, G.R. No. 168317, 2011) assistance be awarded?
• Long passage of time
Separation pay may be awarded, in the name of
• Inimical to the employer’s interest
compassionate justice, to an employee dismissed
• Supervening facts have transpired which
for a “just cause”, except in the following:
make execution unjust or inequitable, to an
1. Serious misconduct; or
increasing extent (Emeritus Security v. Dailig,
2. Other offenses reflecting on his moral character
G.R. No. 204761, 2014)
(PLDT v. NLRC, G.R. No. 80609, 1988)
Q: What are the instances when reinstatement
However: In the Toyota case, the Supreme Court
is no longer possible?
ruled that if the dismissal is based on any of the
just causes in Art. 297 of the Labor Code – No
A:
financial assistance can be granted, except
1. In case establishment has closed or ceased
perhaps under “analogous causes.” (Toyota Motor
operations
Phil. Corp. Workers Ass’n. v. NLRC, G.R. No.
2. Company has been declared insolvent 158786, 2007)
3. Former position no longer exists for reasons
not attributable to the employer
4. Where the employee does not want to be
reinstated
(Book VI, Rule 1, Section 4 (b),
Rule I, IRR)
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But note: In the International School case, the wage or salary. In contrast, salary increases
Supreme Court granted “separation pay” of ½ are amounts which are added to the
month per year of service while upholding the employee’s salary as an increment thereto.
teacher’s dismissal on the ground of “gross (Equitable Bank v. Sadac, G.R. No. 164772,
inefficiency” resulting from the lack of skills, 2006).
thereby failing to meet the standards of the
employer of the school. (International School v. 5. Once there is a finding of illegal dismissal, the
International School Alliance, 2014) components constituting the award of
backwages is the same for managerial and
Q: What economic components constitute other employees. Art. 294 of the Labor Code
backwages for a rank-and-file employee? Are speaks of “employees”. Where the law does
these components equally applicable to a not distinguish, one must not also distinguish.
managerial employee? Labor Code, Art. 294)
a change of mind. (Alfaro vs. CA, G.R. 140812, 3. Nominal damages may be granted only if the
2001). dismissal is for an authorized or just cause yet
effected without procedural due process
Q: Does the filing of a criminal case against an excluding illegal dismissal. (Agabon vs.
employee have the effect of suspending or NLRC, G.R. No. 158693, 2004) (DEL
interrupting the running of the prescriptive CASTILLO)
period for the filing of an action for illegal
dismissal? Q: When is separation pay allowed as a
measure of social justice?
A: No. The filing of the criminal case against an
employee does not have the effect of suspending A: Only in those instances where the employee is
or interrupting the prescriptive period for the filing validly dismissed for causes other than serious
of an action for illegal dismissal. Such an action is misconduct or those reflecting on his moral
an administrative case which is entirely separate character. A series of misconducts, when put
and distinct from a criminal action. Each may together, may constitute a serious misconduct.
proceed independently of the other. (Pepsi Cola (PLDT v. NLRC, G.R. Np. 80609, 1988)
Bottling Company vs. Guanzon, G.R. 81612,
1989) Q: What is “payroll reinstatement” and when
does it apply?
Q: What damages can an illegally dismissed
employee collect from his employer? A: Payroll reinstatement is a form of reinstatement
which an employer may opt to exercise in lie of an
A: Moral, exemplary and nominal damages. actual reinstatement. Here, the illegally dismissed
employee is to receive his basic pay without the
1. Moral damages are recoverable only where obligation of rending any service to the employer.
the dismissal of the employee was attended This occurs when a Labor Arbiter decides that an
by bad faith or fraud, or constituted an act employee was illegally dismissed and as a
oppressive to labor, or was done in a manner consequence awards reinstatement, pursuant to
contrary to morals, good customs or public Article 279. Such award of reinstatement is
policy. (PAL vs. NLRC, G.R. 132805, 1999). immediately executor even pending appeal,
An award of moral damages cannot be pursuant to Article 223. (Maranaw Hotel v. NLRC,
justified solely upon the premise (otherwise G.R. No. 110027, 1994)
sufficient for redress under the Labor Code)
that the employer fired his employee without Q: Differentiate the reliefs of local workers
just cause or due process. Additional facts versus those of migrant workers?
must be pleaded and proven to warrant the
grant of moral damages under the Civil Code A:
(Primero vs. IAC, 56 SCRA 435, 1987). Sec. 10, RA 8042
Art. 279, LC
(MIGRANT
(LOCAL WORKERS)
2. Exemplary damages may be awarded only if WORKERS)
the dismissal was shown to have been Full reimbursement of
Reinstatement
effected in a wanton, oppressive or his placement fee with
malevolent manner. (Cocoland Development interest of 12% per
Corp. vs. NLRC, G.R. No. 98458, 1996). annum
Full backwages from
Exemplary damages, however, may not be the time his Salaries for the
recovered where the party involved is not compensation was unexpired portion of
entitled to moral or compensatory damages. withheld from him up his employment
(Dee Hua Liong vs. Reyes, G.R. No. 72182, to the time of his contract.
1986). actual reinstatement
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Q: Who has the burden of proof to show the VI. SOCIAL WELFARE LEGISLATION
validity of the exercise of management
prerogatives?
A. SSS ACT AND B. GSIS ACT
A: It is the Employer.
Q: What are the coverage and exclusions of
HOWEVER: The employee initially has the the SSS and GSIS Law?
burden to prove that he is an employee of the
company (Javier v. CA, G.R. No. 192558, A:
February 15, 2012)
SSS ACT GSIS ACT
(DEL CASTILLO): The burden of proof rests upon
the party who asserts the affirmative of an issue’.” 1. Employer – any
Since it is Valencia here who is claiming to be person, natural or
an employee of Classique Vinyl, it is thus judicial, domestic or
incumbent upon him to proffer evidence to foreign who carries on
prove the existence of employer-employee in the Philippines any
relationship between them. He "needs to show trade, business,
by substantial evidence that he was indeed an industry undertaking,
employee of the company against which he claims or activity of any kind 1. Employer – the
illegal dismissal.” and uses the services national government,
of another person who its political
Corollary, the burden to prove the elements of is under his orders as subdivisions,
an employer-employee relationship, viz.: (1) regards employment. branches, agencies
the selection and engagement of the employee; *EXCEPT: or instrumentalities,
(2) the payment of wages; (3) the power of Government and any including GOCCs,
dismissal; and (4) the power of control, lies upon of its political and financial
Valencia. (Valencia v. Classique Vinyl, G.R. No. subdivisions, institutions with
206390, January 30, 2017) branches and original charters, the
instrumentality, constitutional
including GOCCs, i.e., commissions and the
those under GSIS. judiciary
2. Employee – any 2. Employee – any
person who person receiving
performs services compensation while
for an employer in service of an
who receives employer as defined
compensation for herein, whether by
such services, election or
where there is an appointment
employer-
employee
relationship.
3. Self-Employed –
considered both
employer and
employee.
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Q: Who are considered as dependents under Q: What are the exclusions from coverage?
the SSS and GSIS Law?
SSS ACT GSIS ACT
A: Under both laws, the following shall be
considered as dependents:
1. Employment purely
1. Legal spouse entitled for support; 1. Members of the
casual and not for the
2. Child, whether legitimate, legitimated, legally AFP and PNP,
purpose of subject to the
adopted or illegitimate;
occupation, or condition that they
3. Parents receiving regular support from the
business of the must settle first
member.
employer their financial
2. Service performed on
Q: Who are considered as beneficiaries? obligation with the
or in connection with GSIS;
alien vessel, if 2. Contractual
A:
employed when such
SSS ACT GSIS ACT employees, who
vessel is outside of
PRIMARY 1. Dependent 1. Legal have no
Philippines
Spouse, until Dependent employer-
3. Employees of employee
remarriage; AND Spouse
Philippine
2. Dependent until relationship with
government or
Legitimate or remarriage the agencies they
instrumentality or
Legitimated or ; AND serve;
agency thereof 3. Uniformed
Legally Adopted 2. Dependent
4. Service performed in
and Illegitimate Children personnel of the
the employ of a
Children. Bureau of Fire
foreign government,
SECOND 1. Dependent 1. Dependent Protection (BFP);
or international
ARY Parents Parents 4. Uniformed
organizations, or personnel of the
2. Absent primary AND
wholly owned Bureau of Jail
and secondary 2. Legitimate
instrumentality
beneficiaries, descendan Management and
employing workers in Penology (BJMP);
any other person ts, subject
the Philippines or
designated by to 5. Barangay and
employing Filipinos Sanggunian
member as restrictions
outside of the
secondary on Officials who are
Philippines
beneficiary dependent not receiving fixed
5. Services performed monthly
children
by temporary compensation;
OTHERS As to employees and other
BENEFITS, 6. Employees who
employees excluded do not have
beneficiary
by SSS regulation; monthly regular
under the Act,
employees of bona hours of work and
benefits shall be paid
fide independent
to Legal Heirs in are not receiving
contractors shall not fixed monthly
accordance with Law be deemed
of Succession compensation
employees of the
DEATH if no (IRR of R.A. No.
employer engaging 8291, Rule II, Sec
qualifies the services of an 3, Par. 2)
independent
contractor
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Q: What are the benefits under the SSS and 2. For the sickness and the resulting disability or
GSIS Law? death to be compensable, the sickness must
be the result of an occupational disease listed
under the Annex of the IR dealing with
SSS ACT GSIS ACT occupational diseases with the conditions set
therein satisfied. Otherwise, proof must be
1. Monthly Pension 1. ALL MEMBERS shown that the risk of contracting the disease
2. Dependents A. Life is increased by the working conditions
Pension Insurance
3. Retirement B. Retirement
4. Death C. Disability VII. LABOR RELATIONS
5. Permanent D. Survivorship
Disability E. Separation A. RIGHT TO SELF-ORGANIZATION
6. Funeral F. Unemploym
7. Sickness ent Q: What does the Right to self-organization
8. Maternity (ONLY include?
1ST FOUR 2. JUDICIARY
DELIVERIES OR a. Life Insurance A: The right includes:
MISCARRIAGES) ONLY – ALL TAX • Forming, joining, or assisting labor
9. Loan Grant EXEMPT organizations for the purpose of collective
bargaining through representatives of their
C. EMPLOYEES COMPENSATION – own choosing.
COVERAGE AND WHEN COMPENSABLE • To engage in lawful concerted activities for the
purpose of collective bargaining or for their
Q: Who are covered under the ECC Law? mutual aid and protection. (Labor Code, Art.
257)
A:
1. Every employer 1. Who may/ may not exercise the right
2. Every employee not over 60 years old
3. Any employee over 60 years of age if he had Q: Can security guards form, join and assist
been paying contributions prior to age 60 and labor organizations for purposes of collective
has not been compulsorily retired. bargaining?
4. An employee who is coverable by both the
GSIS and SSS shall be compulsorily covered A: Yes. Under RA 6715, security guards may
by both systems. (Sec. 2, Rule I, Amended freely join a labor organization of the rank and file
Rules on Employees’ Compensation, or that of the supervisory union, depending on their
implementing Title II, Book IV of the Labor rank.
Code.)
5. Filipinos working abroad in the service of an Q: Do government employees have the right to
employer as defined in Section 3 hereof shall self-organization?
be covered by the System, and entitled to the
same benefits as are provided for employees A: Yes. The right to self-organization applies to all
working in the Philippines. (Sec. 5, Rule I) employees of all branches, subdivisions,
instrumentalities and agencies of the government
Q: What are the grounds for compensability including GOCCs with original charters. It does not
under the ECC law? cover members of the AFP, police officers,
policemen, firemen and jail guards.
A:
1. For the injury and the resulting disability or The government employees’ right to organize is
death to be compensable, the injury must be limited to the formation of unions or associations
the result of accident arising out of and in the WITHOUT the right to strike. (Gesite v. Court of
course of the employment. Appeals, 444 SCRA 51, 2004)
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A: Yes. All persons employed in commercial, A: The Labor Code merely requires a 20%
industrial and agricultural enterprises and in minimum membership during the application for
religious, charitable, medical, or educational union registration. It does not mandate that a union
institutions, whether operating for profit or not, must maintain the 20% minimum membership
shall have the right to self-organization and to requirement all throughout its existence. (NAGA-
form, join, or assist labor organizations of their own PEMA vs. NASECO, G.R. No. 165442, 2010)
choosing for purposes of collective bargaining.
Ambulant, intermittent and itinerant workers, self- Q: Who are prohibited to form, join and assist
employed people, rural workers and those without labor organizations for the purpose of
any definite employers may form labor collective bargaining?
organizations for their mutual aid and protection.
(Labor Code, Art. 253) A:
1. Managerial employees - refers to an
Q: Are positions with access to salary and employee who is vested with powers or
compensation excluded from the bargaining prerogatives to lay down and execute
unit? management policies or to hire, transfer,
suspend, layoff, recall, discharge, assign or
A: No. In SMFI vs. SMC Supervisors and Exempt discipline employees. (Art. 255 LABOR
Union (G.R. No. 146206, 2011), Confidential CODE)
employees are those who (1) assist or act in a 2. Confidential employees - Confidential
confidential capacity, in regard (2) to persons who employees are those who (1) assist or act in a
formulate, determine, and effectuate management confidential capacity, (2) to persons who
policies in the field of labor relations. They should formulate, determine, and effectuate
be excluded from the bargaining unit, as their management policies in the field of labor
access to confidential information may become relations. The prohibition is based on the
the source of undue advantage. The Payroll DOCTRINE OF NECESSARY IMPLICATION
Master and employees with access to salary and wherein the reason behind disqualifying
compensation data are not considered confidential managerial employees to form unions can be
employees, because their positions do not involve similarly applied to confidential employees
dealing with confidential labor relations (NATU v. Torres, G.R. No. 93468, 1994)
information. 3. Member-Owner of Cooperatives - An owner
cannot bargain with himself or his co-owners.
Q: Do alien employees have the right to self- Employees who are neither members nor co-
organization and join or assist labor unions for owners of the cooperative are entitled to
purposes of collective bargaining? exercise the rights to self-organization,
collective bargaining and negotiation
A: Yes. The following requisites must be present: (Benguet v. Ferrer-Calleja, G.R. No. 79025,
a. The alien employee must have a valid working 1989)
permit issued by DOLE; and 4. Employees of International Organizations
b. The alien employee must be a national of a which have been granted diplomatic immunity
country which grants the same or similar rights cannot unionize EXCEPT if the international
to Filipino workers, as certified by DFA or organizations expressly waived their immunity
which has ratified either ILO Convention No. (ICMC v. Calleja, G.R. No. 85750, 1990)
87 or ILO Convention No. 98. (Labor Code,
Art. 284)
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Q: Do employees have a right NOT to join a Q: What is the effect of inclusion of members
labor organization? outside of the bargaining unit?
A: Yes. What the Constitution guarantees is the A: Said employees are automatically deemed
right to form or join organizations. It is the removed from the list of membership of said union.
employee who should decide for himself whether (Labor Code, Art. 256)
he should join or not in an association. The right to
join a union includes the right to abstain from 3. Rights and Conditions Of Membership
joining any union. (Victoriano v. Elizalde Rope
Workers’ Union, G.R. L-25246, 1974). a) Nature Of Relationship
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Q: What is the difference between “contract Q: Who may file and on what ground may a
bar rule” and “deadlock bar rule?” protest arising from the conduct of
certification be filed?
A: In contract bar rule, no petition for certification
election may be filed where there is an existing A: Any party-in-interest and on a ground based on
CBA which has been duly registered. A petition for the conduct or mechanics of election. (Sec. 12,
certification election may on be filed within the last Rule IX, Book V)
60 days of the fifth year of the CBA. On the other
hand, in deadlock bar rule, no certification Q: How is a protest done?
election may be held if there is a pending
bargaining deadlock which has been submitted to A:
conciliation or arbitration or has become the 1. Record the protest in the minutes of the
subject of a valid notice of strike or lockout. (Labor election proceedings; AND
Code, Art. 268; Capitol Medical v. Laguesma, G.R. 2. Formalize and perfect the protest within five
No. 118915, 1997) (5) days after the close of the election
proceedings, formalize the protest with
Q: What is the “automatic renewal clause” in a specific grounds, arguments before the Med-
collective bargaining agreement? Arbiter.
(Sec. 12, Rule IX, Book V)
A: Automatic renewal clause means that at the Q: What are the election mechanics?
expiration of the freedom period, the employer
shall continue to recognize the majority status of 1. Preliminary Conference
the incumbent bargaining agent where no petition The Med-Arbiter shall conduct a preliminary
for certification election is filed. It shall be the duty conference and hearing within 10 days from the
of both parties to keep the status quo and to receipt of the petition to determine the following:
continue in full force and effect the terms and a. The bargaining unit to be represented;
conditions of the existing agreement during the 60- b. Contending labor unions;
day period and/or until a new agreement is c. Possibility of consent elections;
reached by the parties. (Labor Code, Art. 264) d. Existence of any of the bars to certification
election; and
Q: What are the requirements for validity of a e. Such other matters as may be relevant for the
certification election? final disposition of the case.
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A check-off is a process whereby the employer, on Article 241, par (n) of the Labor Code provides
agreement with the EBR, deducts union dues or that other than for mandatory activities under the
agency fees from the latter's wages and remits Code, no special assessments, attorney’s fees,
them directly to the union. No special negotiation fees or any other extraordinary fees
assessments, attorney’s fees, negotiation fees or may be checked off from any amount due to an
any other extraordinary fees may be may be employee without an individual written
checked off from any amount due to an employee authorization duly signed by the employee. The
without authorization should specifically state the amount,
a. An INDIVIDUAL WRITTEN authorization duly purpose and beneficiary of the deduction.
signed by the employee
b. The authorization should specifically state the A valid collection presupposes a valid levy.
(1) amount, (2) purpose and (3) Beneficiary of
the deduction. (Labor Code, Art. 249) 2. COLLECTIVE BARGAINING
A: This is an amount, equivalent to union dues, A: A CBU is a group of employees sharing mutual
which a nonunion member pays to the union interests within a given employer unit, comprised
because he benefits from the CBA negotiated by of all or less than all of the entire body of
the union. It is an agency fee because in employees in the employer unit or any specific
negotiation the CBA, the union served as the occupation or geographical grouping within such
employees’ agent. (Labor Code, Art. 259) employer unit. (Rule I, § 1(d), Omnibus Rules)
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Q: Does the Union have the authority to entered into the CBA with PAL. It was also PALEA
compromise individual rights? that voluntarily opted for the 10-year suspension
of the CBA. Either case was the union’s exercise
A: No. Absent a showing of the Union’s special of its right to collective bargaining. The right to free
authority to compromise the individual claims of collective bargaining, after all, includes the right to
private respondents for reinstatement and suspend it.
backwages, there is no valid waiver of the
aforesaid rights. (Golden Donuts vs. NLRC, G.R. Q: What is the difference between Surface
No. 113666-68, 2000) Bargaining and Blue-Sky Bargaining?
Q: When is the reckoning period for the CBA Q: What are the acts which constitute ULP
arbitral awards of the Secretary of Labor? by employers?
A: In general, a CBA negotiated within 6 months A: Rundown of Acts Constituting Unfair Labor
after the expiration of the existing CBA retroacts to Practice of Employers (YIP-C2-D2-V2)
the day immediately following such date and if 1. Interference
agreed thereafter, the effectivity depends on the 2. Yellow dog condition
agreement of the parties. 3. Contracting out
4. Company unionism
CBA arbitral awards granted after 6 months from 5. Discrimination for or against union
the expiration of the last CBA shall retroact to such membership
time agreed upon by both employer and the 6. Discrimination because of testimony
employees or their union. 7. Violation of duty to bargain
8. Paid negotiation
Absent such an agreement as to retroactivity, the 9. Violation of CBA
award shall retroact to the first day after the six-
month period following the expiration of the last Q: Can the commission of unfair labor
day of the CBA should there be one. practices of an employer be subjected to
criminal action?
In the absence of a CBA, the Secretary's
determination of the date of retroactivity as part of A: Generally, no. ULPs are also criminal offenses
his discretionary powers over arbitral awards shall against the State which shall be subject to
control. prosecution and punishment. However, no
criminal prosecution may be made without a prior
Where the arbitral award was made to retroact to final judgment in such administrative case shall
the first day after the six-month period following neither be binding on the criminal case, nor be
the expiration of the last day of the CBA because considered as evidence of guilt. At best, it would
of the enormous cost that the petitioner only serve as proof compliance of the requirement
(MERALCO) will have to bear as a consequence set forth in Article 247. (Labor Code, Art. 260)
of the full retroaction of the arbitral award to the
date of expiry of the CBA. (MERALCO v.
Quisumbing, G.R. No. 127598, 2001)
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A: The rule is that unless expressly assumed, Q: What are the acts which are ULP by Labor
labor contracts such as employment contracts and Organizations?
collecting bargaining agreements are not
enforceable against a transferee of an enterprise, A:
labor contracts being in personam, thus binding 1. To restrain or coerce employees in the
only between the parties. A labor contract merely exercise of their right to self-organization.
creates an action in personam and does not create 2. To attempt to or cause an employer to
any real right that should be respected by their discriminate against an employee to whom
parties. This conclusion draws its force from the membership in the labor organization was
right of an employer to select his employees and denied or to terminate an employee on any
to decide when to engage them as protected under ground other than the usual terms and
our constitution, and the same can only be conditions under which membership or
restricted by law through the exercise of the police continuation of membership is made available
power. to other members.
3. To refuse to bargain collectively with the
As a general rule, there is no law requiring a bona employer, if it is the representative of the
fide purchaser of assets of an ongoing concern to employee.
absorb in its employ to employees of the latter. 4. To attempt to or cause the employer to pay
However, although the purchaser of the assets or money or other things of value, in the nature
enterprise is not legally bound to absorb the of an exaction, for services which are not
employees of the seller of such assets or performed or not to be performed. This
enterprise, the parties are liable to the employees includes fees for union negotiations.
if the transaction between the parties is colored 5. To ask or accept negotiations or attorney’s
with bad faith. (Sundowner Development Corp. v. fees from employers as part of the settlement
NLRC, 180 SCRA 14, 1989). in any dispute.
6. Violation of CBA. (Labor Code, Art. 260)
Q: Is a profit-sharing scheme implemented
only for managers and supervisors a form of F. PEACEFUL CONCERTED ACTIVITIES
discrimination against rank and file
employees? 1. By Labor Organization
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Compliance with all the legal requirements, as Q: What is a good faith strike?
stated by National Federation of Sugar Workers
vs. Ovajera) G.R. L-59743, 1982), are meant to be A: As a general rule, where a union believes that
and should be mandatory. Necessarily, a an employer committed ULP and the surrounding
strike must comply with the purpose and means circumstances warranted such belief in good faith,
test which means that both the purpose and the the resulting strike may be considered legal
means to carry out the strike must be legal. The although, subsequently, such allegations of unfair
purpose must be based solely on bargaining labor practices were found to be groundless.
deadlock (economic) and/or unfair labor practice (Hotel Enterprises v. Samahan Manggagawa ng
(political). The means to carry out the strike should Hyatt, G.R. No. 165756, 2009).
also be legal where there should be no illegal acts
committed in the course of the strike. Q: What is the difference between a sympathy
strike and a general strike?
Q: What comprises a strike?
A: Workers go on a sympathy strike to show their
A: A strike comprises not only concerted work sympathy for certain workers who are on strike.
stoppages but also slowdowns, mass leaves,
sitdowns, attempts to damage, destroy or In a general strike, workers in the country or in a
sabotage plant equipment. The fact that the region, province, or city, or municipality go on a
conventional term “strike” isn’t used is of no strike to publicly protest a certain policy or action
moment. (Solidbank v. Gamier, G.R. No. 159460, taken by the government. (Azucena, Volume II)
2010)
Q: What are the different kinds of strike?
Q: Is the act of not showing up for work
considered a form of strike? A:
1. LEGAL STRIKE – one called for a valid
A: Yes. The Court held in Toyota vs. NLRC (G.R. purpose and conducted through means
158786, 2007) that the strikes were illegal allowed by law.
because they were in reality temporary stoppages 2. ILLEGAL STRIKE – one staged for a purpose
of work perpetrated through the concerted action not recognized by law, or if for a valid purpose,
of the employees who deliberately failed to report conducted through means not sanctioned by
for work. Apart from the fact that they defied the law
assumption order of the Secretary of DOLE, it was 3. ECONOMIC STRIKE – one staged by workers
apparent that the ultimate goal of the union to force wage or other economic concessions
members was to coerce Toyota to acknowledge from the employer which he is not required by
them as the sole bargaining agent of the company. law to grant (Consolidated Labor Association
of the Phil. vs. Marsman and Company, 11
Q: What are the effects of a strike on an SCRA 589)
employer-employee relationship? 4. ULP STRIKE – one called to protest against
the employer’s acts of unfair labor practice
A: Strikers remain as employees while they are on enumerated in the Labor Code
strike; the effects of employment are merely 5. SLOWDOWN STRIKE – one staged without
suspended during that time. Mere participation of the workers quitting their work but merely
a worker in a lawful strike shall not constitute slackening or by reducing their normal work
sufficient ground for termination of his output
employment, even if a replacement had been hired 6. WILD-CAT STRIKE – one declared and
by the employer during such lawful strike. staged without filing the required notice of
strike and without the majority approval of the
Even if declared illegal, the strike need not have recognized bargaining agent.
been attended with such a drastic consequence as 7. SIT DOWN STRIKE – one where the workers
termination of employment of relationship. (Labor stop working but do not leave their place
Code, Art. 279)
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(1) Valid versus Illegal Strikes Q: Can the issue of wage distortion be raised
in a notice of strike?
Q: What are the differences between a legal
and illegal strike? A: No, a strike is illegal if based on alleged salary
distortion. It is specifically provided in the law that
ILLEGAL STRIKE LEGAL STRIKE “any issue involving wage distortion shall not be a
Contrary to a specific Not contrary to a specific ground for a strike/lockout.” Wage distortions
prohibition of law, such prohibition of law should be sought by voluntary negotiation or
as strike by (government employees arbitration. (IBM v. NLRC, G.R. No. 91980, 1991)
government do not have the right to
employees; or strike)
b) Picket
Observes the procedural
requirements, which are
Violates a specific Q: What is picketing?
mandatory, and non-
requirement of law
observance makes strikes
(failure to comply with
illegal A: This involves the presence of striking workers
the procedural
i. notice of strike or their union brothers who pace back and forth
requirements set by
ii. cooling-off period before the place of business of an employer
law); or
iii. strike vote considered “unfair to organized labor.” The
iv. strike vote report
purpose of such act is to peacefully persuade
Conducted for a lawful
other workers not to work in the establishment,
purpose. The only two
Is declared for an and customers not to do business there.
strikeable grounds that
unlawful purpose, such (Azucena)
may validly support a
as inducing the
strike are:
employer to commit a
i. collective bargaining Q: What are the requisites for lawful picketing?
ULP against non-union
deadlock; and/or
employees; or
ii. employer’s unfair A: Lawful purpose AND lawful means. (Azucena,
labor practice Volume II)
Pursued within the bounds
of law or means employed
Q: Is picketing legal if non-employees of the
within the bounds of law.
strike-bound employer participate in the
Does not commit any of
the following activities activity?
Employs unlawful i. act of violence,
means in the pursuit of coercion, or A: Yes. Peaceful picketing may be legally carried
its objectives, such as intimidation out even in the absence of employer-employee
widespread terrorism ii. obstruct the free relationship for it is guaranteed under the freedom
of non-strikers; or ingress to or egress of speech and of the press under the Constitution.
from the employer’s (PAFLU v. Coribel, G.R. No. L-25878, 1969)
premises for lawful
purposes
iii. obstruct public
thoroughfares
Strike is not committed in
violation of an injunction
Under Article 264 (o) of the
Declared in violation of Labor Code, the holding of
an existing injunction; a strike or lock-out after
or assumption of jurisdiction
of the President or the
Secretary of Labor or after
certification or arbitration
Contrary to an existing
agreement, such as Not contrary to a valid
no-strike clause or agreement between the
conclusive arbitration parties
clause
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A: The picketing must be peaceful as the law Q: What are the requisites for a lawful lockout?
provides that “no person engaged in picketing
shall commit any act of violence, coercion or A: A lock-out is proper only when the following
intimidation, or obstruct the free ingress to or requisites are met:
egress from the employer’s premises for lawful 1. Notice of intention to declare a lock-out has
purposes, or obstruct public thoroughfares. (Labor been filed with the DOLE;
Code, Art. 264 (e)) While the law provides that 2. At least thirty days has elapsed since the filing
police force should be kept out of the picket lines, of the notice before lock-out is declared;
a proviso provides that nothing herein shall be 3. An impasse has resulted in the negotiations;
interpreted to prevent any public officer from taking and
any measure necessary to maintain peace and 4. The lock-out is not discriminatory (San Pablo
order, protect life and property, and/or enforce the Oil Factory v. CIR, G.R. 147749, 2006).
law and legal order.
Q: What are the provisions on illegal lockout?
Q: What is the Innocent Bystander Rule? i.e., when is it committed?
affected party, supervise the conduct of the (DEL CASTILLO) The impending strike in
secret balloting. In every case, the union or the Philtranco, a public transportation company whose
employer shall furnish the Ministry the results business is imbued with public interest, required
of the voting at least seven days before the that the Secretary of Labor assume jurisdiction n
intended strike or lockout, subject to the over the case, which in fact, he did. (Philtranco
cooling-off period herein provided. Service Enterprises v. Philtranco Workers, G.R.
No. 180692, February 16, 2014)
D.O. No. 40-03 as amended by D.O. No. 40A-03
A strike or lock-out may be declared in cases of Q: What are the legal effects of an assumption
bargaining deadlocks and ULP. Violations of of jurisdiction order?
CBAs, except flagrant and/or malicious refusal to
comply with its economic provisions, shall not be A: The legal effects are the following:
considered ULP and shall not be strikeable. No
strike or lock-out may be declared on grounds Automatically enjoins the intended or impending
involving inter-union and intra-union disputes or strike or lock-out; and
without first having filed a notice of strike or lock-
out or without the necessary strike or lock-out vote If one has already taken place, all striking or
having been obtained and reported to the Board. locked-out employees shall immediately return to
Neither will a strike, or lock-out be declared after work and the employer shall immediately resume
assumption of jurisdiction by the Secretary or after operations and readmit all workers under the same
certification or submission of the dispute to terms and conditions prevailing before the strike or
compulsory or voluntary arbitration or during the lock-out. (Labor Code, Art. 278)
pendency of cases involving the same grounds for
the strike or lock-out. (Rule XXII, Sec. 5) Q: Is there a need to issue a return-to-work
order after the issuance of an assumption of
3. Assumption Of Jurisdiction jurisdiction order?
Q: What is the Nature of an Assumption Order? A: No. The moment the Secretary of Labor
assumes jurisdiction over a labor dispute in an
A: The power to issue assumption or certification industry indispensable to national interest, such
orders is an extraordinary authority granted to the assumption shall have the effect of automatically
President and to his alter ego, the DOLE enjoining the intended or impending strike. It was
Secretary, the exercise of which is strictly limited not even necessary for the Secretary of Labor to
to national interest cases. (Tabangao Shell issue another order directing them to return to
Refinery Employees Association v. Pilipinas Shell work. (Telefunken Semiconductors Union v. CA,
Petroleum Corp., G.R. No. 170007, 2014) G.R. 143013-14, 2000).
Q: When and under what circumstances can Q: Requirements of a Valid Assumption Order
the Secretary of Labor issue an assumption of or Certification Order
jurisdiction order?
A:
A: The Secretary of Labor may issue an 1. There exist a labor dispute causing or likely to
assumption of jurisdiction order when in his cause a strike or lockout; and
opinion there exists a labor dispute causing or 2. That the labor dispute is in an industry
likely to cause a strike or lock-out in an industry indispensable to the national interest. (Labor
indispensable to the national interest. (Labor Code, Art. 278[g])
Code, Art. 278)
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Q: What are ‘national interest’ industries? Q: Are retrenched employees excluded from
the coverage of a return-to-work order?
A: The NLRC vests the President of the
Philippines and the Secretary of Labor almost A: No, in YSS Employees Union vs. YSS
unlimited discretion to determine what industries Laboratories (G.R. 155125, 2009), the primary
may be considered as indispensable to the reason why the strike was conducted in the first
national interest. place was to protest the implementation of the
retrenchment program. The determination of who
Industries Indispensable to the National among the strikers could be admitted back to work
Interest cannot be made to depend upon the discretion of
1. Hospital Sector employer, Accordingly, when the Secretary of
2. Electric Power Industry Labor directed YSS Laboratories to accept all the
3. Water Supply Services, to exclude small water striking workers back to work, the Secretary did
supply such as bottling and refilling stations not exceed his jurisdiction, or gravely abuse the
4. Air traffic control same, said the Supreme Court.
5. Such other industries as maybe
recommended by the National Tripartite Q: What happens upon defiance of the
Peace Council (TIPC) (DO No.40-H-13) assumption or certification order?
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Q: May the NLRC of the courts take Q: Does the SOLE have the power to give
jurisdictional cognizance over compromise arbitral awards in the exercise of his authority
agreements/settlements involving Labor to assume jurisdiction over labor dispute?
matters?
A: Yes. The arbitral award given by the Secretary
A: Art. 227 provides that any compromise of Labor can be considered as an approximation
agreement involving labor matters entered into by of a collective bargaining agreement. While the
the parties with the assistance of the DOLE shall award cannot per se be categorized as an
be final and binding upon the parties, except in agreement between the parties (because of the
cases of non-compliance or, if based on fraud, Secretary's interference), it still has the force and
when misrepresentation or coercion is present. effect of a valid contract obligation between the
parties, as is stated in (Cirtek Employees vs. Cirtek
Q: May non-lawyers appear before the NLRC or Electronics, G.R. 190515, 2011).
Labor Arbiter and may they charge attorney’s
fees for such appearance provided it is 2.Requirements to perfect appeal to NLRC
charged against union funds and in an amount
freely agreed upon by the parties? Q: What are the requirements to appeal the
LA’s decision?
A: Yes, non-lawyers may appear before the
Commission or any Labor Arbiter only: A: Appeal from the decision of the Labor Arbiter is
brought by ordinary appeal to the NLRC within 10
1. if they represent themselves; or calendar days from receipt of the decision. (Vir-jen
2. if they represent their own legitimate labor Shipping and Marine Services v. NLRC, G.R. No.
organization or members thereof; or 58011-12, 1982)
3. if they are duly accredited by a Legal Aid
Office which is DOJ or IBP recognized. The 10-day period is reckoned from receipt by
counsel of the final decision, order or award. This
Non-lawyers may not charge attorney’s fees applies to both appeals from the LA to NLRC and
though charged against the union funds and NLRC to CA. (Sy. v. Fairland Knitcraft, G.R. No.
agreed upon. Attorney’s fees presuppose the 182915, 2011)
existence of an attorney-client relationship.
(PAFLU vs. BISCOM, G.R. L-18782, 1963). This 10-day period is both mandatory and
jurisdictional in nature. (Charter Chemical &
Q: May a decision of the Labor Arbiter which Coating Corp v. Tan, G.R. No. 163891, 2009)
has become final and executory be novated
through a compromise agreement of the NOTE: There is no appeal from the decision of the
parties? NLRC. The only way to elevate the case to the CA
is by way of special civil action of certiorari under
A: Compromise agreement is encouraged and Rule 65, Rules of Court.
authorized by law. Hence, they may be made even
when the judgment is final and executor. The From the ruling of the Court of the Appeals, it may
validity of the agreement is determined by the be elevated to the SC by petition for review on
compliance with the requisites and principles of certiorari under Rule 45 of the Rules of Civil
contract, and not by the time it was entered into as Procedure. (St. Martin Funeral Home v. NLRC, et
provided by the law on contracts, a valid al., G.R. No. 130866, 1998)
compromise must have the following elements:
1. The consent of the parties to the
compromise;
2. An objects certain that is the subject
matter of the compromise;
3. The cause of the obligation that is
established.
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Q: What are the grounds for appeal? Q: How is the Employer’s Liability Determined
After the Finality of the Case?
A:
1. Prima facie evidence of abuse of discretion on A: After finality of the case, the records will have
the part of LA. to be remanded to the Labor Arbiter to determine
2. The decision, order or award was secured the actual liability of the employer to each and
through fraud or coercion including graft and every employee. Both parties will have a chance
corruption to submit further proof and argument in support of
3. Pure questions of law their respective proposed computations.
4. Raised serious errors in the findings of facts
which could cause grave or irreparable damage or For the guidance of the labor arbiter, as well as the
injury to the appellant parties, this court lays down the following
yardsticks in the computation of the final amount
Additional Requirement: in case of judgment of liability:
involving a monetary award, employer (appellant)
may perfect the appeal of the LA’s decision only 1. Employees who have been re – employed
upon the posting of a cash or surety bond issued without loss of seniority rights shall be paid
by a reputable bonding company duly accredited backwages but only up to actual reinstatement;
by the NLRC in the amount equivalent to the 2. Employees who have been re – employed as
monetary award in the judgment appealed from. new hires shall be restored their seniority and
other preferential rights. However, their
Q: What is the effect of self-executing order of backwages shall be computed only to date of
reinstatement on back wages? actual re- hiring;
3. Employees who shall have reached compulsory
A: The law intends the award of backwages and age of retirement shall receive backwages up to
similar benefits to accumulate past the date of the their retirement only. The same is true as regards
Labor Arbiter’s decision until the dismissed the heirs of those who have passed away;
employee is actually reinstated. (Siemens 4. Employees who have not been reemployed plus
Philippines v. Domingo, G.R. No. 150488, 2008) those who have executed quitclaims and received
separation pay of financial assistance shall be
However, if reinstatement is no longer possible, reinstated without loss of seniority rights and paid
backwages shall be computed from the time of full backwages, after deduction of whatever
illegal dismissal until the date the decision amounts already received; and
becomes final. (Javellana v. Belen, G.R. No. 5. Employees who had obtained substantially
181913 and 182158, 2010) equivalent or even more lucrative employment
elsewhere in 1998 or thereafter are deemed to
Note: If there was implementation of have severed their employment with their previous
reinstatement pending appeal, either through employer, and shall be entitled to full backwages
actual or payroll reinstatement, and the employee from the date of their retrenchment only up to the
received his/her salary for the period of such date they found gainful employment elsewhere.
reinstatement, the said amount received shall be (FASAP v. PAL, G.R. No. 172013, 2009)
deducted from the total amount of backwages due
the employee, assuming the final decision of the Q: What are the requisites for perfection of
case awarded backwages to the employee. appeal?
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Q: What is the procedure for the perfection of Q: What are the McBurnie v. Ganzon
appeal? Guidelines in Reduction of Appeal Bond?
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NOTE: 10% Appeal Bond is Provisional Self-executing with no need for a writ of execution
– only applicable to order issued by Labor Arbiter.
The 10% requirement pertains to the reasonable
amount which the NLRC would accept as the Writ of execution required when reinstatement is
minimum of the bond that should accompany the ordered by NLRC on appeal, or subsequently by
motion to reduce bond in order to suspend the the court of appeals or Supreme Court, as the
period to perfect an appeal under the NLRC rules. case may be.
The 10% is based on the judgment award and
should in no case be construed as the minimum Either admitted back to work under the same
amount of bond to be posted in order to perfect terms and conditions prevailing prior to his
appeal. There is no room for a different dismissal or separation or merely reinstated in the
interpretation when it was made clear that the payroll (at the option of the employer, i.e.
percentage of bond set is provisional. (Sara Lee v. confidential employee, but the choice must be
Macatlang, G.R. No. 180147, 2015) communicated to the employee by the employer)
Posting of a bond shall not stay the execution of
Enforcement reinstatement.
Any law enforcement agency may be deputized by The unjustified refusal of the employer to reinstate
the DOLE Secretary or the NLRC. an illegally dismissed employee entitles the
employee to payment of his salaries.
Issuance of writ of execution on a judgment within
5 years from date it becomes final and executory Reinstatement Pending Appeal (Art. 229) vs.
motu proprio or in motion of any interested party. Order of Reinstatement (Art. 294)
ART. 229 ART.294
Order of reinstatement The order of
by the LA is reinstatement
immediately executory presupposes the
pending appeal. award thereof is
pursuant to a final and
It is similar to a return- executory judgment,
to-work order. and not while the case
for illegal dismissal is
pending on appeal.
Issued by the Labor Issued by the NLRC,
Arbiter CA, or SC
Generally, no need for Requires the issuance
the issuance of a writ of a writ of execution.
of execution.
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If despite several writs of execution, the employer 1. Rule 65, Rules of Court
still refuses to reinstate the employee, the remedy
is not the grant of additional backwages to serve Q: Are decisions of a VA appealable to the CA?
as damages but to file a motion to cite the
employer for contempt. (Christian Literature A: Yes, via a petition for review under Rule 43. A
Crusade v. NLRC, G.R. No. 79106, 1989) petition for certiorari is the wrong remedy, which
may result in outright dismissal.
LA upheld the validity of the dismissal; NLRC
reversed. CA held that dismissal was valid. Held: Q: What are the only instances when a petition
The employer is liable to pay for the salary of the for certiorari under Rule 65 be brought to the
employee previously ordered reinstated by the Court of Appeals?
NLRC although later on, the dismissal of the
employee was held not to be illegal. (Roquero v. A: If the labor case was decided by:
PAL, G.R. No. 152329, 2003) 1. the DOLE Secretary, in his appellate
jurisdiction;
An order for reinstatement entitles an employee to 2. the Commission (NLRC); and
receive his accrued backwages from the moment 3. the Director of the Bureau of Labor Relations
the reinstatement order was issued up to the date (BLR) in cases decided by him in his appellate
when the same was reversed by a higher court jurisdiction (as distinguished from those he
without fear of refunding what he had received. decides in his original jurisdiction which are
(Garcia v. Philippine Airlines, Inc., G.R. appealable to the DOLE Secretary).
No.164856, 2009)
The remedy of ordinary appeal to the Court of
B. NATIONAL LABOR RELATIONS Appeals is not available from their decisions,
COMMISSION (NLRC) orders or awards. The reason for this rule is that
their decisions, orders or awards are final and
Q: Who has the jurisdiction to hear cases over executory and therefore unappealable. (Chan
company-owned property, the Labor Arbiter or Robles, Labor Code)
the NLRC?
Q: What is the requisite before filing a petition
A: Both, although the Labor Arbiter has primary for review under Rule 65?
jurisdiction. In Yupangco Cotton vs. CA (G.R.
126322, 16 January 16, 2002), the Court held a A: A Motion for Reconsideration must have been
third party whose property has been levied upon filed before the DOLE Secretary, NLRC, or BLR
by a sheriff to enforce a decision against a Director, as the case may be. This is mandatory
judgment debtor is afforded with several and jurisdictional.
alternative remedies to protect its interests. The
third party may avail himself of alternative A motion for reconsideration should be filed even
remedies cumulatively, and one will not preclude though it is not required or even prohibited by the
the third party from availing himself of the other concerned government office. This was the rule
alternative remedies in the event he failed in the enunciated in the 2014 case of Philtranco Service
remedy first availed of. Thus, a third party may Enterprises, Inc. v. PWU-AGLO (G.R. No. 180962,
avail himself of the following alternative remedies: 2014). Thus, while a government office may
(a) File a third party claim with the sheriff of the prohibit altogether the filing of a motion for
Labor Arbiter, and (b) If the third party claim is reconsideration with respect to its decisions or
denied, the third party may appeal the denial to the orders, the fact remains that certiorari inherently
NLRC. Even if a third party claim was denied, a requires the filing of a motion for reconsideration
third party may still file a proper action with a which is the tangible representation of the
competent court to recover ownership of the opportunity given to the office to correct itself.
property illegally seized by the sheriff.
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Simply put, regardless of the proscription against Hence, even if there is no claim and proof,
the filing of a motion for reconsideration, the same attorney’s fees not more than 10% of the amount
may be filed on the assumption that rectification of entitled may be awarded. The court has also a
the decision or order must be obtained and before liberty of decreasing it if the questions involved in
a petition for certiorari may be instituted. the litigation are neither novel nor difficult. (D.M.
Consunji v. NLRC, G.R. No. 71459, 1986).
Q: May the amount of an appeal bond be
reduced despite it being fixed by law? D. SUPREME COURT
A: While it has been settled that the posting of a 1. Rule 45, Rules of Court
cash or surety bond is indispensable to the
perfection of an appeal in cases involving E. BUREAU OF LABOR RELATIONS
monetary awards from the decision of the LA, the
Rules of Procedure of the NLRC nonetheless 1. Jurisdiction (Original And Appellate)
allows the reduction of the bond upon a showing
of (a) the existence of a meritorious ground for Q: What is the jurisdiction of the BLR?
reduction, and (b) the posting of a bond in a
reasonable amount in relation to the monetary BUREAU OF LABOR RELATIONS (BLR)
award. (Philippine Touristers, Inc. and/or ORIGINAL JURISDICTION
Alejandro R. Yague, Jr. v. Mas Transit Workers 1. Union registration of federations,
Union-Anglo-Kmu and its members, G.R. No. national unions, or workers’
201237, 2014). associations operating in more than
one region
Q: Is the simultaneous filing of motion to 2. Change of name or merger or
reduce bond and posting of the reduced consolidation of federation or national 1
amount substantial compliance with Article union
223 of the Labor Code? 3. Direct or indirect contempt for acts
committed against BLR Director
A: Yes. While the bond requirement on appeals 4. Petition for certification election by an
involving a monetary award has been relaxed in employer who was requested to
certain cases, this can only be done where there bargain collectively
was substantial compliance with the rules or where 5. Petitions for conduct of election of
the appellants, at the very least, exhibited union officers of federations, national or
willingness to pay by posting a partial bond. industry unions and trade union centers
(Magdala Multipurpose v. KMLMS, G.R. 191138- 6. Requests or complaint for accounts
39, 2011). examination of federations or national
unions and trade union centers
Q: May the Labor Arbiter, NLRC or Court of pursuant to Art. 289
Appeals validly award attorney’s fees in favor 7. Inter/intra-union and other labor
of a complainant even if not claimed or proven relations disputes involving federations,
in the proceedings? national or industry unions, trade union
centers and their chartered locals,
A: Yes. The provision on attorney’s fees in Article affiliates or member organixations,
111 envisions a situation where there is a judicial except those arising from
or administrative proceeding for recovery of implementation and interpretation of
wages. Upon the termination of the proceedings, CBA
the law allows a deduction for attorney’s fees of 8. Complaint or petition alleging
10% from the total amount due to the winning mishandling, misappropriation or non-
party. (Vengco v. Trajano, G.R. 74453, 1989). accounting of funds of federations or
national unions and trade union
centers, in violation of Art. 250 (treated
as an intra-union dispute)
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In the case of (Insular Hotel Employees Union- Q: What are the requisites for the valid
NFL v. Waterfront Insular Hotel Davor, G.R. No. exercise of jurisdiction by the DOLE Regional
174040-41), the Court ruled that the NCMB has no Director?
jurisdiction to entertain any notice filed by the
federation in behalf of individual union members of A: The following requisites must all concur, to wit:
its local. 1. The claim is presented by an employee or
domestic worker or kasambahay;
G. DOLE REGIONAL DIRECTORS 2. The claimant, no longer being employed,
does not seek reinstatement; and
1. Recovery of Adjudicatory Power 3. The aggregate money claim of the
employee or domestic worker or
Requisites for Regional Director to Decide kasambahay does not exceed P5,000.00.
Small Money Claims (Labor Code, Art. 129)
1. Claim is presented by an employee, or a
person employed in domestic or household
service, or employer;
2. The claim arises from an EER;
3. The claimant does not seek reinstatement;
and
4. The aggregate money claim of each claimant
does not exceed PhP 5,000
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Q: What are the visitorial and enforcement A: “No inferior court or entity shall issue temporary
powers of the DOLE Secretary? or permanent injunction or restraining order or
otherwise assume jurisdiction over any case
A: The Secretary of Labor and Employment or his involving the enforcement orders issued in
duly authorized representatives have the power accordance with this Article.” (Labor Code, Art.
to: 128)
1. Access to employer’s records and
premises at any time of the day or night Q: Under what conditions may the Secretary of
whenever work is being undertaken therein, Labor or his duly authorized representative
and inquire into the financial activities of legitimate
2. the right to copy therefrom, labor organizations?
3. to question any employee and investigate
matters which may be (1) necessary to A: The Secretary of Labor and Employment or his
determine violations or (2) which may aid in duly authorized representative is hereby
the enforcement of labor laws or rules. empowered to inquire into the financial activities of
4. to issue compliance orders to give effect to legitimate labor organizations upon the filing of a
the labor standards complaint under oath and duly supported by the
5. issue writs of execution, except in cases written consent of at least 20% of the total
where the employer (1) contests the findings membership of the labor organization concerned
and (2) raises issues supported by and to examine their books of accounts and other
documentary proofs which were not records to determine compliance or non-
considered in the course of inspection. compliance with the law and to prosecute any
6. (limited to the Secretary) order stoppage of violations of the law and the union constitution and
work due to non-compliance with the law or by-laws:
IRR that poses grave and imminent danger to
the health and safety of workers in the Provided, That such inquiry or examination shall
workplace. (a hearing within 24 hours shall not be conducted during the 60-day freedom
determine if the suspension should be lifted period nor within the 30 days immediately
or not.) In case the violation is attributable to preceding the date of election of union officials.
the employer, he shall pay the employees’ (Labor Code, Art. 289)
salaries during suspension.
7. (limited to the Secretary) by appropriate Q: Does the SOLE generally have jurisdiction
regulations, require employers to keep and over appeals?
maintain such employment records as
may be necessary in aid of his visitorial and A: No. In The Heritage Hotel vs. National Union of
enforcement powers. (Labor Code, Art. 128) Workers (G.R. 178296, 2011), “jurisdiction
remained with the BLR despite the BLR Director's
inhibition. When the DOLE Secretary resolved the
appeal, she merely stepped into the shoes of the
BLR Director and performed a function that the
latter could not himself perform. She did so
pursuant to her power of supervision and control
over the BLR.”
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Q: Does the SOLE have the power to give violations of the law and the union constitution and
arbitral awards in the exercise of his authority by-laws:
to assume jurisdiction over labor dispute?
Provided, That such inquiry or examination shall
A: Yes. The arbitral award given by the Secretary not be conducted during the 60-day freedom
of Labor can be considered as an approximation period nor within the 30 days immediately
of a collective bargaining agreement. While the preceding the date of election of union officials.
award cannot per se be categorized as an (Labor Code, Art. 289)
agreement between the parties (because of the
Secretary's interference), it still has the force and NOTE: Secretary of Labor generally has NO
effect of a valid contract obligation between the jurisdiction over appeals
parties, as is stated in (Cirtek Employees vs. Cirtek In The Heritage Hotel vs. National Union of
Electronics, G.R. 190515, 2011). Workers (G.R. 178296, 2011), the Supreme Court
ruled that jurisdiction remained with the BLR
Q: May the Secretary of Labor and despite the BLR Director's inhibition.
Employment issue search and arrest warrants
when it initiates actions against alleged illegal “When the DOLE Secretary resolved the appeal,
recruiters? she merely stepped into the shoes of the BLR
Director and performed a function that the latter
A: No, the Secretary of DOLE, not being a judge, could not himself perform.”
cannot issue search or arrest warrants. Under Art.
III, sec. 2 of the 1987 Constitution, it is only the Q: What power does the SOLE have with
judge, and no other, who may issue warrants of regard to arbitral awards?
arrest and search. (Salazar vs. Achacoso, G.R.
81510, 1990) A: The SOLE has the power to give arbitral awards
in the exercise of his authority to assume
2. Power to suspend effects of termination jurisdiction over labor dispute.
NOTE: The Secretary of Labor and Employment The arbitral award given by the Secretary of Labor
may suspend the effects of the termination can be considered as an approximation of a
pending resolution of the dispute in the event of a collective bargaining agreement. While the award
prima facie finding by the appropriate official of the cannot per se be categorized as an agreement
Department of Labor and Employment before between the parties (because of the Secretary's
whom such dispute is pending that the termination interference), it still has the force and effect of a
may cause a serious labor dispute or is in valid contract obligation between the parties, as is
implementation of a mass lay-off. (Labor Code, stated in (Cirtek Employees vs. Cirtek Electronics,
Art. 292[b]) G.R. No. 190515, 2011).
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Q: PD 1508 requires the submission of Q: What is the prescriptive period for filing an
disputes before the Barangay Lupong action for illegal dismissal?
Tagapamayapa prior to the filing of cases with
the courts or other government bodies. May A: An action for reinstatement by reason of illegal
his decree be used to defeat a labor case filed dismissal must be brought within four (4) years
directly with the Labor Arbiter? from the time of dismissal pursuant to Art. 1146 of
the New Civil Code. (Azcor Manufacturing v.
A: Labor disputes are the exception to PD 1508. NLRC, February 11, 1999)
Under Art. 226 of the Labor Code, motions to
dismiss before the Labor Arbiter are only allowed Q: May the union president sign the
on grounds of lack of jurisdiction, improper venue certification and verification against forum
and bar by prior judgment or prescription. Hence, shopping on behalf of a union?
failure to resort to barangay conciliation is not a
valid ground to defeat the labor case. A: Yes. The union president is in a position to
verify the truthfulness and correctness of the
J. PRESCRIPTION OF ACTIONS allegations in the petition. Other allowable officers
include –
Q: What are the various prescriptive periods 1. the Chairperson of the Board of Directors
for actions relating to labor disputes? 2. the President of a corporation
3. the GM or acting GM
A: General Rule: 3 years from the time the cause 4. Personnel officer
of action accrued. 5. Employment specialist in a labor case
(PSTMSDWO v. PNCC Skyway
Exception: ULP cases prescribe within 1 year Corporation, G.R. 171231, 2010).
from accrual of such unfair labor practice. (Labor
Code, Arts. 290-291)
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TABLE OF ENUMERATIONS
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