MARQUEZ QUESTIONS DURING ORALS: FINALS

COMPILED AND EDITED BY: ARJUN D. GERMONES LLB 2

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ON THIS NOTE ON ACCOUNT THAT MINIMAL INACCURACIES
MAY EXIST. GOODLUCK AND HAPPY READING!
***(this mark appears on some of the questions just to note
that Marquez emphasized the question during orals & might
be a possible question in the exam)
THE 2011 NLRC RULES OF PROCEDURE: 30% IN THE FINAL
EXAMINATION
EX: I AM AN EMPLOYEEE OF USC. I WAS NOT PAID MY 13TH
MONTH PAY AMOUNTING TO 15K, I WANT TO SUE USC, WHO
HAS A JURISDICTION OF MY CASE? ANS: LABOR ARBITER.
WHERE IS THE VENUE OF MY COMPLAINT? ANS: REGIONAL
ARBITRATION BRANCH OF NLRC IN CEBU CITY,
BECAUSE YOUR WORKPLACE IS IN CEBU CITY.
REMEMBER: VENUE IS DEFINED BY RULES OF PROCEDURE
OF NLRC NOT BY LAW WHILE JURISDICTION IS DEFINED BY
THE LABOR CODE/LAW.
WHAT ABOUT VENUE OF CLAIMS OF OVERSEAS WORKERS?
ANS: AT THE CHOICE OF THE COMPLAINANT EITHER AT
THE PLACE WHERE HE RESIDES OR THE PRINCIPAL
OFFICE OF THE AGENCY.
***IF YOU FILE A COMPLAINT FOR VIOLATION OF LABOR
STANDARDS, DO YOU NEED TO PAY A DOCKET FEE? ANS:
NO, IT IS PROHIBITED UNDER THE LABOR CODE.
WHAT IS YOUR BASIS? ART 277(D) OF LABOR CODE: NO
DOCKET FEE SHALL BE ASSESSED IN LABOR STANDARD
DISPUTES. IN ALL OTHER DISPUTES, DOCKET FEES MAY BE
ASSESSED AGAINST THE FILING PARTY, PROVIDED THAT IN
BARGAINING DEADLOCK, SUCH FEES SHALL BE SHARED
EQUALLY BY THE NEGOTIATING PARTIES.
WHAT IS THE PURPOSE OF A SUMMON? ANS: TO ACQUIRE
JURISDICTION OVER THE PERSON OF THE
RESPONDENT.
HOW DOES THE COURT ACQUIRE JURISDICTION OVER THE
PETITIONER/COMPLAINANT? ANS: PETITIONER HAS
ALREADY DEEMED
SUBMITTED HIMSELF TO THE JURISDICTION OF THE LABOR
ARBITER BY FILING A COMPLAINT.
HOW MANY INITIAL CONFERENCES ARE AUTHORIZED UNDER
THE RULES OF PROCEDURE? ANS: TWO (2) SETTINGS
WHAT IS THE PURPOSE OF CONDUCTING AN INITIAL
HEARING / MANDATORY CONFERENCE?
The Labor Arbiter shall personally preside over & take full
control of the proceedings & may be assisted by the Labor
Arbitration Associate. ARA - DAT
1.
To amicably settle the case upon a fair compromise;
2.
To determine real parties in interest;
3.
To determine the necessity of amending the
complaint & including all causes of action;

4.
5.
6.

To define & simplify the issues in the case;

To enter into admissions or stipulations of facts
To thresh out all other preliminary matters

WHAT LAW AUTHORIZES COMPROMISE AGREEMENT? ANS:

NEW CIVIL CODE ART 2028. REMEMBER: NOT LC
DOES THE COMPROMISE AGREEMENT REQUIRE APPROVAL
FROM THE LABOR ARBITER? ANS: YES.
WHAT IS THE EFFECT OF A COMPROMISE AGREEMENT? ANS:
ONCE APPROVED BY THE LABOR ARBITER, IT IS
CALLED A JUDGMENT BASED ON COMPROMISE & IT
BECOMES FINAL & EXECUTORY.
IN CASE OF BREACH OF COMPROMISE AGREEMENT WHAT IS
THE REMEDY BY THE AGGRIEVED PARTY? ANS: FILE A
MOTION TO ENFORCE THE COMPROMISE AGREEMENT.
WHAT ARE THE GROUNDS TO DISMISS A COMPLAINT? ANS:
Lack of jurisdiction over the subject matter, improper
venue, res judicata, prescription & forum shopping.
(LIR-PF)
WHAT IS FORUM SHOPPING? ANS:INITIATING
COMPLAINTS IN DIFFERENT TRIBUNALS INVOKING
THE SAME CAUSE OF ACTION, SUBJECT MATTER &
ISSUES IN THE HOPE ACQUIRING A FAVORABLE
DECISION..
WHAT IS A CERTIFICATE OF NON FORUM SHOPPING? ANS:
The Certificate of Non-Forum Shopping as provided by
Supreme Court Circular 04-94 is mandatory and should
accompany pleadings filed before the NLRC. Since the
NLRC is a quasi judicial agency hence initiatory
pleading filed before it should be accompanied by a
certificate of non-forum shopping. Such certification
should be signed not by the lawyer but by the party.
Except if you are the in-house lawyer of such company.
WHAT IS RES JUDICATA? ANS: BARRED BY PRIOR
JUDGMENT.
IF THE COMPLAINT IS DISMISSED BY THE LABOR ARBITER,
CAN YOU FILE A MOTION FOR RECONSIDERATION? ANS: I
CANNOT FILE A MOTION FOR RECONSIDERATION OR
EVEN MAKE AN APPEAL BECCAUSE IT IS PROHIBITED.
HOW ABOUT A MOTION FOR POSTPONEMENT? ANS: IT IS
ALLOWED BUT MUST BE FILED ATLEAST 3 DAYS
BEFORE MEDIATION. WHY? BEC LABOR ARBITER
EXPECTS THE PARTIES TO BE PRESENT ON THE
PRESCRIBED SCHEDULE.
WHAT IS THE EFFECT OF NON APPEARANCE OF
COMPLAINANT IN TWO (2) SETTINGS OF INITIAL HEARING?
ANS: IT WILL RESULT TO DISMISSAL OF THE
COMPLAINT BY THE LABOR ARBITER.
CAN THE COMPLAINANT FILE A MOTION FOR
RECONSIDERATION IF THE COMPLAINT WAS DISMISSED DUE
TO NON APPEARANCE? ANS: NO. IT IS PROHIBITED.
WHAT IS THE REMEDY? ANS: FILE A MOTION TO REOPEN/REVIVE THE CASE ANY TIME.
WHAT IS THE PRESCRIPTIVE PERIOD FOR MONEY CLAIMS?
ANS: THREE (3) YRS FROM THE TIME THE CAUSE OF
ACTION ACCRUES.
IF THE RESPONDENT FAILED TO APPEAR IN TWO (2)
SETTINGS, WHAT IS THE EFFECT OF NON APPEARANCE?

ANS: IT IS DEEMED A WAIVER OF HIS RIGHT TO FILE A

POSITION PAPER.

date agreed upon & during the schedule set before the
Labor Artbiter.

WHAT IS THE REMEDY OF RESPONDENT? ANS: HE CAN FILE

A MOTION TO SET ASIDE THE ORDER OF WAIVER AND
MUST BE MADE UNDER OATH. A PARTY DECLARED TO
HAVE WAIVED HIS / HER RIGHT TO FILE A POSITION
PAPER MAY AT ANYTIME AFTER NOTICE THEREOF AND
BEFORE THE CASE IS SUBMITTED FOR DECISION FILE A
MOTION UNDER OATH TO SET ASIDE THE ORDER OF
WAIVER UPON PROPER SHOWING THAT HIS/HER
FAILURE TO APPEAR WAS DUE TO JUSTIFIABLE AND
MERITORIOUS GROUNDS.

WHAT ARE THE CONTENTS OF A REPLY POSITION PAPER?

ANS: IT SHALL NOT ALLEGE OR PROVE FACTS AND ANY
CAUSES OF ACTION NOT INCLUDED IN THE ORIGINAL
COMPLAINT OR PETITION OR RAISED IN THE
POSITION PAPER.

***WHO MUST PRESIDE THE INITIAL HEARING? ANS: THE

LABOR ARBITER.

IF IN CLARIFICATORY HEARING ONE OF THE PARTIES DID

NOT APPEAR, WHAT IS THE EFFECT? ANS: PROCEEDINGS
MAY BE CONDUCTED EX PARTE.

CAN HE DELEGATE IT? NO. THE LABOR ARBITER MUST

PERSONALLY PRESIDE.
WHEN CAN A COMPLAINANT AMEND HIS COMPLAINT AS A
MATTER OF RIGHT? ANS: BEFORE THE COMPLAINANT
FILES HIS POSITION PAPER. THIS CAN BE DONE EVEN
WITHOUT PERMISSION FROM THE LABOR ARBITER.

AFTER FILING OF THE POSITION PAPER DOES THE LABOR

ARBITER NEED TO CONDUCT FORMAL HEARING OR JUST
DECIDE THE CASE? ANS: HE MAY MOTU PROPIO DECIDE
THE CASE IN HIS OWN DISCRETION.

IN AN ADVERSE DECISION FROM THE LABOR ARBITER, DOES

THE AGGRIEVED PARTY HAVE A REMEDY? YES. APPEAL TO
NLRC.
WHEN CAN YOU MAKE AN APPEAL TO NLRC? ANS: WITHIN
10 CALENDAR DAYS

WHAT IS THE PERIOD TO FILE A POSITION PAPER? ANS:

TEN (10) CALENDAR DAYS FROM TERMINATION OF
CONCILIATION-MEDIATION HEARING.

FROM RECEIPT OF THE ORDER OF LABOR ARBITER. IF THE

ORDER IS FROM THE REGIONAL DIRECTOR I CAN APPEAL
WITHIN 5 CALENDAR DAYS.

WHAT ARE THE CONTENTS OF A POSITION PAPER?

Contents of position paper:
~
SECTION 4 RULE 7, Civil Procedure, as amended by
Administrative Matter 00-2-10, May 1, 2000 provides that the
affiant has read the pleading and that the allegations therein
are true and correct according to his personal knowledge and
based on authentic records.
~
Verification is important because the case may be
decided based on position papers alone without need of
conducting formal hearings. Violation of this requirement
would either mean that such pleading would be expunged
from the records and the party concerned subjected to
sanctions.
~ Position papers should also be accompanied by affidavit of
the witnesses which shall take place of the latters testimony.
(RULE V SECTION 3)

What are the other requirements to perfect appeal?

1.
Proof of payment of appeal fee.
2.
under oath
3.
Filed on time
4.
File a memorandum of appeal containing:
Grounds relied upon and arguments in support
thereof.
Relief prayed for.
Statement of date when decision was received.
Proof of service to other party.

Purpose of affidavit
~
To take the place of the witnesses direct
testimony.
~
Support allegations in the position paper.
If the LA decides to conduct hearing, there would be no need
of direct examination or Q&A because the position paper
would take the place of the direct testimony of the witness.
The only requirement would be for the affiant to identify the
affidavit and to offer the testimony of the witness. And
thereupon, proceed to the cross-examination of such witness.
DOES THE POSITION PAPER NEED TO CONTAIN A
CERTIFICATE OF NON FORUM SHOPPING? NO.
DOES IT NEED TO BE VERIFIED? ANS: YES. Verification is
important because the case may be decided based on
position papers alone without need of conducting
formal hearings. Violation of this requirement would
either mean that such pleading would be expunged
from the records and the party concerned subjected to
sanctions.
WHEN DO YOU SUBMIT YOUR REPLY POSITION PAPER? ANS:
Within 10 CALENDAR days from receipt of position
paper of the adverse party a reply may be filed on a

Appeal fee is jurisdictional.

~ Marquez comments that docket fee and appeal fee are not
the same!
HOW IS THE APPEAL PERFECTED IN MONETARY AWARD?
ANS: BY POSTING OF A CASH OR SURETY BOND
EQUIVALENT TO THE AMOUNT APPEALED FROM. THE
CASH OR SURETY BOND EXCLUDES DAMAGES &
ATTORNEYS FEES.
DO YOU NEED TO PAY AN APPEAL FEE? ANS: YES. IT IS
NOT THE SAME AS DOCKET FEE.
IS THERE A NEED FOR A MEMORANDUM? YES. STATING
3PS. A MERE NOTICE OF APPEAL IS NOT SUFFICIENT.
REQUISITES TO PERFECT APPEAL
1. The appeal shall be: WV-MCA
2. Filed within the reglementary period provided in section 1
of this Rule;
3. Verified by the appellant himself
4. in the form of a memorandum of appeal which: GRD
1. State the grounds relied upon & the arguments in
support thereof;
2. The relief prayed for
3. Date of the appellant appealed decision, award or
order;
5. in three legibly typewritten & printed copies;
6. Accompanied by: 3PS
1. Proof of payment of the required appeal fee & legal
research fee
2. Posting of a cash or surety bond;

3.

Proof of service upon the other parties

DOES A MEMORANDUM NEED TO HAVE A CERTIFICATE

AGAINST FORUM SHOPPING? YES.
DOES A MEMORANDUM HAVE TO BE TAKEN UNDER OATH?
YES.
SHOULD A COPY OF THE APPEAL BE SERVED TO THE
ADVERSE PARTY? YES.
IF THE 10TH DAY TO FILE AN APPEAL FALLS ON A HOLIDAY
OR WEEKEND, WHAT IS THE REMEDY? ANS: IT CAN BE
FILED THE NEXT WORKING DAY BECAUSE THE LAW
SPEAKS OF 10 CALENDAR DAYS.
WHAT IS MEANT BY 10 CALENDAR DAYS? ANS: 10
CALENDAR DAYS INCLUDES SAT, SUN & HOLIDAY.
***IF YOU FILE AN APPEAL BEYOND THE 10 DAY PERIOD,
WHAT IS THE EFFECT ON THE DECISION OF THE LABOR
ARBITER? ANS: IT BECOMES FINAL & EXECUTORY &
CANNOT BE REVERSED BECAUSE OF THE DOCTRINE ON
IMMUTABILITY OF JUDGMENT.
HOW MUCH IS THE APPEAL FEE NOW? ANS: P500.00.
~
Is it possible to file a Motion to Reduce Bond?
~
Yes, see Rule 6, Section 6. However, you must file it
within the reglementary period to appeal and the act of filing
does not stop the running of the period to appeal. Note that
the appeal is perfected once a bond is filed.
~
Once the bond has been reduced, the employer
cannot file a Motion for Reconsideration as this would amount
to an extension of the period to perfect an appeal.
~
If the NLRC has the authority to entertain a motion
to reduce bond, then it can also grant extension to file bond.
We, therefore, rule that for petitioner's failure to post the
required bond within the reglementary period after it has
been ordered reduced, the NLRC committed no grave abuse
of discretion in dismissing petitioner's appeal.
The NLRC may grant or dismiss the appeal. Can the aggrieved
party file a motion for reconsideration? YES. It must be
filed within 10 calendar days from receipt of the
dismissal of the appeal.
What if the Motion for Reconsideration is denied? The
decision will become final and executory.
If there is no Motion for Reconsideration filed before the
NLRC, the decision becomes final and executory and therefore
there is no way by which another government body can
review the case; the only remedy is a motion for
reconsideration.
If the decision of the NLRC becomes final and executory due
to the denial of the Motion for Reconsideration, is there an
appeal of the decision of the NLRC? NO. There is no appeal
from the decision of the NLRC but there is still a
remedy under RULE 65 of the Rules of Court on the
ground of grave abuse of discretion. The ground of
prima facie evidence of abuse of discretion is a ground
for appealing the decision of the LA to the NLRC.
Will the filing of a Petition for Certiorari stay the decision of
the NLRC? NO. However, to enjoin enforcement of the
decision of the NLRC which is final and executory,
under Rule 65, you have to apply for the issuance of a
TRO and eventually a writ of injunction. There is no
way of preventing the decision of the NLRC from

becoming final and executory except by the filing of

MOTION FOR RECONSIDERATION within the prescribed
period of 10 days. Since the motion for reconsideration
has been denied, the decision will have to become final
and executory and subject to execution. There is no
more appeal from that decision but there is a Special
Civil Action [Certiorari] on the ground of grave abuse of
discretion. To prevent execution of the decision, the
aggrieved party can apply for the issuance of a
Temporary Restraining Order.
If you apply for a TRO, for how many days will it be valid? 60
days. If issued by RTC, 20 days.
Can it be extended? NO.
~ Note that a Special Civil Action is an original action and the
RTC, CA and SC have concurrent and original jurisdiction.
However, always follow the principle of HIERARCHY OF
COURTS. At this stage where the NLRC decision is the subject
of the certiorari, the RTC does not have jurisdiction because
the RTC is of the same level as the NLRC and the LA is of the
same level as the lower courts.
From the CA, is there still a Motion For Reconsideration? YES.
To be filed within 15 days, which the CA may either
grant or deny.
From the CA, is there a remedy? YES. Appeal by Certiorari
under Rules 45 of the Rules of Court to be filed within
15 days from receipt of the decision of the CA on the
ground of pure questions of law. If it involves the
application of the rules or the law, it is a question of
law.
~ The SC is not a trier of facts but factual findings of the SC
may be reviewed in exceptional cases.
Will the Appeal by Certiorari under Rule 45 prevent the
decision of the CA from becoming final and executory? It will
become final and executory. But if you file an appeal by
certiorari under Rule 45 within the prescribed period,
the decision of the CA will be stayed.
NLRC: COMPOSITION (RA 9347 AMENDING ART 212 TO 216,
RATIONALIZING THE COMPOSITION & FUNCTION OF THE
NLRC EFFECTIVE AUG. 26, 2006
The Commission shall be composed of a Chairman & 23
Commissioners. COMMISSION EN BANC:
The Commission shall sit en banc only for purposes of:
1. Promulgating rules & regulations governing the hearing &
disposition of cases before its Divisions & Regional
Arbitration Branches and
2. Formulation of policies affecting its administration &
operations.
It may, on temporary or emergency basis, allow cases within
the jurisdiction of any division to be heard by any other
division whose docket allows the additional workload and such
transfer will not expose litigants unnecessary additional
expense.
The Chairman shall call the Commission to an en banc session
at least twice a year preferably on the 1st week of June & 1st
week of December, to deliberate & decide on any matter
before it. However, a majority of all the members of the
Commission may call a Special en banc session to discuss &
decide on urgent & important matters which need immediate
action.
DIVISIONS:

The Commission shall exercise its adjudicatory and all other

powers, functions & duties through its 8 division. Each
Division shall consist of one member from the public sector
who shall act as the Presiding Commissioner and one member
each from the worker & employees sectors, respectively.

A GIVEN PERIOD. COULD BE EITHER A JOB

CONTRACTING OR LABOR ONLY CONTRACTING.

Of the 8 Divisions, the first, second, third, fourth, fifth & sixth
divisions shall have exclusive territorial jurisdiction over
appealed cases coming from Luzon; the seventh Division
appealed cases from the Visayas Region; and the eight
Division appealed cases from Mindanao including those from
ARMM.

WHAT LAW GOVERNS LABOR CONTRACTING? ANS: IT IS

GOVERNED BY LABOR CODE ART 106-109

The Chairman of the Commission may convene & preside over

the session of any Division to consider any case pending
before it and participate in its deliberations, if in his/her
judgement his/her presence therein will best serve the
interest of labor justice. He/ She shall not however participate
in the voting by the Division, except when he/she is acting as
presiding commissioner of the Division in the absence of the
regular Presiding Commissioner.
CHAIRMAN Shall preside over all sessions of the
Commission en banc. He is the Presiding Commissioner of the
First Division. In case of the effective absence or incapacity of
the Chairman, the Presiding Commissioner of the Second
Division shall be the Acting Chairman.
The Chairman, aided by the Executive Clerk of the
Commission shall have administrative supervision over the
Commission & its Regional Arbitration Branches and all its
personnel including the Executive Labor Arbiters & Labor
Arbiters.
FINALITY OF THE DECISIONS, ORDERS, RESOLUTIONS OF
NLRC
1. Except as provided in Sec 9 of Rule X, the decisions,
resolutions or orders of the Commission shall become final &
executory after 10 calendar days from receipt thereof by the
counsel or authorized representative or the parties if not
assisted by counsel or representative.
RULE X SEC 9: EFFECTS OF DEFIANCE The order or
resolution enjoining the performance of illegal acts shall be
immediately executory in accordance with the terms thereof.
In case of non-compliance, the Commission shall impose such
sanction and shall issue such orders as may be necessary to
implement the said order or resolution, including the
enlistment of law enforcement agencies having jurisdiction of
the area for the purpose of enforcing the same.
1. ENTRY OF JUDGMENT Upon the expiration of 10 calendar
days period, the decision, resolution or order shall be entered
in the book of entries of judgment.
In the absence of return cards, certifications from the post
office or the courier or other proofs of service to the parties,
the Executive Clerk or Deputy Executive Clerk shall consider
the decision, resolution or order as final & executor after
60calendar days from the date of mailing.
LABOR ARBITERS DECISION
In the resolution of cases on appeal, the Commission in the
exigency of the service shall be assisted by a Labor Arbiter
who may be directed to study, review, hear & receive
evidence & submit reports thereon.
CONTRACTING ARRANGEMENT: 20% IN THE FINAL EXAM
WHAT IS LABOR CONTRACTING? ANS: COMPLETION OR
PERFORMANCE OF A JOB, WORK, OR SERVICE WITHIN

***WHERE IS IT FOUND? ANS: IT IS FOUND IN THE

IMPLEMENTING RULES & REGULATIONS OF NLRC.

NOTE: THE DEPARTMENT ORDER NO 14 APPLIES TO

SECURITY GUARDS AND CONSISTENT W/ DEPARTMENT
ORDER NO O18-0 BUT THE LATTER DID NOT SUPERSEDE DO
14 INSOFAR AS SECURITY GUARDS ARE CONCERNED.
WHAT IS A TRILATERAL RELATIONSHIP? ANS: In legitimate
contracting, there exists a trilateral relationship under
which there is a contract for a specific job, work or
service between the principal and the contractor or
subcontractor, and a contract of employment between
the contractor or subcontractor and its workers.

The principal, which decides to farm out a job or service

to a subcontractor

The subcontractor, which has the capacity to

independently undertake the performance of the job or
service; and

The employees engaged by the subcontractor to

accomplish the job or service
IS THERE A CONTRACTUAL RELATIONSHIP BETWEEN A
PRINCIPAL AND SUBCONTRACTOR? YES.
REMEMBER: IN CONTRACTING ARRANGEMENT- THE SUBJECT
MATTER IS PERFORMANCE OF WORK, JOB OR SERVICE. NOT
JUST ANY SERVICE BUT A SPECIFIC SERVICE, JOB OR WORK.
EXAMPLES OF SPECIFIC JOB, WORK/SERVICE: JANITORS,
SECURITY GUARDS.
***EXAMPLE: IF USC HIRED SERVICES OF A SECURITY
AGENCY TO PROVIDE SECURITY GUARDS FOR THE SCHOOL,
IS THAT A CONTRACTING ARRANGEMENT? YES. BECAUSE
USC DECIDED NOT TO HIRE SECURITY GUARDS
DIRECTLY, INSTEAD, THEY HIRED THE SERVICES OF AN
AGENCY TO PROVIDE SECURITY GUARDS FOR THE
SCHOOL.
WHY IS IT THAT EMPLOYERS ENGAGE IN CONTRACTING
ARRANGEMENT RATHER THAN DIRECT HIRING? ANS:
BECAUSE OF THE EXPERTISE & EXPERIENCE OF THE
AGENCIES & ALSO FOR REASONS OF ECONOMY
(REDUCING COST FOR TRAININGS ETC).
IS A CONTRACTING ARRANGEMENT THE SAME AS
RECRUITMENT & PLACEMENT? ANS: NO. THE RULES IN
CONTRACTING ARRANGEMENT EXCLUDE RECRUITMENT
& PLACEMENT.
WHO MAY APPLY/REGISTER AS A CONTRACTOR? ANS: ANY
PERSON (WHETHER NATURAL OR JURIDICAL
INCLUDING UNIONS) AS LONG AS IT COMPLIES WITH
THE REQUIREMENTS.
WHO ARE THE TWO (2) TYPES OF EMPLOYERS IN
CONTRACTING ARRANGEMENT?
1.

2.

DIRECT EMPLOYER E.G. SECURITY AGENCY OF

SECUIRTY GUARDS OR ANY PERSON WHO HAVE
PERSONS IN ITS EMPLOY. USC IS A DIRECT EMPLOYER
REGARDING ITS TEACHERS.
INDIRECT EMPLOYER KNOWN AS STATUTORY
EMPLOYER. USC AS TO SEC GUARDS OF SECURITY
AGENCY.

***THEREFORE, IF JOHN HAS NO EMPLOYEES & HIRES

SERVICES OF A BLDG CONTRACTOR AND THE BLDG
CONTRACTOR ALSO HIRES CONSTRUCTION WORKERS. IS
JOHN A DIRECT EMPLOYER? ANS: NO. BEC HE HAVE NO
EMPLOYEES OF HIS OWN.
SO, WHAT IS JOHNS RELATION TO THE CONSTRUCTION
WORKERS? HE IS AN INDIRECT EMPLOYER.
WHAT IF THE CONTRUCTION WORKERS HIRED BY THE BLDG
CONTRACTOR WERE NOT PAID THEIR WAGES? ANS: JOHNS
LIABILITY IS THAT OF A DIRECT EMPLOYER. HE IS
JOINTLY AND SEVERALLY LIABLE WITH THE
CONTRACTOR.
The principal has limited liability. Should the contractor fail to
pay the wages, the principal is liable only to the extent of the
work performed and only with respect to the payment of
wages
The principal is jointly and severally liable with the
subcontractor for payment of all employees wages to the
extent of the work performed under the contract
IS LABOR CONTRACTING ILLEGAL PER SE? ANS: LABOR
CONTRACTING IS NOT ILLEGAL PER SE ONLY WHEN IT
IS LABOR ONLY CONTRACTING THAT IT BECOMES
ILLEGAL.
***WHAT ARE THE THREE (3) CONDITIONS OF A LEGAL
CONTRACTOR? TEST OF LEGITIMATE CONTRACTOR:
1ST CONDITION: THE PRINCIPAL CANNOT CONTROL ALL
MATTERS CONNECTED W/ THE EXPERTISE OF THE EMPLOYEE
OR ITS PERFORMANCE FOR THE CONDITION TO BE
SUFFICIENT EXCEPT AS TO THE RESULTS THEREOF. IN THE
1ST PLACE THE PRINCIPAL HAS NO EXPERTISE ON THE
SERVICES OF SECURITY GUARD.
2ND CONDITION: IT HAS A SUBSTANTIAL CAPITAL OR
INVESTMENT. IT PROVIDES ADEQUATE RESOURCES OR
EQUIPMENTS TO EMPLOYEES. (GUNS, UNIFORMS,
ACCESSORIES, ETC.)
3RD CONDITION: THERE IS AN AGREEMENT BETWEEN THE
PRINCIPAL & THE CONTRACTOR

The following are requisites of a LEGITIMATE contracting

or subcontracting:
The contractor or subcontractor carries on a distinct and
independent business and undertakes to perform the job,
work or service on its own account and under its own
responsibility; according to its own manner and method,
and free from the control and directions of the principal
in all matters connected with the performance of the
work, except as to the results thereof; (NO EE-ER
relations exists)
the contractor or subcontractor has substantial capital or
investment shown by:
Adequacy of resources actually and directly used
May refer to subscribed capital stocks for corporations
Tools, equipments, implements, machineries, uniforms,
protective gear or safety devises
Operating costs such as training and overhead costs
the agreement between the principal and contractor or
subcontractor assures the contractual employees to
entitlement to all labor and occupational safety
standards, free exercise of the right to self-organization,
security of tenure, and social welfare benefits

FROM THE EXAMPLE GIVEN: USC HAS THE OBLIGATION TO

PAY THE SECURITY AGENCY FOR THE PAYMENT OF SECURITY

SERVICES. IN RETURN, THE SECURITY AGENCY HAS THE

OBLIGATION TO USC TO PERFORM THE SERVICES.
WHAT IF USC DEFAULTS THE PAYMENT OF SERVICES OF
SECURITY AGENCY, IS THERE A CAUSE OF ACTION? ANS:
YES DUE TO BREACH OF DUTY.
WHAT IS THE ACTION? FILE A CIVIL DISPUTE (NOTE: IT
MUST BE RAISED IN A REGULAR COURT)
***WHAT IS THE OBLIGATION OF USC TO THE SECURITY
GUARDS:
1.
AS AN INDIRECT EMPLOYER - THERE IS A LIABLITY
OF USC IF THE SECURITY AGENCY DEFAULTS ITS PAYMENT
OF WAGES ONLY TO THE EXTENT OF WORK PERFORMED BY
THE SECURITY GUARDS.
2.
AS A PRINCIPAL AS A RULE, USC AS AN INDIRECT
EMPLOYER OF SECURITY GUARDS HAS NO OBLIGATION TO
THEM. BUT, IN CASE THE SECURITY AGENCY DEFAULTED
PAYMENT OF SALARY OF THE SECURITY GUARDS, THEN, THE
PRINCIPAL(USC) HAS THE OBLIGATION TO PAY THE WAGES
BEC HE BECOMES A DIRECT EMPLOYER ONLY FOR A LIMITED
PURPOSE OF PAYING WAGES AS IF THE PRINCIPAL(USC)
EMPLOYED THE GUARDS HIMSELF.
WHAT IS THE CONSTITUTIONAL BASIS FOR THIS RULE OF
HOLDING THE PRINCIPAL JOINTLY & SEVERALLY LIABLE
WITH THE CONTRACTOR? ANS: THE PROTECTION TO
LABOR CLAUSE.
IS IT NOT UNFAIR THAT THE PRINCIPAL WILL ALSO BE HELD
LIABLE FOR DEFAULTS IMPUTABLE TO THE CONTRACTOR?
ANS: NO. IT IS NOT BECAUSE THE PRINCIPAL IS
ALLOWED REIMBURSEMENT WITH WHATEVER HE HAS
PAID TO THE SECURITY GUARDS.
WHO IS AN INDIVIDUAL INDEPENDENT CONTRACTOR? ANS:
Individuals with special skills, expertise or talent enjoy
the freedom to offer their services as independent
contractors.
WHAT IS THE MEANING OF WAGES IN CONTRACTING
AGREEMENT: ANS: IT IS NOT LIMITED TO A MINIMUM
WAGE BUT IT ALSO COVERS LABOR STANDARD
BENEFITS (HOLIDAY, 13TH MONTH, PREMIUM PAY).
***DOES IT INCLUDE RETIREMENT PAY? NO. DOES IT
INCLUDE SEPARATION PAY? NO. IT IS THE SOLE
OBLIGATION OF THE CONTRACTOR. IT IS NOT FOUND
IN LABOR CODE.
WHAT IS THE LIABILITY OF AN INDIRECT EMPLOYER (USC) IF
THERE IS AN INCREASE IN WAGE RATES? ANS: THE
CONTRACT IS DEEMED AMENDED, THEREFORE USC
WILL AUTOMATICALLY INCLUDE THE INCREMENT ON
THE MINIMUM WAGE.
WHO SHOULD PAY THE INCREASE IN WAGE RATES? ANS:
SEC AGENCY SHOULD PAY THE SEC GUARDS AS THEIR
EMPLOYER. THE GUARDS SHOULD NOT GO AFTER
UNLESS THE CONTRACTOR REFUSES TO PAY.
WHAT IF CONTRACTOR REFUSES TO PAY THE EES ON THE
INCREASE WAGE RATE? ANS: EMPLOYEES CAN DEMAND
FROM THE PRINCIPAL.
WHAT IF THE PRINCIPAL REFUSES TO PAY THE EMPLOYEES
ON THE INCREASE WAGE RATE, IS THE PRINCIPAL
JUSTIFIED? ANS: IT IS NOT ALLOWED BEC HE IS
JOINTLY & SEVERALLY LIABLE W/ THE CONTRACTOR.

IF THE PRINCIPAL PAYS, IS HE ENTITLED TO

REIMBURSEMENT BY THE CONTRACTOR? NO. THE LAW IS
CLEAR THAT IF THERE IS AN INCREASE IN WAGE RATE
IT SHALL BE BORNE BY THE PRINCIPAL.
Note: This is a different liability of the principal from the
unpayment of wages of the employees by the contractor
because in the latter the principal is entitled to
reimbursement.
WHAT IS THE PREVAILING WAGE RATE NOW IN CEBU? WAGE
RATE IS P305.00
WHAT ARE THE ELEMENTS TO CONSTITUTE LABOR ONLY
CONTRACTING?
1.The contractor or subcontractor does not have substantial
capital or investment which relates to the job, work or service
to be performed and the employees recruited, supplied or
placed by such contractor or subcontractor are performing
activities which are directly related to the main business of
the principal; or
2. The contractor does not exercise the right to control over
the performance of the work of the contractual employee
WHAT ARE THE ELEMENTS OF LABOR ONLY CONTRACTING
UNDER THE IMPLEMENTING RULES?
(i)

The contractor or subcontractor does not have substantial

capital or investment which relates to the job, work or
service to be performed and the employees recruited,
supplied or placed by such contractor or subcontractor
are performing activities which are directly related to the
main business of the principal; or
(ii) the contractor does not exercise the right to control over
the performance of the work of the contractual employee.
The foregoing provisions shall be without prejudice to the
application of Article 248(C) of the Labor Code, as amended.
IF THERE IS LABOR ONLY CONTRACTING WHAT IS THE
LIABILITY OF THE PRINCIPAL?
Under a Labor-only contracting arrangement
The following are the effects:

The subcontractor will be treated as the agent of the

principal. Since the act of an agent is the act of the
principal, representations made by the subcontractor to
the employees will bind the principal

The principal will become the employer as if it directly

employed the workers engaged to undertake the
subcontracted job or service. It will be responsible to the
for all their entitlements and benefits under the labor
laws

The principal and the subcontractor will be solidarily

treated as the employer

The employees will become employees of the principal,

subject to the classifications of employees under Art. 28
of the Labor Code
If the labor-only contracting activity is undertake by a
legitimate labor organization, a petition for cancellation of
union registration may be filed against it, pursuant to Art.
239(e).
IN LABOR ONLY CONTRACTING, CAN THE PRINCIPAL CLAIM
REIMBURSEMENT FROM THE CONTRACTOR? ANS: NO. BEC
THE CONTRACTOR IS DEEMED HIS AGENT. ACCESSORY
FOLLOWS THE PRINCIPAL.
***WORKERS PREFERENCE:

MARQUEZ: I OWN A COMPANY ENGAGED IN

MANUFACTURING BUSINESS. I AM THE PRES & YOU ARE ALL
MY EMPLOYEES & MS. AGOT IS MY GEN MANAGER WHO
OVERSEES MY EMPLOYEES & I PAY HER 500K A MONTH. I
GET WATER FROM MAYNILAD & ELECTRIC FROM VECO. I
WANTED TO BORROW MONEY FROM A BANK, BUT THE BANK
ASKED FOR A COLLATERAL, I GUARANTEED MY PROPERTY.
BANK AGREED FOR A REAL ESTATE MORTGAGE. AFTER
RELEASE OF MONEY, I WENT TO CASINO & LOST
SUBSTANTIAL MONEY. I HAVE NO MORE MONEY TO PAY THE
EMPLOYEES. WORSE, BANK NOTIFIED FORECLOSURE OF THE
MORTGAGE. I FAILED TO REDEEM & I WAS EVICTED & WAS
FORCED TO CLOSE MY BUSINESS. I OWE VECO, I OWE
MAYNILAD, I OWE THE GOVERNMENT, I OWE MY EMPLOYEES.
QUESTIONS RELATED TO FACTS:
WOULD YOU CONSIDER YOURSELF AS WORKERS UNDER ART
110? YES. ART. 110. Worker preference in case of
bankruptcy. - In the event of bankruptcy or liquidation
of an employers business, his workers shall enjoy first
preference as regards their wages and other monetary
claims, any provisions of law to the contrary
notwithstanding. Such unpaid wages and monetary
claims shall be paid in full before claims of the
government and other creditors may be paid.
SCOPE:

Unpaid wages

Other monetary claims

DO YOU HAVE WORKERS PREFERENCE IN THIS CASE? YES.
IS YOUR WORKERS PREFERENCE LIMITED TO UNPAID
WAGES? ANS: NO. IT ALSO INCLUDES OTHER
MONETARY CLAIMS.
CAN YOU SUE YOUR EMPLOYER IN THE LABOR ARBITER?
ANS: YES, BECAUSE I HAVE A CAUSE OF ACTION.
WHAT WILL YOU DO IN ORDER TO ASSERT YOUR WORKERS
PREFERENCE? ANS: I WILL FILE A PETITION TO
DECLARE MY COMPANY BANKCRUPT IN THE REGULAR
COURT. ONCE THE COURT HAS DECLARED THE
COMPANY BANKCRUPT THAT IS THE TIME I CAN
EXERCISE MY PREFERENCE. I WILL FILE IN REGULAR
COURTS.
WHY DOES THE LAW REQUIRE JUDICIAL DECLARATION OF
BANKRUPTCY OR LIQUIDATION? ANS: INORDER TO GIVE
CREDITORS THE OPPORTUNITY TO PRESENT THEIR
CLAIMS.
WOULD THE WORKERS PREFERENCE BE SUPERIOR AGAINST
BANK MORTGAGE CREDIT? ANS: NO. BEC THE MORTGAGE
IN THE BANK IS A SPECIAL PREFERENCE CREDIT
WHILE THE WORKERS PREFERENCE IS AN ORDINARY
PREFERENCE CREDIT.
HOW ABOUT BETWEEN THE OTHER CREDITORS (VECO,
MAYNILAD) AND WORKERS PREFERENCE, WHICH ONE WILL
ENJOY FIRST PREFERENCE? ANS: WORKERS PREFERENCE
PREVAILS, PROVIDED THERE HAS BEEN A JUDICIAL
DECLARATION OF BANKCRUTCY.
WHAT IS THE LAW GOVERNING BANKCRUPTCY? ANS: FRIA
FINANCIAL REHABILITATION & INSOVENCY ACT
WHAT ARE THE TWO CONCEPT OF ATTYS FEE?
1.) Ordinary claims for services rendered by an attorney
(goes to the attorneys pocket)
2.) Extraordinary (Art. 111) attorneys fees in the concept
of damages awarded to the party-litigant

DOES THE LABOR CODE AUTHORIZE RECOVERY OF ATTYS

FEES? ANS: YES, UNDER ARTICLE 111.

ART. 222. Appearances and Fees. - (a) Non-lawyers may

appear before the Commission or any Labor Arbiter only:
1. If they represent themselves; or
2. If they represent their organization or members thereof.

ART. 111. Attorneys fees. - (a) in cases of unlawful

withholding of wages, the culpable party may be assessed
attorneys fees equivalent to ten percent of the amount of
wages recovered.
(b) It shall be unlawful for any person to demand or accept,
in any judicial or administrative proceedings for the recovery
of wages, attorneys fees which exceed ten percent of the
amount of wages recovered.
Unlawful withholding of wages is prohibited except when
there is consent or debt due to the employee.
DOES IT REFER TO ORDINARY OR EXTRAORDINARY ATTYS
FEE? ANS: ART 111 REFERS TO EXTRAORDINARY
CONCEPT OF ATTYS FEE.
WHEN IS WITHHOLDING OF WAGES LAWFUL/UNLAWFUL?
ANS: UNLAWFUL IF THERE IS NO CONSENT FROM THE
EMPLOYEE OR WITH VITIATED CONSENT. LAWFUL IF
W/ CONSENT; CONTRIBUTION TO SSS, PAG-IBIG, TAX,
PHILHEALTH OR OTHER LEGALLY DEDUCTABLE
CONTRIBUTION.
ASIDE FROM ART 111 OF LABOR CODE IS THERE ANY
INSTANCE OR LAW THAT AUTHORIZES RECOVERY OF ATTYS
FEES? ANS: YES, ARTICLE 2208 OF THE NEW CIVIL
CODE.
Art. 2208. In the absence of stipulation, attorney's fees and
expenses of litigation, other than judicial costs, cannot be
recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses
to protect his interest;
(3) In criminal cases of malicious prosecution against the
plaintiff;
(4) In case of a clearly unfounded civil action or proceeding
against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith
in refusing to satisfy the plaintiff's plainly valid, just and
demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household
helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation
and employer's liability laws;
(9) In a separate civil action to recover civil liability arising
from a crime;
(10)When at least double judicial costs are awarded;
(11)In any other case where the court deems it just and
equitable that attorney's fees and expenses of litigation
should be recovered.
In all cases, the attorney's fees and expenses of litigation
must be reasonable.
DOES THE NEW CIVIL CODE PUT A CEILING OF RECOVERY
FOR ATTYS FEE? ANS: NO. IT DEPENDS ON THE
DISCRETION OF THE COURT.
ARE NON- LAWYERS ALLOWED TO APPEAR BEFORE LABOR
ARBITER AS A GEN RULE? ANS: AS A GENERAL RULE, NO.
WHAT IS THE EXCEPTION IN THE LC? YES. UNDER ART
222.

***HOW ABOUT THE EXCEPTIONS UNDER THE

IMPLEMENTING RULES IN THE NON-APPEARANCE OF NON
LAWYERS?
RULE III, SECS. 8 & 9, 2005 NLRC RULES
NON LAWYERS MAY APPEAR BEFORE THE LABOR ARBITER
OR COMMISSION IN ANY OF THE FF CONDITIONS: PLM - AO
1. HE REPRESENTS HIMSELF AS PARTY TO THE CASE;
2. HE REPRESENTS A LEGITIMATE LABOR ORGANIZATION
WHICH IS A PARTY TO THE CASE, PROVIDED, HE
PRESENTS TO THE COMMISSION OR LABOR ARBITER
DURING THE MANDATORY CONFERENCE OR INITIAL
HEARING: LAR
1. CERTIFICATIONS FROM BLR OR REGIONAL OFFICE
OF DOLE ATTESTING THAT THE ORGANIZATION IS
LISTED IN THE ROSTER OF LEGITIMATE LABOR
ORGANIZATION;
2. A VERIFIED CERTIFICATION ISSUED BY THE
SECRETARY AND ATTESTED TO BY THE PRESIDENT
OF THE SAID ORGANIZATION STATING THAT HE IS
AUTHORIZED TO REPRESENT THE SAID
ORGANIZATION;
3. A COPY OF THE RESOLUTION OF THE BOARD OF
DIRECTORS OF THE SAID ORGANIZATION
GRANTING HIM SUCH AUTHORITY.
3. HE REPRESENTS MEMBERS OF A LEGITIMATE LABOR
ORGANIZATION THAT IS EXISTING WITHIN THE EMPLOYERS
ESTABLISHMENT WHO ARE PARTIES TO THE CASE,
PROVIDED THAT HE PRESENTS: AM
1. A VERIFIED CERTIFICATION ATTESTING THAT HE IS
AUTHORIZED BY SUCH MEMBERS TO REPRESENT
THEM;
2. A VERIFIED CERTIFICATIO N ISSUED BY THE
SECRETARY & ATTESTED TO BY THE PRESIDENT OF
THE SAID ORGANIZATION STATING THAT A PERSON
OR PERSONS HE/SHE IS REPRESENTING ARE
MEMBERS IN THEIR ORGANIZATION WHICH IS
EXISTING IN THE EMPLOYERS ESTABLISHMENT.
4. HE IS A DULY ACCREDITED MEMBER OF ANY LEGAL AID
OFFICE RECOGNIZED BY DOJ OR IBP: PROVIDED, HE
PRESENTS PROOF OF HIS ACCREDITATION &
REPRESENTS A PARTY TO THE CASE.
5. HE IS THE OWNER OR PRESIDENT OF A CORPORATION
OR ESTABLISHMENT WHICH IS A PARTY TO THE CASE:
PROVIDED HE PRESENTS: AR
1. A VERIFIED CERTIFICATION ATTESTING THAT HE IS
AUTHORIZED TO REPRESENT SAID CORPORATION
OR ESTABLISHMENT;
2. A COPY OF THE RESOLUTION OF THE BOARD OF
DIRECTORS OF SAID CORPORATION OR OTHER
SIMILAR RESOLUTION OR INSTRUMENT ISSUED BY
SAID ESTABLISHMENT GRANTING HIM SUCH
AUTHORITY.
WHO ARE THE SPECIAL TYPES OF WORKERS? ANS:
APPRENTICE a worker who is covered by a written
apprenticeship agreement with an individual employer
or any of the entities recognized under this Chapter.
WHAT IS THE DIFFERENCE BETWEEN APPRENTICE &
APPRENTICESHIP? ANS: "Apprenticeship" means
practical training on the job supplemented by related
theoretical instruction. An "apprentice" is a worker
who is covered by a written apprenticeship agreement

with an individual employer or any of the entities

recognized under this Chapter.
WHAT IS APPRENTICESHIP AGREEMENT & APPRENTICEABLE
OCCUPATION?
An "apprenticeable occupation" means any trade, form of
employment or occupation which requires more than three
(3) months of practical training on the job supplemented by
related theoretical instruction.
"Apprenticeship agreement" is an employment contract
wherein the employer binds himself to train the apprentice
and the apprentice in turn accepts the terms of training.
WHAT TYPE INDUSTRY MAY ALLOWS APPRENTICESHIP? ANS:
ART. 60. Employment of apprentices. - Only employers
in the highly technical industries may employ
apprentices and only in apprenticeable occupations
approved by the Secretary of Labor and Employment.
WHAT AGENCY APPROVES APPRENTICESHIP PROGRAM? ANS:
TESDA (TECHNICAL EDUCATION SKILLS DEVT CENTER)
INORDER TO REMOVE AN EMPLOYEE (APPRENTICE)
FROM THE PROVISIONS OF THE LABOR CODE, THE
INDUSTRY MUST BE REGISTERED W/ TESDA.
OTHERWISE, THEY WILL BE CONSIDERED REGULAR
EMPLOYEES.
WHAT AGE IS ALLOWED FOR APPRENTICESHIP? ANS:
LABOR CODE-14 YRS OLD (MALE OR FEMALE); IN THE
IMPLEMENTING RULES 15 YRS OLD (MALE AND
FEMALE). BUT LABOR CODE PREVAILS.
WHY DOES THE LAW ALLOW APPRENTICESHIP AS EARLY AS
14Y/O? ANS: TO TRAIN THEM BECAUSE THIS AGE IS
HIGHLY TRAINABLE.
WHAT IS THE PURPOSE OF APPRENTICESHIP? IS IT GOOD
FOR THE ECONOMY? ANS: YES. BECAUSE THE
GOVERNMENT HAS NO RESOURCES FOR TRAINING
INSTEAD THEY ENCOURAGE APPRENTICESHIP
PROGRAM BUT SUBJECT TO SOME CONDITION.
IS THE ESTABLISHMENT OF AN APPRENTICESHIP PROGRAM
MANDATORY IN PRIVATE ESTABLISHMENTS? ANS: NO.
WHAT IS THE EXCEPTION?
ANS: SECTION 41. Compulsory apprenticeship.
(a) When grave national emergencies, particularly those
involving the security of the state, arise or particular
requirements of economic development so demand, the
Secretary of Labor and Employment may recommend to
the President of the Philippines the compulsory training of
apprentices required in a certain trades, occupations,
jobs or employment levels where shortage of trained
manpower is deemed critical;
(b) Where services of foreign technicians are utilized by
private companies in apprenticeable trades said
companies are required to set up appropriate
apprenticeship programs.
***WHAT IS THE OTHER EXCEPTION? FINALS QUESTION
(paki post sa FB, hehe)
HOW DO THE GOVERNMENT ENCOURAGE APPRENTICESHIP?
ANS: THEY GIVE INCENTIVES TO EMPLOYER WHICH
INCLUDES:
1. DEDUCTABILITY OF TRADING COSTS.
2. PAYMENT OF ONLY 1/2 OF THE TOTAL VALUE OF THE
LABOR TRAINING EXPENSES.
HOW LONG IS THE PERIOD OF APPRENTICESHIP? ANS: NOT
LESS THAN 3 MONTHS BUT MORE THAN 6 MONTHS.

IF THE PERIOD IS LESS THAN 3 MONTHS WOULD IT STILL BE

APPRENTICESHIP? ANS: NO. THEY ARE CONSIDERED
LEARNERS.
ARE APPRENTICES ALSO ENTITLED TO REMUNERATION?
ANS: YES. BUT NOT LESS THAN 75% OF THE MINIMUM
WAGE.
WHY ONLY 75%? BECAUSE THEY ARE NOT FULL BLOWN
EMPLOYEES YET.
CAN AN EMPLOYER ASK APPRENTICES RENDER OVERTIME AS
A RULE? ANS: NO, BUT W/ EXCEPTION, IF THE
EMPLOYER LACKS MANPOWER TO DO THE WORK.
SUPPLEMENTAL NOTES ABOUT APPRENTICESHIP:

they are trainees

No ER-EE relationship no right to labor standards

(SPECIAL TYPES OF WORKERS)

Benefits derived by an employer for apprenticeship

programs:

Entitled to apply for tax deduction

Employer can pay substandard rates

No commit ent to hire after termination of

apprenticeship program
TRAINING PERIODS CREDITED
SECTION 20. Hours of work. Hours of work of the
apprentice shall not exceed the maximum number of hours of
work prescribed by law, if any, for a worker of his age and
sex. Time spent in related theoretical instructions shall be
considered as hours of work and shall be reckoned jointly with
on-the-job training time in computing in the agreeme nt the
appropriate periods for giving wage increases to the
apprentice. An apprentice not otherwise barred by law from
working eight hours a day may be requested by his employer
to work overtime and paid accordingly, provided there are no
available regular workers to do the job, and the overtime
work thus rendered is duly credited toward his training time.
WHEN CAN AN EMPLOYER NOT PAY THE REMUNERATION OF
APPRENTICESHIP? ANS: THE GENERAL RULE:
APPRENTICES ARE ENTITLED TO REMUNERATION.
HOWEVER, IF THE APPRENTICESHIP IS PART OF THE
SCHOOL CURRICULUM (A REQUIREMENT FOR
GRADUATION, TRAINING IN THE COURSE; THE
DISCRETION HERE IS W/ THE EMPLOYER) THEY ARE
NOT ENTITLED TO WAGES.
ONCE APPRENTICESHIP IS COMPLETED, IS THE EMPLOYER
REQUIRED TO HIRE THE APPRENTICE AS A REGULAR
WORKER? ANS: NO. IT IS DISCRETIONARY ON THE ER
BECAUSE THE APPRENTICE HAS EARNED ENOUGH
SKILLS SO HE CAN APPLY ANYWHERE.
DURING APPRENTICESHIP, CAN AN EMPLOYER VALIDLY
TERMINATE APPRENTICESHIP AGREEMENT? ANS: YES,
PROVIDED UNDER THESE SIX (6) INSTANCES
(HABITUAL ABSENTEEISM, WILLFUL DISOBEDIENCE OF
THE RULES & REGULATIONS, PHYSICAL CONDITIONNOT ABLE TO WORK, THEFT, DESTRUCTION OF
PROPERTY, ENGAGING IN VIOLENCE)
CAN THE APPRENTICE TERMINATE HIS APPRENTICESHIP
WITHIN SIX (6) MONTHS? ANS: YES BUT FOR THE
FOLLOWING REASONS: SUBSTANDARD WORKING
CONDITIONS; REPEATED VIOLATIONS BY THE
EMPLOYER OF THE APPRENTICESHIP AGREEMENT;
CRUEL OR INHUMAN TREATMENT OF THE EMPLOYER OR
HIS SUBORDINATES; PERSONAL PROBLEM; BAD
HEALTH OF THE APPRENTICE.

WHAT WILL HAPPEN IF THE APPRENTICE ABANDONS THE

WORK W/O JUST CAUSE? ANS: NO CERTIFICATE OF
COMPLETION SHALL BE GIVEN.
WHO ARE LEARNERS? ANS: Learners are persons hired as
trainees in semi-skilled and other industrial
occupations which are non-apprenticeable and which
may be learned through practical training on the job in
a relatively short period of time which shall not exceed
three (3) months.
WHAT IS THE EMPLOYABLE AGE OF LEARNERS? ANS:
Employment of minors as learners. A minor below
fifteen (15) years of age shall not be eligible for
employment as a learner. Those below eighteen (18)
years of age may only be employed in non-hazardous
occupations.
WHEN CAN THE EMPLOYER HIRE LEARNERS? ANS: When
learners may be hired. - Learners may be employed
when no experienced workers are available, the
employment of learners is necessary to prevent
curtailment of employment opportunities, and the
employment does not create unfair competition in
terms of labor costs or impair or lower working
standards.
HOW LONG IS THE LEARNERSHIP? ANS: IT MUST NOT
EXCEED THREE (3) MONTHS.
WHAT TYPE OF INDUSTRY CAN ACCOMMODATE LEARNERS?
ANS: SEMI-SKILLED INDUSTRY.
IF A LEARNER IS ABLE TO COMPLETE LEARNERSHIP, IS THE
EMPLOYER OBLIGED TO EMPLOY THE LEARNER? YES.
LEARNERS ARE ENTITLED TO SECURITY OF TENURE
AND CANNOT BE DISMISSED W/O VALID & JUST
CAUSE.
CAN THE LEARNER REFUSE EMPLOYMENT? ANS: YES. HE
CANNOT BE COMPELLED TO WORK IF DO NOT DESIRE
TO.
WHAT ARE THE CONTENTS OF LEARNERSHIP AGREEMENT?
ANS: Contents of learnership agreement. A learnership
agreement, shall include:
(a) The names and addresses of the employer and the
learner;
(b) The occupation to be learned and the duration of the
training period which shall not exceed three (3) months;
(c) The wage of learner which shall be at least 75 percent of
the applicable minimum wage; and
(d) A commitment to employ the learner, if he so desires, as
a regular employee upon completion of training.
A learner who has worked during the first two months shall be
deemed a regular employee if training is terminated by the
employer before the end of the stipulated period through no
fault of the learner.
IF A LEARNER TERMINATES LEARNERSHIP W/O JUST CAUSE,
WHAT IS THE EFFECT? ANS: HE IS NOT ENTITLED TO
REGULAR EMPLOYMENT.
HANDICAPPED WORKERS
WHO ARE HANDICAPPED WORKERS? ANS: They are those
whose earning capacity is impaired by age or physical
or mental deficiency or injury.
Note: ***THE EARNING CAPACITY MUST BE IMPAIRED.

WHAT ADVANTAGE WILL THE EMPLOYER GET IN EMPLOYING

HANDICAPPED WORKERS? ANS: EMPLOYER CAN PAY
BELOW THE MINIMUM WAGE (75%); THEY ARE HIRED
ON THE CONTRACTUAL BASIS W/O OBLIGATION TO
HIRE THEM AS REGULAR EES.
SECTION 8. Incentives for Employer
Entitled to an additional deduction, from their gross income,
equivalent to twenty-five percent (25%) of the total amount
paid as salaries and wages to disabled persons: Provided,
however, that such entities present proof as certified by the
Department of Labor and Employment that disabled person
are under their employ. Provided, further that the disabled
employee is accredited with the Department of Labor and
Employment and the Department of Health as to his disability,
skills and qualifications.
Private entities that improved or modify their physical
facilities in order to provide reasonable accommodation for
disabled persons shall also be entitled to an additional
deduction from their net taxable income, equivalent to fifty
percent (50%) of the direct costs of the improvements or
modifications.
ARE THE EMPLOYERS REQUIRED TO HIRE THEM AS REGULAR
WORKERS? ANS: NO. BUT IN ONE CASE DEAF-MUTE
WORKERS IN ONE BANK WERE CONSIDERED BY THE SC
AS REGULAR EMPLOYEES BECAUSE THEIR CONTRACTS
WERE RENEWED AFTER SIX(6) MONTHS OF SERVICE.
SUPPLEMENTAL NOTES

Handicapped workers earning capacity is impaired by

reason of age, physical disability or mental deficiency

They are contractual workers

***REMEMBER: HANDICAPPED WORKERS ARE NOT
EMPLOYEES; THEY ARE TRAINEES AND THE PROVISIONS IN
THE LABOR CODE DOES NOT APPLY TO THEM.
NOTE: HANDICAPPED WORKERS HAVE NO FIXED DURATION
OF EMPLOYMENT.
Which is a broader term, handicapped or disabled workers?
Disabled (not sure) when you hire a disabled person, it is
always contractual. They do not enjoy security of tenure
because they are not employees they are special workers.
EMPLOYMENT OF WOMEN
NOTE: WOMEN BELONG TO VULNERABLE TYPE OF WORKERS.
THATS WHY THERE IS A SPECIAL LAW FOR EMPLOYMENT OF
WOMEN.
WHAT SPECIFIC PROVISION IN THE CONSTITUTION THAT
PROTECTS WOMEN IN THE WORKPLACE? ANS: THE ROLE
OF WOMEN IN NATION BUILDING.
NOTE: MEN & WOMEN ARE EQUAL BEFORE THE LAW. IF
WOMENS RIGHTS ARE VIOLATED IT IS AGAINST EQUAL
PROTECTION CLAUSE.
WHAT IS THE TREATY AGAINST DISCRIMINATION OF
WOMEN? ANS: INTERNATIONAL CONVENTION ON
ELIMINATION OF ALL FORMS OF DISCRIMINATION OF
WOMEN.
WHAT IS THE OBJECTIVE OF THE MAGNA CARTA FOR WOMEN
(RA 9710)? ANS: The Magna Carta of Women ensures the
equitable participation and representation of women in
government, political parties, the civil service and the private
sector.

WHAT ARE THE FACILITIES FOR WOMEN IN THE

WORKPLACE?
1. PROVIDE SEATS
2. SEPARATE TOILET ROOMS
3. DRESSING ROOM
4. NURSERY ROOM
5. DETERMINE STANDARDS FOR MINIMUM AGE
NOTE: MATERNITY LEAVE BENEFIT IS THE ONE
CONTEMPLATED IN SSS LAW. THE EMPLOYER MUST ADVANCE
THE CASH ALLOWANCE OF THE EMPLOYEE SUBJECT TO
REIMBURSEMENT FROM SSS.
IS MATERNITY LEAVE BENEFIT ONLY AVAILABLE TO
LAWFULLY MARRIED WOMEN? ANS: NO. ANY PREGNANT
WOMAN EMPLOYEE WHETHER MARIED OR NOT IS
ELIGIBLE UNDER THIS PROVISION.
A female member who has paid at least three (3) monthly
contributions in the twelve-month period immediately
preceding the semester of her childbirth or miscarriage shall
be paid a daily maternity benefit equivalent to one hundred
percent (100%) of her average daily salary credit for sixty
(60) days or seventy-eight (78) days in case of caesarean
delivery, subject to the following conditions:
(a) That the employee shall have notified her employer of
her pregnancy and the probable date of her childbirth,
which notice shall be transmitted to the SSS in
accordance with the rules and regulations it may provide;
(b) The full payment shall be advanced by the employer
within thirty (30) days from the filing of the maternity
leave application;
(c) That payment of daily maternity benefits shall be a bar to
the recovery of sickness benefits provided by this Act for
the same period for which daily maternity benefits have
been received;
(d) That the maternity benefits provided under this section
shall be paid only for the first four (4) deliveries or
miscarriages;
(e) That the SSS shall immediately reimburse the employer of
one hundred percent (100%) of the amount of maternity
benefits advanced to the employee by the employer upon
receipt of satisfactory proof of such payment and legality
thereof; and
(f) That if an employee member should give birth or suffer
miscarriage without the required contributions having
been remitted for her by her employer to the SSS, or
without the latter having been previously notified by the
employer of the time of the pregnancy, the employer
shall pay to the SSS damages equivalent to the benefits
which said employee member would otherwise have been
entitled to.
WHAT TYPE OF EMPLOYER WOULD NEED TO PROVIDE FAMILY
PLANNING SERVICES IN THE WORKPLACE? ANS:
NIGHTCLUBS, KARAOKE, SAUNA BATH PARLORS ETC.
PROHIBITED DISCRIMINATION FOR WOMEN: ANS:
Discrimination prohibited. - It shall be unlawful for any
employer to discriminate against any woman employee with
respect to terms and conditions of employment solely on
account of her sex.
The following are acts of discrimination:
(a) Payment of a lesser compensation, including wage, salary
or other form of remuneration and fringe benefits, to a
female employees as against a male employee, for work
of equal value; and
(b) Favoring a male employee over a female employee with
respect to promotion, training opportunities, study and
scholarship grants solely on account of their sexes.

NOTE: A HOMOSEXUAL CANNOT CLAIM THE PRIVILEGES

UNDER ART 135 (PROHIBITED DISCRIMINATION FOR
WOMEN) BECAUSE THE LAW IS ONLY APPLIED FOR WOMEN.
(KIBER!!! BABAE PO AKO!)
THERE IS NO LAW IN PROTECTION AGAINST
DISCRIMINATION OF ONES GENDER (GAY, LESBIAN, MALE,
FEMALE); ONLY DISCRIMINATION BETWEEN SEXES (MALE &
FEMALE) (KAILANGAN PAULIT-ULIT? WALA AKONG PAKI!
BASTA MAGANDA AKO AT TAO! HEHE)
CAN AN EMPLOYER DISMISS AN EMPLOYEE ON ACCOUNT OF
PREGNANCY? ANS: NO. BECAUSE, PREGNANCY IS A
MATERNAL FUNCTION OF WOMEN.
(nagmamaganda talaga ang mga mga babaeng to! Grrrrr)
WOMEN WORKING IN NIGHTCLUBS
MARQUEZ: I AM A WOMAN (Sir feel na feel mo talaga? Feel
ko rin!), AND YOU ARE AN OWNER OF A BAR. MY
COMPENSATION IS BASED ON PURCHASE OF LADYS DRINKS
(malamang babae ka nga eh), AM I AN EMPLOYEE? ANS: NO.
MAYBE AN INDEPENDENT CONTRACTOR (kasi special
talent mo pambobolahehe J)
SO, WHAT WILL MAKE ME AN EMPLOYEE THEN? ANS: YOUR
EMPLOYER SHOULD HAVE SUPERVISION & CONTROL
OF YOU.
ART. 138. Classification of certain women workers. - Any
woman who is permitted or suffered to work, with or without
compensation, in any night club, cocktail lounge, massage
clinic, bar or similar establishments under the effective
control or supervision of the employer for a substantial period
of time as determined by the Secretary of Labor and
Employment, shall be considered as an employee of such
establishment for purposes of labor and social legislation.
BUT, IF I AM A MAN WORKING IN A BAR (MACHO DANCER
sarap!), I AM NOT PROTECTED UNDER THE CLASSIFICATION
BECAUSE THE PROTECTION ONLY APPLIES TO WOMEN
WORKING IN NIGHTCLUBS.
VIOLENCE AGAINST WOMEN AND CHILDREN (VAWC) NURSING WOMEN (hindi nursing studenthehe) ARE
INCLUDED UNDER THE LAW.
TAKE NOTE OF SEC 12 OF BREASTFEEDING ACT:
RA 10028 SEC. 12
NURSING EMPLOYEES SHALL BE GRANTED NURSING
INTERVALS IN ADDITION TO THE REGULAR TIME-OFF FOR
MEALS TO BREASTFEED OR EXPRESS MILK. THESE
INTERVALS WHICH SHALL INCLUDE THE TIME IT TAKES AN
EMPLOYEE TO GET TO AND FROM THE WORKPLACE
LACTATION STATION SHALL BE COUNTED AS COMPENSABLE
HOURS WORKED. THE DOLE MAY ADJUST THE SAME
PROVIDED THAT THE INTERVALS SHALL NOT BE LESS THAN
40 MINS FOR EVERY EIGHT (8) HR WORKING PERIOD.
LEAVE BENEFITS WITH GYNECOLOGICAL DISORDER
ANS: In the workplace, women employees would be
allowed to avail of a special leave benefit of two (2)
months with full pay after undergoing surgery caused
by gynecological disorders, provided that she has
rendered at least six (6) months of continuous
aggregate employment.
NOTE: THIS IS AVAILED ONLY AFTER SURGERY W/O
PREJUDICE TO THE EMPLOYER OF CHOOSING WHETHER TO
GIVE THE BENEFIT BEFORE OR AFTER THE SURGERY.

WHAT ARE THE SALIENT FEATURES ON EMPLOYMENT OF

NIGHT WORKERS ?

The review and, if necessary, amendment or repeal of

laws that are discriminatory to women.

Ensures womens equitable participation and

representation in government, political parties,
international bodies, civil service, and the private sector.

Affords equal opportunities to women in relation to

education, employment, livelihood, social protection, and
others, and including women in the military.

Mandates access to information and services pertaining

to womens health.
NIGHT WORKERS:
WHO ARE NIGHT WORKERS? ANS: THOSE WHOSE WORK
REQUIRES PERFORMANCE OF A SUBSTANTIAL NUMBER
OF HOURS OF NIGHT WORK.
HEALTH ASSESSMENT FOR NIGHT WORKERS:
AT THEIR REQUEST, WORKERS SHALL HAVE THE RIGHT TO
UNDERGO ASSESSMENT WITHOUT CHARGE AND TO RECEIVE
ADVICE ON HOW TO REDUCE OR AVOID HEALTH PROBLEMS
ASSOCIATED WITH THEIR WORK:
BEFORE TAKING UP AN ASSIGNMENT AS A NIGHT
WORKER;
AT REGULAR INTERVALS DURING SUCH ASSIGNMENTS
IF THEY EXPERIENCE HEALTH PROBLEMS DURING SUCH
AN ASSIGNMENT WHICH ARE NOT CAUSED BY FACTORS
OTHER THAN THE PERFORMANCE OF NIGHT WORK.
TRANSFER FOR NIGHT WORKERS:
NIGHTWORKERS WHO ARE CERTIFIED AS PERMANENTLY
UNFIT TO WORK DUE TO HEALTH REASONS SHALL BE
TRANSFERRED WHENEVER PRACTICABLE TO A SIMILAR JOB
TO WHICH THEY ARE FIT TO WORK. IF SUCH TRANSFER TO A
SIMILAR JOB IS NOT PRACTICABLE, THESE WORKERS SHALL
BE GRANTED THE SAME BENEFITS AS OTHER WORKERS WHO
ARE UNABLE TO WORK OR TO SECURE EMPLOYMENT DURING
SUCH PERIOD.
A NIGHT WORKER CERTIFIED AS TEMPORARILY UNFIT FOR
NIGHT WORK SHALL BE GIVEN THE SAME PROTECTION
AGAINST DISMISSAL OR NOTICE OF DISMISSAL AS OTHER
WORKERS WHO ARE PREVENTED FROM WORKING FOR
REASONS OF HEALTH.
MANDATORY FACILITIES FOR NIGHT WORKERS: FIRST AID
QUARTERS; SLEEPING QUARTERS; TRANSPORTATION
SOCIAL SERVICES FOR NIGHT WORKERS FOOD
ALLOWANCE; TRANSPORTATION (SHUTTLE SERVICE) ETC.
WHAT IS THE EXCEPTION TO THE COVERAGE NIGHT
WORKERS? ANS: THOSE EMPLOYED IN THE
AGRICULTURE, STOCK RAISING, FISHING, MARITIME
TRANSPORT, AND INLAND NAVIGATION.
EMPLOYMENT OF CHILDREN
WHAT IS THE MINIMUM EMPLOYABLE AGE FORCHILDREN?
ANS: Children below fifteen (15) years of age may be allowed
to work under the direct responsibility of their parents or
guardians in any non-hazardous undertaking where the work
will not in any way interfere with their schooling. In such
cases, the children shall not be considered as employees of
the employers or their parents or guardians.
Any person of either sex, between 15 and 18 years of age,
may be employed in any non-hazardous work. No employer

shall discriminate against such person in regard to terms and

conditions of employment on account of his age.
For purposes of this Rule, a non-hazardous work or
undertaking shall mean any work or activity in which the
employee is not exposed to any risk which constitutes an
imminent danger to his safety and health. The Secretary of
Labor and Employment shall from time to time publish a list
of hazardous work and activities in which persons 18 years of
age and below cannot be employed.
CITE THE HOURS OF WORK ALLOWED IN THE EMPLOYMENT
OF CHILDREN?
(1) A child below fifteen (15) years of age may be allowed to
work for not more than twenty (20) hours a week:
provided, that the work shall not be more than four (4)
hours at any given day;
(2) A child fifteen (15) years of age but below eighteen (18)
shall not be allowed to work for more than eight (8)
hours a day, and in no case beyond forty (40) hours a
week;
(3) No child below fifteen (15) years of age shall be allowed
to work between eight o'clock in the evening and six
o'clock in the morning of the following day and no child
fifteen (15) years of age but below eighteen (18) shall be
allowed to work between ten o'clock in the evening and
six o'clock in the morning of the following day.
NATURE OF WORK ALLOWED IN THE EMPLOYMENT OF
CHILDREN? ANS: NON-HAZARDOUS WORK.
WHAT ABOUT 18 Y/O, IS IT COVERED WITHIN THE
PROHIBITION? ANS: NO. THE RESTRICTION APPLIES
ONLY TO THOSE BELOW 18.
EMPLOYMENT OF HOUSEHELPER
WHAT IS A DOMESTIC OR HOUSEHOLD SERVICE? ANS:
Service in the employers home which is usually
necessary or desirable for the maintenance and
enjoyment thereof and includes ministering to the
personal comfort and convenience of the members of
the employers household, including services of family
drivers.
NOTA: HOUSEHELPER INCLUDES FAMILY DRIVERS BUT NOT
COMPANY DRIVERS.
WHO MAY QUALIFY AS A HOUSEHELPER? ANS: ANY
PERSON MALE OR FEMALE.
WHAT IS THE MINIMUM EMPLOYABLE AGE OF A
HOUSEHELPER? ANS: ATLEAST 15 Y/O.
ARE THEY ALSO ENTITLED TO THE PROHIBITED HRS OF
WORK SINCE THEY ARE MINORS? ANS: YES, THE RULES
ON HOURS OF WORK FOR MINORS APPLY TO THEM.
WHAT ARE THE THREE DISTINCTIVE FEATURES OF
HOUSEHELPER? ANS:

Employer is the head of the family

Services are performed in and about employers home

Services are exclusively rendered for the personal

comfort and convenience of the employer and members
of his family
WHERE DO YOU RENDER SERVICES AS A HOUSEHELPER?
ANS: SERVICES ARE PERFORMED IN THE EMPLOYERS
HOME.
WHAT IS THE PURPOSE OF THE SERVICES OF A
HOUSEHELPER? ANS: IT IS EXCLUSIVELY RENDERED FOR

THE PERSONAL COMFORT & CONVENIENCE OF THE

EMPLOYER (THIS IS EXCLUSIVE).

NOT BE COVERED WITH SSS BECAUSE SSS COVERAGE

APPLIES ONLY TO THOSE BELOW 60 Y/O.

CAN AN EMPLOYER DEFER PAYMENT OF SALARY THROUGH A

STIPULATION OR AGREEMENT IF AN EMPLOYER OFFERS TO
SEND THE HOUSEHELPER TO SCHOOL? ANS: NO. IT IS
VOID. THE HOUSEHELPER SHOULD BE PAID FOR THE
SERVICES RENDERED BECAUSE THE OFFER WAS
INITIATED BY THE EMPLOYER.

IF A HOUSEHELPER REACHES THE RETIREMENT AGE, IS HE

ENTITLED TO RETIREMENT BENEFITS? ANS: YES. BECAUSE
THEY ARE NOT EXCLUDED IN THE LAW.

COMPENSATION OF HOUSEHELPERS: ANS:

(1) Eight hundred pesos (P800.00) a month for househelpers
in Manila, Quezon, Pasay, and Caloocan cities and
municipalities of Makati, San Juan, Mandaluyong,
Muntinlupa, Navotas, Malabon, Paraaque, Las Pias,
Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro
Manila and in highly urbanized cities;
(2) Six hundred fifty pesos (P650.00) a month for those in
other chartered cities and first-class municipalities; and
(3) Five hundred fifty pesos (P550.00) a month for those in
other municipalities. Provided, That the employers shall
review the employment contracts of their househelpers
every three (3) years with the end in view of improving
the terms and conditions thereof. Provided, further, That
those househelpers who are receiving at least One
thousand pesos (P1,000.00) shall be covered by the
Social Security System (SSS) and be entitled to all the
benefits provided thereunder. EXCLUDING LODGING
FOODS, & MEDICAL ATTENDANCE W/C SHALL BE PAID BY
THE EMPLOYER. REMEMBER: THESE ADDITIONAL BENEFITS
CANNOT BE DEDUCTED FROM THE HOUSEHELPERS WAGES.
WHAT IS THE PERIOD FOR THE INITIAL CONTRACT OF
HOUSEHELPERS? ANS: SERVICES SHOULD NOT EXCEED
FOR 2 YRS. HOWEVER, UPON EXPIRATION OF THE
INITIAL CONTRACT, IT CAN BE RENEWED FOR A
PERIOD AT THE DISCRETION OF BOTH PARTIES.
WHAT IS THE HOURS OF WORK OF A HOUSEHELPER? ANS:
IT SHOULD NOT EXCEED 1O HRS A DAY WITH FOUR (4)
DAYS PAID LEAVE IN ONE YEAR. AT ANY DAY A
HOUSEHELPER CAN ENJOY THE VACATION LEAVE
BECAUSE THERE IS NO SPECIFIC DAY PROVIDED BY
LAW.
ARE HOUSEHELPERS ENTITLED TO SICKLEAVE? ANS. NO.
THERE IS NO SICK LEAVE.
DO HOUSEHELPERS HAVE THE RIGHT TO EDUCATION? NO.
THEY ONLY HAVE THE RIGHT TO THE OPPORTUNITY TO
ELEMENTARY EDUCATION TO THOSE BELOW 18 Y/O.
If the house helper is under the age of eighteen years, the
head of the family shall give an opportunity to the house
helper for at least elementary education. The cost of such
education shall be a part of the house helper's compensation,
unless there is a stipulation to the contrary.
WHO PAYS FOR THE ELEMENTARY EDUCATION OF A
HOUSEHELPER? ANS: THE HOUSEHELPER PAYS BECAUSE
IT FORMS PART OF HIS COMPENSATION UNLESS THERE
IS A CONTRARY STIPULATION.
NOTA: HOUSEHELPERS HAVE THE RIGHT TO ADEQUATE
FOODS, NOT JUST FOODS. THEY MUST ALSO BE TREATED IN
JUST & HUMANE MANNER WITHOUT PHYSICAL VIOLENCE.
IF A HOUSEHELPER REACHES THE AGE OF 62 AND HE IS
EARNING 1OOO A MONTH, IS HIS EMPLOYER REQUIRED TO
REPORT TO THE SSS FOR COVERAGE? ANS: NO. HE WILL

The Retirement Pay Law shall apply to all employees in the

private sector, regardless of their position, designation or
status, and irrespective of the method by which their wages
are paid. They shall include part-time employees, employees
of service and other job contractors and domestic helpers or
persons in the [personal service and agricultural
establishment or operations employing not more than 10
employees or workers and employees of the National
Government and its political subdivisions including
government-owned and controlled corporations, if they are
covered by the Civil Service Law and regulations.
IF A HOUSEHELPER ENTERS INTO A CONTRACT OF
EMPLOYMENT, CAN AN EMPLOYER JUST TERMINATE IT?
ANS: NO. ONLY FOR A VALID AND JUST CAUSE.
WHAT IF THE CONTRACT HAS A PERIOD LIKE FOR TWO (2)
YRS? ANS: THE PARTIES MUST FOLLOW THE CONTRACT.
WHAT IF THE CONTRACT HAS NO PERIOD, CAN AN EMPLOYER
JUST TERMINATE THE CONTRACT? ANS: THE EMPLOYER
MUST NOTIFY 5 DAYS PRIOR TO THE TERMINATION OF
THE CONTRACT. OTHERWISE, HE WILL BE LIABLE FOR
UNJUST DISMISSAL.
WHAT ARE THE REMEDIES OF AN EMPLOYEE UNJUSTLY
DISMISSED? ANS: DAMAGES PLUS UNPAID SALARIES.
NOTE: IN THE CASE OF ULRA VILLA FOODHOUSE
Chapter III, Title III, Book III, however, is silent on the grant
of overtime pay, holiday pay, premium pay and service
incentive leave to those engaged in the domestic or
household service.
Moreover, the specific provisions mandating these benefits are
found in Book III, Title I of the Labor Code, and Article 82,
which defines the scope of the application of these provisions,
expressly excludes domestic helpers from its coverage:
Art. 82. Coverage. - The provision of this title shall apply to
employees in all establishments and undertakings whether for
profit or not, but not to government employees, managerial
employees, field personnel, members of the family of the
employer who are dependent on him for support, domestic
helpers, persons in the personal service of another, and
workers who are paid by results as determined by the
Secretary of Labor in appropriate regulations.
IN CASE OF DEATH OF THE HOUSHELPER, WHO BEARS THE
EXPENSES FOR THE FUNERAL? ANS: THE EMPLOYER
BEARS THE EXPENSES OF THE FUNERAL IF THE
HOUSEHELPER HAS NO RELATIVES WITHIN THE PLACE.
BUT, IF THERE ARE RELATIVES, THEY WILL BEAR THE
EXPENSES OF FUNERAL.
IF THE HOUSEHELPER RESIGNS, DOES SHE HAVE THE RIGHT
TO CERTIFICATE OF EMPLOYMENT? ANS: YES.
HOMEWORKERS
ARE HOUSEHELPERS THE SAME AS HOMEWORKERS? ANS:
NO. HOUSEHELPER WORKS AT EMPLOYERS HOME
WHILE HOMEWORKERS WORK AT EMPLOYEES HOME;
HOMEWORKER IS ENGAGED IN INDUSTRIAL WORK,
THE MATERIALS ARE GIVEN BY THE ER WHILE

HOUSEHELPER RENDERS SERVICES PERSONALLY IN

THE HOUSE OF THE ER.

GENERALLY, PHILS DOES NOT ENCOURAGE EMPLOYMENT OF

ALIENS D/T COMPETITION IN SOME SITUATION.

NOTA: IF A PERSON IS ENGAGED IN NEEDLE WORK THEY

ARE EXEMPTED FROM THE MINIMUM WAGE.

OPPOSITION MAY BE FILED W/ DOLE FOR THE APPLICATION

OF A FOREIGN NATIONAL. (EMPLOYMENT OF NONRESIDENT
ALIENS)

EMPLOYMENT OF ALIENS:
DISTINGUISH A NON RESIDENT ALIEN FROM RESIDENT
ALIEN? ANS:
***DOLE ISSUES ALIEN EMPLOYMENT PERMIT:
ART. 40. Employment permit of non-resident aliens. - Any
alien seeking admission to the Philippines for employment
purposes and any domestic or foreign employer who desires
to engage an alien for employment in the Philippines shall
obtain an employment permit from the Department of Labor.
The employment permit may be issued to a non-resident alien
or to the applicant employer after a determination of the nonavailability of a person in the Philippines who is competent,
able and willing at the time of application to perform the
services for which the alien is desired.
For an enterprise registered in preferred areas of
investments, said employment permit may be issued upon
recommendation of the government agency charged with the
supervision of said registered enterprise.
NOTA: RESIDENT ALIENS ARE ALLOWED BY LAW TO STAY OR
RESIDE INDEFINITELY IN THE PHILS.
RULE: ALL FOREIGN NATIONALS WHO INTEND TO ENGAGE IN
GAINFUL EMPLOYMENT IN THE PHILS SHALL APPLY FPOR
ALIEN EMPLOYMENT PERMIT.
EXCLUSIONS FOR ALIEN EMPLOYMENAT PERMIT: DOG EPTR
1. MEMBERS OF THE DIPLOMATIC SERVICE & FOREIGN
GOVERNMENT OFFICIALS ACCREDITED BY AND WITH
RECIPROCITY WITH THE PHILS.
2. OFFICERS & STAFF OF INTERNATIONAL ORGANIZATION
OF WHICH THE PHILIPPINE GOVERNMENT IS A MEMBER
INCLUDING THEIR LEGITIMATE SPOUSES DESIRING TO
WORK IN THE PHILS.
3. FOREIGN NATIONALS ELECTED AS MEMBERS OF THE
GOVERNING BOARD, WHO DO NOT OCCUPY ANY OTHER
POSITION, BUT HAVE ONLY VOTING RIGHTS IN THE
CORPORATION.
4. ALL FOREIGN NATIONAL GRANTED EXEMPTION BY LAW.
5. OWNERS & REPRESENTATIVES OF FOREIGN PRINCIPALS
WHOSE COMPANIES ARE ACCREDITED BY THE POEA
WHO COME FOR A LIMITED PERIOD SOLELY FOR
INTERVIEWING FILIPINO APPLICANTS FOR EMPLOYMENT
ABROAD.
6. FOREIGN NATIONALS WHO COME TO THE PHILIPPINES
TO TEACH OR CONDUCT RESEARCH STUDIES IN
UNIVERSITIES, EXCHANGE PROFESSORS UNDER
AGREEMENT WITH SCHOOLS IN THE PHILS, PROVIDED
THE EXEMPTION IS ON RECIPROCAL BASIS.
7. RESIDENT FOREIGN NATIONALS.
DURATION OF AEP: 1 YEAR, UNLESS THE CONTRACT
PROVIDES OTHERWISE, BUT IN NO CASE SHALL IT EXCEED 5
YRS. THIS IS RENEWABLE.
NOTE: APPLICATIONS FOR AEP SHALL BE FILED WITH THE
REGIONAL OFFICE HAVING JURISDICTION ON THE INTENDED
PLACE OF WORK.
PEZA FOREIGN NATLS GRANTED EXEMPTION BY LAW.

NOTA: NONRESIDENT ALIENS ARE ALLOWED TO WORK IF

THEY ARE QUALIFIED & NO FILIPINO WORKER IS BETTER
QUALIFIED. THE LABOR SECRETARY IS EMPOWERED TO
DETERMINE AS TO THE AVAILABILITY OF THE SERVICES OF A
PERSON IN THE PHILIPPINES WHO IS COMPETENT, ABLE AND
WILLING AT THE TIME OF THE APPLICATION TO PERFORM
THE SERVICES FOR WHICH AN ALIEN IS DESIRED. THE
LABOR DEPARTMENT IS THE AGENCY VESTED WITH
JURISDICTION TO DETERMINE THE QUESTION OF
AVAILABILITY OF WORKERS.
WORKING SCHOLARS:
WHO ARE WORKING SCHOLARS?
ANS: ARE STUDENTS WHO WORK FOR THE SCHOOL IN
EXCHANGE FOR THE PRIVILEGE TO STUDY PREE este
FREE OF CHARGE PROVIDED THEY ARE GIVEN THE
REASONABLE OPPORTUNITY TO FINISH THE COURSE.
(isipin mo lang si Lorie J)
Q: ARE YOU ALSO ENTITLED TO COMPENSATION AS A
WORKING SCHOLAR? A: NO. IT IS ONLY THE PRIVILEGE
TO STUDY THAT I AM ENTITLED TO.
Q: IF YOU WORK FOR THE SCHOOL FROM 8AM - 8PM W/ THE
OPPORTUNITY TO FINISH YOUR COURSE IN NURSING AT 5
UNITS PER SEM, ARE YOU A WORKING SCHOLAR? A: NO. I
AM A REGULAR WORKER. I CAN SUE MY SCHOOL &
CLAIM BENEFITS THAT I AM ENTITLED TO.
SPECIAL PROGRAM FOR EMPLOYMENTOF STUDENTS:
***WHAT TYPE OF ESTABLISHMENTS ARE QUALIFIED TO
HIRE UNDER SPECIALPROGRAM FOR EMPLOYMENT OF
STUDENTS (SPES)? ANS: THE ESTABLISHMENT MUST BE
EMPLOYING 10 OR MORE WORKERS.
***WHAT IS THE AGE QUALIFICATION OF A STUDENT TO BE
HIRED UNDER THE LAW? ANS: THE STUDENT MUST NOT
BE BELOW 15Y/O NOR MORE THAN 25Y/O. 20-52 DAYS
OF WORK ONLY. SUNTZU P 163
Q: WHO AMONG THE WORKING STUDENTS MAY BE HIRED
DURING SUMMER OR CHRISTMAS VACATION ONLY? A:
SECONDARY STUDENTS. DURING CHRISTMAS THEY ARE
ONLY ALLOWED TO WORK FOR 10-15 DAYS.
HOW ABOUT THE TERTIARY SUDENTS? A: THEY MAY BE
HIRED ANYTIME.
NOTA: THEIR period of employment shall be from twenty (20)
to fifty-two (52) working days only, except that during
Christmas vacation, employment shall be from ten (10) to
fifteen (15) days which may be counted as part of the
students' probationary period should they apply in the same
company or agency after graduation: Provided, That students
employed in activities related to their course may earn
equivalent academic credits as may be determined by the
appropriate government agencies.
The LAW:
Any provision of law to the contrary notwithstanding, any
person or entity employing at least ten (10) persons may
employ poor but deserving students fifteen (15) years of age

but not more than twenty-five (25) years old, paying them a
salary or wage not lower than the minimum wage for private
employers and the applicable hiring rate for the national and
local government agencies: Provided, that student enrolled in
the secondary level shall only be employed during summer
and/or christmas vacations, while those enrolled in the
tertiary, vocational or technical education may be employed at
any time of the year: Provided, further, That their period of
employment shall be from twenty (20) to fifty-two (52)
working days only, except that during Christmas vacation,
employment shall be from ten (10) to fifteen (15) days which
may be counted as part of the students' probationary period
should they apply in the same company or agency after
graduation: Provided, finally, That students employed in
activities related to their course may earn equivalent
academic credits as may be determined by the appropriate
government agencies.
"For purposes of this Act, poor but deserving students refer to
those whose parents' combined income, together with their
own, if any, does not exceed the annual regional poverty
threshold level for a family of six (6) for the preceding year as
may be determined by the National Economic and
Development Authority (NEDA). Employment facilitation
services for applicants to the program shall be done by the
Public Employment Service Office (PESO).
"Participating employers in coordination with the PESO, must
inform their SPES employees of their rights, benefits, and
privileges under existing laws, company policies, and
employment contracts."
Section 2. Section 2 of the same Act is hereby amended to
read as follows:
"SEC. 2. Sixty per centum (60%) of the said salary or wage
shall be paid by the employers in cash and forty per centum
(40%) by the government in the form of a voucher which
shall be applicable in the payment for the students' tuition
fees and books in any educational institution for secondary,
tertiary, vocational or technical education: Provided, That
local government units (LGUs) may assume responsibility for
paying in full his salary or wages. The amount of the
education vouchers shall be paid by the government to the
educational institutions concerned within thirty (30) days
from its presentation to the officer or agency designated by
the Secretary of Finance.
"The vouchers shall not be transferable except when the
payees thereof dies or for a justifiable cause stops in his
duties, in which case it can be transferred to his brothers or
sisters. If there be none, the amount thereof shall be paid his
heirs or to the payee himself, as the case may be."
WHAT IS DUAL TRAINING SYSTEM? A: Refers to a delivery
system of quality technical and vocational education
which requires training to be carried out alternately in
two venues: in-school and in the production plant. Inschool training provides the trainee the theoretical
foundation, basic training, guidance and human
formation, while in-plant training develops his skills
and proficiency in actual work conditions as it
continues to inculcate personal discipline and work
values;
EMPLOYMENT OF ACADEMIC AND NON-ACADEMIC
PERSONNEL IN PRIVATE EDUCATIONAL INSTITUTION
Academic personnel includes all school personnel who are
formally engaged in actual teaching service or research
assignments, either on full-time or part-time basis, as well as
those who possess certain prescribed academic functions,
such as registrars, librarians, guidance councilors, researchers

and other similar persons (Sec. 4, par.c). [note: manual of

regulations for private educational institution applies here and
not labor code]
Non-academic personnel means school personnel usually
engaged in ADMINISTRATIVE functions, who are not covered
under the definition of academic personnel. They may include
school officials. [Note: labor code applies here]
In Private Educational Institutions (Manual of Regulations for
Private School)
* As simply classified by Marquez
a. Academic Personnel
a.1. Academic teaching
a.2. Academic non-teaching (ex. The librarian)
b. Non-Academic Personnel those staff who perform
administrative functions but are not involved in academic
work
* Their employment is NOT covered by the MRPS or by the
TVET Manual but by the Labor Code.
Section 45 of the 1992 Manual of Regulations for Private
Schools provides that full-time academic personnel are those
meeting all the following requirements:
a. Who possess at least the minimum academic
qualifications prescribed by the Department under this
Manual for all academic personnel;
b. Who are paid monthly or hourly, based on the regular
teaching loads as provided for in the policies, rules and
standards of the Department and the school;
c. Whose total working day of not more than eight hours a
day is devoted to the school;
d. Who have no other remunerative occupation elsewhere
requiring regular hours of work that will conflict with the
working hours in the school; and
e. Who are not teaching full-time in any other educational
institution.
All teaching personnel who do not meet the foregoing
qualifications are considered part-time.
ACADEMIC PERSONNEL MANUAL GOVERNS
NON ACADEMIC PERSONNEL LABOR CODE GOVERNS
HIRING OF SENIOR CITIZENS
RA 994
WHAT IS THE ROLE OF DOLE IN HIRING SENIOR CITIZENS?
***MEDICAL, DENTAL & OCCUPATIONAL SAFETY OF
EMPLOYEES
WHAT ARE THE REQUIREMENTS TO EMPLOYERS FOR THE
MEDICAL, DENTAL & OCCUPATIONAL SAFETY OF ITS
EMPLOYEES? ANS: No. of Employees Nature of Undertaking
Requirement
1.) From 10 to 50 - a graduate first-aider who may be one of
the workers in the workplace and who has immediate
access to the first-aid medicines in the workplace (Rule 1,
Sec. 4(a), Bk IV, IRR)
2.) More than 50 but not more than 200 *Hazardous
*Non-hazardous
-

Full-time registered nurse

Graduate first-aider, if no registered nurse available 3.)
More than 200 but not more than 300 *Hazardous &
Non-hazardous

a. Full-time registered nurse

b. Part-time physician and part-time dentist

*Hazardous workplace shoud stay in the premises for at
least two (2) hours
*Non-hazardous workplace physician and dentist may be
engaged on retained basis subject to regulations by the SOLE
(Art. 157, LC)
*Additional requirements under the Implementing Rules for
Workplaces with more than one workshift a day:
The physician and dentist shall be at the workplace
during the workshift which has the biggest number of
workers and shall be subject to call at anytime during the
other workshifts to attend to emergency cases
A full-time first-aider must be provided for each
workshift, (Sec. 4 (d) & (e), Bk IV, Rule 1, IRR)
c. An emergency clinic 4.) More than 300
*Hazardous and Non-hazardous
a. Full-time physician and full-time dentist
*Hazardous workplace full-time physician and full-time
dentist should stay in the premises for at least 8 hours
*Non-hazardous workplace physician and dentist may be
engaged on retained basis subject to regulations by the SOLE
(Art. 157, LC)
-

employer may engage the services of a part-time

physician and a part-time dentist who shall have the
same responsibilities as those provided under number
3(b) above. (Sec. 4 (d), Rule I, Bk IV, IRR)

* Additional requirements under the Implementing Rules for

Workplaces with moe than one workshift a day:
-

b.
c.
d.

The physician and dentist shall be at the workplace

during the workshift which has the biggest number of
workers and shall be subject to cal at anytime during the
other workshifts to attend to emergency cases.
A full-time first-aider must be provided for each
workshift. (Sec. 4 (d) & (e), Bk IV, Rule I, IRR)
Full-time registered nurse
Dental clinic
Infirmary or emergency hospital with one bed capacity
for every 100 employees. Exceptions (IRR, Sec. 5, Bk IV,
Rule 1):

*In urban area where there is a hospital or dental clinic

which is not more than 5 km. away from the workplace
*In rural area where a hospital or dental clinic can be
reached by motor vehicle in 25 mins.
In both cases, the employer should have readily available
facilities for transporting a worker to the hospital or clinic in
case of emergency. Provided further, that the employer shall
enter into a written contract with the hospital or dental clinic
for the use thereof in the treatment of workers in case of
emergency.
WHAT ARE THE EXCEPTIONS:
*In urban area where there is a hospital or dental clinic
which is not more than 5 km. away from the workplace
*In rural area where a hospital or dental clinic can be
reached by motor vehicle in 25 mins.

In both cases, the employer should have readily available

facilities for transporting a worker to the hospital or clinic in
case of emergency. Provided further, that the employer shall
enter into a written contract with the hospital or dental clinic
for the use thereof in the treatment of workers in case of
emergency.
IS THE ER MANDATED TO HIRE & EMPLOY THESE MEDICAL
PERSONNEL? ANS: NO. THE EMPLOYER JUST NEEDS TO
FURNISH THEIR SERVICES.
Case: As correctly observed by the petitioner, while it is true
that the provision requires employers to engage the services
of medical practitioners in certain establishments depending
on the number of their employees, nothing is there in the law
which says that medical practitioners so engaged be actually
hired as employees, adding that the law, as written, only
requires the employer "to retain", not employ, a part-time
physician who needed to stay in the premises of the nonhazardous workplace for two (2) hours.-Phil Global VS NLRC
ART. 161. ASSISTANCE OF EMPLOYER
It shall be the duty of any employer to provide all the
necessary assistance to ensure the adequate and immediate
medical and dental attendance and treatment to an injured or
sick employee in case of emergency.
HOW DO YOU APPLY THIS RULE? Petitioner argues that her
cause of action is not predicated on a quasi delict or tort, but
on the failure of private respondents -- as employers of her
husband (Captain Tolosa) -- to provide him with timely,
adequate and competent medical services under Article 161
of the Labor Code:
"ART 161. Assistance of employer. -- It shall be the duty of
any employer to provide all the necessary assistance to
ensure the adequate and immediate medical and dental
attendance and treatment to an injured or sick employee in
case of emergency." Likewise, she contends that Article 217
(a) (4)7 of the Labor Code vests labor arbiters and the NLRC
with jurisdiction to award all kinds of damages in cases
arising from employer-employee relations.
Petitioner also alleges that the "reasonable causal connection"
rule should be applied in her favor. Citing San Miguel
Corporation v. Etcuban, she insists that a reasonable causal
connection between the claim asserted and the employeremployee relation confers jurisdiction upon labor tribunals.
She adds that she has satisfied the required conditions:
1) the dispute arose from an employer-employee relation,
considering that the claim was for damages based on the
failure of private respondents to comply with their
obligation under Article 161 of the Labor Code; and
2)
the dispute can be resolved by reference to the Labor
Code, because the material issue is whether private
respondents complied with their legal obligation to
provide timely, adequate and competent medical services
to guarantee Captain Tolosa's occupational safety.
We disagree. We affirm the CA's ruling that the NLRC and the
labor arbiter had no jurisdiction over petitioner's claim for
damages, because that ruling was based on a quasi delict or
tort per Article 2176 of the Civil Code.
Time and time again, we have held that the allegations in the
complaint determine the nature of the action and,
consequently, the jurisdiction of the courts. After carefully
examining the complaint/position paper of petitioner, we are
convinced that the allegations therein are in the nature of an
action based on a quasi delict or tort. It is evident that she
sued Pedro Garate and Mario Asis for gross negligence.

Petitioner's complaint/position paper refers to and extensively

discusses the negligent acts of shipmates Garate and Asis,
who had no employer-employee relation with Captain Tolosa.
Specifically, the paper alleges the following tortious acts:
"x x x [R]espondent Asis was the medical officer of the
Vessel, who failed to regularly monitor Capt. Tolosa's
condition, and who needed the USCG to prod him to take the
latter's vital signs. In fact, he failed to keep a medical record,
like a patient's card or folder, of Capt. Tolosa's illness."
"Respondents, however, failed Capt. Tolosa because Garate
never initiated actions to save him. x x x In fact, Garate
rarely checked personally on Capt. Tolosa's condition, to wit:"
"x x x Noticeably, the History (Annex "D") fails to mention any
instance when Garate consulted the other officers, much less
Capt. Tolosa, regarding the possibility of deviation. To save
Capt. Tolosa's life was surely a just cause for the change in
course, which the other officers would have concurred in had
they been consulted by respondent Garate which he grossly
neglected to do.
"Garate's poor judgement, since he was the officer effectively
in command of the vessel, prevented him from undertaking
these emergency measures, the neglect of which resulted in
Capt. Tolosa's untimely demise."
The labor arbiter himself classified petitioner's case as "a
complaint for damages, blacklisting and watchlisting (pending
inquiry) for gross negligence resulting in the death of
complainant's husband, Capt. Virgilio Tolosa."
We stress that the case does not involve the adjudication of a
labor dispute, but the recovery of damages based on a quasi
delict. The jurisdiction of labor tribunals is limited to disputes
arising from employer-employee relations, as we ruled in
Georg Grotjahn GMBH & Co. v. Isnani:
"Not every dispute between an employer and employee
involves matters that only labor arbiters and the NLRC can
resolve in the exercise of their adjudicatory or quasi-judicial
powers. The jurisdiction of labor arbiters and the NLRC under
Article 217 of the Labor Code is limited to disputes arising
from an employer-employee relationship which can only be
resolved by reference to the Labor Code, other labor statutes,
or their collective bargaining agreement."
The pivotal question is whether the Labor Code has any
relevance to the relief sought by petitioner. From her paper, it
is evident that the primary reliefs she seeks are as follows:
(a) loss of earning capacity denominated therein as "actual
damages" or "lost income" and
(b) blacklisting.
The loss she claims does not refer to the actual earnings of
the deceased, but to his earning capacity based on a life
expectancy of 65 years. This amount is recoverable if the
action is based on a quasi delict as provided for in Article
2206 of the Civil Code, but not in the Labor Code.
While it is true that labor arbiters and the NLRC have
jurisdiction to award not only reliefs provided by labor laws,
but also damages governed by the Civil Code, these reliefs
must still he based on an action that has a reasonable causal
connection with the Labor Code, other labor statutes, or
collective bargaining agreements.
The central issue is determined essentially from the relief
sought in the complaint. In San Miguel Corporation v. NLRC,
this Court held:

"It is the character of the principal relief sought that appears

essential in this connection. Where such principal relief is to
be granted under labor legislation or a collective bargaining
agreement, the case should fall within the jurisdiction of the
Labor Arbiter and the NLRC, even though a claim for damages
might be asserted as an incident to such claim."
The labor arbiter found private respondents to be grossly
negligent. He ruled that Captain Tolosa, who died at age 58,
could expect to live up to 65 years and to have an earning
capacity of US$176,400.
It must be noted that a worker's loss of earning capacity and
blacklisting are not to be equated with wages, overtime
compensation or separation pay, and other labor benefits that
are generally cognized in labor disputes. The loss of earning
capacity is a relief or claim resulting from a quasi delict or a
similar cause within the realm of civil law. "Claims for
damages under paragraph 4 of Article 217 must have a
reasonable causal connection with any of the claims provided
for in the article in order to be cognizable by the labor arbiter.
Only if there is such a connection with the other claims can
the claim for damages be considered as arising from
employer-employee relations." In the present case,
petitioner's claim for damages is not related to any other
claim under Article 217, other labor statutes, or collective
bargaining agreements.
Petitioner cannot anchor her claim for damages to Article 161
of the Labor Code, which does not grant or specify a claim or
relief. This provision is only a safety and health standard
under Book IV of the same Code. The enforcement of this
labor standard rests with the labor secretary. Thus, claims for
an employer's violation thereof are beyond the jurisdiction of
the labor arbiter. In other words, petitioner cannot enforce
the labor standard provided for in Article 161 by suing for
damages before the labor arbiter.
It is not the NLRC but the regular courts that have jurisdiction
over actions for damages, in which the employer-employee
relation is merely incidental, and in which the cause of action
proceeds from a different source of obligation such as a tort.
Since petitioner's claim for damages is predicated on a quasi
delict or tort that has no reasonable causal connection with
any of the claims provided for in Article 217, other labor
statutes, or collective bargaining agreements, jurisdiction
over the action lies with the regular courts -- not with the
NLRC or the labor arbiters.
IF DURING AN EMERGENCY AN EMPLOYEE WAS NOT GIVEN
ADEQUATE & IMMEDIATE ASSISTANCE, CAN HE CLAIM AN
ACTION UNDER ART 161? *** ANS: THERE WILL BE CIVIL
LIABILITY UNDER TORTS & DAMAGES. IF UNDER LC
THEN THE STATE INSURANCE FUND SHALL BE LIABLE.
WHAT IS A STATE INSURANCE FUND?
LIABILITY OF STATE INSURANCE FUND
ART. 172 (LC). LIMITATIONS OF LIABILITY
The State Insurance Fund shall be liable for compensation to
the employee or his dependents, EXCEPT when the disability
or death was occasioned by the employees:
a. Intoxication
b. Willful intention to injure or kill himself or another,
c. Notorious negligence, or otherwise provided under this
Title.
-Intoxication or Drunkennes - under this Article consists in
being under the influence of intoxicating liquor to the extent
that one is not entirely himself or so that his judgment is
impaired and his act, words, or conduct is visibly impaired.

-Self-inflicted Injuries - must be intentionally self-inflicted,

that is, there must be a deliberate intent on the part of the
employee, not a failure on his part to realize the probable
consequences to himself of his foolish act.

CONTRIBUTION FOR ECC ON ACCOUNT THAT THE

CONTRIBUTION MUST BE GIVEN BY HIS EMPLOYER.

-Notorious Negligence - is something more than simple

contributory negligence. It signifies a deliberate act of the
employee to disregard his own personal safety.

ART. 166 (LC). POLICY.

ART. 173 (LC). EXTENT OF LIABILITY.

Unless otherwise provided, the liability of the State Insurance
Fund under this Title shall be exclusive and in place of all
other liabilities of the employer to the employee, his
dependents or anyone otherwise entitled to receive damages
on behalf of the employee or his dependents. The payment of
compensation under this Title shall not bar the recovery of
benefits as provided for in Section 699 of the Revised
Administrative Code, RA No. 1161, as amended,
Commonwealth Act No. 186, as amended, Republic Act No.
610, as amended, and other laws whose benefits are
administered by the System, or by other agencies of the
government.
RULE AGAINST DOUBLE RECOVERY:
OPTIONS AVAILABLE: Benefits under the Compensation Law
OR Under the Civil Code. [Ysmael Maritime Corporation vs.
Avelino, G.R. No. 43674, June 30, 1987]
HELD: The action is selective and the employee or his heirs
have a choice of availing themselves of the benefits under the
WCA or of suing in the regular courts under the Civil Code for
higher damages from the employer by reason of his
negligence. BUT once the election has been exercised, the
employee or his heirs are no longer free to opt for the other
remedy, i.e., THE EMPLOYEE CANNOT PURSUE BOTH
ACTIONS SIMULTANEOUSLY.
Thus, the employees parents cannot be allowed to maintain
their present action to recover additional damages under the
Civil Code. They had previously filed and had received the
compensation payable to them under the WCA. They not only
opted to recover under this Act but had also been duly paid.
A sense of fair play demands that if a person entitled to a
choice of remedies made a first selection and accepted the
benefits thereof, he should no longer be allowed to exercise
the second option.
NOTE: * RULES Re Employers Liability for Death or Personal
Injuries of Employees
a.
b.
c.
d.
e.

Employer LIABLE - if the cause of death or personal

injury arose out of and in the course of Employment,
even if the event was purely accidental or fortuitous.
Employer NOT LIABLE if the cause of death or personal
injury was due to the employees own notorious
negligence, or voluntary act or drunkenness.
Compensation EQUITABLY REDUCED if the cause was
partly due to the employees lack of due care.
Employer SOLIDARILY LIABLE with guilty fellow worker
if the cause was due to the negligence of a fellow worker
Employer LIABLE - if the cause was due to the intentional
or malicious act of a fellow worker, UNLESS the employer
can prove that he exercised due diligence in selecting and
supervising said fellow worker, in which case, only said
fellow worker will be held liable.

NOTA: THERE SHOULD BE NO REDUCTION FROM EMPLOYEES

WAGES AS HIS

EMPLOYEES COMPENSATION ACT

The State shall promote and develop a tax-exempt

employees compensation program whereby employees and
their dependents, in the event of work-connected diability or
death, may promptly secure adequate income benefit, and
medical or related benefits.
Workmens Compensation - is a general and
comprehensive term applied to those laws providing for
compensation for loss resulting from the injury,
disablement, or death of workmen through industrial
accident, casualty, or disease. (Azucena, p.353).
Compensation, under the workmens compensation
statute, means the money relief afforded according to the
scale established under the statute, as differentiated
from
compensatory damages recoverable in an action at law
for breach of contract or for a tort. (Azucena, p. 353).
ECC RULES, Rule I. COVERAGE
(a.) Every employer shall be covered.
(b.) Every employee not over 60 years of age shall be
covered.
(c.) An employee who is coverable by both the GSIS and SSS
shall be compulsorily covered by both Systems.
ART. 167 (k), (LC). Injury means any harmful change in the
human organism from any accident arising out of and in the
course of employment.
Under Bk IV, Rule III, Sec. 1 (a), Implementing Rules:
(a.) For the injury and the resulting disability or death to be
compensable, the injury must be the result of an employment
accident satisfying all of the following grounds:
1. The employee must have been injured at the place where
his work requires him to be;
2. The employee must have been performing his official
functions; and
3. If the injury is sustained elsewhere, the employee must
have been executing an order for the employer.
NOTE: ECC IS GIVEN ON TOP OF THE SSS BENEFITS.
WHAT AGENCY REGULATES ECC? ANS: SSS.
Q:WHERE MUST AN EMPLOYEE GO IF DENIED CLAIMS FROM
ECC? A: ECC COMMISSION
MIGRANT WORKERS
Q: IS IT THE POLICY OF THE STATE TO PROMOTE
EMPLOYMENT OVERSEAS? A: NO. THE LAW ONLY
PROVIDES PROTECTION FOR THE EES OVERSEAS.
Q: WHAT GOVERNMENT AGENCIES ARE INVOLED FOR
REGULATION OF MIGRANT WORKERS?
Section 23. Role of Government Agencies. - The following
government agencies shall perform the following to promote
the welfare and protect the rights of migrant workers and, as
far as applicable, all overseas Filipinos:
(a) Department of Foreign Affairs - The Department, through
its home office or foreign posts, shall take priority action
or make representation with the foreign authority
concerned to protect the rights of migrant workers and

other overseas Filipinos and extend immediate assistance

including the repatriation of distressed or beleaguered
migrant workers and other overseas Filipinos;
(b) Department of Labor and Employment - The Department
of Labor and Employment shall see to it that labor and
social welfare laws in the foreign countries are fairly
applied to migrant workers and whenever applicable, to
other overseas Filipinos including the grant of legal
assistance and the referral to proper medical centers or
hospitals:
(b.1) Philippine Overseas Employment Administration Subject to deregulation and phase-out as provided
under Sections 29 and 30 herein, the Administration
shall regulate private sector participation in the
recruitment and overseas placement of workers by
setting up a licensing and registration system. It
shall also formulate and implement, in coordination
with appropriate entities concerned, when necessary,
a system for promoting and monitoring the overseas
employment of Filipino workers taking into
consideration their welfare and the domestic
manpower requirements.
(b.2) Overseas Workers Welfare Administration - The
Welfare officer or in his absence, the coordinating
officer shall provide the Filipino migrant worker and
his family all the assistance they may need in the
enforcement of contractual obligations by agencies
or entities and/or by their principals. In the
performance of this function, he shall make
representation and may call on the agencies or
entities concerned to conferences or conciliation
meetings for the purpose of settling the complaints
or problems brought to his attention.

WHO IS A MIGRANT WORKER? A: A person who is to be

engaged, is engaged or has been engaged in a
remunerated activity in a state of which he or she is
not a legal resident; to be used interchangeably with
overseas Filipino worker.
WHAT IS ILLEGAL RECRUITMENT & PLACEMENT? WHAT IS
THE DIFFERENCE BETWEEN LICENSE & AUTHORITY?
A: Illegal recruitment is deemed committed by a SYNDICATE
when it is carried out by a group of three (3) or more persons
conspiring or confederating with one another. It is deemed
committed in LARGE SCALE if committed against three (3) or
more persons individually or as a group.
A license is a document issued by the Department of Labor
and Employment (DOLE) authorizing a person or entity to
operate a private employment agency, while an authority is a
document issued by the DOLE authorizing a person or
association to engage in recruitment and placement activities
as a private recruitment entity. However, it appears that even
licensees or holders of authority can be held liable for illegal
recruitment should they commit any of the above-enumerated
acts.
BAN ON DIRECT HIRING; TRAVEL AGENCIES
ART. 18. Ban on direct-hiring. - No employer may hire a
Filipino worker for overseas employment except through the
Boards and entities authorized by the Secretary of Labor.
Direct-hiring by members of the diplomatic corps,
international organizations and such other employers as may
be allowed by the Secretary of Labor is exempted from this
provision.
ART. 26. Travel agencies prohibited to recruit. - Travel
agencies and sales agencies of airline companies are
prohibited from engaging in the business of recruitment and

placement of workers for overseas employment whether for

profit or not.
IF THRU FB A FRIEND OFFERED YOU A JOB IN CANADA, CAN
I BE EMPLOYED THIS WAY? A: YES, AS A NAME HIRE.
THEREFORE, I AM NOT PROTECTED BY FOREIGN
EMPLOYMENT LAW BEC IT ONLY APPLIES TO
EMPLOYMENT COURSED THROUGH POEA.
CAN ILLEGAL RECRUITMENT BE COMMITTED AGAINST AN
INDIVIDUAL? YES ACTS OF ILLEGAL RECRUITMENT
DOES THE LAW REQUIRE NATIONALITY IN THE RECRUITMENT
1. A FILIPINO CITIZEN
2. IF CORP MUST BE EMPLOYING 75% FILIPINO
3. BLOCKLISTING
4. IMMORAL EMPLOYMENT
5. ACTS THAT OBSTRUCT THE GOV AGENCIES
IS THERE A PROVISION OF LAW ON MANDATORY
REMITTANCES OF FOREIGN EXCHANGE EARNINGS?
ANS: YES. ART 22 OF LABOR CODE
ARE TRAVEL AGENCIES QUALIFIED IN RECRUITMENT &
PLACEMENT BUSINESS? ANS: NO. THEY ARE PRONE TO
ABUSE BECAUSE THEY TEND TO PROMISE EMPLOYMENT
ABROAD.
WHAT COULD BE A VALID REASON OF FAILURE TO DEPLOY
AN APPLICANT? WAR
WHAT IS THE UNAUTHORIZED INTEREST ON LOANS? MORE
THAN 8%
MR SAYSON WAS GIVEN 2YRS CONTRACT IN CANADA, AFTER
6 MOS THE EMPLOYER TERMINATED HIS EMPLOYMENT. HE
WAS REPATRIATED.
Q: WAS HE ILLEGALLY DIMISSED? YES. WHAT ARE HIS
RELIEFS? A: MONEY CLAIMS REPRESENTING FULL
REIMBURSEMENT OF PLACEMENT PAY AT 12% PER
ANNUM, PLUS HIS SALARIES FOR THE UNEXPIRED
PORTION OF HIS EMPLOYMENT CONTRACT.
NOTE: The Overseas Workers Welfare Administration
(OWWA), in coordination with appropriate international
agencies, shall undertake the repatriation of workers in cases
of war, epidemic, disaster or calamities, natural or man-made,
and other similar events without prejudice to reimbursement
by the responsible principal or agency. However, in cases
where the principal or recruitment agency cannot be
identified, all costs attendant to repatriation shall be borne by
the OWWA.
CAN CONGRESS PASS A LAW WHICH HAS BEEN DECLARED
BY THE SUPREME COURT TO BE UNCONSTITUTIONAL?
The legislature has no power to overrule the interpretation or
construction of a statute or the Constitution by the the
Supreme Court, for interpretation is a judicial function
assigned to the latter by the fundamental law. While the
legislature may indicate its construction of a statute in the
form of a resolutory or declaratory act, it cannot preclude the
courts from giving the statute a different interpretation.
---Endencia vs. David, 93 Phil 696; Chinese Flour Importers'
Assn. vs. Price Stabilization Board, 89 Phil. 439
The Supreme Court ruled that the legislature cannot override
its interpretation of the constitutional provision. Explains the
Court: "Under our system of constitutional government, the
legislative department is assigned the power to make and
enact laws. The executive department is charged with the
execution or carrying out the provisions of said laws. But the

interpretation and application of said laws belong exclusively

to the judicial department. And this authority to interpret and
apply the laws extend to the Constitution. Before the court
can determine whether a law is constitutional or not, it will
have to interpret and ascertain the meaning not only of said
law, but also of the pertinent portion of the Constitution in
order to decide whether there is a conflict between the two,
because of there is, then the law will have to give way and
has to be declared invalid and unconstitutional. If the
legislature may declare what a law means, or what a specific
portion of the Constitution means, especially after the courts
have in actual case ascertained its meaning by interpretation
and applied it in a decision, this would surely cause confusion.
Under such system, a final court determination of a case
based on a judicial interpretation of the law or of the
constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or the
consitution by the legislative department. That would be
neither wise nor desirable, besides being clearly violative of
the fundamental principles of our constitutional system of
government, particularly those governing the separation of
powers.
SPECIAL CASES FOR REVIEW:
A.

B.

scope of liability of indirect employer for unpaid

wages , & for wages increases under RA 6727,
limited to statutory wage , excluding increase in overtime
pay , premium pay etc., as held in 2005 National Food
Authority
rules on holiday pay & special day: (a) regular holiday
falling on employees rest day;

E.

employment of apprentice, learner & handicapped

worker; handicapped worker distinguished from disabled
person under Magna Carta for disabled Persons; see also
concept of working scholar under omnibus rules where
no employer-employee relationship & resident physicians
undergoing training in hospitals

F.

right of helpers against illegal dismissal & effect of illegal

dismissal, held in 1999 Ultra Villa Food Haus; rights of
househelper

G.

see 2005 Barrayoga, where workers preference under

Art.110 is considered an ordinary preferred credit; it is
first priority in order of preference under Art. 2244 of
Civil Code but not over special preferred credits under
Art. 2241 & 2242, like mortgage credit. It cannot apply
outside a bankruptcy or judicial liquidation proceeding.

H.

Entitlement to retirement pay on top of separation pay in

case of retrenchment depends on retirement plan, held in
2004 Cruz

I.

In the absence of age of retirement in the CBA, (or

employment contract or retirement plan), the age of
retirement under the law will apply, retirement being a
bilateral act, requires an agreement between the
employer and the employee

J.

2007 Intercontinental Broadcasting Corp., which uses Art.

1155 of Civil Code on the interruption of prescriptive
period for money claims of workers

K.

2008 Atty. Ortiz , involving a petition with the Supreme

Court to recover attorneys fees from the employer bases
on NLRCs decision after the lawyers clients agreed to
accept settlement of their cases without the lawyers
conformity; since award pertains to the employees and
not to the lawyer as indemnity for damages, the former
can waive the same and the lawyer has no legal standing
(not the real party in interest) to prosecute the same
against the employer; even if the lawyers clients agreed
to treat the award of attorneys fees as lawyers fees, the
10 % should be based on the amount that his clients
have agreed to accept as settlement , as this is
considered the amount of wages recovered; remedy of
lawyer who is aggrieved is to sue his clients; quit claim
executed by client does not require conformity of his
counsel to be valid, citing 2005 Danzas Intercontinental,
Inc.; award of attorneys fees under Art. 111 does not
require proof that employer acted maliciously or in bad
faith

L.

motion to enforce attorneys lien filed with labor arbiter

during execution stage , to recover contingent fee as
agreed in writing with client is valid , held in 2009
Masmud; Art. 111 on 10 % limitation applies only to
extraordinary attorneys fees and to ordinary attorneys
fees

M.

legal reliefs of OFW under Migrant Workers & Overseas

Filipino Act ; see 2009 Serrano En Banc , declaring par
5 , Sec. 10 RA 8042 unconstitutional insofar as it limits
the award to three months for every year of unexpired
term, whichever is less , stating that an OFW who is
unjustly dismissed is entitled to his salaries for the
unexpired portion of his employment contract; it violates
the equal protection clause : it creates a sub-layer of
discrimination among OFWs whose contract periods are
for more than one year : those who are illegally
dismissed with less than one year left in their contracts
shall be entitled to their salaries for the entire unexpired
portion thereof, while those who are illegally dismissed
with one year or more remaining in their contracts shall

(b) two regular holidays falling on employees rest day ;(c)

two regular holidays falling on the same day; see also
2002 San Miguel Corp. on applicability of muslim holidays
ti bib-muslims in muslim regions; see also DOLE
Explanatory Bulletin dated March 11, 1993 affirmed as
valid on two (2) regular holidays falling on the same day,
as held in 2004 Asian Transmission Corp. case, as there
is no reduction of number of holidays
C.

Drivers paid on boundary basis excluded from 13th

month pay , held in 2004 R&E Transport; prorating of
13th month pay of workers for period while they were on
strike, held in 2005 Honda Phils. Was illegal due to
company CBA making no such qualification, citing 1993
Davao Fruits

D.

Commission included in basic salary ,held in 1995 Phil.

Duplicator ; however excluded in 1993 Boie Takeda
Chemicals ; but see 2007 Reyes , citing the 1993 case of
Boie Tkeda Chemicals & 1995 case of Phil. Duplicators ,
commissions received by a unit manager cannot be
considered in the computation of the retirement pay and
the 13th month pays as they are in the form of profit
sharing payment s and had no clear , direct or necessary
relation to the amount of work he actually performed .
Here the unit manager does not enter into actual sale
transactions, and the commissions were not regularly
received by him; and see also 2008 Letran Calamba
Faculty & Employees Association, where overload pay
should be excluded from the 13th month pay ; as it is
paid for additional work in excess of the regular teaching
load , similar to overtime pay ; this rule applies
regardless whether the overload is an additional or extra
teaching load has been completed . Hence, any pay given
as compensation for such additional work should be
considered as extra and not deemed as part of the
regular or basic salary.

be covered by the subject clause and their monetary

benefits limited to their salaries for three months only
(The three (3) months salary cap applies when the term
of the contract is fixed at one (1) year of longer)
N.

see 2007 Sim , where the claim of an Italian remittance

marketing consultant hired by the bank overseas is
governed by Philippine laws , applying Sec.10 , RA No.
8042 otherwise known as the Migrant Workers and
Overseas Filipino Act of 1995 and thus her claim is
withing the jurisdiction of the labor arbiter ; see also
2007 EDI-Staff Builders International , under the
international law doctrine of presumed-identity approach
or processual presumption, when a foreign law is not
pleaded or , even if pleaded , is not proved, the
presumption is that the foreign law is the same as ours ,
Thus , we apply Philippine Labor Laws in determining the
issues presented .

incorporating in the security service contract the salary

increases mandated by the wage orders by increasing the
contract price of per guard. There is no double burden of
paying twice for the workers services, since under Art.
1217 of the Civil Code, if the GSIS should pay the
monetary claims, it has the right to recover from the
contractor whatever amount it has paid , citing 1998 case
of Rosewood Processing, Inc.
T.

Illegal contracting out of job of salesmen , the contractor

having no substantial capital, only P625th paid up, held
in 2009 CCBPI; the sales job is indispensable to business
of CCBPI ; contractor is merely recruiter and supplier of
workers ; DOLE registration as contractor not conclusive
since registration of for janitorial service and not for
selling ; contract failed to state what specific job subject
of contracting ; CCBPI prescribed the criteria that
contractor needs to follow ; workers used the tools of
CCBPI ; contractor did not exercise control , and element
of control is exercised by CCBPI based on the terms of
the contract.

U.

Cross-claim of contractor against the principal for

reimbursement after being held jointly and severally
liable is not a labor dispute and not within the jurisdiction
of the labor arbiter , held in 2008 Jaguar Security and
Investigation Agency , as there exists no employeremployee relationship , citing 2000 Lapanday Agricultural
Development Corp.,

b) salaryceiling method - wage adjustment is applied to

employees receiving a certain denominated salary ceiling,
e.g. wage order setting a specific salary, say, P250.00,
where only those earning below it shall be entitled to the
salary increase; when it issues a wage order, the RTWPB
exercises quasi-legislative power, and not quasi-judicial
power. The decision of the RTWPB is appealable to the
NWPC and not to the Court of Appeals

V.

there is no law providing for commutation of unused or

accrued sick leave credits in the private sector; it is
allowed by way of voluntary endowment by and employer
through a company policy or by a CBA, held in 2008 Phil.
Airlines; E.O. No. 1077 on the computation of creditable
vacation and sick leaves of government officers and
employees, not applicable to PAL even if subsequently it
was privatized.

Q.

waiver of overtime pay under a compressed workweek is

valid, held in 2008 Bisig Manggagawa sa Tryco

R.

Suspension of Labor proceedings when employer is

placed under rehabilitation , held in 2007 Phil. Airlines ,
citing Rubberworld

S.

2006 Aboitiz Haulers, Inc., labor only contracting

exists when the following criteria are present: (a) where
the person supplying workers to an employer does not
have substantial capital or investment , (b) the workers
recruited and placed by such person are performing
activities which are directly related to the principal
business of such employer; and (c) the contractor does
not exercise the right of control the performance of the
work of the contractual employee. All three
aforementioned criteria need not to be present. If the
contractor enters into an arrangement characterized by
any one of the criteria provided, this is labor-only
contracting; see also 2007 Government Service &
Insurance System, where the GSIS cannot evade liability
by claiming it had fully paid the workers salaries by

W. Art. 157 of the Code does not require employment of

doctor as a regular employee, held in 2009 Escasinas
where a doctor retained by hotel was not an employee
but an independent contractor , cited 2005 Phil. Global
Communication ; Note 2008 Calamba Medical Center,
where a resident physician was considered and employee
of hospital, applying the 4 fold test, as he was classified
as non-training general practitioners , different from
training resident physicians; see also 2006 Nogales,
where a visiting physician or consultant of hospital
considered an independent contractor-physician, and not
an employee, citing 1999 Ramos case.

O.

dismissal of a female worker by reason of pregnancy

considered violative of Art. 137, held in 2007 Del Monte
Phil.

P.

two methods of determining wages under RA 6727 , held

in 2007 Metropolitan Bank & Trust Co.,
a) floor wage method - fixing of determining amount to
be added to the prevailing statutory minimum wage
rates, e.g. setting P10.00 to be added; and

GOOD LUCK!!!