Handout 001

Pre-Week Simplified Reader

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SURVIVAL NOTES IN LABOR LAW1

Atty. Benedict G. Kato
Labor Arbiter, Professor of Law, Bar Reviewer, MCLE Lecturer
I
PRINCIPLES AND POSTULATES
The Full Protection Clause
1.

Protection Outside Art. 136, PD 442 (Star Paper Corp. vs. Simbol, et al., April 12, 2006).
No Couples Policy: Employees of this company shall not marry one another. (1) If
they do, the wife shall resign or shall be deemed resigned. This policy violates Art. 136
as it amounts to disparate treatment) by reason of marriage (direct discrimination;
hence, the policy is void. (2) If they do, one of them shall resign or shall be deemed
resigned. This policy does not single out the wife; hence, it is valid under Art. 136 for
being facially neutral. But it is void under the Full Protection Clause for its disparate
impact (indirect discrimination).

2.

Protection Outside Art. 291, PD 442 (Accessories Specialist, Inc. vs. Alabanza, July 23,
2008).
Pursuant to Art. 291, money claims prescribe in 3 years. An unpaid employee
dies on his claim after 5 years of promises of payment. If the claim is brought after 3
years, it is not prescribed under the Principle of Promissory Estoppel. Elements: (1)
employer makes a promise which induces belief or inaction; (2) employee relies on the
promise; and (3) his reliance on the promise is prejudicial to him.

3.

Protection Outside POEA-Approved Contract. (Datuman vs. First Cosmopolitan

Manpower & Promotion Services, Inc., Nov. 14, 2008). Under POEA rules, a recruiters
solidary liability with his foreign principal arises from violations of the terms of the POEAapproved contract. If the contract sued upon is a second contract executed abroad
without the knowledge and consent of the recruiter, the latter is not liable. Exception:
the second contract is a continuing violation of the POEA-approved contract because
the OFW is forced to execute it with another employer to legalize her continuing stay
overseas as her first employer has violated the terms of her first contract.

4.

Protection Outside Philippine Territory (Sim vs. NLRC, Oct. 2, 2007). Jurisdiction over the
person of a foreign employer is acquired thru service of summons on his local agent. If
no agent, acquisition of jurisdiction is impossible. Exception: both employee and
employer are Filipino nationals (Corazon Sim & Equitable Bank) entering into an
employment contract abroad (Italy). In the event of an illegal dismissal, Sec. 10 of RA
8042, as amended, allows the employee to sue before the Labor Arbiter. By virtue of said
provision, Philippine Labor Relations Law has become extra-territorial. Therefore, the
employer cannot interpose lex ex contractu, or law of the place of the contract.

CAVEAT: For mature readers only. The memory tools are unconventional.

5.

Protection Outside the Substantial Evidence Rule (The Cate Case/GSIS vs. CA, Jan. 28,
2008). To be compensable, a disability arising from disease must be work-related, i.e.,
the disease is occupational in nature. It is occupational if it is a listed disease. If not listed,
like Osteoblastic Osteosarcoma (not in Annex A, Employees Compensation Act) , the
resulting disability would not be compensable. Exception: the GSIS member can
adduce substantial evidence to prove work-connection. Exception to the exception: if
even medical science cannot explain the origin of Osteosarcoma, the condition to show
work-connection with substantial evidence is deemed not imposed, In fact, the
condition is void.
Note: Full protection means there is protection outside (1) statutory law (Star Paper
case & Alabanza case); (2) employment contract (Datuman case); (3) law of the
place of execution (Sim case); and (4) substantial evidence rule (Cate case).
Preferential Use of Voluntary Modes
Jurisdiction by Stipulation
(Vivero vs. CA, Oct. 24, 2000)

Jurisdiction over the subject matter of a case is conferred by law, e.g., Art. 217, PD 442
(Jurisdiction of the Labor Arbiter). Parties are not at liberty to stipulate where to litigate.
Exception: Parties to a CBA can stipulate to bring cases listed under Art. 217 to voluntary
arbitration. However, is must be by express stipulation. This is allowed by Sec. 3, Art. XIII of the
Constitution which requires preferential use of voluntary modes of settling labor disputes.
UPDATE: RA 10396 Pre-litigation conference (SEnA conference) is a pre-requisite for
filing of labor complaints. Labor agencies shall not accept complaints unless the parties have
undergone mediation.
Just and Humane Conditions of Work
1.

Anti-Sexual Harassment Act (RA 7877)

Background: Women had no right to work. In the rare instances they were given work,
they had to answer with their dignity in a quid pro quo (I give, You give) relational set-up.
(I give you work if you sleep with me, cum2 with me, etc...) RA 7877, which applies to
both sexes, punishes this practice. Sexual harassment is committed: (1) in a WET envt
(work, education, training); (2) by Pastor TETE (pastors/priests, teachers, employers,
trainors, employees) with MIA (moral ascendancy, influence or authority); (3) thru DRR 4
sexual favor (demand, request, requirement); (4) with promise of WCOER (in a work
envt: continuing employment, other considerations, employment, re-employment); or
ET-GASHOS (in an education/training envt: grade, allowance, scholarship, honors, other
considerations, stipend); (5) where the DRR 4 sexual favor may either be ACCEPTED or
REJECTED; (6) provided, the rejection turns the WET envt into a HOI envt (hostile,
offensive, intimidating);
(7)
as manifested by the victims
SCD (segregation,
classification, or discrimination).

Come pala.

Note: Acceptance of DRR is not a defense. What the law punishes is not the violation of
the sexuality of the offended party but abuse by the offender of his MIA.
Phil. Aeolus Automotive United Corp. vs. NLRC, April 28, 2000: Employers verbal acts: I
luv u, I mis u mwah, mwah, mwah Physical acts: tatz hir, tatz dr. Reaction:
Rejection. Reaction to reaction: If I have no space in your heart, you have no space in
my office PLUS dismissal. Guilty: WET became HOI.
Atty. Susan Aquino vs. Justice Ernesto Acosta (CTA), April 2, 2002: Physical act: beso
beso, nothing else more. WET did not become HOI. Exonerated with a simple
admonition: Nxt tym, b crcumspct. N do nt 4get 2 brsh ur teeth!
Erlinda Alcuizar vs. Judge Emmanuel Carpio (RTC Davao), Aug. 7, 2007, en banc:
Physical acts: kissed stenographer, signalled to her to enter the CR to kiss inside; and
gave her P500.00 - no more!. WET did not become HOI. Evidence: stenographer
continued going inside the judges chamber. This was taken against her.
Digitel vs. Mariquit Soriano, June 26, 2006 (The Digitel Sex Scandal) : Effect of delay on
credibility of complaint. 11 months after resigning, following a superior act of poking
her pussy3 with his finger and another superiors act of pressing her body against his
while dancing, Mariquit filed her complaint. Defense: Delay. Argument of Mariquit: The
delay of Miss Cortez in the Phil. Aeolus Automotive Case ( supra ) was 4 years, yet it was
not taken against her. Hers was 11 months only. SC: Mariquits case was different. In
the case of Miss Cortez, she was still employed. So it was reasonable not to expect her to
file her complaint while she was still employed; otherwise, she would have lost her job
sooner than she did. In Mariquits case, she resigned; hence, she had nothing to protect
anymore. Yet she incurred in delay. Note: When her pussy was being poked, Mariquit
did not run or slap Mr. Go. When Mr. Go asked for a dance, she did not flee, although
her pussy had been poked earlier. SC said this was against human experience. Harry
Roque sued the SC before the UN for rendering judgment against the CEDAW.
According to him (galit na naman si pogi), the SC based its judgment on stereotyped
human experience whereas the CEDAW requires elimination of stereotyping. Note also:
Mr. Go died while the criminal case against him was pending. Lesson: Poke not a pussy.
When it meows, you die!
Domingo vs. Rayala, Feb. 18, 2008 (The NLRC Sex Scandal): Evidence of DRR 4 Sexual
Favor.
Under the Three-fold Liability Rule, an act may result in 3 types of liabilities:
administrative, civil and criminal. To establish these liabilities, these are the quanta of
proof:
substantial evidence, preponderance of evidence, and proof beyond
reasonable doubt following order of appearance. Rayala, who was before the SC to
contest his dismissal for grave misconduct under Civil Service Law, cried: Whr s d pruf
beyond reasonable doubt of my DRR? I jst tatzd hr shldr n sed may bf k n?; bkit laki2
balakang m? Justice Nachura (ponente) answered: Your case is administrative. Im
just looking for substantial evidence. Based on the totality of the circumstances, I find
you liable for sexual harassment. That the work environment of Lotlot became hostile
takes the place of DRR.
2.

The Kasambahay Act

(1)
A kasambahay renders domestic work and says HelLau GarCya. (Helper,
Laundry person, Gardener, Cook, Yaya) EXCEPT Foster (children under foster

Legal term: citadel of virtue; Debatable term: private part.

(2)

(3)

3.

family arrangement who are given access to education plus allowance) and
those engaged sporadically or _______.
The K rights are 13 Sleeps with Orgs then Rest and Rest , inter alia. (13th
month pay, service incentive leave (SIL), self-organization, 8 hours daily rest,
weekly rest period). Others: privacy, education, board & lodging, medical
attendance, no privileged communication when suing employer & just &
humane conditions (no massage).
His/her hours of Work are:
if 15 17 years old (law says below 18) - 8 Hours only (absolutely no extra work). If
18 & above - Not expressly provided.
Note: If, as provided by the Kasambahay Act, the monthly pay is fixed at
P2,500.00, or P2,000.00, or P1,000.00 depending on place of work - then normal
hours of work must also be fixed. Therefore, it is either 8 hours (Art. 83, PD 442
which is a special law) or 10 hours (Art. 1596, NCC which is a general law).
Which prevails? You know what to do. But before doing what you are about to
do, the first thing to do is to harmonize these laws.
The Kasambahay Act
provides that the parties shall agree on hours of work. Either this is the wisdom of
the law or its accidental virtue. If the agreement is to fix normal hours of work at 8
hours/day then the P2,500.00, or P2,000.00, or P1,500.00 would be reasonable. If
10 hours, or more (but not in excess of 16 hours because the daily rest must not be
less than 8 hours) then the pay must be increased. With this, there is no need for
PDD 442 and NCC to quarrel.

RA 9231
Note: Under PD 442, (1) less than 15 cannot be employed except by parents or
guardian , provided opportunity for schooling is not impaired; provided further
that hours of work shall not exceed 4 hours on any given day and 20 hours a
week; whereas, (2) 15-18 can be employed provided with DOLE supervision and
child is not exposed to hazardous and deleterious work conditions; provided
further that hours of work shall not exceed 8 hours on any given day and 40 hours
a week. This said, why is Ryzza Mae, who is less than 15, employed by a juridical
person such as GMA? RA 9231 allows it for public entertainment under these
conditions, inter alia: DOLE permit; opportunity for schooling not impaired; cannot
promote alcohol, cigarette, violence; cannot be employed underground, in
high-rise buildings, under water; cannot produce dynamites, etc

Due Process Clause & Equal Protection Clause

2009 Serrano Doctrine vs. RA 10022
(Operative Fact Doctrine vs. Raison detre ; Sec. 4(3), Art. VIII, Constn; 2011 Yap vs. Thenamaris )
Sec. 10, RA 8042: In the event of an illegal pre-termination of an OFW contract, salaries
for the un-worked portion of the contract must be paid. The money award shall either be (a)
number of months x salary, or (b) 3 months salary x the number of years there are in the
remaining months whichever is lesser.
What is wrong with the formula? In the 2009 Serrano case, the SC held that it violated
the Due Process Clause and the Equal Protection Clause. How? As to the first, if letter (B) were
awarded for the reason that the contract is at least 1 year ( 1999 Marsaman ruling), salaries for
the excluded months will be taken away without rhyme or reason except that it is what RA 8042
provides and nothing else more. Since salaries for those excluded months are property to the
OFW, they are deemed taken without due process of law. As to the second, RA 8042 makes a
distinction between OFWs with less than 1 year or contract and those with at least 1 year then

treats them differently as to amount of salaries. This is a classification. To be valid, it must serve a
State interest. Under the Strict Judicial Scrutiny Test, a classification and the State interest it
seeks to protect must have a necessary connection. In Serrano, the Solgen revealed that the
purpose of the law was to minimize the legal injury suffered by recruiters/local agents who
ended up dragged to court to answer for acts committed by their foregoing principals, over
which they had no control. This was not State but private interest; hence, the classification was
void.
Serrano was a perfect ruling, except that Congress re-enacted the formula in 2010 when
it passed RA 10022. Which prevails now, case law or statutory law? In 2011, the SC decided
Yap vs. Thenamaris. It still applied the Serrano ruling. However, it cannot be said that the SC
upheld the primacy of Serrano over RA 10022. Truth is, it was not aware of the new law because
it was never pleaded. If Sec. 4(3), Art. VIII of the Constitution were applied, the only way the
Serrano ruling can be undone is for the SC to render a contrary ruling in a decision rendered en
banc. Congress cannot undo it by passing RA 10022.
Meantime, two (2) theories present themselves for consideration, viz.: Operative Fact
Doctrine and Raison detre. Under the first, the re-enacted formula is valid and will continue to
produce legal effects until nullified, i.e., in a case similar to Serrano. Under the second, the
reason for the existence of the Serrano ruling must be kept in view at all times, viz., the violation
of the Due Process Clause and the Equal Protection Clause. Hence, what was void in 2009 is still
void up to now. Obviously, the first favors recruiters, whereas the second favors OFWs. Advice:
Wait for your instruction. If the examiner directs you to lawyer for the OFW, you apply Raison
detre; otherwise, you apply the Operative Fact Doctrine. If he says DECIDE, you will surely
earn credit regardless of your choice of theory full credit if your answer has LLL (Law,
Language & Logic).
UPDATE: The lesser amount rule is void. Serrano Doctrine is revived ( Sameer Overseas
Placement Agency, Inc. Joy Cabiles, G.R. No. 193652, 5 Aug. 2014).
Social Justice Clause
(Catchphrases for Essay Questions)
1.

Meaning: Social justice is the humanization of laws and equalization of social and
economic forces by the State so that justice in its rational and objectively secular
conception may at least be approximated. ( Calalang vs. Williams, Dec. 2, 1940)

2.

Postulate: The basis of labor law is police power; its purpose is social justice.

3.

Application:
Pro Labor: Articles 4, 110, 106-109, 287, etc. (humanizing provisions of PD 442)
Pro Employer - Social authorizes neither oppression nor self-destruction of an
employer.
Balanced Application: Justice is for the deserving, to be dispensed in the light of the
established facts and applicable law and doctrine.
CIVIL LAW PRINCIPLES

Principle of Abuse of Rights (Edgardo Eviota vs. CA, July 29, 2003). Application: The right to
resign is one thing. It is quite another to exercise it in accordance with Art. 285, PD 442, by
giving the required 30-day notice. Eviota omitted service of the required notice, abusing of his

right to resign (Art. 19, NCC). Besides omitting the required notice before joining his new
employer, he uttered derogatory remarks against his first employer. Liable for civil damages.
RTC has jurisdiction.
Principle of Least Transmission of Rights (Gerlach vs. Reuters Ltd., Phil, Jan. 17, 2005). Application:
In the interpretation of a non-contributory retirement plan , where none of the provisions of the
NCC on the interpretation of gratuitous contracts applies, the construction that will transmit the
least rights and interests shall be adopted (Art. 1378, NCC).
Theory of Imputed Knowledge (SUNACE Intl Mgt Services, Inc. vs. NLRC, Jan. 25, 2006).
Application: Knowledge of the agent is knowledge of his principal not the other way around.
The Necessitous Man
Orchard Golf & Country Club vs. Francisco, March 18, 2013. Background: The operative fact in
constructive dismissal is the employees act of quitting (Phil. Japan Active Corp. vs. NLRC, ),
resigning ( ), foregoing with his job ( ), or ceasing to be employed ( ). The bottomline is selftermination because continued employment has been made impossible by the employer, or
continued employment has become prejudicial to the worker who is left with no option except
to self-terminate (resign, forego, cease) to avoid involuntary servitude. Note: In the Orchard
case, the employee continued to report for work (although she was demoted) and to receive
her salaries (although reduced).
In other words, there was no complete severance of
employer-employee relationship which is the touchstone of dismissal. However, the SC ruled
that she was constructively dismissed. Why: ill-treated by her company which imposed on her
suspension after suspension until she was finally demoted from the position of Club Accountant
to accounts officer, she had no option except to continue working. She was a necessitous
person. Except to continue is the exact opposite of except to forego. But the SC is always
correct and, in the few instances it is wrong, it is still correct.
II
EMPLOYER-EMPLOYEE RELATIONSHIP
Tests
1.
2.
3.
4.

Control Test (CT). Question to ask Who is the master of the alleged employees means
and methods of performance?
Economic Reality Test (ERT). Question to ask Is the alleged employee economically
dependent on his alleged employer? Contra-indications: he has other employers or
principals (PDI case, 2006).
Two-tier Test. The ERT is used to confirm CT.
Ecclesiastical Affair Test. If the dispute arises from the relation between church and
member (e.g. pastor), LA has jurisdiction if the dispute is an employer-employee affair
(dismissal for a just cause under Art. 282, old). If the dispute is an ecclesiastical affair (e.g.,
suspension of the faculties of a priest for preaching that Mary Magdalene was Jesus
GF) then LA has no jurisdiction. An ecclesiastical affair (as contrasted to employeremployee affair) has something to do with: faith, religious belief, dogma, governance of
the faithful, ordination, or ex-communication (Austria vs. NLRC).
Note Art. 280 (desirable & necessary) is not a test of employer-employee relationship but
of regularity of employment. (Atok Big Wedge Mining Co. vs. Gison, Aug. 8, 2011 ). One
may be engaged to perform work necessary and desirable but it does not follow that he

is an employee. He may be an independent contractor. In this connection, Art. 157

which requires employers to provide medical services does not require employment of
doctors and nurses as regular employees. They may be engaged as contractual
employees only ( Cinco ruling).
Not employees: (a) PBA Referee; master of means and methods (Bernate vs. PBA, Sept.
14, 2011); (b) Masiador/, Sentenciador of cockfights; experts in their own right
(Semblante, et al. vs. CA, Aug. 15, 2011).
Characteristics
(CRISI & I Relationship full of Questions)
C
R

S
I
I

Contractual (Art. 1700, NCC)

Relation between Master & Servant (prerogative to adopt rules; can
dismiss for insubordination under Art. 282)
In personam (no successor employer, except:
piercing the veil,
instrumentality rule, express agreement)
Shared-responsibility (Sec. 3, Art. XIII, Constn)
Impressed with public interest (correlate to Art. 263g)
Inter-party relationship. Industrial peace cannot be achieved thru State
compulsion. Hence, parties to a labor dispute must be left to themselves
to resolve it with minimum State interference (Prof. Azucena).
Question of fact. Labor tribunals determine its factual existence. Courts
must respect and accord finality to their finings if based on substantial
evidence.
Question of law. Law determines when it exists. Parties to a contract (e.g.
service agreement between a principal and job contractor) cannot
stipulate against its existence.

III
JURISDICTION
A
Jurisdictional Tests
Reasonable Causal Connection Rule & Reference to Labor Law Rule. It is not enough that the
issue born of the allegations of the complaint and relief prayed for has a reasonable causal
connection to employer-employee relationship. For labor tribunals to have jurisdiction, said issue
must be resolvable thru the application of the labor Code, other labor statutes or labor
contracts. If other laws are needed to resolve it, the courts have jurisdiction.
Relationship Test & Nature of Controversy Test. In terminations, the first question to ask is : Who
are the disputants? Answer: (a) corporation & corporate officer (in general, RTC); (b)
corporation and corporate employee (in general, LA ). You do not stop here. Second question
to ask: What law is needed to resolve the issue born of the allegations of the complaint and
relief sought? Answer: (a) corporate law (RTC); (b) Labor Law (Labor tribunal).
Relationship Test & Ecclesiastical Affair Test, supra.
NOTE: Rules on Immunity

1. GTZ v. CA, G.R. No. 152318, 16 April 2009

2.
3.
Bar 2014
Forum Non Conveniens
B
Interplay of Jurisdiction
SOLE & BLR: Two Instances
1.
SOLE to BLR.
Inter-union
disputes involving WACLIU (workers associations,
chapters, locals & independent unions) and intra-union disputes get initiated before the
DOLE RD. Appeal is to the BLR (Art. 226, PD 442). In Barles, et al. vs. Bitonio, June 16,
1999, the appeal was taken to the SOLE who transmitted it to the BLR. The appellant
questioned the move as an abdication of appellate power in favor of an inferior body.
The SC ruled that it was BLR which had appellate jurisdiction.
2.
BLR to SOLE. Petitions for the cancellation of union CRs are initiated with the
DOLE RD. Appeal from cancellation orders are taken to the BLR. In Heritage Hotel Mla
vs. NUWHRAIN-HHMSC, Jan 12, 2011, the BLR Director inhibited because he used to be
counsel for the respondent. The appeal was elevated to the SOLE who resolved it. No
grave abuse. SOLE can resolve the appeal in the exercise of her power of control and
supervision over the BLR.
DOLE RD (Art. 128, PD 442) and LA (Art. 217, PD 442).
1
Under Art. 128, the RD may be ousted of his jurisdiction on two grounds: (a) cessation of
employer-employee relationship, provided it takes place before he takes cognizance of
the dispute; and (b) the employer raises issues which are supported by documents
which were not considered in the course of summary inspection, although these were
verifiable. The result of ouster is the transmittal of the case to the LA for reception of the
ignored evidence via position paper, etc. On his own, the RD may also oust himself for
lack of jurisdiction due to cessation of employer-employee relationship by issuing a
referral order in favor of the LAs jurisdiction. Note: The RD issued a referral order which
the employee challenged before the SOLE who ruled that the RD had jurisdiction. When
the case was transmitted back to the RD, the employer moved to dismiss on the ground
of res judicata. Allegedly, the order was more than 10 days old; hence, it attained
finality already. SC: a referral order is not a judgment on the merits; hence, it cannot
ripen to res judicata.
DOLE RD (Art. 128 & 129); LA (Art. 217) and NLRC (Arts. 218 & 223)
1
Appeals & Periods of Appeal. Appeals from the LA are taken to the NLRC within 10 days
by (a) filing of appeal memo; (b) posting of appeal bond; and (c) payment of docket
fee. Appeals from 129 decisions (P5K & below) are also taken to the NLRC by
performing same acts within the shorter period of 5 days. Both 217 and 129 appeals are
governed b y the same 2011 Rules of Procedure of the NLRC.

Appeals from 128 orders are taken to the SOLE within 10 days.
2
Motion to Reduce Appeal Bond. Under the NLRC Rules, the appellant employer has the
remedy of filing a motion to reduce appeal bond, subject to the posting of a
reasonable accompanying bond. This remedy is available for appeals taken from 217
and 129 but not 128 because there is no equivalent remedy under the rules of the DOLE
(Yanson vs. Hon. Secretary, Feb. 11, 2008).
3
Employer-employee relationship.
The determination of the factual existence of
employer-employee relationship is co-extensive with the RDs/SOLE expanded visitorial
power. Therefore, the view that the RD makes a determination in a preliminary manner
only while the LA/ NLRC makes the final determination must be reviewed. (SC on MR in
Bombo Radyo case, March 6, 2012)
SOLE (Art. 263,g) and NLRC (Art. 218).
1
In national interest cases, or HEAT d WET BEDS 5R cases (hospital, energy, air traffic
control, transportation, water production, export, tire production, banking, education,
drugs & pharmaceuticals, support services, 5-star hotels, roof production), the SOLE can
assume jurisdiction. Either (a) he resolves the dispute himself; or (b) certifies it to the
NLRC for compulsory arbitration. If certified to the NLRC, the case cannot be dismissed
by the NLRC on the ground that it does not involve a national interest. Only the SOLE is
given the prerogative to make a determination because Art. 263(g) uses the term if in
his opinion. The opinion of the NLRC is irrelevant.
2
If SOLE finds that there is employer-employee relationship, it takes cognizance of the
matter to the exclusion of the NLRC. The SOLE would have no jurisdiction only if
employer-employee relationship has already been terminated, or it appears upon review
that no employer-employee relationship existed at all. (Peoples Broadcasting Service vs.
Sec. of the DOLE, March 6, 2012).
LA (Art. 217) and VA (Arts. 261 & 262).
1
Conferment of Jurisdiction. The rule is law vests jurisdiction over the subject matter of a
case. Parties cannot stipulate where to litigate. The LAs original and exclusive
jurisdiction is defined by Art. 217. But by express stipulation in a CBA, his cases can be
brought to the VA (Art. 262). This is valid under Sec. 3, Art. XIII of the Constitution which
requires the preferential use of voluntary modes of settling labor disputes (Vivero ruling).
2
Acquisition of Jurisdiction. The LA acquires jurisdiction thru the filing of a verified
complaint, subject to SEnA (single entry approach or mediation) as reinforced by RA
10396, March 14, 2013.
The VA acquires jurisdiction as follows: (1) Both parties are
willing to comply with their contractual obligation to go to the VA - thru a Submission
Agreement; (2) one party is unwilling = thru service of a Notice to Arbitrate; (c) if both
parties are unwilling, thru the appointment of a VA.

Note: Notice to Arbitrate. Only the exclusive bargaining representative (EBR) can serve
it, not any union even if registered. Art. 255 which provides that, for purposes of
collective bargaining, the workers shall be represented by the EBR but without prejudice
to the right of a worker or group of workers to present their grievances to the employer
at any time does not include the right of such group of workers to serve a notice to
arbitrate (Tabigue, et al. vs. Intl Copra Export Corp., Dec. 23, 2009).
RD and Med-Arbiter: Problems
1
Union A files a CE petition with the Med-Arb. Rival Union B moves to dismiss the petition
on the ground that Union A submitted falsified registration documents for which reason
its legal personality should be disregarded. This cannot be done as it constitutes a
collateral attack. Only direct attacks are allowed (D.O. 40-03). Why? The RD is the
office vested with the power to cancel CRs; hence, cancellation cannot be asked from
the Med-Arb.
2
Its motion to dismiss denied, Union B goes to the RD for CR cancellation. It returns to the
Med-Arb. with a motion to suspend the CE proceedings on the ground that its complaint
for cancellation is a prejudicial question. Motion to suspend should be denied. No more
prejudicial questions under D.O. 40-03 unlike under the Fortune Tobacco case. CE shall
proceed subject to the outcome of the cancellation proceedings. If no cancellation,
CBA negotiations will not be stopped also - but subject also to the outcome f the
cancellation proceedings. If, finally, the RD issues an order of cancellation and it attains
finality, the next move is to seek CBA deregistration with the RD.
Note: RD has jurisdiction over: (1) CR cancellation; (2) CBA deregistration; (3)
complaints/petitions involving WACLIU, supra. (BLR has jurisdiction over FINTCAM cases:
federations, industry unions, national unions, trade unions & their chapters, affiliates and
members) ; (4) 128 & 129 cases; and (5) complaints for violation of apprenticeship
agreements that are first ventilated before the Plant Apprenticeship Committee (nonexhaustion of administrative remedies rule applies) .
C
Updates on 2011 NLRC Rules of Procedure
Situationer 1.
A, a seafarer, files a complaint for maximum disability benefits of
US$60,000.00 with the LA. LA grants the relief sought. The respondent manning agent
takes appeal to the NLRC which affirms the LAs decision. Likewise, it denies the
appellants MR. Unless the CA issues a TRO, the NLRC decision will become final and
executory, and judgment will be entered, after the lapse of 60 days (period for
certiorari). The case will then be transmitted back to the LA for execution.
Remedies:
1
Motion to Quash Writ of Execution. If denied, no appeal. The remedy is to petition for
the nullification of the writ of execution under Rule XII, infra.
2

Petition under Rule XII, 2011 Rules of Procedure of the NLRC. A verified petition based on
grave abuse of discretion , serious error/s, or any irregularity during the execution stage
which, if not corrected, will cause serious and irreparable damage and injury to the
petitioner must be filed in 10 days from receipt of order denying the motion to quash.
From date of filing, the Sheriff cannot enforce judgment within the next 15 days.
Thereafter, he can pursue execution, unless the NLRC issues a TRO.
Note: Execution will not be stopped by mere filing of (a) a petition for certiorari with the
CA; (b) a motion to quash with the LA; and (c) a petition for extraordinary remedy with
the NLRC. A TRO is required.
Situationer 2. Judgment is enforced due to non-issuance of a TRO. Later, the manning
agent gets a favorable decision from the CA which attains finality because the seafarer
is not interested in challenging the decision before the SC. After all, he has already
received his US$60,000.00.
Remedy:
File a motion for restitution with the LA (Sec. 18 , Rule XI, 2011 Rules). Do not run after the
lawyers fees in the same motion because the LA has no jurisdiction over him. Serve him
a demand letter. If he does not return his attorneys fees, bring the matter to the IBP.
(This will not be asked in the BAR).

IV
EVIDENCE IN LABOR PROCEEDINGS
A
Substantial Evidence Rule
1.
2.
3.

4.

5.

Vessel Logbook, its entries constitute substantial evidence.

Company ID is evidence of employer-employee relationship and not just as security
measure.
Payroll sheets are not the best evidence of abandonment . Under the best evidence
rule, the original document must be produced to prove its contents. So if the entries of
the payroll sheets are not at issue then the invocation of the rule is misplaced.
(Tegimenta Chemical Phil vs. Oco, Feb. 27, 2013).
Affidavits cannot be trusted because the person preparing them reduces to writing
what is just communicated to him, using his language. (Eagle Ridge Golf and Country
Club vs. Court of Appeals, et al., G.R. No. 178989, 18 March 2010). Take note, however,
that Rule V of the 2011 Rules of Procedure of the NLRC requires testimonies to be
reduced to affidavits and attached to position papers. Take note also of the Judicial
Affidavit Rule.
Affidavit of Assumption of Responsibility. A seafarer is not privy to it; hence, it does not
bind him. The original manning agent is still solidarily liable to him even if another has fully
assumed liability because of the undertaking of the original manning agent, as required
by law, to be solidarily liable for all violations of the contract of the seafarer (Skippers
United Pacific, Inc. vs. Maguad, et al., Aug. 15, 2006).

6.

Foreign Law must be proven as a fact; otherwise, it will be presumed to be the same as
Philippine law. (EDI-STAFF BUILDERS INTL, INC. vs. NLRC, Oct. 26, 2007: Presumed Identity
Approach/Processual Presumption).

7.

Evidence from Instigation. Evidence even if procured thru instigation can be used
against an erring employee because instigation is a defense only in criminal
procceedings, not in labor proceedings (Roquero vs. PAL, April 22, 2003)
Graphology. The testimony of a handwriting expert is not needed to establish serious
misconduct because the erring employees liability is being determined in an
administrative proceeding only where the quantum of proof required is substantial
evidence only (Mitsubishi vs. Simon, et al., April 16, 2008)
Conspiracy. Conspiracy cannot be presumed. It should be established as clearly,
positively and convincingly as the act itself (Sargasco Construction & Devt Corp. vs.
NLRC, Feb. 9, 2010; Domingo vs. Rayala, March 2, 2008.)

8.

9,

B
Three-fold Liability Rule & Totality of Circumstances Rule
(Domingo vs. Rayala, Feb. 18, 2008)
There was no direct evidence of DRR in Domingo vs. Rayala. But Justice Nachura considered
the totality of the circumstances in arriving at his finding of liability. There were nasty verbal acts,
as well as physical acts, like touching the complainants shoulder while dictating something to
her. These acts, taken in their entirety, amounted to substantial evidence.
C
Third Physician Rule
(Phil Hammonia Ship Agency, Inc. vs. Dumadag, J. Brion, June 26, 2013)
Note: The compensability of a seafarers disability resulting from illness or injury is governed by
(a) Art. 191, PD 442; (b) the POEA-SEC; and (c) medical evidence. Requisites: (a) work-related;
and (b) degree of disability ( whether Grade 1 (total & permanent), Grade 2, etc) is certified
to by the company-designated physician.
Rules: (1) Within 3 days from medical repatriation, the seafarer must report to manning
agent. If phsycally impossible, notify the latter within the same period. Non-compliance
will bar claim. (2) Seafarer must submit himself to company-designated physician for
examination and treatment. Unjustifiable abandonment of treatment will disqualify him.
(3) Opinion of company-designated physician is controlling, subject to the right of the
seafarer to seek medical opinion elsewhere. (4) In case of conflict in medical findings,
the parties shall agree on a third physician whose findings will be final and binding.
Brion ruling. Dumadag filed his complaint without first disclosing the medical findings of
his own physician. Due to his non-disclosure, the manning agent was not able to avail of
the third physician remedy. Hence, at the time he filed his complaint he had no cause
of action.
Note: Philman Marine Agency, Inc. vs. Cabanban, July 29, 2013.
if personal physician is sought after filing of complaint.

No cause of action if opinion

UPDATE: Non-use of a third physician has the effect of according the medical opinion of
the company-designated physician binding effect (as against lack of cause of action).

MCQ: The legal effect of non-referral to a third physician is as follows:

(a) lack of cause of action;
(b) finality of the medical opinion of the company physician;
(c) appointment by the Labor Arbiter of a third physician;
(d)
D
Burden of Proof vs. Burden of Evidence
(1) For money claims: Employee must first set forth his claims with particularity, or
establish the credit clearly, before the burden of proving payment can be imposed
on the employer.
Once some form of payment is presented, the burden of
evidence is shifted to the employee.
(2) For illegal dismissal: Employee must first establish the fact of his dismissal with clear,
positive and convincing evidence before the burden of proving the validity of his
dismissal can be imposed on his employer.
E
Doubts Arising From Evidence
Extent of the Liberal Interpretation Rule: Doubts and ambiguities arising from (a) PD 442
provisions; and ORILC provisions (Art. 4, PD 442); (b) labor contracts (Art. 1702, NCC); and (c)
evidence in labor proceedings (Duty Free Phil. V. Trias, 27 June 2012).
V
MONEY CLAIMS
Jurisdictional Rules
Reasonable Causal Connection Rule. The money claim must have reasonable causal relation
to employer-employee relationship. If it arises from some other relationship, like a civil contract
(e.g., Sonza vs. ABS-CBN), labor tribunals have no jurisdiction.
Reference to Labor Law Rule. Not all disputes arising from the affairs between employers and
employees are for labor tribunals to resolve. Only claims resolvable thru the application of the
Labor Code, other labor statutes, and labor contracts are under their jurisdiction.
Outside Jurisdiction of LA: (a) reimbursement of training expenses (U-BIX case); (b) recovery of
car , replevin (Astorga Case ); (c) damages arising from violation of Art. 19, NCC (Eviota case);
(d) damages arising from quasi delict (Tolosa case); ( e) cross-claim between principal and
service contractor (SSS case ); petition for declaratory relief to nullify a CBA provision
(Halaguena, et al. vs. PAL, Oct. 2, 2009). In all these cases, it was held that the issue was
resolvable thru the application of other laws.

Labor Standards Claims

Coverage:

Art. 80

(a) All employees in all establishments; (b) whether for profit or not;
(c)
no distinction between daily-paid and monthly-paid; (d) except ur MOM,
GF & Western Police District (WPD).

Not Covered: MOM (Managerial employees, Officers/Members of managerial staff;

Members of the family of the employer dependent on him for support)
GF (Govt employees, Field Personnel)
WPD (Workers paid by result, Persons in the personal service of another,
Domestic workers), subject to K Law.
Note: Under the Kasambahay Act, HelLauGarCya (Helpers, Laundry
personnel, Gardeners, Cooks, Yaya) are now entitled to weekly rest
period (also 8 hours daily rest), SIL & OT)

Holiday Pay & 13th Month Pay

Pieceraters: Pro labor : Although workers paid by result, they are entitled
to holiday pay (Sec. 8(b), Rule IV, Bk III, ORILC + Labor Congress of the
Philippines ruling 1998. Pro employer: Not entitled for being workers paid
by result (Art. 82, Villuga vs. NLRC, 1993 + Mark Roche Intl, 1999). As to 13th
month pay, they are entitled because their employers are not exempt.
Paid on Commission basis: Entitled to holiday pay and 13th month pay IF
receiving basic salary also. In computing 13 th month pay, commissions
shall be added if wage type (basis for commission is the performance of
the worker), but not if bonus type (incentive).
Paid on task basis. Not entitled to holiday pay and 13th month pay. No
qualifications.
Hours of Work : Flexible Work Schedule (must be NeVoTe - Necessary, Voluntary &
Temporary). See Kasambahay notes.
Solo Parents Welfare Act. Aspects: (1) Can arrange with employer over
time-in & time-out; (2) Can leave work to attend to dependent subject to
these conditions: (a) must come back to complete normal hours of work;
(b) cannot exercise right during core work hours; (c) right not available if
it will impair individual or company productivity.
DOLE Advisory 2, s. 2009: (a) Compressed Work Week; (b) Reduced Work
Days (subject to 6 months cap); (c) Rotation; (d) Broken Time; ( e) Forced
Leave.
Service Incentive Leave (It is a curious animal because it does not prescribe like other
claims do, Autobus ruling, 2006)
Options: (a) use 5 days vacation with pay; (b) monetize it after 1 year; or
(c) get money equivalent of all SILs upon retirement or separation (Art.
291 will not bar more than 3 years old SILs).
Wage Distortion Adjustment
1
Wage Distortion: (a) 2/more wage groups (inter-wage group); (b) each wage group has
its wage rate based on some rational consideration; (c) wage gap/wage advantage of
one wage group over the other is either eliminated or compressed; and (d) the
elimination/compression is caused by a wage order, CBA renegotiation or merger of
companies.
2
Wage Distortion Adjustment.
WDA = Minimum Wage x Prescribed Increase
Actual Salary (of disadvantaged wage group)
Note:
Add the result to the wage rate of the wage group that has lost its wage
advantage in order to restore it.

Attorneys Fees
1
Masmud vs. NLRC, 2009. Ordinary Attorneys Fees vs. Extraordinary Attorneys Fees.
Extraordinary - species of damages awarded to worker for being compelled to litigate
against his employer and incur expenses; it is awarded to a worker; it is limited to 10%
only (Art. 110). Ordinary - compensation for legal services; it is paid by employee to his
lawyer; its amount is governed by agreement; in the absence of an agreement,
Quantum Meruit applies; hence, it can be more than 10%.
2
Exodus Intl Construction Corp. Vs. Biscocho, Feb. 23, 2011. 10% attorneys fees can be
awarded even if lawyer does not attend many stages of the proceedings. Reason: the
10% is not based on rendition of legal services but compulsion to litigate on the part of
the client.
UPDATE: Workers can enter into a compromise agreement with employer even without
their counsel as long as they comply with their contractual obligation to pay the agreed
attorneys fees ( ).
Workers Preference (Art. 110). Requisites of first preference: (a) remaining funds or
properties cannot cover all outstanding obligations; and (b) the unpaid claim is brought
in a bankruptcy or insolvency proceeding, or any proceeding of similar import (judicial
settlement of estate, but not extrajudicial foreclosure of mortgage).
Note: Art. 110 does not affect the order of preference established in Art. 2241 and 2242,
NCC. Hence, the State and mortgagee are always ahead of the unpaid worker (Peralta
& DBP cases). Under Art. 2241, the unpaid worker is No. 6 only. Under Art. 2242, he is No.
3. What Art. 110 affects is Art. 2244 only under which the unpaid worker is No. 2. No. 1 is
funeral expenses. What the unpaid worker enjoys is a mere preference; whereas, the
State and mortgagee enjoy liens. The special nature of a lien is that it attaches to a
specific property. Therefore, Art. 110 cannot take away the mortgaged property and
deliver it to the unpaid worker, just as it cannot take away taxable property to deliver it
to the worker. These properties are protected for the owners of the tax lien and
mortgage lien .
Crew Claims
Disability Claims
See Third Physician Rule, supra.
Death Claims
Benefits: (a) US$50,000.00 as death benefits; (b) US$7,000.00 for every child not over 21
and unemployed; and (c) US$1,000.00 funeral expenses.
Requisites: (a) death is work-connected; and (b) it must occur during the effectivity of
contract. Note: Death occurred 6 months after repatriation. Not compensable (Sea
Power Shipping Ent., Inc. vs. Salazar, Aug. 28, 2013)

OFW Claims
Unpaid Salaries: Pre-terminated OFW Contracts (see Due Process Clause & Equal Protection
Clause, supra.)
OFW Waivers
Basic rule: Waivers are void for being contrary to public policy, but not when they
represent a fair and reasonable compromise and they are supported with substantial
consideration (Periquet vs. NLRC). For OFW waivers to be valid, they must: (a) be
written in a language understood by the OFW; (b) be witnessed by 2; (c) be notarized;
(d) state the amount of the actual money claim; and (e) state the amount of the
compromised claim (to aid the courts in determining if substantial or unconscionable).
Retirement Benefits
Article 287. Formula: 22.5 days x average daily salary x length of service
Note: 22.5 days = 15 days (half month salary); 5 days (SIL); and 2.5 days (1/12 of 13th
month pay). Always give the 15 days. But before giving the others, find out if the retiree is
entitled to SIL and 13th month pay. If not, do not include 5 & 2.5. Example: a taxi driver is
paid on task basis according to the SC. As a worker paid by result, he is not entitled to
SIL; so take away the 5 days. He is not also entitled to 13 th month pay. So take away the
2.5 days. (Refer to Diagram of Art. 82 & 13th Month Pay)
SSS.
PD442 retirement benefits are apart from SSS retirement benefits (Chan vs. Rogelio,
April 27, 2011). Employer cannot argue that an employee should not get two retirement benefits
for retiring just once.
Pag-Ibig. Pag-Ibig retirement benefits are substitute retirement benefits. Any difference
between PD442 computation and Pag-Ibig computation shall be paid by the employer (Sec. 21,
Pag-Ibig Fund Act).
SSS Claims
Beneficiaries. Bart was married to Celia who started cohabiting with another man. They had a
child, Isa, who died at an early age. Bart, in turn, cohabited with Libby with whom he had 2
children, Dalawa and Tatlo - aged 24 and 22. Then he fathered 2 more children with another
woman, Delia. These children named Apat and Lima were aged 15 and 17. In time, Bart died.
Death benefits were claimed: (a) by Celia; (b) Libby and her 2 children; and (c) Apat and Lima.
Whose claim must be granted?
Deny: (a) Celias claim because, at the time of Barts death, she was not living with him.
(Qualifications of spouse: legitimate + living with); (b) Libbys claim because she may be
living with Bart but she was not his legitimate spouse; (c) Dalawa & Tatlos claim
because, at the time of Barts death, they were above 21. (Qualifications of children:
below 21, unemployed, and unmarried).
Grant: Apat & Lima;s claim because, at the time of Bart;s death, they were below 21,
unemployed and unmarried.

Note: In the Sygney case, the first paramour presented a fake marriage contract. When
disqualified, she presented a waiver signed by the legitimate wife. Both were dishonored.
The 2 children of the second paramour were allegedly disqualified too because, at the
time of Barts death, they were not living with him. SC said living with is not a requisite
for children.
GSIS Claims
The AOO Rule (not a legal term; just a memory tool; do not use it in the Bar).
AOO (arose out of employment). For disability or death arising from disease to be
compensable, the disease must be AOO, i.e., occupational in nature. It is occupational if listed
in Annex A of the Employees Compensation Act, as amended. If not listed, compensation
can be based on substantial evidence of work-connection with the use of the Increased Risk
Theory or Proximate Cause Theory. In the Cate case, the disease was unlisted. However, Cate
could not present medical evidence to comply with the substantial evidence rule. SC ruled that
his disability caused by Osteoblastic Osteosarcoma was compensable because even medical
science could not explain the origin of his disease
The ICO Rule. (same)
ICO (in the course of employment). For disability or death caused by injury/accident to
be compensable, the injury/accident must occur in the course of employment. If outside, not
compensable - subject to the so-called off-premises rules, e.g. Reasonable Nexus Rule.,
Reasonable Nexus Rule. Question to ask: Does the members absence from his place of work
have a reason able connection to his presence at the place of contingency (injury/accident)?
Answer: YES - compensable.
The answer is YES in the following:
(1) Hinoguin was assigned in Nueva Ecija. He was accidentally shot to death by a fellow
soldier in Nueva Vizcaya. Travel outside place of work was by authority of a night
pass given by his commander.
(2) Nitura fell off a wooden bride outside camp. He was dispatched by his commander
to locate his fellow soldiers who went to a dance in an nearby town. Besides, a
soldier is deemed on 24-hour duty (24-Hour Duty Rule) . Unless on leave of absence,
he is deemed on duty wherever he is.
(3) Alvaran, assigned in Pasig as a jail guard, was shot to death by a fellow policeman in
Muntinlupa on the occasion of the investigation of his son whom he accompanied to
Muntinlupa. He was on a peacekeeping mission, not a personal mission.
(4) Rogrin. His mission order directed him to arrest criminal elements at Place A. While
proceeding to that place, he received reliable info that the criminals had relocated
to Place B. To reach the place, he and convoy had to drive thru a private
subdivision where he was shot to death by a security guard. Death compensable
under the Liberal Interpretation Rule.
The answer is NO in the following:
(1) Alegre, instead if manning the police precinct he was assigned to, ferried passengers
aboard his tricycle. He was shot to death by a fellow policeman. He was on a purely
personal mission.

(2) De la Rea. He was shot to death with a .45 caiber as he alighted from a passenger
jeep. At the time of his death, he was on official leave. 24-Hour Duty Rule does not
apply.

Limited Portability Law

What is portable? (a) service credits; and (b) contributions. A member carries them with him
when he moves from one system to the other (SSS to GSIS, vice versa). If he cannot avail of a
benefit by reason of insufficient length of service (and for this reason ONLY), his SSS service
credits and GSIS service credits can be combined so that he can avail thereof.
Gamogamo Case (Portability Law not applied). In 1963, Gamagamo joined the DOH as dental
aid. In 1967, he became Dentist 1. After 14 years, he joined a private company which PNOC
absorbed later. In his contract with PNOC, his years of service with the company were
aknowledged but not those with DOH. In time, PNOC floated a retrenchment package under
which he would have been paid 2 months salary for every year of service. However, his
application for retrenchment was denied. He continued working until he reached retirement
age. He was paid 1 month salary for every year of service. After retiring, he discovered that 2 of
his co-employees were paid 2 months salary x length of service. He sued PNOC to recover 1
more month and his service credits under DOH, invoking the Limited Portability Law. Held: Law
not applicable because he was not disqualified from receiving SSS/GSIS benefits by reason of
lack of service credits.
VI
LAW ON RECRUITMENT
Modes of Commission
1
CUTE CPAs Have Cute Red Peanuts (Art. 13(b), PD 442) + No License/Authority
(Canvassing, Utilizing, Transporting, Enlisting, Contract, Promising, Advertizing, Hiring,
Contract, Referring, Procuring)
2
With License/Authority

Prohibited Act (Art. 34, PD 442 + RA 10022)

Bad Defenses

1.
2.
3.
4.
5.
6.

Pp. vs. Jamilosa, Non-Presentation of Receipts for Placement Fees, SC: no need; Art.
13(b) says whether for profit or not)
Rodolfo vs, People. Lack of Profit. SC: (same)
Pp. vs. Panis. 1 recruit only. SC: 2 or more not an element; just a rule of evidence.
Pp. vs. Chua. POEA subsequently issued recruitment license. SC: License is prospective
only; hence, it cannot legitimize a recruitment done without license.
Pp. vs. Comila. Lack of Knowledge that his passengers were recruited by his wife. SC:
lack of knowledge is equivalent to defense of good faith which is not available in mala
prohibita prosecututions.
Pp. vs. Navarra. Less than 3 recruiters; hence, no economic sabotage. SC: there are 6
victims; hence, it may not be by a syndicate, but it is still economic sabotage because it
is large scale.

7.

1.
2.
3.

Improper Venue. Complainant has 2 options: file case with court having territorial
jurisdiction over place of commission; or with court having territorial jurisdiction over
place of residence at the time he was recruited.
Good Defenses
Visa Assistance (Darvin vs. CA)
Fault of Recruit that he was not deployed (RA 10022).
Local Recruitment. Note: RA 10022 says abroad whereas Art. 13(b) says local or
overseas. Later law prevails. Recruitment of domestic helpers governed by Kasambahay
Act.
VII
TERMINATION DISPUTES

1.

Fact of Dismissal
Control Test. No dismissal without pre-existence of employer-employee relationship.
Complete Severance Test. No dismissal without complete severabce of employeremployee relationship.
Note: No complete severance in: (a) Art. 286 unless 6-month period of suspension of
business operations exceeded; (b) preventive suspension; (c) lockout; (d) on leave
without pay employees.
Overt Act Test. No dismissal unless the employer commits an overt act resulting in actual
termination or constructive termination.
Note: No overt act in: (a) resignation; (b) abandonment; (c) desertion by a seaman;
(d) expiration of contract; (e) completion of project.

2.
3.

Validity of Dismissal. Just/Authorized Cause ONLY.

Pre-termination Procedures.
(a)
Probationary employees. If dismissal is grounded on Failure to qualify - Notices not required if regularization standards were ade
known upon hiring (PDI, 2007).
Just/Authorized cause - same procedures
Expiration - notices not required.
(b)
Abandonment.
Even if there is no intent to dismiss on the ground of
abandonment, notice to last known address requirement must still be complied
with. No distinction between abandonment as a ground for dismissal and
abandonment as a defense. (Tugade Bros. case)
(c)
Union member. Employer to verify ground for expulsion first before complying
with its duty to dismiss per union security clause.
(d)
Union officer. Employer may dismiss union officer upon demand of union
members even pending his investigation before the DOLE RD for misuse of union
funds (Tagaytay Country Club case). Proceedings before RD not prejudicial
question.
(e)
Seaman. To be served charge sheet (equivalent of 1st notice under Art. 282);
investigated; and served schedule of penalties (2nd notice under Art. 282).
Minutes of proceedings shall be registered with the vessel logbook (substantial
evidence) and transmitted to local agent in the Phil. (for its ready use in case of
litigation). This procedure may be dispensed with if its observance will endanger
either vessel or crew.

VIII
SELF-ORGANIZATION
Coverage:
STAKINGS (Security guards, Terminated employees, Aliens, Kasambahay, INC
members New employees Govt employees & Supervisors)
The Confidential Employee Rule. A reports to or assists B. Their relationship is fiduciary. A is
disqualified if: (a) B possesses labor relations information; and (b) A has access to said
information which access is inherent in his position. Not disqualified if: (a) As access is to
information which is not labor relations in nature (e.g., purely business); or (b) As access to labor
relations info is accidental only.
The Extension Rule under Art. 245. Main rule: Supervisors can organize but cannot join the rankn-file union. Extension rule - a union composed of rank-n-filers and one composed of supervisors
cannot join the same federation if (a) the members of the first are under the supervision of the
members of the second; and (b) the second conducts trade union activities in the same
establishment. Note: Under RA 9481, they can join the same federation as long as they belong
to the same establishment.
Cert. Election & CB-CN.
1. Certification Elections
When Valid:
Not barred Contract Bar. Certification Year Bar, or Deadlock Bar,
Negotiation Bar or Appeal Bar
AND Major ELVOT CASVOT
(majority of the eligible voters casts its vote)
Who wins:
Union with Major VOT VALVOT (majority vote of the valid votes)
2. Run-Off Election
(a) Valid CE;
(b) 3/more choices (including No Union);
(c) None got major VOT VALVOT;
(d) Total votes of participants (excluding No Union) is at least 50% of CASVOT;
(e) No election contest that would materially alter the CE result.
3. Collective Bargaining (CB) & Collective Negotiations (CN). Under Art. 255 (old),
collective bargaining is the function of the EBR. But any group of workers can bring
their grievances to the employer (aspect of CN). CB is subject to jurisdictional
preconditions; CN is not. The end product of CB is a CBA; that of CN is a CNA. Art.
3, PD 442 CB guarantees CB but not CN which is found in Sec. 3, Art. XIII of the
Constn only.
Rights of Exclusive Bargaining Representative (EBR)
1, Notice of Strike ;
2. Strike Vote;
3, Notice to Arbitrate
Law on Strikes
Factual Issue: 3 Elements (a) temporary stoppage of work; (b) concerted activity; and
(c) labor dispute.
Validity Issue: MISPAP Test (a) Means Test; (b) Injunction Test; (c) Statutory Prohibition Test;
(d) Procedure Test; (e) Agreement Test; (f) Purpose Test.

Collective Bargaining Agreements

1. Mandatory Provisions: Union Security Clause
When the SOLE crafts a CBA for the parties, following commenced but failed CBA
negotiations, stipulations already reached cannot just be disregarded. If the union security
clause agreed upon was a union shop, it is grave abuse of discretion if the SOLE changes it to
closed-shop because the latter is more onerous to the company. In a union-shop agreement,
the company can hire non-union members subject to the duty of the new hire to join the EBR. In
a closed-shop agreement, the company is under obligation to hire from the membership of the
EBR, regardless of qualifications vis--vis the actual manpower requirements of its business. So, a
closed-shop agreement is more onerous (Meralco cases).
2. Effectivity of Economic Provisions.

CLUE: Vol O, Vol U; Invol O, Invol U

A. Voluntary CBAs (crafted by the parties):

1. Organized (6-month Rule applies):
(a)
New eco provisions are perfected w/in 6 months following date of
expiration of old eco. Provisions - new eco provision will retroact to
the day following date of expiration.
(b)
Outside 6 months, as agreed upon by the parties, e.g.:
(i)
To retroact; or
(ii)
To take effect on a later date. Period not covered by the
new agreement will continue to be governed by the old
provisions (Hold-Over Doctrine).
2. Unorganized
(a)
SOLE will give parties the opportunity to agree on date of
effectivity;
(b)
Absent agreement, date fixed by the SOLE.
B. Involuntary CBAs (crafted by the SOLE):
1. Organized (as agreed upon in the CBA, not the date of the CBA)
2. Unorganized (to take effect like a judicial decision)

X
SPECIAL LAWS
Double Indemnity Law.
Unpaid salary increase doubled + criminal prosecution. Payment does not bar
prosecution.
Magna Carta for Women
2 months full salary if woman undergoes surgical procedure by reason of a
gynecological disorder.
Magna Carta for Persons with Disability
Vilification/insulting of disabled is now a crime.
Solo Parents Welfare Act
1
Solo Parent = Assumes parental responsibility alone; hence, IF NO DADS Undo Coitus
(Insanity, Family member, Nullity, Other person, Death, Abandonment, Detention, Separation,

Unmarried, Crime) PLUS Dependent who is less than 18 and DULU ( dependent, unmarried,
living with parent & unemployed).
2
Rights: (a) 7 days parental leave; (b) against discrimination; and (c) flexible work
schedule.