Documente Academic
Documente Profesional
Documente Cultură
L
AW
BAR REVIEWER
2012
LABOR
LAW
Dean Danilo L. Concepcion
Dean, UP College of Law
UP
L
AW
BAR REVIEWER
2012
LABOR
BAR OPERATIONS COMMISSION 2012
EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner
Raymond Velasco Maria Kriska Chen |Deputy Commissioners
Barbie Kaye Perez |Secretary
Carmen Cecilia Veneracion |Treasurer
Hazel Angeline Abenoja|Auditor
COMMITTEE HEADS
Eleanor Balaquiao Mark Xavier Oyales | Acads
Monique Morales Katleya Kate Belderol Kathleen Mae
Tuason (D) Rachel Miranda (D) |Special Lectures
Patricia Madarang Marinella Felizmenio |Secretariat
Victoria Caranay |Publicity and Promotions
Loraine Saguinsin Ma. Luz Baldueza |Marketing
Benjamin Joseph Geronimo Jose Lacas |Logistics
Angelo Bernard Ngo Annalee Toda|HR
Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise
Graciello Timothy Reyes |Layout
Charmaine Sto. Domingo Katrina Maniquis |Mock Bar
Krizel Malabanan Karren de Chavez |Bar Candidates Welfare
Karina Kirstie Paola Ayco Ma. Ara Garcia |Events
OPERATIONS HEADS
Charles Icasiano Katrina Rivera |Hotel Operations
Marijo Alcala Marian Salanguit |Day-Operations
Jauhari Azis |Night-Operations
Vivienne Villanueva Charlaine Latorre |Food
Kris Francisco Rimban Elvin Salindo |Transpo
Paula Plaza |Linkages
LAW
LABOR
LAW
LABOR
Labor Law
I. Fundamental Principles and Policies ........ 6
A. Constitutional provisions ................. 6
B. Civil Code ................................... 7
C. Labor Code.................................. 8
II.
LAW
LABOR
M. Handicapped Workers (RA 7277)
Differently-abled Workers .................... 50
TOPIC M-I. DEFINITION OF HANDICAPPED
WORKERS.................................... 50
TOPIC M-II. RIGHTS OF DISABLED WORKERS
................................................. 50
TOPIC
M-III.
PROHIBITIONS
ON
Discrimination Against Disabled Persons 50
TOPIC M-IV. INCENTIVES FOR EMPLOYERS
................................................. 51
IV. Termination of Employment ............... 51
A. Employer-employee relationship ..... 51
TOPIC A-I. TESTS FOR DETERMINING ER EE
RELATIONSHIP ............................... 51
TOPIC A-II. PROBATIONARY EMPLOYMENT
................................................. 52
TOPIC A-III. KINDS OF EMPLOYMENT ..... 54
TOPIC A-IV. JOB CONTRACTING AND
LABOR-ONLY CONTRACTING .............. 57
B. Termination of employment ........... 60
TOPIC B-I. SUBSTANTIVE DUE PROCESS . 61
TOPIC B-II. Procedural Due Process ..... 65
TOPIC B-III. RELIEFS FOR ILLEGAL
DISMISSAL..................................... 67
C. Retirement Pay Law .................... 69
TOPIC C-I. Coverage ........................ 70
TOPIC C-II. Exclusions from coverage ... 70
TOPIC C-III. Components of retirement
pay ............................................ 70
TOPIC C-IV. Retirement pay under RA 7641
vis--vis retirement benefits under SSS
and GSIS laws ................................ 70
V. Management Prerogative .................... 70
VI. Social Legislation ............................. 72
A. SSS Law (RA 8282) ....................... 72
1. Coverage ............................... 72
B. GSIS (RA 8291) ........................... 73
1. Coverage ............................... 73
2. Exclusions from coverage ........... 73
3. Benefits ................................ 74
4. Beneficiaries .......................... 75
C. Limited Portability Law (RA 7699).... 75
D. Employees Compensation Coverage
and when compensable ....................... 75
VII. Labor Relations Law ........................ 76
A. RIGHT TO SELF-ORGANIZATION ....... 76
a. Who may unionize for purposes of
collective
bargaining
(covered
employees/workers) ....................... 76
b. Right To Self-Organization: Basis ..... 78
c. Right to Self-Organization: Extent and
Scope.......................................... 79
LAW
Labor Law
LABOR LAW
I. Fundamental Principles and Policies
II. Recruitment and Placement
III. Labor Standards
IV. Termination of Employment
V. Management Prerogative
VI. Social Legislation
VII. Labor Relations Law
VIII. Procedure and Jurisdiction
B. Civil Code
1.Article 1700, New Civil Code
Art. 1700. The relations between capital and labor
are not merely contractual. They are so impressed
with public interest that labor contracts must yield
to the common good. Therefore, such contracts are
subject to the special laws on labor unions,
collective bargaining, strikes and lockouts, closed
shop, wages, working conditions, hours of labor and
similar subjects.
Contracts
Under the Civil Code, contracts of labor are
explicitly subject to the police power of the state
C. Labor Code
1. Article 3
Art. 3. Declaration of basic policy. The State shall
afford protection
to labor,
promote
full
employment, ensure equal work opportunities
regardless of sex, race or creed and regulate the
relations between workers and employers. The State
shall assure the rights of workers to selforganization, collective bargaining, security of
tenure, and just and humane conditions of work.
2. Article 211
Art. 211. Declaration of Policy.
A. It is the policy of the State:
(a) To promote and emphasize the primacy of free
collective bargaining and negotiations, including
voluntary
arbitration,
mediation
and
conciliation, as modes of settling labor or
industrial disputes;
(b) To promote free trade unionism as an
instrument for the enhancement of democracy
and the promotion of social justice and
development;
(c) To foster the free and voluntary organization of
a strong and united labor movement;
(d) To promote the enlightenment of workers
concerning their rights and obligations as union
7 members and as employees;
(e) To provide an adequate administrative
machinery for the expeditious settlement of
labor or industrial disputes;
(f) To ensure a stable but dynamic and just
industrial peace; and
(g) To ensure the participation of workers in
decision and policy-making processes affecting
their rights, duties and welfare.
To encourage a truly democratic method of
regulating the relations between the employers and
employees by means of agreements freely entered
into through collective bargaining, no court or
administrative agency or official shall have the
power to set or fix wages, rates of pay, hours of
work or other terms and conditions of employment,
except as otherwise provided under this Code. (As
amended by Section 3, Republic Act No. 6715, March
21, 1989)
3. Article 212
Art. 212. Definitions.
(a) "Commission" means the National Labor
Relations Commission or any of its divisions, as
the case may be, as provided under this Code.
(b) "Bureau" means the Bureau of Labor Relations
and/or the Labor Relations Divisions in the
regional offices established under Presidential
Decree No. 1, in the Department of Labor.
(c) "Board" means the National Conciliation and
Mediation Board established under Executive
Order No. 126.
(d) "Council" means the Tripartite Voluntary
Arbitration Advisory Council established under
Executive Order No. 126, as amended.
(o)
(p)
(q)
(r)
(s)
4. Article 255
Art. 255. Exclusive bargaining representation and
workers participation in policy and decisionmaking. The labor organization designated or
selected by the majority of the employees in an
appropriate collective bargaining unit shall be the
exclusive representative of the employees in such
unit for the purpose of collective bargaining.
However, an individual employee or group of
employees shall have the right at any time to
present grievances to their employer.
Any
provision
of
law
to
the
contrary
notwithstanding, workers shall have the right,
subject to such rules and regulations as the
Secretary of Labor and Employment may
promulgate, to participate in policy and decisionmaking processes of the establishment where they
are employed insofar as said processes will directly
affect their rights, benefits and welfare. For this
purpose, workers and employers may form labormanagement
councils:
Provided,
That
the
representatives of the workers in such labormanagement councils shall be elected by at least the
majority of all employees in said establishment. (As
amended by Section 22, Republic Act No. 6715,
March 21, 1989)
10
B.
11
12
13
Applicability
Acts
Punishable
Who can be
punished
Labor
Code
Local
Workers
Art. 13(b)
Nonlicensee
Art. 34
Nonlicensee
Art. 13(b)
Labor Code
Nonlicensee
Enumerated
prohibited
acts
in
Section 6
Licensee/No
n-licensee
RA
8042 as
amend
ed by
RA
10022
B.
Migrant
Workers
Local
14
15
Exceptions:
(1) Members of the diplomatic corps;
(2) International organizations;
(3) Such other employees as may be allowed by
the Sec. of Labor;
(4) Name hirees those individuals who are able
to
secure
contracts
for
overseas
employment on their own efforts and
representation without the assistance or
participation of any agency. Their, hiring
nonetheless, has to be processed through
the POEA. (Part III, Rule III of the POEA
Rules Governing Overseas Employment as
amended in 2002)
16
Authority
Authorize an entity to
operate as a private
employment agency
Authorize an entity to
operate as a private
recruitment entity
17
18
19
A. Hours of Work
TOPIC A-I COVERAGE/EXCLUSIONS
NOTE: Please see previous section (Coverage) which
deals with the general rules of coverage and
exclusions for the applicability of the Conditions of
Employment provisions in Book III of the Labor Code.
20
21
22
d.
23
24
Synthesis of Rules
(1) Demandable only if the employer had
knowledge and consented to the overtime
work rendered by the employee.
Exception: Express approval by a superior
NOT a requisite to make overtime
compensable:
a. If the work performed is necessary, or
that it benefited the company; or
b. That the employee could not abandon
his work at the end of his eight-hour
work because there was no substitute
ready to take his place. (Manila
Railroad Co. v. CIR, G.R. No. L-4614,
July 31, 1952).
Note: However, the Court has also ruled that
a claim for overtime pay is NOT justified in
the absence of a written authority to render
overtime after office hours during Sundays
and holidays. (Global Incorporated v. Atienza)
(2) Compensation for work rendered in excess of
the eight (8) normal working hours in a day.
a.
b.
25
B. Wages
TOPIC B-I. GENERAL CONCEPT
Definition
Art. 97(f)
(1) It is the remuneration or earnings, however
designated capable of being expressed in
terms of money,
(2) whether fixed or ascertained on a time, task,
piece, or commission basis, or other method of
calculating the same,
(3) which is payable by an employer to an employee
(4) under a written or unwritten contract of
employment for work done or to be done, or for
services rendered or to be rendered and
(5) includes the fair and reasonable value, as
26
Salary
Not subject to
execution, garnishment
or attachment except
for debts related to
necessities (Art. 1708)
differentiation
4 Elements of wage distortion
(1) Existing
hierarchy
of
positions
with
corresponding salary rates;
(2) A significant change in the salary rate of a
lower pay class without a concomitant increase
in the salary rate of a higher one;
(3) The elimination of the distinction between the
two levels; and
(4) The existence of the distortion in the same
region of the country. (Prubankers Assn. v.
Prudential Bank and Co., 1999)
How to Resolve
Organized
Establishment
(with
bargaining
representative)
(1) Employer and the union shall negotiate to
correct the distortions.
(2) Disputes shall be resolved through the grievance
procedure.
(3) If still unresolved, voluntary arbitration.
Grievance Procedure (under the CBA)
unresolved
VOLUNTARY arbitration
if
Unorganized Establishment
(1) ERs and Employees shall endeavor to correct
such distortions.
(2) Disputes shall be settled through the National
Conciliation and Mediation Board.
(3) If still unresolved after 10 calendar days of
conciliation, it shall be referred to the
appropriate branch of the NLRC compulsory
arbitration
Both the employer and employee cannot
use economic weapons.
(4) Employer cannot declare a lock-out; Employee
cannot declare a strike because the law has
provided for a procedure for settling
(5) The salary or wage differential does not need to
be maintained. (National Federation of Labor v.
NLRC, 1994)
National Conciliation and Mediation Board
if
unresolved
COMPULSORY arbitration by the
NLRC
CBA vis--vis Wage Orders CBA creditability
In determining an employees regular wage, the
pertinent stipulations in the CBA are controlling,
provided the result is not less than the statutory
requirement (Philippine National Bank vs. PEMA, 115
SCRA 507)
27
28
Without
Employees
consent
(1) Workers insurance
acquired by the
employer
(3) Contributions
to
PAG-IBIG Fund
(4) Value of meals and
other facilities
(5) Payments to third
persons
with
employees consent
(6) Deduction
of
absences
(7) Union dues, where
check-off is not
provided in the CBA.
as
in
29
Art. 118
Subject of testimony is
wages
The
employers
retaliatory
act
is
unlawful but not ULP
(unless
the
act
is
intended to impair the
right to self-organization
of employees)
Art. 248(f)
Subject
is
anything
under the Code
The
employers
retaliatory act is ULP.
30
C. Rest Day
NOTE: See IRR of Labor Code Book III, Rule III
Every employee regardless of the nature of his work
is entitled to at least one whole day every week as
his rest day. The rest day or day off shall be
determined by the employer. However, in cases
where the employee is required by his religious
belief to rest on certain days, such belief shall be
respected by the employer.
1. Right to weekly rest day
Art. 91 (a): It shall be the duty of every employer,
whether operating for profit or not, to provide each
of his employees a rest period of not less than
twenty-four (24) consecutive hours after every six
(6) consecutive normal work days.
2. Preference of the employee
Art. 94 (b): The employer shall determine and
schedule the weekly rest day of his employees
subject to collective bargaining agreement and to
such rules and regulations as the Secretary of Labor
and Employment may provide. However, the
employer shall respect the preference of employees
31
PREMIUM PAY
30% of regular wage
30% of regular wage
30% of regular wage
for work performed on
Sundays and holidays
30% of regular wage
50% of regular wage
230% of regular wage
D. Holidays
NOTE: Art. 94 (c) was superseded by E.O. 203, which
was subsequently amended by RA 9177, 9256, and
9492.
Holiday pay is a one-day pay given by law to an
employee even if he does not work on a regular
holiday. This gift of a days pay is limited to each of
the eleven regular holidays.
32
33
24
Manufacturing
34
Of
teachers,
piece
workers,
seafarers, seasonal workers, etc.
SECTION 8. Holiday pay of certain employees.
(a) Private school teachers, including faculty
members of colleges and universities, may not be
paid for the regular holidays during semestral
vacations. They shall, however, be paid for the
regular holidays during Christmas vacation;
(b) Where a covered employee, is paid by results or
output, such as payment on piece work, his holiday
pay shall not be less than his average daily earnings
for the last seven (7) actual working days preceding
the regular holiday; Provided, However, that in no
case shall the holiday pay be less than the applicable
statutory minimum wage rate.
(c) Seasonal workers may not be paid the required
holiday pay during off-season when they are not at
work
(d) Workers who have no regular working days shall
be entitled to the benefits provided in this Rule.
Holiday Pay of Hourly-Paid Faculty Members
(1) They are not entitled to payment of holiday
pay because they are paid only for work
actually done. Since regular holidays are
known to both the school and faculty
members as no class day; certainly the
latter do not expect payment for said
unworked holidays.
(2) They are entitled to their hourly rate on days
declared as special holidays. Be it noted that
when a special public holiday is declared, the
faculty member paid by the hour is deprived
of expected income, and it does not matter
that the school calendar is extended in view
of the days or hours lost, for their income that
could be earned from other sources is lost
during the extended days.
(3) Similarly, when classes are called off or
shortened on account of typhoons, floods,
rallies, and the like, these faculty members
must likewise be paid, whether or not
extensions are ordered. (Jose Rizal College v.
NLRC, G.R. No. 65482, Dec. 1, 1987)
Piece workers
Philosophy underlying the exclusion of piece workers
from the 8-hour law is that said workers are paid
depending upon the work they do irrespective of the
amount of time employed in doing said work. (Red V
Coconut Products Ltd., v. CIR, 1966)
Seafarers
Any hours of work or duty including hours of watchkeeping performed by the seafarer on designated
rest days and holidays shall be paid rest day or
holiday pay. (Section 11.C, Standard Terms and
Conditions Governing the Employment of Filipino
Seafarers on Board Ocean-Going Vessels)
Seasonal workers
Seasonal workers who do not work during off-season
are not entitled to pay for the regular holidays
occurring during their off-season. Workers assigned
to skeleton crews that work during the off-season
have the right to be paid on regular holidays falling
in that duration.
E. Leaves
TOPIC E-1. Service Incentive Leave Pay
Right to service incentive leave
Art. 95. Right to service incentive leave.
A. Every employee who has rendered at least one
year of service shall be entitled to a yearly service
incentive leave of five days with pay.
SIL DOES NOT apply to the following employees:
(1) Those of the government and any of its political
subdivisions, including GOCCs;
(2) Domestic helpers and persons in the personal
service of another;
(3) Managerial employees as defined in Book 3 of
this Code;
(4) Field personnel and other employees whose
performance is unsupervised by the employer
including those who are engaged on task or
contract basis, purely commission basis, or
those who are paid a fixed amount for
performing work irrespective of the time
consumed in the performance thereof;
(5) Those who are already enjoying the benefit
herein provided;
(6) Those enjoying vacation leave with pay of at
least 5 days;
(7) Those employed in establishments regularly
employing less than 10 employees. (Sec. 1, Rule
V, Implementing Rules and Regulations).
Jurisprudence:
(1) Teachers of private school on contract basis are
entitled to service incentive leave. (Cebu
Institute of Technology v. Ople, 156 SCRA 531).
(2) Piece Rate Workers In the case of Makati
Haberdashery v. NLRC (G.R. No. 83380-81, Nov.
15, 1989) the Court ruled that piece-rate
employees are not entitled to service incentive
leave. However, in the case of Labor Congress of
35
36
37
b)
c)
a)
b)
c)
d)
38
Availment
In addition to other paid leaves under existing labor
laws, company policy, and/or collective bargaining
agreement, the qualified victim employee shall be
entitled to a leave of up to 10 days with full pay,
consisting of basic salary and mandatory allowances
fixed by the Regional Wage Board, if any.
F. Service Charges
TOPIC F-I. COVERAGE
Sec 1, Rule VI, Book 3. This rule shall apply only to
establishments which collect service charges such
as:
(1) Hotels, restaurants, lodging houses, night clubs,
cocktail lounge, massage clinics, bars, casinos
and gambling houses and similar enterprises
(2) Including those entities operating primarily as
private subsidiaries of the Government
Sec 2, Rule VI, Book 3. Shall apply to ALL employees
of covered employers
(1) Regardless of their positions, designations, or
employment status,
(2) Irrespective of the method by which their wages
are paid
39
equivalent of:
a. unused vacation and sick leave credits,
b. overtime,
c. premium,
d. night differential,
e. holiday pay and, and
f. cost-of-living allowances.
Time of payment
GENERAL RULE: paid not later than Dec 24 of each
year.
EXCEPTION: ER may give to his employees half ()
of the required 13th Month Pay before the opening
of the regular school year and the other half on or
before the 24th of December every year.
The frequency of payment of this
monetary benefit may be the subject of
agreement between the employer and
the recognized CBA of the employees.
40
H. Women Workers
TOPIC H-I. DISCRIMINATION (ART. 135, LC)
Art. 135. 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:
(1) 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
(2) Favoring a male employee over a female
employee with respect to promotion, training
opportunities, study and scholarship grants
solely on account of their sexes.
Criminal liability for the willful commission of any
unlawful act as provided in this article or any
violation of the rules and regulations issued pursuant
to Section 2 hereof shall be penalized as provided in
Articles 288 and 289 of this Code: Provided, That the
institution of any criminal action under this provision
shall not bar the aggrieved employee from filing an
entirely separate and distinct action for money
claims, which may include claims for damages and
other affirmative reliefs. The actions hereby
authorized shall proceed independently of each
other.
41
a.
42
43
44
Daily Max
Weekly Max
Below 15 y
4 hours
20 hours
15 to below 18
8 hours
40 hours
Prohibited Hours
8 pm to 6 am (10 hrs)
10 pm to 6 am (8 hrs)
J. Employment of Househelpers
TOPIC J-I. Definition
Art. 141: This Chapter shall apply to all persons
rendering services in households for compensation.
"Domestic or household services" shall mean
service in the ER's 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 ER's household, including services of family
drivers.
IRR Rule XII Sec1b
(b) The term househelper as used herein is
synonymous to the term domestic servant and
shall refer to any person, whether male or female,
who renders services in and about the employers
home and which services are usually necessary or
desirable for the maintenance and enjoyment
thereof, and ministers exclusively to the persona
comfort and enjoyment of the employers family.
The term `househelper' is synonymous to the term
`domestic servant' and shall refer to any person,
whether male or female, who renders services in and
about the ER's home and which services are usually
necessary or desirable for the maintenance and
enjoyment thereof, and ministers exclusively to the
personal comfort and enjoyment of the ER's family.
A househelper or a laundry woman, as well as a
gardener, driver, or a houseboy who work in the
staff house of a company are NOT househelpers. The
criterion is not the nature of the work but the
personal comfort and enjoyment of the family of the
employer in the home of said employer. (Apex
Mining Co. v. NLRC, 1991)
In case of termination
45
K. Employment of Homeworkers
TOPIC K-I. Definition
Note: DO 5, DOLE (February 4, 1992), is now Rule
XIV, Book III of the IRRI.
Sec. 1, Rule XIV, Book III: [Homeworker] applies to
any person who performs industrial homework for an
employer, contractor, or sub-contractor.
Sec. 2(a), Rule XIV, Book III: Industrial homework
(1) Is a system of production under which work for
an ER or contractor is carried out by a
homeworker at his/her home.
(2) Materials may or may not be furnished by the ER
or contractor.
(3) Decentralized form of production, where there
is ordinarily very little supervision or regulation
of methods of work.
Definition of employer
Art. 155: The employer means any person who
(1) Acts as a contractor delivers or causes to be
delivered any goods, articles, or materials to be
processed or fabricated in or about a home and
thereafter to be returned or to be disposed of or
distributed in accordance with ERs direction; or
(2) Sells any goods, articles, or materials to be
processed or fabricated in or about a home and
then rebuys them after.
Note: Sec 2(d), Rule XIV, Book III is substantially
similar to the above.
46
34
47
Summary of Rules:
What are the features of Apprenticeship Training?
(1) The apprentice must be paid not less than
75% of the prescribed minimum salary (Art.
61);
Exception: The employer MAY NOT pay any
wage if the apprenticeship training is:
a. part of the school curriculum,
b. a requirement for graduation, or
c. a requirement for board examination
(Art. 72)
(2) The apprenticeship agreement must be
approved by the DOLE Secretary (without
such one shall be deemed a regular
employee) (Nitto Enterprises v. NLRC, G.R.
No. 114337, Sept. 29, 1995);
(3) The employer is not compelled to continue
ones employment upon termination of
apprenticeship;
(4) One-half (1/2) of the value of labor training
expenses incurred for developing the
productivity and efficiency of apprentices of
the training cost is deducted from the
employers income tax but it shall not exceed
10% of direct labor wage (Art. 71)
Requisites of the deduction:
a. Apprenticeship program must be duly
approved by the DOLE;
b. Deduction shall NOT exceed 10% of
direct labor wage;
c. Employer must pay his apprentices
the minimum wage.
Working scholars there is no employer-employee
relationship between students on one hand, and
schools, colleges or universities on the other, where
there is written agreement between them under
which the former agree to work for the latter in
exchange for the privilege to study free of charge,
provided, the students are given real opportunities,
including such facilities as may be reasonable and
necessary to finish their chosen courses under such
agreement. (Sec. 14, Rule X, IRR)LEARNERS
Definition
RA 7796, Sec. 4: "Learners" refers to persons hired
as trainees in semi-skilled and other industrial
occupations
which
are
non-apprenticeable.
Learnership programs must be approved by the
authority.
Art. 73, sentence 2: [Occupations] which may be
learned through practical training on the job in a
relatively short period of time which shall not
exceed three (3) months.
Allowed employment
LC Art. 74: 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.
48
1.
49
development
persons.
shall
be
reserved
for
disabled
50
51
52
on
duration
may
be
53
54
b) Project employment
Employment fixed on a specific project or
undertaking, completion or termination of which is
determined at the time of engagement of the
employee.
Must have been forewarned of the nature/scope and
duration of the project.
Whether or not the project has a direct relation to
the business of the ER is not important, BUT:
EE must be informed of the nature and duration
of project
project and principal business of ER are two
separate things
no attempt to deny security of tenure to the
worker
Test of project employment
The principal test for determining whether
employees are properly characterized as "project
employees," as distinguished from
"regular
employees," is whether or not the project employees
were assigned to carry out a "specific project or
undertaking," the duration and scope of which were
specified at the time the employees were engaged
for that project. As defined, project employees are
those workers hired:
(1) for a specific project or undertaking, and
(2) the completion or termination of such project or
undertaking has been determined at the time of
the engagement of the employee. (PNOC Energy
Devt Corp vs. NLRC, 2007)
(i) Indicators of project employment
(1) The duration of the specific/identified
undertaking for which the worker is
engaged is reasonably determinable;
(2) Such duration, as well as the specific
work/service to be performed, is defined in
an employment agreement and is made
clear to the employee at the time of the
hiring;
(3) The work/service to be performed by the
employee is in connection with the
particular project/undertaking for which he
is engaged;
(4) The employee, while not employed and
awaiting engagement, is free to offer his
services to any other employer;
(5) The termination of his employment in the
particular project/undertaking is reported
to the DOLE Regional Office having
jurisdiction over the workplace within 30
days following the date of his separation
from work, using the prescribed form on
employees
terminations
/dismissals
/suspensions;
(6) An undertaking in the employment contract
by the employer to pay completion bonus to
the project employee as practiced by most
39
55
c) Seasonal employment
Work or services to be performed are seasonal in
nature, employment is for the duration of the
season.
No continuing need for the worker.
Regular Seasonal Employees After One Season
Regular seasonal employees are those called to work
from time to time. The nature of their relationship
with the employer is such that during off season they
are temporarily laid off but during summer season
they are reemployed, or when their services may be
needed. They are not, strictly speaking, separated
from the service but are merely considered as on
leave of absence without pay until they are
reemployed. Their employment relationship is never
severed but only suspended. As such those
employees can be considered as in the regular
employment of the employer. (Manila Hotel Co. v.
CIR, G.R. No. L-18875, Sept. 30, 1963).
Hacienda Bino vs. Cuenca (2005):
For respondents to be excluded from those classified
as regular employees, it is not enough that they
56
d) Casual employment
Nature of work
What determines regularity or casualness is not the
employment contract, written or otherwise, but the
nature of the job. If the job is usually necessary or
desirable to the main business of the employer, then
employment is regular. (A. M. Oreta and Co., Inc.
vs. NLRC, 1989)
One-year service
Tabas vs. California Marketing Co., Inc. (1989):
The fact that the petitioners have been hired on a
"temporary or seasonal" basis merely is no argument
either.
As held in Philippine Bank of Communications v.
NLRC, a temporary or casual employee, under Article
281 of the Labor Code, becomes regular after service
of one year, unless he has been contracted for a
specific project.
And we cannot say that merchandising is a specific
project for the obvious reason that it is an activity
related to the day-to-day operations of California.
The records show that the petitioners had been
given an initial six month contract, renewed for
another six months. Accordingly, under Article 281
of the Code, they had become regular employees
of California and had acquired a secure tenure.
Hence, they cannot be separated without due
process of law.
57
58
Examples
Aboitiz Haulers vs. Dimapatoi (2006):
The allegation of petitioner that Grigio is an
independent job contractor is without basis. The
respondents, as checkers, were employed to check
and inspect cargo, a task which is clearly necessary
for the petitioners business of forwarding and
distributing cargo. Grigio did not undertake the
performance of its service contract according to its
own manner and method, free from the control and
supervision of its principal.
The work activities, shifts, and schedules of the
respondents, including time allowed for "recess"
were set under the Written Contract of Services.
This clearly indicates that these matters, which
consist of the means and methods by which the work
is to be accomplished, were not within the absolute
control of Grigio.
Petitioners allegation that Grigio retained control
by providing supervisors to monitor the performance
of the respondents cannot be given much weight.
Instead of exercising their own discretion or
referring the matter to the officers of Grigio, its
supervisors were obligated to refer to petitioners
supervisors any discrepancy in the performance of
the respondents.
Lastly, the law casts the burden on the contractor to
prove that it has substantial capital, investment,
tools etc. In this case, neither Grigio nor the
petitioner was able to present any proof that Grigio
had substantial capital.
59
Art. 107:
The provisions of the immediately
preceding article shall likewise apply to any person,
partnership, association, or corporation which, not
being an employer, contracts with an independent
contractor for the performance of any work, task,
job or project.
Art. 108: An employer or indirect employer may
require the contractor or subcontractor to furnish a
bond equal to the cost of labor under contract, on
condition that the bond will answer for the wages
due the employees should the contractor or
subcontractor, as the case may be, fail to pay the
same.
Art. 109: The provisions of existing laws to the
contrary notwithstanding, every employer or indirect
employer shall be held responsible with his
contractor or subcontractor for any violation of any
provision of this Code. For purposes of determining
the extent of their civil liability under this Chapter,
they shall be considered as direct employers.
If found to be labor-only contractor, it is equivalent
to finding that there exists an employer-employee
relationship between the owner of the project and
the employees of the labor-only contractor since
that relationship is defined and prescribed by the
law itself. (Industrial Timber Corporation vs. NLRC,
1997)
In legitimate job contracting, no employer-employee
relation exists between the principal and the job
contractor's employees. The principal is responsible
to the job contractor's employees only for the proper
payment of wages. But in labor-only contracting, an
employer-employee relation is created by law
between the principal and the labor-only
contractor's employees, such that the former is
responsible to such employees, as if he or she had
directly employed them. (PAL vs. NLRC, 1998)
The only time the indirect employer may be made
solidarily liable with the contractor is when the
contractor fails to pay his employees their wages
and other benefits claimed. (Landazares vs.
Amethyst Security, 2003)
Eparwa Security,
University (2006):
Inc. vs Liceo
de
Cagayan
B. Termination of employment
SECURITY OF TENURE
Definition
Right not be removed from ones job without valid
cause and valid procedure. (Kiamco v. NLRC, 1999)
Art. 279: in case of regular employment, the
employer shall not terminate the services of an
employee except for
a. just cause (Art. 282)
b. authorized cause (Art. 283-284)
Nature
It is a constitutionally protected right (Art. XIII Sec.
3, 1987 Constitution); it cannot be blotted out by an
employment contract.
It does not give the Employee an absolute right to
his position; when a transfer is not unreasonable,
nor inconvenient, nor prejudicial to an employee;
and it does not involve a demotion in rank or
diminution of his pay, benefits, and other privileges,
the employee may not complain that it amounts to
constructive dismissal. (Lanzadares vs. Amethyst
Security, 2003)
A finding of illegal dismissal entitles the Employee
to:
(1) reinstatement without loss of seniority
rights and privileges, and
(2) full backwages inclusive of allowances and
to benefits or their monetary equivalent
from the time withheld up to actual
reinstatement (Art. 279)
Separation pay in lieu of reinstatement: Doctrine
of Strained Relations: If reinstatement is not
feasible, expedient or practical, as where there is
strained relations between the parties, particularly
where the; illegally dismissed employee held a
managerial or key position. (Quijano vs. Mercury
Drug Corp., 1998)
Coverage
1987 Constitution: all workers (Art. XIII Sec. 3)
60
a) JUST CAUSES
No written notice to employer required
(i) Serious misconduct or willful disobedience
Misconduct
improper or wrongful conduct
transgression of some established and
definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and
implies wrongful intent and not mere error
in judgment. (Dept of Labor Manual, Sec.
4343.01; Hayuan Restaurant vs. NLRC,
2006)
Requisites
(1) Serious to be serious, misconduct must be:
a. of such grave and aggravated
character
b. in connection with the employee's
work. (Lakpue Drug, Inc. vs. Belga,
2005)
(2) Shows that the Employee has become unfit
to continue working for the Employer.
(Philippine Aeolus Automotive United Corp.
vs. NLRC)
Willful disobedience:
Requisites:
(1) The employees assailed conduct has been
willful or intentional, the willfulness being
characterized by a wrongful and perverse
attitude; and
(2) The order violated must have been:
a. Reasonable and lawful;
b. Made known to the employee; and
c. In connection to the duties which
he has been engaged to discharge.
(Acesite Corp. v. NLRC, G.R. No.
152308, January 26, 2005).
(ii) Gross and habitual neglect of duties
Gross negligence is want of even slight care, acting
or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and
61
45
b) Authorized causes
(1) Recognized right
Uichico v. NLRC (1997):
The law recognizes the right of every business entity
to reduce its workforce if the same is made
necessary by compelling economic factors which
would endanger its existence or stability.
The fundamental law itself guarantees, even during
the process of tilting the scales of social justice
towards workers and employees, the right of
enterprises to reasonable returns of investment and
to expansion and growth.
Art. 283 and 284 are not exhaustive; other
authorized causes are:
total and permanent disability,
disease incurable in 6 mos,
valid application of union security clause,
expiry of term employment period,
completion of project,
62
Apprehended
losses
are
reasonably
(I)mminent, can be perceived objectively
and in good faith;
Retrenchment
must
be
reasonably
(N)ecessary to prevent the expected
lossesmeasure of last resort; and
Expected or actual losses must be proved by
(S)ufficient and convincing evidence. (Lopez
Sugar Corp. v. Federation of Free Workers,
1990)
Reduction of work days may be considered
constructive retrenchment (International Hardware
v. NLRC, 1989)
Temporary retrenchment or temporary cessation or
suspension of operations (Art. 286)
A specific period that employees may remain
temporarily laid-off or in floating status. The
temporary lay-off or bona fide suspension of
operations of a business or undertaking wherein the
employees likewise cease to work should not last
longer than 6 months. After 6 months, the
employees should either be recalled to work or
permanently entrenched following the requirements
of the law, and that failing to comply with this
would be tantamount to dismissing the employees
and the employer would thus be liable for such
dismissal. (International Hardware v. NLRC, 1989)
Closure
Employer may close or cease his business operations
or undertaking even if he is not suffering from
serious business losses or financial reverses, as long
as he pays his employees their termination pay in
the amount corresponding to their length of service.
(Catatista v. NLRC, 1995)
It includes both the complete cessation of all
business operations and the cessation of only part of
a companys business (Coca-Cola Bottlers, Inc. v.
NLRC, 1991)
(b) Requirements
Must de bona fide or in good faith
(a) Procedural steps required
At least 1 month before the intended date of
termination, Employer is to serve written notice to:
(1) Affected employees; and
(2) DOLE (Art. 283)
(b) Requirements for valid
Retrenchment/redundancy
Requisites: Redundancy
(1) Written notice served on both the
Employees and the DOLE at least 1 month
prior to the intended date;
(2) Payment of separation pay equivalent to
one month pay or one month pay for every
year of service, whichever is higher;
(3) Good faith in abolishing the redundant
positions; and
63
(a) Requisites
1) Employee has been found to be suffering from
any disease;
2) His continued employment is prohibited by law
or is prejudicial to his health as well as to the
health of his co-employees;
3) Payment of separation pay;
4) A medical certification by a competent public
health authority that the disease cannot be
cured w/in 6 months even with proper medical
treatment (IRR Book VI. Rule I. Sec. 8)
Medical certification cannot be dispensed
with (Manlyl Express, Inc. v. Payong,
4 7 2005)
It must be issued by a competent public
health authority and not the company
physician (Cebu Royal Plant v. Deputy
Minister of Labor, 1987
JUST CAUSES
Serious
Misconduct
Redundancy
The service
of an
Employee is
in excess of
what is
required by
an
enterprise
Closure
The reversal of the
fortune of the
employer whereby
there is a complete
cessation of
business operations
and/or actual
locking-up of the
doors of the
establishment,
usually due to
financial losses
Aims to prevent
further financial
drain upon the
Employer
Willful
Disobedience
Gross and
Habitual
Neglect
Fraud or
Willful Breach
of Trust
REQUISITES
Serious
- Grave and aggravated
character,
- In connection with work;
and
Shows that Employee is unfit to
work for
Employer.
Willful
conduct
wrongful and
perverse attitude; and
Order violated must be:
Reasonable,
Lawful,
Sufficiently known
to Employee,
In connection to
the duties.
Neglect must be both gross and
habitual.
Loss of Confidence
- Committed against the
Employer or his
representative (direct);
- willful since fraud implies
wrongful intent;
- EE concerned holds a
position of trust and
confidence (Mabeza vs.
NLRC, 1997);
- Act complained of must be
work-related.
Additional Guidelines
- NOT simulated;
- NOT used as a
subterfuge;
- NOT arbitrarily asserted;
and
- genuine, NOT a mere
afterthought (Vitarich v.
NLRC, 1999; Coca-Cola
Bottlers, Phils., Inc. v.
Kapisanan ng Malayang
Manggagawa sa Coca-Cola,
2005)
64
Analogous
auses
AUTHORIZED
CAUSES
Installation of
Labor Saving
Devices
Redundancy
Retrenchment
physical fitness,
age,
financial hardship, or
seniority. (Asian Alcohol
Corp. v. NLRC, 1999)
REQUISITES
Crime against the
Employer,
Immediate member
of employers
family, or
Employers duly
authorized
representative; and
Conviction or prosecution NOT
required.
Due to a voluntary and/or willful
act or omission by Employee
(Nadura vs. Benguet
Consolidated, 1962)
REQUISITES
- 1 month written notice to
DOLE and Employee
- separation pay equivalent to
one month pay or one month
pay for every year of service,
whichever is higher
- 1 month written notice to
DOLE and Employee
- separation pay equivalent to
one month pay or one month
pay for every year of service,
whichever is higher;
- Good faith in abolishing the
redundant positions; and
- Fair and reasonable criteria
in choosing those affected
(Asian Alcohol Corp. v. NLRC,
1999), such as but not limited
to:
- preferred status (e.g.
temporary,
- casual or regular
Employees)efficiency, or
- seniority. (Panlilio v. NLRC,
1997; Golden Thread Knitting
Industries, Inc. v. NLRC,
1999)
Basic Requisites: N N S G F
Necessary to prevent or
minimize losses and such
losses are proven
1 month written notice
to DOLE and the Employees
Separation pay
equivalent to at least one
month pay or at least 1/2
month pay for every year of
service, whichever is higher;
Exercise is in good
faith; and
Fair and reasonable
criteria in ascertaining who
will be affected
preferred status (e.g.
temporary, casual or
regular Employees)
efficiency,
Closure or
Cessation of
Operations
Disease
65
Dismissal
invalid
No Just or
Authorized
Cause + No Due
Process
Dismissal
invalid
Just or
Authorized
Cause + No Due
Process
Dismissal valid
Liability of ER
No liability
* separation
pay if for
authorized
cause
Reinstatement
+
Full
Backwages
* if
reinstatement
NOT possible =
separation pay
Reinstatement
+
Full
Backwages
* if
reinstatement
NOT possible =
separation pay
Liable
for
damages due to
non-compliance
with procedural
req'ts
*separation pay
if for
authorized
cause
66
Hearing
A formal or trial type hearing is not at all times and
in all instances essential to due process; it is enough
to that the parties are afforded fair and reasonable
opportunity to explain their side of the controversy.
(Mendoza vs. NLRC, 1991)
Summary proceeding may be conducted; written
explanations, affidavits, position papers or other
pleadings may be used as well; what is essential is
the ample opportunity to be heard. (Homeowners
Savings and Loan Assoc. Inc. vs. NLRC, 1996)
No formal hearing necessary when the Employee
already admitted his responsibility for the act he
was accused of. (Magos v. NLRC, 1998)
Burden of Proof
Upon the employer. Employer must comply with due
process requirements before any termination is
done. (Gothong Lines, Inc. v. NLRC, 1999)
Unsubstantiated
suspicions
and
baseless
conclusions by employers are not legal
justification for dismissing employees. (Maranaw
Hotel and Resort Corp. v. NLRC, 1999)
Degree of Proof
Substantial evidence; proof beyond reasonable doubt
not required. (Manila Electric Co., Inc. v. NLRC,
1991)
Prescription Period
An action for reinstatement by reason of illegal
dismissal is one based on an injury which may be
brought within 4 years from the time of dismissal.
(Art. 1146 of the Civil Code)
(c) Agabon doctrine
Prior to 1989
Wenphil Corp. v.
NLRC, 1989
- Belated Due
Process Rule
Serrano v. NLRC,
2000
Current rule:
Agabon v. NLRC,
2004
Illegal dismissal
Dismissal is valid (NO
reinstatement and
backwages)
BUT Employer to indemnify
Employee for damages
Dismissal is valid.
EE is entitled to the payment
of full backwages - Computed
from the time of dismissal
until the Court finds the
dismissal to be for just
cause.
Dismissal is valid (NO
reinstatement and
backwages)
BUT Employer to indemnify
Employee in the form of
nominal damages
indemnity stiffer
than Wenphil Corp. vs.
52
67
Definition
The voluntary act of an Employee who finds himself
in a situation in which he believes that personal
reasons cannot be sacrificed in favor of the exigency
of the service and he has no other choice but to
dissociate himself from his employment. (Oriental
Shipmanagement Co. vs. CA, 2006)
Resignation
Requisites
(1) Unconditional (Azcor Manufacturing, Inc. vs.
NLRC, 1999)
(2) Intention to relinquish a portion of the term of
office accompanied by an act of relinquishment.
(Azcor Manufacturing, Inc. vs. NLRC, 1999);
(3) No valid resignation where it was made without
proper
discernment
(Metro
Transit
Organization, Inc. vs. NLRC, 1998)
(4) Voluntary
(5) Acceptance of Employer necessary to make the
resignation effective. (Shie Jie Corp./Seastar
Ex-im Corp. vs. National Federation of Labor,
2005; Reyes v. CA, 2003)
Resignations once accepted and being the sole act of
the employee, may not be withdrawn without the
consent of the employer. (Intertrod Maritime, Inc.
v. NLRC, 1991)
Rule: Filing of an illegal dismissal case is
inconsistent with resignation. (Valdez v. NLRC, 1998)
Except when the filing of an illegal dismissal case by
respondent was evidently a mere afterthought: it
68
69
V. Management Prerogative
This Court held that the employers right
to
conduct the affairs of his business, According to its
own discretion and judgment, is well-recognized. An
employer has a free reign and enjoys wide latitude
of discretion to regulate all aspects of employment.
This is a management prerogative, where the free
will of management to conduct its own affairs to
achieve its purpose takes form. (Torreda vs.
Toshiba, 2007)
A. Discipline
The employers right to conduct the affairs of his
business, according to its own discretion and
judgment, includes the prerogative to instill
discipline in its employees and to impose penalties,
including dismissal, upon erring employees. This is a
management prerogative where the free will of
management to conduct its own affairs to achieve its
purpose takes form. The only criterion to guide the
exercise of its management prerogative is that the
policies, rules and regulations on work-related
activities of the employees must always be fair and
reasonable and the corresponding penalties, when
prescribed, commensurate to the offense involved
and to the degree of the infraction. (Consolidated
Food Corporation vs. NRLC, 1999) (St. Michaels
Institute vs. Santos, 2001)
Right to dismiss or otherwise impose disciplinary
sanctions upon an employee for just and valid cause,
pertains in the first place to the employer, as well as
the authority to determine the existence of said
cause in accordance with the norms of due process.
(Makati Haberdashery, Inc. v. NLRC, 1989)
B. Transfer of employees
Westin Phil. Plaza Hotel v. NLRC (1999):
(1) An Employees right to security of tenure does
not give him such a vested right in his position
as would deprive the company of its prerogative
to change his assignment or transfer him where
he will be most useful.
(2) The Employer has the right to transfer or assign
Employees from one area of operation to
another, or one office to another or in pursuit of
its legitimate business interest,
(3) provided there is no demotion in rank or
diminution of salary, benefits and other
privileges and not motivated by discrimination
or made in bad faith, or effected as a form of
punishment or demotion without sufficient
cause.
70
C. Productivity standard
The employer has the right to demote and transfer
an employee who has failed to observe proper
diligence in his work and incurred habitual tardiness
and absences and indolence in his assigned work.
(Petrophil Corporation vs. NLRC, 1986)
In the consolidated cases of Leonardo vs. NLRC [G.
R. No. 125303, June 16, 2000] and Fuerte vs. Aquino
[G. R. No. 126937, June 16, 2000], the employer
claimed that the employee was demoted pursuant to
a company policy intended to foster competition
among its employees. Under this scheme, its
employees are required to comply with a monthly
sales quota. Should a supervisor such as the
employee fail to meet his quota for several
consecutive months, he will be demoted, whereupon
his supervisors allowance will be withdrawn and be
given to the individual who takes his place. When
the employee concerned succeeds in meeting the
quota again, he is re-appointed supervisor and his
allowance is restored. The Supreme Court held that
this arrangement is an allowable exercise of
company rights since an employer is entitled to
impose productivity standards for its workers. In
fact, non-compliance may be visited with a penalty
even more severe than demotion.
D. Grant of Bonus
A bonus is "a gratuity or act of liberality of the giver
which the recipient has no right to demand as a
matter of right" (Aragon vs. Cebu Portland Cement
Co., 61 O.G. 4597). "It is something given in addition
to what is ordinarily received by or strictly due the
recipient." The granting of a bonus is basically a
management prerogative which cannot be forced
upon the employer "who may not be obliged to
assume the onerous burden of granting bonuses or
other benefits aside from the employee's basic
salaries or wages" (Kamaya Point Hotel vs.
National Labor Relations Commission, Federation of
Free Workers and Nemia Quiambao, G.R. No. 75289,
August 31, 1989). (Traders Royal Bank vs. NLRC,
1990)
F. Marital discrimination
In the recent case of Duncan Association of
Detailman-PTGWO and Pedro Tecson v. Glaxo
Wellcome Philippines, Inc., we passed on the
validity of the policy of a pharmaceutical company
prohibiting its employees from marrying employees
of any competitor company. We held that Glaxo has
a right to guard its trade secrets, manufacturing
formulas,
marketing
strategies
and
other
confidential programs and information from
competitors. We considered the prohibition against
personal or marital relationships with employees of
competitor companies upon Glaxos employees
reasonable under the circumstances because
relationships of that nature might compromise the
interests of Glaxo. In laying down the assailed
company policy, we recognized that Glaxo only aims
to protect its interests against the possibility that a
competitor company will gain access to its secrets
and procedures. (Star Paper Corp. vs. Simbol, 2006)
G. Post-employment ban
In cases where an employee assails a contract
containing a provision prohibiting him or her from
accepting competitive employment as against public
policy, the employer has to adduce evidence to
prove that the restriction is reasonable and not
greater than necessary to protect the employers
legitimate business interests. The restraint may not
be unduly harsh or oppressive in curtailing the
employees legitimate efforts to earn a livelihood
and must be reasonable in light of sound public
policy. (Rivera v Solidbank, 2006)
71
1)
2)
3)
4)
5)
b. Benefits
1. Coverage
1)
2)
Compulsory
(1) Employers as defined above;
(2) Employees not over 60 years including
domestic helpers with at least P1,000
monthly pay; and
(3) Self-employed as may be determined by the
Commission, but not limited to:
i. Self-employed professionals
ii. Partners and single proprietors of
businesses
iii. Actors and actresses, directors,
scriptwriters,
and
news
correspondents who do not fall
within the definition of the term
employee under Section 8 (d)
iv. Professional athletes, coaches,
trainers and jockeys
v. Individual farmers and fishermen
Voluntary
(1) Spouses who devote full time to managing
household and family affairs, unless they
are also engaged in other vocation or
employment
(which
is
subject
of
compulsory coverage);
(2) OFWs recruited by foreign-based employers;
(3) Employees (previously under compulsory
coverage)
already
separated
from
employment or those self-employed (also
under compulsory coverage) with no
realized income for a given month, who
chose to continue with contributions to
maintain right to full benefit.
NOTE: Foreign governments, international
organizations
or
their
wholly
owned
instrumentality employing workers in the
Philippines may enter into an agreement with
the Philippine government to include their
employees in the SSS except those already
covered by their civil service retirement system.
Monthly pension
Computation of monthly pension: the monthly
pension shall be the highest of the following
amounts:
(1) P300 + [20% x (ave. monthly credit)] + [2% x
(ave. monthy credit) x (# of cash credited years
of service in excess of 10 years)]; or
(2) 40% x (ave. monthly credit); or
(3) P1,000; provided, that the monthly pension shall
in no case be paid for an aggregate amount of
less than 60 months.
(4) Notwithstanding the abovementioned, minimum
pension is P1,200 for members with at least 10
years credit service, P2,400 for those with 20
years.
Dependents pension
a.
b.
c.
Retirement benefits
Eligibility requirements
1) 120 monthly contributions;
2) Age
a. 65 years old; or
b. a member who has reached 60 years may
also avail if he is already separated from
employ-ment or has ceased to be selfemployed.
Benefit entitlement to monthly pension from
retirement until death.
Lump Sum Alternative
Member may opt to receive his first 18 monthly
pensions in lump sum but such is discounted at a
preferential rate of interest.
72
b)
c)
Eligibility
requirement:
36
monthly
contributions prior to the semester of disability;
same as death benefit; only difference is that
the pension is paid directly to the member.
In case the permanently disabled member dies,
it would be given the same treatment as a
retiree dying. (see section B-5 above).
For permanent partial disability, the pension is
not lifetime. (e.g. loss of thumb entitles
member to only 10 months of pension, while loss
of arm 50 months).
It shall be paid in lump sum if the period is
less than 12 months.
For multiple partial disabilities, they shall
be additive when related or deteriorating
the percentage shall be equal to the
number of months the partial disability is
entitled to divided by 75 months. (e.g. loss
of sight in one eye
25/75; loss of arm
50/75; if both occur due to same cause,
then 25/75 + 50/75 = 100% so treated as if
it were permanent total disability.
Death benefits
Eligibility requirement: 36 monthly contributions
prior to the semester of death.
Benefit monthly pension to primary or secondary
beneficiaries.
To those ineligible lump sum benefit which shall
be the higher between the two:
(monthly pension) x 12; or
(monthly pension) x (# of monthly contributions)
Funeral benefits
P12,000 in cash or in kind, upon death of member
Loan Social Security Commission Resolution
No. 669. Moreover, several SSS-issued circulars
such as Circular No. 21-P and No. 52 pertain to
the treatment of salary loans, sometimes
providing for more flexible payment terms or
condonation for delinquent payers; Santiago v.
CA and SSS, GR # L-39949 (1984) resolved an
issue involving the treatment of salary loan
repayments; SSS website also shows loans
c. Beneficiaries
1)
Primary
Dependent spouse until remarriage (see
above);
Dependent children (legitimate, legitimated,
legally adopted, and illegitimate) (see above);
illegitimate children are entitled only to 50%
of the share of legitimate children unless
there are no legitimate children, in which
case, they get 100%.
Sickness benefits
Eligibility requirements and other conditions
(1) Inability to work due to sickness or injury
(2) Confined for at least 4 days either in a hospital
or elsewhere with SSS approval;
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3. Benefits
Monthly pension
The amount shall be:
a) 37.5% x (revalued ave. monthly compensation)
b) Plus 2.5 x (revalued ave. monthly compensation)
x (years in service in excess of 15 years).
The monthly pension shall not exceed 90% of the
average monthly compensation.
It shall not be less than P2,400 for those with 20
years of service and not less than P1,300 for
everyone else.
Retirement benefits
Eligibility requirements
(1) 15 years service;
(2) 60 years of age; and
(3) Not receiving pension benefit from permanent
total disability.
Note: Retirement is compulsory for employees 65
years of age who have rendered at least 15 years of
service; if employee has less than 15 years of
service, he may be allowed to continue in
accordance with civil service laws.
Benefit: choice between
60 x (basic monthly pension) lump sum payment
at the time of retirement plus basic monthly
pension payable monthly for life after expiry of
the 5-year guaranteed period which is already
covered by the lump sum; or
Cash payment equivalent to 18 x (basic monthly
pension) plus monthly pension for life
immediately but with no 5-year guarantee
Permanent disability benefits
Eligibility requirements for Permanent Total
Disability
(1) Disability not due to employees own grave
misconduct, notorious negligence, habitual
intoxication, or willful intention to kill
himself or another;
(2) Employee is: in service at the time of
disability; or b) even if separated, he has
paid at least 36 monthly contributions
within the 5-year period immediately prior
to disability or has paid a total of at least
180 monthly contributions prior to
disability; and
(3) Member is not enjoying old-age retirement
benefit.
Benefit for Permanent Total Disability
Monthly income benefit for life equal to basic
monthly pension This is effective from date of
disability;
If member is in service at the time of disability
and he has paid at least 180 monthly
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4. Beneficiaries
1)
Primary
Dependent spouse until remarriage;
Dependent
children
(legitimate,
legitimated,
legally
adopted,
and
illegitimate) but RA 8291 does not
distinguish share of legitimate and
illegitimate children.
2) Secondary shall only receive when the primary
beneficiaries are absent
Dependent parents
Legitimate descendants, subject to the
restrictions on dependent children.
(See Annex B for Comparison between the SSS law
and the GSIS Law)
D. Employees Compensation
Coverage and when
compensable
Coverage
Sec. 2. Scope (a) Every employer shall be
covered.
(b) Every employee not over sixty (60) years of age
shall be covered.
(c) An employee over sixty (60) years of age shall
be covered if he had been paying contributions
to the System prior to age sixty (60) and has not
been compulsorily retired.
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A. RIGHT TO SELF-ORGANIZATION
63
76
77
Employee-Member of Cooperative
Non-Employees
6.
High-level
or
managerial
employees (E.O. 180, Sec. 3)
government
78
d. Worker Qualification
Art. 277. Miscellaneous Provisions
c. Any employee, whether employed for a definite
period or not, shall, beginning on his first day of
service, be considered as an employee for purposes
of membership in any labor union.
Whether employed for a definite period or not, any
employee shall be considered as such, beginning on
his first day of service, for purposes of membership
in a labor union. To become a union member, an
employee must, as a rule, not only signify the intent
to become one, but also take some positive steps to
realize that intent. (UST Faculty Union v. Bitonio ,
1999)
(2) Executive Order No. 180
See previous page
d. Bargaining Unit
(1) Test
to
determine
the
constituency of an appropriate
bargaining unit
(W-A-P-E)
(1) Will of the Employees (Globe Doctrine)
(2) Affinity & unity of Employees interest, such as
substantial similarity of works and duties or
similarity of compensation & working conditions
(3) Prior CB history
(4) Employment status i.e. temporary, seasonal, &
probationary. (UP v. Ferrer-Calleja, 1992
citing Democratic Labor Assoc v. Cebu
Stevedoring Co.)
Community or Mutuality of Interests
FUNDAMENTAL TEST: [T]he basic test of an
asserted bargaining units ACCEPTABILITY is whether
or not it is fundamentally the combination which will
best assure to all employees the exercise of their CB
rights. This is related to the policy of the law in
ensuring the right to collective bargain. (UP v.
Ferrer-Calleja, 1992)
Mutuality of Interest: Rationale
There are greater chances of success for the
collective bargaining process. The bargaining unit is
designed to maintain the mutuality of interest
among the employees in such unit.
Reason to dissolve, change or expand a certain
bargaining unit: When THE INTEREST BETWEEN
GROUPS HAS CHANGED OVER TIME
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82
WHERE to
file?
SEC. 2
WHEN to
file?
SEC. 3
(1) Any
legitimate
labor
organization may file a petition
for certification election.
(2) When requested to bargain
collectively, an employer may
file a petition for certification
election with the Regional
Office.
(3) 3) If there is no existing
registered collective bargaining
agreement in the bargaining
unit, the Regional Office shall,
after
hearing,
order
the
conduct of a certification
election.
Regional Office which issued the
petitioning union's certificate of
registration/certificate of creation
of chartered local.
The petition shall be heard and
resolved by the Med-Arbiter.
Where two or more petitions
involving the same bargaining
unit are filed in one Regional
Office, the same shall be
automatically
consolidated
with the Med-Arbiter who first
acquired jurisdiction.
Where the petitions are filed in
different Regional Offices, the
Regional Office in which the
petition was first filed shall
exclude all others; in which
case, the latter shall indorse
the petition to the former for
consolidation.
A petition for certification election
may be filed anytime, except:
(1) when a fact of voluntary
recognition has been entered or
a valid certification, consent or
run-off election has been
conducted
within
the
bargaining unit within one (1)
year prior to the filing of the
petition
for
certification
election.
Where an appeal has been
filed from the order of the
Med-Arbiter certifying the
results of the election, the
running of the one year
period shall be suspended
until the decision on the
appeal has become final
and executory;
(2) when the duly certified union
has commenced and sustained
negotiations in good faith with
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69
84
70
Petition
filed
Freedom
Period
No need to be
verified
Not applicable.
No freedom
period.
Can file petition
anytime.
85
Has to be a
VERIFIED petition
No petition for
Certification
election EXCEPT
within 60 days
before the
expiration of the
collective
bargaining
agreement (See
Art. 253 & 253-A)
Substantial
support
rule
What is the
rationale of
freedom period in
Organized
establishments,
why is there none
in unorganized
establishments?
It has something
to do with
industrial peace
Must be duly
supported by 25%
of ALL THE
MEMBERS OF THE
APPROPRIATE
BARGAINING UNIT.
Percentage base:
all members of an
appropriate
bargaining unit.
What is intent and
purpose of law for
requiring the
substantial
support rule?
Law wants to
know the intention
of the employees.
If they really want
a CE, since they
already have a
bargaining agent.
NO substantial
support rule.
WHY?
Intention of law
is to bring in the
union, to
implement policy
behind Art. 211a.
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86
of
Voting Turnout
For the election to be valid, majority of all eligible
voters must have cast their votes. (Art. 256)
7 2 Voter: Defined
Eligible
Book V, Rule 1, Sec 1(q). Eligible voter refers to
a voter belonging to the appropriate bargaining unit
that is the subject of a petition for certification
election
Failure of Election
Where the number of votes cast in a certification
election is less than the majority of the number of
eligible voters; AND there are NO material
challenged votes.
Book V, Rule IX sec 17
The election office shall declare a failure of election
in the minutes of the election proceeding
Failure of Election: Effect
Book V, Rule IX sec 18
It shall NOT bar the filing of a motion for the
immediate holding of another certification or
consent election within six (6) months from the date
of the declaration of failure of election.
Valid Election: Certification of designated majority
union
Arts. 255, 256:
The labor union designated or selected by the
majority of the employees in an appropriate
collective bargaining unit shall be the exclusive
representative of the employees in such unit for the
purpose of collective bargaining.
Book V Rule IX Sec 15 (as amended by D.O. 40-F03 Series of 2008, Nov. 8, 2008)The union which obtained a majority of the valid
votes cast shall be certified as the sole and exclusive
bargaining agent of all the employees in the
appropriate bargaining unit within five (5) days from
the day of the election, provided no protest is
recorded in the minutes of the election.
Sec 19 (as amended by D.O. 40-F-03 Series of
2008, Nov. 8, 2008)(1) When: Within twenty-four (24) hours from final
canvass of votes, there being a valid election
(2) Who: the Election officer shall transmit
(3) What: the records if the case to the Med-Arbiter
who shall, within the same period from receipt
of the minutes and result of election, (i) issue
an order proclaiming the results of the election
and (ii) certifying the union which obtained a
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73
88
Conduct
2nd Level of
Choice: If Yes
Union wins,
WHICH union.
(UST Faculty Union
v. Bitonio, 1999)
Ordered by the
DOLE
Voluntarily
agreed upon by
the parties,
with or w/o
intervention
from DOLE
74
89
of Membership in
Labor
90
91
76
General Concepts
Duty to Bargain: Constitutional Policies
1987 Constitution. Art. XIII, Sec. 3
The State shall guarantee the rights of
workers
to
collective
bargaining
and
negotiations.
The State shall promote the principle of
shared responsibilities between workers and
employers and the preferential use of voluntary
modes
in
settling
disputes,
including
conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
Duty to Bargain: Statutory Policy
Labor Code, Art 211 A It is the policy of the State:
(a). To promote and emphasize the primacy of FREE
COLLECTIVE BARGAINING and negotiations, including
voluntary arbitration, mediation and conciliation, as
modes of setting labor or industrial disputes.
Book V Rule XVI Sec. 1. Policy
It is the policy of the State to promote and
emphasize the primacy of free and responsible
exercise of the right to self-organization and
collective bargaining, either through single
enterprise level negotiations or through the
creation of a mechanism by which different
employers and recognized certified labor unions in
their establishments bargain collectively.
Collective Bargaining: Definition
Collective bargaining, which is defined as
negotiations towards a collective agreement, is one
of the democratic frameworks under the New Labor
Code, designed to stabilize the relation between
labor and management and to create a climate of
sound and stable industrial peace. It is a mutual
responsibility of the employer and the Union and is
characterized as a legal obligation.
So much so that Article 249, par. (g) of the Labor
Code makes it an unfair labor practice for an
employer to refuse "to meet and convene promptly
and expeditiously in good faith for the purpose of
negotiating an agreement with respect to wages,
hours of work, and all other terms and conditions of
employment. (Kiok Loy v. NLRC, 1986)
Collective Bargaining: Nature and Purpose
The institution of collective bargaining is a prime
manifestation of industrial democracy at work. The
two parties to the relationship, labor and
management, make their own rules by coming to
terms to govern themselves in matters that really
count. (United Employees Union of Gelmart
Industries v. Noriel, 1975)
Collective Bargaining: Waiver of Right
The right to free collective bargaining includes the
right to suspend it. (Rivera v. Espiritu ,2000)
Duty to Bargain: Meaning
Art. 252. Meaning of duty to bargain collectively.
92
77
in
93
Composition
The Board shall be composed of:
a) Administrator, and
b) 2 Deputy Administrators
The
Administrators
and
the
Deputy
Administrators shall be appointed by the
President upon recommendation of the
Secretary of Labor and Employment.
There shall be as many Conciliators-Mediators as
the needs of the public service require, who
shall have at least three (3) years of experience
in handling labor relations and who shall be
appointed by the Secretary.
Functions
Formulate policies, programs, standards,
procedures, manuals of operation and guidelines
pertaining
to
effective
mediation
and
conciliation of labor disputes;
Perform preventive mediation and conciliation
functions;
Coordinate and maintain linkages with other
sectors of institutions, and other government
authorities concerned with matters relative to
the prevention and settlement of labor disputes;
formulate policies, plans, programs, standards,
procedures, manuals of operation and guidelines
pertaining to the promotion of cooperative and
non-adversarial schemes, grievance handling,
voluntary arbitration and other voluntary modes
of dispute settlements;
Administer the voluntary arbitration program;
maintain/update a list of voluntary arbitrations;
compile arbitration awards and decisions;
Provide counselling and preventive mediation
assistance particularly in the administration of
collective agreement; awards and decisions;
Monitor and exercise technical supervision over
the Board programs being implemented in the
regional offices; and
Perform such other functions as may be
provided by law or assigned by the Secretary.
Tripartite Voluntary Arbitration Advisory Council
A Tripartite Voluntary Arbitration Advisory Council is
hereby created and attached to the National
Conciliation and Mediation Board.
The Tripartite Voluntary Arbitration Advisory Council
shall advise the National Conciliation Board on
matters pertaining to the promotion of voluntary
arbitration as the preferred mode of dispute
settlement.
Composition
(1) Administrator of the National Conciliation and
Mediation Board as Chairman,
(2) 1 other member from the government,
(3) 2 members representing labor, and
(4) 2 other members representing management.
Appointment
The members shall be appointed by the
President to serve for a term of 3 years.
The Chairman and Members thereof shall serve
without compensation.
94
Administration
and
95
80
CBA Duration
Political Aspect (representation): 5 years. This
refers to the identity and majority status of the
collective bargaining agent that negotiated the CBA.
Non-political aspect: 3 years. This refers to other
provisions in the CBA, economic or otherwise other
than representational or political.
Hold Over Principle
Art. 253. In the absence of a new CBA, the parties
must maintain the status quo and must continue in
full force and effect the terms and conditions of the
existing agreement during the sixty (60) day period
and/or until a new agreement is reached.
In this manner, the law prevents the existence of a
gap in the relationship between the collective
bargaining parties.
The last sentence of Article 253, which provides for
automatic renewal pertains only to the economic
provisions of the CBA, and does not include
representational aspect of the CBA. An existing
existing CBA cannot constitute a bar to a filing of
petition for certification election. When there is a
representational issue, the status quo provision
insofar as the need to await the creation of a new
agreement will not apply. Otherwise, it will create
an absurd situation where the union members will be
forced to maintain membership by virtue of the
union security clause existing under the CBA and,
thereafter, support another union when filing a
petition for certification election. If we apply it,
there will always be an issue of disloyalty whenever
the employees exercise their right to selforganization. The holding of a certification election
is a statutory policy that should not be
circumvented, or compromised. (PICOP Resources,
Inc. v. Taneca et. al., 2010)
Arbitrated CBA
In the absence of an agreement between the parties,
an arbitrated CBA takes on the nature of any judicial
or quasi-judicial award. It operates and may be
executed only prospectively unless there are legal
96
97
and
Interest
Disputes:
98
99
of
the
84
100
3.
101
85
102
86
103
88
d) Discrimination
Unionism
Encourage/Discourage
87
104
2) Discrimination Encourage/Discourage
Unionism
Art. 249(b). To cause or attempt to cause an
employer to discriminate against an employee,
including discrimination against an employee with
respect to whom membership in such organization
has been denied or to terminate an employee on any
ground other than the usual terms and conditions
under which membership or continuation of
membership is made available to other members;
UNION SECURITY CLAUSE is a stipulation in the
CBA whereby the management recognizes that the
membership of employees in the union which
negotiated the said agreement should be maintained
and continued as a condition for employment or
retention of employment. Its purpose is to safeguard
and ensure the continued existence of the union.
3) Exaction-Featherbedding
Art. 249 (d) To cause or attempt to cause an
employer to pay or deliver or agree to pay or deliver
any money or other things of value, in the nature of
an exaction, for services which are not performed or
not to be performed, including the demand for fee
for union negotiations
105
106
or
d) After assumption by the Secretary or after
certification or submission of the dispute to
compulsory or voluntary arbitration or during
the pendency of cases involving the same
grounds for the strike or lockout.
107
Allowable strikes
Art. 263 (c): Strikes, picketing and lockouts
Bargaining Deadlocks:
In case of bargaining deadlocks, the duly certified or
recognized bargaining agent may file a notice of
strike or the employer may file a notice of lockout
with the Department at least 30 days before the
intended date thereof.
ULP:
a) In cases of unfair labor practice, the period of
notice shall be 15 days.
b) In the absence of a duly certified or recognized
bargaining agent, the notice of strike may be filed
by any legitimate labor organization in behalf of its
members.
c) In case of dismissal from employment of union
officers duly elected in accordance with the union
constitution and by-laws, which may constitute
union busting, where the existence of the union is
threatened, the 15-day cooling-off period shall not
apply and the union may take action immediately.
b. Employer Lockout
Lockout: Definition
Art. 212(p). Lockout: the temporary refusal of an
employer to furnish work as a result of an industrial
or labor dispute.
Lockout: Grounds
Art. 263 (c): Strikes, picketing and lockouts
Bargaining Deadlocks:
In case of bargaining deadlocks, the duly certified or
recognized bargaining agent may file a notice of
strike or the employer may file a notice of lockout
with the Department at least 30 days before the
intended date thereof.
ULP:
a) In cases of unfair labor practice, the period of
notice shall be 15 days.
b) In the absence of a duly certified or recognized
bargaining agent, the notice of strike may be filed
by any legitimate labor organization in behalf of its
members.
c) In case of dismissal from employment of union
officers duly elected in accordance with the union
constitution and by-laws, which may constitute
union busting, where the existence of the union is
threatened, the 15-day cooling-off period shall not
apply and the union may take action immediately.
Lockout: Prohibitions
Art. 263 (b), last sentence:
96
c. Picketing
Picketing: Definition
NCMB Manual of Procedures for Conciliation and
Preventive Mediation Cases.
Sec. 1: Definition of Terms
Picketing the right of workers to peacefully march
to and fro before an establishment involved in a
labor dispute generally accompanied by the carrying
and display of signs, placards and banners intended
to inform the public about the dispute.
Picketing: Limitation
Picketing, like other freedom of expression in
general, has limits. To the extent that it is an
instrument of coercion rather than of persuasion, it
cannot rightfully be entitled to the protection
associated with free speech. Equally so, there can
be no indiscriminate ban on the freedom to
disseminate the facts of a labor dispute and to
appeal for public sympathy, which is the aim of
peaceful picketing, without a transgression of the
Constitution, sufficient to oust a court of
jurisdiction, even on the assumption that it was
originally possessed of such a competence. (Security
Bank Employees Union v. Security Bank and Trust
Co., 1968)
Picketing and libel laws
There is a unique aspect to this action for libel
against the Philippine National Bank Employees'
Association. It was filed by plaintiff PCIB as a result
of placards and signboards along the PNB building in
Escolta, Manila, containing the following: "PCIB BAD
ACCOUNTS TRANSFERRED TO PNB-NIDC?"
108
109
Strike vote
110
92
in
the
111
112
95
A. Labor Arbiter
a.
Jurisdiction
113
Effect of self-executing
reinstatement on backwages
order
of
Jurisdiction
NLRC divisions
Original Jurisdiction: over petitions for
injunction or temporary restraining order under
Art. 218 (e).
Exclusive Appellate Jurisdiction: over all cases
decided by labor arbiters (Art 217[b]) and the
DOLE regional directors under Art 129.
Period of Appeal (2005 NLRC Rules of Procedure)
From Labor Arbiter to NLRC: Decisions and
resolutions of the Labor Arbiter shall be final and
executory unless appealed to the Commission by any
or both parties within (10) calendar days from
receipt thereof
From Regional Director to NLRC pursuant to Art.
129: Decisions and resolutions of the Regional
Director shall be final and executory unless appealed
within 5 days from receipt thereof.
Note: If the 5th or 10th day falls on a Saturday,
Sunday, or a holiday, the last day shall shall be the
next working day.
Grounds of Appeal
(1) If there is prima facie evidence of abuse of
discretion on the part of the Labor Arbiter or
Regional Director;
(2) If the decision, resolution or order was secured
through fraud or coercion, including graft and
corruption;
(3) If made purely on questions of law; and/or
(4) If serious errors in the findings of fact are raised
which, if not corrected, would cause grave or
irreparable injury to the appellant
b.
114
Conciliation
An ADR mode of intervention by a neutral third
party, the Conciliator-Mediator, wherein the CM
takes an active role in assisting parties by trying to
keep disputants talking, facilitating other procedural
niceties, carrying messages back and forth between
the parties
Mediation
An ADR mode of intervention by a neutral third
party, the Conciliator-Mediator, wherein the CM
advises the parties or offers solutions or alternatives
to the problems with the end in view of assisting
them towards voluntarily reaching their own
mutually acceptable settlement of the dispute.
b.
Preventive Mediation
115
F. DOLE secretary
1. Visitorial and enforcement powers
Article 128. Visitorial and enforcement power.
The Secretary of Labor and Employment or his duly
authorized
representatives,
including
labor
regulation officers, shall have access to employers
records and premises at any time of the day or night
whenever work is being undertaken therein, and the
right to copy therefrom, to question any employee
and investigate any fact, condition or matter which
may be necessary to determine violations or which
may aid in the enforcement of this Code and of any
labor law, wage order or rules and regulations issued
pursuant thereto.
Notwithstanding the provisions of Articles 129 and
217 of this Code to the contrary, and in cases where
the relationship of employer-employee still exists,
the Secretary of Labor and Employment or his duly
authorized representatives shall have the power to
issue compliance orders to give effect to the labor
standards provisions of this Code and other labor
legislation based on the findings of labor
employment and enforcement officers or industrial
safety engineers made in the course of inspection.
The Secretary or his duly authorized representatives
shall issue writs of execution to the appropriate
authority for the enforcement of their orders,
except in cases where the employer contests the
findings of the labor employment and enforcement
officer and raises issues supported by documentary
proofs which were not considered in the course of
inspection. (As amended by Republic Act No. 7730,
June 2, 1994).
Article 37. Visitorial Power. The Secretary of Labor
or his duly authorized representatives may, at any
time, inspect the premises, books of accounts and
records of any person or entity covered by this Title,
require it to submit reports regularly on prescribed
forms, and act on violation of any provisions of this
Title.
G. Voluntary Arbitrators
1. Submission Agreement
Written agreement jointly submitted by parties to
the voluntary arbitrator which contains:
The parties statement/agreement to
submit to arbitration,
The issues to be resolved,
The agreement to abide by the decision or
award, the conduct of proceedings,
payment of arbitrator's fees, etc.
2. Rule 43, Rules of Court
The decision of a Voluntary Arbitrator or panel of
Voluntary Arbitrators is appealable by ordinary
appeal under Rule 43 of the Rules of Civil
Procedure directly to the Court of Appeals.
RULE 43, Appeals From the Court of Tax
Appeals and Quasi-Judicial Agencies to the
Court of Appeals
Section 1. Scope. This Rule shall apply to
appeals from judgments or final orders of the
Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among
these agencies are the Civil Service Commission,
Central Board of Assessment Appeals, Securities
and Exchange Commission, Office of the
President, Land Registration Authority, Social
Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration,
116
H. Court of Appeals
1.
I. Supreme Court
Therefore, all references in the amended Section
9 of B.P. No. 129 to supposed appeals from the
NLRC to the Supreme Court are interpreted and
hereby declared to mean and refer to petitions
for certiorari under Rule 65. Consequently, all
such petitions should hence forth be initially filed
in the Court of Appeals in strict observance of the
doctrine on the hierarchy of courts as the
appropriate forum for the relief desired. (St.
Martin Funeral Home vs. NLRC, 1998)
1.
J. Prescription of Actions
Article 201. Prescriptive period. No claim for
compensation shall be given due course unless
Illegal dismissal
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118
ANNEX A
CAUSE
Serious Misconduct
TERMINABLE EXAMPLES
Teacher pressuring colleague to change a
failing grade to a passing one plus
misrepresentation. (Padilla vs. NLRC,
1997)
Obscene, insulting or offensive words
against superior. (Asian Design and
Manufacturing vs. Hon. Deputy Minister
of Labor, 1986)
Sleeping in post, gross insubordination,
dereliction of duty, challenging a superior
to a fight. (Luzon Stevedoring vs. CIR,
1965)
Immorality / Immoral Conduct: conduct
which is so willful, flagrant or shameless
as to show indifference to the opinion of
good and respectable members of the
community; such conduct must be grossly
immoral so corrupt as to constitute a
crime or so unprincipled as to be
reprehensible to a high degree or
committed under such scandalous or
revolting circumstances as to shock the
common decency. (Narag vs. Narag,
1998); to be a valid cause for dismissal,
the immoral act must render incapable
performance of duties/services or
calculated at injuring employers
business.
When a teacher engages in extramarital relationship, especially
when the parties are both married.
(Santos v. NLRC, 1998)
Willful Disobedience
NON-TERMINABLE EXAMPLES
Borrowing Money: as a general rule, it
is neither dishonest, nor immoral, nor
illegal, much less criminal (Medical
Doctors, Inc. [Makati Medical Center]
v. NLRC) except
it becomes a serious misconduct
when reprehensible behavior such
as the use of a trust relationship as
a leverage for borrowing money is
involved.
(Pearl
S.
Buck
Foundation, Inc. v. NLRC, 1990)
119
50
Assertion of employees right not to
be made to work outside of what he
had been hired to do. (Tierra
International Production Corp. v. NLRC,
1996)
Refusing
a
promotion,
since
promotion is in the nature of a gift or
reward. (PT&TC vs. CA, 2003)
Disobeying an Invalid Order to
Transfer: an invalid transfer
amounts to constructive dismissal;
it is invalid when it fails test of
validity. (refer to the adjacent
column for the test)
TERMINABLE EXAMPLES
in which they are made. (Escobin vs.
NLRC, 1998)
Habitual tardiness and absenteeism
(Manila Electric Co. v. NLRC, 1996)
Abandonment the deliberate and
unjustified refusal of an Employee to
resume his employment. (Nueva Ecija
Electric Cooperative v. NLRC, 2005)
Requisites: failure to report to work
or absence w/o valid reason
Clear intent to sever EmployeeER
relationship via overt acts. (Labor v
NLRC, 1995; Floren Hotel v. NLRC,
2005; Leonardo v. NLRC, 2000)
o CANNOT be lightly inferred,
much less legally presumed from
certain equivocal acts such as
interim employment. (Hacienda
Dapdap v. NLRC, 1998)
Bank Employee delivered newly approved
credit cards to a total stranger without
verification protocol.
Commission of a crime or
offense against Employer
Analogous Causes
Dishonesty:
Custodian of petty cash fund
reimbursed another employee for
services the latter did not
render. (Naguit v. NLRC, 2003)
Falsification of time cards. (San
Miguel vs. NLRC, 1989)
Theft of company property.
(Firestone Tire and Rubber Co.
vs. Lariosa, 1987)
Theft; the employee here was convicted
after she won her case for illegal
dismissal. In view of the employees
conviction, the decision of the NLRC
which had already become final and
executory calling for her reinstatement
and the payment of back wages should
not now be enforced. Otherwise, she
would in effect be undeservedly rewarded
when she should instead be punished for
her offense. (Sampaguita Garments
Corp. v. NLRC, 1994)
Quarrelsome Bossy: an Employee's
attitude problem is a valid ground for
dismissal, equivalent to loss of trust and
confidence; an Employee who cannot get
along with his fellow co-EEs is detrimental
to the company for he can upset and
restrain the working environment.
(Heavylift Manila, Inc. v. CA)
Conviction Moral Turpitude: Violation
of a company rule prohibiting the
infliction of harm or physical injury
against any person under the particular
circumstances provided for in the same
rule may be deemed analogous to serious
NON-TERMINABLE EXAMPLES
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51
TERMINABLE EXAMPLES
misconduct. (Oania v. NLRC, 1995)
Gross inefficiency is closely related to
gross neglect for both involve specific
acts or omission on the part of the
employee resulting in damage to the
employer or to his business. (Lim v.
NLRC, 1996)
Past Offenses: Previous offenses may be
so used as valid justification for dismissal
from work only if the infractions are
related to the subsequent offense upon
which basis the termination of
employment is decreed. (Stellar
Industrial Service, Inc. v. NLRC, 1996;
La Carlota Planters Assn. v. NLRC, 1998)
Professional Training / Residency
Training: a residency or resident
physician position in a medical specialty is
never a permanent one. Residency
connotes training and temporary status. It
is the step taken by a physician right after
post-graduate internship (and after
hurdling the Medical Licensure
Examinations) prior to his recognition as a
specialist or sub-specialist in a given
field.
right to security of tenure only to
the
extent
that
they
periodically
make
the
grade.(Felix
v.
Buenaseda,
1995)
NON-TERMINABLE EXAMPLES
to the performance of the
employee's function.
Not under commission of crime
since it was not directed at
Employer or his family or
representative.
Analogous causes must have an
element similar to those found
in the specific just cause
enumerated under Article 282.
Clearly lacking in the ground
invoked by petitioner is its
relation to his work or to his
employer. (IRRI v. NLRC,
1993)
In IRRI v. NLRC (1993),
homicide
outside
IRRI
(employer)
complex
after
office hours and against a nonIRRI employee.
Courtesy Resignation Resignation
must be voluntary. Adding the word
"courtesy" did not change the essence
of resignation. That courtesy
resignations were utilized in
government reorganization did not
give private respondent the right to
use it as well in its own
reorganization and rehabilitation
plan. (Batongbacal vs. Associated
Bank, 1988)
121
Enabling law
Definition
Terms
of
GSIS
RA 8291 amending PD 1146
12
2
Coverage
Effective Date
of Coverage
Summary
Benefits
of
Effects
of
separation
from
employment
Dispute
Settlement
Prescriptive
Period
Note:
Foreign
governments,
international
organizations or their wholly owned instrumentality
employing workers in the Philippines may enter into
an agreement with the Philippine government to
include their employees in the SSS except those
already covered by their civil service retirement
system.
Employer: 1st day of operation
Employee: 1st day at work
Self-employed: upon registration with SSS
a) Monthly pension
b) Dependents pension
c) Retirement benefits
d) Permanent disability benefits
e) Death benefits
f) Funeral benefits
g) Loan Social Security Commission Resolution No.
669. Moreover, several SSS-issued circulars such
as Circular No. 21-P and No. 52 pertain to the
treatment of salary loans, sometimes providing
for more flexible payment terms or condonation
for delinquent payers; Santiago v. CA and SSS,
GR # L-39949 (1984) resolved an issue involving
the treatment of salary loan repayments; SSS
website also shows loans
h) Sickness benefits
i) Maternity leave benefits
(1) Employers contribution, and
(2) Employees obligation to pay contribution both
cease at the end of the month of
separation;
(3) EE shall be credited with all contributions paid
on his behalf and entitled to all benefits set
forth by the law.
Social Security Commission CA (Rule 43; questions
of law and fact)
SC (Rule 45; questions of law
only)
20 years
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
Monthly pension
Retirement benefits
Permanent disability benefits
Death Benefits
Funeral benefits
Loan GSIS website provides for this
Temporary
disability
benefits
(similar to sickness)
Separation benefits
Unemployment benefits Sec 11
Survivorship benefits
Life insurance benefits
12
3