I.

APPLICABLE LAWS
Omnibus Rules (as amended by D.O. 40-03, 40-B-03, 40-C-05, 40-D-05, 40-F-08, 40-G-
10, and 40-H-13)
Tripartism (Art. 290[275], as amended by R.A. 10395); 2013 law creating the National
Tripartite Industrial Peace Council as well as a regional council.
PD 442, as amended (November 1, 1974, effectivity date; May 1, 1974, signed into
law)
Labor, concept
Fields an d Systems of Labor
Enactment of Labor Laws
o Bases: protection to labor, social justice, police power (e.g. Art. 263,g),
doctrine of incorporation
o Limitations: observance of due process; equal protection (e.g. Serrano vs.
NLRC case); prohibition against involuntary servitude
--------------
Day 2:
Relations Between Capital and Labor:
o Not merely contractual; impressed with public interest (Article 1700, NCC)
o Labor is neither chattel nor a commodity, but human and must be dealt with
from the standpoint of human interest (2004 Asufrin)
o Principle of Non-Oppression: can be found in the Civil Code (Art. 1701, NCC)
Law is not intended to oppress capital when there is basis to terminate
workers
Rule of Interpretation and Implementation
o Article 4 of the LC
In case of doubt, construed in favor of the worker.
o Extends to:
Evidence presented by the employer and the employee (2010 Penaflor)
or
Interpretation of agreements and writings (2011 E.G.I. Construction)
o Cf: Protection of Labor Clause
Rule on Construction: In case of doubt

1
 o In case of doubt, all labor legislation and all labor contracts shall be construed
in favor of the safety and decent living for the laborer (Article 1702, NCC)
Labor Code vs. IRR; Conflict
o Perez vs. NLRC 2009 case
WON a mandatory conference is required (which was mentioned in the
IRR but not in the Labor Code).
o In case of conflict, the Labor Code prevails over the administrative regulations
implementing it
o The authority to promulgate implementing rules proceeds from the law itself.
It cannot amend the law either by abridging or expanding the scope.
Doctrine; Principle of Law; IRR & Labor Advisory
o It merely interprets a pre-existing law and the administrative interpretation is
at best advisory.
Advisory merely internal
o It is the courts that finally determine what the law means (2008 Letran
Calamba Faculty and Employees Association)
No force and effect of law; Executive Issuances
o 2004 Sonza vs. ABS-CBN case
o Policy Instruction No. 40 [by DOLE] (which classifies broadcast workers into
program and non-program employees) is a mere executive issuance. It does
not have the force and effect of law.
o The classification of workers made under the said Policy is not binding on the
Court especially when such classification has no basis in fact or in law.
Article 8, Civil Code; Judicial Decisions
o 2012 International Management Service case
o It recognizes judicial decisions applying or interpreting statutes as part of the
legal system of the country. However, such level of recognition does not
extend to administrative decisions, e.g. NLRC decisions
o NLRC decisions cannot form part of the law of the land as it is not part of the
judiciary; no stare decisis in this case. It could constitute res judicata once its
final and executory (which is binding only as to the parties) but not stare
decisis.
Probative value of DO 18-02 on Contracting Arrangement; Principle
o 2013 Vigilla, et.al. case
Probative value of a department order.

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 o DO 18-02 (which is now, DO 18-A) interprets Articles 106 of the Labor Code.
These legislative rules and regulations designed to implement a primary
legislation have force and effect of law.
o A rule is binding on the courts as long as the procedure fixed for its
promulgation is followed and its scope is within the statutory authority
granted by the legislature.
DO 10 on Contracting Arrangement; Probative Value; Principle
o 2013 Bpi Employees Union-Davao City
It is a guide to determine what functions may be contracted out, subject
to the rules and established jurisprudence on legitimate contracting job
contracting and prohibited labor only contracting.
The existing rules may be amended or supplemented as long as sit
is within the authority given and not in contravention of the law.
II. BASIC PRINCIPLES
Nothing new here; SEE NOTES ABOVE
Constitutional Principles
o Due process clause - opportunity to be heard. (this is unlike the concept of due
process in criminal law which is the RIGHT to be heard)
o Employment is a property right?
2010 Manila Electric Company, en banc
Yes, it is a property right. Employees, then, cannot be terminated
without observing due process.
Protection to Labor; Doctrine
o 2009 Serrano, citing 2004 Agabon case
o It is not self-actuating; it is not judicially enforceable. ( it needs a law; the
protection to labor clause provides no enforceable relief by itself)
o It cannot on its own be a source of a positive enforceable right. It cannot be
treated as a principal source of direct enforceable rights.
Social Justice; Doctrine
o 2008 Bureau of Fisheries and Aquatic Resources Employees Union
o Mere statement of principles and policies and not self-executing; guidelines
for legislation only.
o e.g. Retirement Benefit law as an ENABLING LAW of the social justice principle

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 o Update: another example is the Expanded Senior Citizen's Act ( encourages
employers to employ senior citizens in view of tax exemption, subject to
certain conditions)

Determining Employer-Employee Relationship

Four-Fold Test
a. Selection and engagement of the employee
b. Payment of wages
c. Power to dismiss (includes power to discipline)
d. Power to control - most important element

Two-tiered test; determining employer-employee relationship

a. Power of control
b. Underlying economic realities of the activity or relationship ("economic facts
of the relation" test)
o Applies when there is no written contract or there is complexity of relationship
based on various positions held (2006 Francisco vs. NLRC case)

Importance of determining the existence of er-ee relationship: knowing what law to

apply (in contrast with principal-agent, being a corporate officer, partner,
independent contractor, etc.)
Mischief Remedy Test
o "if the worker suffers from the evils (mischief) which the Act seeks to correct
and if the remedies of the Act will prevent or cure the harmful effects of the
evil in the situation involving the worker, then the worker is an employee and
is entitled to protection."
o This is an old test in determining er-ee relationship.

Test; Primary and Controlling

o Control over the performance of the task of one providing the service.
o Case: Tongko vs. ManuLife case (2011) - the en banc ruling on the MR

Employment vs. Independent Contractorship

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 o There are only 2 recognized systems in the Philippines: wage system and free
artisanship
o Employee; chief characteristics
There are two primary characteristics of an employee:
Economic dependence
Subordination
o Individual Independent Contractor; Chief Characteristics

Doctrine; Principle of Law

o An independent contractor is paid for the result of his labor, unlike an
employee who is paid for the labor he performs (1988 Dr. Sara case)
Jurisprudence; Per trip basis
o One may be paid on the basis of results or time expended on the work and
may or may not acquire an employment status, depending of the existence of
the four-fold test or not (2005 Chavez case)
Pakyaw Workers; Status
o Pakyaw workers are considered employees for as long as their employers
exercise control over them (2013 Gapayao case)

Jurisprudence:
Employee? Or Independent Contractor?
o The caddy earned no fixed income but depends on number of players engaging
his service.
o He is paid by the golf player and not by the golf club (1994 Manila Golf and
Country Club case)
o The determination of the existence of er-ee: determines the jurisdiction and
cause of action
Medical retainers hired under Article 157 (2005 Phil. Global Communication case)
involving emergency dental and medical services (2009 Escasinas)
o Nurses and doctors hired under medical retainer are not necessarily
employees of the hiring party. The 4-fold test must be applied. Such retainer
may be a good indicator that you are an independent contractor.
Medical consultants in hospitals (2002 Ramos case)
o These specialists are not employees of the hospital.

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 o However, the hospital can still be held liable for tort under the "doctrine of
apparent authority" (2006 Nogales case)
No Employment relationship; IRR
o Working scholars in schools, college or university (Section 14, Rule X, IRR) : as
long as they are given the real opportunity to finish their chosen courses, there
exists no er-ee relationship
When Employees and when not?
o Resident physicians if there is a training agreement with the hospital and the
training program is duly accredited by the appropriate government agency
(Section 15, Rule X, IRR). IN other words, those undergoing specialization
training as distinguished from non-training general practitioners (2008
Calamba Medical Center)
No employment relationship; Special Laws
o Real Estate Broker; Appraiser or Consultant performing real estate services
(section 33, RA 9646 otherwise known as Real Estate Service Act of the
Philippines)
The law expressly provides that they are not employees of the real
estate company.
o Student trainees (dual training system act of 1994): Section 8, R.A. 7686
Not an employee; just a trainee (DO NOT EXTEND TO THEM LABOR
STANDARDS BECAUSE THEY ARE NOT EMPLOYEES as expressly provided
by the law)
JobStart trainee (JobStart Philippines Act (RA 10869) *needs certain
qualification
Jurisprudence; Insurance Agents
o Independent self-employed insurance agent (2011 Tongko, en banc)
Labor "control" vs. Agency "control"
o The labor concept of control has to be distinguished with the control in a
principal agent relationship in the insurance industry. At the very least, 3 sets
of laws have to be considered - the Insurance Code, Labor Code and Civil Code
(2011 Tongko, en banc)
Not an employee; an insurance agent is an independent, self-employed
agent.
o The general law on agency allows the principal an element of control over the
agent in a manner consistent with agency relationship. However, these control
measures cannot be read as indicative of labor law control (ibid).

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 o Special Note for the Exam: How do you distinguish labor control from agency
control?
Doctrine; Principle of Law
o Article 280 is not the yardstick for determining the existence of an
employment relationship.
o It merely distinguishes between regular and casual employees. It does not
apply where the existence of an employment relationship is in dispute (2011
Atok Big Wedge Company)
Jurisprudence: Employee or Independent Contractor?
o The selection and employment of the jockey is made by the race horse is made
by the race horse owner whose horse the jockey will ride, not by the race club.
Upon the other hand, the jockey decides for himself the horse he is to mount
(1969 SSS/Manila Jockey Club case)
Jockey is not an employee of the race club
The SSS has the jurisdiction to take cognizance of the existence of er-ee
relationship for the purpose of SSS coverage.
PBA Basketball Referee
o He officiates a basketball game. Once in the playing court, he exercises his own
independent judgment, based on the rules of the game, as to when and how a
call or decision is to be made.
o Independent contractor, not an employee (Bernarte case)
Sabong
o A masiador (bet-taker) and sentenciador (referee) are akin to independent
contractors.
o In the conduct of their work, they rely on their expertise that is characteristic
of the cockfight gambling. They can interpret message conveyed by mere
gestures. Their compensation is based on the arriba. (2011 Semblante).
Pianist
o The company has fixed the time of performance from 7 to 10, 3 to 6 times a
week
o No liberty to choose the place of performance
o Required to perform only Tagalog songs or music or to wear barong Tagalog
o Subjected to rules on employee's representation check and chits (2012 Legend
Hotel [Manila])
He is an employee.

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Rights of Worker; In General
Constitutional rights in relation to labor standards
o Right to a living wage
o Humane working conditions
o Just share in the fruits of production
Implementing law: Productivity incentive act
Constitutional rights in relation to labor relations
o Self-organization
o Collective bargaining and negotiation
o Peaceful concerted activities including the right to strike
o Security of tenure
o Participate in policy and decision making processes affecting their rights and
benefits as may be provided by law.

Sources of Labor Laws

III. RIGHT TO HIRE (POWER TO HIRE)

Nature of Power: strictly speaking, it is not a right but a prerogative; this is inherent
in management
Restrictions prior to hiring; Labor Code
o Art. 136: An employer is prohibited from requiring as a condition of
employment that a woman employee shall not get married.
The downside: this policy will encourage illicit or live-in relationships
o Art. 248 (b): An employer is prohibited from requiring as a condition of
employment that a person or an employee shall not join a labor organization
or shall withdraw from one to which he belongs.
This is the only Unfair Labor Practice (ULP) which can be committed
even without er-ee relationship yet.
Subject to criminal and civil liabilities.
a.k.a. Yellow Dog Contract

8
 o Art. 139: An employer is prohibited from employing any person below 18 years
old in an undertaking which is hazardous or deleterious in nature.
As long as not below 15.
Examples: Work which exposes children to physical, psychological or
sexual abuse, e.g. lewd shows (stripteasers, burlesque dancers), bars
(KTV, karaoke bars), massage clinics, gambling halls and places, etc. -
these are nominated as the worst forms of child labor. These are
deleterious and no person below 18 can be employed.
Work underground, underwater at dangerous heights or at unguarded
heights of 2 meters and above or in confined places, e.g. mining, deep
sea fishing/diving, painting buildings, window cleaning, etc.
See: Department Regulation on this matter

Restrictions prior to hiring: Special laws

o Section 14, RA 7610, as amended by RA 7658
An employer is prohibited from employing child models in all
commercials or advertisements, promoting alcoholic beverages,
intoxicating drinks, tobacco and its by-products, and violence.
o Section 32, Title 3, Chap. 1, RA 7277, Magna Carta for Disabled Persons
No entity shall discriminate against a qualified disabled person by
reason of disability in regard to job application procedures, hiring, etc.
o RA 7877; Anti-Sexual Harassment Act of 1995
An employer in a work-related or employment environment, is
prohibited from asking sexual favor as a condition in the hiring or in the
employment, re-employment or continued employment of an
individual.
o Section 55, RA 8791: General Banking Laws of 2000
No bank shall employ casual or non-regular personnel on too lengthy
probationary personnel in the conduct of its business involving deposits.
Atty JMM's interpretation of "too lengthy": beyond 6 months
which is the regular probationary period
o Section 35, RA 8504, Philippine Aids Prevention and Control Act of 1998
Discrimination in any form from pre-employment to post-employment,
including hiring, etc., based on actual, perceived or suspected HIV status
of an individual is prohibited.

9
 o IRR, RA 10354 (Reproductive Health Act, still subjected to a TRO)
An employer is prohibited from suggesting, requiring, xxx any applicant
for employment xxx to submit himself/herself to sterilization, use any
modern methods of family planning, or not use such methods as a
condition of employment, continued employment, promotions or the
provision of employment benefits. Further, pregnancy or the number of
children shall not be a ground for non-hiring or termination of
employment.

Jurisprudence; Marital Discrimination

o No spouse employment policy (2006 Star Paper) violates the employee's
marital status IF it discriminates against all spouses of present employees
without regard to the particular individual's qualification or work
performance.
o Prohibiting employee from having personal or marital relationship with
employee of a rival company (2004 Glaxo Wellcome Phils.) is valid IF it applies
to men and women equally, and there exists compelling business necessity.
Post retirement competitive employment ban (2006 Rivera)
o Not valid if there is no evidence relating to the legitimate interest of the
employer which might be protected in terms of time, space and types of
activity proscribed.
Employer's qualifying "weight" standards for its flight steward, that is prescribed
under its cabin and manual crew, considered a continuing qualification to keep one's
job, it involving flight safety issues. It applies prior to and after hiring (2008 Yrasuegui
case)

---------------continue from here---------------------

11/25/2013

Expanding the positions reserved for persons with disabillity (RA No. 10524,
amending Section 5, RA No. 7277, published on May 2, 2013)
o An amendment to the magna carta for disabled persons
o At least 1% of all positions in the government agencies should be reserved xxxx

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IV. WAGE AND WAGE RATIONALIZATION ACT
Wages: Concept (1985 Gaa)
Similar to Salary? (2006 Equitable Bank)
See Article 97 (f) for the definition of wage
o For the purposes of the LC, there is no distinction between salary and wage

Doctrine; Principle of Law

In labor law, the distinction between salary and wage is merely semantics
Both words refer to one and the same meaning, that is, reward or recompense for
services performed (2006 Equitable Bank Corp)

Distinction; When Relevant

Distinction applies under Article 1708 of the CC, which exempts the laborers' wage
from execution or attachment except for debts incurred for food, shelter, clothing
and medical attendance (1985 Gaa)
Wages refer to compensation for manual labor, skilled or unskilled
Salary denotes a higher grade of employment or a superior grade of services and
implies a position or office

Wage; Concept
Facilities; concept
Deductible, facilities; requisites (Mabeza)
Can you pay employee partly in kind?
o GR: No.
o Except: facilities
Requisites of a Facility:
o Customarily given
o Fair and reasonable value (fair valuation by the SOLE but now, by the RTWPB
under DO 126-13)
o Accepted in writing by employees

11
 Facilities vs. Supplement
o Extra remuneration or special privileges or benefits given to or received by the
laborer over and above his earnings or wages (2011 SLL International Cable
Specialist)
This is not deductible from the wage
o In determining the classification, the basis is not the kind but the purpose (for
whose benefit is it given?)

Jurisprudence; Supplement, Not Facilities

o Free board and lodging 7 days a week (2010 SIP Food House)
o Food allowance, and allowance for lodging house, transportation, electricity,
water and snacks (2011 SLL International Cable Specialist)
o Meals and lodging provided to employees in order to maintain their efficiency
and health while working at their respective project sites, are supplements,
and not facilities. (ibid)

How do we know the proper valuation of the facilities?

o 2013 Recent DOLE Regulation
o Revised guidelines on the conduct of facility evaluation
Facility Evaluation, Concept
o Section 3
o Refers to articles or services provided by the employer for the benefit of the
employee or his/her family such as:
Meals
Housing for dwelling purposes
Fuel including electricity, water, gas for the non-commercial personal
use of the employee
Transportation furnished to the employee between his home and work
where the travel time does not constitute compensable hours worked.
Xxx other articles and services given to benefit him and his family

Mechanics; Evaluation of Facility

o How initiated?

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 Filing of the application for the conduct of facility evaluation with the
RTWPB having jurisdiction over the workplace (Section 1, Rule 2)
o Proper party?
Union, worker; owner/manager
o Timeline:
If new, before the introduction of the proposed facilities
If existing: at any time
o Result:
The RD/DOLE shall issue a Facility Evaluation Order
o Remedy:
Appeal to the NWPC (Rule V)
Will not stay the order (Section 4, Rule V)
Will stay effective until its revoked xxx
o Publication:
employer must post in the bulletin board or in a conspicuous place and
submit certificate of posting to the RTWPB (section 4, Rule IV)
o Enforcement
Visitorial and Enforcement Power and Simple Money Claims (Rule VI)

Requisites for Deductibility of Facilities (from Ee's wage)

o Mabeza case
o Also see DO 126-13

Article 97 also tells us the methods of determining compensation; enumeration here

is not exclusive
METHODS OF FIXING COMPENSATION
o Time (daily paid and monthly paid)
A. Time Spent; Concept
Once the agreed period of work is completed, the compensation is
earned and becomes due regardless of result.
Two types; time-based earners: divisors
For monthly-paid employees: 365

13
 For daily-paid employees
393.50 (mon-sun)
313 (mon-sat) (it used to be 312 but because there are now
12 regular holidays, the divisor became 313)
261 (mon-fri)
For example: 261 x 327 = 85,347/12
We now have 12 regular holidays, thus, the divisor has
changed.
Frequency of payment is not the basis of the type of time-based worker
that you are but the divisor that is used in the computation of the salary.
Job or task
Piece-rate
Commission
Boundary
Partly-fixed and partly-based on performance

Daily-Paid Worker
o No work, no pay
Jurisprudence
o Use of 360 divisor for Monday to Friday work (2007 Leyte IV Electric
Cooperative)
o Use of 314 divisor for Monday to Saturday work (2006 Arellano University
Employees and Workers' Union; see also 1995 Wellington Investment)
------------------

Monthly Paid Employee; Concept

o Reversion from 365 divisor (1999 Phil. Veterans Bank)
o Covered by "no work, no pay" if absent without pay (2004 Odango)

Job or Task, Concept

o A flat or fixed sum is paid for each particular job or task completed, without
regard to the number of hours actually spent in the performance or
completion.

14
 Piece Work, Concept
o A standard amount is fixed for every piece or unit of work produced that is
more or less regularly replicated. Without regard to the time spent in
producing the same.
Workers Paid by Results
o There are two types: those whose time and performance are supervised and
those who are not supervised
Significance: Article 82 of the Labor Code
o Workers paid by results are not entitled to the benefits under the same Title
(Title I: Working Conditions and Rest Periods); not covered by certain labor
standards
Jurisprudence:
o Tailors (1999 Lambo) - classified as a piece-rate worker
o Sewer, ironer, tailor, and repairman (Villuga) - these are workers paid by result

Commission; Concept
o A percentage or a fraction of the proceeds resulting from sales or similar
transactions effected is fixed
o Salesmen (1990 Songco)
o Drivers and dispatchers (1996 San Miguel Jeepney Services)

Boundary System; Concept

o A fixed amount is remitted by the driver to the owner/operator and he gets to
earn the amount in excess thereof
o If there are many passengers, the driver benefits from it (2011 Caong, Jr.)
Partly-Fixed-Partly-Performance Based
o Employment of drivers and conductors In the public utility bus transport
industry under D.O. No. 118-12, S. 2012 dated January 13, 2012
o Salient points:
Amount mutually agreed
BUT not lower than the applicable minimum wage (Basic + COLA)
Shall include wage-related benefits

15
 Maybe fixed based on time (e.g. daily/monthly) per trip or per
kilometer/distance, within an 8 hour period; result or output based
(Section 2, Rule II, NWPC Guidelines No. 1, S. 2012)
o Performance-based Component:
Business performance (revenue/ridership)
Safety performance (safety record i.e. incidence of road accident, traffic
violations)
o Compliance of this department regulation is a prerequisite to a renewal with
the LTFRB
Jurisprudence;per trip basis
o Paying on a per trip basis is merely a method of computing compensation (2005 chavez)

2013 Recent DOLE Regulations*

o Revised guidelines on the conduct of time and motion study, published on
April 20, 2013 (DOLE D.O. No. 125-13 dated April 1, 2013)
o Systematic determination of work method and time standards using various
tools/technologies (Section 5, No. 15, Rule I)
o Coverage:
All workers of micro, small and medium enterprises who are paid by
results, including pakyao, piecework and other non-time work pursuant
to Article 101 of the Labor Code (Section 4, Rule I)
o The guidelines shall govern the conduct of time and motion study by the
RTWPB (Section 3, Rule I)
o How initiated: filing of application for the conduct of time and motion study
with the RTWPB having jurisdiction over the workplace (Section 1, Rule II)
o Proper Party: union, worker, owner/manager
o There is no need for this study when you are paying your employees by time.
o Timeline:
If new: before the rates are given effect
If existing: at any time
o Result: The RD/DOLE as RTWPB Chairperson shall issue a piece rate and/or
production standard order
o Xxx (order)
o Remedy: appeal to the NWPC

16
 o Effectivity: until revoked or suspended or revised or reviewed (Rule III)
o Publication: employer must post in the bulletin board or in a conspicuous
place, and submit certificate of posting to the RTWPB (Rule III)
o Enforcement: visitorial and enforcement power and simple money claims (Rule
IV)

Doctrines; Principles of Law

o Fair day's wage for a fair day's labor, or no work, no pay (1997 Caltex Refinery
Employees Association; 2004 Odango)
o Equal pay for equal work (2000 International School Alliance of Educators vs.
Quisumbing)

Fixing of Minimum Wage; Agencies

o RTWPB; composition and powers and jurisdiction
Power to fix the minimum wage and grant exemptions
o NWPC; composition, powers and jurisdiction
It cannot fix the minimum wage but the wage orders are subject to the
review of the NWPC
Promulgate rules and regulations

Fixing the Minimum Wage

o Advantages/Disadvantages
A: enhances the morale of workers
D: it might lead to unemployment if the employer cannot afford such
D: Legitimizes poverty
o Principal policies:
Rationalize the fixing of minimum wage
Promote collective bargaining as primary mode of settling wages
(primary mode of settling wage disputes)

Employer's right to reasonable returns on investment and to expansion and growth

(2004 Duncan Association of Detailman-PTGWO)

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 Wage Distortion; Concept
o 4 requisites (1999 Prubankers Association)
o How to Resolve (unorganized and organized establishment)

Methods of Determining Wages

o Floor wage method; and
This usually causes wage distortion
o Salary-ceiling method (1991 Employers Confederation of the Philippines; 2007
Metropolitan Bank***)
o In the Metropolitan Bank case, the RTWPB exercises quasi-legislative power
when it fixes wage order

Jurisprudence; No Wage Distortion

o If increase in hiring rate is brought about by the employer voluntarily and
unilaterally even without increasing the salary rates of old employees (2004
Bankard Employees Union)

Wage Distortion; Jurisprudence

o No right to wage increase under a wage order if employee is receiving above
minimum wage (2006 Pag-asa Steel Work)

Violation of Wage Order/s: Penalty

o Civil liability: double indemnity (DOLE D.O. 10, S. 1998; 2009 Phil. Hoteliers,
Inc)
o Criminal Liability
The LA does not have the power to impose criminal liability; BP 129
governs

Terms, Definitions (DOLE D.O. 10, S. 1998)***

o Wage rates
o Wage order
o Unpaid benefits
Basis for computing the double indemnity

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 o Double Indemnity
o Notice of inspection result
o Violation must be corrected within 5 days from receipt
o Compliance order
o Ten days to comply; otherwise, it becomes final

Double Indemnity; Rules; DO No. 10, S. 1998

o Definition
o When to start period of computation
o Basis for the computation; effect of partial compliance

Exemption from Wage Order

A. By application (NWPC Guidelines No. 01, S. 1996)
o Distressed establishment (1997 Joy Brothers, Inc)
Including those affected by natural calamities
o Retail/service establishments (1999 C. Planas Commercial) (10 and below
employees; retail=selling goods directly to consumers)
o BMBE (capitalization of 3 Million)

B. By operation of law (Article 98)

o This Title shall not apply to farm tenancy or leasehold, domestic service and persons
working in their respective homes in needle work or in any cottage industry duly
registered in accordance with law.
GR: home workers are entitled to minimum wage
Exception: home workers doing needle work
Effect of Pendency; Issuance of Compliance Order
o No compliance order shall be issued during the application for exemption
o Remedy: RTWPB -NWPC-CA (rule 43?)- SC

----------- END OF PART 1----------------

Wage enforcement and recovery tools

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A. Visitorial and enforcement power of the SOLE (Article 128l Section 9, RA 6727)
o Other visitorial powers (Article 274)
B. Simple money claims; requisites (Article 129; 1993 Rajah Humabon Hotel) - RD

Scope of Power; Visitorial and Enforcement Power (Article 128)

o The DOLE is fully empowered to determine the existence of employer-
employee relationship, subject to judicial review, not review by the NLRC. NO
limitation is imposed by law. The DOLE does not need to seek the NLRC's
determination (2012 People's Broadcasting Service [Bombo Radyo, Phils.])
o It may constitute res judicata, if the requisites are complied with (e.g. same
parties, etc.)
Article 128; Types of DOLE Inspection; Issuance of Compliance Order
A. Routine Inspection
B. Complaint Inspection

Rules on Labor Law Compliance

o Published on August 7, 2013 (DOLE D.O. No. 131-13 dated July 19, 2013)
o The basis of this is Article 128.
o Before , they have the Manual for Labor Inspection but this has already been
superseded by this new Labor Law Compliance D.O.
Labor Law Compliance System; Coverage
o All matters arising from the visitorial and enforcement power of the Sec/DOLE
under Article 128 of the Labor Code
LLCS Modes of Implementation
o It could be any or all of the following:
1. Joint assessment - involves self-assessment/checklist
A. Coverage
o Engaged in hazardous work
o Employing child employees
o Engaged in contracting and subcontracting arrangements
o Phil. Registered ships or vessels engaged in domestic shipping
o Employing 10 or more employees

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2. Compliance visit
A. Upon receipt of SeNa referral (Section 7, DO No. 107, S. 2010)
B. When a complaint is filed against an establishment
o A surprise and unexpected visit
o Random interview of employees in an establishment

3. Occupational safety and health standards investigation

A. Coverage:
o Existence of imminent danger
o Dangerous occurrences
o Accident resulting to disabling injury
o Occupational safety and health standards violations committed in plain view or
in the presence of the LLCO

You cannot stop, impede, interfere or delay these inspections/compliance checks

(Article 128).
LLCO : Labor Law Compliance Officer - person doing the compliance checks
(previously inspections)

Applicable Procedure in Joint Assessment and Compliance Visit***

A. A hearing officer conducts mandatory and continuous conferences in a summary
character.
B. RD/DOLE issues a compliance order
C. Appeal of compliance order to the Sec/DOLE
A. 10 day period
B. Grounds
C. Appeal bond - equivalent to the judgment award
D. Memorandum of appeal - a mere notice of appeal will not suffice
E. Reply or opposition to appeal
F. Transmittal of records
G. Clarificatory conference
H. Finality of resolution/decision of sec/DOLE

21
 There is no more appeal from the decision of the Secretary; remedy is
certiorari to the CA under Rule 65
Filing of petition for certiorari from decision/resolution of sec/DOLE
Execution
Without a restraining order, it will not stop the execution.

------------- next topic: WAGE PROTECTION PROVISIONS AND PROHIBITIONS REGARDING

WAGES----------------------

Jurisprudence; Article 128

o Stoppage of operations under Article 128 will not apply if the stoppage is
ordered by the DENR and not the DOLE.
o Thus, "no work, no pay" during the period of stoppage of operation (2008
National Mines and Allied Workers Union; Article 128)
Closure; Applicable Rule
o See: DOLE Dept. Circ. No. 3, S. 2009, Guidelines on the Procedure for Closure
of Business under RA 9231 dated October 22, 2009
"close now, explain later"
o Closure after notice and hearing
o Immediate closure (close now, hear later)
No Jurisdiction; Article 128 (?); Requisites
a. Where the employer-employee relationship has ceased; and
b. Where no such relationship has ever existed (2009 People's Broadcasting
[Bombo Radyo Phils]
Article 128; Jurisprudence
o Article 128 applies even if the amount involved exceeds 5,000.00
o The worker need not litigate to get what legally belongs to him. The whole
enforcement machinery of the DOLE exists to insure its expeditious delivery to
him free of charge (2009 Balladares)
This is inquisitorial in nature.
May be initiated motu proprio.
Complaint is usually docketed as LS (labor standard compliance case)
and there is no docket fee.

22
 Exception Clause; Article 128
o The regional director/DOLE is divested of jurisdiction under Article 128 under
the so-called "Exception Clause" (2009 Meteoro*)
o What is the exception clause?
Remedies; Article 128 vs. Article 129
o Remedy of aggrieved party from decision of RD/DOLE under Article 128?
This is inquisitorial, either by complaint or motu proprio.
o Remedy of aggrieved party from decision of RD/DOLE under Article 129?
This is adversarial because it is initiated by a complaint.
Same requisites with an appeal from the Labor Arbiter to the NLRC;
within 10 days.
Posting of a bond equal to the amount of the judgment award; only the
employer should post a bond.
NLRC - MR with NLRC - CA - SC under Rule 45
Nature of Power; Jurisprudence
o Determination of liability of employer by the RD/DOLE under Article 128 - an
exercise of quasi-judicial power.
o Issuance of xxx
Rules on xxx

WAGE PROTECTION PROVISIONS

Prohibitions regarding wages, i.e. withholding of wages and authorized deductions

Non-interference in disposal of wages
Prohibition against compulsory patronage
o No force, no inducement, no compulsion from the employer to patronize the
latter's products.
Jurisprudence; Withholding of Wages
o While an employer has management prerogative, it has no right to withhold
salary/wages without consent of the employee (Article 116, cited in 2010 SHS
Perforated Materials, Inc.)
o Any withholding of wages may only be allowed in the form of wage deductions
under Article 113 of the Labor Code (ibid).

23
 Doctrine; Principle of Law
o Deductions for loss or damage to tools, materials, etc., supplied by employer
or requiring deposit to answer for such loss or damage (5J Taxi; 2000 Jardin)
Deposit/Cash Bond to answer for Loss or Damage; Deductions
o The employer's policy must be authorized by law, or regulations issued by the
Sec/DOLE. It must be proved to be a recognized practice in the jewelry
manufacturing business, or that the Sec/DOLE has come up with the
appropriate rules that such policy is necessary or desirable (2012 Nina Jewelry
Manufacturing case)
o There are laws in the Philippines that require their employees to be bonded
(as a condition for continued employment). Unfortunately, there is none in the
Labor Code that requires bonded employees . The reason is not to unduly
burden the employee's wage. - Atty. JMM
Special Law; Authorized Deduction
o A member of a cooperative may in an instrument, authorize his employer to
deduct his wage and remit to the cooperative for the payment of his unpaid
obligation.
o In such a case, the obligation of the employer is mandatory (Article 58, R.A.
9520 Philippine Cooperative Code of 2008)
Non-diminution of benefits
o Principle against diminution of benefits and supplements (Article 100; Article
127)
o Before effectivity of Labor Code - no distinction; cannot be unilaterally
o After effectivity of the Labor Code
Is it a company policy?
Did it ripene into practice?
o 13th month pay (1993 Davao Fruits; 2005 Honda Phils.)
o Gas and uniform allowance (1997 Manila Bank)
o VL/SL xxx

Cont., Non-diminution of benefits

o Xxx

----- started here after Midterm Part I:

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o 13th month pay (1993 Davao Fruits; 2005 Honda Phils.)
Prorating of the 13th and 14th month pays due to period of strike is not va;id,
as it is contrary to company practuce under the CBA, citing 1993 case of Davao
Fruits (2005 Honda Phils.)
o Gas and uniform allowance (1997 Manila Bank)
Whether the bank was in financial distress or not, the employer is prohibited
from unilaterally withdrawing the employees' gas and uniform allowance.
o VL/SL (1991 Nestle)
There is nothing that prevents the employer from being generous even if the
VL/SL is a mere grant of employment benefit and NOT found in the Labor
Code. Nestle set conditions for the availment of these benefits (e.g. if you do
not claim it, you cannot convert it to cash). When some employees were not
able to claim their Vl/SL, they complained.
Held: SC ruled in favor of Nestle. Since the benefit is just an additional grant,
the employees should follow the conditions set by the company.
o Use of divisor (1999 Philippine Veterans Bank; 2001 Producers Bank)
The bank used a divisor of 365 since the employees are not really monthly paid
workers. When the bank changed it, the employees complained.
Held: SC ruled in favor of the employees.
o Bonus (1999 Manila Electric Co.)
If the bonus is granted out of generosity and has not ripened into a company
benefit (all the conditions are met), the employees should follow the
conditions. It will be discretionary on the part of the employer.
Jurisprudence; OT pay, Not Benefit
o Change of work schedule in the CBA from 9 am to 5 pm to 1 pm to 8 pm due
to change in the program of horse races is management prerogative.
o The overtime pay was not given consistently, deliberately and unconditionally
bit as a compensation for additional services rendered (2007 Manila Jockey
Club Employees Labor Union-PTGWO)
o It was done in good faith; there was no intent to deprive the employees of
their OT pay.
Coca Cola Bottlers Philippines case (new one)
Article 100. Prohibition Against Elimination or Diminution of Benefits.

25
 o Nothing in this Book shall be construed to eliminate or in any way diminish
supplements, or other employee benefits being enjoyed at the time of
promulgation of this Code.
Jurisprudence; OT Pay, Not Benefit
o Overtime pay is not a benefit. It requires rendition of additional services; and is
not freely given. The requirement of rendering additional service differentiates
xxx
Non- Diminution of Benefits
o The rule on company practice is generally used with respect to grant of
additional benefits to employees, not to issues involving diminution of
benefits. (2011 University of the East)

VI. PAYMENT OF WAGES

Payment
o Form (1995 Congson; 2004 National Federation of Labor)
Check is valid form of payment ONCE it is encashed.
o Place (1996 North Davao Mining); Bank (RA 6727); ATM (DOLE Labor Advisory,
S. 1996)
SC held that North Davao Mining should reimburse the transportation
expenses of the employees who had to travel for about 2 1/2 hours to
collect their salaries.
o Payee: the worker
Exceptions to the rule (when the employer can pay to another person);
examples cited by Atty. JMM:
When there is authorization letter
Affidavit of "heirship" if the worker died before he was able to
claim his salary
o Time and frequency
Unjust Enrichment Principle
o Where workers' advances exceeded their unpaid salaries, the overpaid amount
made by the employer should be paid back to the latter to avoid unjust
enrichment (2006 Business Services of the Future Today)
o Solutio indebiti

26
VII. CONDITIONS OF EMPLOYMENT
Hours of Work; Normal
o Other Hours of Work;
Children (RA 7610, as amended by RA 9231)
Kasambahay (RA 10361)
Concept; Principle of Law
o Hours worked; meaning: rest period (5-20 minutes); work interruptions;
waiting time' assembly time' attendance at seminars (p. 217 of Codals)
See: IRR***
If there is a brownout but there is imminence of resumption =
compensable.
o Meal period (Article 85); shortened meal period (1998 Sime Darby)
When the company reverted to the 60-minute meal period from the 20-
minutes compensable meal period which it implemented for some time,
the employees complained that there is diminution of benefits.
Held: No diminution of benefits. The company is only exercising its
management prerogative and the 60-minute meal period is stipulated in
the law as well.
Workweek:
a. Normal
b. Compressed (DOLE Dept. Advisory No. 2, S. 2004)
As long as it does not exceed 12 hours a day or 48 hours a week. If it
exceeds such, they will still be entitled to the overtime pay despite the
waiver that they've signed pursuant to the Compressed Work Week
o *** Health Personnel: workweek (1997 San Juan de Dios case)
When the policy instruction went beyond the authority vested under the
law, such P.I. is void.

Compressed Workweek; Concept

o An alternative arrangement whereby the normal workweek xxx
Objectives:
o Xxx

27
 o Under the existing guidelines, the approval of the majority of the employees
will suffice to implement such CWW.
Jurisprudence
o Illegal compressed workweek when work days were reduced from 6 to 3 days
a week, resulting to illegal reduction of work hours, as there was no adequate
proof of losses (2007 Linton Commercial and 2009 Rosa)
Rest day; Non-regular Employees
o At least 24 consecutive hours; the rest day is fixed by the employer, subject to
the IRR (if the choice of the rest day is based on religion, the employer should
honor it)
No rest day; instances
o Instances:

Labor Standards; Exclusion

o Employees excluded from labor standards (Article 82; 1993 National Sugar
Refineries; 1996 Salazar)
o *shift engineer, no right to overtime and premium pay as he is an officer or
member of managerial staff (2006 Peneranda)
o Who are managerial staff? - see IRR

Wage-Related Benefits; Examples

o Overtime pay
o Bonuses
o Night shift differential pay
o Holiday pay
Regular holiday: even if you dont work, you will still be paid; if you
work, you get double compensation for that day
12 (2 of which are Muslim holidays)
Special day
o Premium pay
o Leave benefits
o 13th month pay (DOLE D.O. No. 10, S. 1998)

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Note: Remember the rates!

Doctrine; Principle of Law

o ** categories of workers paid by result; supervised and unsupervised xxx
(1999 Lambo and 2002 Tan cases)
Jurisprudence
o "driver-conductor" is not a field personnel (2005 Autobus Transport System)
o Driver who is required to be at a specific place and time with fixed hours of
work, not a field personnel (2007 Duterte) as his time and performance if
supervised.
Overtime; Rule and Exceptions
o Actual work (1991 Cagampan; 1996 Stolt Nielsen Services)
The complainant should prove the actual work done (burden is on the
claimant); [what will be shifted to the employer later on is the burden of
evidence, not the burden of proof?]
o Waiver (1993 Lagatic; 2008 Bisig ng Manggagawa sa Tryco) under CWW
Refusal to work when there is justifiable and reasonable need for such? -
insubordination which is a ground for disciplinary action
o Undertime; offset?

Holiday Pay
o Holiday Pay (Article 94) Rationale; Exclusions
o Power to Fix Regular and Special Days (E.O. 292 as amended - revised
administrative code)
Lodged with the President by Proclamation to move the dates of
holidays except those with "historical insignificance" - Atty. JMM
Entitlement to Holiday Pau
o A regular holiday falling on employee's rest day
o 2 regular holidays falling on employee's rest day
o 2 regular holidays falling on the same day
Worked: 300
Not worked: 200
No holiday pay; forfeiture

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 o GR: No forfeiture of holiday pay.
o Exception:
IRR* : When an employee is on leave without pay on the workday
immediately preceding a regular holiday (UNLESS he works on such
regular holiday)
This has not been challenged yet ( petition for declaratory relief)
Doctrine; Principle of Law
o Applicability of Mslim holidays to non-muslims in Muslim regions (2002 San
Miguel Corp.)
o DOLE Explanatory Bulletin dated March 11, 1993 affirmed as valid, on two (2)
regular holidays falling on the same day (2004 Asian Transmission Corp.) as
there is no reduction of number of holidays.
Flexi-holidays schedule; Concept
o One where the employees agree to avail the holidays at some other days
provided there is no diminution of existing benefits as a result of such
arrangement (DOLE Dept. Advisory No. 2, S. 2009)
The swap should be with consent of the employees and should not lead
to diminution.

-------------
Service Incentive Leave (Article 95); Exclusion
Night Shift Differential
xxx
Other Labor Standards

Service Incentive[ Leave (Article 95); Exclusion

Night Shift Differential Pay (Article 86)
Service Charges (Article 96)

Special Laws; Other Benefits

1. Rank and file workers (PD 851)
2. Married male workers (RA 8187)

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 3. Adoptive parents (RA 8552)
4. Solo parents (RA 8972)
5. Retirees (Article 287)
6. Battered women (RA 9262)
7. Women workers (RA 9710)
8. Nursing employees (RA 10028)
9. Drivers and conductors in public utility transport system (DOLE D.O. No. 118-12, S.
2012)
10.Night workers (RA 10151)

I. Rank and file workers (PD 851)

13th month pay (PD 851, as amended)

Purpose
Coverage and exclusions
o Only to rank and file employees regardless of salary
o Piece-rate employees even if they are paid are result are entitled to this
benefit
o Kasambahays under the new law
How much
o At least 1/12 of total basic salary EARNED during the calendar year
When due and payable
Jurisprudence:
o Driver who is paid on a boundary basis, not entitled to 13th month pay (G and
E case)
o Commissions not part of basic salary if in the form of profit sharing payments,
and absence of clear, direct or necessary relation to the amount of work
actually performed (2007 Reyes case)
Basic salary excludes, in general, commissions. This is subject to the
qualification expressed by the SC xxx

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 o Overload pay, excluded from the 13th month pay, as it is paid for additional
work in excess of the regular teaching load (2008 Letran Calamba Faculty and
Employees Association)

II. Married male workers (RA 8187); Paternity Leave Act

Paternity leave; requisites
o Employee at the time of delivery
o Cohabiting with his spouse
o Applied for leave
Features
o Up to 4 births or miscarriages only
o 7 days
o No need to apply for leave if it is miscarriage because there would be no prior
notice

III. Adoptive parents (RA 8552); Domestic Adoption Act of 1998

Adoptive parents shall enjoy all the benefits that the parents are entitled to
o Maternity and paternity benefits and other benefits given to biological parents
upon birth of the child shall be enjoyed if the adoptee is below 7 years of age
as of the date the child is placed with the adoptive parents thru the pre-
adoptive parents xxx
IV. Solo parents (RA 8972)
Parental leave; requisites (NEDA social development committee res. No. 2, S. 2002)
o At least one year of service
o Prior notice to employer
o Solo parent identification card
This is renewable; entitlement is not indefinite (e.g. once you get
married, you cease to be entitled to this benefit)
o This is not convertible to cash and no cumulative
Flexible Work Arrangement
V. Retirees (Article 287)
Requisites; age
o 60 with at least 5 years of service (option of the employee)

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 o 65 (compulsory); no length of service required
How much?
o 1/2 month salary for every year of service (?)
22.5 day's worth
Exemption
o Article 287: ONLY 2 EXEMPTIONS
o Government employees
o Retail or service establishments employing not more than 10 employees

Underground workers have a different retirement

o 50 and 60 ?

Forfeiture (2006 Sy)

o Labor code applies only in the absence of a reasonable retirement plan;
otherwise, the retirement plan prevails and the employee is governed by its
terms and conditions

VI. Battered women (RA 9262)

10 day paid leave; must have a TPO presented to the employer for availment
In addition to other leave benefits

VII. Women workers (RA 9710); Magna Carta of Women

Special leave benefit; full pay for 2 months based on GROSS monthly compensation
In addition to leave privileges under existing laws
Special Leave Benefit; Definition
o Female employee's leave entitlement
o 2 months with full pay based on gross monthly compensation
o Following surgery caused by gynecological disorders (Sec. 1)
o Provided, she has rendered continuous aggregate employment service of at
least 6 months for the last 12 months
o Different from SSS Sickness Benefit
In addition to leave benefits granted under existing laws (Sec. 8)

33
 However, similar or equal xxx (2012 IRR!!!! The previous one has been repealed!) ***
Maximum Period of Leave with Pay
o 2 months maximum (Section 4)
o Allowable period of leave with pay - depends on certification of a competent
physician as to required period of recuperation
Availment and Frequency
o When: after undergoing surgery (Section 5)
o Xxx
Mode of Payment:
o After surgery
o But employer, may in its discretion, pay before or during surgery (Section 11)
o Non cumulative and non convertible to case (Sec. 12)

VIII. Nursing employees (RA 10028); Expanded Breastfeeding Promotion Act of 2009
Any female worker, regardless of employment status, who is lactating or
breastfeeding, her infant and/or young child (Section 5, Rule II)
o Infant: birth to 12 months; young child: 1-3 year old?
Accessible to the breastfeeding women
Clean, well ventilated area xxx
Ensures privacy to express milk and/or in appropriate cases, breastfeed
In no case shall it be located in the toilet 9Section 10, Rule III)
Lactation station, definition:
o Private, clean, sanitary, and well-ventilated room xxx (where you can store it
afterward)
o Not less than 40 minutes for every 8 hours working period
This is on top of the meal period
40 minutes if compensable time
Include the time to get to and from the workplace lactation station,
considered compensable hours worked
Duration and frequency xxx
o In addition to regular time-off for meals (Section 12)
o Employers can, however, apply for an exception with the DOH.

34
IX. Drivers and conductors in public utility transport system (DOLE D.O. No. 118-12, S.
2012)
Hours of work; not exceed 8 hours a day
If required to work overtime, max hours of work shall not exceed 12 hours in any 24
hour period, subject to safety and xxx
At least 1 hour, exclusive of meal breaks, within a 12 hour shift

X. Night workers (RA 10151

Night workers
Health assessment/health advice
1. Free of charge, when requested by the employee
a. Before taking up an assignment as night worker
b. At regular intervals during such assignment
c. If he/she experiences health problems during such assignment
Mandatory xxx
A. Suitable first aid and emergency facilities 9Rule 1960, OSHS)
B. Lactation station (RA 10028; expanded breastfeeding promotion act of 2008)
C. Separate toilet facilities for men and women
D. Facility for eating with potable drinking water
E. Transportation facility and or properly ventilated temporary sleeping or resting
quarters, separate for make and female workers

1. Security of Tenure
Constitutional Basis (Article XIII, Section 3, Constitution, 2009 Serrano)
Statutory Basis (Article 279; Article 277 (b))
Establishment covered (278) and employees covered (280 and 281)
o All establishments are covered, even those which are not operating for profit.

Legal Principle
o Section 3, Article XIII is not self-actuating; it is not judicially enforceable. It
cannot on its own be a source of a positive enforceable right. It cannot be

35
 treated as a principal source of direct enforceable rights (2009 Serrano, citing
2004 Agabon)
Interference of the property right of the employer pursuant to the
police power of the State

A. Classification of Employees
1. Regular employees (article 280); concept (Section 5, a), Rule 1, Book VI)
a. By nature of work, primary test?
b. By years of service (casual employees becoming regular after 1 year of service)
2. Casual employee (Article 280); Concept (Section 5, b), Rule I, Book VI
3. Probationary Employees (Article 281); Concept (Section 6, Rule 1, Book VI)
o A regular worker is either a probationary worker or a regular worker
o A probationary employee is one, who, for a given period of time, is being
observed and evaluated to determine whether or not he is qualified for a
permanent position (2007 Pasamba)
o May also become a regular employee if he is permitted to work beyond the
probationary period
Legal Principle
o The right of a laborer to sell his labor to such persons as he may choose is, in its
essence, the same as the right of an employer to purchase labor from any person
whom it chooses. The employer and the employee have thus an equality of right
guaranteed by the Constitution (2007 Phil Daily Inquirer) - it is in this right that the
employer and the employee stand in equal footing!***
o Period of probation: a. Labor Code; b. Manual of Regulations for Private Higher
Education of 2008, 2010 Revised Manual of Regulations for Private Schools in Basic
Education
LC: NOT EXCEEDING 6 months
o Counting of Period of Probation ( 2004 Alcira and 2004 Mitsubishi Motor Phils.) ***
We depend on the Civil Code because we do not have a provision on the
counting in the Labor Code.
When the employer specifically mentions the months of the probation, the
specific number of days corresponding to the months should be taken into
account.
Jurisprudence

36
 o Probationary employee, considered regular if employee is not informed of the
standards (2005 Aberdeen Court and 2005 Clarion Printing House; Section 6, d; Rule
1, Book VI) and more so, if he did not undergo any performance evaluation (2006
Dusit Hotel Nikko)
Aberdeen: without standards=regular employee
Examples of standards: work attitude, initiative, meet rating of 80% or above,
etc. ; must be reasonable
Period of probation commences to run from the day the employee ACTUALLY
STARTED WORKING, unless the contract stipulates otherwise.
o Fixing of probation is for the benefit of both parties (2003 Cebu Marine Beach
Resort)
Neither of the parties can unilaterally terminate the period of probation
You can also terminate the probationary employee even before the end of the
probationary period for failure to meet standards/criteria (ground: failure to
qualify).
Exceptions to regular employment
o Xxx.

Next meeting: January 6, 2014

Exceptions to regular employment

Labor Code: project and seasonal employment

o SC: this is not exclusive. The list should allow those analogous or similar to
these types of employment.

o Project employees: requisites; 2 types of activities (1994 ALU-TUCP and 1996 Cosmos
Bottling)
Repeated and continuous re-hiring of project employee (Maraguinot; 2005
Integrated Construction and Plumbing Work)
If the case of construction worker, there is an existing guideline in determining
their employment status.
While there was repeated re-hiring, the hiring was not, however, continuous,
as in fact there was lapse of 33 months after the next project, the employee is
a project and not regular (2009 Alcatel Phils)

37
 o Seasonal employee; seasonal industry; 2 requisites (2003 Hacienda Fatima and 2005
Hacienda Bino/Hortencia Stark)
Regular seasonal employee; Concept (1963 Manila Hotel; 1991 Mercado
reconciled in 1998 Phil. Tobacco Flue Curing and Redrying Corp.)
Jurisprudence: deep sea fishing business is not a seasonal undertaking.
Catching fish is not seasonal (2006 Poseidon Fishing) especially where the boat
crew although employed on a per trip basis, has been working for 12 years.
o Fixed Term Employee; Requisites (1990 brent School; 2004 Pangilinan)
Seafarers are contractual workers and not regular workers (2002 Millares,
reiterated in 2004 Gi-Miro case and 2005 Ravago)
Jurisprudence: industry practice to hire a reliever to ensure the smooth
flowing 24 hour stevedoring and arrastre operations at the pier area;
employment is similar to seasonal or project or term employee albeit on a
daily basis (2007 Pier 8 Arrastre and Stevedoring Services)***
A forklift operator who was initially hired as casual employee, and made to
rest, and then re-hired, for more than one year, and eventually placed under
fixed term employment, is considered regular employee. The term
employment was a mere ploy to deprive the worker of his tenurial security
(2009 San Miguel, citing 1990 Brent School)
Other classifications of employees
1. Workers in the construction industry ( DOLE D.O. no. 19, S. 1993)
2. Personnel in private educational institution
i. manual of regulations for private higher education of 2008
1. Section 117. xxx the probationary period of academic personnel
-- not be more than six (6) consecutive semesters or nine (9) consecutive trimesters of
satisfactory service, as the case may be.
2. Section 118. Regular or Permanent Status. A full time academic teaching personnel
who has probationary employment and who possesses the minimum qualifications
required by the Commission and the institution shall acquire a regular or permanent
status if he is re-hired or re-appointed immediately after the end of his probationary
employment. ****
3. Xxx a part time employee cannot acquire regular permanent status and hence may
be terminated when a qualified teacher becomes available.
ii. 2010 revised manual of regulations for private schools in basic education)
1. Section 63. Probationary Period; Regular or Permanent Status. A probationary
period of not more than three (3) years in the case of the school teaching

38
 personnel and not more than six months for non-teaching personnel shall be
required for employment in private schools.
A school personnel who has successfully undergone the probationary period herein
specified and who is fully qualified under the existing rules and regulations of the school
shall be considered permanent.

Continue from: OTHER MANAGEMENT PREROGATIVES!!! :)

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