1

LABOR LAW REVIEW

FOURTH YEAR, SECTION D

ATTY. FILEMON RAY JAVIER

I. GENERAL PRINCIPLES

A. Money Claims
 Prescriptive period = 3 yrs (Art 297)
o SIL = COA counted from the time of separation
 Commutable UNLESS demanded by the e’e
 Reimbursement
GR: E’e cannot be compelled to reimburse the salaries and wages he received during the
pendency of the appeal, notwithstanding the subsequent reversal of the order of
reinstatement
o Obligation of the e’r to reinstate and pay wages
o FLJ: against public policy to reimburse
 Withholding of wages
GR: NOT allowed
E: authorized by law or regulation
o Right to withhold wags even if legal compensation is present (Milan v. NLRC)
 Legal Compensation
o Domondon v. NLRC: E’r allowed to set-off because of the agreement between the e’r
and e’e, which amounted to a K of sale

B. Management Prerogatives
 Under the doctrine of management prerogative, every employer has the inherent right to
regulate, according to his own discretion and judgment, all aspects of employment, including
hiring, work assignments, working methods, the time, place and manner of work, work
supervision, transfer of employees, lay-off of workers, and discipline, dismissal, and recall of
employees. The only limitations to the exercise of this prerogative are those imposed by labor
laws and the principles of equity and substantial justice.
 Disciplinary actions (Visayan Electric Co. Employees Union v. Visayan Electric Co., Inc.)
1. Fair and reasonable regulations
2. Penalties are commensurate to the offense involved and to the degree of the
infraction
 Lateral Transfer (ICT Marketing v. Sales)
1. Transfer becomes unlawful where it is:
i. Motivated by discrimination or BF
ii. Effected as a form of punishment
iii. Demotion without sufficient cause
2. E’r must be able to show that the transfer is NOT:
i. Unreasonable
ii. Inconvenient
iii. Prejudicial to the e’e
 Promotion = consent of e’e
o Change in employment K
 Demotion = just cause
 Rotation policy = valid as it reflects the essence of security planning and importance of
discouraging familiarity
o K for security services may stipulate that the clients may request the agency for the

Camille Sapnu Labor Rev FLJ

 2

replacement of the guards assigned to it even for want of cause; and that such
replaced security guards could be placed on temporary “off-detail” or floating status
which is the period of time when such guards are in between assignments or when
made to wait after being relieved from a previous post until they are transferred
 Floating status
 Preventive suspension
 30-day notice requirement of an e’e’s resignation = benefit of e’r
o E’rs can move the effectivity date of resignation = e’rs are not expected to maintain in
their employ e’es who intend to resign, just so the latter can have continuous work as
they look for a new source of income
 Clearance procedures = instituted to ensure that the properties, belonging to the e’r but are in
the possession of the separated e’es, are returned to the e’r before the e’es’ departure
 Marriage/no-marriage qualification = bona fide occupational qualification, provided
1. That the employment qualification is reasonably related to the essential operation of
the job involved
2. That there is a factual basis for believing that all or substantially all persons meeting
the qualification would be unable to properly perform the duties of the job
o Stipulation against marriage = bona fide business interest
 Laxo case
 Tri-star case
 Dismissal
o Fair and reasonable criteria
 PAL v. Bichara: unreasonable for e’r to terminate an e’e, required to take five
check rides for his performance evaluation and earn at least 85% rating for
each ride, who failed two check rides with ratings of 83.46% and 80.63%
o Pregnancy = allowed if work-related cause
 Company policy or rule against an e’e who engages in premarital sexual
realtions and conceives a child as a result thereof (Leus v. St. Scho)

C. Weight of Osec, LA, NLRC, CA Decisions

 Presumption that the labor officials performed their official duties in a regular manner,
absent any evidence from respondent that this was not the case. We have also recognized the
Secretary of Labor's distinct expertise in the study and settlement of labor disputes falling
under his power of compulsory arbitration and that the factual findings of labor
administrative officials, if supported by substantial evidence, are entitled not only to great
respect but even to finality. Therefore, as between the bare conclusions of the appellate court,
and the findings of the labor offices, which are supported by substantial evidence, We are
inclined to uphold the latter.
 It has been settled that judicial review of labor cases does not go beyond the evaluation of the
sufficiency of the evidence upon which its labor officials' findings rest. Hence, the findings of
facts and conclusion of the NLRC are generally accorded not only great weight and respect
but even clothed with finality and deemed binding on this Court as long as they are
supported by substantial evidence.

D. Nature of Labor and Employment Relations, Labor Contracts

 Labor K = imbued with public interest
o Laws are deemed incorporated into the K

E. Substantial Evidence = more than a mere scintilla of evidence

 Such relevant evidence as a reasonable mind might accept as adequate to support a

Camille Sapnu Labor Rev FLJ

 3

conclusion, even if other minds equally reasonable might conceivably opine otherwise
 LA/NLRC decisions must be supported by substantial evidence
F. Burden of Proof
 Existence of EER = e’e
 Fact of dismissal = e’e
 Validity of dismissal = e’r
o E’r shown resignation letter = burden of evidence shifts to e’e

G. Probable Cause, Pendency of Criminal Suit, Trial Court Ruling on Criminal Suit
 Criminal and labor cases involving an e’e, arising from the same infraction, are separate
and distinct proceedings which should not arrest any judgment from one to the other
o BUT SEE Vergara v. NLRC, where the SC pronounced that the filing of the complaint
by the public prosecutor is a sufficient ground for a dismissal of an e’e for loss of
trust and confidence
 Whichever way the public prosecutor disposes of the complaint, the finding does not
bind the labor tribunal
o The finding of a probable cause does not necessarily mean that there exists a valid
ground for their termination from employment
 The non-filing of a criminal case does not determine whether a just/authorized cause
exists for dismissal

H. Bad faith, Liability of Corporate Officers

 Liability of corporate officers
GR: Corp officers NOT liable
E: Sec 31 of CC
1. Willful and knowing assent to patently unlawful acts of the corporation
2. Gross negligence or BF in directing the affairs of the corporation
3. Conflict of interest resulting to damages to the corporation
 ONLY the responsible officer, i.e., the person directly responsible and who acted in BF
o Key element = presence of fraud, malice or BF
 BF = does NOT connote bad judgment or negligence but imports a dishonest
purpose or some moral obliquity and conscious doing of wrong

I. Essence of Due Process

 Notice of eventual closure of establishment = personal right of the e’e to be personally
informed of proposed dismissal as well as the reasons therefor
o Reason: give time to prepare for eventual loss of job
o Failure to give notice = pay nominal damages
GR: 50k
E: reduced on sound discretion of the court
o Conferring is NOT the notice required under Art 283

J. Policy on Social Justice, Separation Pay and Financial Assistance

 Although the Constitution is committed to the policy of social justice and the protection
of the working class, it does not necessarily follow that every labor dispute will be
automatically decided in favor of labor. The management also has its own rights
 Social justice is not a one-sided principle. It ensures that both parties will not abuse the
weapons given to them by the law.
 While it is true that generally the grant of separation pay is not available to the e’es who
are validly dismissed, there are, in furtherance of the laws and policy of compassionate
justice, certain circumstances that warrant the grant of some relief in favor of terminated

Camille Sapnu Labor Rev FLJ

 4

e’es based on equity.

K. Waiver & Quitclaims

GR: Quitclaims are frowned upon by the courts
E: If e’r has proved the ff
1. Voluntary
2. No fraud/deceit on part of any parties
3. Consideration = credible and reasonable
4. Contract = NOT contrary to law, public order, public policy, morals or good customs, or
prejudicial to a third person with a right recognized by law

 Claim for 13th month pay, OT pay, and statutory wages, among others, cannot simply be
generally waived as they are granted for workers’ protection and welfare; it takes more
than a general waiver to give up workers’ rights to these legal entitlements

L. Offer to Resign instead of Investigation

 Intent to relinquish must concur with the over act of relinquishment
 Acts of e’e before and after the alleged resignation must be considered in determining
whether he in fact intended to terminate his employment
 Central Azucarera de Bais Inc. v. Siason: Taking into consideration Siason's long tenure
at CABI, as well as her close relationship with Chan, the latter sent her a letter asking her
to resign "rather than [to] force [his] hand" - which should be construed as Chan telling
Siason to resign or be faced with an administrative complaint. Atty. Ner-Tiangco sent
Siason another letter, essentially confirming if the latter was going to resign or if she is
subjecting herself to an administrative investigation. Ultimately, Siason chose to tender
her resignation to save herself from the trouble of besmirching her employment record.
 FLJ: To reconcile conflicting SC decisions, the general rule is that offer to resign amounts
to CD. To rule otherwise, the e’r has to prove the ff:
1. Voluntary resignation
2. GF = provide graceful exit, basis for investigation

II. Employment Relationship

Four-fold test = all four must be present for an EER to exist; 1-3 may be exercised by an agent of
the e’r
1. Selection and engagement of the employee
2. Payment of wages
o It runs against the common grain of experience to imagine that an ordinary
employee has yet to bill his employer to receive his salary. (Phil Global Comm v
De Vera)
o “Per trip” is just a basis for computing wages. (Chavez v NLRC)
o The fact that an individual worked on a fixed piece-work basis does not matter.
Payment by results is a method of compensation and is not a basis for
determining absence of EER. (Tan v Lagrama)
3. Power to dismiss = implied in power to select
4. Power to control employee’s conduct = most determinative as it differentiates a
contractor from an e’e
o refers to the existence of the power and not necessarily the actual exercise thereof
(Jo v NLRC)
o Does providing a guideline equate to control?
It depends. If it is a guideline which provides means and method, then EER.
o All-around = e’e

Camille Sapnu Labor Rev FLJ

 5

 Working within the premises = presumption of control (Aurora Land

case)
o Where the person for whom the services are performed reserves a right to control
not only the end to be achieved but also the means to be used in reaching such
end (Canlubang v NLRC)
o The boundary system is a scheme where the driver’s daily earnings are remitted
to the owner/operator less the excess of the boundary which represents the
driver’s compensation. Under this system, the owner/operator exercises control
and supervision over the driver (by seeing that the route provided in his
franchise and the LTFRB rules are duly complied with). (Villamaria v CA)
o Control over the delivery truck driver could be deduced from the delivery
schedule to be followed by the driver (Chavez v NLRC)
o Where certain limitations are inherent in the industry or business involved, such
inherent limitations cannot be considered in determining the presence of control.
(Orozco v CA)
o A prohibition mandated by the alleged employer in order to comply with the law
is not control within the purview of the EER. (AFP v NLRC)
o The element of control in the principal-agent relationship does not make the
agent an employee of the principal. The general law on agency expressly allows
the principal an element of control over the agent in a manner consistent with an
agency relationship. (Tongko v Manufacturer’s Life Insurance)
 Alleged employee = burden of proof on the alleged EE rel
 The presumption is that when the work done is an integral part of the regular business of
the employer and the worker, relative to the employer, does not furnish an independent
business or professional service, such work is a regular employment of such employee
and not an independent contractor. (ABS-CBN v Nazareno)
o In the case of Sonza, he was hired due to his unique talent/celebrity status and
was paid a huge wage indicating an independent contractual relationship. In the
case of the production assistants, no peculiar or unique skill, talent or celebrity
status was required from them. Also, the so-called “talent fees” correspond to
wages; they did not have the power to bargain for huge talent fees, a
circumstance negating continued work.
 An employee could not negotiate as to his hours of work. (Phil Global Comm v De Vera)
 In determining whether there exists an employer-employee relations (in cases where
there is a doubt if he is an employee or an independent contractor), a two-tiered test must
be applied:
i. The putative employer’s power to control the employee with respect to the
means and methods by which the work is to be accomplished; and
ii. The underlying economic dependence of the worker on his employer = economic
dependency test (FLJ: confirming test)
 The benchmark of economic reality ought to be the economic dependence of
the worker on his employer. (Francisco v NLRC)
 Prohibition to offer services to others
 When a worker possesses some attributes of an employee and others of an independent
contractor, which make him fall within an intermediate area, he may be classified under
the category of any employee when the economic facts of the relations make it more
nearly one of employment than one of the independent business enterprise with respect
to the ends sought to be accomplished. (SSS v CA)
 Since Basiao held his own time, his own place and his own method of selling he is
deemed to be an independent contractor. (Insular v NLRC)
 Main difference bet employee and independent contractor: control over the means and

Camille Sapnu Labor Rev FLJ

 6

method
 Not all collecting agents are employees and neither are all collecting agents independent
contractor. The collectors could fall under either category depending on the facts of each
case. (Singer Sewing Machine v Drilon)
o No such words as “to hire and employ” are present. Moreover, the agreement
did not fix an amount for wages and required working hours.
 Piece workers are considered as employees (Besa v Trajano)
 While an independent contractor enjoys independence and freedom from the control and
supervision of his principal, an employee is subject to the employer’s power to control
the means and method by which the employee’s work is to be performed and
accomplished. (Tan v Lagrama)
 No particular evidence is required to prove the EER (SSS v CA)

Employee Independent Contractor

1) How work is Hiring Engaging
obtained
2) Remuneration Wages Fees
3) How services are Dismissal Termination of contract
terminated
4) Control Over the means and method Over the end results only
and the end results

INDEPENDENT CONTRACTORS AND LOCs

 Requisites of a legitimate job contractor or subcontractor
1. Distinct and independent business on his own account and responsibility
according to his own manner and method, free from control and direction of
principal
2. Substantial capital or investment
3. Agreement between the principal and the contractor/subcon assures the
contractual e’es’ entitlement to all labor and occupational safety and health
standards, free exercise of all right to self-org, security of tenure, and social
welfare benefits
 A contractor is deemed labor-only contractor if:
a. Contractor has no control
b. The ff are present:
1. The contractor does not have substantial capital or investment to actually
perform the job, work or service under its own account and
responsibility
2. The employees recruited, supplied or placed by such contractor are
performing activities which are directly related to the main business of
the principal
 Contractor is not a necessary party in a case against a principal and vice-versa (since
solidary liable)
 Read Manila Electric Company v Quisumbing (which ruled that the Union need not be
first consulted before contracting out) in relation to Sec. 32, D.O. 18-A
 The case of Rosewood held that the principal is liable for the salary differential (between
LOC employees and principal’s employees)
 The court in the case of Manila Electric Company v Benamira held the principal and the
independent contractor solidary liable for the attorney’s fees although it is punitive in
character.

Camille Sapnu Labor Rev FLJ

 7

o FLJ: It may be that the SC wanted to punish the principal for failure to pay the
wages.
 The principal may issue IDs and uniforms to the contracted employees provided these
are different from the principal’s employees.
 Effective defense against presumption of control = no supervisors of the principal;
principal must contact the contractor and not directly the employees
 The skills requirements and job content between forwarders jobs and bargaining unit
jobs may be the same, and they may even work on the same company products, but their
work for different purposes and for different entities completely distinguish and separate
forwarder and company employees from one another. A clerical job, therefore, if
undertaken by a forwarders employee in support of forwarding activities, is not a CBA-
covered undertaking or a regular company activity. (Temic Automotive v Temic
Automotive Employees)
 LOC: principal approved the work assignments and fixes work schedules; employees
worked alongside the regular employees performing identical work; contract stipulates
employees should comply with the principal’s rules and regulation, and violation of such
would constitute dismissal (PAL v Ligan)
 Principal may ask for reimbursement from the contractor but not the other way around
(Meralco v NLRC)
 The employees cannot be considered as regular employees when, although their services
were necessary and desirable to the business of the principal, it is not directly related to
its principal business and may even be considered unnecessary in the conduct of its
principal business (Manila Electric v Benamira)
 It was plain conjecture on the part of the Labor Arbiter, the NLRC and the Court of
Appeals to conclude that Nilo Layno Builders was a labor-only contractor merely
because it does not have investment in the form of tools or machineries. They failed to
appreciate the fact that Nilo Layno Builders had substantial capitalization for it did not
only provide labor to do the specified project and pay their wages, but it furnished the
materials to be used in the construction. (New Golden City Builders v Sy)
 The releases, waivers and quitclaims executed by petitioners in favor of the contractor
redounded to the benefit of principal pursuant to Article 1217 of the New Civil Code. The
reason is that contractor is solidarily liable with the respondents for the valid claims of
petitioners pursuant to Article 109 of the Labor Code. (Vigilla v PCCr)
 DO 18-A
o Contemplates generic or focused singular activity in one contract between the
principal and the contractor and does NOT contemplate IT-enabled services
involving an entire business processes
o Construction industry also not included since already regulated by Philippine
Contractors Accreditation Board under the Construction Industry Authority of
the Philippines
 Exceptions:
i. Specific = entire business
ii. Services rendered = not if it is a vendee-vendor relationship (contact of sales)
iii. Trilateral relationship = not if bilateral
iv. IT BPO as contractor NOT as principal

Intra-corporate dispute (RTC)

 Corporate officer = those officers given such character by the CC or the By-Laws (Sec. 25,
CC); otherwise, e’e or subordinate officials only
a. CC
i. President

Camille Sapnu Labor Rev FLJ

 8

ii. Secretary
iii. Treasurer
b. By-Laws = must be expressly provided
 Office created by the President of the corporation through an enabling
provision in the By-Laws is NOT enough; amendment of the By-Laws to
expressly state the office
 Considered elements:
1. Status/relationship of parties (relationship test)
i. Between corp, partnership, or association (CPA) and the public
ii. CPA and its stockholders, partners, members or officers
iii. CPA and the State so far as its franchise, permit, or license to operate is
concerned
iv. Among the stockholders, partners or associates themselves
2. Nature of ? that is the subject of the controversy = intrinsically connected with
the regulation of the corporation (nature of the controversy test)
 Pertain to the enforcement of the parties’ correlative rights and
obligations under the CC and the internal and intra-corp regulatory rules
of the corporation

III. Classes of Employment

1. Conditional employment Contract = exists when the employment of an individual
depends on a suspensive condition, which then renders the obligation of the would-be
employer conditional (Sagun v. ANZ Global Service Operations)
o Pre-employment* = e’e did NOT start working
o Perfected employment K BUT no EER (Civil Code)
 Jurisprudence states that when a contract is subject to a suspensive
condition, its effectivity shall take place only if and when the event which
constitutes the condition happens or is fulfilled.
 EER = consummation stage
2. Seasonal Employment
1. Work is seasonal in nature
2. Performed services during the season
Compare with Mercado case, where workers free to offer services to any other employer.
Hence, not deemed as e’es.
E: Regular seasonal workers = those called to work from time to time MORE THAN
ONE SEASON
o Off-season = temporarily laid off, but reemployed during summer season or
when services may be needed
o Regular because of nature of job NOT because of length of time worked
o Entitled to security of tenure
3. Project Employment
1. Specific project
2. Duration (determinate or determinable) specified at time of engagement
Litmus test to determine whether an individual is a project e’e lies in setting a fixed
period of employment involving a specific undertaking which completion or termination
has been determined at the time of the particular e’e’s engagement
Continuously rehired after proj = regular
1. Continuously rehired for the same tasks/nature of tasks
2. Tasks = vital, necessary and indispensable to the usual trade/business of the e’r
Continuously rehired different proj = NOT regular
Two types:

Camille Sapnu Labor Rev FLJ

 9

1. Project which is within the regular or usual business of the e’r, but which is
distinct and separate, and identifiable as such, from the other undertakings of the
company
 Begins and ends at determined/determinable times
 E.g. particular construction job or project of a construction company
2. Particular job/undertaking that is not within the regular business of the
corporation
 Must also be identifiably separate and distinct from the ordinary/regular
business operations of the e’r
 Begins and ends at determined/determinable times
Construction Industry
1. Project = those employed in connection with a particular construction project
2. Non-project = without reference to any particular project
 Members of a work pool from which a construction company draws its
project employees, if considered employees of the construction company
while in the work pool, are non-project employees or employees for an
indefinite period. If they are employed in a particular project, the
completion of the project or of any phase thereof will not mean severance
of employer-employee relationship.
For both project and seasonal, the length of engagement lasting for at least a year is not
controlling because the project/season may last for more than a year. However, such may
be a badge of regular employment when the activities performed are necessary and
indispensable to the usual trade or business of the e’r
4. Probationary Employment
1. 6 months (GR)
2. Reasonable standards made known at the time of engagement
o Period
GR: 6 months (180 days accdg to the case of Mitsubishi v Chrysler Phils.; may
extend ONLY when act of compassion on part of the employer)
E:
i. Agreement
ii. Established by company policy
iii. Work highly technical in nature
iv. Apprenticeship
o Regularization standards
GR: Reasonable standards made known to the employee at time of engagement
 Time of engagement (two views)
a. 60x3
b. lapse = same day
 Time of engagement (FLJ)
a. Signing of K
b. 1st day of employment
E:
i. Job is self-descriptive (Abott case)
ii. Acts in a manner contrary to basic knowledge and common sense in
regard to which there is no need to spell out a policy or standard to be
met (Carvajal case)
o Deemed to have made known the standards that would qualify a probationary
employee to be a regular employee when it has exerted reasonable efforts to
apprise the employee of what he is expected to do or accomplish during the trial
period of probation.
 This goes without saying that the employee is sufficiently made aware of

Camille Sapnu Labor Rev FLJ

 10

his probationary status as well as the length of time of the probation

o Failure to communicate standards = deemed regular from day one
o Adequate performance = implied standard of regularization
 Not in all cases quantifiable; also hinged on the qualitative assessment of
work
 Qualitative specification = the best that the e’r can do at the time
of engagement is to orient him on how to properly proceed with
the same
 E’r cannot bear out in exacting detail at the beginning of the
engagement what he deems as “quality work” especially since
the probationary e’e has yet to submit the required output
 The communication of performance standards should be perceived
within the context of the nature of the duties and responsibilities
o Intended to afford e’r an opp to observe the fitness of a probationary e’e while at
work, and to ascertain whether he will become an efficient and productive e’e
 Probationary = purpose of term/pd; NOT length
o Grounds for termination
i. Just/authorized = notice and hearing
ii. Failure to meet standards = sufficient that a written notice is served
within a reasonable time from the effective date of termination
o Termination = must explain details of said failure to qualify and the standards
not met
o Mere completion of the probation period, even with an above-average
performance, does not guarantee that the e’e will automatically acquire a
permanent employment status
o Lapse of probationary pd WITHOUT notice of being hired as regular =
effectively sever EER
 Mngt prerogative
 No security of tenure after laps
 However still serve termination within reasonable time
o ID = backwages ONLY (security of tenure is limited only to pd)
o If prob stat overlaps with a fixed-term K NOT specifically used for the fixed term
it offers, prob status assumes primacy and the fixed-pd character of the K must
give way
o Apprenticeship counted in the probationary pd
o Manual of Regulations for Private Schools (academic personnel)
 Elementary and secondary levels = 3 consecutive yrs of satisfactory
service
 Tertiary level = 6 consecutive regular semesters of satisfactory service
 Tertiary level where collegiate courses are offered on a trimester basis =
9 consecutive trimesters of satisfactory service
 K of employment = specify terms and conditions of employment as may
be consistent with laws, rules, regulations and standards of school
 Fixed-term during probationary pd = accepted practice in schools
 Reqs to acquire permanent employment
i. Full-time teacher
ii. Rendered 3 consecutive yrs of service
iii. Such service is satisfactory
3. Fixed Term Employment (E to GR)
o Qualifications

Camille Sapnu Labor Rev FLJ

 11

a. Agreed upon knowingly and voluntarily by the parties, without any

force, duress or improper pressing AND absent any other circumstances
vitiating consent; AND
b. Where it satisfactorily appears that the e’r and e’e dealt with each other
on more or less equal terms with no moral dominance whatever being
exercised by the former over the latter
o Based on the Civil Code (Brent v Zamora); no express or implied recognition in
LC
o Essential:
1. OFW
2. Dean, asst. dean, college secretary, principal and other admin offices in
education institutions
3. Company officials which may be elected for what would amt to fixed
pds
o NOT to circumvent security of tenure
o Employment K = NOT a K of adhesion
o 555 scheme: hired every month for the duration of 5 months, after which their
services were terminated and they were replaced by other “casual” e’es on the
same five-month duration
 Pure Foods v NLRC: Regular
 Pangilinan v General Milling Comp.: NOT regular; hired for 5 months
for emergency (one time only)
4. Probationary & Fixed Term Contracts for Teachers
o If prob stat overlaps with a fixed-term K NOT specifically used for the fixed term
it offers, prob status assumes primacy and the fixed-pd character of the K must
give way
 Teachers must be informed of the reasonable standards at the start of the
probationary period, or at the very least, at the start of the period when
they were to be applied
o School system of fixed-term K = system that operates during the probationary
period and for this reason, it is subject to the terms of Art 281
5. Casual Employment = incidental to the usual trade/business
o E: 1 yr (365 days according to Art 13, NCC)
6. Regular Employment
o Activities are usually necessary or desirable in the usual trade/business
o Primary standard = reasonable connection between particular activity performed
by the e’e in relation to the usual trade/business
o Test = whether usually necessary or desirable
 Repeated and continued need for its performance = sufficient evidence
of necessity, if not indispensability, of the activity
o Nature of work must be viewed from a perspective of the business/trade in its
entirety and not in a confined scope
o Rendered at least 1 yr of service, whether continuous or intermittent, with
respect to the activity he performed and while such activity exists
 Regular stat on the day immediately after the end of his first yr of service
 Magsalin case: proj and seasonal included
 Hanjin: casual only
o Examples:
 E’r: Manufacture and distillery of wine and liquors
E’e: Maintenance man; not only painter
 E’r: Coke
E’e: Sales route helpers

Camille Sapnu Labor Rev FLJ

 12

 E’r: Baguio country club

E’e: Laborer, dishwasher, and gardener
 E’r: Tuna cannery plant
E’e: Receiving, skinning, packing, canning
 Main bulk of workforce = so called casual e’es

RIGHT TO SELF-ORGANIZATION
I. Constitution
o Art III, Sec 8
The right of the people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes NOT contrary to law shall NOT be
abriged.
o Art XIII, Sec 3
Living Wage
Humane condition
Organize
Security of tenure
Engage in peaceful activities, including strike
CB or negotiation
Decision-making

II. Who may FJA

GR: ALL e’es may FJA
E: Absolutely prohibited
1. Managerial e’es
2. Confidential e’es = based on doctrine of necessary implication (similar to mngr)
i. Assist or act in a confidential capacity, in regard to
ii. Persons who formulate, determine and effectuate mgnt policies in the field of
labor relations
 Exposure to internal business operations = NOT per se ground for exclusion
3. Cooperative members = one cannot bargain with himself/herself
 Regardless of number of shares
 Stockholders = e’es
 Veil of corporate fiction
4. E’es of international organizations
 Remedies under the Convention
5. AFP members, including police officers, policemen, firemen, and jail guards (E.O. No.
180)

o Supervisors = separate from r-f

o Security guards = now allowed under RA 6715
o Members of INC and other sects = cannot be compelled to join, but are NOT prohibited
from joining if they choose to do so
o Government e’es under the CSC = allowed CB BUT NOT CB on those prescribed by law
 GOCC without original charter or those unde the CC = treat as private enterprise
 See Arts 254[250] and 261[282]
o Alien employees
1. Valid working permit
2. Reciprocity

Camille Sapnu Labor Rev FLJ