Labor Law Bar 2011 Notes Roland Glenn T. Tuazon Ateneo de Manila University Table of contents: 1. 2. 3. 4. 5. 6. 7. 8. 9.

FUNDAMENTAL PRINCIPLES AND POLICIES RECRUITMENT AND PLACEMENT LABOR STANDARDS TERMINATION SOCIAL LEGISLATION SELF-ORGANIZATION COLLECTIVE BARGAINING CONCERTED ACTS PROCEDURE

FUNDAMENTAL PRINCIPLES AND POLICIES

What is labor law? o A regulatory devise, which regulates the relationship between the employer and the worker the two factors of production What is labor standards law? o Establishes the minimum terms and conditions of employment o Rationale: these are necessary for the worker and his family to survive o These are beyond then negotiation of the parties; they cannot agree to terms less than those provided in the law. If they do, these are void. What is labor relations law? o It is concerned with institutional relationships and does not look as the laborer as an individual, but as a group of workers (union)

Two aspects of labor relations law: 1. Union and State relationship 2. Union as an organization and its relationship to the members What is social or welfare legislation? o It solves the problem of avoiding making the worker a charge on society and solves the problem of continuity of income either in whole or in part if and when some contingencies occur, such as sickness, injuries, premature death, and final death o What are the laws covered by social legislation? 1. Employees compensation and State Insurance Fund (ECSIF) 2. SSS Law 3. GSIS Law 4. Limited portability law o Which are applicable to what workers? SSS, to private sector employees GSIS, to government employees and those in GOCCs Both, to those employed in both fields Limited portability provides a tacking provision for those who have partially fulfilled GSIS and SSS requirements SSS and GSIS for non-work-connected injuries and ECSIF for work-connected injuries What is the basis for enacting labor law? o Constitutional provisions mandating the State to protect laborers o Police power of the State What are the sources of labor law? o 1. Contract law gives rise to rights and obligations A. Civil code provisions on contracts B. Collective Bargaining Agreements o 2. Past practices, which are: Those given voluntarily by the employer without compulsion by law for a sufficient duration What is sufficient period or duration?

Case by case 3. Company policies Those unilaterally designed and implemented by the employer, stating rules and regulations of the company. These can be the source of rights and obligations. N.B. these are unilaterally imposed by the employer; otherwise, it would fall under contract law. What is a labor case? o 1. Involves employer and employee o 2. Subject of controversy and laws of resolution fall under labor law Thus, if the area of resolution is civil law and not labor law, such as replevin, then it is not a labor dispute What is management function? o These are rules based on the right of ownership, designed for efficient and economical management of the enterprise. It permeates the entire labor code, regardless of field. o What is the limit to management function? The law reserves the right to inquire as to the manner of exercise of such right. How does the law look upon waivers and compromises? o It looks upon it with disfavor, although not all waivers and compromises are void under law. o What are the tests of validity of waivers and compromises? 1. Arithmetic measure is what was received for settlement unconscionable? 2. Relative positions of the employer and employee what is the educational attainment of each? Was the employee in dire need? 3. Freedom on the part of the worker was there absence of coercion? What are the guaranteed rights of laborers under Art XIII, Sec. 3? o 1. Self-organization o 2. Collective bargaining and negotiations o 3. Peaceful concerted activities, including right to strike o

4. Security of tenure 5. Humane conditions of work 6. Living wage 7. Participation in policy and decision-making processes How does LC Art. 255 operationalize this? Workers can participate in policy and decision-making processes of the establishment where they are employed as far as it would directly affect their rights, benefits, and welfare What are the other goals set by this provision? o Full protection to labor o Full employment and equality of opportunities o Shared responsibility between ER and EEs o Preferential use of voluntary dispute settlement o Two fold rights: Right of labor to just share in fruits of production Right of enterprises to reasonable returns to investments What does the NCC say? o Art 1700 relations between labor and capital are not just contractual, but impressed with public interest must yield to common good What factors does labor law consider as to contracts? o 1. Due process clause Labor is considered property Due process and EPC can protect the employer too, not just the employee o 2. Liberty of contract and laissez faire N.B. but the State still retains an interest on the worker as part of society no matter how reckless he may be; thus, the State continues to interfere in contract. Laissez faire is not totally adopted. When does the Labor code apply? o 1. There must be an employer-employee relationship o 2. Generally applies to all kinds of employment

o o o o

N.B. but for GOCCs created and governed by special charter, apply the Civil Service Law instead What is the rule on international organizations? Beyond the coverage of the Labor Code, but the international agreement must contain provisions on method of dispute settlement. N.B. if not provided, the worker can ask for withdrawal of immunity of suit so that Philippine legal processes can apply. What about school teachers? Public school teachers are covered by the Civil Service Law. Private school teachers are covered by the Dep. Ed. Manual But for all matters not covered by these, the Labor Code applies. The most important is probationary employment. Does the Labor Code apply to religious corporations? If the nature of the controversy is not religious, then the Labor Code applies. Does the Labor Code apply to managerial employees? Yes, although certain aspects like Hours of Work do not apply.

RECRUITMENT AND PLACEMENT

RECRUITMENT OF LOCAL AND MIGRANT WORKERS What is recruitment and placement? o Any act of: Canvassing, enlisting, contracting, Transporting, utilizing, hiring, procuring workers Includes referrals, contact services, promising or advertising employment for profit or not, here or abroad o When is there a presumption of R&P?

When a person or entity offers or promises for a fee employment to two or more persons o How do you harmonize the definition and the presumption? Any one act under the definition is sufficient to establish R&P, regardless of number of persons. The presumption is only a rule of evidence which operates when there are two persons to whom employment is promised for a fee and the acts defined above cannot clearly be established. o Who are workers? All members of the labor force, whether employed or unemployed What is the State policy under MWA? o Promotion of overseas recruitment is not State policy, because it seeks to create local opportunities. But while there are workers deployed abroad, there must be protections for them. o Does the POEA have jurisdiction over ER-EE relations cases for OFWs? Not anymore. Its been retransferred to NLRC. The POEA only handles administrative cases. o What is the nature of employment of seafarers? They are contractual employees Differentiate license from authority: o License is authorization to operate a private employment agency. A Private Employment Agency is an entity engaged in R&P for a fee (charged from employer, worker, or both) o Authority is authorization to operate a private recruitment entity. A Private Recruitment Entity is an entity engaged in R&P without charging any fee Illegal recruitment o What is the definition of illegal recruitment under the LC? Any recruitment activities (Art. 13) or prohibitions (Art. 34) undertaken by non-licensees or non-holders of authority o What is the definition of illegal recruitment under the MWA (RA 8042)?

Any recruitment activities (Art. 13) undertaken by nonlicensees or non-holders of authority Any prohibited acts (Art. 34), whether licensed or nonlicensed o What are the prohibited acts (Art. 34)? 1. Overcharging (whether vis--vis schedule of fees or what has been loaned/advanced) 2. Public false information re: recruitment 3. Misrepresentation to secure license or authority 4. Induce or attempt to induce employed worker to leave job to offer him to another Except to save him from oppressive employment 5. Influence employer not to hire worker unless coursed through his agency 6. Engage in R&P for harmful or anti-public policy work 7. Obstruct or attempt to obstruct inspection by Sec of Labor or representatives 8. Fail to file reports required by Sec of Labor 9. Substitution or alteration of approved contracts without approval of Sec of Labor 10. Becoming officer or being involved in management of travel agency 11. Withhold or deny travel documents from workers before departure due to financial considerations Unless authorized by LC o What are the additional grounds added by MWA, apart from these? 12. Failure to deploy the worker without valid reason 13. Failure to reimburse worker when deployment does not happen without his fault Differentiate simple illegal recruitment, illegal recruitment in large scale, illegal recruitment as syndicate: o Large scale if committed against 3 or more persons individually or as a group

By a syndicate carried out by a group of 3 or more persons conspiring or confederating with each other o What are these two types of illegal recruitment called? Illegal recruitment as economic sabotage Can illegal recruitment and estafa coincide? o If there are pecuniary damages due to previous or simultaneous false pretense resorted to by the entity, then the latter can be sued for estafa under Art. 315 o This suit may prosper aside from illegal recruitment What are the liabilities of the local employment agency and the employer? o The agency is solidarily liable for the unpaid salaries of the worker, along with the principal/employer. This holds true even if the agency agreement has been severed, if no notice was given to the employee. o What is the theory of imputed knowledge? The presumption that knowledge of he agent can be ascribed to the principal as well. o When is an employee of the entity liable as a principal? When he had knowledge of the offense and had active and conscious participation. NOT liable as principal when merely carrying out orders of superior. What is the rule on pre-termination of contract of a MW? o If there was pre-termination without just cause, the employer will be ordered to pay the workers: o 1. Full placement fee with 12% interest AND o 2. Salary for unexpired portion of the contract OR for 3 months for every year of the unexpired term, whichever is lesser o Isnt this unconstitutional? Yes, according to Serrano v. Gallant, but R.A. 10022 passed 1 year after reinstated the provision Is direct hiring allowed for overseas employment? o As a general rule, no, direct hiring is not allowed. It must be through boards and authorized entities. o What are the exceptions? 1. Diplomatic corps 2. IOs

3. Other employers allowed by the DOLE What is the rule on employment of Non-Resident Aliens? o Either the alien or the employer must obtain an employment permit from the DOLE o When is the permit issued? Upon determination of non-availability or a person in the Philippines who is competent, able, and willing at the time of application to perform the services for which the alien is desired o What is the special rule for those preferred areas of investment? Permit issued upon recommendation of the government agency in charge of that enterprise Upon issuance of the employment permit to the NRA, what are the regulations? o Cannot transfer employment without prior approval from DOLE Secretary o Else, punished under the LC and/or deported

REGULATION AND ENFORCEMENT What is the rule on remittance of foreign exchange earnings? o Employment contracts must contain a proviso that makes remittance of the following rates mandatory 1. Seamen 70% of basic salary 2. Workers of Filipino contractors or construction firms 70% 3. Doctors, nurses, engineers, teachers, other professionals whose contract gives free board and lodging 70% 4. Professionals without free board and lodging 50% 5. Domestic and service workers 50% 6. All others 50% What are regulations? o 1. Travel agents and sales agencies of airline companies cannot engage in R&P for overseas employment, w/n for profit o 2. Citizenship requirement for recruitment entities: Filipino

OR 75% Filipino ownership (authorized and voting stock) o 3. Minimum capitalization as required by Sec. of Labor o 4. Non-transferability of authority or license Cannot transfer to another person or use in another place What if you want to transfer offices? Get prior approval of Sec. of Labor, as with appointing an agent or getting additional offices What are the prohibited activities? o See above enumeration (Art. 34) What is the nature of the regulatory and visitorial powers of the Labor Secretary? o The Secretary can restrict and regulate R&P activities of all agencies covered o Can issue orders and R&Rs o Visitorial Powers Sec of Labor or representatives may inspect premises, inspect books/records of entities, require submission of reports, etc. What must be given by those applying for license or authority? o 1. Prescribed registration fees o 2. Cash/surety bonds to guarantee compliance with provisions What is the nature of the license? o It is beyond the commerce of man, and subject to prior approval What are the penalties for illegal recruitment? o 1. Simple illegal recruitment 12 y 1 d to 20 y imprisonment And fine of P1M to 2M o 2. Economic sabotage life imprisonment And fine of P2M to 5M Maximum if the one recruited is less than 18 years, or committed by a non-licensee or holder of authorization o 3. Prohibited acts 6 y 1 d to 12 y And fine of P500K to P1M If alien, deported without further proceedings

4. In all cases: Revoke license or authorization

LABOR STANDARDS

Where o o o

do benefits come from? 1. Law (Labor standards law) 2. Contact (ex. CBA) 3. Vested benefits

HOURS OF WORK What is the rationale for the hours of work provisions? o 1. To safeguard health and welfare of the laborer o 2. Prevent unemployment (companies that operate more than 8 hours have to hire more workers or pay more) o 3. The employee usually just accepts what the employer says, so this will prevent begrudging acceptance of long work days Who are covered by the provisions on hours of work? o By default, employees in all establishments and undertakings, whether for profit or not Who are excluded by the provisions? o 1. Government employees Covered by Civil Service Law Exception? Employees of GOCCs incorporated under the Corporation Code N.B. even GSIS-covered employees are not excluded from the employees compensation program under the Labor Code o 2. Managerial employees What are managerial employees? 1. Primary duty is management of the establishment, department, or subdivision 2. Customarily or regularly directs work of two or more employees

3. Has authority to hire/fire employees of lower rank, or at least their suggestions are given particular weight N.B. this is not the same definition for manager in labor relations. This is broader in scope and covers even supervisory employees, while the labor relations definition does not. Ratio: they are not hired for quantity of hours of work put in but the special training, knowledge, or experience that requires discretion and independent judgment o 3. Field personnel Who are these? Non-agricultural employees regularly performing their duties away from the principal place of business What is essential? Actual hours of work cannot be determined with reasonable certainty Test: whether the employee is supervised on the field What about bus conductors and drivers? NOT field personnel because inspectors check their hours of work. o 4. Members of the family of the employer who are dependent on him for support o 5. Domestic helpers o 6. Persons in the personal service of another o 7. Workers paid by results Is this determinative of employer-employee relationship? No. Always follow the four-fold test. This is just a method to compute compensation. Ratio: they are paid based on work output, regardless of time employed What are the normal hours of work?

Not exceeding 8 hours a day Can normal hours of work be less than 8? Yes. It says not exceeding Can an employer and employee contractually agree that work must be 12 hours a day, or any number above 8? Yes, its a contractual commitment but the extra 4 hours are covered by OT pay. What is the day here? Work day (24 hour period starting from the time an employee regularly starts to work) NOT calendar day What are the exceptions? 1. Health workers In cities and municipalities with population at least 1 million Or in hospitals/clinics with bed capacity at least 100 What are their hours? o 8 hours a day, 5 days a week (N.B., its doesnt say not exceeding this time, so they really must work 8 hours) Excluding meal times o Except when exigencies require work for 6 days (48 hours) What is the implication on their salary? o 130% of normal salary on the sixth day 2. Compressed Work Week What is this? o When the employer and employee agree that the employee works one day less (ex. from 6 to 5 days) and the hours of the skipped day will be added to the other days

What is the maximum time allowed for CWW? o 12 hours. Anything in excess will garner OT pay Otherwise, what is the general? o The work beyond 8 hours but under 12 is not given OT pay What are covered by the counting on hours worked? o 1. All time where an employee is required to be on duty or to be at a prescribed workplace o 2. All time when the employee is suffered or permitted to work o 3. Rest periods of short duration during work hours Does the employee actually need to leave the premises of the workplace? No. He can stay or go. o What about waiting time? Check the circumstances of the job, if waiting is an integral part of his work o X has to drive to a place outside Metro Manila to do an installation job. Is this part of hours of work? Yes, it is when the travel time cuts across or coincides with regular work hours. o X is a delivery truck driver. Is time spent driving the vehicle to and fro the bodega time worked? Yes. How does the law treat work interruption due to brownouts? o It is considered working time, because the time during which an employee is inactive by reasons beyond his control is considered working time if Resumption of work is imminent and it requires his presence at the place of work Or the interval is too brief to be utilized effectively and gainfully in the employees interest

Meal period: At least 60 minutes Less than 60 minutes but at least Default meal period Valid shortened meal time; becomes

20 minutes Less than 20 minutes Less than 20 minutes, but valid compensable meal period:

compensable Compensable rest period. NOT a valid meal period. 1. Non-manual work; does not involve strenuous physical exertion 2. Establishment regularly operates at least 16 hours a day 3. Actual or impending emergencies or urgent work on machineries to avoid serious loss 4. Necessary to avoid serious loss of perishable goods

4.

Travel under vexing and dangerous circumstances

Travel incidental in days work Travel away from home

Semestral break, for teachers Other types of time spent at work: Type of work Idle time Counted as working time? Yes, if the employee was engaged to wait or he waited to be engaged. The controlling factor: whether the waiting time was for the employers benefit or the employees benefit Yes, if waiting is integral part of the work, or if the ER engaged him to wait. Yes. It is when an EE is required to remain on call that he cannot gainfully and effectively use his time for his own purposes. No. Except, when: 1. EE made to work on emergency call and travel is necessary to get to work 2. Travel through conveyance provided by ER 3. Travel under supervision and control of ER Attendance in lectures, meetings, trainings, or programs

X was a company driver and was engaged to pick up and drop off other employees to and fro work. Is this working time? Yes, because it is done for the employers benefit Yes, if part of EEs regular activity Yes, if it keeps an EE away from home overnight and it cuts across an EEs workday. It substitutes for normal working time. Yes. It is an interruption beyond their control. N.B. this only applies to regular full-time teachers Yes. Except if the ff requisites concur: 1. Attendance is outside regular working hours 2. Attendance is voluntary 3. There is no productive work done during attendance

Waiting time

Nightshift differential What is the nightshift differential? o 10% of regular wage, for each hour of work between 10 pm and 6 am Who are not covered by nightshift differential? o 1. In government or GOCCs o 2. Managerial employees o 3. Field personnel or other employees whose time/performance is unsupervised o 4. Domestic helpers o 5. Those in personal service o 6. Working on contract basis, purely commission basis, or paid fixed amount irrespective of time worked

On call working

Travel from home to work

7. In retail or service establishments regularly hiring only up to five workers o N.B. So this is just like the hours of work enumeration, but including retail and service establishments hiring only up to 5 workers. o Reason? Its onerous for the small business to pay NSD, but in also, it will be harsh if they dont have to comply with hours of work just because they have few employees. What is the rationale for the NSD? o 1. Social disarrangement o 2. Lower efficiency and output o 3. Higher risk going to and fro work in darknesss What if it is also overtime work? o The 10% is calculated against OT pay as base

Overtime Work What is OT work? o Work performed beyond 8 hours a day What is the rate for each hour of work done beyond 8 hours? o Regular wage + 25% N.B. Base excludes fringe benefits/bonuses just regular pay o What if the OT work was done during a holiday? The +25% becomes +30% o What if the OT work was done during a rest day? The +25% becomes +30% What are conditions to be entitled to OT pay? o 1. Actual rendition of OT work o 2. Submission of sufficient proof that work was actually performed o 3. With knowledge and consent of employer Is it legal for the employment contract that the monthly salary would be treated as covering even pay for rest days and holidays? o Yes, as long as the wage is still equal to or above the minimum wage What is the anti-offset rule?

Under-time work on one day cannot be offset by overtime work on another day o Neither does permission given to the employee to go on leave some other day of the week exempt the employer from paying additional compensation Can OT pay be waived? o No. o Unless the waiver was in consideration of other benefits or salary that equals or exceeds the OT pay. What are the emergency situations when OT work can be made mandatory by the ER? o 1. RP is at war, or national/local emergency declared by Congress or President o 2. Necessary to prevent loss of life/property or imminent danger due to disaster or calamity o 3. Urgent work on machines, installations, equipment to avoid serious loss or damage to the employer o 4. Necessary to prevent loss or damage to perishable goods th o 5. Completion or continuation of work started before the 8 hour must be completed to avoid serious obstruction or prejudice to the business o 6. Necessary to avail of favorable weather or environmental conditions o When OT is required under these 6 circumstances, must there be extra compensation nonetheless? Yes. It just becomes mandatory, rather than optional. What prevails, CBA provision or OT work rate? o CBA may stipulate higher OT pay rate. The court cannot impose upon the parties anything beyond what they agreed upon. If there is none, impose regular OT rate.

WAGES What is the no work no pay principle? o If there is no work performed by the employee, there can be no wage or pay. o Exceptions to no work no pay:

o o

1. The laborer was willing, able, and ready to work but was prevented by management 2. Illegally locked out, suspended, or dismissed. What if the failure to work was the employees fault? He doesnt get paid What is the principle established under ISA v. Quisumbing? Equal work for equal pay; no distinction can be made based on nationality

Facilities and supplements: Facilities Included in wages Can be credited as wages or deducted from wages Articles or services like board/lodging which benefit the EE and his family Requisites: 1. Customarily furnished in trade 2. EE voluntarily accepted it in writing 3. Charged at reasonable value Generally for the benefit of the employee. So its usually at the initiative of the EE. Supplements Not included in wages Over and above wages Extra remuneration or special privileges received over and above the EEs ordinary wages N.B. For facilities and supplements, the nature of the benefit or item is not a controlling criterion. It is the purpose that controls. Check if its meant to be part of his wages or over and above them. Usually on the initiative of the ER.

Tools of trade or other articles for the benefit of the ER or the business Who are excluded from the rules on wages? o 1. Farm tenancy/leasehold o 2. Cottage industries and other small businesses that probably cannot afford to pay the wage rates set by law. N.B. Consult wage orders established by regional wage boards o 3. Domestic service o 4. Barangay Micro Business Enterprises (BMBE) under R.A. 9178

Business entities engaged in producing or processing of products (including agro-processing), whose total assets do not exceed 3M pesos What does the term assets cover? Includes loans Excludes land where the office, plant, or equipment are situated Differentiate wages and salaries: o Wages Manual labor, skilled or unskilled Paid at stated times Measured by day, week, month, or season Usually for lower and less responsible character of employment o Salaries Higher degree of employment, superior grade of services, and implies position/office Larger and more permanent/fixed compensation What is the non-diminution rule? o The benefits being given to employees cannot be taken back or reduced unilaterally by the employer, because the benefit has become part of the employment contract (whether written or unwritten) o When does a benefit set-in and cannot be diminished? 1. When the benefit is based on express policy or has ripened into practice for a long period of time 2. AND that it is consistent and deliberate o What can be diminished? 1. Conditional or contingent benefits (ex. bonuses) 2. Those granted due to error or doubtful application or law What is the exception to this? o When the error has stood so long and has been left uncorrected that it has ripened into company policy What is the rule on those paid by results? o If paid according to piece rates in DOLE Pierce Rate Orders:

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Wages = number of pieces * Piece Rate No overtime pay o If paid according to output rates prescribed by the employer and not yet approved by DOLE: If number of pieces * Rate is >= to legal daily wage, they receive the former If formula is < than the legal daily wage, they receive the latter What are piece-rate employees entitled to? o 1. Applicable minimum daily rate o 2. SIL o 3. Night shift differential Huh? I thought those paid by results are excluded by NSD? Yes but that covers those paid by commission, contract basis, or by end-result. That doesnt include piece-rate workers who are just like normal workers in every respect except they are paid by pieces made. o 4. Holiday pay How calculated? Not less than his average daily earnings for the last seven actual working days It must not be less than the minimum wage o 5. Meal and rest periods o 6. OT pay Conditional o 7. Premium pay Conditional th o 8. 13 month pay o 9. Other benefits granted by law or by agreement o N.B. So the rule is that piece-work EEs are entitled to the normal benefits because the difference between them and the usual employees is just manner of payment and nothing else What are the legal forms of payment? o Must be legal tender o Cannot be in PNs, vouchers, coupons, tokens, tickets, etc.

What if the employee requested for PNs, vouchers, etc? Even so. Its not allowed. o When is payment by check allowed? 1. Customary manner of wage payment in that place 2. Stipulated in CBA 3. Or where all of the following requisites are met: A. Bank or encashment facility within 1 km radius from workplace B. the ER or his agents do not receive pecuniary benefit from the arrangement C. EEs given reasonable time during banking hours to withdraw wages from bank o This is compensable working time D. Written consent of employee if there is no CBA provision 4. Special circumstances provided in labor regulations o Is payment by ATM allowed? Yes, under 25 Nov 1996 labor advisory Requisites for payment through ATM: 1. Written permission of majority of EEs 2. 25 or more EEs in the establishment 3. Establishment is within 1 km from bank What is the time of payment? o At least once every 2 weeks or twice a month at intervals not exceeding 16 days o What if there is force majeure preventing payment? Payment made as soon as force majeure disappears o In all cases, what is prohibited? Payment with less frequency than once a month o What is the rule for employees made to perform tasks which cannot be completed in 2 weeks? 1. Payments at intervals not exceeding 16 days, in proportion to amount of work completed 2. Pay balance upon completion of work o What is required by the IRRs? 1. Individual time record of employees 2. Payroll

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Where and how must wages be paid? o At or near the place of undertaking N.B. Remember the ATM exception o When can there be payment in any other place? 1. Impossible to pay in place of work due to emergency or calamity 2. ER provides free transportation back and forth 3. Analogous circumstances N.B. For all: time spent is compensable work time o What are prohibited places of payment? Bar, night/day club, drinking place, massage clinic, similar places Except if the people are employed there o Who must receive the payment? The worker himself o Exceptions to this rule? 1. Force majeure can be paid to another person with written authority given by EE 2. Decease of EE Can pay wages to heirs directly without need of intestate proceedings What is the procedure? o The heirs submit an affidavit stating relationship to deceased o ER pays through Sec. of Labor or his representatives o Sec. of Labor acts as referee to divide the amount 3. Workers family member authorized in writing What is the rule on workers preference under Art. 110? o In case of bankruptcy or judicial liquidation, the workers unpaid wages are preferred. o It is not a lien, but a reordering of credits (see Concurrence and Preference of Credits in Civil Law) What is the rule on attorneys fees? o In case of unlawful withholding of wages culpable party may be assessed attorneys fees equal to 10% of wages recovered

In any proceeding, cannot recover attorneys fees exceeding 10% of the wages recovered What is non-interference in disposal of wages? o No employer can limit or interfere with the employees disposal of his wages. o Can an employer compel his employees to purchase any merchandise or commodity? No, whether it be from himself or another person Can an employer deduct his employees wages? o In general, no. o What are the exceptions under the Labor Code? 1. To pay for insurance premiums that employee consented to 2. Union dues, where right to check-off is authorized in writing by the employee or recognized by the employer 3. Authorization by the Sec. of Labor o What are the exceptions under other laws? 1. Employee is indebted to the employer, and it is due and demandable 2. Court ordered attachment of wages for debts incurred for food, shelter, clothing, or medical attendance only 3. Withholding tax 4. Salary deductions for coop members 5. Payment to third persons, upon written authorization by employee And agreement by the employer, who is not obliged to do so 6. Agency fee 7. Facilities 8. Loss or damage under Art. 114 (see below) 9. SSS, Medicare, Pag-ibig premiums Can the employer require the employees to make deposits to cover for deductions for loss/damage to tools or equipment? o In general, no. o What is the exception?

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When it is shown that such practice is longestablished and recognized in the trade o If allowed, when can deductions be made (requisites)? 1. Employee is responsible for the loss/damage 2. Employee given chance to show cause against deduction 3. Amount is fair and reasonable, and not exceeding the loss/damage 4. Deduction does not exceed 20% of employees wages in a week Can wages be withheld by the employer, if the employee violated company rules, failed to perform tasks, or for any other reason? o No. It can be dealt with in some way but not by withholding wages. o Other express prohibitions? Deduction to ensure employment Retaliatory deductions False reporting Which body has the power to prescribe rules and guidelines for determination of wages in the country? o National Wages and Productivity Commission (NWPC) o What is the status of guidelines issued by Regional Tripartite Wages and Productivity Boards? These are void, if without the approval of or contrary to NWPC guidelines o What is the status of a wage order without required public consultation and publication in newspapers? Void as well Who sets the minimum wage? o Regional Tripartite Wages and Productivity Boards o Is poor financial condition of the company an exemption to payment of minimum wage? No. o What does minimum wage relate to? A days work which comprises 8 hours at most o When is a worker daily paid? Paid only for days he actually worked

When is a worker monthly paid? When the monthly rate covers all the days of the month. Calculated through the following formula: Monthly wage x 12 / 365 = daily rate Must exceed the following formula: Minimum wage x 365 / 12 Distinguish agricultural from industrial rates: o Agricultural rates farming in all its branches o Industrial manufacturing and processing o What determines which rate applies? Nature of the work. It is permissible for one company to pay agricultural rate to some, and industrial rate to others. What is wage distortion? o When the pay advantage of a position over another is removed or significantly reduced due adjustment required by a wage order o The advantage must thereafter be restored o Must there be full elimination of salary differences? No. A severe contraction is enough. o Are efforts to rectify mandatory? Yes, whether the establishment is organized or unorganized What if its an organized establishment? (Neg-GMVA) 1. Employer and union must negotiate 2. Any dispute must be resolved through grievance machinery in CBA 3. If unsolved, through voluntary arbitration What if its an unorganized establishment? (NegLabor-NLRC) 1. Employer and union must endeavor to correct it 2. Any dispute must be resolved through Labor Arbiter (R.A. 6727 says NCMB)

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3. In unsolved after 10 days of conciliation, refer to NLRC Must the new difference be the same as before? No, not to the last peso. Restoration of appreciable differential is sufficient. Is any issue involving wage distortion a valid ground for strike or lockout? No. Check the enumeration its not there. What is the just and equitable formula forwarded by the SC in Metrobank? (minimum wage / actual salary) * (prescribed increase) = distortion adjustment Is there inter-region wage distortion? No. Just intra-region. The wage-fixing rates are fixed per region, and comparison must be within these regions and not across regions. What if the salary distortion was created due to employerinitiated salary restructuring? There is no legal duty to rectify the distortion because the legal duty only arises from distortions brought about government wage orders. What are the prohibitions pertinent to wage orders? 1. No TROs or injunctions are allowed for proceedings before the NWPC or RTWPBs. 2. Wage orders must respect the statutory minimum wage set by Congress. Who are not covered by wage orders? 1. Household/domestic workers, and those in personal service 2. Workers in retail/service establishments employing not more than 10 workers, when exempted from compliance for a certain period fixed by commission/boards 3. Workers in new business enterprises, within 2-3 years from start of operations, when exempted and: Outside NCR Or in EPZs

How often can there be a wage order? Once every 12 months Except when there is a Congressional law What are factors considered in wage orders? (dont memorize but understand and familiarize) 1. Standards of living 2. Needs of workers/families 3. Wage adjustment vis--vis consumer price index 4. Prevailing wage levels 5. Effects on employment family income 6. Cost of living and changes 7. Fair return of capital investment and employers capacity 8. Need to induce investment in rural areas 9. Equitable distribution of income 10. Demand for living wages

REST DAY When does the right to rest day accrue? o For every six consecutive normal work days When is the rest day set? o Depending on the CBA or subject to RRs o What if the employee has preference based on religion? It is respected, but he must inform the employer at least 1 week before the day preferred What if it might cause prejudice to business? Resort to other remedial measures. If there are none, must schedule the preferred rest day on that chosen day at least twice a month. When may an employee be required to work on a rest day? o 1. Actual or impending emergencies caused by disaster or calamity, to prevent loss of life/property o 2. Urgent work on machinery, equipment, or installation to avoid serious loss o 3. Abnormal pressure of work due to special circumstances And there are no other measures

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4. Prevent loss or damage to perishables 5. Nature of work requires continuous operations and stoppage of work may result in irreparable injury or loess to employer o 6. Analogous circumstances o 7. Favorable weather or environmental conditions, when performance is dependent on such o (N.B. If you notice, this is the same as the Mandatory OT enumeration, except for abnormal pressure of work due to special circumstances) What is the rate of rest-day compensation? o Regular wage plus 30% (premium pay) o What if because of the nature of the employees job, there are no regular workdays and no regular rest days can be scheduled? The extra 30% applies to Sunday work What is the rate for work on a special holiday? o Regular wage plus 30% o What if it is also his scheduled rest day? Regular wage plus 50% N.B. if he works OT, then its plus 30% of 150% What are the special holidays? o 1. All Saints Day (Nov 1) o 2. Last day of the year (Dec 31) o 3. Ninoy Aquino day (Aug 21) What if the employee does not work on a special holiday? o No pay What is the implication when a day is declared as a special working holiday? o Then no premium pay is given. An employee just earns 100% if he works.

o o

5. Field personnel 6. Those paid based on contract, commission, or for end-result regardless of time spent working o 7. Those in retail and service establishments employing less than 10 workers o (N.B. This is the same as NSD enumeration, and the same as hours of work exemption + 10 workers-rule) Are monthly-paid employees excluded from holiday pay? o No. They are included. The IRR provision establishing this is void. For hourly-paid teachers, will the calling off of class or declaration of special public holiday deprive them of income? o No. They should receive what they would have been paid. o What about when extensions are given? Then they are paid their hourly rates. Are private school teachers entitled to holiday pay? o Yes if the holiday falls during Christmas vacation o No if the holiday falls during semestral breaks What about employees paid by results? o Paid average daily earnings for 7 days preceding holiday o But must not be less than minimum wage What about seasonal workers? o Not paid holiday pay during off-season

o o

Compensation: Holiday and EE does not work Holiday and EE works Double-holiday (ex. Maundy Thursday and Araw ng Kagitingan) Holiday falls on Sunday Holiday falls on rest day 100% pay 200% pay 200% if EE rests; 300% if EE works 100% if EE rests; 200% if EE works (no special rule) 100% if EE rests; 230% if EE works; N.B. +30% of 230% if EE works OT What is the rule in case of absences? o Employee on LOA with pay entitled to benefit

HOLIDAYS Which employers are not required to pay this holiday pay? o 1. Government and GOCC employees o 2. Domestic helpers o 3. Those in personal service of another o 4. Managerial employees

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Employee on LOA without pay on the day immediately preceding a regular holiday not entitled to holiday pay unless he works on such regular holiday o If immediately preceding day to a holiday is a non-working day or is the scheduled rest day entitled to benefit only if he worked on the day immediately preceding the rest day or non-working day What if there are successive regular holidays, like Maundy Thursday and Good Friday? o To be entitled to two successive holidays, employee must: 1. Be present on the day immediately preceding the first holiday 2. Or be on paid leave o If he absents himself on the day immediately preceding the first holiday, what is the consequence? He may not be paid for the two holidays What is the remedy? He can go to work on the first holiday. What is the rule if there is temporary shutdown or cessation of work? o If regular holiday falls in period of temporary shutdown (ex. inventory, repair, etc.) Entitled to benefit o If it falls in period where operations cease due to business reverses, as authorize by Sec. of Labor No holiday pay What is an ECOLA? Is the employee entitled to it during a legal holiday? o Emergency Cost of Living Allowance, which is not part of the regular wage o Yes, whether or not the employee works on a legal holiday, he is entitled to ECOLA What are the legal holidays? o New Year o Maundy Thursday

o Good Friday o Araw ng Kagitingan (April 9) o Labor Day (May 1) o Independence Day (June 12) o National Heroes Day (Last Sunday of August) o Bonifacio day (November 30) o Eidul Fitr o Eidul Adha o Christmas Day o Rizal Day (December 30) What is the holiday economics rule? o For the following seven holidays, the holiday is moved to the nearest Monday Araw ng Kagitingan Labor Day Independence Day National Heroes Day (becomes Last Monday of August) Bonifacio Day Rizal Day Ninoy Aquino Day Special holiday

LEAVES What is the right of Service Incentive Leave? o Every employee who has rendered 1 year of service is entitled to SIL of 5 days o To whom will SIL not apply? 0. USUAL (Government/GOCCs, domestic workers, those in personal service of another, managerial, field, contractual/commission/end-result) 1. Those already enjoying this benefit 2. Those with Vacation Leave (VL) with pay of at least 5 days 3. Those in establishments with less than 10 employees

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4. Establishments exempt by the Sec. of Labor, after considering viability or financial condition of the establishment o (N.B. There are actually just three categories: a) those who already grant it, and b) those who cant grant it, c) usual) What is the prohibition as to benefits granted in excess of what is provided herein? o It cannot be the subject of arbitration or any court/admin action Is VL or Sick Leave required to be given? o No, it is not required by law. It is dependent on employer policy and CBAs. o These are voluntary benefits. What are required by law (mandatory benefits)? o 1. SIL o 2. Paternity Leave (RA 8187) o 3. Maternity Leave (SSS Law) o 4. Solo Parent Leave (RA 8972) o 5. Battered Woman Leave (RA 9262) o Does the less than ten employees rule apply to Paternity or Maternity Leave? No. It only applies to SIL. Why? Kawawa naman sila, nanganak na nga, papapasukin mo pa. It doesnt matter how many employees are there. What happens to unused SIL? o Converted to cash. Maternity Leave: o Who is covered? Female who has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage o What does she receive? 100% of average daily salary for 60 days 100% of average daily salary for 78 days, if caesarian o What are the conditions?

The employee must notify the employer of her pregnancy and this information is transmitted to the SSS Full payment is advanced by the employer within 30 days from filing the maternity leave application o Can the woman recover sickness benefits concurrent with maternity leave? No. o When does the SSS reimburse the employer? Upon satisfactory proof that the employer has advanced to the employee the benefits required o How many times can maternity leave benefits be availed of? First four deliveries or miscarriages o What is the consequence if the employer fails to turnover to the SSS the employees contributions, or fails to inform the SSS of her pregnancy? Employer pays damages to the SSS equal to what the employee would have been entitled to o Is the identity of the father material? No, it doesnt matter who the father is Paternity Leave: o What is given? Seven days of paternity leave with full pay to married male employees in the private/public sectors Are these 7 working days or 7 calendar days? No. 7 calendar days. o What are the conditions to entitlement? 1. Married male employee and is employed when the child is born 2. Cohabiting with his legitimate spouse when she gives birth or suffers miscarriage 3. Applied for paternity leave according to rules 4. Wife gave birth or suffered miscarriage Is abortion included? o No, not anymore. o For how many deliveries is paternity leave valid?

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First 4 deliveries What is Solo Parent Leave? o A solo parent employee who has rendered service for at least one year shall be given parental leave of not more than 7 working days o What does a solo parent cover? Women who gave birth as a result of rape Widow or widower Spouse separated legally or de facto for at least one year o What must the solo parent prove? He or she is left alone with responsibility of parenthood o What must he or she show? Solo parent identification card issued by a representative of the DSWD What is the Battered Woman Leave (BWL) under RA 9262? o A victim of physical, sexual, or psychological violence can apply for the issuance of a protection order. In addition to other reliefs, if she is an employee, she is entitled to a paid leave of up to 10 days in addition to other leaves. o Is it extendible? Yes, when necessity arises as specified in the protection order. o What is a pre-requisite? Must submit certification from punong brgy, kagawad, prosecutor, or clerk of court that an action under RA 9262 has been filed and is pending o Is use of the 10 day leave mandatory? No. Its up to the woman employee. It can be used for days where she attends to medical and legal concerns. Are unused leave days convertible to cash or cumulative? No. o What if the employer refuses to implement BWL? Liable under RA 9262.

How is recovery of BWL benefits enforceable? Under Art. 129, with the Regional Director (same provision as simple money claims)

SERVICE CHARGES What is the rate of distribution for service charges collected by establishments? o 85% to all covered employees distributed equally among employees, regardless of position or rank How often is distribution? Once or twice a month o 15% to management What is the integration rule? o If service charge is abolished, the share of covered employees is considered integrated in their wages What is covered by the 15% management share? o To answer for losses and breakages, or it can be distribution to managers at managements prerogative
TH

13 MONTH PAY What is the rule on 13 month pay? o It is required by law. It is not part of the basic wage, but it is based on that wage. th What is the value of the 13 month pay? o It is 1/12 of total salary earned within a calendar year. Are other bonuses included in the base rate? No. Just the regular wage. When is it paid? Not later than December 24 What is not part of the basic salary base? 1. Cost of living allowances 2. Profit-shares 3. All allowances and monetary benefits not integrated in the basic salary th Who is entitled to 13 month pay?
th

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All rank and file employees regardless of designation and status as long as they worked at least one month in that year o And irrespective of method of payment (even piece-rate employees) o What about managerial employees? Excluded by law, but can be included by stipulation What if an employee is terminated or has resigned before payment th of 13 month pay? o Entitled to 1/12 of what he has earned anyway Which employers are exempted? o 1. Government/GOCCs (usual) o 2. Employers of household helpers o 3. Employers of those under the personal service of another o 4. Employers of those paid on commission, boundary, or endresult basis Except: piece-rate workers, who are covered What is the rule on commissions? If the commissions may properly be considered as part of the basic salary, then th its covered by 13 month pay If its not part of the basic salary, its excluded th o 5. Those already paying 13 month pay or its equivalent Check intent of the bonus to see if it is credited as in th lieu of the 13 month pay or if its additional o N.B. This is almost the usual enumeration + those who already get an equivalent. Managers may or may not be given (see above). th o EXCEPT field workers are supposed to be given 13 month pay, because this provision is not re: hours of work. What if someone has multiple employers? th o Can get 13 month pay from all private employers, regardless of total earnings

Govt, GOCCs Managers

Govt, GOCCs Managers

Farm tenancy/ leasehold Cottage industries BMBE DH

Govt, GOCCs Managers

Govt, GOCCs Managers

Govt, GOCCs Managers (may still be given)

Field personnel DH Supported family members Personal service Paid by results

Field personnel DH Supported family members Personal service Paid by results Only up to 5 EEs

Field personnel DH Supported family members Personal service Paid by results Only up to 10 EEs

Field personnel DH Supported family members Personal service Paid by results Only up to 10 EEs Exempted by Labor Sec Already have SIL With paid VL of at least 5 days

DH Supported family members Personal service Paid by results

Already th have 13 MP

Summary of exemptions: Hours of work NSD Wages Holiday pay SIL 13 MP

th

Compulsory OT work War or emergency Prevent loss or imminent danger Urgent work on equipment Prevent loss or damage to perishables Completion of work to avoid prejudice Favorable weather conditions

Compulsory rest day work War or emergency Prevent loss or imminent danger Urgent work on equipment Prevent loss or damage to perishables Completion of work to avoid prejudice Favorable weather conditions Abnormal pressure to work due to special circumstances

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WOMEN WORKERS What is the non-discrimination rule? o Cannot discriminate against a woman as to terms and conditions of employment solely due to her sex o What are the reliefs available? Criminal action Civil action for money claims, with damages, and other affirmative reliefs Are these mutually exclusive? No. They proceed independently of each other. Are stipulations against marriage allowed? o No. An employee cannot be hired with the condition that she does not get married, or be terminated due to marriage What are the prohibited acts? o 1. Deny a woman employee benefits here or discharge her to prevent her from enjoying the benefits o 2. Discharge a woman due to pregnancy, or while on maternity leave o 3. Discharge or refuse to re-admit a woman after leave What is the special rule on classification? o Woman who is permitted or suffered to work, with or without compensation in night clubs, massage clinics, bars (and similar establishments), if under effective control/supervision of the employer considered an employee of such establishment o For what purposes? Labor and social legislation Who may be a victim of sexual harassment? o Either a male or female When is sexual harassment committed? o When a person demands, requests, or requires sexual favor from another Must it be put in an oral or written statement? No, it can be by inference o Who may commit sexual harassment? o

Anyone with authority, influence, or moral ascendancy over the person harassed Where may it happen? In work, training, or education environment What if the person harassed refused the demand, request, or requirement? It does not matter. Its still sexual harassment.

MINOR WORKERS Where can minors from 15 to below 18 be hired? o For any employment, as long as it is non hazardous. A person has to be at least 18 years old to perform hazardous work o Give examples of hazardous workplaces: Exposed to contaminants Construction, logging, fire-fighting, mining, mechanized farming, deep sea fishing, etc. Handling explosives or pyrotechnics Using heavy equipment or machinery Using power tools o What are the allowed working hours? Not more than 40 hours a week, no more than 8 hours a day No work from 10 pm 6 am N.B. in other words, no OT, no night shift Can children below 15 be employed? o No, except under very strict conditions o What are these exceptions? 1. The child works directly under the sole responsibility of his/her parents/guardian and where only members of the family are employed, and as long as: The childs safety, life, health, or morals are not endangered Does not impair childs normal development

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Parent or guardian gives primary/secondary education to the child 2. Child actors or talents, as long as: Employment contract is concluded by parents or guardian with express agreement of child, and if possible, DOLE approval The childs safety, morals, health are not endangered Employer takes measures to prevent child exploitation or discrimination taking into account remuneration, duration, and working time Implement continuing skills and training acquisition program for the child o What is required for these two situations? The employer must secure a work permit from DOLE o What are the allowed working hours? No more than 20 hours a week, no more than 4 hours a day No work from 8 pm 6 am What does RA 7323 provide? o Employers can hire at least 50 students during vacation period and pay those students only 60% of their wages, and 40% through education vouchers to be paid by government o But the wages must meet the legal minimum What are the prohibitions on employment of children in certain advertisements? o Cannot be employed as model in advertisements for alcoholic beverages, tobacco, gambling, violence, or pornography What are the worst forms of child labor? o 1. Slavery o 2. Prostitution o 3. Production and trafficking of dangerous drugs and prohibited substances o 4. Work which by its nature or circumstances in which it is carried is hazardous or harmful to health, safety, morals of children

EMPLOYMENT OF HOUSE HELPERS What are house helpers? o Those providing services in the employers home which is usually necessary and desirable for the maintenance and enjoyment thereof Includes ministering personal comfort and convenience of the members of the household Including family drivers o Is a driver, laundrywoman, houseboy, etc. who works in company staff-houses a house helper? No. He or she is an industrial worker and must be paid the industrial rate o What is the criterion? Personal comfort and enjoyment of the family of the employer in the home of said employer What benefits are accorded house helpers? o 1. Minimum wage o 2. Cannot be assigned to work in commercial, industrial, or agricultural enterprise at a wage lower than what is prescribed o 3. What if the house helper is less than 18 years old? If the house helper is less than 18 years old, the employer must afford opportunity for at least elementary education Cost of education is part of the helpers compensation o 4. Must be treated in just and humane manner. No physical violence must be used. o 5. Free lodging, board, and medical attendance o 6. Upon termination, given a written statement of the nature and duration of the service and his/her efficiency as house helper (employment certification) o 7. Contract does not exceed 2 years (renewable) o 8. Funeral expenses paid by employer if house helper has no relatives with sufficient means in the place What are the hours of work allowed? o Not to work for more than 10 hours a day

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If the house helper agrees to work OT and there is additional compensation, it is permissible What is the vacation privilege? o Right to 4 days vacation each month with pay. Failure to use this does not allow accumulation the helper can just get monetary value. What if the period of household service is fixed? o Cannot be terminated before end of the period without just cause o What if a house helper is unjustly dismissed? Paid compensation already earned plus that of 15 days indemnity o What if a house helper leaves without justifiable reason? Forfeits unpaid salary not exceeding 15 days What if the period of household service is not fixed? o He must give 5 days notice before intended date of termination

EMPLOYMENT OF HOME WORKERS What is a homeworker? o Any person who performs industrial homework for an employer, contractor, or sub-contractor Under what circumstances are persons considered employers of homeworkers? o 1. Delivers or causes to be delivered any goods to be processed or fabricated in or about a home and then returned or disposed of or distributed according to his directions o 2. Sells goods to be processed or fabricated in or about a home and then re-buys them after such processing Who can be deemed an employer of homeworkers? o Any person, natural or artificial o For his account or benefit, or on behalf of a non-resident o Directly or indirectly Can industrial home workers form a labor organization? o Yes. What are the conditions before there can be deductions from a homeworkers income, due to loss, damage, or destruction to materials?

1. Homeworker is clearly shown to be responsible for the loss 2. Employee is given reasonable opportunity to explain 3. Amount of deduction is fair and reasonable and not exceed loss/damage o 4. Deduction is made such that it does not exceed 20% of the earnings in a week o N.B. this is the same rule for breakages for regular employees What is the nature of the liability of the employer vis--vis the contractor and the latters homeworkers? o Same as in an independent contracting arrangement. The provisions for homeworkers must be inserted in the contract. o The employer is held liable when there is failure to pay wages by the contractor. Prohibitions for homework: o 1. Explosives, fireworks, similar articles o 2. Drugs and poisons o 3. Articles where processing involves exposure to toxic substances

o o o

APPRENTICES AND LEARNERS What is an apprenticeable occupation? o Any trade, form of employment, or occupation which requires more than 3 months of practical training on the job supplemented by theoretical instruction o Involving a contract between the apprentice and employer, on an approved apprenticeable occupation by the TESDA Who may employ apprentices? o Only employers in highly technical industries AND approved by the DOLE Who can qualify as an apprentice? o 1. At least 14 years of age o 2. With vocational aptitude and capacity for appropriate tests o 3. And possesses the ability to comprehend and follow written/oral instructions What is the maximum period of apprenticeship? o 6 months Can there be payment of less than the minimum wage?

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Yes, but not below 75% and it must be pursuant to an approved apprenticeship program approved by the DOLE What if there is no prior approval of the DOLE? o The apprentice is in fact a regular employee. What are the possible venues of the program? o 1. Entirely within the sponsoring firm o 2. In a DOLE training facility o 3. In a training facility, and then in the sponsoring firm What is the remedy for violation of apprenticeship agreement? o Complaint filed with DOLE o Appeal within 5 days from receipt of decision to Sec. of Labor What the conditions for tax deductibility of training costs? o 1. The program must be approved by the DOLE o 2. The deduction must not exceed 10% of direct labor wage o 3. The apprentices are paid at least the minimum wage o How much can be deducted? of value of labor training expenses When can apprentices be hired without compensation? o When training on the job is required by the school or curriculum, or as a requisite for graduation/board examination Are students who work for the school for free education deemed employees? o No, as long as they are given real opportunities to finish their chosen courses o What if the student causes damage to a third person in the course of these duties? The school will be deemed an employer. The school is only not deemed an employer as regards labor regulations, rest periods, etc. What are learners? o Persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable o And which may be learned through practical training on the job in a relatively short period of time, not exceeding 3 months When can learners be hired? o 1. When no experienced workers are available

2. Necessary to prevent curtailment of employment opportunities o 3. Does not create unfair competition in terms of labor costs or standards Contents of learnership agreement? o 1. Names and addresses of learners o 2. Duration of learnership period (at most, 3 months) o 3. Wages and salaries of learners, which must be at least 75% of minimum wage What if the learners are in piecework? Must be paid in full for the work done o 4. Commitment to employ the learners if they want as regular employees after the period o When are learners automatically deemed regular employees? When they have worked for at least 2 months and then training is terminated by the employer before the end of the stipulated period, through no fault of the learner Contrast: Learnership Semi-skilled job or industry Learnable in less than 3 months No such requirement Commitment to hire after termination of period

Apprenticeship Highly skilled or technical jobs Not learnable in less than 3 months Approved by DOLE No commitment to hire after termination of period (no certainty it will be learned)

HANDICAPPED WORKERS Who are handicapped workers under the LC? o Those whose earning capacity is impaired by age or physical/mental deficiency or injury, disease, or illness o What if the disability is not related to the work performed? Then the employee will not be considered a handicapped worker

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Who are handicapped persons under RA 7277 (Magna Carta for Disabled Persons)? o Those suffering from restriction or different abilities as a result of mental, physical, or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being What is the rule on non-discrimination? o No disabled person can be denied access to opportunities for employment o If qualified, must be hired under same terms, privileges, benefits, etc. What are the reserved positions for handicapped workers? o 5% of all casual, emergency, and contractual positions in DSWD, DOH, Dep Ed, and other government agencies engaged in social development o What if suitable employment for handicapped persons cannot be found through open employment? State endeavors to provide sheltered employment o Can handicapped workers be hired as learners or apprentices? Yes, if their handicap is not such as to effectively impede performance in the job for which they are hired What are the incentives given to employers of handicapped persons? o 1. Tax deduction from employers gross income of up to 25% of amount paid as salaries to handicapped workers Must present proof of employment And DOLE certification of workers disability o 2.Tax deduction from employers gross income of up to 50% of direct costs for improvement of facilities for handicapped workers But does not include improvements under BP 344 (Accessibility Law)

TERMINATION OF EMPLOYMENT

EMPLOYER-EMPLOYEE RELATIONSHIP Why is it important to determine EER? o It determines the legal relationship between the parties, and their rights and obligations. How do you determine whether there is an EER? o Four-fold test 1. Selection and hiring 2. Payment of wages 3. Power to dismiss the employee 4. Control over how the employee performs his functions o Does it matter what kind of system for payment of wages is present (e.g. by compensation)? No. EER is not determined by basis of employees compensation, because wage is paid no matter how designated. o What is the most important? Control (#4) o How do you determine when there is control? Determine how the employee performs the functions (manner and means used), not just the end product There is no control under the EER if the employer just says the end product or goal o What about employees working outside the facilities, are they still under control of the employer? They still can be under the control of the employer. Ex. taxi cab drivers. Distinguish giving details on the work, supervision on the manner of doing the work: o Instructions, no matter how detailed, may not actually indicate control. If the details pertain to the product itself, then you are not controlling the work. (Ex. you say that you want a barong

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that has gold buttons, long sleeves, made of a certain tela, etc.) o If the details pertain to the work itself, there is control. o N.B. So reporting about collections, or progress of the chair being constructed these reports are really just about the end product, and do not indicate control. So even reports do not always indicate control. o What if the alleged employee works more or less at his own pleasure and is not subject to definite hours/conditions of work, and is compensated for the end result only? No EER. o X was an insurance agent required to solicit business exclusively for Company Y. Is this control? It may seem like it, but its not. In this case, the exclusivity clause stems from an Insurance Memo Circular, to protect the public. There was no intention by Corp Y to exercise control over the method and manner by which X sells insurance. Should the power be exercised? o No, need not be. Just as long as its available. o How can you prove it if its not exercised? If there is a written agreement, you can point to certain provisions. o What if there is no written contract or any proof of the instructions given? Usually you can prove it by the fact that he is within the company premises. That his presence is required by the company, and he is given an ID, are strong indicators. Working in a place controlled by the employer is a good indicator. In the above examples, there are only two parties. But if there are multiple parties involved and there are multiple suspected employers, how do you determine who the employer is? o Control is the strongest factor. For instance, A hires, B fires, C pays, and D controls. D is the employer. What is the subordinate test?

Economic Relations Test existing economic conditions between the parties are used to determine whether EER exists: 1. Payment of pag-ibig contributions 2. Payment or remittance of contributions to the State Insurance Fund 3. Deduction of withholding tax 4. Deduction or remittance of SSS contributions o W/N the employee is dependent on the alleged employer for his continued employment in that line of business What is the value of ID cards? o Its not just a security measure but it usually mainly identifies the holder as a bona fide employee of the corporation. What are the special cases? o 1. No EER between students and their school if there is written agreement that the student works in exchange for free education and the student is given real opportunity to finish the course o 2. There is EER between resident physicians and training hospital UNLESS there is training agreement between them and it is duly accredited by the government

PROBATIONARY EMPLOYMENT Do all regular employees have to start as probationary employees? o No. There is only probationary employment when there is an agreement for probationary employment. o But for probationary employees, after the lapse of the period, he/she becomes a regular employee. What should the agreement contain? o 1. Apprise employee of the nature of employment o 2. Inform employee of standards to be met to become regular How long should the probationary period be? o Six months. It cannot go beyond the six month period. It is non-extendible. o What are the exceptions? 1. Covered by an apprenticeship program stipulating longer period

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2. Voluntary agreement of parties (esp. when the nature of work requires longer period) (Mariwasa v. Leogardo) 3. Employer gives employee a second chance to pass the standards test What will make the probationary employment invalid? o If the employer did not give reasonable standards for the employee to meet within that period. o The standards have to be given at the start of the employment. o What is the legal effect of this? The employee becomes regular. Before you reach the end of the probationary period, can you still terminate the employee on the grounds for which a regular employee may be terminated? o Yes. When will the employee become regular? o Evaluate within the period. o If there is no evaluation and he is hired beyond the period, then he becomes a regular employee. You start a probationary work agreement, and the six month period ended. The employee continues working. There is no evaluation yet. What is the legal implication? o He becomes a regular employee. o At what point? As soon as you go beyond the six month period. How do you count six months? o There are conflicting decisions, but Atty. MM prefers the same day from the sixth month from when you started employment (Jan. 3 July 3) o Although there is another case that says 180 days. Can a person who has been promoted be probationary again? o No. Only probationary as to the position, but you can never be probationary as to employment in general again. What are the requirements for private school teachers to acquire permanent employment? o 1. The teacher is full-time o 2. Must have rendered three consecutive years of service

3. The service must be satisfactory

KINDS OF EMPLOYMENT Regular employees When is an employee regular? o When he performs tasks that are usually necessary and desirable to the business. How does usually necessary and desirable here compare to directly related in contracting arrangements? o Necessary and desirable here applies to class of employment, and directly related in contracting only relates to whether there is an employer-employee relationship. A worker who performs work usually necessary and desirable to the company becomes an employee of the company. T/F? o False. The conclusion is off-tangent. o You use the necessity and desirability test to determine what class of employee he is, and not whether or not he is an employee. o To determine employer-employee relationship, you apply the four-fold test. There is a company with security guard A, and security guard B. Can it be that A is a regular employee, and B is not because he was hired by a contractor? o Yes, this is legally possible. o But isnt the nature of the work of the employee the determinant? Yes. But you determine the nature of his work in relation to the contractor. How do you determine if a particular work is usually necessary and desirable, hence leading to regular employment? o Look at the nature of the business of the employer o What if an employee is tasked to perform a job for at least one year already? Performance of a job for at least a year evidence that the job is necessity and indispensable for business

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How can a regular employee be terminated? o For just or authorized causes only

Remember the general rule: you are regular if you are not covered by a special agreement. If you are hired but not placed under a special category, you are regular.

Casual employee Seasonal employees Who is a casual employee? o One doing work not usually necessary or desirable to the employer, and is not project nor seasonal When do they become regular employees? o After one year of service, continuous or broken. o He becomes regular as to the activity for which he is employed and is regular as long as the activity exists o When does one year period vest? NOT your one year anniversary. It must be cumulative period of service of one year. When will seasonal employees become regular? o After repeated rehiring. What if after harvesting season, they still work FOR the employer but doing other seasonal tasks (ex. harvesting then the next season, drying)? o They become regular. o If you are employed throughout the year, doing different tasks, although all are seasonal, you are regular. What is the status of seasonal workers who are called to work from time to time and are not made to work during off-season? o They are not separated from service. They are considered on leave until re-employed. They are seasonal workers. o But if they have repeatedly done that job for years, they become regular.

Fixed term employment What are the requisites? o 1. They should have agreed upon a time frame for when work must be done How is this different from project? Fixed term is time bound, project is task bound. Fixed term does not care if the project or job is done. o 2. The agreement was voluntarily entered into by parties Consider level of parity o 3. Employment scheme is not designed to circumvent the law/Labor Code What if the job is usually necessary and desirable to the business of the employer? o The employee is deemed regular If all the employees are fixed-term, it is proof of illegality, because the employer is seemingly circumventing the law. Is there a conversion? o If you work beyond this period, you become regular

Project employees What are project employees? o They are hired for a specific undertaking or project. o His employment ends after the project ends. o They cannot be terminated without just cause before the project ends. o What is the day certain rule? It ends on a certain date, but not an exact date just upon completion of project If there is a construction project ongoing, can we assume the construction workers are project employees? o No, it doesnt follow. What is an example of a project within a company that is different from its main line of business? o Mango Orchard owner hiring workers to build a water pipeline for irrigation.

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When can project employees become regular employees? o Working beyond the project o Repeated rehiring, for the same task or tasks that are necessary for the business o Is a second project a repeated rehiring? No, its the first rehiring. A third project will be the first instance of repeated rehiring. Is the date material? o Not always, because it can also be another determinant, such as the completion of the project, even if the date is not determinable. o What if there is no such given standard? Considered a regular employee. Is a long gap between projects material to determine whether you can be converted to a regular employee? o No, lapse of time is immaterial. As long as there is repeated rehiring. o What if the period is more than one year? Again, time is immaterial.

CONTRACTING ARRANGEMENT Whats a contracting arrangement? o There are three parties: the principal, the contractor, and the employee o There are two contracts between the principal and contractor, and the contractor and the employee What is the relationship between the principal and the worker? o The principal is the indirect employer. o Principle why this is so: the work is always for the principal. It redounds to his benefit. N.B. This does not refer to all situations where there is a complicated process/production line, where ultimately, what is produced by employer goes to the principal. For instance, some outsourcing transactions are not contracting arrangements. Just take note of this.

The principal has no liability to the employee if you have a legitimate contracting arrangement. T/F? o False. The principal is solidarily liable for failure to pay wages. What are the rights of the parties in a legitimate contracting arrangement? o The principal is the indirect employer. o Contractor is the direct employer. o Employee is, well, the employee. In an illegitimate contracting relationship? o Principal is the direct employer o Contractor is the agent of the principal o Employee is still the employee How different are the responsibilities of the principal is the two relationships? o Legitimate principal is solidarily responsible if the employercontractor cannot pay the wages due o Illegitimate principal is principally liable for the wages When is there solidary liability? o In EITHER contractual arrangement. o But in the illegitimate contractual arrangement, the solidary liability is not as important, because they are targeting the principal usually. But it is wrong to say that the contractor is not solidarily liable. It is solidarily liable; otherwise it will be in a better position than the legitimate contractor. But for all intents and purposes they just go to the principal anyway. What is the difference though? o In legitimate labor contracting, the principal is only liable if the contractor fails to pay wages. NOTE: Under Art. 106, the principal is ONLY liable for failure to pay wages by the contractor for work performed, but the principal is NOT their employer for any other purpose. Nothing else. Not even backwages stemming from illegal termination. Note: Under Art. 109, solidary liability is established between principal and contractor. In 109, there is no difference between legitimate and illegitimate contractors, as to solidary liability.

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In illegitimate labor contracting, the principal is employer even beyond this single circumstance. It is, for all intents and purposes, just like any other employer. It is liable not just for payment but for responsibilities of the employer. o If the illegitimate contractor already paid the wages, is the principal still liable? Not anymore, because the principal/employers agent has paid. What if there a violation of the Labor Code? o For legitimate contracting arrangement, the principal is generally not liable, unless it has participated or connived in the violation. Remember, the principal is just liable under one circumstance: payment of wages for work performed. Nothing else. o Take note of Rosewood case, which laid down that there must be finding of fault in the principal to hold it liable for violation of Labor Code. What is a legitimate contracting arrangement? o 1. The contractor has sufficient capital o 2. Employees do not perform work directly related to the business of the principal o 3. Contractor has control When does it become a labor-only contracting arrangement? Does it have to violate all three grounds or just one? o Do not be confused by the structure of the definition in Dept. Order 18-02. You go back to Art. 100. One disqualification out of three is the more reasonable interpretation. o For legitimate contractor you have to meet ALL requirements. o For illegitimate you miss just one, you are illegitimate. o N.B. In the old rules, there was a definition of an independent contractor. We only have the definition of a labor-only contractor. When will you consider the principal the direct employer of the employee? o 1. Labor-only contracting arrangement 1. Principal actually controls the employees 2. Contractor does not have sufficient capital

3. Employees perform work directly related to the principals business 2. Commission of a prohibited activity What are these prohibited activities? Those mentioned under DO 18 What in particular? 1. Contracting out a job when not done in good faith resulting in termination of regular employees and reduction of work hours or affects bargaining unit 2. Contracting out a work with a cabo a person or group which is disguised as a labor organization but supplies workers to an employer (with or without consideration) 3. Exploitative acts: o Requiring contractual employees to perform tasks of regular employees o Requiring signing of antedated resignation, blank payroll, waiver of labor standards, or quitclaim o Requiring signing of contract fixing employment period to term shorter than the principal-contractor contract (unless the contract is in phases) 4. Contracting out a job through in-house agency which refers to a contractor owned, managed, or controlled by the principal and operates solely for the principal 5. Contracting out a job directly related to principals business due to strike/lockout, actual or imminent 6. Contracting out a job to interfere with right to self-organization of employees Summarize! 1. Labor-only 2. Contracting in bad-faith

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3. Contracting with a cabo 4. Contracting with an in-house agency 5. Contracting due to strike or lockout 6. Contracting that constitutes ULP So a contracting arrangement may be legitimate, but if there is the commission of any of these prohibited activities, the principal becomes the direct employer. Do you need proof that the principal connived with the contractor in doing any of the prohibited activities? NO. Not under DO 18. So the principal has to ensure that the contractor is a good employer to its employees, otherwise you become liable as a principal. What is the rule regarding lack of registration? o It only creates a presumption that the contractor is a labor-only contractor What is the rule on posting bonds? o The principal may require the contractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees if the contractor fails to pay them Can an individual be an independent contractor for himself? o Yes. (Remember the Jay Sonza case)

usually necessary nor desirable For what can you be terminated? o For just and authorized causes

What are the differences? Just cause Due to EEs actions No separation pay unless based on compassion Due process requires notice (twonotice requirement) and hearing Dismissals effectivity determined by the ER Authorized cause Due to independent reasons (e.g. business reasons) Separation pay required by law, except for closure due to serious business losses No hearing; just notice given to EE and DOLE 30 days before separation Dismissal effective 30 days after notice

TERMINATION OF EMPLOYMENT Security of tenure of the following EEs: Employee type Regular Project Seasonal Fixed term Probationary Security of tenure duration Duration of employment Duration of the project Duration of the season Duration of the term During probationary period, because they can only be terminated if they do not meet the standard, or for just/authorized causes None, because their work is not

What are just causes? o 1a. Gross misconduct What is gross misconduct? It must be serious in nature Give an example? Employee attacks another employee Causing serious disruption in the workplace during business hours Sexual harassment (Libres) Falsification of time card (Felix) What if it happens outside company premises? It can be (examine the circumstances) Must it be habitual? No need. o 1b. Willful disobedience A single act can fall under both willful disobedience and neglect of duties (ex. failure to deposit money that employee needs to deposit)

Casual

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Willful disobedience a single act is enough There is willful intent to not follow authority. It is a defiance of authority. What is the more accurate term for willful disobedience? Insubordination. Thats why it is called willful. Must the disobedience be gross? No, as long as its willful. Look not at the effect, but at the act of disobedience. (ex. it doesnt matter how much is involved) Must it be habitual? No. Even a single act of disobedience is enough. What is the difference between disobedience and neglect? Disobedience is an act contravening the employers orders Negligence is an omission, failure to exercise diligence What must be the character of the order or instruction of the employer? 1. Reasonable and lawful 2. Sufficiently known to the EE 3. In connection with the EEs duties What if an employee refuses to follow order for transfer of assignment or location? Its willful disobedience, unless the EE proves that it was motivated by discrimination or bad faith, or it is actually a demotion 2. Gross and habitual neglect Obviously there are past infractions. What is gross neglect? Absence of diligence that an ordinary prudent man would use in his own affairs

Give an example. The rule is to make a deposit of the collection everyday and the employee here did not make such deposits consistently Failure to fulfill reasonable work standards or reasonable work assignments Abandonment of job: 1. Failure to report for work without just reason, and 2. Clear intention to sever ER-EE relationship There has to be habitualness here. It also has to be gross (so look at the effect). What must be the nature of these past infractions? Obviously the employee was not terminated for these causes (because they are not enough to terminate him, but the cumulativeness of such will) Must he have been punished for these? No need. But its better for employer to penalize the employee for these past infractions because this is proof that there is habitualness involved, for evidentiary purposes. 3. Fraud or willful breach of trust To whom is this applicable? Only to those holding positions of trust and confidence Ex. managerial employees or nonmanagerial but those holding funds (like cashiers) 4. Commission of a crime or offense against the employer, his representatives, or immediate family Up to fourth civil degree 5. Analogous causes

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Can an employee be terminated from being found positive in random drug testing? Yes. What about if he is found to be HIV positive? No. How do you terminate an employee for just cause? o There is a 2-notice requirement: 1) notice charging employee of particular acts/omissions that may cause dismissal 2) subsequent notice of the employers decision What does the first notice contain? o First notice (1) apprises the employee of the ground for termination and that there is intent to terminate, and that (2) the employee is given opportunity to submit written explanation within a reasonable period. o What must be included? 1. Facts constituting the offense 2. The Offense charged 3. The possible termination o How much time is given to the employee? Reasonable time As long as the employee has enough time to get evidence and present his defenses. What happens after? o The employee presents his defenses and rebuts the allegations against him o There will be a meeting or conference, or at least the chance the present his evidence and rebut the employers allegations o Must there be a meeting or conference at all times? No. The law says ample opportunity to be heard must be given. There is no reference to face-to-face confrontation. But the rules require a meeting or conference. The SC said the law only requires ample opportunity to be heard, and this can be had even without face-toface meeting.

When must it be required? 1. When the employee requested for it in his explanation 2. When company policy requires it 3. There is an issue that requires face-to-face confrontation depending on the issue involved Ex. habitual tardiness is the issue no need for hearing or conference, because you just check the records (unless of course the employee requests for it) After this? o If there is ground to terminate, give SECOND notice o What are contents? 1. Circumstances are considered 2. There is sufficient ground to establish the offense o Is there a waiting period for termination? No, it is immediate. When is preventive suspension allowed? o Allowed if the employees continued employment poses a threat to the life or property of the ER or co-workers. Note that it is an incident of the investigation and is not the penalty per se. o What is the maximum period? 30 days o What if the preventive suspension exceeds 30 days? It is deemed as constructive dismissal Or the ER will be required to pay the EE for the days beyond 30 What are authorized causes? o 1. Redundancy o 2. Retrenchment o 3. Closure of business What is the redundancy? o Superfluity of the need to have that employee perform such duty o What are labor saving devices?

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Installation of automated means or the like that would render the employee superfluous o Who do you terminate? Use standards like seniority, efficiency, or nature of contract o Can redundancy be prompted by the contracting out of services? Yes, unless the CBA provides otherwise (Serrano) o Do you need to have losses for redundancy? No. What is retrenchment? o Termination due to losses, reversals, economic downturns, etc. o What are the requirements? 1. Undertaken to prevent losses 2. Losses are proven by sufficient and convincing evidence 3. Losses are actual and imminent 4. It is reasonably necessary and is likely to prevent expected losses Evidence must not only be about the past but ALSO about the future, to prove that you would not be able to recover o Do you need actual losses to retrench? Even if you have not incurred actual losses, but losses are certain and imminent unless you retrench, you can do so. Not just a projection, but one supported by evidence. o It must be a last resort. o How do you choose whom to terminate? You need to have a set of reasonable criteria or standards as re: who can be terminated. Many retrenchment programs have been invalidated due to the company not having set criteria. What is closure? o When the business closes, obviously, the employees can be terminated

It must be done in good faith. As long as not done to just circumvent the law (fake closure just to hire new guys). o What is the obligation of a purchaser of a business in a GF sale? No obligation to absorb the employees. o What about in mergers? There is succession to the employment contract, unlike in sale to another new entity, so the employees are absorbed. (Of course there can be declaration of redundancy, etc.) What is the procedure for authorized causes? o 1. Give notice to the DOLE and employees at least 30 days before intended termination Is this the same notice as for just causes? No. What is the role of the DOLE? To determine if it is justified. Do you have to wait for DOLE determination? No. After 30 days you can terminate If you have 100 employees, how many notices are needed? 101 100 for employees, 1 for DOLE with the list of employees o 2. Give separation pay: Separation pay given 1 month salary for each year of service, or 1 month salary (whichever is higher) N.B. for this ground and all the others, at least 6 months is equivalent to 1 year month salary for each year of service, or 1 month salary (whichever is higher) N.B. there is always separation pay

Ground Redundancy or labor-saving devices

Retrenchment

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Closure not due to serious losses

Closure due to serious losses

in retrenchment, even due to serious losses month salary for each year of service, or 1 month salary (whichever is higher) No separation pay

What is a constructive dismissal? o Unwarranted transfer or demotion, or unjustified action that results into involuntary resignation by the employee o Includes imposing floating status on employee beyond 6 months What if the employee is found to be suffering from disease and his continued employment will prejudice his health or that of his coemployees? o He can be terminated. o What is his separation pay? 1 month salary or month salary for each year of service, whichever is higher o What does the IRR provide? There must be certification from competent public health authority that the disease is incurable within a period of 6 months even with proper treatment What are the types of dismissal? o 1. Valid dismissal o 2. Illegal dismissal no valid ground o 3. Valid ground, but improper dismissal What is an ineffectual dismissal? o No longer applicable now. There is no such thing. If there is a valid dismissal, will the employee get anything? o Separation pay, if terminated for authorized causes o What if its for a just cause? You dont get anything, in general. o

Exception?
But you can get financial assistance if justice and equity require this. This is for those who are not

morally depraved (perverse mental attitude). Ex. terminated for repeated absences or laziness. What are the consequences of illegal dismissal? o 1. Reinstatement to former position without loss of seniority rights When is there no reinstatement? 1. If the position is not anymore available, 2. Strained relations between the ER and EE. Strained relations usually apply when the EE is holding a position of confidence. What is thus the alternative? Instead you get separation pay equal to 1 month for every year of service. o 2. Backwages Represents wages he should have earned How is it computed? From actual termination until the case for illegal termination is finally resolved Employee is hired on year 1 and is fired year 5. The case was resolved after 7 years, which is year 12. His salary was P10,000. How do you count? o (P10,000 x 13 x 7) = P910,000 o You calculate it against 13 months because you factor in the thirteenth month What about separation pay? o 1 month for every year of service: P120,000 o He rendered service for 12 years, not 5, because he does not lose seniority rights during the 7 years when the case was pending. o If you are entitled to other benefits, you also calculate it against the 12 years, not 5. o (But if wages increased to P12,000 in the middle of the period and there is proof, it becomes P12,000 x 12 = P144,000) Will the P10,000 monthly salary remain constant regardless of increases in salary of other employees or other factors that would increase salary?

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In practice, if you are a minimum wage worker during termination and the MW is adjusted, your salary will also be adjusted to reflect the increase. o If you are not a minimum wage worker, its difficult because there is no basis to assume you will get an increase. In that case, your compensation is fixed at P10,000. But if there is proof that your salary would have increased had you stayed, then apply this (ex. there is a CBA that should have included the employee, increasing the salary). What is the difference in calculation for backwages and separation pay, if there is an intermediate increase? o Separation pay use the latest amount to multiply against years of service, blanketly o Backwages for the years with lower salary, use that; for the years with higher salary, use the higher amount (e.g. P10,000 x 2 years; P12,000 x 5 years, etc.) What are the consequences of dismissal where there is valid ground, but defective procedure? o No reinstatement. o What else do you get? Nominal damages. P50,000 authorized cause P30,000 just cause o Backwages? No o Separation pay? No, if just cause. Yes, if authorized cause but its not because of the defective procedure, but it will arise from the authorized cause itself (which requires separation pay). o Employees that are illegally dismissed (second category) can get damages. T/F? Yes, you can get moral damages. This, however, is not a standard of the package, you have to prove it, and the courts have discretion. When are moral damages awarded?

Where there is BF or fraud in the dismissal, or acts contrary to morals, good customs, public policy When are exemplary damages awarded? Dismissal was done in wanton, oppressive, or malevolent manner o Are there actual damages in an illegal dismissal case? Before, the SC said full backwages is more exemplary than compensatory. But this is now inconsistent with the formula for dismissal with defective procedure. What is reinstatement pending appeal? o The L.A. will provide that there is reinstatement pending appeal upon finding in favor of the employee. Employer has two options: o 1. Actual reinstatement (without loss of seniority rights) o 2. Payroll reinstatement Reinstated in payroll but not required to report The Labor Arbiter decides that it was an illegal dismissal. It was appealed to the NLRC, and the NLRC said the dismissal was valid. What will happen to the reinstatement? o The employer can have the employee stop reporting to work. It is not a new termination because the NLRC simply effected the original dismissal. There must be notice. o What if the CA reversed the NLRC? Does the employee go back? There is NO reinstatement pending appeal. Reinstatement pending appeal only applies to Labor Arbiter. Since you go up to the SC through rule 45, its an appeal (unlike 65 which is a SCA), so the CA decision is not executory. o The SC finally reversed the CA, and said the dismissal was valid. What happens to the salaries/wages received pending appeal? No need to return them, whether actual or payroll reinstatement.

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1. If its actual reinstatement, no need to return the wages because he actually rendered service 2. If its payroll reinstatement, theres still no reimbursement because it was the employers choice that led to payroll reimbursement DIFFERENT SITUATION: What if the LA upheld the dismissal at first and the NLRC reversed? Is it reinstatement pending appeal? o No. It is a reversal of the Labor Arbiters case, but not a reinstatement pending appeal. There is reinstatement unless there is a TRO. o The employee can ask for a writ of execution from the NLRC that he be ordered back to work. There can be no payroll reinstatement because its not a reinstatement pending appeal. o What if the CA reversed, upholding the dismissal, and the SC upheld the dismissal too? The employee is not obliged to reimburse the salaries received in between LAs reversal by the NLRC and the NLRCs reversal by the CA. o What if the employer did not reinstate the employee between the NLRC and CA stages, even if there is a valid order? Can the employee recover backwages? Yes. Because even if he is ultimately dismissed, he still should have been reinstated in this period. This is a case where an employee who was validly dismissed can still recover backwages. o Can the NLRC issue a writ of execution after reversing the LA? Yes, because the nature of the decision of the NLRC attains finality after the MR fails. [Note that LA NLRC is appeal. Then it becomes final. The Rule 65 to the CA is an SCA, an is thus an original action. The appeal to SC is Rule 45 and is thus an appeal.] o But SHOULD the NLRC issue a writ of execution? The SC advises against it, because it might violate judicial courtesy.

Relate this with the calculation of backwages and separation pay above (in the year 5, year 12 example): o If there was reinstatement pending appeal somewhere there, the backwages period will take out whatever period was covered by the reinstatement pending appeal (because the employee was paid during that period). Bago v. NLRC: EE won an illegal dismissal case with a favorable decision with the LA. The LA ordered immediate reinstatement. The ER opted payroll reinstatement pending appeal. The NLRC reversed the decision of the LA and ruled that the dismissal was valid. The ER stopped payroll reinstatement. The EE elevated the case to the CA, and eventually the SC. The SC upheld the dismissal. Is the EE entitled to continued payroll reinstatement after the NLRC decision? o No. The EE is not entitled to continued payroll reinstatement. The decision of the NLRC on appeals from decisions of the LA is final and executory after 10 calendar days from the receipt thereof by the parties. (Note: the CA is operating under Rule 65 its an SCA, not an appeal) Salas v. Aboitiz: Can the award of backwages in illegal dismissal be limited even if there is a finding there is no just cause for dismissal? o Yes. AN exception to the general rule is where the EE is not entirely faultless, but the fault is not sufficient to justify termination. In such case, the EEs fault cannot be condoned, much less tolerated. The award of backwages in favor of the EE can be limited and the period for such award shall start from the date of the NLRCs promulgation of its decision, instead of the termination. Moreno v. San Sebastian College: A case where all the backwages were removed, and the EE was just reinstated because the EE was also at fault. (Same principle) Lansangan v. Amkor: In an illegal dismissal case, the LA dismissed the complaint for illegal dismissal as he found the dismissed employee guilty of dishonesty as a form of serious misconduct and fraud. The Arbiter, however, ordered the reinstatement of the EE without backwages as a measure of equitable and compassionate relief. The ER appealed the decision to the NLRC. The EE claims that he is entitled to reinstatement pending appeal. Is he?

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No. The provision in Article 223 says that the provisional remedy is given to an EE who secures an illegal dismissal declaration. The reinstatement aspect in 223 is for a decision that states the dismissal is illegal. In this case, the Arbiter did not find the dismissal illegal but merely ordered reinstatement for compassionate relief.

Resignation, temporary lay-off, retirement What is the general rule for voluntary resignation? o EE can terminate ER-EE relationship without just cause by service 1 month notice o What if there is no notice given? EE can be liable for damages o When is notice not required? 1. Serious insult by ER/representative on honor or person of employee 2. Inhuman and unbearable treatment 3. Commission of crime or offense by ER/representative to EE or family members 4. Analogous causes o The EE submitted an irrevocable resignation. Can it still be withdrawn? Yes, notwithstanding the appellation. o What if the ER already accepted the resignation? The withdrawal needs the ERs consent. What is the rule on floating status? o If the employer temporarily suspends business or the employee is in military service, or analogous causes o How long can it last? Up to 6 months o After which? ER must either reinstate the EE or retrench. If floating status lasts beyond 6 months, it can be deemed constructive dismissal. o How does an EE return to work? Give notice to ER within 1 month from resumption of business or cessation of military service

What is the rule on mandatory retirement? o Follow any provision in the CBA or retirement plan. The benefits must not be below those in the LC. What if there is no CBA provision or retirement plan? o An employee who has reached at least 60 years of age and has served at least 5 years may retire. o What is the mandatory retirement age? 65 years old. o What does the employee receive? month salary for every year of service (6 months fraction is one year) o What is 1/2 month salary? 15 days salary + th 1/12 of 13 month pay + Cash equivalent of not more than 5 days of SIL What is the change in age for mining workers? o Retirement is at least 50 years o Mandatory retirement age is 60 years Who are exempted from complying with retirement pay provisions? o Establishments employing not more than 10 employees or workers

SOCIAL LEGISLATION

Coverage, in general SSS 1. Employer any natural or juridical person with any business that hires services of another person 2. Employee person who performs services for an employer, receives compensation, and theres an ER-EE relationship GSIS 1. Employer the national government, subdivisions, including GOCCs and financial institutions with original charters 2. Employee whether elected or appointed

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Compulsory coverage

3. Self-employed considered ER and EE 1. All employees not over 60 years old and their employers 2. self-employed persons 3. domestic helpers not over 60 years old with monthly income of at least P1000 4. individual farmers and fishermen 1. Filipinos recruited by foreign-based employers for employment abroad 2. Employee separated from employment, to maintain right to full benefits 3. self-employed, who realized no income for a certain month 4. spouses who devote full time to managing household and family 5. foreign governments or institutions hiring Filipinos abroad may enter into an agreement with the Philippines to include their workers in SSS EXCEPT if they are already covered by the civil service retirement system there 1. employment is purely casual, and not for purpose of occupation or business of employer (ex. hiring a tubero)

All employees irrespective of employment status

2. service in an alien vessel, when the vessel is outside the Philippines 3. covered by GSIS 4. services by temporary employees and others excluded by SSS regulation 5. See #5 above: default rule is exclusion 1. Primary: a) dependent spouse until remarriage AND b) dependent children (regardless of status) 2. Secondary: a) dependent parents, b) in default of others, any other person designated as beneficiary 3. As to death benefits, if there are none qualified under the act, follow intestate succession rules 1. unmarried 2. Not gainfully employed 3. not reached 21 years of age 4. or incapable of supporting self physically or mentally Benefits 1. Monthly pension 2. Dependents pension 3. Retirement 4. Death

with no ER-EE relationship with agency 4. members of judiciary and constitutional commissions (just covered by life insurance)

Beneficiaries

Voluntary coverage

1. Primary: a) dependent spouse until remarriage AND b) dependent children 2. Secondary: a) dependent parents AND b) legitimate descendants (subject to limitations and qualifications on dependent children)

Who is a dependent child

1. unmarried 2. not gainfully employed 3. not reached 18 years of age 4. or incapable of supporting self physically or mentally ALL MEMBERS 1. Life insurance 2. Retirement 3. Disability

Not covered

1. AFP members 2. PNP members 3. contractual employees

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5. Permanent disability 6. Funeral 7. Sickness 8. Maternity (first four deliveries see maternity leave) 9. Loan grant N.B. See bolded items for unusual/unique enumerations All actual remuneration, including COLA, cash value of remuneration not paid in cash except remuneration in excess of maximum salary credit Non-work connected disability, sickness, maternity, death, old age, and other contingencies 1. contribution to account ceases 2. obligation to contribute also ceases at the end of the month of separation 3. credited with all contributions paid on his behalf and entitled to benefits under the SSS law 4. may continue to pay contributions to maintain right to full benefits Where disputes arise from: 1. coverage

4. Survivorship 5. Separation 6. Unemployment JUDICIARY 1. Life insurance (only) Prescriptive period for claims for dispute settlement Funding

2. benefits 3. contributions 4. penalties 5. any related matters 1. SS Commission decides within 20 days of receipt of evidence 2. Rule 43 to CA 3. Rule 45 to SC 20 years from delinquency

administered by GSIS 1. GSIS decides within 30 days from receipt of evidence and findings of hearing officer 2. Rule 43 to CA 3. Rule 45 to SC

4 years from date of contingency EXCEPT: life and retirement benefits

Base compensation which is basis of contributions When can there be a valid claim

Effects of separation from employment

Basic pay or salary excluding per diems, bonuses, OT pay, honoraria, allowances, all received in addition to basic pay Disability must not be due to own grave misconduct, habitual intoxication, or willful intention to kill self or another person Separated member continues to be a member and shall be entitled to benefits he is qualified to in the event of any contingency

1.

Employers contributions

Exemption from tax, legal process, lien

2. Employees/members contributions All property of SSS and GSIS are exempt from taxes, all benefits paid by SSS or GSIS are exempt from taxes, fees, charges, duties, etc.

SSS LAW Does the existence of a welfare plan funded solely by the employer exempt its employees from compulsory SSS coverage? o No, even if the benefits are better than those under the SSS Law. o Remedy: integrate private plan with the SSS so that the employer only pays to the SSS what is required of his, and then continue contributing to the private plan the excess. Does employer cover even religious organizations not for profit? o Yes. It is comprehensive enough to cover them. A factory hires 10 carpenters to repair the roof of its factory which was destroyed by a typhoon. Are the carpenters subject to compulsory coverage under SSS Law? o No. The employment was purely casual (#1 in the excluded group)

Dispute settlement

Any dispute arising from this Act and other laws

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When does compulsory coverage of an employer, employee, and self-employed person take effect? o 1. Employer: first day of operation o 2. Employee: day of employment o 3. Self-employed: upon registration with SSS What is the effect of an employees separation of employment upon his membership in the SSS? o His employers contribution and that employees obligation to pay contribution shall cease at the end of that month, but he will be credited with all contributions already paid and entitled to benefits under the law. o But he may continue paying the total contributions to maintain his right to full benefit. N.B. this is the once a member, always a member rule. What if X was fired without just cause, and his dismissal affected him so much that after 2 months, he suffered a stroke that led to paralysis. Can he get disability benefits? o Yes. Once a member, always a member even if he has stopped paying contributions and has stopped working. What if a self-employed member realizes no income in a given month? o Not required to pay contributions that month but he can still continue paying, just like a separated member could. What is the employers duty? o Give contributions as well, and may not deduct from the compensation of the employee such employers contribution. X, a sash factory worker, got stabbed in a movie house. Can he recover benefits under SSS? o Yes. The injury need not be work-connected. What is the sickness benefit? o Daily allowance of 90% of daily salary given to covered employee who becomes sick o What are the prerequisites? 1. Payment of at least 3 monthly contributions in the 12 month period immediately preceding the semester of sickness

2. Sickness or injury and confinement for more than 3 days in a hospital or elsewhere with the Commissioners approval 3. Notice of fact of sickness by the employee to the employer (or SSS if unemployed) within 5 calendar days of start of confinement, except: If confined in a hospital Or injured in the work premises 4. Exhaustion of sick leaves of absence with pay to the credit of the employee

Limits? No more than 120 days in one calendar year No more than 240 days for the same confinement No carry-over of unused days o How does it work? ER pays the allowance every regular payday or on the th th 15 -30 of each month Subject to 100% reimbursement by SSS upon receipt of proof of payment, provided the ER informed the SSS within 5 days after receipt of notification from the EE Failure to notify within this period: ER reimbursed only for each day of confinement th starting from the 10 calendar day immediately preceding the date of notification to the SSS When will there be no reimbursement? If clam is made after 1 year from date of confinement What disabilities are permanent total? o 1. Complete loss of sight in both eyes o 2. Loss of two limbs at or above the ankle or wrists o 3. Permanent complete paralysis of two limbs o 4. Brain injury resulting to incurable imbecility or insanity o 5. Cases determined and approved by the SSS What are the permanent disability benefits?

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Permanent total disability of member who has paid at least 36 monthly contributions prior to the semester of disability entitled to monthly pension o What if he has not paid the 36 monthly contributions? Entitled to lump sum benefit equal to the monthly pension times number of monthly contributions paid or times 12, whichever is higher o What is the rule if one has received a lump sum benefit and is re-employed or resumes self-employment not earlier than 1 year from the date of disability? Again subject to compulsory coverage and is considered a new member What are the retirement benefits? o 1. One who has paid at least 20 monthly contributions prior to the semester of retirement and has 1) reached 60 years and is separated from employment/no longer self-employed, or 2) reached 65 years old entitled to monthly pension as long as he lives Can receive first 18 monthly pensions in lump sum discounted at a preferential rate Monthly pension suspended if a person is reemployed before he turns 65 o 2. Covered member who is 60 years old and separated from employment but not qualified above lump sum benefit to his total contributions paid by him and on his behalf As long as he does not choose to continue paying contributions What are the death benefits? o Death of a member who has paid at least 36 monthly contributions prior to semester of death: primary beneficiaries entitled to monthly pension If no primary beneficiaries secondary beneficiaries entitled to lump sum benefit of 36 times the monthly pension If not yet paid the 36 month contributions lump sum benefit to monthly pension times number of monthly contributions or times 12, whichever is higher

Who are the primary beneficiaries? Dependent spouse until remarriage, dependent legitimate and illegitimate children What is a dependent spouse? o Not just under a valid marriage but also dependent for support from him o Who are the secondary beneficiaries? Dependent parents or any other person designated by the covered employee as beneficiary o X, a bachelor, died after being an SSS member for 10 years. He designated his girlfriend Y as beneficiary. Z, his brother, is claiming the monthly pension. B, C, D, his children who are already married, also claimed it. Who gets it? Y. Z is not a primary beneficiary. B, C, and D are no longer dependent children. So Y is a valid secondary beneficiary. o What if a permanently disabled pensioner or retiree pensioner dies? The beneficiaries receive monthly pension But if he has no primary beneficiaries and he dies within 60 months from start of monthly pension, secondary beneficiaries receive balance of the 5-year guaranteed period as lump sum benefit o What if no beneficiary qualifies for entitled to the death benefits under SSS Law? Paid to the legal heirs of the deceased according to law of succession What are funeral benefits? o Funeral grant equivalent to 12K paid in cash or in kind Maternity leave see Labor Standards section What are the loans that may be extended by the SSS to its members? o 1. Salary loan o 2. Educational loan o 3. Housing loan

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o 4. Community hospital loan Who are disqualified beneficiaries under the SSS Law? o Foreign national of a country which does not extend benefits to a Filipino beneficiary residing in the Philippines or not recognized by the Philippines o But in the best interest of the SSS, the Commission may direct payments without regard to nationality or country of residence What if the covered employee dies, or retires, becomes permanently disabled or sick without the ER reporting about him to the SSS or giving contributions on his behalf? o 1. Pay to the SSS damages equivalent to the benefits which the employee would have been entitled to For pension equivalent to 5 years monthly pension o 2. Pay corresponding unremitted contributions and penalties o 3. Criminal liability for failure to comply with SSS Law Who has jurisdiction over disputes arising under SSS Law as regards benefits, contributions, penalties, etc.? o The SSS Commission. o Where to appeal? Court of Appeals, Rule 43 If purely questions of law, SC Rule 45 Are SSS benefits transferable? o No, except when physically unable to collect personally the benefits What is the prescriptive period against an ER? o Within 20 years from the time the delinquency (ex. failure to turn-over contributions) is known, or assessment made by the SSS, or when the benefit accrues. o It does not commence when the obligation to pay premiums accrues.

GSIS LAW What is the effect of separation of the EE from the ER? o A member separated from service shall continue to be a member and is entitled to whatever benefits he has qualified to in the event of compensable contingencies under the GSIS Law

Differentiate permanent total disability from permanent partial disability: o In the latter, the member can still pursue a gainful occupation notwithstanding the permanent disability What are the conditions for entitlement to permanent disability benefits? o Must not be due to grave misconduct, notorious negligence, habitual intoxication, or willful intent to kill another or himself When is retirement compulsory? o At least 65 years old with at least 15 years service o If he has less than 15 years of service, he shall be allowed to continue until he completes the 15 years What is the unemployment or involuntary separation benefit? o Monthly cash payments of 50% of average monthly salary paid to permanent employee who is involuntarily separated from service due to abolition of office provided he has paid contributions at least 1 year prior to separation o How long will he receive these for? Depending on how long he has made contributions, maximum is 6 months (for 11-15 years) Which body has original and exclusive jurisdiction to determine whether a member is qualified or not to avail of old-age pension benefit? o The GSIS What is the basis of computation of the retirement benefits of a government employee? o Based on highest salary rate actually received by the employee (excluding OT pay, bonuses, per diems, etc.) Who is entitled to survivorship benefits? o Beneficiaries entitled to basic survivorship pension (50% of basic monthly) and dependents pension (not exceeding 50% of basic monthly) o Who are the beneficiaries? Primary legal dependent spouse until she remarries and dependent children Secondary dependent parents and legitimate descendants

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What are the classes of life insurance coverage under the GSIS Law? o 1. Compulsory all employees (except AFP, PNP) compulsorily covered with life insurance which takes effect as follows: 1. Upon date of employment for those who are hired after effectivity of revised GSIS Law 2. Those whose insurance will mature after effectivity of revised GSIS Law insurance deemed renewed on the day following the maturity or expiration of their insurance 3. Those without life insurance: take effect after effectivity of revised GSIS Law o 2. Optional member may apply for insurance or pre-need coverage embracing life, health, hospitalization, education, memorial plans, and other such plans as designed by the GSIS for him or his dependents Paid to the GSIS GSIS can also formulate group insurance coverage for its employees Can a GSIS member enjoy the benefits provided for in the Revised GSIS Act simultaneously with other benefits under other laws for the same contingency? o The member can choose either the GSIS plan or the other plan. If the other plan provides benefits less than that of the GSIS law, the GSIS will only pay the difference. Which body has jurisdiction over disputes under the GSIS Act? o GSIS has original and exclusive jurisdiction to settle the disputes arising from this Act What is the prescriptive period for claims? o 4 years from date of contingency, except for life and retirement benefits How are decisions of the GSIS appealed? o To the CA, under Rule 43

For those who transfer employment from one sector (i.e. private/public) into another What situation is covered? o When the person would not qualify for particular benefits unless the contributions/services for both SSS and GSIS are totalized, then it shall be done o What if there are overlapping periods of membership? Only credited once

EMPLOYEES COMPENSATION ACT What is the coverage of ECA? o 1. Every employer o 2. Every employee not over 60 years old o 3. Any employee over 60 years of age if he had been paying contributions prior to age 60 and has not been compulsorily retired o 4. Employee coverable by both GSIS and SSS are covered by both Grounds for compensability? o For injury and resulting disability or death: must be the result of accident arising out of and in the course of employment o For sickness and resulting disability or death: must be result of occupational disease Must be listed under Annex of the IR dealing with occupational diseases Must meet conditions stated therein Otherwise, what is allowed? Show proof that the risk of contracting the disease was increased by the working conditions

SOCIAL LEGISLATION JURISPRUDENCE SOCIAL SECURITY LAW Coverage

LIMITED PORTABILITY LAW (RA 7699) To whom does LPL apply?

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Coverage is not based on a bilateral, consensual agreement between employer and employee. R.A. 1161 (SSS) requires COMPULSORY COVERAGE of employers and employees. It is a legal imposition, pursuant to police power of the State. (Philippine Blooming Mills v. SSS) Reporting It is the duty of the employer to report immediately to SSS the name, age, civil status, occupation, salary, and dependents of a deceased worker. This duty to report is not affected if the employee did not want to make contributions. If the employer failed to report death, sickness, or disability, the employer is liable to the amount equivalent of what the employee should have received. (Poblete Construction v. Asiain) Funding Contributions are not in the nature of taxes, but are intended to protect the employees in case of disability, sickness, old age, and death. The funds belong to the members, and not to the State, which just hold the money in trust. (CMS Estate v. SSS) Effect of non-remittance If the employer fails to pay the contributions, the State may collect them in the same manner as unpaid taxes. Non remittance by employers should not prejudice covered employees. (Santiago v. CA) Benefits The benefits under the SSS are not part of the estate of the covered members. It is non transferable, and exempted from tax, legal processes, and lien. (SSS v. Davao) Dispute settlement Any dispute as to coverage, benefits, contributions, and penalties are cognizable by the SSS. But the SSS cannot adjudicate criminal complaints the regular courts should. (De Jesus v. CA)

ECSIF (EMPLOYEES COMPENSATION AND STATE INSURANCE FUND) Concept A compensable sickness means: a) any illness accepted as an occupational disease by the Employees Compensation Commission, or b) any illness caused by employment, with proof that the working conditions increased the risk. Before, there was presumption of compensability. Now, under the Labor Code, the law has abandoned this, and to recover compensation for sickness/disability/death, one must prove either one of the two requisites above. (Sulit v. Employees Compensation Commission) Interpretation of the Law Under social justice policy, there must be liberal and sympathetic approach to legitimate appeals of disabled public servants. (Diopenes v. GSIS) Even if the presumption of compensability was abandoned, still interpret the law in favor of the working man, especially if there is some basis in the facts for inferring a work connection to the cause of death. (Santos v. Employees Compensation Commission) Compensability formula Grounds for compensability: Injury, disability, or death: Employee must have been injured at place where work requires him to be Employee must have been performing official functions If injury is sustained elsewhere, it must be based on order of employer

Sickness and resulting disability or death: Occupational disease listed in Annex A of rules Or risk of contracting disease increased by working conditions

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Use rules on proximate cause. All medical consequences and sequels that flow from primary injury are compensable. (Belarmino v. ECC) Need not actually be in place of employment. If the worker was acting within the purview of his employment, performing an act reasonably necessary or incidental thereto, the injury sustained is compensable. (Ex. teacher tasked to work at home) (Lopez v. ECC) Disability There must be loss or impairment of a physical or mental function, resulting from injury arising out of, or in the course of employment, a disease listed as occupational by the Commission, or working conditions increasing risk of disease. (Hatta Halale v. ECC) Sickness See above must either prove it is in the list of occupational diseases, or from work-related conditions increasing risk of disease Official functions Place hardly matters, when the task the worker was doing was workconnected. (Enao v. ECC) On vacation While days when an employee is on vacation is part of his employment period, not everything which transpires during vacation are work-connected and compensable. (De la Rea v. ECC) Military personnel A soldier on active duty status is really on 24 hours a day official duty, and is subject to military discipline and military law 24 hours a day. He is subject to the call and orders of his superiors at all times, 7 days a week, except when on vacation leave. Thus, a soldier going to another soldiers house is still doing official functions. (Hinoguin v. ECC) Coming and going rule

Injury sustained by the employee while on his way to or from his place of work, and which is otherwise compensable, is deemed to have arisen out of and in the course of his employment. The death or injury is compensable whether is arose from accident or from an intentional assault. (Lentejas v. ECC) LABOR RELATIONS

RIGHT TO SELF-ORGANIZATION

Who can join a union? o Anyone, whether for profit or not, and regardless of nature (commercial, industrial, charitable, educational, etc.) o Exceptions: 1. managerial employees Those with power to lay down management policies and execute them; have power to hire, suspend, transfer, layoff, etc. employees 2. supervisory only by themselves 3. Confidential employees Assist or act in confidential capacity with regard to persons who formulate, determine, effectuate management policies, esp. those connected to LR Meaning, they are privy to sensitive and highly confidential records o Who are excluded by EO 180 (guidelines for exercise of right to organize for government employees)? 1. AFP members 2. Police officers, policemen 3. Firemen 4. Jail guards o What about ambulant, intermittent, itinerant, rural, of selfemployed workers, who do not have definite employers?

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They may still form labor organizations for the purpose of mutual aid and protection (but obviously, they cannot CB and perform concerted activities)

What is a union? o An organization that exists in whole or in part for collective bargaining or for dealing with the employer concerning terms and conditions of employment How do you form a union? o 1. Identify the bargaining unit What is a bargaining unit? A group of employees sharing mutual interests within a given ER unit Less/all of entire body of employees in the ER unit, or according occupational or geographical grouping within the unit How many bargaining units can there be? The law fixes no minimum or maximum. There can be several unions coming from one CBU. The union is the representative, and the represented group is the CBU. What is the Globe doctrine? If units in one industry cannot be determined, the employees can decide how to organize themselves into units. Best way is referendum/plebiscite What is the community of interests rule? Employees in a BU must have commonality of CB interests as evidenced by work they perform o 2. Register the union 20% of members of bargaining unit Constitution and by-laws If you do not have 20% of the membership of the bargaining unit, you cannot organize. T or F? o False. You can still have a union, although not a legitimate labor organization.

You can still receive a charter from a federal union you do not need to meet the 20% requirement to become a chartered local. o What is the significance of removing the 20% requirement for chartered locals? Consistent with policy that makes it easier to selforganize. o But why is an independent union still required to have the 20%? Why only make it easier for chartered locals? You privilege chartered locals. You want unions that are attached to parent federations, which already have systems and support in place. What is a federation? o An umbrella organization a group of local unions forming the national level (there are industry unions, ex. Banking unions; while there are national federation from different industries) An independent union is not part of a federation. T or F? o False. An independent union can join a federation, after independently organizing itself. A chartered local is not an affiliate. T or F? o True, because it has to be created by the federation. See below for the types of affiliates. Can a chartered local register as an independent union while within the federation? o Yes. It becomes an affiliate. o There are two types of affiliates: 1. Independent first, then joined federation. 2. Part of federation, then became independent but did not leave the union. What can a federation do versus other types? o ONLY a federation can create another labor organization. o An independent union cannot create another union. A chartered local cannot, as well. o N.B. A Trade union is not a legitimate labor organization. Whats the difference between procedure for acquisition of legal personality of an independent union and a chartered local? o Independent union:

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Obtain a certificate of registration What do you have to submit? 1. P50 fee 2. Names of officers, addresses, LO address, minutes of organizational meetings, list of workers who participated in those meetings 3. Names of members comprising at least 20% of bargaining unit 4. If existing for at least one year, annual financial reports 5. Four copies of constitution and by-laws, minutes of adoption/ratification, members who participated in it o Chartered local: Issuance of charter certificate has limited legal personality (to apply for certification election) Do you need submission, or does legal personality vest upon issuance of the certificate? Just upon the moment of issuance of charter certificate. No need for submission or filing. Why is the personality limited? Personality is only to apply for certification election. What documents must be submitted? 1. Chapters officers, addresses, principal office of the chapter 2. Constitution, by-laws Upon submission, what happens? You obtain all rights and privileges of a legitimate labor organization. Whats the reason behind the difference in requirements? o Note that you need to wait for the certificate for independent union; while for a chartered local, you just need to submit. (IMPT!)

Because you are not encountering an entirely new organization; the chartered local is merely the creature of an existing union. How do you illustrate limited legal personality of a chartered local? o They do not possess all the rights of legitimate labor organizations (which a chartered local becomes after submission of documents): Ex. Cannot conduct a strike All chartered locals, upon filing for petition for certification election have limited legal personality. T or F? o False. Limited legal personality is an option that can be exercised by a chartered local. Meaning, you can either acquire full legal personality first before filing for certification election (by submitting the documents: a) list of officers, b) constitution and by-laws); or you can do it the normal way and obtain limited legal personality first. In the amendment introduced by RA 9481, R&F and supervisors can be part of the same union. T or F? o False. Only same federation, not same union. o RA 9481 removed the prohibition against the joining together of supervisory and R&F unions in a federation. It overturned Atlas. This is not in Art. 245, but merely a jurisprudential prohibition. So they can now mix in the same federation. N.B. De La Salle qualified the Atlas doctrine by providing qualifications (direct professional relationship between supervisors and R&F, etc.). So when Atlas was killed, the De La Salle qualifications also died. Did RA 9481 allow comingling between R&F and supervisors? o Yes. Allow within the same federation, without the qualifications set in law before. o But no comingling within union or chartered local, because this is prohibited by the Labor Code. o What is the effect of this comingling? Those not supposed to be part of the union are deemed to be not included or part of the union.

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BUT it is not a ground for cancellation of the registration of the union. The Labor Code only provides three grounds for cancellation of a unions registration comingling is not one of these. N.B. Art 245 speaks of eligibility of employees to become union members. Even before RA 9481, the SC clarified that because the LC speaks of eligibility of employees and not legitimacy of unions. So it should not adversely impact the union, just the employees. o What are these three grounds? 1. Misrepresentation, false statement, or fraud in adoption/ratification of constitution or by-laws or amendments to such; minutes of ratification, or list of members taking part in the ratification 2. Misrepresentation, false statement, or fraud in election of officers, minutes of election, and list of voters 3. Voluntary cancellation 2/3 of general membership In a meeting duly called for that purpose Submitted by labor organizations board, attested by president of org Can an opposition be filed by another union or party, alleging any of the grounds for cancellation against another union during the filing for certification election? o No. You cannot attack the validity of an organization collaterally in a procedure for certification election. You have to directly attack it. o Is this an absolute rule? No. Wait for this in the part on certification elections. What is the nature of the right to disaffiliate? o It is part of the constitutional guarantee of freedom of association. To disaffiliate is a right, but to observe terms of affiliation is an obligation. o When can a labor union disaffiliate from the mother union to form a local/independent union?

Only during 60 day freedom period What is the exception? Shift of allegiance of majority But the existing CBA is still valid until it expires o What is the substitutionary doctrine? Precisely this. Even with a shift in representation, the CBA still exists and binds. But the new agent and the ER can negotiate to shorten the CBAs term. What is a trade union? o It is the third level. It is a group of federations. This is why is it not a legitimate labor organization. Its just a grouping of different federations. If a chartered local disaffiliates, does it lose its legal personality? o Yes. Because its existence is dependent on the federation. The legal personality is tacked on the point of creation, which is the federation issuing a charter certificate. (Consistent with policy of RA 9481 on encouraging membership in federations) What if a petition for cancellation is filed against the federation and the federations personality is indeed cancelled? o It also erases the legal personality of all the chartered locals. o OLD EXCEPTION (does not apply anymore this is missing in the new DO): if there is an existing CBA and the chartered local is the administrator of the CBA, the chartered local will not exist only until after the CBA expires. How long does the BLR have to act on an application for registration? o 10 days. o Upon receipt of denial of registration, how long and to whom must appeal be made? Within 10 days of receipt of notice of denial of registration by the regional director, to the BLR director, and then to the CA o What if it is a federation that is registering? Since it operates in more than one region, it receives its denial from the BLR director, so it appeals to the DOLE secretary, and then to the CA. o

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What are the additional requirements for registration of federations/national unions? o Proof of affiliation of at least 10 locals/chapters, which must all be EBRs there o Names and addresses of the companies where the locals/chapters operate, and list of members

BARGAINING AGENT AND CERTIFICATION ELECTION How do you start a certification election? o For an organized establishment, where there is an incumbent EBR File verified petition questioning majority status of incumbent with the Regional Office, within 60 day freedom period before the expiration of the CBA Must be supported by signatures of 25% of the employees in the bargaining unit o For unorganized establishment No 25% signature requirement Petition need not be verified When can a certification election be held? o Unorganized establishment anytime, except within 12 months of previous CE o Organized only within 60 day freedom period before the end th of the 5 year of the current CBA What are confidential employees? o Those who 1) assist or act in a confidential capacity, 2) to persons who formulate, determine, and effectuate management policies in labor relations o Both requisites must concur What is a bargaining unit? o Determined by the applicant bargaining agent. o A group of employees sharing mutual interests within a given employer unit. o Organized by either geographical grouping, specific occupational grouping, or by manner of payment At what point should you determine the bargaining unit?

Early stage of organization phase because even the name of the LO matters to determine the BU o Petition for certification elections (PCE) only those part of the BU will vote o CBA negotiations only those covered by the BU benefit from the provisions of the CBA, even those not members of the union How do you appeal from the decision of the med-arbiter? o Appeal to the DOLE secretary o Then to the CA, under rule 65 o Then to the SC, under rule 45 What is a forced intervenor? o In a petition for certification election, where an LLO is contesting the incumbent, the incumbent becomes a forced intervenor to the elections. What are the three types of certification? o 1. Voluntary recognition o 2. Certification election o 3. Consent election

Voluntary recognition What is voluntary recognition? o In an enterprise being unionized for the first time, and where there is only one LLO, the employer may voluntarily recognize the EBR status of that LLO. o Within 30 days of recognition, submit notice of voluntary recognition to the Regional Office What are the contents of the notice? o 1. The fact of voluntary recognition (joint statement) o 2. Certificate of posting of joint statement for 15 consecutive dates in two conspicuous places in the establishment o 3. Approximate number of employees in the BU Majority must support the voluntary recognition o 4. Statement that it is the only LLO in the BU What if the notice is insufficient? o Notify the union of it and advise compliance with what is needed

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What if the requirements are incomplete? o Return notice, without prejudice to re-submission What are the effects of voluntary recognition? o 1 year certification bar o LLO becomes EBR

Certification election What is the role of the employer? o It is a mere bystander. It is just notified or informed of petitions. It just submits list of EEs during pre-election conference should the Med-Arbiter have the petition prosper. Preliminary conference o When is the preliminary conference held? Within 10 days from receipt of petition o What does the MA determine? 1. Bargaining unit 2. Contending unions 3. Possibility of consent elections 4. Existence of bars 5. Other relevant matters o What action can the MA take? Within 10 days of last hearing, MA issues formal order granting or denying petition N.B. no decision can come out during freedom period (obviously, you have to wait for the others to file too, if there are) The order directs the ER and unions to submit within 10 days the certified list of EEs in the BU o When can a petition for CE be denied? 1. Petitioner union does not appear in two successive conferences called by MA (and it was notified) 2. Petitioner not listed in the DOLEs registry of LLOs or its legal personality has been revoked with finality 3. Failure of chapter or national union to submit a duly issued charter prior to filing petition of CE 4. Absence of ER-EE relationship between the members of the union and the establishment

5. Contract bar 6. Certification year bar 7. Negotiation/Deadlock bar 8. For organized establishment, failure to submit 25% support requirement o What are not grounds to deny the petition? 1. Validity of petitioning unions certificate of registration 2. Legal personality as LO 3. Validity of registration 4. Execution of CBA N.B. these must be heard and resolved by the Regional Director in an independent petition N.B. the difference between these grounds and the one above (#2) is that there, the LLO is not listed in the DOLE registry, so its just a matter of checking the list. Here, there must be hearing. o When is appeal allowed? NOT allowed to appeal order granting CE in unorganized establishments For others appealable to DOLE Secretary within 10 days from receipt Pre-election Conference (PEC) o What are the matters set in PEC? 1. Date, time, place of election Not later than 45 days from first PEC Regular working day In work premises 2. List of eligible voters 3. Mechanics of election o What is the effect of failure to appear in PEC? Waiver of objections or questions as to agreements reached there. N.B. this is unlike Preliminary Conference, where two absences kills the petition Still given notice of subsequent PECs and can attend o Includes matters such as exclusion and inclusion of voters

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Ex. when there is no employer-employee relationship; when he is not a member of the bargaining unit o How do you do undergo inclusion/exclusion? Report to Med-Arbiter, who will note it in the minutes. Undergo with normal conduct of elections. But actual exclusion/inclusion only happens after the elections. But what if they agree? Can there be removal during pre-election? Yes. Who can challenge? Authorized representative of any of the contending unions Employer When? Before deposited in ballot box What grounds? 1. No ER-EE relationship 2. Not member of the BU Normally, whats the status of the challenged names? They can vote. But the Med-Arbiter decides after certification election. But how can you exclude them? o You segregate their votes, in separate envelopes, because their votes are otherwise anonymous. Election proceedings o If there are 500 voters, how many must vote for there to be valid elections? At least 251. o What if there is a failure of election? This happens when there is 50% or less valid votes from the voters in the bargaining unit. You DONT have to file another petition. You can just request through a motion to repeat the conduct of a certification election (6 months, according to the DO) o What are you voting on?

Either you vote for a union (Union A or Union B), or vote for no union. If there is just one union, its yes or no in favor of Union X. o How do you determine the winner? Get the majority of those who actually voted with valid votes. What do you mean valid votes? Those which are not spoiled ballots. For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A 150 o Union B 200 o No Union 40 o Spoiled 10 o Is there a winning Union? Yes. Union B got majority of 390 votes (at least 196 votes). For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A 150 o Union B 150 o No Union 90 o Spoiled 10 o Is there a winning Union? No. There will be a run-off election. o What is your basis for determining whether there should be a union, even if there is no majority? At least 50% of ALL votes, including spoiled ballots, voted for unions, For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A 90 o Union B 100 o No Union 200 o Spoiled 10 o Is there a winner? Yes. No Union won. For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A 100

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Union B 100 No Union 190 Spoiled 10 Is there a winner? No, no choice got the magic number of 196. o Will there be a run-off? Yes, because the two unions got 50% of ALL the votes (200 out of 400). (You count the spoiled ballots in the total, but you dont care about what their contents are [Gs question]) o What happens? No union choice will be removed. o N.B. In this situation, even if no union got most of the votes, ONLY unions can participate in run off elections. For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A 100 o Union B 95 o No Union 195 o Spoiled 10 o Is there a winner? No. Nobody got a majority. o Is there a run-off election? No, because the two unions did not get at least 50% of ALL the votes (200 out of 400). o Is there a valid election? Yes. o What is the effect of this particular certification election? The one-year bar applies. The certification election has ended. It is as if no union won. NOTE: Different base figures based on example: o 500 (for total amount of voters need 251 for valid elections) o 390 (for majority need 196 which is 50%+1) o 400 (whether there will be a run-off elections just 50%, not 50%+1) For instance, of the 500 voters, 400 voted. o Union A 100 o Union B 95

o o o o

No Union 195 CHALLENGED (not spoiled) 10 what happens here? You put Challenged persons X in one envelope and put his/her name. You put Challenged persons Y in another SEPARATE envelope and put the name. o Do you open the segregated envelopes immediately after elections? Only if it will materially affect the result of the elections. o In this case, does it apply? Yes, because there is no winner and any of those challenged votes could lead to a winner (no union in particular). Also, if none of the 10 votes is for no union it can also help the two unions reach 200 votes to enable run-off elections. N.B. When they are qualified as valid votes, 196 will not be the majority number, because the base number will increase. o What is the reason why challenged ballots are treated this way? So you dont unduly expose their votes to scrutiny if there is no need to do so. Aside from the one-year bar from certification election, is there any other bar for certification election? o 1. Certification election bar <this> - one year bar N.B. if there is failure of election because less than majority of CBU voted, there can be another petition for CE within 6 months (D.O. 40-03) Bar applies too when no union wins o 2. Contract bar Wait for the 60-day freedom period before the 5 year period expires o 3. Deadlock bar

o o o

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No CE may be held if there is a pending bargaining deadlock which has been submitted to conciliation or arbitration, or has become the subject of a valid notice of strike or lockout o 4. Negotiation bar st Once negotiations are started within the 1 year, even if there is no CBA at the end of the 1-year period, it bars a subsequent CE There is no incumbent EBR. So there was a certification election (or consent election). o From the CE, you have 1 year bar. This protects the union that won the CE, through a one-year protection to give it a chance to negotiate with the employer as regards a CBA. o After 1 year, the ideal situation is that there is CBA. This extends the 1 year period to a 5-year period. There is a short window period (60 day freedom period before the expiration of the 5 year term of the CBA) o N.B. (very important) If you dont have a CBA and you are nearing the end of the first year, in the past, you need a deadlock to bar subsequent CE. NOW, there is no more need for a CBA or a deadlock, because as long as you have started negotiations and you have sustained negotiations beyond the first year, you are still protected.

What is the effect of consent election? o Will have the same effect as the conduct of a certification election if done under the supervision of DOLE (selecting an EBR). o Before DO 40, it is an internal contest which will not have the effect of choosing an EBR. What if there is no DOLE supervision: o Valid election o But will not gave effect of a CE o Unofficial election (thus, not a bar to CE) What is the difference between consent and certification election? o Consent election dispenses with the need for an order from the Med-Arbiter o Med-Arbiter will just note the fact in the minutes that the contending unions agreed to hold the consent elections.

Union Dues and Agency fees How does the check-off system operate? o The employees pay is deducted at prescribed periods to pay for union fees, fines, or assessments o Must there be individual authorizations? No. Deductions for union service fees are authorized by law. What are agency fees? o Equivalent to union dues, but paid by non-members, because the union represents him too as part of the BU and accords benefits What are requisites for valid Special Assessments? o 1. Authorization by written resolution of majority of members at a general meeting for this purpose o 2. Secretary records minutes Members present and votes cast Purpose of special assessment and recipient thereof o 3. Individual written authorization for check-off, signed by the EE

Consent Election What is a consent election? o One where the contending unions voluntarily agree upon elections, with or without the intervention of the DOLE. o The result binds the parties. What are the two kinds of consent elections? o If Union A and B decide to have elections without participation of DOLE, it has no effect of a valid CE. It only determines the majority. o But if Union A and B agree to have elections, but involve the Med-Arbiter and the DOLE, then it has effect of valid CE.

COLLECTIVE BARGAINING What is collective bargaining?

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Agreement between employer and employee as to terms of employment (benefits, conditions of work), and dispute settlement (ex. grievance machinery). What are the jurisdictional requirements for CB-ing? o 1. Status of majority representation of EEs representative o 2. Proof of majority representation o 3. Demand to bargain given to ER How do you start collective bargaining? o Submission of the EBR to the employer of notice to collectively bargain, along with proposal o Then the employer will submit a counterproposal within 10 days o What if there is a pending petition for cancellation of union registration? It does not prevent the filing of petition for CB-ing. o When is it commenced? During the certification period (12 months) What next? o They will negotiate (do not proceed to the NCMB immediately, contrary to what the provision of law suggests!). You can meet several times, over a period, until you have discussed each provision. o If you have exhausted all efforts, you will reach a point where there can be no agreement or movement in the positions of the parties as to particular provisions. o What is the procedure for CB under the code? 1. Serve proposal to other party 2. Reply by other party within 10 calendar days 3. Conference between parties 4. If not settled, NCMB intervenes upon request of parties or motu propio conciliation meetings Can issue subpoenas to parties What if the employer refuses to respond to the EBRs proposal? o There is Unfair Labor Practice violation of the duty to bargain collectively: 1. It can be submitted to the Labor Arbiter.

2. Or alternatively, you can use it as a ground to file notice of strike N.B. 1 and 2 are mutually exclusive o What is the penalty for management for refusing to bargain? The proposal becomes the new CBA (Kiok Loy doctrine) o What are the four forms of violation of duty to bargain? 1. Failure or refusal to meet and convene 2. Evading mandatory subjects of bargaining 3. Bad faith in bargaining 4. Gross violation of CBA o As a corollary, this duty also means respecting an existing CBA, with exception to the 60 day freedom period What is the term of the CBA? o It can be fixed by the parties. It can be 20 years, whatever, but subject to the five-year period. o What happens after five years? There is a freedom period (60-days before the end of the five years) to possibly hold another CE. When does contract bar rule not apply? 1. CBA not registered 2. CBA de-registered 3. CBA incomplete it itself 4. CBA does not foster industrial peace 5. CBA concluded in violation of order enjoining the parties from entering into CBA until representation conflict is settled o What happens before the end of the third year? N.B. Use the term underlined to be precise. You can renegotiate the economic provisions of the CBA. How do you do the renegotiation? The terms of the CBA will be reexamined. Who will start it? o The union. You will not expect the employer to start it.

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The union submits a proposal for modification. The same principle/penalty for management refusing to bargain will apply the proposal becomes the new CBA if management refuses to respond. What if the union does not submit a proposal? o Then the existing CBA will persist. o Can the parties renegotiate on the first year? The second year? Yes, but only if the parties both agree. But on the third year, the law mandates bargaining. o When is registration done? Within 30 days from execution of the CBA, with the Regional Office which issued the certificate of registration (if single ER) or the BLR (if multiple employers in the CBA) Where is appeal done? Regional office BLR BLR (multiple ERs) Sec. of Labor Both within 10 days of denial This is valid: o There is a CBA that covers five years, giving wage increases for the first, second, and third years, leaving the fourth and fifth years open. o Or it can provide for wage increases in years four and five, but subject to renegotiation. What is the period before the expiration of the CBA? o The 60 day period is for either party to notify to the other that it seeks to terminate or modify the current CBA. A CBA expires after five years. You commence negotiations for a new CBA. (Alternatively, renegotiations, if the CBA is not yet expiring, but after 3 years.) What is the relevance of the six month period?

Agreement between the parties on the new CBA will retroact to the beginning of the first date after expiration, if they agree within 6 months from expiration. Here, the law mandates retroactivity. o If they agree after six months post expiration of the CBA, the parties will determine when the CBA is deemed to have commenced. There can still be retroactivity, but optional. Does the six month period apply to mid-term renegotiation period? o No. The six month period only applies to a new CBA. The provision only speaks of expiration so it must involve a new CBA. If there is no agreement on retroactivity, what must the Secretary of Labor do after he assumes jurisdiction? o There is an SC case that says the CBA must retroact to the first day after the end of the six month period. BUT there is no basis for this. This seems like an invention of the SC. In case you have a situation when there is a new CBA entered into after the six month period and there is no retroactivity. So there is a gap (ex. 10 months). What happens? o There is a hold-over principle where the first CBA will be deemed to exist in the meantime. o What if there is a four month interim instead? In the interim, the first CBA will hold-over for the meantime. But since there is an agreement within six months, the new CBA retroacts to replace the effects of the first CBA. (Ex. Back pay of wage differentials) What is the difference in impasse rules between mandatory and non-mandatory CBA provisions? o If mandatory, either party may bargain to an impasse as long as he is in GF o If non-mandatory, a party may not bargain to the point of impasse; it may be construed as evasion of duty to bargain Union of Filipro Employees v. Nestle: ERs insistence to exclude a particular provision in the negotiations is not a refusal to bargain.

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Obligation to bargain does not include the commitment to precipitately accept the proposals of the other party. What are the mandatory provisions of the CBA? o 1. Grievance Machinery (GM) For the interpretation or implementation of the CBA provisions and personnel policies Established within 10 days from signing CBA Composition: Includes at least 2 representatives from the members of the BU, designated by union and the employer, unless otherwise agreed upon o 2. Voluntary Arbitration (VA) All grievances submitted to GM which are not settled within 7 calendar days are automatically referred to VA prescribed in CBA How selected? Selected through CBA provision or procedure, or if there is no agreement, by NCMB according to selection procedure in CBA What is the VAs jurisdiction? 1. Grievances from implementation or interpretation of CBAs 2. Arising from interpretation or enforcement of company personnel policies 3. Wage distortion issues from application of wage orders, in organized establishments 4. Arising from interpretation and implementation of productivity incentive programs under RA 6971 What else, optionally? o Other labor disputes like ULP and CB deadlocks, if agreed upon by parties o A dispute before or at the stage of compulsory arbitration Powers of VA? 1. Hold hearings

2. Receive evidence 3. Take necessary action to resolve dispute Issue decision within 20 calendar days (or ground to discipline the VA) What if the VA decides de-listing as sanction? Must turn over records of the case within 10 calendar days to the NCMB for further disposition When is a decision final and executory? After 10 calendar days from receipt by parties No MR is allowed 10 days from signing CBA Grievances not settled within 7 calendar days Within 20 calendar days Turn over records of case to NCBM within 10 calendar days Within 10 calendar days from receipt Not allowed

Establish Grievance Machinery GM elevate to VA VA decision VA decides de-listing as sanction Decision of VA final and executory MR of VA decision

3. No Strike-No Lockout Clause It is a valid stipulation, although it may only be invoked by an ER when the strike is economic in nature or one which is conducted to force wage/other concessions not mandated by law to be granted. What if the strike is based on ULP? NSNL cannot be invoked 4. Labor-Management Council Purpose: enable workers to participate in policy making and decision processes What are not covered by LMC? 1. Covered by CBAs 2. Traditional areas of bargaining EE Representative Nominations made by: EBR if organized

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Employees at large if unorganized What are the ULPs in CB? o 1. Bargaining in BF It must be raised while bargaining is in progress Based on facts o 2. Refusal to bargain Refusal to reply to proposal See Kiok Loy implication o 3. Individual bargaining Can only bargain with the EBR o 4. Blue sky bargaining Making of exaggerated or unreasonable proposals in CB o 5. Surface bargaining Mere cosmetic pretense of bargaining What are the elements of ULP? o 1. ER-EE relationship between offender and offended o 2. Defined in the LC as ULP Not an exhaustive listing, because it is impossible to cover all acts that are infirm to self-organization (HSBC employees v. NLRC) Who are liable for ULP committed by a juridical person? o If by corporation, partnership, etc. the penalty is imposed on the guilty officers of that entity o If by a LO, the officers and members who have actually participated in, authorized, or ratified such What is the prescriptive period? o 1 year When is there no ER ULP? o When there is valid exercise of management rights. The only condition is that it must not violate the act and its prohibitions. o As a rule the management can promote, transfer, or demote its EEs when the interests of the company need it. There is only ULP when instances directly point to interference by the company with the EEs right to SO. o The ER can treat union and non-union employees differently; discrimination per se is not unlawful. It is only unlawful when it

is done against the right to SO. Thus, granting benefits to nonunion EEs outside the BU because the union members already derive benefits from the CBA is valid. o What is the determining factor for validity of exercise of management rights? The ERs motives Generally, no need for the ER to explain motives behind exercise of management acts, but if there is history of enmity between the ER and EE then there is greater suspicion for ERs acts. What are the ULPs of ERs? o 1. Interference Interfering with formation of union, such as threatening pay cuts for EEs who join the union Dismissal of union members upon refusal to give up membership Refusal to give salary adjustments according to CBA scale for years What is the totality of conduct doctrine? Culpability of ER is evaluated on the basis of implication, against background of and in conjunction with collateral circumstances So the statement by one ER may become ULP if uttered by another, hostile ER Lockout or closure amounting to ULP Sale of the enterprise in bad faith What is the implication? o The general rule that labor contracts are in personam and nonbinding to the transferee changes. It can be enforced even against the transferee in bad faith. What is the doctrine of successoremployer? o A new company that engaged in the same business as the closed company and is owned by the same

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people is treated as a continuation of the one that closed, so the ER cannot avoid liability. o 2. Yellow dog contract A promise exacted from the EE that as condition for employment, they must not join or form a union 3. Contracting out as ULP This involves contracting out services performed by union members as to interfere with right to self-org. When is it not ULP? When it is done for business reasons (to save on costs, decline in business, inadequate equipment, etc.) What is a runaway shop? Transfer of business to discriminate against union members in old plant. This is ULP. 4. Company domination of union A. Initiation of company union idea Outright formation by the ER EE formation out of ER demand Managerially motivated formation by EEs B. Financial support to union C. ER encouragement and assistance Ex. giving exclusive recognition as EBR without determining if it represents majority of EEs D. Supervisory assistance 5. Discrimination Must be in the terms of employment or treatment of the union members vis--vis the non-members Or in bonus allocation Or in layoff even if there is valid basis for layoff, but all those laid off were union members Test of discrimination: underlying reason is union activities What is a union security clause?

It is a valid discrimination favoring unionism. This is a clause where the union is assured continued existence such as where new EEs are compelled to join the union. These are VALID. So again, ER terminating those who refuse to join the union is valid. What are the kinds of union security clause? Closed shop, union shop, maintenance of membership, etc. Who are not covered by closed shop provision? EE who at the time of the closed-shop agreement is a member of a religion that prohibits members from joining unions EEs already in service and members of labor union other than the majority upon taking effect of closed-shop agreement Confidential EEs excluded from BU EEs excluded from closed shop by agreement General rule: closed shop only applies to future EEs, not current ones because theyd be force to jump unions in violation of right to self-org What is agency shop? The EE is not required to join the union but has to pay the union service fee. 6. Discrimination due to testimony A retaliatory act by the ER regardless of the subject of the complaint or testimony 7. Violation of duty to bargain 1. Failure or refusal to meet/convene 2. Evading mandatory subjects 3. BF bargaining, or failure to execute collective agreement 4. Gross violation of CBA (must be economic provision) 8. Paid negotiation

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This is corrupt and ethically reprehensible Neither may the ER pay on its own volition nor can the EE ask or accept payments o 9. GROSS violation of the CBA Youre not being paid OT pay. Is this ULP? o No, not in itself. It must be done in order to discourage membership in a labor organization. o TEST: It must be related to the exercise of an employees right to self-organize. Can ULP cases be compromised? o No. Labor contracts are impressed with public interest, so labor contracts must yield to the common good. What is the single charge rule? o Claim of ULP must include all acts within a given period. Cannot split cause of action and file subsequent and continuous charges. What are the reliefs against ULP? o 1. Cease and desist order o 2. Affirmative order o 3. Order to bargain or imposition of CBA o 4. Strike by union What are the ULPs of unions? o 1. Restraint or coercion by LOs What about interference by EEs? Its not ULP unless it amounts to coercion or restraint Union cannot coerce EEs to join a strike. This is done through assault, threats, blockages, etc. o 2. Union-induced discrimination When is a union security clause ULP? When it is arbitrarily used Union security clauses must be governed by justice, fair play, legality o 3. Refusal to bargain Ex. entering negotiations with fixed purpose of not reaching an agreement o 4. Featherbedding and Make-Work Arrangements

o o Employer Inference Yellow dog

What is featherbedding? EE practices which create or spread employment by unnecessarily maintaining or increasing the number of EEs used, amount of time consumed, or work on a particular job Make-work: minimum-crew regulations on railroads, setting and prompt destruction of bogus type in newspapers, stand-by pay for musicians when a radio station broadcasts music from records, etc. 5. Ask or accept negotiation or attorneys fees from ER 6. Gross violation of CBA Employee Restraint or coercion by LO Feather-bedding and make-work arrangements

Contracting out as ULP Company domination of union Discrimination Discrimination due to testimony Violation of duty to bargain Paid negotiation Gross violation of CBA

Union-induced discrimination Refusal to bargain Asking or accepting negotiating or attorneys fees Gross violation of CBA

STRIKES What is the definition of strike? o Temporary stoppage of work by concerted action arising from a labor dispute between employer and employee. What is a strike? o Temporary stoppage of work by concerted action of employees as a result of industrial or labor dispute o Characteristics: 1. There must be an ER-EE labor dispute 2. Employment relation is deemed to continue although in a state of belligerent suspension 3. Temporary work stoppage through concerted action

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Can an employee on official LOA strike? o No, because he cannot stop working when hes not even working 4. Striking group is LLO. If there is a deadlock, it must be by the EBR. What is a concerted action? o An activity undertaken by two or more employees, by one on behalf of others What is a lockout? o Temporary refusal of ER to furnish work as a result of industrial or labor dispute When can you strike? o There are only two. No other: o 1. ULP o 2. Deadlock in collective bargaining o What is the conversion doctrine? The strike can start as economic and is converted to ULP, or vice-versa o T/F You cannot strike before negotiation. False, you can strike on ULP. Who can strike? o 1. EBR, if there is one o 2. Any LLO, if there is none o T/F You cannot strike before certification election. False. If there is no EBR, an LLO can strike on ULP. o T/F You cannot strike before you register in the DOLE. True. Because an LLO has to be registered with DOLE. o T/F If you are not an independent union, hence a chartered union, you cannot strike without having registered with DOLE. True. Because the charter certificate only gives your personality to file for certification. o T/F If you are a chartered local, and you submitted all requirements, can you strike?

Yes. Upon submission, you have all the rights of an LLO. (No need to wait for approval) Can there be a strike when there is no union? o No. There has to be a union. o If not initiated by a labor union, is it still a strike? Yes, but its not a valid strike. Is a violation of a CBA an ULP? o If it amounts to ULP (Economic provision + malice). o All other violations are just grievances its still an actionable wrong, but not ULP. You go to the grievance machinery. o If you strike on the basis of a grievance, what happens? It is not a valid strike. o N.B. The distinction between gross and simple violations only applies to violations of the CBA. Do not get confused. T/F If there is no dispute with the employer, there can be no strike. o True. o Is a welga ng bayan a strike? No. There is no employer-employee dispute. It is a mere sympathy strike. (BUT see Biflex case below) Its a mass action that could lead to possible dismissal. o Is it proper to call it an illegal strike? No. Because its not a strike in the first place, so you dont even go into the inquiry whether its a legal or illegal strike. If its not an egg, do not call it a rotten egg. Its not an egg. The SC is guilty of doing this a lot. Although jurisprudence calls it a strike. Be careful. But in the Bar exam, follow this classification. Biflex v. Filflex: EEs who have no labor dispute their employer, but who on a day they are scheduled to work, refuse to work and instead join a welga ng bayan to protest the accelerating prices of oil commit an illegal work stoppage. o [Overturning the old doctrine that a welga ng bayan is not a strike. Here it was deemed a strike, but an illegal one because they didnt file notice to strike. Inevitably for this case its

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deemed illegal because the LO didnt follow procedure because how would it know that it should comply with the requirements when it didnt think it was a strike in the first place?] The SC has upheld certain actions by employees, ex. wearing armbands, having placards as valid expressions. But after the Dusit case, it seems unclear if these will already be considered as work stoppage or mass action. (NUWHRAIN Dusit Hotel Nikko Chapter v. CA, November 11, 2008) o NUWHRAIN-Dusit Hotel v. CA: Even without stoppage of work, when the employees showed up to work bald and the employer refused to let them enter the hotel and give them work this was considered a strike. o [This is weird because there is no work-stoppage, but its a strike.] There was a case where the employees did not apply for a permit to strike, but just applied for a mayors permit to hold a rally, on the theory that it is not a strike, but a mass action. o But the SC held that it is a strike because there is work stoppage; because they applied for work leaves, and there is a dispute existing. A. Soriano Aviation v. Employees Association of A. Soriano: Employees refusal to work on three consecutive holidays, prompted by their disagreement with management-imposed work schedule is considered a strike that was grounded on a non-strikeable issue, and a violation of the No-Strike Clause in the CBA. o [This is weird, because the court is in effect requiring employees to work on holiday.] Is a prayer rally a strike? o No, as long as it does not disrupt the work of those in duty. A hot tip is to include as well non-members of the union. And it is no question, valid, if done after work hours. If done during work hours, do not disrupt. T/F If there is no actual ground for a strike, there is no legal strike.

False. You can have a good faith strike, when the union in good faith believed there is a ground to strike, even if it is found not to have actually existed. o There must be actions done by the employer that would justify the belief that there was ULP committed. What do you do? o 1. File notice to strike stating that you intend to hold a strike on the stated ground to the Regional Office of the DOLE What is the cooling off period? At least 30 days before intended date of strike for CBA deadlock At least 15 days for ULP o Exception: No cooling-off period for union-busting, such as dismissal of union officers who are dulyelected (take note: duty elected) o Does termination of an appointed officer fall within this exception? No. What is the reason for 30 and 15 days? To give the parties chance to cool-off, in order to reconcile. What if you dont have an intended date? Its not required in the IRR. o 2. Inform the NCMB (DOLE) at least 24 hours before the strike vote This is the second notice. The purpose is to inform the NCMB and give it a chance to supervise the strike vote, and give it ample time to deploy personnel When do you file this? Anytime after notice to strike. Should the union wait for a DOLE representative? No, because it is not mandatory. o 3. Hold strike vote It has to be done after filing notice of strike. There is no specific period. Majority vote of whom?

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Union members only This is different from the eligible voters in a certification election Third notice: notice of result of strike vote Can there be an illegal strike vote? No such thing; there is no requirement that should be complied with. But what if there is absence of notice of strike vote? o There is defect in notice, but the strike vote itself is not illegal. o 4. 7 day strike ban Count this 7-day ban from the time you submitted the strike-vote results Can it be counted within the cooling off period? It can be wholly within, partly within, or entirely outside the cooling off period. Just use the submission of the results of the strike-vote as the starting point. What is the purpose of this? Allow DOLE to confirm the results of the vote, and allow any party to contest the results. Can they wait several weeks after to conduct the actual strike? Yes. What if the strike ban is over but the cooling off period is not? You cannot strike yet. Wait for the cooling off period to end. What if the cooling off period is done, but the strike ban is not? Same. Wait for the strike ban to end. How many notices all-in-all do you need for a valid strike? o Three notice of strike, notice of conduct of strike vote, notice of strike vote results

[Class question] What if the employer commits ULP against the minority union but the EBR doesnt strike on behalf of the minority union. Can the minority strike? o Jurisprudence No, they cannot. o Sir. MM Yes they should be able to, based on ULP. Especially when the EBR is in cahoots with the employer. After complying with all the four steps, what else do you have to comply with? o Cannot perform acts that would render a strike illegal. What are the prohibited acts during strikes? o 1. Strike or lock-out after assumption of jurisdiction o 2. Knowingly participating in illegal strike or participating in commission of illegal acts during strike Ground for termination of employment o 3. Obstruct, impede, or interfere with through force, violence, coercion, threats, or intimidation any peaceful picketing o 4. Employment or strikebreaker or being employed as strikebreaker o 5. Bringing in, introducing, or escorting by public officer or employee (including AFP/PNP) or armed persons any individual who seeks to replace strikers in entering or leaving premises o 6. Commit any act of violence, coercion, intimidation while engaging in picketing or obstruction of ingress or egress from ERs premises for lawful purposes or obstruct thoroughfares Should the employer wait for a case to be filed in order to fire an employee who committed an illegal act? Should the employer wait for a determination that the strike is illegal? o No. The act is illegal, independent of whether the strike is illegal or not. So the employer just has to follow the regular procedure of terminating an employee, independent of any holding in a case. Recent case: statements or charges made by strikers against management or company were considered illegal activities that would convert an otherwise valid strike into an illegal strike. o Ex. Libelous, statements against products or services

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Although general rule is that a strike is a conflict situation, so the language used is expected to be strong. So when does a strike change from valid to illegal due to the acts of the strikers? o It is a factual question. It is case-to-case basis. o A single or isolated act of violence does not convert. Only if the violence is pervasive. What is improved offer balloting? o 1. In case of strike Regional branch of Board conducts referendum by secret balloting on the ERs improved offer th On or before 30 day of strike At its own initiative or upon any partys request When at least majority of union members accept the improved offer, the strikers must immediately return to work o 2. In case of lockout Same, except the BOD is the one that votes on the reduced offer (Reduced offer balloting) What are the requisites of lawful picketing? o 1. Aim is to inform public about dispute o 2. Conducted peacefully No threats, intimidation, coercion, force No vandalism No obstruction of ingress/egress o What is the courts power to control picketing? In general, it cannot restrict it because its exercise of free speech. But it can also localize the sphere of picketing to establishments with related interest and insulate those establishments with totally no interest. A third party thus may have the right regulated when it would appear that the labor dispute exists between the union and the random third party. o What if there is no EER? Picketing is still valid, because its free speech. What is assumption of jurisdiction?

The Secretary will decide the conflict him or herself. Without the assumption order, the dispute will not be decided by government. Patagalan at patigasan. The parties have to decide the conflict themselves. When is it discretionary? When is it mandatory? o Discretionary For industries indispensable to national interest Assume jurisdiction or certify to NLRC for compulsory arbitration results into RTWO (see below) o Mandatory (within 24 hours) Labor disputes affecting hospitals, clinics, medical institutions Assume jurisdiction or certify to NLRC for compulsory arbitration What is the duty of the striking union or lockingout ER? Must provide and maintain effective skeletal workforce of medical and other health personnel to handle emergency cases during the strike/lock-out Distinguish assumption of jurisdiction from court jurisdiction over a case. o In assumption, the parties do not initiate it; the Secretary steps in. o Is it still an assumption even if a petition is filed? Yes. o What happens in an assumption order? Enjoin pending strike or ongoing strike. Workers have to return to work or cannot pursue the strike. How different is assumption from certification order? o Assumption: Secretary will decide the case. Certification: refers the matter to the NLRC. The NLRC will decide the case. o Both are interventions of government that convert the issue into a case to be decided upon by the Secretary or NLRC respectively. What are the implications/effects of assumption order?

o o

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Immediately return to work. Secretary of Labor issues a Return to Work Order in addition to the assumption order. o Can you have an assumption order without a return to work order? What if there is no return to work order? The return to work order is automatic with the assumption order. It is necessarily implied. Otherwise, its a free vacation for the laborers! Steel Corp. v. SMP o Go back to status quo ante. The employer must accept the employees under the same terms and conditions as before. o What if there is defiance of the Sec. of Labors orders? There can be disciplinary actions including dismissal, loss of employment, payment of damages, etc. To whom do you serve the assumption order? o To the union, and to the employer. o Serve to the president usually, as agent. What is the effect of declaration of illegality of a strike? What if the union officers did not participate in the strike and were reporting for work, but then the rest of the union were striking? o Union members will not be terminated, unless they performed illegal acts during the strike. o Union officers can be terminated. Even if they did not actually physically participate in the strike. o When can you terminate all strikers? 1. When there is a Return to Work Order and they refused to comply with it. And this RWO only happens when there is an Assumption or Certification. So mass termination cannot happen in ordinary strikes there has to be defiance of RWO, which can only be issued in an Assumption or Certification Order. 2. If everyone committed illegal activities, everyone will be terminated not because of the strike per se, but because of individual actions, even if the strike per se is legal.

o o

Is there payment of wages during strikes? o No, even if the strike is legal. o Exceptions? 1. ULP strike, in the discretion of the authority deciding the case 2. Strikers voluntarily and unconditionally offered to return to work, but the ER refused to accept the offer Back wages from when offer was made 3. When there is RTWO and the EEs are discriminated against When is there an award of back wages? o There is no reward of backwages, even if the strikers win. Can employers hire replacement workers? o Yes, employers can. What is the rule on injunctions? o No court or entity can enjoin a strike, picket, or lockout o What are the exceptions? 1. Prohibited or unlawful acts are being or about to be committed that would cause grave or irreparable damages 2. National interest o What are the essential conditions to grant temporary injunctive relief? 1. Complaint alleges facts which appear sufficient to constitute proper basis for injunction 2. Injunction is reasonably necessary to protect legal rights of the plaintiff pending litigation o Who issues? The NLRC o Can an injunction be issued ex parte? As a general rule, no. There must be testimony of witnesses and cross-examination. And there must be finding by the NLRC of the grounds above. o When can it be issued ex parte and what are the limitations? Substantial and irreparable injury to complainants property

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There is testimony under oath sufficient to justify if proved that a TRO must issue What are the safeguards? 1. Filing of adequate security to cover for damages if the TRO is granted erroneously or improvidently 2. TRO is no longer than 20 days What is the Innocent Bystander Rule? o Peaceful concerted activities may be regulated at the instance of innocent bystanders if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection with involves them. In sum, what are the four grounds to make a strike valid? o 1. Grounds o 2. Procedure o 3. Conduct o 4. Compliance with return to work

DISPUTE SETTLEMENT Labor Arbiter What is jurisdiction of LAs? o [Labor disputes] o 1. ULP o 2. Termination disputes What about termination of cooperative members? Not covered by LA; no ER-EER o 3. Cases from prohibited activities during strikes, including questions on legality of strike/lock-out o [Claims against ER] o 4. Claims for wages, rates of pay, hours of work, and other terms of employment o 5. Claims for damages arising from ER-EE relationship o 6. Money claims from ER-EE relationship in amount exceeding P5000

7. All monetary claims of OFWs from ER-EER or by virtue of law/contract, including damages (RA 8042) o [Misc] o 8. Wage distortion cases in unorganized establishments o 9. Enforcement of compromise agreements when there is noncompliance of parties LA has no jurisdiction over: o 1. Intra-corporate disputes RTC o 2. Cases involving corporate officers (they are not EEs) But an EE who rose from the ranks can be treated as a regular EE o 3. Cases involving GOCCs with original charters CS Law o 4. Cases involving entities immune from suit o 5. Local water districts (quasi-public corporations) o 6. Actions based on tort Regular courts have J Where do you appeal the LAs decision? o Within 10 days, to NLRC Whats the next step? o Rule 65 to the CA And then? o Rule 45 to SC What is the general rule? o Period for appeals is 10 days to the NLRC from the LA. o You cant file an MR in LA level. How is appeal to the NLRC from the LA done? o File a notice of appeal + memorandum of appeal (together) within 10 days. This is how it is different from ordinary appeal where the notice of appeal and the memorandum are separately filed. o What is the rule on the bond filed? In NLRC, amount of bond filed by losing ER is the based on the amount in the judgment appealed from, and not based on the amount you want to appeal.

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So if the judgment is P500k, but youre only appealing the P200k the bond is based on the P500k. The rule is applied strictly. The Bond has to be filed together with the appeal and the memorandum, ALL within the 10 day period. Or else appeal will be dismissed. o Does petition to reduce the bond excuse the ER from filing one? No. Even with petition for reduction of bond, you still have to file bond first in substance, and just attach your petition for reduction of bond together with your appeal. Motion to reduce bond also does not toll the running of the period to appeal. o Who has no jurisdiction to accept a reduced bond? SECRETARY OF LABOR: NO JURISDICTION TO ACCEPT A REDUCED BOND. Is an MR allowed in the NLRC? o Yes, MR allowed in NLRC. What is the next step? o The next step is to file a special civil action under Rule 65 to the Court of Appeals, within 60 days. After CA, you can file an MR. o Then you can file a Rule 45 appeal to the Supreme Court, within 15 days, together with the filing fees; you can file motion for extension for 30 days. Then MR. and MR. and MR. See notes on termination for reinstatement pending appeal

Certified labor dispute causing/likely to cause strike/lockout in an industry indispensable to national interest as certified by the DOLE Secretary What is the exclusive appellate J of the NLRC? o 1. All cases decided by the LA, including contempt cases o 2. Money claims decided by RDs (P5000 and below) See notes in termination for effects of NLRC reversal of LA decision allowing reinstatement

Bureau of Labor Relations (BLR) Independent unions Regional Director BLR CA SC Federations and national unions BLR Sec. of Labor CA SC

NLRC What is the original J of the NLRC? o 1. Injunction in ordinary labor disputes o 2. Injunction in strikes or lockouts See the special requisites when this is allowed in the strikes part o 3. Certification case

What is the BLRs jurisdiction? o 1. Inter-union conflicts (includes registration, cancellation, etc.) o 2. Intra-union conflicts (includes registration, cancellation, etc.) o 3. All disputes, grievances, problems from labor-management relations in workplaces except those falling under the GM and VA (CBA provisions) o 4. Complaint re: federations, national unions, industry unions, their officers/member organizations Does the BLR have jurisdiction for claim of damages arising from intra- or inter-union conflicts? o No, the BLR is not empowered to adjudicate claims for damages. When is jurisdiction original? o If the case involves federations o Appeal is to DOLE Sec (10 days), and then to CA, and then SC When is jurisdiction appellate? o If the case involves independent unions (original J is with RD) o Appeal is to BLR, and then to CA, and then SC What if parties entered into a compromise agreement with the assistance of BLR or Regional Office of DOLE?

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Binding upon parties The NLRC can only interfere when there is non-compliance or prima facie evidence of fraud/misrepresentation/coercion o What if the compromise agreement is already done and then the parties just appear before the BLR or Regional Office to file it? NOT valid. Note that the provisions say the compromise must be assisted by the BLR/Regional Office. Can the BLR issue a subpoena? o Yes, when relevant to the labor dispute What is the rule on privileged communication? o Statements or information given in conciliation meetings cannot be used as evidence in the NLRC. Even the conciliators cannot be asked to testify on matters taken up in the conciliation meetings.

o o

National Conciliation and Mediation Board (NCMB) What is the NCMBs jurisdiction? o 1. Conciliation o 2. Mediation o 3. Voluntary arbitration cases Recall provisions mentioning the NCMB: o Failure to come to agreement in CBA negotiations o For voluntary arbitration, when there is no agreement as to who are the VAs, the NCMB does it o Given the notice of strike vote in concerted acts

Regional Directors (RDs) What is the jurisdiction of RDs? o 1. Visitorial powers (actually exercised by Labor Secretary, but usually delegated to RDs) o 2. Small money claims (P5000 and below) o 3. Violation of constitution, by-laws, rights and conditions of members

4. Inter-union and intra-union disputes involving independent unions and chartered locals (see above, BLR) What are the visitorial powers of the Labor Secretary? o Power of the Sec of Labor or authorized representative to visit/check the premises of the employer to check compliance with the law o Ocular inspection, interviews, can require to produce records/documents What kind of rule should be violated? o Ruling of Labor Arbiter or law on labor standards or other laws identified by Congress What can the Secretary do given those powers? o Secretary will give compliance orders for the employer to follow Is this retroactive? (i.e. can the compliance order, say for back wages due to salary less than minimum wage, retroact to the past months) Yes. o What if the employer admits to the adverse findings? Compliance order must be complied with and there can be writ of execution What if the employer contests? As a general rule the employer need not explain because its a simple compliance matter. As an exception, sometimes, the employer is given a chance to be heard In this case, a writ of execution cannot issue What is required for a contest? There must be a contest and he must raise issues that are supported by documentary proofs not considered during course of inspection. o What if there is danger to the life/safety of the employees? The Secretary of Labor can authorize closure or stoppage of work What if there is no danger to life or safety, can there be closure or stoppage?

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No. What is the safeguard? Within 24 hours, a hearing must be had to determine w/n the stoppage must be lifted Are the workers paid during stoppage? Yes, if the violation is due to the fault of the ER. Why does 218(b) start with notwithstanding? o Because 129 and 217 seem to be contrary to 218, but this would have no effect What if the employer denies the employer-employee relationship? o Likewise, this is not a proper defense. There can still be exercise of powers by the Secretary of Labor. Peoples Broadcasting v. Secretary: Does the Secretary of Labor have jurisdiction to determine the existence of ER-EE relationship (when there is none) in the exercise of the visitorial and enforcement powers under Art. 128? o No. Art 128s grant of visitorial and enforcement power is for the purpose of determining violations of and enforcing the Labor Code and any labor law, wage order, or rules and regulations. If there is no ER-EE relationship in the first place, the duty of the ER to adhere to labor standards with respect to the non-employees is questionable. The Secretarys power under Art. 128 does not apply in two instances: A. Where the ER-EE relationship has ceased B. Where no such relationship ever existed What is the power described in 129? o Recovery of wages, simply money claims, and other benefits. o Who has the right to exercise this power? Regional director of the DOLE o Whats the commonality with 128 and difference? The Regional director can exercise 128 powers (as a duly authorized officer) and 129 powers, by provision. o Differentiate this power from 128.

Here, the employee files a claim against the employer. In 128, the Labor Secretary/officer acts motu propio. What is covered by 129? o Money claims and benefits only. No reinstatement issues must be included. It must not exceed P5000. It must be the main action and not complicated by other actions, thus simple. Whats the significance of the amount? It determines who has jurisdiction. If its beyond 5000, it goes to the Labor Arbiter. o Is ULP covered? No. o What about non-payment of CBA benefits? No. Violation of CBA falls under Grievance Machinery. (Or ULP, if it is a gross violation of economic provision) o What if you have resigned and you still want to claim unpaid wages accrued during employment? You do not want reinstatement. Covered by 129. So why does 128 say notwithstanding 129? o See below. If the regional director receives a report from an employee, asking for help due to non-payment of wages and benefits, and he, as authorized, inspected the premises what power was exercised? o 128 applies. Even if it was prompted by a letter complaint, what were exercised were the visitorial and inspection powers. o Even the compliance order will be based not on the letter complaint, but on the findings. From the regional office, where do you go? And how much time? o If 128 go to Sec. of Labor 5 days o If 129 go to NLRC 5 days N.B. For labor, its always ten days for exercise of appellate powers. These are the exceptions

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DOLE Secretary What is the scope of visitorial powers of the DOLE Secretary, as discussed above? o 1. Access to ERs records and premises at any time of day or night when there is work o 2. Copy records o 3. Question any EE o 4. Investigate matters to determine w/n there are violations of Labor Code o 5. Issue compliance orders See discussion above o 6. Issue writs of execution to appropriate authority for enforcement of orders Except when the ER contests findings of the officer and raises issues supported by documentary proof not considered during inspection raise this to the LA What cannot be done vis--vis the Sec. of Labors powers in 128? o Cannot be subject of injunction o Unlawful for any person/entity to obstruct or impede the orders of the Sec. of Labor issued pursuant to 128

o o In sum: Labor dispute

Through Rule 43 to the CA And then, to the SC through Rule 65

128

129

CBA dispute (orged) GM

Indep unions

LA

NLRC CA (65) SC (45)

RD (5 days up) Labor Sec CA (65) SC (45)

RD (5 days up) NLRC CA (65) SC (45)

RD

Feds, nationa l unions BLR

Cert. elec.

MedArbiter Labor Sec CA (65) SC (45)

VA CA (43) SC (65)

BLR CA (65) SC (45)

Labor Sec CA (65) SC (45)

Prescription of cases Case ULP Money claims arising from ER-EER Offenses penalized by the Labor Code (except ULP) Illegal dismissal Simple illegal recruitment Economic sabotage Prescriptive period 1 year from the act 3 years from cause of action 3 years from cause of action 4 years (based on injury to rights, under NCC) 5 years 20 years

Voluntary arbitrator (VA) What is the jurisdiction of VAs? o 1. Grievances from interpretation of CBAs (from GM) o 2. Arising from interpretation or enforcement of company personnel policies (from GM) o 3. Wage distortion issues from application of wage distortion orders in organized establishments If unorganized, go to LA o 4. Arising from interpretation and implementation of productivity incentive programs in RA 6971 o 5. Any other labor disputes upon agreement of the parties o 6. Dispute before or during compulsory arbitration proceedings Can be submitted to VA instead How is the VAs decision appealed?

Rules in Labor Cases Rules of Evidence in ROC do not control o Use reasonable means to ascertain facts o Without regard to deep technicalities of law Parties may be represented by legal counsel but the LA, commissioner, or chairman has complete control of proceedings at all stages How is jurisdiction acquired? o 1. Service of summons general rule o 2. Voluntary appearance

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Failure to implead substitute party is not a fatal defect When are docket fees not required? o Labor standards claims When are docket fees shared by the parties? o Bargaining deadlock

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