Ateneo Labor Law Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007 Labor Law & Social Legislation

SUMMER REVIEWER

LABOR STANDARDS 3. to engage in peaceful concerted activities, including strike in accordance with law

4. to enjoy security of tenure I. GENERAL PRINCIPLES 5. to work under humane conditions 6. to receive a living wage Labor Code – principal labor law of the country. But 7. to participate in policy and decision-making even now, there are Labor Laws that are not found in

processes affecting their rights and benefits as the Labor Code. may be provided by law.

Social Legislation – the promotion of the welfare of Art. 4. Construction in favor of labor all the people, the adoption by the government of When the interest of labor and capital collide, the measures calculated to insure economic stability of

heavier influence of capital should be all the component elements of society thru the counterbalanced with the sympathy and maintenance of proper economic and social compassion of law for the less privileged equilibrium in the interrelations of the members of the workers. But protection to labor does not mean community, constitutionally, thru the adoption of oppression or destruction of capital. The measures legally justifiable, or extra-constitutionally, employer’s act will be sustained when it is in the thru the exercise of powers underlying the existence right. [Eastern Shipping Lines v. POEA, 166 of all governments, on the time honored principle of SCRA 523 (1998)] salus populi esta suprema lex (Calalang v. Williams,

Court decisions adopt a liberal approach that 02 December 1940) favors the exercise of labor rights. The mandate is simply to resolve doubt in favor of labor. If Social Justice – humanization of laws and the there is no doubt in implementing and interpreting equalization of social and economic forces by the the law, labor will enjoy no built-in advantage and State so that justice in its rational and objective the law will have to be applied as it is. secular conception may at least be approximated

When the subject matter is covered by the Labor Code, doubts which involve implementation and Labor Standards – sets out the minimum terms, interpretation of labor laws should be resolved in conditions, and benefits of employment that favor of labor, even if the question involves Rules employers must provide or comply with and to which of Evidence. employees are entitled as a matter of legal right

Management Rights / Prerogative – except as Labor Relations – defines the status, rights and limited by special laws, an employer is free to duties, as well as the institutional mechanisms that regulate, according to his own discretion and govern the individual and collective interactions judgment, all aspects of employment, including hiring, between employers, employees and their work assignments, working methods, time, place and representatives manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, Art. 3. Declaration of basic policy transfer of employees, work supervision, lay-off of Afford protection to labor workers and the discipline, dismissal and recall of Promote full employment workers Ensure equal work opportunities regardless of sex, race, or creed Capitol Medical Center, Inc. v. Meris (16 Regulate the relations between workers and

Q uic kT im e™ and a

employers September 2005) TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.As long as the company’s exercise of the same is Assure worker’s rights to self-organization,

exercised in good faith for the advancement of the collective bargaining, security of tenure, and just employer’s interest, and not for the purpose of and humane conditions of work defeating or circumventing the rights of the employees under special laws or valid agreements, Seven basic rights of workers guaranteed by the the courts will uphold them. Constitution: 1. right to organize

2. to conduct collective bargaining or negotiation with management

—Adviser: Atty. Marlon J. Manuel; Head: Ryan Quan; Understudy: Kate Sabado; Labor Standards: Kukay Malabanan; Labor Relations: Peewee Estrella; Social Legislation: Binkki Hipolito—

Labor Law & Social Legislation Summer Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007

Wages are defined as remuneration or Philippine Blooming Mills Employees Association earnings, however designated, capable of v. Philippine Blooming Mills, GR No. L-31195, 05 being expressed in terms of money, whether June 1973 fixed or ascertained on a time, task, piece or The primacy of human rights – freedom of commission basis, or other method of expression, of peaceful assembly and of petition for calculating the same, which is payable by an redress of grievances over property rights has been employer to an employee under a written or sustained. unwritten contract of employment for work done or to be done, or for services rendered PAL v. NLRC, GR No. 85985 (1993) or to be rendered, and included the fair and The exercise of management prerogatives is not reasonable value, as determined by the unlimited. A line must be drawn between Secretary of Labor, of board, lodging, or management prerogatives regarding business other facilities customarily furnished by the operations per se and those which affect the rights of employer to the employee. [Ruga v. NLRC, employees. In treating the latter, management should 181 SCRA 266 (1990)] see to it that its employees are at least properly

2. Hiring – employment relation arises from informed of its decisions and modes of action. contract of hire, express or implied [Ruga v. NLRC, 181 SCRA 266 (1990)]

Selection and engagement of the Art. 5. Rules and regulations workers rests with the employers Department of Labor and Employment (DOLE)

Not a conclusive test since it can be Lead agency in enforcing labor laws and it avoided by the use of subcontracting possesses rule-making power in the enforcement agreements or other contracts other than of the Code employment contracts But a rule or regulation that exceeds the

3. Firing – disciplinary power exercised by Department’s rule-making authority is void. employer over the worker and the corresponding sanction imposed in case of violation of any of its Art. 6. Applicability of Labor Code rules and regulations Applies alike to all workers, except as otherwise

4. Control, not only over the end product / RESULT provided by law, whether agricultural or non-of the work, but more importantly, control over agricultural. the MEANS through which the work is Applies to a government corporation incorporated accomplished. (most essential element; without under the Corporation Code it, there is no EER)

B. Economic Relations Test – a subordinate / II. EMPLOYER –EMPLOYEE RELATIONSHIP alternative test. Existing economic conditions (EER) between the parties are used to determine whether EER exists. A. ELEMENTS OF RELATIONSHIP 1. payment of PAG-IBIG Fund contributions 2. payment / remittance of contributions to the State Jurisprudential Tests to Determine Existence of

Insurance Fund EER: 3. deduction of withholding tax 4. deduction / remittance of SSS contributions A. The employer has the ability (need not be actual) to exercise control over the following: Insular Life Assurance Co., Ltd. v. NLRC, GR No. 119930, 12 March 1998 1. Payment of Wages

The employment status of a person is defined payment of compensation by way of Q uic kT im e™ and a

and prescribed by law and not by what the parties TI FF ( U nco mpr es s ed) dec om pr ess or

commission does not militate against the ar e needed to s ee t his pi ct ur e.

say it should be. conclusion EER exists. Under Art. 97 of the Labor Code, "wage" shall mean "however Algon Engineering Construction Corp. v. NLRC, designated, capable of being expressed in GR No. 83402, 06 October 1997 terms of money, whether fixed or ascertained

No particular evidence is required to prove the on a time, task, price or commission basis…" existence of an EER. All that is necessary is to show (Insular Life Assurance Co., Ltd. V. NLRC, that the employer is capable of exercising control GR No.119930, 12 March 1998) over the employee. In labor disputes, it suffices that

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there be a causal connection between the claim Thus, the exclusivity restriction clearly springs from a asserted and the EER. Control of the employee's regulation issued by the Insurance Commission, and conduct is commonly regarded as the most crucial not from an intention by petitioner to establish control and determinative indicator of the presence or over the method and manner by which private absence of an employer-employee relationship. respondent shall accomplish his work. This feature is not meant to change the nature of the relationship Aurora Land Projects Corp. v. NLRC, GR No. between the parties, nor does it necessarily imbue 114733, 02 January 1997 such relationship with the quality of control

Whenever the existence of EER is in dispute, envisioned by the law. four elements constitute the reliable yardstick (four- So too, the fact that private respondent was fold test); (a) the selection and engagement of the bound by company policies, memo/circulars, rules employee; (b) the payment of wages; (c) the power of and regulations issued from time to time is also not dismissal; and (d) the employer's power to control the indicative of control. With regard to the territorial employee's conduct. It is the so-called "control test," assignments given to sales agents, this too cannot be and that is whether the employer controls or has held as indicative of the exercise of control over an reserved the right to control the employee not only as employee. Further, not every form of control that a to the result of the work to be done but also as to the party reserves to himself over the conduct of the means and methods by which the same is to be other party in relation to the services being rendered accomplished, which constitute the most important may be accorded the effect of establishing an index of the existence of the employer-employee employer-employee relationship. relationship Stated otherwise, an EER exists where the person for whom the services are performed Ruga v. NLRC, 181 SCRA 266 (1990) reserves the right to control no only the end to be The employer-employee relationship between the achieved but also the means to be used in reaching crew members and the owners of the fishing vessels such end. engaged in deep-sea fishing is merely suspended during the time the vessels are drydocked or

undergoing repairs or being loaded with the Filipinas Broadcasting Network, Inc. v. NLRC, GR No. 118892, 11 March 1998 necessary provisions for the next fishing trip. The

There could be no EER where "the element of said ruling is premised on the principle that all these control is absent; where a person who works for activities i.e., drydock, repairs, loading of necessary another does so more or less at his own pleasure provisions, form part of the regular operation of the and is not subject to definite hours or conditions of company fishing business. work ; and in turn is compensated according to the result of his efforts and not the amount thereof, we B. INDEPENDENT CONTRACTORS AND should not find that the relationship of employer- LABOR-ONLY CONTRACTORS employee exists." Independent Labor – Only Dy Keh Beng v. International Labor, GR No. L- Contractors Contractors 32245, 25 May 1979 has sufficient substantial has NO substantial

It should be borne in mind that the control test capital OR investment in capital OR investment in calls merely for the existence of the right to control machinery, tools or the form of machinery, the manner of doing the work, not the actual exercise equipment directly or tools or equipment of the right. intended to be related to the job contracted AFP Mutual Benefit Association v. NLRC, GR No. carries an independent has no independent 102199, 28 January 1997 business different from business

However, not all that glitters is control. The the employer’s Q uic kT im e™ and a

fact that private respondent was required to solicit TI FF ( U nco mpr es s ed) dec om pr ess or

undertakes to perform performs activities ar e needed to s ee t his pi ct ur e.

business exclusively for petitioner could hardly be the job under its own directly related to the considered as control in labor jurisprudence. Under account and main business of the Memo Circulars No. 2-81 and 2-85 issued by the responsibility, FREE from principal Insurance Commissioner, insurance agents are the principal’s control barred from serving more than one insurance NO EER except when Principal treated as direct company, in order to protect the public and to enable the contractor or employer of the person insurance companies to exercise exclusive subcontractor fails to pay recruited in all instances supervision over their agents in their solicitation work. the employees’ wages. (contractor is deemed

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agent of the principal) 2. The employees recruited, supplied or placed by such contractor or subcontractor are performing LIMITED liability Principal’s liability activities which are directly related to the main (principal solidarily liable extends to all rights, business of the principal; or with contractor or duties and liabilities

3. The contractor does not exercise the right to subcontractor only when under labor standard control over the performance of the work of the latter fails to comply with laws including the right to contractual employee. requirements as to self-organization

unpaid wages and other Substantial capital or investment – capital stocks labor standards and subscribed capitalization in the case of violations. corporations, tools, equipment, implements, PERMISSIBLE PROHIBITED machineries and work premises, actually and directly used by the contractor or subcontractor in the Contracting or subcontracting – an arrangement performance or completion of the job, work or service whereby a principal agrees to put out or farm out with contracted out. a contractor or subcontractor the performance or completion of a specific job, work or service within a Right to Control – right reserved to the person for definite or predetermined period, regardless of whom the services of the contractual workers are whether such job, work or service is to be performed performed, to determine not only the end to be or completed within or outside the premises of the achieved, but also the manner and means to be used principal in reaching that end. Contractor or subcontractor – any person or entity The test to determine whether one is a job or engaged in a legitimate contracting or subcontracting

labor-only contractor is to look into the elements arrangement of a job contractor. If ALL elements of a job contractor are present, then he is a job Contractual employee – one employed by a contractor. Otherwise, he is a labor-only contractor or subcontractor to perform or complete a contractor. Absent one of the elements for being job, work or service pursuant to an arrangement a job contractor, the person is a labor-only between the latter and a principal contractor.

On the other hand, not all requisites of a labor-Principal – any employer who puts out or farms out a only contractor need to be present. As long as job, service or work to a contractor or subcontractor any one of the elements is present, then the person is a labor-only contractor. Permissible Job Contracting; Conditions

a. The contractor carries on an independent Posting of Bond – an employer or indirect employer business; may require the contractor or subcontractor to furnish b. Undertakes the contract work on his own account a bond equal to the cost of labor under contract, on under his own responsibility according to his own condition that the bond will answer for the wages due manner and method, free from the control and the employees should the contractor or direction of his employer or principal in all matters subcontractor, as the case may be, fail to pay the connected with the performance of the work same except as to the results thereof; and c. The contractor has substantial capital or Civil liability of employer and contractors – Every investment in the form of tools, equipment, employer or indirect employer shall be jointly and machineries, work premises, and other materials severally liable with his contractor or sub-contractor which are necessary in the conduct of his for the unpaid wages of the employees of the latter. business. Q uic kT im e™

and aSuch employer or indirect employer may require the TI FF ( U nco mpr es s ed)

dec om pr ess or ar e needed to s ee t

his pi ct ur e.contractor or sub-contractor to furnish a bond equal Labor-only Contracting – an arrangement where to the cost of labor under contract on condition that the contractor or subcontractor merely recruits, the bond will answer for the wages due the supplies or places workers to perform a job, work or employees should the contractor or subcontractor, as service for a principal, and any of the following the case may be, fail to pay the same elements are present: 1. The contractor or subcontractor does not have Liability of the principal to the employee in cases substantial capital or investment which relates to of illegal dismissal the job, work or service to be performed

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1. Joint and several with the employer, but with the iii. Requiring him to sign a contract fixing the right to reimbursement from the employer- period of employment to a term shorter contractor than the term of the contract between the

2. Wage differentials only to the extent where the principal and the contractor or employee performed the work under the subcontractor, unless the latter contract is principal. divisible into phases for which substantially

3. Separation pay and backwages, only when the different skills are required and this is principal has some relation to the termination made known to the employee at the time of (such as when he conspired to terminate) engagement (Rosewood Processing Inc. v. NLRC, GR Nos. 116476-84, 21 May 1998) d. Contracting out of a job, work or service through NOTE: this ruling is an obiter and made an an in-house agency which refers to a contractor unjustified interpretation of Art. 109 of the Labor or subcontractor engaged in the supply of labor Code. Art. 109 makes the principal liable in illegal which is owned, managed or controlled by the dismissal WON there was fault on his part. principal and which operates solely for the

principal Prohibited Acts (DO 18-02): a. Contracting out of a job, work or service when not e. Contracting out of a job, work or service directly

done in good faith and not justified by the related to the business or operation of the exigencies of the business and the same results principal by reason of a strike or lockout whether in the termination of regular employees and actual or imminent reduction of work hours or reduction or splitting of the bargaining unit f. Contracting out of a job, work or service being

performed by union members when such will b. Contracting out of work with a "cabo" as defined interfere with, restrain or coerce employees in the

in Section 1 (ii), Rule I, Book V of these Rules. exercise of their rights to self organization as "Cabo" refers to a person or group of persons or provided in Art. 248 (c) of the Labor Code, as to a labor group which, in the guise of a labor amended

organization, supplies workers to an employer, with or without any monetary or other Existence of EER – The contractor or subcontractor consideration whether in the capacity of an agent shall be considered the employer of the contractual of the employer or as an ostensible independent employee for purposes of enforcing the provisions of contractor the Labor Code and other social legislation.

c. Taking undue advantage of the economic The principal, however, shall be solidarily liable

situation or lack of bargaining strength of the with the contractor in the event of any violation of contractual employee, or undermining his any provision of the Labor Code, including the security of tenure or basic rights, or failure to pay wages. circumventing the provisions of regular The principal shall be deemed the employer of employment, in any of the following instances: the contractual employee in any of the following i. In addition to his assigned functions, cases as declared by a competent authority:

requiring the contractual employee to a. where there is labor-only contracting; or perform functions which are currently being b. where the contracting arrangement falls performed by the regular employees of the within the prohibited acts principal or of the contractor or subcontractor; Registration of Contractors and Subcontractors

ii. Requiring him to sign, as a precondition to The registration of contractors and Q uic kT im e™ and a

employment or continued employment, an TI FF ( U nco mpr es s ed) dec om pr ess or

subcontractors shall be necessary for purposes ar e needed to s ee t his pi ct ur e.

antedated resignation letter; a blank of establishing an effective labor market payroll; a waiver of labor standards information and monitoring. including minimum wages and social or Failure to register shall give rise to the welfare benefits; or a quitclaim releasing presumption that the contractor is engaged in the principal, contractor or subcontractor labor-only contracting. from any liability as to payment of future claims; and Neri v. NLRC, GR Nos. 97008-09, 23 July 1993

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a. there is written agreement between them The law does not require both substantial capital under which the former agree to work for the and investment in the form of tools, equipment and latter in exchange for the privilege to study machineries. This is clear from the use of the free of charge conjunction “or.” If the intention was to require the

b. provided, the students are given real contractor to prove that he has both capital and the opportunities, including such facilities as may requisite investment, then the conjunction “and” be reasonable and necessary to finish their should have been used. chosen courses under such agreement While these services (janitorial, security and even technical or other specific services) may be

2. Resident physicians in training – There is EER considered directly related to the principal business between resident physicians and the training of the employer, nevertheless, they are not hospital unless: necessary in the conduct of the principal business of a. There is a training agreement between them the employer. b. The training program is duly accredited or

approved by the appropriate government Lapanday Agricultural Dev’t Corp. v. CA, GR No. agency. 112139, 31 January 2000

It will be seen from the above provisions that the principal (petitioner) and the contractor (respondent)

III. PRE-EMPLOYMENT are jointly and severally liable to the employees for their wages. The joint and several liability of the

A. PRINCIPLES AND DEFINITIONS contractor and the principal is mandated by the Labor Code to assure compliance with the provisions

therein including the minimum wage. The contractor JMM Promotion & Management Inc. v. CA, GR No. is made liable by virtue of his status as direct 120095, 05 August 1996 employer. The principal, on the other hand, is made The POEA Rules are clear. A reading thereof the indirect employer of the contractor's employees to readily shows that in addition to the cash and surety secure payment of their wages should the contractor bonds and the escrow money, an appeal bond in an be unable to pay them. Even in the absence of an amount equivalent to the monetary award is required EER, the law itself establishes one between the to perfect an appeal from a decision of the POEA. principal and the employees of the agency for a Obviously, the appeal bond is intended to further limited purpose i.e. in order to ensure that the insure the payment of the monetary award in favor of employees are paid the wages due them. the employee if it is eventually affirmed on appeal to the NLRC. Overseas recruiters are subject to more

stringent requirements because of the special risks to Several factors to consider to Determine Whether which our workers abroad are subjected by their Contractor is carrying on an independent foreign employers, against whom there is usually no business: direct or effective recourse. The overseas recruiter is 1. nature and extent of work solidarily liable with the foreign employer. The bonds 2. skill required and the escrow money are intended to insure more 3. term and duration of the relationship care on the part of the local agent in its choice of the 4. right to assign the performance of specified foreign principal to whom our overseas workers are pieces of work to be sent. Every intendment of the law must be 5. control and supervision of worker interpreted in favor of the working class, conformably 6. power of employer with hiring, firing, and to the mandate of the Constitution. By sustaining payment of wages rather than annulling the appeal bond as a further 7. control of the premises protection to the claimant employee, this Court 8. duty to supply premises, tools, appliances, affirms once again its commitment to the interests of materials and labor Q uic kT im e™

and alabor. TI FF ( U nco mpr es s ed)

dec om pr ess or9. mode, manner, terms of payment (Vinoya v. ar e needed to s ee t

his pi ct ur e. NLRC, GR No. 126286, 02 February 2000) PNB v. Cabansag, GR No. 157010, 21 June 2005

Noteworthy is the fact that respondent likewise C. SPECIAL CASES applied for and secured an Overseas Employment Certificate from the POEA through the Philippine 1. Working scholars – no EER between students Embassy in Singapore. The Certificate, issued on on one hand, and schools, colleges or March 8, 1999, declared her a bona fide contract universities on the other, where: worker for Singapore. Under Philippine law, this

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document authorized her working status in a foreign liberate the worker from oppressive terms and country and entitled her to all benefits and processes conditions of employment under our statutes. Thus, even assuming that she 5. To influence or to attempt to influence any person was considered at the start of her employment as a or entity not to employ any worker who has not “direct hire” governed by and subject to the laws, applied for employment through his agency common practices and customs prevailing in 6. To engage in the recruitment or placement of Singapore she subsequently became a contract workers in jobs harmful to public health or worker or an OFW who was covered by Philippine morality or to the dignity of the Republic of the labor laws and policies upon certification by the Philippines POEA. At the time her employment was illegally 7. To obstruct or attempt to obstruct inspection by terminated, she already possessed the POEA the Secretary of Labor or by his duly authorized employment Certificate. Whether employed locally or representatives overseas, all Filipino workers enjoy the protective 8. To fail to file reports on the status of employment, mantle of Philippine labor and social legislation, placement vacancies, remittance of foreign contract stipulations to the contrary notwithstanding. exchange earnings, separation from jobs, This pronouncement is in keeping with the basic departures and such other matters or information public policy of the State to afford protection to labor, as may be required by the Secretary of Labor promote full employment, ensure equal work 9. To substitute or alter employment contracts opportunities regardless of sex, race or creed, and approved and verified by the Department of regulate the relations between workers and Labor from the time of actual signing thereof by employers. the parties up to and including the periods of expiration of the same without the approval of the

Secretary of Labor B. RECRUITMENT AND PLACEMENT 10. To become an officer or member of the Board of

any corporation engaged in travel agency or to 1. Definition: Illegal Recruitment; Prohibited Acts be engaged directly or indirectly in the management of a travel agency Recruitment and Placement – any act of 11. To withhold or deny travel documents from (CETCHUP) canvassing, enlisting, transporting, applicant workers before departure for monetary contracting, hiring, utilizing or procuring workers and or financial considerations other than those includes (CRAP) includes contract services, referrals, authorized under this Code and its implementing advertising for employment, promising for rules and regulations employment locally or abroad, whether for profit or 12. Failure to actually deploy without valid reason as not: Provided, That any person or entity which, in any determined by DOLE manner, offers or promises for a fee, employment to 13. Failure to reimburse expenses incurred by the two or more persons shall be deemed engaged in worker in connection with his documentation and recruitment and placement processing for purposes of deployment, in cases where the deployment does not actually take Prohibited Practices place without the worker’s fault 1. To charge or accept, directly or indirectly, any

amount greater than that specified in the Art. 38. Illegal recruitment schedule of allowable fees prescribed by the Any recruitment activities, including the prohibited Secretary of Labor, or to make a worker pay any practices enumerated under Article 34 of this amount greater than that actually received by him Code, to be undertaken by non-licensees or non-as a loan or advance holders of authority, shall be deemed illegal and 2. To furnish or publish any false notice or punishable under Article 39 of this Code. The information or document in relation to recruitment Department of Labor and Employment or any law or employment Q uic kT im e™ and a

enforcement officer may initiate complaints . TI FF ( U nco mpr es s ed) dec om pr ess or

3. To give any false notice, testimony, information ar e needed to s ee t his pi ct ur e.

or document or commit any act of

People v. Panis, 142 SCRA 664 (1986) misrepresentation for the purpose of securing a The number of persons dealt with is not the basis license or authority under this Code in determining WON an act constitutes recruitment 4. To induce or attempt to induce a worker already

and placement. Any of the acts mentioned in Article employed to quit his employment in order to offer 13 (b) will constitute recruitment and placement even him to another unless the transfer is designed to if only one prospective worker is involved. In that case, a license or authority from POEA is needed.

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The proviso about “two or more persons” merely lays 1. By a syndicate – carried out by a group of 3 or down a rule of evidence: where fee is collected more persons confederating with one another because of a promise or offer of employment to two 2. In large scale – committed against 3 or more or more prospective workers, the individual or entity persons individually or as a group dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words People v. Fernandez, et. al., 07 March 2002 “shall be deemed” create that presumption. These categories are separate or independent

categories. If there is only one complainant in several complaints, there is no illegal recruitment in large. But RA 8042 – Overseas where there are three conspiring recruiters, there is Labor Code Filipinos and Overseas illegal recruitment by a syndicate. Migrant Workers Act local recruitment and applies to recruitment for Non-licensee / Non-Holder of authority – any employment overseas employment person, corporation or entity which has not been Illegal Recruitment Illegal Recruitment (Sec. issued a valid license or authority to engage in (Art. 38): 6): recruitment and placement by the Secretary of Labor, Any recruitment Any recruitment activity or whose license or authority has been suspended, activity including committed by non-revoked or cancelled by the POEA or the Secretary Prohibited Acts licensees / non-holders under Art. 34 of authority; OR Who are liable: committed by non- Prohibited Acts (same Principals, accomplices, and accessories licensees or non- as Art. 34 of LC) For juridical persons, the officers having control, holders of authority. committed by any

management or direction of their business shall person, whether a non-be liable. Elements: licensee, non-holder,

Where illegal recruitment is proved but the 1. That the offender licensee or holder of elements of “large scale” or “syndicate” are has no valid license authority. absent, the accused can be convicted only of or authority required Added the following in “simple illegal recruitment”. (People v. Sagun, GR by law to enable one the list of Prohibited No. 110554, 19 February 1999) to lawfully engage in Acts: recruitment and 1. fail to actually deploy

Illegal recruitment (IR) involving Economic placement of without valid reason; Sabotage (Art. 38 (b) Labor Code & Sec. 10 RA workers; and, 2. fail to 8042): 2. That the offender reimburse expenses 1. IR committed by syndicate – carried out by a undertakes either incurred by the worker

group of 3 or more persons conspiring and/or any activity within in connection with confederating with one another in carrying out the meaning of his/her documentation any unlawful or illegal transaction, enterprise or recruitment and and processing for scheme falling under illegal recruitment placement defined purposes of

2. IR committed in large scale - committed against 3 under Article 13(b), deployment, in cases or more persons individually or as a group or any prohibited where the deployment

practices does not actually take Estafa – a person convicted for illegal recruitment enumerated under place without the under Labor Code can be convicted for violation of Article 34. work ers fault. the Revised Penal Code provisions on estafa provided the elements of the crime are present. To prove illegal recruitment, it must be shown that the accused gave the distinct impression that Art. 39 (c) of Labor Code unconstitutional he had the power or ability to send complainants Q uic kT im e™

and aOnly a Judge may issue warrants of search and TI FF ( U nco mpr es s ed)

dec om pr ess orabroad for work such that the latter were ar e needed to s ee t

his pi ct ur e.arrest. The labor authorities must go through the convinced to part with their money in order to be judicial process. deployed. A person is guilty of illegal recruitment when he Venue – filed with the RTC of the province or city, gives the impression that he has the power to Where offense committed; OR send workers abroad. Where offended party actually resides at the time

of the commission of the offense Illegal recruitment involving economic sabotage

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Prescriptive Periods: By themselves, procuring a passport, airline Simple IR – within 5 years from time IR tickets and foreign visa for another individual, without

happened more, can hardly qualify as recruitment activities. IR Economic Sabotage – within 20 years from time must be proved beyond reasonable doubt.

IR happened 2. Regulation of Recruitment and Placement People v. Diaz, 259 SCRA 441 (1996) Activities

The acts of the appellant, which were clearly described in the lucid testimonies of the three victims, Entities authorized to engage in recruitment and such as collecting from each of the complainants placement payment for passport, medical tests, placement fee, a. public employment offices plane tickets and other sundry expenses, promising b. Philippine Overseas Employment Administration them employment abroad, contracting and (POEA) advertising for employment, unquestionably c. private recruitment entities constitute acts of large scale illegal recruitment. d. private employment agencies e. shipping or manning agents or representatives Aquino v. CA, 204 SCRA 240 (1991) f. such other persons or entities as may be

Receipt of payments, after the expiration of the authorized by the DOLE Secretary license, for services rendered before said expiration g. construction contractors does not constitute illegal recruitment. Recruitment refers to the offering of inducements to qualified Is direct-hiring of OFWs allowed? Why? personnel to enter a particular job or employment. No. Employers cannot directly hire workers for The advertising, the promise of future employment overseas employment except through authorized and other come-ons took place while Ms. Aquino was entities see (enumeration above). still licensed. True, the payments for services The reason for the ban is to ensure full regulation rendered are necessary consequences of the of employment in order to avoid exploitation. applications for overseas employment. However, it is asking too much to expect a licensed agency to Fees to be Paid by Workers: absolutely at the stroke of midnight stop all No worker shall be charged with any fee until transactions on the day its license expires and refuse employee: (1) obtained work through recruiter’s to accept carry-over payments after the agency is efforts; and (2) worker has actually commenced closed. In any business, there has to be a winding-up working. after it ceases operations. The collection of unpaid Placement fee in an amount equivalent to one accounts should not be the basis of a criminal month’s salary of the worker and documentation prosecution. costs are the ONLY AUTHORIZED PAYMENTS

The prosecution is based on the date of the that may be collected from a hired worker. prohibited activity, not on the payments being illegal exactions even if effected during the correct period. Eastern Assurance and Surety Corp. v. Secretary The payments are necessary in order to defray the of Labor, 181 SCRA 110 (1990) expenses entailed in any overseas contract of POEA has the power to order refund of illegally employment. They are intended for administrative collected fees. Implicit in its power to regulate the and business expenses and for the travelling recruitment and placement activities of all agencies is expenses of the applicants once cleared for overseas the award of appropriate relief to the victims of the travel. offenses committed by the respondent agency or contractor. Such relief includes the refund or People v. Senoron, 267 SCRA 278 (1997) reimbursement of such fees as may have been

According to the Labor Code, it is not the fraudulently or otherwise illegally collected, or such Q uic kT im e™ and a

issuance or signing of receipts for the placement fees TI FF ( U nco mpr es s ed) dec om pr ess or

money, goods or services imposed and accepted in ar e needed to s ee t his pi ct ur e.

that makes a case for illegal recruitment, but rather excess of what is licitly prescribed. the undertaking of recruitment activities without the necessary license or authority. Absent any other Nature of the liability of local recruitment agency participation in the IR activities, mere receiving of and foreign principal placement fees or signing of receipt do not constitute 1. Local Agency is solidarily liable with foreign IR. principal. Darvin v. CA, 292 SCRA 534 (1998)

Page 9 of 83



2. Severance of relations between local agent and protection from unscrupulous employers, the foreign principal does not affect liability of local recruitment or placement agency in the Philippines recruiter. be made to share in the employer's responsibility.

Joint and solidary liability of recruiter with Stronghold Insurance Co. v. CA, 205 SCRA 605 Foreign Principal (1992) A recruitment agency is solidarily liable for the The surety bond required of recruitment agencies

unpaid salaries of a worker it recruited for is intended for the protection of our citizens who are engaged for overseas employment by foreign employment overseas.

Even if the recruiter and the principal had already companies. The purpose is to insure that if the rights severed their agency agreement at the time of these overseas workers are violated by their employee was injured, the recruiter may still be employers, recourse would still be available to them sued for a violation of the employment contract against the local companies that recruited them for because no notice of the agency agreement's the foreign principal. The foreign principal is outside

the jurisdiction of our courts and would probably have termination was given to the employee. no properties in this country against which an

adverse judgment can be enforced. This difficulty is Catan v. NLRC, 160 SCRA 691 (1988) corrected by the bond, which can be proceeded This must be so, because the obligations against to satisfy that judgment. covenanted in the recruitment agreement entered

into by and between the local agent and its foreign principal are not coterminous with the term of such Liability of surety agreement so that if either or both of the parties In a surety bond, the surety unequivocally bound decide to end the agreement, the responsibilities of itself to answer for all liabilities which the POEA such parties towards the contracted employees under may adjudge or impose against the principal in the agreement do not at all end, but the same connection with the recruitment of Filipino extends up to and until the expiration of the seamen employment contracts of the employees recruited and employed pursuant to the said recruitment Stronghold Insurance Co. v. CA, 205 SCRA 605 agreement. Otherwise, this will render nugatory the (1992) very purpose for which the law governing the The surety agreed to answer for whatever employment of workers for foreign jobs abroad was decision might be rendered against the principal, enacted. whether or not the surety was impleaded in the complaint and had the opportunity to defend itself. Posting of cash bond by recruiter There is nothing in the stipulation calling for a direct judgment against the surety as a co-defendant in an

action against the principal. Capricorn Travel & Tours v. CA, 184 SCRA 123 (1990)

The requirement for the posting of a cash bond is Power to suspend or cancel any license or also an indispensable adjunct to the requirement that authority to recruit employees for overseas the agency undertakes to assume joint and solidary employment is concurrently vested with the liability with the employer for all claims and liabilities POEA and the Secretary of Labor. which may arise in connection with the The penalties of suspension and cancellation of implementation of the contract of overseas license or authority are prescribed for violations employment and to guarantee compliance with of the above quoted provisions, among others. existing labor and social legislation of the Philippines And the Secretary of Labor has the power under and the country of employment. The undertaking to Section 35 of the law to apply these sanctions, as assume joint and solidary liability and to guarantee well as the authority, conferred by Section 36, not Q uic kT im e™

and aTI FF ( U nco mpr es s ed) dec om pr ess or

compliance with labor laws, and the consequent only to 'restrict and regulate the recruitment and ar e needed to s ee t his pi ct ur e.posting of cash and surety bonds, may be traced all placement activities of all agencies,' but also to

the way back to the constitutional mandate for the 'promulgate rules and regulations to carry out the State to "afford full protection to labor, local and objectives and implement the provisions' overseas." The peculiar nature of overseas governing said activities. Pursuant to this rule-employment makes it very difficult for the Filipino making power thus granted, the Secretary of overseas worker to effectively go after his foreign Labor gave the POEA on its own initiative or employer for employment-related claims and, hence, upon filing of a complaint or report or upon public policy dictates that, to afford overseas workers request for investigation by any aggrieved

Page 10 of 83



person, (authority to) conduct the necessary possible under the circumstances, the proper proceedings for the suspension or cancellation of disposition thereof, upon prior arrangement with the license or authority of any agency or entity' the worker’s next-of-kin and the nearest Embassy for certain enumerated offenses including or Consulate through the Office of the Labor 1. the imposition or acceptance, directly or Attache

indirectly, of any amount of money, goods or 7. Assistance in the remittance of worker’s salaries, services, or any fee or bond in excess of allowances or allotments to his beneficiaries what is prescribed by the Administration 8. Free and adequate lodging facilities or

2. any other violation of pertinent provisions of compensatory food allowance at prevailing cost the Labor Code and other relevant laws, of living standards at the jobsite rules and regulations.

4. Dispute Settlement The Administrator was also given the power to

'order the dismissal of the case or the suspension Regulatory power – DOLE Secretary shall have the of the license or authority of the respondent power to restrict and regulate the recruitment and agency or contractor or recommend to the placement activities of all agencies within the Minister (now Secretary) the cancellation thereof. coverage of this Title and is hereby authorized to

issue orders and promulgate rules and regulations to 3. Contracts carry out the objectives and implement the provisions of this Title. Freedom to Stipulate Jurisdiction of the POEA

Original and exclusive jurisdiction to hear and decide: Vir-Jen Shipping v. NLRC, 115 SCRA 347 (1992); a. all cases, which are administrative in character, 125 SCRA 577 (1983)

involving or arising out of violations of rules and The form contracts approved by the National regulations relating to licensing and registration Seamen Board [now POEA] are designed to protect of recruitment and employment agencies or Filipino seamen not foreign shipowners who can take entities care of themselves. The standard forms embody the

b. disciplinary action cases and other special cases, basic minimums which must be incorporated as parts which are administrative in character, involving of the employment contract. They are not collective employers, principals, contracting partners and bargaining agreements or illimitable contracts which Filipino migrant workers the parties cannot improve upon or modify in the

course of the agreed period of time. Money Claims of OFWs A worker dismissed from overseas employment Terms and conditions and other benefits not without just, valid or authorized cause as defined by provided by the minimum requirements are valid law or contract, is entitled to: if the whole employment package is more a. full reimbursement of the placement fee with beneficial to the worker than the minimum. But

interest at 12% per annum PLUS the stipulations should not contradict law, public b. his salary for unexpired portion of his policy and morals.

employment contract OR salary for 3 months for every year of the unexpired term, WHICHEVER Minimum Provisions for Contract IS LESSER 1. Guaranteed wages, for regular working hours

and overtime pay for services rendered beyond 3-months option available ONLY IF the regular work hours in accordance with the

employment contract is for at least one year. If standards established by the Administration the contract is shorter than that, the salary paid 2. Free transportation from point of hire to site of Q uic kT im e™

and ashould be that for the unexpired portion. TI FF ( U nco mpr es s ed)

dec om pr ess oremployment and return ar e needed to s ee t

his pi ct ur e. 3. Free emergency medical and dental treatment Jurisdiction over Money Claims and facilities

Labor Arbiters have jurisdiction over all monetary 4. Just causes for the termination of the contract or claims of Overseas Filipino Workers arising from of the services of the workers employer-employee relationship or by virtue of any 5. Workmen’s compensation benefits and war law or contract involving Filipino workers for overseas hazard protection deployment, including claims for actual, moral, 6. Repatriation of workers remains and properties in exemplary and other forms of damages. case of death to the point of hire, or if this is not

Page 11 of 83



Power and Functions of TESDA C. EMPLOYMENT OF ALIENS Responsible for formulating, continuing,

coordinating, and fully integrating technical education Requisites for Employment of Non-Resident and skills development policies, plans and programs Aliens 1. working permit from DOLE 2. Apprenticeship and Learnership 2. certification that there is no available Filipino Learners Apprentices

willing and competent to do the job for the What Persons hired as Practical employer trainees in semi- training on the

3. alien must train at least two Filipino understudies skilled and other job for such undertaking industrial Supplemented

4. FOR ENTERPRISES REGISTERED IN occupations by related PREFERRED AREAS OF INVESTMENT – Non- theoretical employment permit issued upon recommendation apprenticeable instruction of government agency charged with the May be learned Covered by a supervision of said registered enterprise through practical written

training on the apprenticeship Exemption from Permit job in a relatively agreement with 1. All members of Diplomatic Services and foreign short period of an individual

government officials accredited with the Phil. time employer or Government Shall not exceed entity

2. Members of international organizations with 3 months Needs DOLE which the Phil. Government is a cooperating approval member (i.e. ADB, IRRI) Shall not

3. Missionaries actually engaged in missionary work exceed 6 4. All aliens granted exemption by special laws and months

all those whose employment in the Phil. Have When No experienced Only in highly-been determined by the Sec. of Labor to be workers technical may be beneficial to national interest. hired available industries

Prevent Only in Duration of Permit curtailment of apprenticeable Valid for 1 year from date of issuance, unless employment occupations

sooner revoked by the Secretary of Labor opportunities Renewable upon showing of good cause Not to create Non-transferable unfair

competition in Other Prohibitions labor costs and Aliens shall not transfer to another job or change lower working

his employer without prior approval of the standards secretary of labor List of learnable At least 14

Non-resident alien shall not take up employment trades provided years old in violation of the provisions of the Code. by TESDA Possesses

vocational D. HUMAN RESOURCES & aptitude and

MANPOWER DEVELOPMENT c apacity for tests 1. Government Machinery Ability to


TI FF ( U nco mpr es s ed) dec om pr ess or

comprehend ar e needed to s ee t his pi ct ur e.

Policy Ability to follow It is the policy of the State to provide relevant, oral and written

accessible, high quality and efficient technical instructions education and skills development in support of the Any form of development of high-quality Filipino middle-level employment manpower responsive to and in accordance with requiring Philippine development goals and priorities. beyond 3 mos. practical

Page 12 of 83



training on the job

supplemented V. WORKING CONDITIONS by related theoretical Coverage instruction Book III of the Labor Code provides the conditions or

No list standards of employment. These standards apply only if there exists EER. Requisites for a Valid Apprenticeship Excluded Employees 1. qualifications of apprentice are met

2. the apprentice earns not less than 75% of the 1. Government employees whether employed by the National Government or any of its political prescribed minimum salary subdivisions, including those employed in 3. apprenticeship agreement duly executed and GOCCs signed

2. Management employees. If they meet ALL of the 4. apprenticeship program approved by the Sec. of following conditions: Labor; otherwise, the apprentice shall be deemed

i. Their primary duty consists of the management as a regular employee of the establishment in which they are 5. period of apprenticeship not exceed 6 months

employed or of a department or subdivision thereof At the termination of the apprenticeship, the

ii. They customarily and regularly direct the work employer is not required to continue the of two or more employees therein employment.

iii. They have authority to hire or fire other Employer may not pay wage if the apprenticeship employees of lower rank; or there suggestions is and recommendations as to the hiring and • a requirement for graduation firing and as to the promotion or any other • required by the School change of status of other employees are given • required by the Training Program Curriculum particular weight • requisite for Board examination

3. Officers or members of managerial staff if they perform the following duties and responsibilities Venue of Apprenticeship Programs i. Primary duty consists of performance of work The plant, shop, premises of the employer or firm

directly related to management policies of concerned if the apprenticeship program is employer organized by an individual employer or firm.

ii. Customarily and regularly exercise discretion The premises of one or several firms designated and independent judgment for the purpose by the organizer of the program if

iii. (a) Regularly and directly assist a proprietor such organizer is an association of employers, or a managerial employee; (b) Execute under civic groups and the like. general supervision work along specialized DOLE training center or other public training or technical lines requiring special training, institutions with which the Bureau has made experience or knowledge; (c) execute under appropriate arrangements. general supervision special assignments and tasks; and Contents of Learnership Agreement

iv. who do not devote more than 20% of their 1. names and addresses of employer and learner hours worked in a workweek to activities 2. occupation to be learned and the duration of the which are not directly and closely related to training period which shall not exceed 3 months the performance of work in i-iii above. 3. wage of the learner which shall be at least 75%

4. domestic servants and persons in the personal of the applicable minimum wage Q uic kT im e™ and a

service of another if TI FF ( U nco mpr es s ed) dec om pr ess or

4. commitment to employ the learner, if he so ar e needed to s ee t his pi ct ur e.

i. they perform such services in the employer’s desires, as a regular employee upon completion home which are usually necessary or of training desirable for the maintenance and enjoyment thereof, or A learner who has worked during the first two

ii. minister to the personal comfort, months shall be deemed a regular employee if convenience, or safety of the employer as training is terminated by the employer before the well as members of the employer’s end of the stipulated period thorough no fault of household the learner.

Page 13 of 83



5. workers paid by results, including those who are goods and services or when there is lack of raw paid on piece-work, takaw, pakyaw or task basis materials.

6. non-agricultural field personnel if they regularly Instead of working 6 days a week, the employees perform their duties away from the principal or will be regularly working for less than 6 days but branch office of place of business and whose each workday exceeds 8 hrs. For the hours actual hours of work in the field cannot be exceeding 8 in a workday, the employees waive determined with reasonable certainty. their OT pay because, in return, they will no

longer incur transport and other expenses. Managerial Employees – refer to those whose Allowed on condition that it is freely agreed upon primary duty consists of the management of the between the employer and majority of the establishment in which they are employed or of a employees. Further, the arrangement should not department or subdivision thereof, and to other diminish the employees’ monthly or daily pay or officers or members of the managerial staff their established employment benefits. Extended workday in CWW should not exceed 12 Field Personnel – non-agricultural employees who hrs. Work exceeding 12 hrs. in a day or 48 hrs. in regularly perform their duties away from the principal a week should be considered OT. place of business or branch office of the employer Should the work shift revert to 8 hrs., the and whose actual hours of work in the field cannot be reversion shall not constitute a diminution of determined with reasonable certainty benefits.

Hours of Work of Hospital and Clinic Personnel; Mercidar Fishing Corp. v. NLRC, 297 SCRA 440 Coverage (1998) 1. all hospitals and clinics situated in cities or Fishermen are not field personnel since

municipalities with a population of 1 million or throughout the duration of their work, they are under more the effective control and supervision of the employer.

2. all hospitals and clinics with a bed capacity of at least 100 Autobus Transport Systems Inc. v. Bautista, GR

No. 156367, 16 May 2005) Hospitals and Clinics – place devoted primarily to It is of judicial notice that along the routes that maintenance and operation of facilities for the are plied by bus companies, there are its inspectors diagnosis, treatment, and care of individuals suffering assigned in strategic places, mandatory once-a-week from illness, disease, injury or deformity or in need of car barn or shop day, drivers/conductors must be at a obstetrical or other medical and nursing care specific place at a specific time, as they generally observe prompt departure and arrival from their point Regular Working Hours and Days of Hospital and of origin to their point of destination. They are under Clinic Personnel the constant supervision while in the performance of Not more than 8 hrs. in any one day and not this work. Thus, drivers/conductors are not field

more than 40 hrs. in any one week personnel. Not more than 5 days in a work week. The

workweek may begin at any hour and on any day B. HOURS OF WORK Overtime Work of Hospital and Clinic Personnel Work hours shall not exceed 8. Thus, part-time May be scheduled to work for more than 5 days work, or a day’s work of less than 8 hours, not

or 40 hrs. a week, provided employee is paid for prohibited. overtime work

Overtime: additional compensation of regular Work Day – 24-hr period commencing from the time wage + at least 30% thereof an employee regularly starts to work regardless of Q uic kT im e™

and a TI FF ( U nco mpr es s ed)

dec om pr ess orwhether the work is broken or continuous ar e needed to s ee t

his pi ct ur e.Considered as Compensable Hours Worked 1. All time during which an employee required to be Calendar Day – 24-hr. period commencing at 12

on duty or to be at the employer’s premises or to midnight and ending at 11:59 p.m. be at a prescribed work place; and

2. All time during which an employee suffered or Compressed Work Week (CWW) permitted to work. Resorted to by the employer to prevent serious

3. Rest periods of short duration during working losses due to causes beyond his control, such as hours. when there is substantial slump in demand for his

Page 14 of 83



compensable and counted when it cuts Principles in Determining Hours Worked because it is a as hours across an 1. All hours are hours worked which the employee normal incident of worked employee’s

is required to give to his employer, regardless of employment workday whether or not such hours are spent in productive because it labor or involve physical or mental exertion Exceptions: substitutes for

2. An employee need not leave the premises of the 1. where the hours the workplace in order that his rest period shall not employee employee be counted, it being enough that he stops made to work should have working, may rest completely and may leave his on an been in the workplace emergency office

3. If the work performed was necessary or it call and travel benefited the employer, or the employee could is necessary in not abandon his work at the end of his normal proceeding to working hours because he had no replacement, the workplace all time spent or such work shall be considered 2. travel is done as hours worked, if the work was with the through a knowledge of his employer or immediate conveyance supervisor. provided by

4. The time during which an employee is inactive by the employer reason of interruptions in his work beyond his 3. travel is done control shall be considered working time either if under the a. the imminence of the resumption of work supervision

requires the employee's presence at the and control of place of work; or the employer

b. if the interval is too brief to be utilized 4. travel is done effectively and gainfully in the employee's under vexing own interes t. and

dangerous Waiting Time circumstances Waiting time spent by an employee shall be

considered as working time if Univ. of Pangasinan Faculty Union v. Univ. of 1. waiting is an integral part of his work or Pangasinan, 127 SCRA 691 (1984) 2. the employee is required or engaged by the Semestral break of teachers is compensable

employer to wait. hours worked for it is a form of interruption beyond Working while on call - an employee who is their control. Applies only for regular full-time

required to remain on call in the employer's teachers. premises or so close thereto that he cannot use the time effectively and gainfully for his own Rada v. NLRC, 205 SCRA 69 (1992) purpose. The fact that he picks up employees at certain

specified points in EDSA in going to the project site Travel Time and drops them off at the same time on his way back

Travel that is from the field office going home to Marikina is not Travel From Travel Away All in Days merely incidental to petitioner’s job as a driver. Home to Work from Home Work Said transportation arrangement had been Normal travel from Time spent by Travel that adopted not so much for the convenience of the home to work an employee keeps an employees, but primarily for the benefit of the Q uic kT im e™

and awhich is not work in travel as employee TI FF ( U nco mpr es s ed)

dec om pr ess oremployer. Since the assigned task of fetching and ar e needed to s ee t

his pi ct ur e.time part of his away from delivering employees is indispensable and

principal home consequently mandatory, then the time required of activity, like overnight and used by petitioner in going from his residence to travel from the field office and back should be paid as overtime jobsite to work. jobsite during the workday Lectures, Meeting, Trainings, Programs

GR: not Compensable Work time

Page 15 of 83



NOT considered working time if ALL the following daily wage is divided by 8 to get the hourly base conditions are met: rate. 1. Attendance is outside of the employee's If employee is paid on a monthly salary basis, the

regular working hours daily rate is obtained by the following formula: 2. Attendance is in fact voluntary 3. The employee does not perform any Daily Rate = monthly salary x 12_____

productive work during such attendance. Total no of days considered paid in a year Meal and Rest Periods GR: not less than 1 hour time-off for regular meals – Permissible for the employer to stipulate that the non-compensable employee’s monthly salary constitutes payment

for all the days of the month, including rest days Except: meal period of not less than 20 mins. in the and holidays, where the employee’s monthly following cases – compensable hours worked: salary, when converted by the increased divisor 1. Where the work is non-manual work in nature or into its daily equivalent, would still meet minimum

does not involve strenuous physical exertion wage. 2. Where the establishment regularly operates not

less than 16 hours a day Regular Wage – includes the cash wage only, 3. In case of actual or impending emergencies or without deduction on account of facilities provided by there is urgent work to be performed on the employer machineries, equipment or installations to avoid serious loss which the employer would otherwise

Conditions to be entitled to OT pay suffer 1. Actual rendition of OT work 4. Where the work is necessary to prevent serious 2. Submission of sufficient proof that said work was loss of perishable goods

actually performed 3. OT work is with the knowledge and consent of Rest periods or coffee breaks – running from 5 the employer to 20 mins. considered as compensable working

time. Compulsory OT Work (provided employee paid To shorten meal time to less than 20 mins, is not the additional compensation required) allowed. If the so-called “meal time” is less than 1. Country at war/National or Local Emergency 20 mins., it becomes only a rest period. 2. Completion of work started before the 8t h hour and is necessary to prevent serious obstruction

Sime Darby Pilipinas v. NLRC, 289 SCRA 86 or prejudice to the business (1998) 3. Urgent work to be performed on Machines to

The employer may change the meal break from avoid serious loss or damage to employer 30 mins. fully paid to 60 mins. without pay. 4. Necessary to Prevent loss of life/property or

For a full one hour undisturbed lunch break, the Imminent danger to public safety employees can freely and effectively use this hour 5. Necessary to prevent loss or damage to not only for eating but also for their rest and comfort. perishable goods Since the employees are no longer required to work 6. Necessary to avail of favorable weather or during this 1-hour lunch break, there is no more need environmental condition for them to be compensated for this period.

Undertime NOT Offset by OT – an employee’s Overtime Pay (OT) – work exceeding eight hours regular pay rate is lower than the OT rate. Offsetting within the worker’s 24-hour workday. Work within the the undertime hours against the OT hours would


E’ee’s shift is not overtime. result in undue deprivation of the employee’s extra TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.pay for OT work.

OT on a Regular Day: regular wage + at least 25% thereof Right to OT pay cannot be waived. But when the

OT on a Holiday/E’ee’s Rest Day: rate of 1st 8 alleged waiver of OT pay is in consideration of hrs. on holiday/rest day + at least 30% thereof. benefits and privileges which may even exceed

Since the OT work is considered hourly, the pay the OT pay, the waiver may be permitted. rate is computed also on per hour basis. The

Page 16 of 83



Night Shift Differential (NSD) – every employee the desired effectivity of the initial rest day so shall be paid a night shift differential of not less than preferred. 10% of his regular wage for each hour of work Where, however, the choice of the employee as performed between ten o’clock in the evening and six to his rest day based on religious grounds will o’clock in the morning. inevitably result in serious prejudice or

obstruction to the operations of the undertaking and the employer cannot normally be expected to NSD = (10% x regular wage/hr.) x no. of hrs. of work resort to other remedial measures, the employer between 10 pm – 6 am may so schedule the weekly rest day of his choice for at least 2 days in a month. If work done between 10 pm and 6 am is OT

work, the NSD should be based on the OT rate. Schedule of Rest Day a. Where the weekly rest is given to all employees Employees NOT Covered by NSD

simultaneously – the employer shall make known 1. Those of the government and any of its political such rest period by means of a written notice subdivisions, including government-owned and/or posted conspicuously in the work place at least controlled corporations one week before it becomes effective 2. Those of retail and service establishments

b. Where the rest period is not granted to all regularly employing not more than 5 workers employees simultaneously and collectively – the 3. Domestic helpers and persons in the personal employer shall make known to the employees service of another their respective schedules of weekly rest through 4. Managerial employees written notices posted conspicuously in the work 5. Field personnel and other employees whose time place at least one week before they become and performance is unsupervised by the effective employer including those who are engaged on task or contract basis, purely commission basis, Work on Rest Day Authorized (UAAP NAF) or those who are paid a fixed amount for 1. In case of urgent work to be performed on performing work irrespective of the time machineries, equipment or installations to avoid consumed in the performance thereof serious loss which the employer would otherwise suffer C. REST PERIODS AND HOLIDAYS 2. In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon,

Weekly Rest Periods – applies to all employers earthquake, epidemic or other disaster or whether operating for profit or not, including public calamity, to prevent loss of life or property, or in utilities operated by private persons cases of force majeure or imminent danger to

public safety 3. In the event of abnormal pressure of work due Business on Sundays/Holidays – All

to special circumstances, where the employer establishments and enterprises may operate or open cannot ordinarily be expected to resort to other for business on Sundays and holidays provided that measures the employees are given the weekly rest day and the

4. To prevent serious loss of perishable goods benefits as provided. 5. Where the nature of the work is such that the

employees have to work continuously for 7 days Weekly Rest Day – Every employer shall give his in a week or more, as in the case of the crew employees a rest period of not less than 24 members of a vessel to complete a voyage and consecutive hrs. after every 6 consecutive normal in other similar cases work days.

6. Under other analogous or similar circumstances Q uic kT im e™ and a


7. When the work is necessary to avail of favorable ar e needed to s ee t his pi ct ur e.

Preference of employee – The preference of the weather or environmental conditions where employee as to his weekly day of rest shall be performance or quality of work is dependent respected by the employer if the same is based on thereon. religious grounds.

Other than the above circumstances, no The employee shall make known his preference employee shall be required against his will to to the employer in writing at least 7 days before work on his scheduled rest day.

Page 17 of 83



When an employee volunteers to work on his rest vacations. Paid for the regular holidays during day under other circumstances, he shall express Christmas vacation such desire in writing, subject to payment of 2. Employee paid by results (payment on piece-additional compensation. work) – holiday pay shall not be less than his

An employee shall be entitled additional average daily earnings for the last 7 actual compensation for work performed on a Sunday working days preceding the regular holiday; only when it is his established rest day. Provided, However, that in no case shall the

holiday pay be less than the applicable statutory minimum wage rate Holidays with Pay; Applies to ALL employees.

3. Seasonal workers – may not be paid the EXCEPT: required holiday pay during off-season when they 1. Those of the government and any of the political are not at work subdivision, including government-owned and

4. Workers without regular working days – controlled corporation entitled to the benefits 2. Those of retail and service establishments

regularly employing less than ten 10 workers Double Holiday – an employee who is entitled to 3. Domestic helpers and persons in the personal

service of another holiday pay should receive at least 200% of his basic 4. Managerial employees wage even if he did not work on that day, provided, 5. Field personnel and other employees whose time he was present or on leave wit pay on the preceding

work day. If he worked, he is entitled to 300% of his and performance is unsupervised by the employer including those who are engaged on basic wage. task or contract basis, purely commission basis, or those who are paid a fixed amount for Holiday-Sunday – a legal holiday falling on a performing work irrespective of the time Sunday creates no legal obligation for the employer consumed in the performance thereof. to pay extra, aside from the usual holiday pay, to its

monthly-paid employees Absences Employee on Leave of absence with pay – Successive Regular Holidays – Where there are 2 entitled to the benefit provided herein successive regular holidays, like Holy Thursday and Employee on leave of absence without pay on Good Friday, an employee may not be paid for both the day immediately preceding a regular holiday holidays if he absents himself from work on the day

– may not be paid the required holiday pay if he immediately preceding the first holiday, unless he has not worked on such regular holiday works on the first holiday, in which case he is entitled

Where the day immediately preceding the holiday to his holiday pay on the second holiday. To be is a non-working day in the establishment or the entitled to 2 successive holidays, employee must: (1) scheduled rest day of the employee, he shall not

be present on the day immediately preceding the 1st be deemed to be on leave of absence on that holiday; or (2) be on leave wit pay. day, in which case he shall be entitled to the holiday pay if he worked on the day immediately

Holidays preceding the non-working day or rest day 1. New Year’s Day - Jan. 1 2. Maundy Thursday - Movable Date Temporary or Periodic Shutdown and Temporary 3. Good Friday - Movable Date Cessation of Work (i.e. yearly inventory, repair or 4. Araw ng Kagitingan - April 9

cleaning of machineries or equipment, etc) – regular 5. Labor Day - May 1 holidays falling within this period compensable 6. Independence Day - June 12

7. Nat’l Heroes Day - Last Sun. of Aug. Temporary or Periodic Shutdown and Temporary Q uic kT im e™

and a8. Bonifacio Day - Nov. 30 TI FF ( U nco mpr es s ed)

dec om pr ess orar e needed to s ee t his pi ct ur e.

Cessation of Work Due to Business Reverses – 9. Eidul Fit’r - Movable Date employer may not pay the regular holidays during this 10. Christmas Day - Dec. 25 period 11. Rizal Day - Dec. 30

Holiday Pay of Certain Employees Special Days 1. Private School teachers including faculty 1. Special Non-Working Days

members of college and universities – may not 2. Special Public Holidays be paid for the regular holidays during semestral 3. Special National Holiday

Page 18 of 83



4. All Saints’ Day - Nov. 1 D. SERVICE CHARGE & 5. Last Day of the Yr - Dec. 31 SERVICE INCENTIVE LEAVE 6. Ninoy Aquino Day - August 21

Service Incentive Leave (SIL) – every employee Muslim Holidays – while the regular holidays are who has rendered at least 1 year of service shall be observed in the whole country, the Muslim holidays, entitled to a yearly service incentive leave of 5 days except Eidul Fitr, are observed only in specified with pay areas. Muslim employees working outside of the specified areas shall be excused from reporting for Commutable to its money equivalent if not used work during the observance of the Muslim holidays or exhausted at the end of the year. as recognized by law, without diminution of salary or wages during the period. At least 1 year service – service for not less than 12

months, whether continuous or broken reckoned from Rules on Payment of Holiday Pay: the date the employee started working, including

authorized absences and paid regular holidays 1. REGULAR HOLIDAYS unless the working days in the establishment as a a. If it is employee’s regular work day: matter of practice or policy, or that provided in the - Unworked: - 100% employment contract is less than 12 months, in which - Worked: case said period shall be considered as one year 1st 8 hrs - 200% excess of 8 hrs. - + 30% Employees NOT Covered of hourly rate 1. Those of the government and any of its political on said day subdivisions, including government-owned and controlled corporations b. If it is employeee’s rest day: 2. Domestic helpers and persons in the personal - Unworked: - 100% service of another - Worked: 3. Managerial employees

1s t 8 hrs. - + 30% of 200% 4. Field personnel and other employees whose excess of 8 hrs. - + 30% of performance is unsupervised by the employer

hourly rate on said including those who are engaged on task or day contract basis, purely commission basis, or those

who are paid a fixed amount for performing work 2. SPECIAL DAYS irrespective of the time consumed in the

a. Unworked – no pay unless there is a favorable performance thereof company policy, practice or CBA granting 5. Those who are already enjoying the benefit payment of wages on special days even if herein provided unworked 6. Those enjoying vacation leave with pay of at

least five days b. Worked 7. Those employed in establishments regularly

1st 8 hrs. - + 30% of the employing less than ten employees daily rate of 100%

excess of 8 hrs. - + 30% of Service Charges – apply only to establishments hourly rate on said collecting service charges such as hotels, day restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling c. Falling on employee’s rest day and if worked houses, and similar enterprises, including those 1st 8 hrs. - + 50% of the Q uic kT im e™ and a

entities operating primarily as private subsidiaries of TI FF ( U nco mpr es s ed) dec om pr ess or

daily rate of 100% ar e needed to s ee t his pi ct ur e.

the Government excess of 8 hrs. - + 30% of hourly rate on said

Employees Covered – all employees of covered day employers, regardless of their positions, designations or employment status, and irrespective of the method 3. SPECIAL WORKING HOLIDAYS – only basic rate. by which their wages are paid EXCEPT to managerial employees

Page 19 of 83



Distribution growing and harvesting of any agricultural and 85% distributed equally among the covered horticultural commodities, the raising of livestock or

employees poultry, and any practices performed by a farmer on 15% for the disposition by management to a farm as an incident to or in conjunction with such

answer for losses and breakages and distribution farming operations, but does not include the to managerial employees at the discretion of the manufacturing or processing of sugar, coconuts, management in the latter case abaca, tobacco, pineapples or other farm products

distributed and paid to the employees not less than once every 2 weeks or twice a month at Wage – paid to any employee shall mean the: intervals not exceeding 16 days 1. remuneration or earnings, however designated,

Supervisors share in the 15%. LC speaks of capable of being expressed in terms of money, “management,” and not “managerial employees.” whether fixed or ascertained on a time, task,

piece, or commission basis, or other method of E. OTHERS calculating the same, which is payable by an

employer to an employee under a written or unwritten contract of employment for work done Vacation Leave (VL) / Sick Leave (SL) – not or to be done, or for services rendered or to be required by law and depends on voluntary employer rendered; and includes policy or collective bargaining.

2. the fair and reasonable value, as determined by the DOLE Secretary, of board, lodging, or other Solo Parent Leave (RA 8972: Solo Parents’ facilities customarily furnished by the employer to Welfare Act of 2000) – a parental leave of not more the employee. "Fair and reasonable value" shall than 7 working days every years shall be granted to not include any profit to the employer, or to any any solo parent employee who has rendered service person affiliated with the employer. of at least 1 year

Fair Wage for Fair Work; No Work – No Pay Solo Parent – woman who gives birth as a result Principle – if there is no work performed by the of rape or crimes against chastity, a widow or employee, there can be no wage or pay unless the widower, a spouse separated legally or de facto laborer was able, willing, and ready to work but was for at least one year, and so forth. The claimant prevented by management or was illegally locked parent has to show that he/she is left alone with out, suspended or dismissed. But where the failure of the responsibility of parenthood. employees to work was not due to the employer’s fault, the burden of economic loss suffered by the Leave under RA 9262 (Anti-Violence Against employees. Should not be shifted to the employer.

Women and their Children Act of 2004) – allows Each party must bear his own loss. the victim of violence, which may be physical, sexual, or psychological, to apply for the issuance of a Equal Pay for Equal Work – persons who work with protection order. If such victim is an employee, she is

substantially equal qualifications, skill, effort and entitled to a paid leave of up to 10 days in addition to responsibility, under similar conditions, should be other paid leaves under the Labor Code, other laws paid similar salaries. and company policies.

Facilities – articles or services for the benefit of the The employee has to submit a certification from employee or his family but shall not include tools of the Punong Barangay or Kagawad or prosecutor the trade or articles or service primarily for the benefit or Clerk of Court that an action under RA 9262 of the employer or necessary to the conduct of the has been filed and is pending. employers business. May be deducted from the


employees’ wages. TI FF ( U nco mpr es s ed) dec om pr ess or

ar e needed to s ee t his pi ct ur e.VI. WAGES Acceptance of Facilities – in order that the cost of

facilities furnished by the employer may be charged A. CONCEPT AND DEFINITION against an employee, the employee’s acceptance of such facilities MUST BE VOLUNTARY.

Agriculture – includes farming in all its branches and, among other things, includes cultivation and Mabeza v. NLRC, 271 SCRA 670 (1997) tillage of soil, dairying, the production, cultivation, Requirements for deducting value of facilities:

Page 20 of 83



therein, with a salary of not less than the statutory or 1. Proof must be shown that such facilities are established minimum wage, shall be presumed to be customarily furnished by the trade paid for all the days in the month whether worked or 2. The provision of deductible facilities must be not. The monthly min. wage shall not be less than the voluntarily accepted in writing by the employee statutory minimum wage multiplied by 365 days 3. The facilities must be charged at fair and divided by 12. reasonable value

Agricultural Rate – farm work from land preparation Facilities Supplements to harvesting items of expense extra remuneration or

necessary for the special privileges or Industrial Rate – manufacturing or processing of laborer’s and his family’s benefits given to or farm products existence and received by the

subsistence employees over and above their ordinary Non-Diminution Rule earnings or wages. GR: Nothing in the Labor Code shall be construed to

part of the wage independent of the wage eliminate or in any way diminish supplements, or deductible from the wage not wage deductible other employee benefits being enjoyed at the time of promulgation of the Labor Code. Benefits being given Employees NOT Covered by Provisions on to employees shall not be taken back or reduced Wages unilaterally by the employer because the benefit has 1. farm tenancy / leasehold become part of the employment contract, written or 2. domestic service unwritten. 3. persons working in their respective homes in

needle work or in any cottage industry duly Exception: To correct an error, otherwise, if the registered in accordance with law error is left uncorrected for a reasonable period of

4. Barangay micro business enterprise (BMBE) time, it ripens into a company policy and employees under RA 9178, the BMBE Law. BMBE – any can demand for it as a matter of right. business entity or enterprise engaged in the production, processing, or manufacturing of When Non-Diminution Rule Applicable – The rule products or commodities, including agro- is applicable if it is shown that the grant of the benefit processing, trading and services, whose total is assets including those arising from loans but 1. based on an express policy exclusive of the land on which the particular 2. has ripened into practice over a long period of business entity’s office, plant and equipment are time; and the practice is consistent and situated, shall not be more than P3M deliberate, and is not due to an error in the

construction/application of a doubtful or difficult question of law B. WAGE-FIXING

Bonus – a benefit which is contingent or conditional; Regional Minimum Wages – the minimum wage its demandability depends on certain pre-conditions. rates for agricultural and non-agricultural employees

and workers in each and every region of the country shall be those prescribed by the Regional Tripartite It is an amount granted voluntarily to an Wages and Productivity Boards employee for his/her industry and loyalty which

contributed to the success and realization of profits of the employer’s business. Minimum Wage – lowest wage rate fixed by law that

It is not a demandable and enforceable obligation an employer can pay his employee; payment of Q uic kT im e™ and a

unless it was promised to be given without any TI FF ( U nco mpr es s ed) dec om pr ess or

minimum wages is not dependent on the employer’s ar e needed to s ee t his pi ct ur e.

conditions imposed for its payment in which case ability to pay it is deemed part of the wage.

Daily-Paid Employee – paid only for days he Payment by Results – regulated by DOLE Secretary actually worked to ensure the payment of fair and reasonable wage rates, preferably through time and motion studies or Monthly-Paid Employee – employees paid by the in consultation with representatives of workers’ and month, irrespective of the number of working days

Page 21 of 83



employers’ organizations. Includes pakyaw, piece work and other noontime work. Regional Tripartite Wages and Productivity

Boards 1. Determine and fix minimum wage rates Two Categories of Piece-Rate Employees

applicable in their regions, provinces or industries 1. Employees paid piece rates which are prescribed therein and to issue the corresponding wage in Piece Rate orders issued by DOLE – wages orders, subject to guidelines issued by the are determined by multiplying the number of National Wages and Productivity Commission. pieces produced by the pay rate per piece.

2. Develop plans, programs and projects relative to 2. Employees paid output rates which are wages, incomes and productivity improvement for prescribed by the employer and are not yet their respective regions approved by the DOLE – to determine wage, the

3. Receive, process and act on applications for number of pieces produces is multiplied by the exemption from prescribed wage rates as may be rate per piece as determined by the employer. If provided by law or any Wage Order the result is equal to or greater than the

4. Other functions applicable legal daily rate in proportion to the number of hours worked, the worker receives Composition of Each Regional Board such increased amount. If the amount is lower, 1. Regional Director of DOLE the employer must make up the difference. 2. Regional Director of NEDA 3. Regional Director of DTI Benefits Payable to Piece-Rate Workers 4. 2 members from Employer sector (HANS MOTO) 5. 2 members from Employee sector 1. Holiday Pay

2. Applicable Statutory Minimum Daily Rate 3. Night Differential Pay Wage Order – an order issued by the Regional 4. Service Incentive Leave Board whenever the conditions in the region so 5. Meal and Rest Periods warrant after studying and investigating and studying 6. Overtime and Premium Pay all pertinent facts and based on the standards and 7. Thirteenth Month Pay criteria prescribed by the Labor Code. 8. Other Benefits A wage order adjusts the minimum level but not Basic Wage – means all remuneration or earnings the levels above the minimum. It does not paid by an employer to a worker for services mandate across the board salary increase. rendered on normal working days and hours but does not include cost-of-living allowances, profit sharing Employees NOT Covered payments, premium payments, 13th month pay or 1. Household or domestic helpers, including family other monetary benefits which are not considered as drivers and workers in the personal service of part of or integrated into the regular salary of the another workers 2. Workers and employees in retail/service establishments regularly employing not more Minimum Wage – lowest wage rate fixed by law than than 10 workers, when exempted from an employer can pay his employees compliance, for a period fixed by the Commission/Boards Who Sets Minimum Wage 3. Workers and employees in new business 1. Regional Tripartite Wages and Productivity Board enterprises outside the National Capital Region 2. Congress and export processing zones for a period of not more than two or three years, as the case may National Wages and Productivity Commission be, from the start of operations when exempted Q uic kT im e™


1. Prescribes rules and guidelines for the ar e needed to s ee t his pi ct ur e.determination of appropriate minimum wage and Effectivity of Wage Orders – takes effect after 15 productivity measures at the regional, provincial, days from its complete publication in at least one or industry levels newspaper of general circulation in the region 2. Reviews regional wage levels set by the Regional

Tripartite Wages and Productivity Boards to Public Hearings and Consultations Mandatory – determine if these are in accordance with notice must be given to employees’ and employers’ prescribed guidelines and national development

plans

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groups, provincial, city and municipal officials and 2. Any dispute arising should be resolved through other interested parties. grievance procedure under CBA

3. If dispute remains unresolved, through voluntary arbitration A wage order issued without the required public

consultation and newspaper publication is null B. UNORGANIZED ESTABLISHMENT and void. 1. The employer and employees shall endeavor to

correct the distortion Frequency – a wage order issued by the Board may 2. Any dispute shall be settled through National not be disturbed for a period of 12 months from its Conciliation and Mediation Board (NCMB) effectivity and no petition for wage increase shall be 3. If remains unresolved after 10 days of entertained during said period EXCEPT when conciliation, it shall be referred to the NLRC Congress itself issues a law increasing wages.

Amount of Distortion Adjustment – the restoration Standards/Criteria for Minimum Wage of the previous pay advantage is the aim but not Fixing – must be economically feasible to maintain necessarily to the last peso. Restoration of the minimum standards of living necessary for the appreciable differential, a significant pay gap, should health, efficiency and general well-being of the suffice as correction. employees within the framework of the national

economic and social development program. Factors Suggested Formula to Correct a Salary Distortion to Consider:

Minimum Wage = % x Prescribed Increase Ac tual 1. The demand for living wages Salary 2. Wage adjustment vis-à-vis the consumer price

index 3. The cost of living and changes or increases Prubankers Association v. Prudential Bank and 4. The needs of workers and their families Trust Co., 302 SCRA 74 (1999) 5. The need to induce industries to invest in the Wage distortion involves comparison of jobs

countryside located in the same region. Examination of alleged 6. Improvements in standards of living salary distortion is limited to jobs or positions in the 7. The prevailing wage levels same employer in the same region; thus, the 8. Fair return of the capital invested and capacity to comparison of salaries has to be intra-region, not

pay of employers inter-region. 9. Effects on employment generation and family

income Bankard Employees Union – WATU v. NLRC, GR 10. The equitable distribution of income and wealth No. 140689, 17 February 2004

along the imperatives of economic and social The distortion that should be rectified refers to development distortion arising from compliance with a government

wage order. It does not refer to distortion caused by salary revisions voluntarily initiated by the employer Wage Distortion – a situation where an increase in unless such a duty exists because of a CBA prescribed wage rates results in the elimination or stipulation or company practice. severe contraction of intentional quantitative

differences in wage or salary rates between and among employee groups in an establishment as to C. PAYMENT OF WAGES effectively obliterate the distinctions embodied in such wage structure based on skills, length of service Manner of wage payment – wages shall be paid in or other logical basis of differentiation. Simply, if the legal tender and the use of tokens, promissory notes, Q uic kT im e™

and apay advantage of a position over another is removed TI FF ( U nco mpr es s ed)

dec om pr ess orvouchers, coupons, or any other form alleged to ar e needed to s ee t

his pi ct ur e.or significantly reduced by a pay adjustment required represent legal tender is absolutely prohibited even by a wage order, such pay advantage should be when expressly requested by the employee. restored.

Payment by check – Payment of wages by bank Correction of Wage Distortion checks, postal checks or money orders is allowed A. ORGANIZED ESTABLISHMENT where 1. Employer and union shall negotiate to correct the

distortion

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1. such manner of wage payment is customary on Prohibited Place of Payment – bar, night or day the date of the effectivity of the Labor Code, club, drinking establishment, massage clinic, dance

2. where it is so stipulated in a collective hall, or other similar places or in places where games agreement, or are played with stakes of money or things

3. where all of the following conditions are met: representing money except in the case of persons a. There is a bank or other facility for employed in said places

encashment within a radius of 1 kilometer from the workplace Payment through Banks; Requisites

b. The employer or any of his agents or 1. There must be a written permission of the representatives does not receive any majority of the employees concerned in an pecuniary benefit directly or indirectly from establishment the arrangement 2. The establishment must have 25 or more

c. The employees are given reasonable time employees during banking hours to withdraw their wages 3. The establishment must be located within 1 km. from the bank which time shall be considered radius to the bank. as compensable hours worked if done during Payment through ATM allowed working hours

d. The payment by check is with the written Direct Payment of Wages consent of the employees concerned if there GR: paid directly to workers to whom they are due is no collective agreement authorizing the payment of wages by bank checks Exceptions:

1. Payment Through Another Person Time of payment a. In case of force majeure rendering such GR: payment impossible provided such person is 1. not less than once every 2 weeks; or under written authority given by the worker 2. twice a month at intervals not exceeding 16 days for the purpose b. When authorized under existing law Except: including: 1. In case payment cannot be made with such i. payments for the insurance premiums of

regularity due to force majeure or circumstances the employee beyond the employer's control – the employer ii. union dues where the right to check-off shall pay the wages immediately after such force has been recognized by the employer in majeure or circumstances have ceased. accordance with a collective agreement

2. In case of payment of wages by results involving iii. authorized in writing by the individual work which cannot be finished in 2 weeks, employees concerned payment shall be made at intervals not exceeding 2. Payment Through Heirs of Worker – in case the sixteen days in proportion to the amount of work worker has died, employer may pay wages of the completed. Final settlement shall be made deceased to the heirs of the latter without immediately upon completion of the work. necessity of intestate proceedings

Place of payment – the place of payment shall be at Procedure: or near the place of undertaking. Payment in a place 1. When the heirs are of age, they shall execute an other than the work place shall be permissible only affidavit attesting to their relationship to the under the following circumstances: deceased and the fact that they are his heirs to 1. When payment cannot be effected at or near the the exclusion of all other persons.

place of work by reason of the deterioration of 2. In case any of the heirs is a minor, such affidavit peace and order conditions, or by reason of shall be executed in his behalf by his natural Q uic kT im e™

and aactual or impending emergencies caused by fire, TI FF ( U nco mpr es s ed)

dec om pr ess orguardian or next of kin. ar e needed to s ee t

his pi ct ur e.flood, epidemic or other calamity rendering 3. Affidavit shall be presented to the employer who payment thereat impossible shall make payment through the DOLE Sec. or

2. When the employer provides free transportation his representative to the employees back and forth 4. Payment of wage shall absolve the employer of

3. Under any other analogous circumstances; any other liability with respect to the amount paid. Provided, That the time spent by the employees in collecting their wages shall be considered as 3. Payment through Member of Worker’s Family – compensable hours worked where the employer is authorized in writing by the

Page 24 of 83



employee to pay his wages to a member of his 1. The employee concerned is clearly shown to be family responsible for the loss or damage

2. The employee is given reasonable opportunity to show cause why deduction should not be made Non-interference in Disposal of Wages – No

3. The amount of such deduction is fair and employer shall limit or otherwise interfere with the reasonable and shall not exceed the actual loss freedom of any employee to dispose of his wages or damage and no employer shall in any manner oblige any of

4. The deduction from the wages of the employee his employees to patronize any store or avail of the does not exceed 20% of the employee's wages in services offered by any person. a week

Wage Deductions Prohibited / Unlawful Acts GR: NOT allowed 1. Withhold any amount from the wages of a worker Except: or induce him to give up any part of his wages by 1. In cases where the worker is insured with his

force, stealth, intimidation, threat or by any other consent by the employer, and the deduction is to means whatsoever without the worker’s consent. recompense the employer for the amount paid by 2. Deduction from the wages of any employee for him as premium on the insurance the benefit of the employer or his representative 2. For union dues, in cases where the right of the

or intermediary as consideration of a promise of worker or his union to check-off has been employment or retention in employment. recognized by the employer or authorized in 3. Refuse to pay or reduce the wages and benefits, writing by the individual worker concerned discharge or in any manner discriminate against 3. In cases where the employer is authorized by law

any employee who has filed any complaint or or regulations issued by the DOLE Secretary instituted any proceeding under this Title or has testified or is about to testify in such proceedings. Other Allowable Deductions 4. Make any statement, report, or record filed or 1. In cases where employee indebted to employer, kept pursuant to the provisions of this Code where such indebtedness has become due and knowing such statement, report or record to be demandable false in any material respect. 2. In court awards, wages may be the subject of

execution or attachment, but only for debts D. LIABILITY FOR WAGES incurred for food, shelter, clothing, and medical

attendance 3. Withholding Tax Worker Preference in Case of Employer’s 4. Salary deductions of a legally established Bankruptcy – workers shall enjoy first preference as

cooperative regards their wages and other monetary claims, any 5. Deductions for payment to 3rd persons, upon provisions of law to the contrary notwithstanding.

written authorization of the employee Such unpaid wages and monetary claims shall be 6. Union dues paid in full before claims of the government and other 7. Agency fee creditors may be paid. 8. Deductions for value of meals and other facilities 9. Deductions for loss or damage A declaration of bankruptcy or a judicial 10. SSS, Medicare, Pag-IBIG premiums liquidation must take place before the worker’s preference may be enforced. Deductions for Loss or Damage Establishes a preference of credit and NOT a GR: No employer shall require his worker to make lien. deposits for the reimbursement of loss of or damage to material, equipment, or tools supplied by the Q uic kT im e™

and aAttorney’s Fees TI FF ( U nco mpr es s ed)

dec om pr ess oremployer. ar e needed to s ee t

his pi ct ur e.1. In case of unlawful withholding of wages, the

culpable party may be assessed attorney’s fees Except: When the trade, occupation or business of equivalent to ten percent of the amount of wages the employer recognizes or considers the practice of recovered. making deductions or requiring deposits necessary or

2. It shall be unlawful for any person to demand or desirable. accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s Requisites for Valid Deduction for Loss/Damage

Page 25 of 83



fees which exceed ten percent of the amount of and during working hours, provided they can wages recovered. perform their duties in this position without

detriment to efficiency 2. To establish separate toilet rooms and lavatories

for men and women and provide at least a VII. WORKING CONDITIONS FOR SPECIAL dressing room for women GROUPS OF EMPLOYEES

3. To establish a nursery in a workplace for the benefit of the women employees therein A. WOMEN

4. To determine appropriate minimum age and other standards for retirement or termination in

Night Work Prohibition – no woman regardless of special occupations such as those of flight age shall be employed or permitted or suffered to attendants and the like work, with or without compensation in any:

Maternity Leave (under RA 1161 SSS Law) 1. In any industrial undertaking or branch thereof - A female member, who need not be legally

between 10 pm – 6 am of the following day; or married, who has paid for at least 3 monthly 2. In any commercial or non-industrial contributions in the 12-month period immediately

undertaking or branch thereof, other than preceding the semester of her childbirth or agricultural - between 12 mn – 6 am of the miscarriage shall be paid a daily maternity benefit following day; or equivalent to 100% of her average daily salary

3. In any agricultural undertaking at nighttime credit for unless she is given a period of rest of not less o 60 days – normal delivery than nine (9) consecutive hours. o 78 days – caesarian delivery

Benefits shall be paid only for the FIRST 4 deliveries or miscarriages Exceptions: Prohibitions DO NOT APPLY

Maternity benefits, like other benefits granted by 1. In cases of actual or impending emergencies the SSS, are granted in lieu of wages and caused by serious accident, fire, flood, typhoon, therefore, may not be included in computing the earthquake, epidemic or other disasters or employee’s 13th month pay for the calendar year calamity, to prevent loss of life or property, or in

The employer shall advance the payment subject cases of force majeure or imminent danger to to reimbursement by the SSS. public safety;

It is not necessary that the woman be 2. In case of urgent work to be performed on machineries, equipment or installation, to avoid impregnated by her legitimate husband. It is

immaterial who the father is. serious loss which the employer would otherwise Every pregnant woman in the private sector, suffer;

whether married or unmarried, is entitled to the 3. Where the work is necessary to prevent serious maternity leave benefits. loss of perishable goods;

4. Where the woman employee holds a responsible Paternity Leave (under RA 8187 Paternity Leave position of managerial or technical nature, or Act of 1996) where the woman employee has been engaged Grants 7 working days of paternity leave with full to provide health and welfare services;

pay to married male employees in the private and 5. Where the nature of the work requires the public sectors. (Sec. 1(a), RA 8187 IRR) manual skill and dexterity of women workers and

Conditions to entitlement: the same cannot be performed with equal a. The claimant, a married male employee, is efficiency by male workers;

employed at the time of delivery of his child 6. Where the women employees are immediate b. He is cohabiting with his spouse at the time members of the family operating the


she gives birth or suffers a miscarriage establishment or undertaking; and TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.c. He has applied for paternity leave 7. Under other analogous cases exempted by the d. His wife has given birth or suffered a Secretary of Labor and Employment in

miscarriage appropriate regulations. Wife – lawful wife; woman legally married to male

employee concerned Facilities for Women The DOLE Secretary may require employers to: 1. Provide seats proper for women and permit them Family Planning Services; Incentives for Family

to use such seats when they are free from work Planning – employers who habitually employ more

Page 26 of 83



than 200 workers in any locality shall provide free 2. To discharge such woman employee on account family-planning services to their employees and their of her pregnancy, or while on leave or in spouses which shall include but not limited to, the confinement due to her pregnancy application or use of contraceptives 3. To discharge or refuse the admission of such

woman upon returning to her work for fear that she may be pregnant Discrimination Prohibited – unlawful for any

4. To discharge any woman or child or any other employer to discriminate against any woman employee for having filed a complaint or having employee with respect to terms and conditions of testified or being about to testify under the Code employment solely on account of her sex

5. To require as a condition for a continuation of employment that a woman employee shall not Acts of Discrimination get married or to stipulate expressly or tacitly that 1. Payment of a lesser compensation, including upon getting married, a woman employee shall wage, salary or other form of remuneration and be deemed resigned or separated, or to actually fringe benefits, to a female employees as against dismiss, discharge, discriminate or otherwise a male employee, for work of equal value prejudice a woman employee merely by reason 2. Favoring a male employee over a female of her marriage employee with respect to promotion, training

opportunities, study and scholarship grants solely Classification of Certain Women Workers – Any on account of their sexes woman who is permitted or suffered to work, with or Person guilty of committing these acts are without compensation, in any night club, cocktail criminally liable under Arts. 288-289 of the lounge, massage clinic, bar or similar establishments Labor Code under the effective control or supervision of the That the institution of any criminal action employer for a substantial period of time as under this provision shall not bar the determined by the Secretary of Labor and aggrieved employee from filing an entirely Employment, shall be considered as an employee of separate and distinct action for money such establishment for purposes of labor and social claims, which may include claims for legislation. damages and other affirmative reliefs. The

actions hereby authorized shall proceed independently of each other. B. MINORS

Stipulation Against Marriage Below 15 Not employed EXCEPT: It shall be unlawful for the employer to: 1. when the child works directly 1. require as a condition of employment or under the sole responsibility of

continuation of employment that a woman his/her parents/legal guardian employee shall not get married who employs only members of

2. to stipulate expressly or tacitly that upon getting his/her family under the ff married, a woman employee shall be deemed conditions resigned or separated a. employment does not

3. to actually dismiss, discharge, discriminate or endanger the child’s life, otherwise prejudice a woman employee merely safety, health and morals by reason of her marriage b. employment does not

impair the child’s normal PT&T Co. v. NLRC, 272 SCRA 596 (1997) development; and

A woman worker may not be dismissed on the c. the parent/legal guardian ground of dishonesty for having written “single” on provides the child with the space for civil status on the application sheet, Q uic kT im e™

and aprimary/secondary TI FF ( U nco mpr es s ed)

dec om pr ess orcontrary to the fact that she was married. ar e needed to s ee t

his pi ct ur e.education

Prohibited Acts 2. when the child’s employment or It is unlawful for any employer: participation in public 1. To discharge any woman employed by him for entertainment or information

the purpose of preventing such woman from through cinema, theater, radio enjoying the maternity leave, facilities and other or television is essential, benefits provided under the Code provided that:

Page 27 of 83



a. employment does not d. Exposed to or use of heavy power-driven machinery or equipment involve advertisements or

commercials promoting e. Workers use or are exposed to power-driven tools alcoholic beverages,

intoxicating drinks, tobacco and its by-products or C. HOUSEHELPERS exhibiting violence

b. there is a written contract Domestic or Household Service – services in the approved by the DOLE, if employer’s home which is which is usually necessary possible or desirable for the maintenance and enjoyment

c. the conditions prescribed thereof and includes ministering to the personal for the employment of comfort and convenience of the members of the minors in No. 1 are met employer’s household, including services of family d. the following requirements drivers.

are complied with: i. employer shall ensure

Rights of Househelpers protection, health, 1. Not to be assigned to non-household work morals, and normal 2. Reasonable compensation (minimum cash wage) development of the 3. Lodging, food and medical attendance child 4. If under 18 years, an opportunity for elementary ii. employer shall institute

education – cost of which shall be part of measures to prevent househelper’s compensation child’s exploitation /

5. Contract for household service shall NOT discrimination taking EXCEED 2 years – renewable from year to year into account the system

6. Just and humane treatment and level of 7. Right not to be required to work for more than 10 remuneration, duration,

hrs. a day – if the househelper agrees to work and arrangement of overtime and there is additional compensation, working time the same is permissible iii. employer shall

8. Right to 4 days vacation each month with pay – if formulate and the helper does not ask for the vacation, the implement a continuing number of vacation days cannot be accumulated, program for training and he is only entitled only to its monetary equivalent. skills acquisition of the

9. Funeral expenses must be paid by the employer child, subject to if the househelper has no relatives with sufficient approval and means in the place where the head of the family supervision of lives competent authorities

10. Termination only for just cause (as amended by RA 9231) 11. Indemnity for unjust termination of service 15 – Below 18 ALLOWED ONLY in: non-12. Employment certification as to nature and hazardous or non-deleterious

duration of service and efficiency and conduct of undertakings the househelper 18 years and No prohibition above Indemnity for Unjust Termination of Service

1. If the period for household service is fixed, Hazardous Workplaces neither the employer nor the househelper may a. Nature of the work exposes the workers to terminate the contract before the expiration of the Q uic kT im e™ and a


dangerous environmental elements, ar e needed to s ee t his pi ct ur e.

term except for a just cause. contaminants or work conditions 2. If the househelper is unjustly dismissed, he or b. Workers are engaged in construction work, she shall be paid the compensation already logging, fire-fighting, mining, quarrying, blasting, earned + that for 15 days by way of indemnity stevedoring, dock-work, deep sea fishing, and 3. If the househelper leaves without justifiable mechanized farming reason, he or she shall forfeit any unpaid salary c. Workers are engaged in the manufacture or due him/her not exceeding 15 days. handling of explosives and other pyrotechnic products

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Employment for Certification – upon the severance Deductions – No employee, contractor, or sub-of the household service relationship, the contractor shall make any deduction from the househelper may demand from the employer a homeworker's earnings for the value of materials written statement of the nature and duration of the which have been lost, destroyed, soiled or otherwise service and his/her efficiency and conduct as damaged unless the following conditions are met: househelper

1. The homeworker concerned is clearly shown to be responsible for the loss or damage; Apex Mining Co. Inc. v. NLRC, 196 SCRA 251

2. The employee is given reasonable opportunity to (1991) show cause why deductions should not be made; The criteria are the personal comfort and

3. The amount of such deduction is fair and enjoyment of the family of the employer in the home reasonable and shall not exceed the actual loss of said employer. While it may be true that the nature or damages; and of the work of a househelper, domestic servant or

4. The deduction is made at such rate that the laundrywoman in a home or in a company staffhouse amount deducted does not exceed 20% of the may be similar in nature, the difference in their homeworker's earnings in a week. circumstances is that in the former instance they are

actually serving the family while in the latter case, whether it is a corporation or a single proprietorship Liability of employer and contractor – Whenever engaged in business or industry or any other an employer shall contract with another for the agricultural or similar pursuit, service is being performance of the employer's work, it shall be the rendered in the staffhouses or within the premises of duty of such employer to provide in such contract that the business of the employer. In such instance, they the employees or homeworkers of the contractor and are employees of the company or employer in the the latter's sub-contractor shall be paid in accordance business concerned entitled to the privileges of a with the provisions of this Rule. In the event that such regular employee. contractor or sub-contractor fails to pay the wages or

earnings of his employees or homeworkers as specified in this Rule, such employer shall be jointly D. HOMEWORKERS and severally liable with the contractor or sub-contractor to the workers of the latter, to the extent Homeworker – applies to any person who performs that such work is performed under such contract, in industrial homework for an employer, contractor or the same manner as if the employees or sub-contractor homeworkers were directly engaged by the employer.

Industrial Homeworker – system of production Prohibitions for Homework under which work for an employer or contractor is 1. explosives, fireworks and articles of like character carried out by a homeworker at his/her home. 2. drugs and poisons Materials may or may not be furnished by the 3. other articles, the processing of which requires employer or contractor

exposure to toxic substance

Employer of Homeworker – includes any person, E. HANDICAPPED / DISABLED natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country,

Handicapped Workers – those whose earning directly or indirectly, or through an employee, agent capacity is impaired by age or physical or mental contractor, sub-contractor or any other person: deficiency or injury, disease or illness

a. Delivers, or causes to be delivered, any goods, There must be a link between the deficiency and articles or materials to be processed or fabricated Q uic kT im e™


the work which entitles the employer to lessen in or about a home and thereafter to be returned ar e needed to s ee t his pi ct ur e. the worker’s wage. If the disability of the person or to be disposed of or distributed in accordance

is not in any way related to the work for which he with his directions was hired, he should not be so considered as a b. Sells any goods, articles or materials to be handicapped worker. processed or fabricated in or about a home and

then rebuys them after such processing or fabrication, either by himself or through some Handicapped Worker Handicapped Person other person (Art. 78 LC) (RA 7277 Magna Carta

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for Disabled Persons) which may be necessary to aid in enforcement of the Labor Code or any labor law or order Those whose earning Those suffering from

5. issue compliance orders to give effect to labor capacity is impaired by restriction or different legislation based on the findings of employment age or physical or abilities as a result of a

mental deficiency or mental, physical or and enforcement officers or industrial safety engineers made in the course of inspection injury sensory impairment, to

perform an activity in the manner or within the range Compliance Order – must observe due process in

administrative proceedings: considered normal for a human being. a. alleged violator must first be heard and given

adequate opportunity to present evidence on his behalf When Employable

b. evidence presented duly considered before any 1. their employment is necessary to prevent decision reached curtailment of employment opportunities

c. decision is based on substantial evidence 2. does not create unfair competition in labor costs 3. does not impair or lower working standards d. decision based on evidence presented in the

hearing, or at least contained in the record and disclosed to the parties Handicapped Workers May Become Regular

e. decision is that of the decision-making authority Employees – if their handicap is not such as to and not mere views of subordinates effectively impede the performance of job operations

f. decision should explain the issues involved and in the particular occupations for which they were the reasons for the decisions rendered hired.

6. Issue writs of execution to the appropriate Equal Opportunity for Employment – no disabled authority for the enforcement of their orders, person shall be denied access to opportunities for EXCEPT in cases where the employer contests suitable employment. Qualified disabled employees the findings of the labor employment and shall be subject to same terms and conditions of enforcement officer and raises isues supported employment and the same compensation, privileges, by documentary proofs which were not benefits, fringe benefits, incentives or allowances as considered in the course of inspection – in the a qualified able-bodied person latter case, the case will have to be forwarded to

a Labor Arbiter Employment Agreement; Contents 1. Names and addresses of the employer and the Appeal

handicapped worker If order issued by duly authorized representative 2. Rate of pay of the handicapped worker which of DOLE Sec. – appeal to the latter

shall not be less than 75% of the legal minimum If order involves monetary award – an appeal by wage the employer may be perfected upon only upon

3. Nature of work to be performed by the posting of CASH or SURETY bond in the amount handicapped worker equivalent to the monetary award in the order

4. Duration of the employment appealed from

Power of DOLE Secretary VIII. ADMINISTRATION AND EMPLOYMENT May order stoppage of work OR suspension of

any unit or department where non-compliance with the law or implementing rules and Art. 128. Visitorial and enforcement power. regulations poses grave and imminent danger to Power of the Sec. of Labor or his duly authorized Q uic kT im e™

and athe health and safety of workers in the workplace. TI FF ( U nco mpr es s ed)

dec om pr ess orrepresentative, including labor regulation officers to: ar e needed to s ee t

his pi ct ur e. Within 24 hrs – a hearing shall be conducted to 1. have access to employer’s records and premises

determine whether an order for the stoppage of at any time of the day or night whenever work is work or suspension of operations shall be lifted being undertaken therein

If violation is attributable to FAULT OF THE 2. right to copy records EMPLOYER, he shall pay the employees 3. to question any employee concerned their salaries or wages during the 4. investigate any fact, condition, or matter which period of such stoppage of work or suspension of may be necessary to determine violations or operations.

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POWER authorized duly authorized Unlawful representative hearing officer For any person or entity to obstruct, impede, who may or of DOLE

delay or otherwise render ineffective the orders of may not be a the Sec. or his authorized representatives issued Regional pursuant to the authority under Art. 128 Director

No inferior court shall issue temporary or NATURE OF Visitorial and Adjudicatory permanent injunction or restraining order or POWER enforcement power on matter otherwise assume jurisdiction over any case power exercised involving involving the enforcement orders. through routine recovery of

inspections of wage Enforcement Power cannot be Used establishment Case does not arise from exercise of visitorial EXISTENCE Requires EER not

power OF EER existence of necessary since When EER ceased to exist at the time of EER it should not

inspection include a claim If employer contests finding of the labor officer for

and such contestable issue is not verifiable in the reinstatement normal course of inspection HOW Enforcement Sworn

INITIATED power is an complaint filed offshoot of by interested Recovery of Wages, Simple Money Claims and visitorial power party Other Benefits (Art. 129)

LIMITS AS No limit Aggregate claim TO AMOUNT of each Jurisdiction: DOLE Regional Director (summary

OF CLAIM complainant proceeding and non-litigious) does not exceed P5,000 Claimant: Employee or person in domestic or

APPEAL Appeal to Sec. Appeal to NLRC household service, provided: of Labor within within 5 10 calendar calendar days

1. no claim for reinstatement days 2. aggregate claims of each employee or

househelper DOES NOT EXCEED P5,000. IX. MEDICAL, DENTAL AND

Guico v. Sec. of Labor, 298 SCRA 666 (1998) OCCUPATIONAL SAFETY If the claim later exceeds P5,000, the Regional

Director still retains jurisdiction based on inspection’s First Aid Treatment – adequate, immediate and findings in the nature of enforcement action necessary medical and dental attention or remedy

given in case of injury or illness suffered by a worker during employment, irrespective of whether or not 3. claims arise from EER such injury or illness is work-connected, before a more extensive medical and/or dental treatment can NOTE: be secured. Notice and hearing

Resolution of complaint within 30 days from filing (Appeal within 5 calendar days to NLRC) First-Aider – any person trained and duly certified as

qualified to administer first aid by the PNRC or by any NLRC to resolve appeal within 10 calendar days Q uic kT im e™ and a

from submission of last pleading other organization accredited by the former TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e. Not Included: claims for Employees’ Compensation,

X. EMPLOYEES’ COMPENSATION Social Security benefits, Medicare benefits and Maternity Benefits

Workmen’s Compensation – a general and comprehensive term applied to those laws providing Art. 128 Art. 129 for compensation for loss resulting from the injury, WHO DOLE Sec. OR Regional

EXERCISES his duly Director or any

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disablement or death of a workman through industrial Conditions for Occupational Disease and accident, casualty or disease Resulting Disability or Death to be Compensable

1. Employee’s work must involve the risk described therein Compensation – money relief offered according to

2. the disease was contracted as a result of the the scale established under the statute as employee’s exposure to the described risks differentiated from compensatory damages

3. the disease was contracted within the period of recoverable in an action at law for breach of contract exposure and other such factors necessary to or for tort contract it

4. there was no notorious negligence on the part of WORKMEN’S EMPLOYEES the employee COMPENSATION ACT COMPENSATION LAW (WCA) (ECL)

Death – loss of life resulting from injury or sickness Presumption of No presumption of compensability compensability

Disability – loss or impairment of a physical or Presumption of No presumption of mental function resulting from injury or sickness aggravation aggravation

There is a need for the No need for the employer to controvert employer to controvert Direct Premises Rule the claim within 14 days the claim GR: The accident should have occurred at the place otherwise he is deemed of work to be compensable. to have waived the right Payment of Payment of Exceptions: compensation is made compensation is made 1. INGRESS-EGRESS / PROXIMITY RULE – when by the employer by the SSS/GSIS the injury is sustained when the employee is

through the State proceeding to or from his work on the premises of Insurance Fund. The the employer, the injury is compensable. employer’s obligation is 2. GOING TO OR COMING FROM WORK – when to pay his counter the injury is sustained when the employee is contribution to the SSS proceeding to or from his work on the premises of

the employer, the injury is compensable. Injury – any harmful change in the human organism from any accident arising out of and in the course of a. The act of the employee of going to, or employment coming from, the work place, must have

been a continuing act, that is, he had not been diverted therefrom by any other activity Conditions for Injury to be Compensable and he had not departed from his usual route 1. The employee must have been injured at the to, or from, his workplace; and place where the work required him to be

b. An employee on a special errand must have 2. The employee must have been performing his been official and in connection with his work. official functions

c. EXTRA PREMISES RULE – the company 3. If the injury is sustained elsewhere, the employee which provides the means of transportation in must have been executing an order of the going to, or coming from the place of work, is employer liable to the injury sustained by the 4. The injury was not due to the employee’s employees while on board said means of intoxication, willful intention to injure or kill himself transportation or another, or notorious negligence

d. SPECIAL ERRAND RULE – injury sustained Injuries incurred by a health worker while Q uic kT im e™ and a

outside the company premises is TI FF ( U nco mpr es s ed) dec om pr ess or

doing overtime work shall be considered ar e needed to s ee t his pi ct ur e.

compensable if his being out is covered by work-connected an office order or a locator slip or a pass for official business Sickness – any illness accepted as an occupational

e. DUAL PURPOSE DOCTRINE – allows disease listed by the Commission or any illness compensation where a special trip would caused by the employment subject to proof that the have to be made for the employer if the risk of contracting the same is increased by the employee had not combined the service for working conditions the employer with his going or coming trip

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f. SPECIAL ENGAGEMENT RULE – covers State Insurance Fund – all covered employers are field trips, outings, intramurals, and picnics required to remit to a common fund a monthly when initiated and sanctioned by the contribution equivalent to 1% of the monthly salary employer credit of every covered employee. The employee

g. POSITIONAL AND LOCAL RISKS pays no contribution to the fund. Any agreement to DOCTRINE – if an employee by reason of contrary is prohibited his duties is exposed to a special or peculiar danger from the elements, that is, one Disability Categories greater than that to which other persons in 1. TEMPORARY TOTAL – if as a result of the injury the community are exposed and an or sickness, the employee is unable to perform unexpected injury occurs, the injury is any gainful occupation for a continuous period compensable not exceeding 120 days

2. PERMANENT TOTAL – if as a result of the injury Compulsory Coverage – ECL applies to all or sickness, the employee is unable to perform employers, and to all employees, public or private any gainful occupation for a continuous period including casual, emergency, temporary, or substitute exceeding 120 days employees 3. PERMANENT PARTIAL - if as a result of the

injury or sickness, the employee suffers a permanent partial loss of the use of any part of An employee over 60 yrs of age and paying his body contributions to qualify for the retirement or life

insurance benefit administered by the system shall be subject to compulsory coverage. Death Benefits – The System shall pay to the

primary beneficiaries upon the death of the covered employee an amount equal to his monthly income Effective Date of Coverage – the employer is benefit, plus 10% thereof for each dependent child, covered from the first day of operation and the but not exceeding 5, beginning with the youngest, employee from first day of employment and without substitution. The income benefit shall be guaranteed for 5 years. Limits of Liability

No compensation if the injury, death or disability is Dependent the result of the employee’s: 1. Legitimate, legitimated, and legally adopted or 1. intoxication

acknowledged natural child who is unmarried, not 2. willful intention to injure or kill himself or another gainfully employed and not over 21 years of age 3. notorious negligence – deliberate act of the or over 21 years of age, provided he is incapable employee in disregard to his own personal safety of self-support due to a physical or mental defect 4. otherwise provided by the Labor Code which is congenital or acquired during minority

2. legitimate spouse living with the employee Death through Suicide 3. parents of said employee wholly dependent upon GR: not compensable

him for regular support Exceptions: Benefits 1. by agreement of the parties 1. for life to the primary beneficiaries, guaranteed 2. if the suicide/death is caused by work-related or

for 5 years compensable illness or disease 2. for not more than 60 mos. to the secondary

beneficiaries in case there are no primary Rules on Simultaneous Recovery beneficiaries 1. Simultaneous recovery under the Labor Code

3. in no case shall the total benefit be less than Q uic kT im e™ and a

and the Civil Code cannot be made. The action is TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.P15,000. selective and the employee may either choose to file the claim under either. But once the election

is made, the claimant cannot opt for the other Beneficiaries A. PRIMARY remedy.

2. Simultaneous recovery under the Labor Code 1. Dependent spouse until he/she remarries 2. Dependent children (legitimate, legitimated, and the SSS can be made.

natural born or legally adopted)

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B. SECONDARY 1. Illegitimate children and legitimate

descendants 2. Parents, grandparents, grandchildren



ar e needed to s ee t his pi ct ur e.

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LABOR RELATIONS PURPOSE: Mutual aid and protection. It shall be unlawful for any person to restrain, I. RIGHT TO SELF ORGANIZATION

coerce, discriminate against, or unduly interfere with employees and workers in their exercise of A. CONCEPT & SCOPE the right to self organization.

Art. 243. Coverage and employees’ right to self- B. LABOR ORGANIZATIONS organization.

Art. 246. Non-abridgment of right to self-1. Definition and Types organization. Labor Organization – means any union or Employer – includes any person acting in the association of employees which exists in whole or in interest of an employer, directly or indirectly; the term part for the purpose of collective bargaining or of` shall not include any labor organization or any of its dealing with employers concerning terms and officers or agents except when acting as employer conditions of employment Employee – includes any person in the employ of an Legitimate Labor Organization – means any labor employer. organization duly registered with the DOLE, and The term shall not be limited to the employees of includes any branch or local thereof a particular employer, unless the Code so explicitly states. Affiliate – refers to an independent union affiliated It shall include any individual whose work has with a federation or national union or a chartered ceased as a result of or in connection with any local which was subsequently granted independent current labor dispute or because of any unfair registration but did not disaffiliate from its federation, labor practice if he has not obtained any other reported to the Regional Office and the Bureau in substantially equivalent and regular employment. accordance with Rule III, Sections 6 and 7 of these Any employee, whether employed for a definite Rules. period or not, shall, beginning on his first day of service, be considered as an employee for Chartered Local – refers to a labor organization that purposes of membership in any labor union. acquired legal personality through the issuance of a (ART. 277 par.c) charter certificate by a duly registered federation or national union, and reported to the Regional Office in Right to Self-Organization accordance with Rule III, Section 2-E of the Rules. The right includes: 1. Forming, joining, or assisting labor organizations Consolidation – refers to the creation or formation of for the purpose of collective bargaining through a new union arising from the unification of two or representatives of their own choosing. more unions 2. To engage in lawful concerted activities for the purpose of collective bargaining or for their Independent Union – refers to a labor organization mutual aid and protection. operating at the enterprise level that acquired legal personality through independent registration Who Enjoys the Right to Self Organization General Rule: Legitimate Workers’ Association – refers to an 1. ALL persons in: association of workers organized for mutual aid and Commercial, industrial, agricultural, religious, protection of its members or for any legitimate charitable, medical and educational institutions, purpose other than collective bargaining registered whether or not operated for profit. Q uic kT im e™

and awith the Department TI FF ( U nco mpr es s ed)

dec om pr ess or


PURPOSE: Collective bargaining, engaging in lawful Merger – refers to a process where a labor concerted activities for collective bargaining, and organization absorbs another mutual aid and protection. National Union or Federation – refers to a group of 2. Ambulant, intermittent and itinerant and rural legitimate labor unions in a private establishment workers, the self-employed and those with no organized for collective bargaining or for dealing with definite employers may form labor organizations. employers concerning terms and conditions of

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employment for their member unions or for b. Minutes of the elections of officers, list of participating in the formulation of social and officers/voters within 30 days from election employment policies and standards and programs, c. Annual financial report to the BLR within 30 registered with the Bureau days after the closing of every fiscal year d. List of individual members to the BLR once a Union – refers to any labor organization in the private year or whenever required by the BLR sector organized for collective bargaining and for other legitimate purposes 3. Acting as labor contractor or engaging in the 'Cabo System' or otherwise engaging in any Workers’ Association – refers to an association of activity prohibited by law workers organized for the mutual aid and protection 4. Entering into CBAs with terms and conditions of of its members for any legitimate purpose other than employment below minimum standards collective bargaining. established by law 5. Asking for or accepting attorney's fees or 2. Registration of labor organizations negotiation fees from employer 6. Checking off special assessments or any other Art. 231. Registry of unions and file of collective fees without duly signed individual written bargaining agreements. authorizations of the members (other than for Art. 234. Requirements of registration. mandatory activities under the Labor Code) Art. 235. Action on application. Art. 236. Denial of registration; appeal. Procedure for Cancellation of Registration Art. 237. Additional requirements for federations (ANNEX D) or national unions. Art. 238. Cancellation of registration; appeal. Procedure for Cancellation of Registration Due to Art. 239. Grounds for cancellation of union Non-Compliance with Reportorial Requirements registration. (ANNEX E) Art. 240. Equity of the incumbent. 4. Rights of Labor Organization Requirements for Registration (ANNEX A) Art. 242. Rights of legitimate labor organizations. Art. 277. Miscellaneous provisions. Requirements in Case Of Merger/Consolidation (a) All unions are authorized to collect reasonable (ANNEX B) membership fees, union dues, assessments and fines and other contributions for labor education and Procedure for Registration of Labor Organization research, mutual death and hospitalization benefits, (ANNEX C) welfare fund, strike fund and credit and cooperative undertakings. 3. Cancellation of registration Rights of Labor Organizations Grounds for Cancellation of Union Registration 1. To act as the representative of its members for 1. Misrepresentation, False Statement or Fraud in the purpose of collective bargaining;

connection with: 2. To be certified as the exclusive representative for a. adoption/ratification of the CBL or purposes of collective bargaining;

amendments thereto, minutes of ratification 3. To be furnished by the employer, with its annual and the list of members who took part in the audited financial statements, including the ratification balance sheet and the profit and loss statement.

b. election of officers, minutes thereof, list of 4. To own property, real or personal, for the use and Q uic kT im e™ and a

officers/voters benefit of the labor organization and its members; TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.c. in the preparation of the financial reports 5. To sue and be sued in its registered name;

6. To undertake all other activities designed to 2. Failure to Submit: benefit the organization and its members,

a. CBL, minutes of its adoption/ratification, list including cooperative, housing, welfare and other of members who took part within 30 days projects not contrary to law. from adoption of ratification or amendments thereto The income and properties received by legitimate

labor organization which are actually, directly and

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exclusively used for their lawful purposes shall be free from taxes, duties and other assessments. Manager – one who is vested with the power or

prerogative to lay down an execute management Right to Represent its Members policies and/or to hire, transfer, suspend, lay-off, When a union files a case “for and in behalf of its recall, discharge, assign or discipline employees

members,” a member of that union will not be Note that the management policies must pertain permitted to file in the same case a complaint-in- exclusively to labor relations. intervention.

Intervention will be allowed only if there is Supervisor – one, who, in the interest of the suggestion of fraud or collusion or that the employer, effectively recommends managerial representative will not act in good faith for the actions protection of all interest represented by the union.

Compromise agreement between the union and Power to recommend the company is binding upon the minority Must be both members of the union. [Dionela v. Court of 1. Effective, and Industrial Relations, 8 SCRA 832 (1963)] 2. Requires the Use of Independent Judgment.

Compromise of Money Claims 2. Confidential Employees Money claims due to laborers cannot be the Confidential employees are also prohibited

object of settlement or compromise effected by a from forming, joining or assisting any labor union or counsel without the specific individual organization. consent of each laborer concerned. The beneficiaries are the individual complainants Confidential Employees – a confidential employee themselves. The union can only assist them but is one who is entrusted with confidence on delicate cannot decide for them. [Kaisahan ng mga matters, or with custody, handling, or care and Manggagawa sa La Campana v. Sarmiento 133 protection of the employer’s property. (National SCRA 220 (1984)] Association of Trade Unions (NATU) – Republic

Planters Bank Supervisors Chapter v. Honorable When the Union has the Right to be Furnished Ruben Torres, 1994) with Financial Statements Confidential employees assist and act in a 1. After the union has been recognized by the confidential capacity to, or have access to

employer as sole bargaining representative of the confidential matters of, persons who exercise managerial functions in the field of labor relations employees in the bargaining unit.

2. After the union is certified by DOLE as such sole [Philips Industrial Development v. NLRC; G.R. bargaining representative. No. 88957 (June 25, 1992)]

3. Written request from the union NOTE: Confidential employees may be managerial, 4. Within the last 60 days of the life of a CBA

5. During the collective bargaining negotiation supervisory or even a rank and file employee. Right to Collect Fees Purpose of Disqualification of Confidential Right to collect fees is recognized in Art. 277(a) Employees

and discussed under the topic of check-off under Doctrine of Necessary Implication – what is Art. 241 (Rights and conditions of membership in

a labor organization) implied in s statute is as much part thereof as that which is expressed

C. SPECIAL GROUPS OF EMPLOYEES Under Art. 245, confidential employees are not prohibited from joining, assisting, or forming any


1. Managerial & Supervisory Employees labor organization. But by virtue of necessary TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e. Under Art. 245, managerial employees are implication, confidential employees are similarly

not eligible to join, assist or form any labor disqualified. organization. By the very nature of their functions, they assist

Supervisory employees shall not be eligible and act in a confidential capacity to, or have for membership in a labor organization of the access to confidential matters of, persons who rank-and-file employees but may join, assist exercise managerial functions in the field of labor or form separate labor organizations of their relations. As such, the rationale behind the own. ineligibility of managerial employees to form,

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assist or join a labor union equally applies to them. (Metrolab Industries, Inc. v. Roldan- 5. Members of Iglesia ni Kristo Confesor ,1996)

Victoriano v. Elizalde Rope Workers’ Union, 59 Access to Confidential Labor Relations SCRA 54 (1974) Information What the Constitution and the Industrial Peace The information must be related labor relations Act recognize and guarantee is the “right” to form or

matters. When the employee does not have join associations. Nothwithstanding the different access to confidential labor relations information, theories propounded by the different schools of then the prohibition to form, join, or assist a union jurisprudence regarding the nature and contents of a does not apply. (Sugbuanon Rural Bank v. “right,” it can be safely said that whatever theory one Laguesma,2000) subscribes to, a right comprehends at least 2 broad

If the access is merely incidental to his duties and notions, namely: first, liberty or freedom, i.e. the not necessary in the performance of such duties, absence of legal restraint, whereby an employee may the access does not render the employee a act for himself without being prevented by law; and confidential employee (San Miguel Corp. second, power whereby an employee may, as he Supervisors & Exempt Union, et. al. v. Laguesma pleases, join or refrain from joining an association. It 1997) is therefore, the employee who should decide for

himself whether he should join or not in an 3. Security Guards association. It is clear, therefore, that the right to join

Under RA 6715, they may now join a abor a union includes the right to abstain from joining any organization of the rank and file or that of the union. supervisory union, depending on their rank. The legal protection granted to such right to (Manila Electric Co. v. Secretary of Labor refrain from joining is withdrawn by operation of law, and Employment, GR No. 91902, 20 May where a labor union and an employer have agreed on 1991) a closed shop.

What the exception provides is that members of 4. Members of Cooperatives said religious sects cannot be compelled or coerced to join labor unions even when said unions have

close shop agreements with the employers; that in Benguet Electric Cooperative v. Ferrer-Calleja, 180 SCRA 740 (1989) spite of any closed shop agreement, members of said Issue: religious sects cannot be refused employment or

Whether employees of a cooperatove are dismissed from their jobs on the sole ground that they qualified to form or join a labor organization for are not members of the collective bargaining union. purposes of collective bargaining. It is clear therefore, that the assailed Act, far from infringing the constitutional provision on freedom of Held: association, upholds and reinforces it. It does not

The right to collective bargaining is not available to prohibit the members of said religious sects from an employee of a cooperative who at the same time affiliating with labor unions. If, notwithstanding their is a member and co-owner thereof. With respect, religious beliefs, the members of said religious sects however, to employees who are neither members nor prefer to sign up with the labor union, they can do so; co-owners of the cooperative they are entitled to the law does not coerce them to join; neither does the exercise the rights to self-organization, collective law prohibit them from joining; and neither may the bargaining and negotiation. employer or labor union compel them to join.

The fact that the member-employees of petitioner (cooperative) do not participate in the actual Kapatiran sa Meat and Canning Division v. Ferrer-management of the cooperative does not make them Calleja, 162 SCRA 367 (1988)


eligible to form, assist or join a labor organization This Court’s decision in Victoriano v. Elizalde TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.purposes of collective bargaining. They cannot Rope Workers’ Union upholding the right of members invoke the right to collective bargaining for “certainly of the Iglesia no Kristo sect not to join a labor union an owner cannot bargain with himself or his co- for being contrary to their religious beliefs, does not owners.” bar the members of that sect from forming their own

It is the fact of ownership of the cooperative, and union. The public respondent correctly observed that not involvement in the management thereof, which the “recognition of the tenets of that sect xxx should disqualifies a member from joining any labor not infringe on the basic right of self-organization

granted by the constitution to workers, regardless of organization within the cooperative.

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religious affiliation. interference by the host country in their internal workings. The exercise of jurisdiction by the DOLE in these instances would defeat the very purpose of 6. Government Employees immunity, which is to shield the affairs of international organizations, in accordance with international Art. 244. Right of employees in the public service. practice, from political pressure or control by the host Art. 276. Government employees. country to the prejudice of member states of the organization, and to ensure the unhampered Association of Court of Appeals Employees v. performance of their functions. Ferrer-Calleja, 203 SCRA 596 (1991)

The immunity granted being “from every form of The terms and conditions of employment in the legal process except in so far as in any particular government service are governed by law. case they have expressly waived in their immunity,” it Any understanding between the top officials of a is inaccurate to state that a certification election is government agency and the union which represent beyond the scope of that immunity for the reason that the rank-and-file is subordinate to the law governing it is not a suit against ICMC. A certification election the particular issue or situation. cannot be viewed as independent or isolated process. It could trigger off a series of events in the Davao City Water District v. Civil Service collective bargaining process together with related Commission, 201 SCRA 593 (1991) incidents and/or concerted activities, which could By government owned or controlled corporation inevitably involve ICMC in the “legal process,” which with original charter, we mean government owned or includes “any penal, civil and administrative controlled corporation created by a special law and proceedings.” not under the Corporation Code of the Philippines.

It is clear that what has been excluded from the D. ACQUISITION AND RETENTION OF coverage of the CSC are those corporations created

MEMBERSHIP; UNION SECURITY AGREEMENTS pursuant to the Corporation Code. Art. 277. Miscellaneous provisions. Government Employees Not Allowed To Unionize (c) Any employee, whether employed for a definite 1. Members of the Armed Forces period or not, shall, beginning on his first day of 2. Police Officers/Policemen service, be considered as an employee for purposes 3. Firemen of membership in any labor union. 4. Jail Guards Art. 248. Unfair labor practices of employers. –(e) Discrimination. High level employees are also not allowed to join the organization of rank and file government What the law prohibits is discrimination to employees.

encourage or discourage membership in a labor o High level employees- one whose functions organization. Where the purpose is to influence are normally considered policy determining, the union activity of employees, the managerial or one whose duties are highly discrimination is unlawful. confidential in nature.

However, the inclusion of union security clause in the CBA is not considered ULP. 7. Employees of International Organizations

Union Security Clause – generic term which International Catholic Migration Commission v. comprehends “closed shop,” “union shop,” or any Calleja, 190 SCRA 130 (1989) other form of agreement which imposes upon Labor organizations in the International Catholic employees the obligation to acquire or retain union Migration Commission (ICMC) and International Rice membership as a condition of employment. Research Institute (IRRI), both international Q uic kT im e™


organizations, filed a petition for certification election. ar e needed to s ee t his pi ct ur e.

Kinds of Union Security Agreements ICMC and IRRI claimed immunity. 1. CLOSED-SHOP – only union members can be

hired and they must remain as union members to Held: retain employment. The grant of immunity from local jurisdiction to

2. UNION SHOP – Nonmembers may be hired, but ICMC and IRRI is clearly necessitated by their must become union members after a certain international character and respective purposes. The period to retain employment. objective is to avoid the danger and partiality and

3. MODIFIED UNION SHOP – Employees who are

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not union members at the time of the signing the right of freedom of association guaranteed by the contract is not required to join the union, but all constitution. (Manila Mandarin Employees Union workers hired after is required to join. v. NLRC, GR No. 76989, 29 September 1987)

4. MAINTENANCE OF MEMBERSHIP SHOP – Employees are not compelled to join the union, but all present or future members must remain in E. MEMBERSHIP; RIGHTS OF MEMBERS good standing in the union.

5. EXCLUSIVE BARGAINING SHOP – Union is Art. 241. Rights and conditions of membership in recognized as the exclusive bargaining agent for a labor organization. all employees in the bargaining unit, whether Art. 274. Visitorial power. union members or not. Art. 222. Appearances and Fees.

6. BARGAINING FOR MEMBERS ONLY – Union is recognized as the bargaining agent only for its Rights of Union Members own members. 1. POLITICAL RIGHT

7. AGENCY SHOP – an agreement whereby a. right to vote employees must either join the union or pay to b. right to be voted for

the union as exclusive bargaining agent a sum equal to that paid by the members. 2. DELIBERATIVE AND DECISION-MAKING RIGHT

a. right to participate in deliberations on major These union security agreements are opposite of policy questions

OPEN SHOP. Open shop does not require union b. decide on major policy questions by secret membership as a condition of employment. ballot

3. RIGHTS OVER MONEY MATTERS Liberty Flour Mills Employees v. Liberty Flour

a. right against excessive fees Mills, Inc., GR Nos. 58768-70, 29 December 1989 b. right against unauthorized collection Union and Company executed a CBA which c. right against unauthorized disbursements contained a union shop clause d. right to require adequate records of income Over a year after the execution of the CBA, 2

and expenses. employees were dismissed after they formed their e. right to access financial records own union. f. right to vote on officers’ compensation g. right to vote on proposed special Held:

assessments It is the policy of the State to promote unionism to h. right to deduction of special assessments enable the workers to negotiate with management on

only with written authorization from member. the same level and with more persuasiveness than if they were to individually and independently bargain 4. RIGHT TO INFORMATION for the improvement of their respective conditions. To

a. right to be informed about the organization’s this end, the Constitution guarantees to them the constitution and by-laws and the collective rights "to self-organization, collective bargaining and bargaining agreement and about labor laws. negotiations and peaceful concerted actions including

the right to strike in accordance with law." There is no Other Rights & Conditions under Art. 241 question that these purposes could be thwarted if 1. Labor organizations cannot knowingly admit or every worker were to choose to go his own separate

continue in membership any individual who way instead of joining his co-employees in planning belongs to a subversive organization or engaged collective action and presenting a united front when directly or indirectly in any subversive activity. they sit down to bargain with their employers. It is for

2. A member who has been convicted of a crime this reason that the law has sanctioned stipulations Q uic kT im e™ and a

involving moral turpitude is ineligible for election for the union shop and the closed shop as a means TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.or appointment in the union. of encouraging the workers to join and support the

3. Every payment of fees, dues or other labor union of their own choice as their representative contributions by a member shall be evidenced by in the negotiation of their demands and the protection a receipt signed by the officer and entered into of their interest vis-a-vis the employer. the record of the organization.

4. Every income shall be evidenced by a record A closed shop provision is a valid for of union showing its source. And every expenditure shall security, and such a provision in a collective be evidenced by a receipt from the person who bargaining agreement is not a restriction of the

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was paid. The receipt shall state the date, place 2. Individual who belongs to a subversive and purpose of such payment. organization or engaged directly or indirectly in

any subversive activity. Eligibility for Membership - one cannot even be a member of the Eligibility for membership depends upon the organization

union’s constitution and by laws. However, under Art. 277, an employee is already qualified for Union Election Protest – complaints or protests union membership starting on his first day of regarding election of union officers is treated as an service. intra/inter-union dispute

Election of Union Officers Check-Offs & Assessments Officers shall be elected directly by members in

secret ballot voting. Check-Off – a method of deducting from an Election shall take place every 5 years. employee’s pay at prescribed period, the amounts The only qualification requirement for candidacy due the union for fees, fines or assessments.

shall be membership in good standing in labor Deductions for union service fee are authorized organization. by law and do not require individual check-off o Membership in good standing – any person authorizations.

who has fulfilled the requirements for membership in the union and who has Agency Fee – amount equivalent to union dues, neither voluntarily withdrawn from which a nonunion member pays to the union because membership nor has been expelled or he benefits from the CBA negotiated by the union suspended from membership.

The secretary or any other responsible union Requisites for a Valid Special Assessments officer shall give the Secretary with a list of the 1. Authorization by a written resolution of the newly-elected officers, and appointed officers or majority of all the members at the general agents who are entrusted with the handling of membership meeting duly called for that purpose. funds within 30 days after the election 2. Secretary’s record of the minutes of the meeting.

Procedure of elections o must include list of members present, votes o GR: in accordance with the union’s cats, purpose of the special assessments

constitution and by-laws or agreement and the recipient of such assessments. among the members. 3. Individual written authorization for check-off duly

o If the constitution, by laws are silent or if signed by the employee concerned – to levy such there is no agreement, then Rule 12 of the assessments Implementing rules will apply

Palacol v. Ferrer-Calleja, 182 SCRA 710 (1990) Elections under Rule 12 of the Implementing The union president submitted the authorization Rules (ANNEX F) for the company to deduct union dues and 10% by way of special assessments. Eligibility of Voters Subsequently, members of the union submitted Only members of the union can take part in the documents stating that they were withdrawing their election of union officers. authorization such that in the end, there ere 528 objectors and only 272 supporters. Tancinco v. Pura Ferrer-Calleja GR. No. 78131 Petitioners question the special assessments.

(1988) The question of eligibility to vote may be Held:

determined through the use of the applicable payroll The failure of the union to comply strictly with the Q uic kT im e™ and a

period and employee’s status during the applicable TI FF ( U nco mpr es s ed) dec om pr ess or

requirements set out by the law invalidates the ar e needed to s ee t his pi ct ur e.

period. questioned special assessments. Substantial Submission of the employees’ name with the compliance is not enough in view of the fact that the BLR as qualified members of the union is not a special assessment will diminish the compensation of condition sine qua non to enable said members to the union members. vote in the election of the union officers. Under Art. 241, (n), the Union must submit to the company a written resolution of a majority of all the Disqualification of Union Officers members at a general membership meeting called for 1. Convicted of a crime involving moral turpitude.

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the purpose. In addition, the secretary of the membership. organization must record the minutes of the meeting which in turn, must include, among others, the list of all the members present as well as the votes cast. II. UNFAIR LABOR PRACTICES

The law would not have specified a general membership meeting had the legislative intent been Art. 247. Concept of unfair labor practice and to allow local meetings in lieu of the latter. procedure for prosecution thereof.

There can be no valid check-off considering that the majority of the union members had already Concept of Unfair Labor Practices withdrawn their individual authorization. The aim of labor relations policy is industrial

democracy whose realization is most felt in a free collective bargaining or negotiation over terms Violation of Rights of Members and conditions of employment. Because self – GR: Complaint for violation of rights must be reported organization is a prerequisite of industrial by at least 30% of the union members. democracy, the right to self – organize has been enshrined in the Constitution, and any attack to it Exception: when the violation directly affects only – any attack to it – any act intended to defeat or one or two members, then only one or two members debilitate the right – is regarded by law as an can report such violation. offense.

The victim of the offense is not just the workers Consequence of Violation of Rights as a body and the well – meaning employees 1. Cancellation of the union registration who value peace, but the State as well. Thus, the 2. Expulsion of the cULPable officers. attack to this constitutional right is considered a crime which carries both civil and criminal Remedies for Violation of Rights liabilities.

Litton Mills Employees Association-Kapatiran v. Elements of Unfair Labor Practice Ferrer-Calleja, GR No. L-78061 (1988) 1. EER between the offender and the offended. Despite the practical difficulties in complying with

ULP is negation of a counteraction to the the said procedure, petitioners should have shown right to organize which is available only to substantial compliance with said impeachment employees in relation to their employer. No procedure, by giving the union officer ample organizational right can be negated or opportunity to defend himself, as contrasted to an assailed if the employer – employee outright impeachment, right after he failed to appear relationship is absent in the first place. before the first and only investigation scheduled.

2. The act done is expressly defined in the Code as an act of unfair labor practice. Diamonon v. Dept. of Labor, et. al. GR. No. Art. 212(k) defines unfair labor practice as 108951, 07 March 2000

any unfair labor practice as defined by this When the Constitution and by-laws of both Code. unions dictated the remedy for intra-union dispute,

The prohibited acts are all related to the this should be resorted to not only to give the workers’ self – organizational right and to the grievance machinery or appeals’ body of the union observance of a collective bargaining the opportunity to decide the matter by itself, but also agreement. Because ULP is and has to be to prevent unnecessary and premature resort to related to the right to self organization and to administrative or judicial bodies. the observance of the CBA, it follows that not The underlying principle of the rule on exhaustion every unfair act is unfair labor practice. of administrative remedies rests on the presumption

ULP therefore, refers only to acts opposed to that when the administrative body, or grievance Q uic kT im e™ and a

workers’ right to organize. When committed TI FF ( U nco mpr es s ed) dec om pr ess or

machinery, as in this case, is afforded a chance to ar e needed to s ee t his pi ct ur e.

by the employer, it commonly connotes anti – pass upon the matter, it will decide the same unionism. correctly.

Aspects of Unfair Labor Practice Visitorial Power 1. Civil Aspect The Secretary or his duly authorized 2. Criminal Aspect representative can inquire into the financial activities of any labor organization on the basis of

a complaint under oath, supported by 20% of the

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Civil aspect may include liability for damages and light of indefinite combinations of events which may may be passed upon by the labor arbiter. be charged as violative of its terms.

Prosecution of ULP as a criminal offense can be initiated only after the finality of judgment in the When There is no ULP: Instance of Valid Exercise labor. of Management Rights

But judgment in the labor case will not serve as The law on unfair labor practices is not intended evidence of ULP in the criminal case. to deprive the employer of his fundamental right

to prescribe and enforce such rules as he Jurisdiction of Criminal Charge of ULP honestly believes to be necessary to the proper,

The criminal charge fall under the concurrent productive and profitable operation of his jurisdiction of the MTC or the RTC. business. The only condition imposed upon this control is Only substantial evidence is required in the labor that it must not be exercised so as to effect a

case while proof beyond reasonable doubt is violation of the Act and its several prohibitions. need in the criminal prosecution. Where, however, an employer does violate the

Recovery of civil liability in the administrative Act and is found guilty of the commission of an proceedings shall bar recovery under the Civil unfair labor practice, it is no excuse that his Code. conduct was unintentional and innocent.

Who are Liable when ULP is Committed by Other Rubberworld Phils., Inc., et al. v. NLRC, GR No. than a Natural Person 75704, 19 July 1989

The penalty shall be imposed upon the guilty As a rule, it is the prerogative of the company to officers of a corporation, partnership, association or promote, transfer or even demote its employees to entity (Art. 289). If the ULP is committed by a labor other positions when the interests of the company organization, the parties liable are the officers, reasonably demand it. Unless there are instances members of governing boards, representatives or which directly point to interference by the company agents or members of labor associations or with the employees right’s to self – organization, the organizations who have actually participated in, transfer of an employee should be considered within authorized or ratified such (Art. 249). the bounds allowed by law, e.g. where despite his transfer to a lower position, his original rank and Prescription of actions for ULP salary remained undiminished.

The offense prescribes in 1 year (Art. 290). Enriquez v. Zamora, GR No. 51382, 29 December Art. 248. Unfair labor practices of employers. 1986 Art. 261. Jurisdiction of Voluntary Arbitrators or Acceptance of a voluntary resignation is not ULP. panel of Voluntary Arbitrators. In a Philippine Airlines case the courts said that the pilot’s protest retirement/resignation was not a Conditions precedent to the ULP charge concerted activity which was protected by law. They 1. The injured party is within the definition of did not assume the status of strikers. They cannot,

“employee.” therefore, validly claim that the company committed 2. The act charged as ULP must fall under the unfair labor practice. When the pilots voluntarily

prohibitions of Art. 248 (acts of the employer) or terminated their employment relationship with the 249 (acts of the union). company, they cannot claim that they were dismissed

The Hongkong and Shanghai Banking Corp. Wise and Co., Inc. v. Wise & Co., Employees Employees Union ns. NLRC, GR No. 125038, 06 Union, GR No. 87672, 13 October 1989 November 1997 There can be no discrimination committed by the Q uic kT im e™

and aThe Code enumerates the acts or categories of TI FF ( U nco mpr es s ed)

dec om pr ess oremployer as the situation of the union employees is ar e needed to s ee t

his pi ct ur e.acts considered as ULP. The enumeration does not different from that of the nonunion employees. mean an exhaustive listing of ULP incidents. The Discrimination per se is not unlawful. There can be Labor Code does not undertake the impossible task no discrimination where the employees concerned of specifying in precise and unmistakable language are not similarly situated. each incident which constitutes an unfair labor The grant by the employer of profit – sharing practice. Rather, it leaves to the court the work of benefits to the employees outside the bargaining unit applying the law’s general prohibitory language in the falls under the ambit of its managerial prerogative. It

appears to have been done in good faith and without

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ulterior motive. More so when as in this case there is suspicion as to the motivation for the employer’s a clause in the CBA where the employees are action, the failure of the employer to ascribe a valid classified into those who are members of the union reason therefore may justify an interference that his and those who are not. In the case of the union unexplained conduct in respect of the particular members, they derive their benefits from the terms employee or employees was inspired by the latter’s and conditions of the CBA which constitutes the law union membership or activities. between the contracting parties. Both the employer and the union members are bound by such Unfair Labor Practice of Employers agreement 1. interference 2. yellow dog condition Philippine Graphic Arts, Inc. v. NLRC, et al., GR 3. contracting out No. L-80737, 29 September 1988 4. company unionism

Where the vacation leave without pay, which the 5. discrimination for or against union membership employer requires employees to take in view of the 6. discrimination because of testimony economic crisis, is neither malicious, oppressive nor 7. violation of duty to bargain vindictive, ULP is not committed 8. paid negotiation 9. violation of CBA NLU v. Insular La Yebana Co., 2 SCRA 924 (1961)

Except as limited by special laws, an employer is First ULP: Interference (Art. 248 (A)) free to regulate, according to his own discretion and Interference with employee organizational rights judgment, all aspects of employment, including hiring, were found where the superintendent of the employer work assignments, working methods, time, place and threatened the employees with cutting their pay, manner of work, tools to be used, process to be increasing rent of the company houses, or closing the followed, supervision of workers, working regulations, plant if they supported the union and where the transfer of employees, work supervision, lay – off employer encouraged the employees to sign a workers and the discipline, dismissal and recall of petition repudiating the union work. ULP Even Before Union is Registered LVN Picture Workers v. LVN, 35 SCRA 147 (1970)

So long as a company’s management Judric Canning Corporation v. Inciong, GR No. L-prerogatives are exercised in good faith for the 51494, 19 August 1982 advancement of the employer’s interest and not for Under Art. 248 (a) of the Labor Code of the the purpose of defeating or circumventing the rights Philippines, “to interfere with, restrain, or coerce of the employees under special laws or under valid employees in their exercise of their right to self – agreements, the Court will uphold them organization” is an unfair labor practice on the part of the employer. Paragraph (d) of said Article also Determination of validity considers it an unfair labor practice for an employers

Necessarily, determining the validity of an “to initiate, dominate, assist or otherwise interfere the employer’s acts involve an appraisal of his motives. formation or administration of any labor organization, Thus, there must be a measure of reliance on the including the giving of financial “or other support to it.” administrative agency. It is for the CIR [NLRC now], In this particular case, the private respondents were in the first instance, to weigh the employer’s dismissed, or their services were terminated, expressed motive in determining the effect on the because they were soliciting signatures in order to employees of management’s otherwise equivocal act. form a union within the plant. [Republic Savings Bank v. CIR, 21 SCRA 226 (1967)] Samahan ng mga manggagawa sa Bandolino – AHS/Philippines Employees Union v. NLRC, GR LMLC et. al. v. NLRC Bandolino Shoe Corp., et. Q uic kT im e™


No. 73721, 30 March 1987 al., GR No. 125195, 17 July 1997 ar e needed to s ee t his pi ct ur e.An employer may treat freely with an employee In short, an employer who interfered with the right

and is not obliged to support his actions with reason to self – organization before the union is registered or purpose. However, where the attendant can be held guilty of ULP. circumstances, the history of the employer’s past conduct and like considerations, coupled with an Prohibiting organizing activities intimate connection between the employer’s actions However, in the absence of showing that the and the union affiliations or activities of the particular illegal dismissal was dictated by anti – union motives, employee or employees taken as a whole raise a the same does not constitute an unfair labor practice

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as would be a valid ground for strike. The remedy is Lockout or Closure Amounting to ULP an action for reinstatement with backwages and A lockout, actual or threatened, as a means of damages. (AHS/Philippine Employees Union v. dissuading the employees from exercising their NLRC, G.R. No. 87321, 31 March 1987) rights under the Act is clearly an unfair labor practice. Examples of unlawful acts to discourage However, to hold an employer who actually or membership in a labor organization: who threatens to lock out his employees guilty of 1. dismissal of union members upon their refusal to a violation of this Act, the evidence must

give up their membership, under the pretext of establish that the purpose thereof was to interfere retrenchment due to reduced dollar allocations with the employee’s exercise of their rights. (Manila Pencil Co. v. CIR, 14 SCRA 953)

2. refusal over a period of years to give salary Sale in Bad Faith adjustments according to the improved salary The sale of a business enterprise to avoid the scales in the collective bargaining agreements legal consequences of an unfair labor practice is (Benguet Consolidated v. BCI Employees and necessarily attended with bad faith and both the Workers Union, 22 SCRA 129) vendor and the vendee continue to be liable to

3. dismissal of an old employee allegedly for the affected workers. (Cruz v. PAFLU, G.R. No. inefficiency, on account of her having joined a L-26519, 29 October 1971) union and engaging in union activities (East Where the sale of a business enterprise was Asiatic Co. v. CIR, 16 SCRA 820). attended with bad faith, there is no need to

4. Dismissal of teachers for fear by the school that consider the applicability of the rule that labor there would be strike the following semester contracts being in personam are not enforceable (Rizal Memorial Colleges Faculty Union, et. al. v. against the transferee. The latter is in the position NLRC GR. Nos. 59012-13, 12 October 1989) of tort – feasor, having been a party likewise

5. A company’s capital reduction efforts, to responsible for the damage inflicted on the camouflage the fact that it has been making members of the aggrieved union and therefore profits to justify the mass lay-off of its employees cannot justly escape liability. (Cruz v. PAFLU, especially union members. (Madrigal & G.R. No. L-26519, 29 October 1971) Company, Inc. v. Zamora, Gr. No. L-4823, 30 June 1987) Doctrine of Successor-Employer

A new company will be treated as a continuation or successor of the one that closed in the new or CLLG E.G. Gochangco Workers Union v. NLRC, take-over company is engaging in the same GR No. L-67158, 30 May 1988 business as the closed company or department, We have held that unfair labor practice cases are or is owned by the same people, and the not, in view of the public interest involved, subject to "closure" is calculated to defeat the worker's comprise. organizational right in which case the closure may be declared a subterfuge. Totality of Conduct Doctrine

The successor-employer doctrine is just an The culpability of employer’s remarks is to be enforcement of the piercing the veil of corporate evaluated on the basis of their implication, entity. against the background of and in conjunction with

collateral circumstances. Factors to Determine Continuity: Under this doctrine, an expression which might 1. Retention of CONTROL be permissibly uttered by one employer, might be 2. Use of the SAME PLANT OR FACTORY deemed improper when spoken by a more hostile 3. Use of the SAME OR SUBSTANTIALLY THE employer, and consequently actionable as an

SAME EMPLOYEES, workers, supervis ors or unfair labor practice. Q uic kT im e™ and a

managers TI FF ( U nco mpr es s ed) dec om pr ess or

This doctrine, expressions of opinion by an ar e needed to s ee t his pi ct ur e.

4. Similar or substantially the same work or employer, though innocent in themselves, production under SIMILAR OR SUBSTANTIALLY frequently were held to be culpable because of THE SAME WORKING CONDITIONS the circumstances under which they were

5. Use of the SAME MACHINERY AND uttered, the history of the particular employer’s EQUIPMENT labor relations or anti – union bias or because of

6. Manufacture of the SAME PRODUCTS or the their connection with an established collateral performance of the same services plan of coercion or interference.

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Second ULP: Yellow Dog (Art. 248 (B)) 1. Initiation of the company union idea. Yellow Dog Contract – a promise exacted from This may further occur in three styles: workers as a condition of employment that they are a. outright formation by the employer or his not to belong to, or attempt to foster, a union during representatives their period of employment b. employee formation on outright demand or influence by employer 3 Usual Provisions under the Yellow Dog c. managerially motivated formation by Contract employees 1. a representation by the employee that he is not a

member of a labor union 2. Financial support to the union. 2. a promise by the employee not to join a labor By defraying the union expenses or pays the

union attorney’s fees to the attorney who drafted the 3. a promise by the employee that, upon joining a constitution and by – laws of the union.

labor union, he will quit his employment 3. Employer encouragement and assistance. Third ULP: Contracting Out [Art. 248 (c)] Immediately granting the union exclusive recognition as a bargaining agent without determining Contracting Out as ULP whether the union represents the majority of Contracting out services or functions being employees.

performed by union members when such act will interfere with, restrain, or coerce employees in 4. Supervisory assistance. the exercise of their right to self – organize. This takes the form of soliciting membership,

However, an employer is not guilty of an unfair permitting union activities during working time or labor practice in contracting work out for business coercing employees to loin the union by threats of reasons such as decline in business, the dismissal or demotion (Philippine American Cigar & inadequacy of his equipment, or the need to Cigarette Factory Workers Union v. Philippine reduce the cost, even if the employer’s estimate American Cigar & Cigarette Mfg. Co., Inc., 7 SCRA of his cost is based on a projected increase 375). attributable to unionization.

Oceanic Air Products, Inc. v. CIR, GR No. L-Runaway shop 18704, 31 January 1963 An industrial plant moved by its owners from one A labor union is company – dominated where it

location to another to escape union labor appears that key officials of the company have been regulations or state laws or to discriminate forcing employees belonging to rival labor union to against employees at the old plant because of join the former under pain of dismissal should they their union activities. refuse to do so; that key officials of the company, as

Resorting to runaway shop is ULP. well as its legal counsel, have attended the election Where a plant removal is for business reasons of officers of the former union; that officers and

but the relocation is hastened by anti – union members of the rival union were dismissed allegedly motivation, the early removal is unfair labor pursuant to a retrenchment policy of the company, practice. It is immaterial that the relocation is after they had presented demands for the accompanied by a transfer of title to a new improvement of the working conditions despite its employer who is an alter ego of the original alleged retrenchment policy; and that, after dismissal employer. of the aforesaid officers of the rival labor union, the

Mere ownership by a single stockholder or by company engages the services of new laborers another corporation of all or nearly all of the


capital stock of a corporation is not of itself TI FF ( U nco mpr es s ed) dec om pr ess or

Fifth ULP: Discrimination (Art. 248 (E)) ar e needed to s ee t his pi ct ur e.

sufficient ground for disregarding the separate corporate personality. [Sunio v. NLRC, 127 Pagkakaisang Itinataguyod ng mga Manggagawa SCRA 390 (1984)] sa Ang Tibay, et. al. v. Ang Tibay, et. al., GR No. L-22273, 16 May 1967 Fourth ULP: Company Domination Of Union (Art. Under the Industrial Peace Act (as under the 248 (D)) present Labor Code), to constitute an unfair labor

practice, the discrimination committed by the Manifestations of Domination of a Labor Union

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employer must be in regard to the hire or tenure of Philippine Metal Foundries, Inc., v. CIR, GR Nos. employment or any term or condition of employment L-34948 – 49, 15 May 1979 to encourage or discourage membership in any labor The question of whether an employee was organization. The exaction by the Company, from discharged because of his union activities is strikers returning to work, of a promise not to destroy essentially a question of fact as to which the findings company property and no to commit acts of reprisal of the court of Industrial Relations are conclusive and against the Union members who did not participate in binding if supported by substantial evidence the strike, cannot be considered as intended to considering the record as a whole. encourage or discourage Union membership. Taking the circumstances surrounding the prescribing of that When there is Valid Discrimination: Union condition, the requirement by the Company is Security Clause actually an act of self – preservation and designed to Union security is a generic term which is applied inure the maintenance of peace and order in the to and comprehends closed shop, union shop, Company premises maintenance of membership or any other form of agreement which imposes upon employees the Discrimination in Bonus Allocation or Salary obligation to acquire or retain union membership Adjustments as a condition affecting employment. It is indeed

There is unfair and unjust discrimination in the compulsory union membership whose objective granting of salary adjustments where the evidence is to assure continued existence of the union. In a shows that (a) the management paid the employees sense, there is discrimination when certain of the unionized branch; (b) where salary employees are obliged to join a particular union. adjustments were granted to employees of one of its But it is discrimination favoring unionism; it is a non - unionized branches although it was losing in its valid kind of discrimination. operations; and (c) the total salary adjustments given The employer is not guilty of unfair labor practice every ten of its unionized employees would not even if it merely complies in good faith with the request equal the salary adjustments given one employee in of the certified union for the dismissal of the non – unionized branch. (Manila Hotel Company employees expelled from the union pursuant to v. Pines Hotel Employees Ass’n. (CUGCO) and CIR, the union security clause in the collective G.R. No. L-30818, 28 September 1972) bargaining agreement. (Soriano v. Atienza, GR No. 68619, 16 March 1989) Discrimination in Layoff or Dismissal Even where business conditions justified a layoff Villar vs Inciong, 121 SCRA 444 (1983)

of employees, unfair labor practices in the form of It is true that disaffiliation from a labor union is discriminatory dismissal were found where only not open to legal objection. It is implicit in the unionists were permanently dismissed while non freedom of association ordained by the Constitution. – unionists were not. But a closed shop is a valid form of union security, and such provision in a collective bargaining

Test of Discrimination agreement is not a restriction of the right of freedom For the purpose of determining whether or not a of association guaranteed by the Constitution.

discharge is discriminatory, it is necessary that the underlying reason for the discharge be Victorias Milling Co., Inc. v. Victorias – Manapla established. Workers Organization – PAFLU, GR No. L-18467,

The fact that a lawful cause for discharge is 30 September 1963 available is not a defense where the employee is Another reason for enforcing the closed – shop actually discharged because of his union agreement is the principle of sanctity or inviolability of activities. If the discharge is actually motivated by contracts guaranteed by the Constitution. As a matter a lawful reason, the fact that the employee is of principle, the provision of the Industrial Peace Act Q uic kT im e™


engaged in union activities at the time will not lie granting freedom to employees to organize ar e needed to s ee t his pi ct ur e.

against the employer and prevent him from the themselves and select their representative for exercise of his business judgment to discharge entering into bargaining agreements, should be an employee for cause. (NLRB v. Ace Comb Co., subordinated to the constitutional provision protecting 342 F. 2 841) the sanctity of contracts.

Discharge due to union activity, a question of fact Advantages of Closed Shop Agreement

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1. increases the strength and bargaining power of Petitioners, although entitled to disaffiliation from labor organizations. their union and to forma new organization of their

2. prevents non – union workers from sharing in the own, must, however, suffer the consequences of their benefits of the union’s activities without also separation from the union under the security clause. sharing its obligations.

3. prevents the weakening of labor organizations by Due process required in enforcing union security discrimination against union members. clause; intra – union matter becomes termination

4. eliminates the lowering of standards caused by dispute with employer competition with non - union workers. Although a union security clause in a CBA may

5. enables labor organizations effectively to enforce be validly enforced and dismissal pursuant collective agreements. thereto may likewise be valid, this does not erode

6. facilitates the collection of dues and enforcement the fundamental requirement of due process. The of union rules. reason behind the enforcement of union security

7. creates harmonious relations between the clauses which is the sanctity and inviolability of employer and employee (NLU v. Aguinaldo’s contracts cannot override one’s right to due Echague, Inc., 51 O.G. 2898) proc ess.

While it is true that the issue of expulsion of the Disadvantages of a Closed Shop Agreement local union officers is originally between the local 1. results in monopolistic domination of employment union and the federation, hence, intra – union in

by labor organizations character, the issue was later on converted into a 2. interferes with the freedom of contract and termination dispute when the company dismissed

personal liberty of the individual worker the petitioners from work without the benefit of a 3. compels employers to discharge all non – union separate notice and hearing. Thus,

workers regardless of efficiency, length of notwithstanding the fact that the dismissal was at service, etc. the instance of the federation and that it

4. facilitates the use of labor organizations by undertook to hold the company free from any unscrupulous union leaders for the purpose of liability resulting from such a dismissal, the extortion, restraint of trade, etc. company may still be held liable if it was remiss

5. denies to non – union workers equal opportunity in its duty to accord the would – be dismissed for employment employees their right to be heard on the matter.

6. enables union to charge exorbitant dues and initiation fees Liability of union to pay wage and fringe benefits

of illegally dismissed employee Valid dismissal because of application of union Where the employer compelled the employee to security clause go on forced leave upon recommendation of the union for alleged violation by the employee of the Malayang Samahan ng mga Manggagawa sa M. closed – shop agreement, the NLRC correctly Greenfield v. Ramos, GR No. 113907, 28 February ordered the reinstatement of the employee and 2000 directed the union to pay the wages and fringe

Union security clauses in the collective benefits which employees failed to receive as a result bargaining agreements, if freely and voluntarily of her forced leave and to pay attorney’s fees. The entered into, are valid and binding. Thus, the employer would not have compelled the employee to dismissal of an employee by the company pursuant go on forced leave were it not for the union’s to a labor union’s demand in accordance with a union insistence and demand to the extent that because of security agreement does not constitute unfair labor the failure of the employer to dismiss the employee practice. as requested, the union filed a notice of strike on the issue of unfair labor practice. Moreover, under the



Manalang, et. al. v. Artex Development Co., et. al., collective bargaining agreement between the union ar e needed to s ee t his pi ct ur e.

GR No. L-20432, 30 October 1967 and the employer, the union holds the company free A union member who is employed under an and blameless from any liabilities that may arise

agreement between the union and his employer is should the employee question the dismissal. (Manila bound by the provisions thereof since it is a joint and Mandarin Employees Union v. NLRC, GR No. 76989, several contract of the members of the union entered 29 September 1987) into by the union as their agent. Employer in good faith not liable Villar v. Inciong, 121 SCRA 444 (1983)

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Where the employer dismissed his employees in the belief in good faith that such dismissal was required Sixth ULP: Discrimination Because Of Testimony by the closed – shop provisions of the collective [Art. 248 (f)] bargaining contract with the union, he may not be The testimony or proceedings might involve ordered to pay back compensation to such wages, employee’s benefits disciplinary rules, or employees although their dismissal is found to be organizational rights, or anything covered by the illegal. (Confederated Sons of Labor v. Anakan Labor Code. What is chargeable as ULP is the Lumber co., et. al., GR No. L-12503, 29 April 1960) employer’s retaliatory act regardless of the subject of the employee’s complaint or testimony. Employees not covered by the closed shop provision Seventh ULP: Violation of the Duty to Bargain 1. any employee who at the time the closed – shop [Art. 248 (g)]

agreement takes effect is a bona fide member of a religious organization which prohibits its Four Forms of ULP in bargaining: members from joining labor unions of religious a. Failure or refusal to meet and convene grounds b. Evading the mandatory subjects of bargaining

2. employees already in service and already c. Bad faith in bargaining, including failure or refusal members of a labor union or unions other than to execute the collective agreement, if requested the majority union at the time the closed – shop d. Gross violation of the CBA agreement took effect

3. confidential employees who are excluded from Eighth ULP: Paid Negotiation [Art. 248 (H)] the rank and file bargaining unit Self – organization and collective bargaining are

4. employees excluded from the closed – shop by treasured rights of the workers. The law express terms of the agreement zealously shields them from corruption. It is a

punishable act of ULP for the employer to pay the It is well – settled in this jurisdiction that, in the union or any of its officers or agents any

absence of a manifest intent to the contrary, closed – negotiation fee or attorney’s fees as part of the shop provisions in a collective bargaining agreement settlement in collective bargaining or any labor apply only to persons to be hired or to employees dispute. To do so is not only unlawful. It is who are not yet members of any labor organization ethically reprehensible. and that said provisions of the agreement are not Correspondingly, Art. 249 prohibits union officers applicable to those already in the service at the time or agents from asking for or accepting such of the execution. To hold that the employees in a payments. Such act, furthermore, is a ground for company who are members of a minority union may cancellation of union registration under Art. 239 be compelled to disaffiliate from their union and join (g). the majority or contracting union, would render nugatory the right of all employees to self – Ninth ULP: Violation of the CBA organization and to form, join or assist labor Implementation of the CBA is still part of the organizations of their own choosing, a right bargaining process. The duty to bargain requires guaranteed by the Industrial Peace Act as well as by good faith, and good faith implies faithful the Constitution. (Kapisanan ng mga Manggagawa observance of what has been agreed upon. It ng Alak (NAFLU) v. Hamilton Distellery Co., et. al., logically follows that noncompliance with the GR No. L-18112, 30 October 1962) agreement is non – observance of good faith in bargaining; therefore, the noncompliance

amounts to a ULP. Agency fee instead of union membership Under the agency – shop clause of a CBA, an Violation of the CBA must be gross.

employee is not required to join the union as a Q uic kT im e™ and a

condition of continued employment, but must pay the Relief In ULP Cases TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.1. Cease and Desist Order union a service fee (usually equivalent to union dues

and initiation fees). Since a union is required by To support a cease and desist order, the statute to act as the bargaining representative of all record must show that the restrained employees, both union and non – union, within their misconduct was an issue in the case; that

there was a finding of fact of said misconduct bargaining unit, the justification for the clause is that the nonmember should contribute towards the cost of and such finding was supported by evidence.

The Court is not authorized to issue blank collective bargaining process without supporting it financially. cease and desist orders, but must confine its

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injunc tion orders to specific act or acts which membership or continuation of membership is are related to past misconduct. made available to other members. 3. To refuse to bargain collectively with the

2. Affirmative Order employer, if it is the representative of the In addition to a cease and desist order, the employee.

court may issue an affirmative order to 4. To attempt to or cause the employer to pay reinstate the said employee with back pay money or other things of value, in the nature of from the date of the discrimination. an exaction, for services which are not performed

If other laborers have been hired, the or not to be performed. This includes fee for affirmative order shall direct the respondent union negotiations. to dismiss these hired laborers to make room 5. To ask or accept negotiations or attorney’s fees for the returning employee. from employers as part of the settlement in any

dispute. 3. Court may order the Employer to Bargain, CBA 6. Violation of CBA.

may be imposed 4. Strike by union members Restraint or Coercion by Labor Organization; Interference by Union is not ULP [Art. 249 (a)] ULP is not subject to compromise A labor organization commits ULP when it restrains or coerces employees in their right to

self – organization. CLLC E.G. Gochangco Workers Union, et. al. v. A labor organization may interfere in the NLRC, GR No. 67158, 30 May 1988

employees’ right to self – organization as long as ULP cases are not, in view of the public interest the interference does not amount to restraint or involved, subject to compromises. The relation coercion. between capital and labor are not merely contractual. They are so impressed with public interest that labor

Union cannot coerce employees to join a strike contracts must yield to the common good. Similarly, violation is committed when a union

threatens the employees with bodily harm in ULP in a given period should be included in a order to force them to strike. single charge

A union violates the law when, to restrain or coerce nonstrikers from working during the strike, Dionela, et. al. v. CIR et. al., GR No. L-18334, 31 it: August 1963 o assaults or threatens to assault them When a labor union accuses an employer of acts o threatens them with the loss of their jobs of unfair labor practice allegedly committed during a o blocks their ingress to and egress from the given period of time, the charges should include all

plant acts of unfair labor practice committed against any o damages nonstrikers’ automobiles or forces and all members of the union during that period. The

them off the highway union should not, upon the dismissal of the charges o physically preventing them from working first preferred, be allowed to split its cause of action o sabotages the employer’s property in their and harass the employer with subsequent charges,

presence, thereby creating an atmosphere of based upon acts committed during the same period fear or violence of time.

o demonstrates loudly in front of a nonstrikers’ residence with signs and shouts accusing the Art. 249. Unfair labor practices of labor nonstriker of “scabbing” organizations. o holding the nonstriker up to ridicule

o seeking public condemnation of the Unfair Labor Practices of Labor Organization Q uic kT im e™ and a

nonstriker TI FF ( U nco mpr es s ed) dec om pr ess or

1. To restrain or coerce employees in the exercise ar e needed to s ee t his pi ct ur e.

of their right to self organization. Union-Induced Discrimination 2. To attempt to or cause an employer to discriminate against an employee to whom Arbitrary use of union security clause membership in the labor organization was denied The broad rule is that the union has the right to or to terminate an employee on any ground other determine its membership and to prescribe the than he usual terms and conditions under which conditions for the acquisition and retention

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thereof. Consequently, admission to membership Featherbedding – employee practices which create may not be compelled. or spread employment by unnecessarily maintaining

or increasing the number of employees used, or the This rule, however, is qualified in the case of amount of time consumed, to work on a particular job

labor unions holding a monopoly in the supply of It may take the form of minimum – crew labor, either in a given locality, or as regards a regulations on the railroad, make – work rules particular employer by reason of a closed – shop such as the setting of and prompt destruction of or similar agreements. In such case, qualified unneeded bogus type in the newspaper industry, applicants may not be barred by unreasonable stand – by pay for musicians when a radio station rules. broadcasts music from phonograph records or

production ceilings for work on the assembly lines or at the construction site Salunga v. Court of Industrial Relations, 21 SCRA

216 (1967) Employee resigned from the union. The union

III. RIGHT TO COLLECTIVE BARGAINING requested the company to enforce the closed shop provision of the CBA. Company deferred action and

A. DUTY TO BARGAIN COLLECTIVELY informed the employee of the possible effects of his resignation from the union. Employee tried to revoke Art. 250. Procedure in collective bargaining. his resignation from the union but this denied by the Art. 251. Duty to bargain collectively in the union. Company finally granted the request of the absence of collective bargaining agreements. union and terminated the employee. Employee Art. 252. Meaning of duty to bargain collectively. complained of illegal dismissal. Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement. Held: Art. 253-A. Terms of a collective bargaining Labor unions are not entitled to arbitrarily exclude agreement. qualified applicants for membership and a closed – Art. 254. Injunction prohibited. shop provision will not justify the employer in Art. 231. Registry of unions and file of collective discharging, or a union in insisting upon the bargaining agreements. discharge of, an employee whom the union thus refuses to admit to membership, without any Collective Bargaining Agreement – a contract reasonable ground thereof. executed upon request of either the employer or the Having been dismissed from service owing to exclusive bargaining representative of the employees unfair labor practice on the part on the part of the incorporating the agreement reached after union, petitioner is entitled to reinstatement as negotiations with respect to wages, hours of work member of the union and to his former or and all other terms and conditions of employment, substantially equivalent position in the company, including proposals for adjusting any grievance or without prejudice to his seniority and/or rights and questions under the agreement privileges, and with back pay. Parties to Collective Bargaining Manila Mandarin Employees Union v. NLRC, 154 1. Employer SCRA 369 (1987) 2. Employees, represented by the exclusive Union security clauses are also governed by law

bargaining agent and by principles of justice, fair play, and legality. Union security clauses cannot be used by union Jurisdictional Requirements officials against an employer, much less their own 1. Status of majority representation of the members, except with a high sense of responsibility,

employees’ representative. fairness, prudence and judiciousness. Q uic kT im e™ and a

2. Proof of majority representation TI FF ( U nco mpr es s ed) dec om pr ess or


3. Demand to bargain under art. 250 (a) (Kiok Loy Refusal To Bargain [Art. 249(c)] v. NLRC, 141 SCRA 179) A union violates its duty to bargain collectively by

entering negotiations with a fixed purpose of not The duty of the employer to bargain collectively reaching an agreement or signing a contract.

arises only after the union requests the employer to bargain. If there is no demand, the employer Featherbedding And Make – Work Arrangements cannot be in default. [Art. 249 (d)]

When there is a legitimate representation issue,

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there is no duty to bargain collectively on the part Kiok Loy v. NLRC, 141 SCRA 179 (1986) of the employer [Lakas ng Manggagawang The union gave the employer copies of its Makabayan v. Marcelo Enterprises, 118 SCRA proposed CBA and requested the company to make 425 (1982)] counter-proposals. The company did not reply. The

union again wrote the company but this was also Commencement of Bargaining ignored. During Certification Year – within 12 months after

the determination and certification of the Held: employees’ exclusive bargaining representative. It is unfair labor practice for an employer to

refuse to meet and convene promptly and Bargaining Procedure expeditiously in good faith for the purpose of The parties may agree on the bargaining negotiating an agreement for wages, hours of work

procedure. If there is a procedure agreed upon, and other terms of employment. the Labor Code Procedure applies suppletorily. A company’s refusal to make counter-proposal if

considered in relation to the entire bargaining Bargaining Procedure under the Labor Code process, may indicate bad faith and this is especially (Art. 250) (ANNEX G) true where the Union’s request for a counter proposal is left unanswered. Duty to Bargain Collectively When There Is No We agree with the pronouncement that it is not Collective Bargaining Agreement obligatory upon either side of a labor controversy to 1. the performance of a mutual (employer and the precipitately accept or agree to the proposals of the

exclusive bargaining agent) obligation to meet other. But an erring party should not be tolerated and and convene, allowed with impunity to resort to schemes feigning

2. promptly and expeditiously in good faith negotiations by going through empty gestures. 3. for the purpose of negotiating an agreement with

respect to wages, hours of work and all other Evading the Mandatory Subjects terms and conditions of employment, including proposals for adjusting any grievances or Mandatory Subjects questions arising under such agreement, and 1. Wages

4. Executing a contract incorporating such 2. Hours of Work agreements. 3. Other Terms and Conditions of Employment

The duty does not compel any party to agree to a Where the subject of the dispute is a mandatory

proposal or to make any concession. bargaining subject, either party may bargain to an The CBA remains in full force and effect during impasse as long as he bargains in good faith.

the 60 day period and until a new agreement is Where the subject is nonmandatory, a party may reached. not insist on bargaining to the point of impasse.

His insistence may be construed as evasion of Duty to Bargain Collectively when there is a the duty to bargain. Collective Bargaining Agreement When there is a CBA, the duty to bargain also Bargaining in Bad Faith

means that neither party shall terminate nor There is no per test of good faith in bargaining. modify such agreement during its lifetime. The good faith or bad faith is an inference to be

But 60 days before the CBA expires, either party drawn from the facts and is largely a matter for may notify the other in writing that it wants to the NLRB’s expertise. terminate or modify the agreement. The charge of bad faith should be raised while

the bargaining is in progress. Q uic kT im e™ and a

4 Forms of 7th ULP - Violation of the Duty to TI FF ( U nco mpr es s ed) dec om pr ess or


Bargain Collectively Samahang Manggagawa sa Top Form 1. Failure or refusal to meet and convene Manufacturing-United Workers of the Philippines 2. Evading the mandatory subjects of bargaining v. NLRC, GR No. 13856, 07 September 1998 3. Bad faith in bargaining With the execution of the CBA, bad faith can no 4. Gross violation of the CBA longer be imputed upon any of the parties thereto. All provisions in the CBA are supposed to have been Failure or Refusal to Meet and Convene jointly and voluntarily incorporated therein by the parties. This is not a case where private respondent

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exhibited an indifferent attitude towards collective 2 conspicuous places in the establishment bargaining because the negotiations were not the concerned for at least 5 days before its unilateral activity of petitioner union. The CBA is good ratification. enough that private respondent exerted “reasonable 3. Statement that the CBA was ratified by the effort of good faith bargaining.” majority of the employees in the bargaining unit. Lakas ng Manggagawang Makabayan v. Marcelo The following documents must be certified under Enterprises, GR Nos. L-38258, 38260, 19 oath by the representative of the employer and November 1982 the labor union.

It is also evident from the records that the charge No other document shall be required in the of bargaining in bad faith imputed to the respondent registration of the CBA. companies, is hardly c redible. In fact, such charge is valid as only against the complainant LAKAS. The Procedure parties had a total of 5 conferences for purposes of 1. The Regional Office or the Bureau shall act on collective bargaining. It is worth considering that the the applications within 5 days form receipt of the first strike of Sept. 4 1967 was staged less than a application. week after the 4t h CBA conference and without any 2. The Regional Office or Bureau may within 5 days benefit of any previous strike notice. In this from receipt of the application, connection, it must be stated that the notice of strike a. approve the application and issue the filed on June 13, 1967 could not have been the strike certificate of registration or notice for the first strike because it was already b. deny the application for failure to comply with withdrawn on July 14, 1967. Thus, from these stated the requirements. facts can be seen that the first strike was held while c. If the supporting documents are not the parties were in the process of negotiating. complete, or are not verified under oath, the

The company’s refusal to accede to the demands Regional Office or the Bureau shall notify the of LAKAS appears to be justified since there is no applicants in writing of the requirements showing that these companies were in the same needed to complete the registration. state of financial and economic affairs. o If the applicant fails to complete the

There is reason to believe that the first strike was requirements within 10 days from staged only for the purpose of compelling the receipt of notice, application is denied respondent companies to accede to the inflexible without prejudice. demands of the complainant LAKAS. o The denial shall be in writing, stating in

clear terms the reason therefore and served upon the applicant union and Registration of Collective Bargaining Agreements employer within 24 hours from issuance.

3. The denial by the Regional Office of the Where to file registration of single enterprise collective With the Regional Office which issued the bargaining agreements may be appealed to the certificate of registration/certificate of creation of Bureau while the denial by the Bureau of the chartered local. registration of multi-employer collective If the certificate of creation of the chartered local bargaining agreements may be appealed to the was issued by the bureau, the agreement shall Office of the Secretary, both within 10 days from be filed with the Regional Office which has receipt of the notice of denial. jurisdiction over the place where it principally

4. The memorandum of appeal is filed with the operates Regional Office or the Bureau, as the case may Multi-employer collective bargaining agreements be. shall be filed with the Bureau.

5. The memorandum of appeal and the entire Q uic kT im e™ and a

records of the application shall be transmitted to TI FF ( U nco mpr es s ed) dec om pr ess or

When to file ar e needed to s ee t his pi ct ur e.

the Bureau or the Office of the Secretary within within 30 days from execution of the CBA. 24 hours from receipt of the memorandum of appeal. Requirements for registration

6. Bureau or the Office of the Secretary shall The application for CBA registration shall be resolve within the same period and in the same accompanied by the original and 2 duplicate copies manner as that prescribed for inter/intra-union of the following documents. disputes. 1. CBA

2. A statement that the CBA was posted in at least

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Duration of CBA 1. Representation Aspect: 5 years B. New and First-Ever CBA (No previous CBA) –

• Refers to the identity and majority status of effective on date agreed upon by the parties the union that negotiated the CBA as the

exclusive bargaining representative. II. Arbitral Awards

2. All other provisions should be renegotiated not A. With Previous CBA 1. Arbitral award final within 6 months from old later than 3 years from effectivity.

• Refers to the rest of CBA, economic as well CBA: retroact to the date following the expiry of the old CBA. as non-economic other than representational.

2. Arbitral award final after 6 months following the expiration of the old CBA: Hold Over Principle General Rule: the agreement between The CBA shall be in full force and effect until the

the parties. parties reach a new agreement. If there is no agreement, retroact to the

1st day following the 6-month period New Pacific Timber & Supply Company Inc. v. NLRC, 328 SCRA 404 (2000)

B. New and First-Ever CBA (No previous CBA) - It is clear from the above provision of law (Art. Labor Secretary’s discretion will be followed. 253) that until a new CBA has been executed by and

between the parties, they are duty-bound to keep the B. BARGAINING AGENT & status quo and to continue in full force and effect the

CERTIFICATION ELECTION PROCEEDINGS terms and conditions of the existing agreement. The law does not provide for any exception nor Art. 255. Exclusive bargaining representation and qualification as to which of the economic provisions workers’ participation in policy and decision-of the existing agreement are to retain force and making. effect, therefore, it must be understood as Art. 256. Representation issue in organized encompassing all the terms and conditions in the said establishments. agreement. Art. 257. Petitions in unorganized establishments. It is the duty of both parties to continue in full Art. 258. When an employer may file petition. force and effect the terms and conditions of the Art. 259. Appeal from certification election orders. existing agreement during the 60-day period and/or until a new agreement is reached by the parties. Bargaining Unit – a group of employees sharing To rule otherwise would be to create a gap during mutual interests within a given employer unit, which no agement would govern, from the time the comprised of all or less than all of the entire body of old contract expired to the time a new agreement employees in the employer unit or any specific shall have been entered into. occupational or geographical grouping within such employer unit Rules on Effectivity and Retroactivity of New CBA (Apply Only to Provisions Other than Certification Election/Consent Election – The Representational) process of determining through secret ballot the sole and exclusive representative of the employees in an I. CBA as a Result of Negotiations appropriate unit for purposes of collective bargaining or negotiation. A certification election is ordered by A. With Previous CBA the Department, while a consent election is 1. Effectivity of new CBA entered into within 6 voluntarily agreed upon by the parties, with or without months after the expiration of the old CBA: the intervention by the Department. retroact to the date following the expiry date. Q uic kT im e™


dec om pr ess or2. Effectivity of new CBA entered into after 6 ar e needed to s ee t

his pi ct ur e.Organized Establishment – an enterprise where months following the expiration of the old there exists a recognized or certified sole and CBA: exclusive bargaining agent GR: effective on the date agreed upon by the parties. Run-off Election – an election between the labor If there is no agreement, the arbitral unions receiving the 2 highest number of votes in a award will retroact to the day after the certification or consent election with 3 or more end of the 6-month period after the expiry choices, where such a certified or consent results in of the old CBA.

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none of the 3 or more choices receiving the majority of the valid votes cast; provided that the total number Procedure: Voluntary Recognition of votes for all contending unions is at least 50% of 1. If notice of voluntary recognition is sufficient in the number if votes cast form, number and substance, and there is no other registered labor union operating within the Voluntary Recognition – process by which a bargaining unit, the Regional Office shall record legitimate labor union is recognized by the employer the fact of voluntary recognition within 10 days as the exclusive bargaining representative or agent in from receipt of notice. a bargaining unit, reported with the Regional Office in 2. Where notice of voluntary recognition is accordance with Rule VII, section 2 of these Rules. insufficient, the Regional Office shall notify the labor union of its findings and advise it to comply 3 Methods to Determine the Bargaining Union with the necessary requirements. 1. Voluntary Recognition If the employer or union failed to complete 2. Certification Election the requirements for voluntary recognition 3. Consent Election within 30 days from receipt of advisory, the Regional Office shall return. Voluntary Recognition Effects of recording of fact of Voluntary When to file Recognition In unorganized establishments with only one 1. The recognized labor union shall enjoy the rights,

legitimate labor organization, the employer may privileges and obligations of an existing voluntarily recognize the representation status of bargaining agent of all the employees in the the union. bargaining unit.

Within 30 days from such recognition, the 2. A petition for certification election cannot be filed employer and union shall submit a notice of for 1 year from the date of entry of the voluntary voluntary recognition. recognition.

Where to file Certification Election Regional Office which issued the recognized

labor union’s certificate of registration or Who may file certificate of creation of a chartered local. 1. any legitimate labor organization

2. employer, when requested to bargain collectively Requirements for Voluntary Recognition

The notice of voluntary recognition shall be Where to file accompanied by the original copy and 2 duplicate Regional Office which issued the certificate of copies of the following documents: registration/certificate of creation. 1. A joint statement under oath of voluntary

recognition attesting to the fact of voluntary When to file recognition. Anytime, except:

2. Certificate of posting of the joint statement of 1. When voluntary recognition has been voluntary recognition for 15 consecutive days in entered, or a valid certification, consent or at least 2 conspicuous places in the run-off election has been conducted within 1 establishment or bargaining unit where the union year prior to the filing. seeks to operate. 2. negotiations in good faith with the employer

3. Approximate number of employees in the 3. bargaining deadlock had been submitted to bargaining unit, accompanied by the names of conciliation or arbitration or had become the those who support the voluntary recognition subject of a valid notice of strike or lockout.


comprising at least a majority of the members of 4. Registered CBA – may file only within 60 TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.days prior to the expiration of the CBA. the bargaining unit.

4. A statement that the labor union is the only legitimate labor organization operating within the Grounds for Denying Petition bargaining unit. 1. the petitioner is not listed in the Department’s

registry of legitimate labor unions or that its legal These documents shall be certified under oath by personality has been revoked or cancelled with

finality in accordance with Rule XIV of these the employer’s representative and president of he recognized labor union. Rules;

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2. the petition was filed before or after the freedom In organized establishments, no order or decision period of a duly registered collective bargaining shall be issued during the freedom period. agreement; provided that the sixty-day period The order granting the petition shall state the based on the original collective bargaining following: agreement shall not be affected by any a. Name of the employer or establishment amendment, extension or renewal of the b. Description of the bargaining unit collective bargaining agreement; (Contract Bar) c. Statement that none of the grounds for

3. the petition was filed within 1 year from entry of dismissal exists voluntary recognition or a valid certification, d. Names of contending labor unions consent or run-off election and no appeal on the e. Directive upon the employer and the results of the certification, consent or run-off contending union(s) to submit within 10 days election is pending; (12-month Bar/Certification from receipt of the order, the certified list of year bar) employees in the bargaining unit.

4. a duly certified union has commenced and sustained negotiations with the employer in Prohibited Grounds for Denial of Petition (must accordance with Article 250 of the Labor Code be heard and resolved by the Regional Director in within the one-year period referred to in Section an independent petition for cancellation of 14.c of this Rule, or there exists a bargaining registration: deadlock which had been submitted to 1. validity of petitioning union’s certificate of conciliation or arbitration or had become the registration subject of a valid notice of strike or lockout to 2. legal personality as a labor organization which an incumbent or certified bargaining agent 3. validity of registration is a party; (Negotiation Bar) 4. execution of CBAs

5. in case of an organized establishment, failure to submit the 25% support requirement for the filing Appeal of the petition for certification election. a. order granting conduct of certification election in

unorganized establishments – NOT appealable Procedure: Petition for Certification Election b. all others – appealed to the DOLE Sec. within 10 (ANNEX H) days from receipt thereof. Procedure: Conduct of Certification Election Pre-election Conference (ANNEX I) Within twenty-four (24) hours from receipt of the

assignment for the conduct of a certification Preliminary Conference election, the Election Officer shall cause the

issuance of notice of pre-election conference The Med-Arbiter shall conduct a preliminary conference and hearing within 10 days from the upon the contending unions and the employer.

Must be scheduled within 10 days from receipt of receipt of the petition to determine the following: a. the bargaining unit to be represented; the assignment.

Must be completed within 30 days from the last b. contending labor unions; c. possibility of consent elections; hearing.

d. existence of any of the bars to certification election; and Purpose of Pre-election Conference

The pre-election conference shall set the e. such other matters as may be relevant for the final disposition of the case mechanics for the election and determine the

following: In case the contending unions agree to a consent 1. date, time and place of the election,

election, the Med-Arbiter shall not issue a formal not be later than forty-five (45) days from the Q uic kT im e™ and a

order calling for the conduct of certification date of the first pre-election conference TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e. on a regular working day election, but shall enter the fact of the agreement

in the minutes of the hearing. within the employer’s premises, unless circumstances require otherwise Order/Decision on the Petition – within 10 days 2. list of eligible and challenged voters from the date of the last hearing, the Med-Arbiter 3. number and location of polling places or booths shall issue a formal order granting or denying the and the number of ballots to be prepared with petition. appropriate translations, if necessary

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4. name of watchers or representatives and their 2. in 2 most conspicuous places in the company alternates for each of the parties during election premises

5. mechanics and guidelines of the election Contents of the Notice Consent Election 1. the date and time of the election In case the contending unions agree to a consent 2. names of all contending unions

election, the Med-Arbiter shall not issue a formal 3. the description of the bargaining unit and the list order calling for the conduct of certification of eligible and challenged voters election, but shall enter the fact of the agreement in the minutes of the hearing. The posting of the notice of election, the

The minutes of the hearing shall be signed by the information required to be included therein and parties and attested to by the Med-Arbiter. the duration of posting cannot be waived by the

The Med-Arbiter shall, immediately thereafter, contending unions or the employer. forward the records of the petition to the Regional Director or his/her authorized representative for Challenging of Votes the determination of the Election Officer by the An authorized representative of any of the contending unions through raffle. contending unions and employer

The first pre-election conference shall be Before it is deposited in the ballot box scheduled within ten (10) days from the date of Grounds: entry of agreement to conduct consent election. a. that there is no employer-employee (See Annex H) relationship between the voter and the

company; Effect of failure to appear during the pre-election b. that the voter is not a member of the conference appropriate bargaining unit which considered as a waiver to be present and to petitioner seeks to represent.

question or object to any of the agreements reached in said pre-election conference Procedure in Challenging of Votes

However, the non-appearing party or the 1. The Election Officer shall place the ballot in an employer still has the right to be furnished notices envelope. of subsequent pre-election conferences and to sealed in the presence of the voter and the attend the same representatives of the contending unions and

employer. indicate on the envelope the voter’s name, Qualification of Voters

All employees who are members of the the union or employer challenging the voter, and the ground for the challenge. appropriate bargaining unit at the time of the

issuance of the order granting the conduct of a envelope shall be signed by the Election Officer and the representatives of the certification election shall be eligible to vote.

An employee who has been dismissed from work contending unions and employer. but has contested the legality of the dismissal in 2. The Election Officer shall note all challenges in a forum of appropriate jurisdiction at the time of the minutes of the election and shall be

responsible for consolidating all envelopes the issuance of the order for the conduct of a certification election shall be considered a containing the challenged votes.

3. The envelopes shall be opened and the qualified voter o unless his/her dismissal was declared valid question of eligibility shall be passed upon only

in a final judgment at the time of the conduct if the number of segregated voters will materially of the certification election. alter the results of the election.


Inclusion-Exclusion of Voters Protest TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e. Any party-in-interest may file a protest based on In case of disagreement over the voters’ list or

over the eligibility of voters, all contested voters shall the conduct or mechanics of the election. be allowed to vote. But their votes shall be Protests shall be recorded in the minutes of the segregated and sealed in individual envelopes. election proceedings. Protests not so raised are deemed waived. Posting of Notices of Election The protesting party must formalize its protest 1. at least 10 days before the actual date of the with the Med-Arbiter, with specific grounds,

election

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arguments and evidence, within five (5) days Action on the motion for the immediate holding of after the close of the election proceedings. another certification or consent election

If not recorded in the minutes and formalized Within 24 hours from receipt of the motion, the within the prescribed period, the protest shall be Election Officer shall immediately schedule the deemed dropped. conduct of another certification or consent election

within 15 days from receipt of the motion and cause Canvassing of Votes the posting of the notice of certification election at Counted and tabulated by the Election Officer in least 10 days prior to the scheduled date of election

the presence of the representatives of the in 2 most conspicuous places in the establishment. contending unions. The same guidelines and list of voters shall be used

Each representative entitled to a copy of the in the election. minutes of the election proceedings and results of the election. Proclamation and Certification of the Result of

The ballots and the tally sheets shall be the Election i. sealed in an envelope Within twenty-four (24) hours from final canvass ii. signed by the Election Officer and the of votes.

representatives of the contending unions There being a valid election. iii. transmitted to the Med-Arbiter, together the Election Officer shall transmit the records of

with the minutes and results of the the case to the Med-Arbiter election, within 24 hours from the Med-arbiter shall issue an order proclaiming the completion of the canvass results of the election and certifying the union

Where the election is conducted in more than which obtained a majority of the valid votes cast one region, consolidation of results shall be made as the sole and exclusive bargaining agent in the within 15 days from the conduct thereof. subject bargaining unit, under any of the following

conditions: Conduct of Election and Canvass of Votes The election precincts shall open and close on a. no protest was filed or, even if one was filed,

the date and time agreed upon during the pre- the same was not perfected within the five-election conference. day period for perfection of the protest;

The opening and canvass shall proceed b. no challenge or eligibility issue was raised or, immediately after the precincts have closed. even if one was raised, the resolution of the

Failure of any party or the employer or same will not materially change the results of his/her/their representative to appear during the the elections. election proceedings shall be considered a

The winning union shall have the rights, waiver to be present and to question the conduct thereof. privileges and obligations of a duly certified

collective bargaining agent from the time the Certification of Exclusive Bargaining Agent certification is issued. The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive Run-off Election

When an election which provides for 3 or more bargaining agent of all the employees in the appropriate bargaining unit within 5 days from the choices results in none of the choices (unions or “no

union” choice) receiving a majority of the valid votes day of the election, provided no protest is recorded in the minutes of the election. cast, the Election Officer shall motu propio conduct a run-off election within 10 days from the close of the Failure of Election election proceedings between the labor unions

receiving the two highest number of votes. Provided, Where the number of votes cast in a certification Q uic kT im e™ and a

or consent election is less than the majority of the that the total number of votes for all contending TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.unions is at least 50% of the number of votes cast. number of eligible voters and there are no

material challenged votes. A failure of election shall not bar the filing of a And there are no objections or challenges which

motion for the immediate holding of another if sustained can materially alter the results, certification or consent election within 6 months “No Union” shall not be a choice in the run-off from date of declaration of failure of election. election.

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Notice of run-off elections shall be posted by the The 12 month prohibition presupposes that there Election Officer at least five (5) days before the was an actual conduct of election, i.e. ballots were actual date of run-off election. cats and there was a counting of votes. In a case

where there was no certification election conducted C. BARS TO CERTIFICATION ELECTION precisely because the first petition was dismissed on

the ground that it did not include all the employees Art. 232. Prohibition on certification election who should be properly included in the collective bargaining unit, the certification year bar does not Grounds for denying petition for certification apply. election

1. Deadlock Bar Capitol Medical Center Alliance, etc. v. 2. Contract Bar Laguesma, GR No. 118915, 04 February 1997 3. 12-month bar/certification year bar But in one case the winning union failed to 4. Negotiation Bar conclude a CBA with the employer within one year,

hence another union filed a petition for certification Contract Bar election. Although filed outside the 12-month bar, the

petition was nonetheless dismissed, and the court While a valid and registered CBA is subsisting, the BLR is not allowed to hold an election contesting upheld the dismissal and explained that ordinarily, a the majority status of the incumbent union. bargaining agent who failed to secure a CBA within 12 months could be suspected as a tool of

management and should deserve to be replaced. But When contract bar rule not applied 1. CBA is not registered if circumstances show that the reason for not having

concluded a CBA was not the union’s fault, such 2. CBA deregistered 3. CBA is incomplete in itself union should not be blamed, and a certification 4. CBA does not foster industrial peace election should not be authorized even though no 5. CBA was concluded in violation of an order CBA has been concluded despite passage of 12

months. The situation takes the nature of a “deadlock enjoining the parties from entering into a CBA until the issue of representation is resolved bar.”

6. Petition is filed during the 60-day freedom period Certification year rule will not apply if in fact there Deadlock Bar was a failure of election because less than

A petition for certification election cannot be majority of the CBU members voted. Another entertained if, before the filing of the petition for petition for certification election may be filed certification election, a bargaining deadlock to which within 6 months. an incumbent or certified bargaining agent is a party, Certification year rule will apply even if the “No had been submitted to conciliation or arbitration or union” choice won. (Samahang Manggagawa sa had become the subject of a valid notice of strike or Permex v. Secretary of Labor, GR No. 107792, lockout. 02 March 1998) Negotiation Bar D. ADMINISTRATION IF AGREEMENT;

A petition for certification election cannot be filed GRIEVANCE AND VOLUNTARY ARBITRATION if the duly certified union has commenced and sustained negotiations in good faith with the Art. 260. Grievance machinery and voluntary employer in accordance with Art. 250 of the Labor arbitration. Code within 1 year prior to the filing of the petition for Art. 261. Jurisdiction of Voluntary Arbitrators or certification election. panel of Voluntary Arbitrators Art. 262. Jurisdiction over other labor disputes


Certification Year Rule Bar TI FF ( U nco mpr es s ed) dec om pr ess or

Art. 277. Miscellaneous provisions. ar e needed to s ee t his pi ct ur e.

No petition for certification election may be filed (f) A special Voluntary Arbitration Fund is hereby within one year from the date of a valid certification, established in the Board to subsidize the cost of consent, or run-off election or from the date of voluntary arbitration in cases involving the voluntary recognition. interpretation and implementation of the Collective Bargaining Agreement, including the Arbitrator’s fees, R. Transport Corp v. Laguesma, GR No. 106830, and for such other related purposes to promote and 16 November 1993 develop voluntary arbitration. The Board shall

administer the Special Voluntary Arbitration Fund in

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accordance with the guidelines it may adopt upon the 1. Grievances arising from the implementation or recommendation of the Council, which guidelines interpretation of CBAs. shall be subject to the approval of the Secretary of 2. Arising from interpretation or enforcement of Labor and Employment. Continuing funds needed for company personnel policies this purpose in the initial yearly amount of fifteen 3. Wage distortion issues arising from the million pesos (P15,000,000.00) shall be provided in application of any wage orders in organized the 1989 annual general appropriations acts. establishments

The amount of subsidy in appropriate cases shall 4. Arising from interpretation and implementation of be determined by the Board in accordance with the productivity incentive programs under RA established guidelines issued by it upon the 6971 recommendation of the Council.

The Fund shall also be utilized for the operation Any other labor disputes upon agreement by the of the Council, the training and education of parties. Voluntary Arbitrators, and the Voluntary Arbitration The parties may choose to submit the dispute to Program. voluntary arbitration proceedings before or at

stage of the compulsory arbitration proceedings. (g) The Ministry shall help promote and gradually develop, with the agreement of labor organizations Powers of the Voluntary Arbitrators and employers, labor-management cooperation 1. hold hearings programs at appropriate levels of the enterprise 2. receive evidence based on the shared responsibility and mutual 3. take whatever action is necessary to resolve the respect in order to ensure industrial peace and dispute. improvement in productivity, working conditions and the quality of working life. The voluntary arbitrator may conciliate or mediate to aid the parties in reaching a voluntary (h) In establishments where no legitimate labor settlement. organization exists, labor-management committees may be formed voluntarily by workers and employers Procedure: Voluntary Arbitration for the purpose of promoting industrial peace. The All parties to the dispute shall be entitled to Department of Labor and Employment shall endeavor attend the arbitration proceedings. The to enlighten and educate the workers and employers attendance of any third party or the exclusion of on their rights and responsibilities through labor any witness from the proceedings shall be education with emphasis on the policy thrusts of this determined by the voluntary arbitrator or panel of Code. voluntary arbitrators. Hearing may be adjourned for cause or upon Establishment of Grievance Machinery agreement by the parties. 1. Agreement by the parties It shall be mandatory for the voluntary arbitrator 2. Grievance committee shall be created within 10 to render an award or decision within 20 calendar

days from the signing of the CBA. days from the date of submission for resolution unless the parties agree otherwise. Grievance committee shall be composed of at o Failure on the part of the voluntary arbitrator

least 2 representatives each from the members to render a decision, resolution, order or award within the prescribed period, shall of the bargaining unit and the employer, unless

otherwise agreed upon by the parties. upon complaint of a party, be sufficient ground for the Board to discipline said o Representatives of the employers designated

by the union. voluntary arbitrator, pursuant to the guidelines issued by the Secretary.


Disputes under Grievance Machinery o In cases that the recommended sanction is TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.de-listing, it shall be unlawful for the 1. interpretation or implementation of the CBA

2. interpretation or enforcement of company voluntary arbitrator to refuse or fail to turn personnel policies over to the board, for its further disposition,

the records of the case within 10 calendar days from demand thereof. Procedure in handling grievances

(ANNEX J) Decision final and executory after 10 calendar days from receipt of the copy by the parties. No

Jurisdiction of Voluntary Arbitrators MR allowed.

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The voluntary arbitrator or labor arbitrator (if there Concerted Action – an activity undertaken by two or voluntary arbitrator is absence or incapacitated) more employees, by one on behalf of others may issue a writ of execution upon motion of any interested party. Strike – any temporary stoppage of work by the

Voluntary arbitrator shall turn over the records of concerted action of the employees as a result of an the case to the regional branch of the Board industrial or labor dispute within 10 days upon satisfaction of the final award. Lockout – temporary refusal of any employer to

furnish work as a result of an industrial or labor E. LABOR MANAGEMENT dispute COOPERATION SCHEMES

Internal union dispute – includes all disputes or Creation of Labor Management and Other grievances arising from any violation of or Councils disagreement over any provision of the constitution

The Department shall promote the formation of and by laws of a union, including any violation of the labor-management councils in organized and rights and conditions of union membership provided unorganized councils. for in this Code Purpose of the Labor-Management Councils Strike-breaker – any person who obstructs,

To enable the workers to participate in policy and impedes, or interferes with by force, violence, decision-making processes in the establishment, coercion, threats, or intimidation any peaceful insofar as said processes will directly affect their picketing affecting wages, hours or conditions of work rights, benefits and welfare. or in the exercise of the right of self-organization or collective bargaining Not covered by the Labor-Management Councils 1. Those covered by CBAs Strike Area – establishment, warehouses, depots, 2. Traditional areas of bargaining plants or offices, including the sites or premises used as runaway shops, of the employer struck against, as Services to be rendered by the Department in line well as the immediate vicinity actually used by with the said policy picketing strikers in moving to and fro before all 1. Conduct awareness campaigns points of entrance to and exit from said establishment 2. Assist the parties in setting up labor-management

structures, functions and procedures Characteristics of a Strike 3. Provide process facilitators upon request of the 1. There must be an employer-employee

parties relationship. 4. Monitor the activities of labor-management 2. Existence of a dispute.

structures as may be necessary and conduct 3. Employment relation is deemed to continue studies on best practices aimed at promoting although in a state of belligerent suspension. harmonious labor-management relations. 4. There is temporary work stoppage.

5. Work stoppage is done through concerted action. Selection of employees’ representatives to the 6. The striking group is a legitimate labor council organization. In case of bargaining deadlock, it 1. Organized establishments: Nominated by the must be the employees’ sole bargaining

exclusive bargaining representatives representative. 2. Where there is no legitimate labor organization:

by the employees at large. Grounds for lockout 1. Collective Bargaining Deadlock


2. Unfair Labor Practice TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e. IV. STRIKES, LOCKOUTS AND

CONCERTED ACTIONS violations of CBA must be gross to be considered as ULP Art. 263. Strikes, picketing and lockouts Art. 264. Prohibited activities Conversion Doctrine Art. 265. Improved offer balloting. A strike may start as economic and, as it progresses, becomes ULP, or vice-versa.

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When strike or lockout cannot be declared parties to submit the dispute to voluntary 1. Violations of CBA which are not gross. arbitration. 2. Grounds involving inter/intra union disputes The regional branch of the Board may, upon 3. When there is no notice of strike or lockout or agreement of the parties, treat a notice as a

without the strike or lockout vote preventive mediation case. 4. After assumption of jurisdiction by the Secretary During the proceedings, the parties shall not do 5. After certification or submission of dispute to any act which may disrupt or impede the early

compulsory or voluntary arbitration or during the settlement of the dispute. They are obliged, as pendency of cases involving the same grounds part of their duty to bargain collectively in good for strike or lockout. faith and to participate fully and promptly in the

conciliation meetings called by the regional Who may declare a strike or lockout branch of the Board. 1. Any legitimate labor organization A notice, upon agreement of the parties, may be 2. Any certified or duly recognized bargaining referred to alternative modes of dispute

representative resolution, including voluntary arbitration. 3. Employer Preventive Mediation If there is certified or duly recognized bargaining The regional branch may treat the notice as

representative, any legitimate labor organization preventive mediation case upon agreement of the may declare a strike but only on grounds of unfair parties. labor practice.

Strike or lockout vote Notice of strike or lockout 1. approved by majority of total union membership 1. In case of bargaining deadlocks: at least 30 days or by majority of the BOD or partners

before the intended date of strike 2. by a secret ballot 2. In case of unfair labor practice: at least 15 days 3. in a meeting called for that purpose

before the intended date of strike 3. In case of ULP involving the dismissal of a union The regional branch may supervise the conduct

officer which may constitute union-busting: union of the secret balloting at its own initiative or upon may take action immediately after the strike vote request of any party. and the submission of the results of the strike Notice of the meeting must be given at least 24 vote to the regional branch of the Board hours before such meeting, and the results of the

voting must be given at least 7 days before the Contents of the notice of strike or lockout intended strike or lockout to the regional branch 1. Names and addresses of employer of the Board. This is subject to the cooling-off 2. Union involved period. 3. Nature of industry to which the employer belongs 4. Number of union members Lapanday Workers’ Union, et. al. v. NLRC, 248 5. Workers in the bargaining unit SCRA 96 (1995) 6. Other relevant data The result of the strike (or lockout voting) should 7. In case of bargaining deadlocks: the unresolved be reported to the NCMB at least 7 days before the

issues, written proposals of the union, counter- intended strike or lockout, subject to the cooling off proposals of the employer and proof of request period. This means that after the strike vote is taken for conference to settle differences and the result reported to NCMB, seven days must

8. In case of unfair labor practice: the acts pass before the union can actually commence the complained of, and the efforts taken to resolve strike. This seven-day reporting period is intended to the dispute give the Dept. of Labor and Employment an


opportunity to verify whether the projected strike TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e. Board shall inform the concerned party in case really carries the imprimatur of the majority of the

notice does not conform with the requirements. union members. Action on notice of strike or lockout Samahan ng Manggagawa in Moldex Products, et. Upon receipt of the notice, the regional branch of al. v. NLRC, et.al. GR No. 119467, 01 February

the Board shall exert all efforts at mediation and 2000 conciliation to enable the parties to settle the A strike tagged without the submission of the dispute amicably. It shall also encourage the result of the strike vote is illegal.

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• When at least a majority of the union When labor may strike or when the employer may members vote to accept the improved offer, lock out its workers the striking workers shall immediately return

If the dispute remain unsettled after the lapse of to work and the employer shall thereupon the requisite number of days from the filing of the re-admit them upon the signing of the notice of strike or lockout and of the results of the agreement. election.

The regional branch of the Board shall continue 2. In case of lockout mediating and conciliating. • The regional branch of the Board shall also conduct a referendum by secret balloting on Prohibited activities during strikes and lockouts the reduced offer of the union. 1. strike or lock-out without first having bargained • on or before the 30th day of the lockout.

collectively strike or lock-out without the • When at least a majority of the board of necessary notice being filed with the DOLE directors or trustees or the partners holding

2. strike or lock-out without the necessary vote first the controlling interest in the case of having been obtained and reported to the DOLE partnership vote to accept the reduced offer,

3. strike or lock-out after DOLE has assumed the workers shall immediately return to work jurisdiction or the President or after certification and the employer shall thereupon readmit or submission of dispute to the compulsory them upon the signing of the agreement. arbitration/voluntary arbitration or during the pendency of cases involving the same grounds Injunction for the strike or lockout GR: No court or entity shall enjoin any picketing,

4. knowingly participating in illegal strike or strike or lockout. knowingly participates in the commission of illegal acts during a strike ground for Exceptions: termination of employment 1. When prohibited or unlawful acts are being or

5. obstruct, impede, or interfere with by force, about to be committed that will cause grave or violence, coercion, threats, or intimidation any irreparable damage to the complaining party. peaceful picketing by employees during any labor 2. National Interest controversy or shall abeit or aid such obstruction or interference Assumption of Jurisdiction by DOLE Secretary

6. employment or use of any strikebreaker/ employed as a strike breaker 1. Discretionary

7. bringing in, introducing, or escorting by any public In his opinion there exists a labor dispute officer or employee, including officers and causing or likely to cause a strike or lockout personnel of the AFP or PNP, or any armed in an INDUSTRY INDISPENSABLE TO THE person in any manner of any individual who NATIONAL INTEREST seeks to replace strikers in entering or leaving may certify the same to the commission for the premises of a strike area or work in place of COMPULSORY ARBITRATION strikers Effect: AUTOMATICALLY ENJOINS the

8. commit any act of violence, coercion or intended on impending strike or lockout but if intimidation while engaged in picketing or one has already taken place, all striking or obstruct the ingress or egress from the locked out employees SHALL employer's premises for lawful purposes or IMMEDIATELY RETURN TO WORK and the obstruct public thoroughfares (must be pervasive employer shall immediately resume and widespread/consistently and deliberately operations and re-admit all workers under the resorted to as a matter of policy) same terms and conditions prevailing before Q uic kT im e™


dec om pr ess orthe strike or lock-out ar e needed to s ee t

his pi ct ur e.Improved Offer Balloting 2. Mandatory: (within 24 hours) 1. In case of strike In labor disputes adversely affecting the

• Regional branch of the Board shall, conduct continued operation of HOSPITALS, a referendum by secret balloting on the CLINICS, OR MEDICAL INSTITUTIONS improved offer of the employer. May assume jurisdiction or certify it to the

• on or before the 30th day of strike. NLRC for compulsory arbitration • at its own initiative or upon the request of any Duty of striking union or locking out employer

affected party. to provide and maintain an effective

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SKELETAL WORKFORCE of medical and A strike may be considered legal when the union other health personnel, where movement and believed that the respondent company committed service shall be unhampered and unfair labor acts and the circumstances warranted unrestricted as are necessary to insure the such belief in good faith although subsequently such proper and adequate protection of the life allegation of unfair labor practices are found out as and health of its patients most especially not true. (People’s Industrial and Commercial emergency cases for the duration of the Employees and Workers Organization (FFW) v. strike or lock-out People’s Industrial and Commercial Corp. GR No.

37687 15 March 1982) Power of the President under Art. 263(g) 1. may determine the industries, which are in his Rule on Wages of Strikers

opinion indispensable to national interest GR: Strikers are not entitled to their wages during the 2. may intervene at any time and assume period of a strike, even if the strike is legal.

jurisdiction over any such labor dispute in order to settler or terminate the same Exceptions:

1. In case of a ULP STRIKE, in the discretion of Decision of the President, DOLE Secretary is the authority deciding the case.

final and executory after receipt thereof by the 2. Where the strikers voluntarily and parties. unconditionally offered to return to work, but the

employer refused to accept the offer [e.g. of an Sarmiento v. Tuico, 162 SCRA 676 (1988) “unconditional offer”: “we will return tomorrow”

The return-to-work order not so much confers a and NOT “willing to return provided] right as it imposes a duty. While as a right it may be o They are entitled to backwages from the date waived, it must be discharged as a duty even against the offer was made. the worker’s will. Returning to work in this situation is 3. Where there is RETURN-TO-WORK ORDER and

the employees are discriminated against. not a matter of option or voluntariness but of o They are entitled to backwages from the date obligation.

If the stoppage of work will be unfruitful not only of discrimination. to bith the employer and the employees, more

particularly if the national economy will suffer Rule on Reinstatement of Striking Workers because if the resultant reduction in our export GR: Striking employees are entitled to reinstatement,

regardless of whether or not the strike was the earnings and our dollar reserves, not to mntion consequence of the employer’s ULP. possible cancellation of the contracts of the company

with foreign exporters, the labor dispute may properly be certified to the National Labor Relations Exceptions: Commission, to avoid such a development, with the The following strikers are NOT entitled to

reinstatement: return-to-work order following as a mater of course under the law. 1. union officers who knowingly participate in an

Where the return to work order is issued pending illegal strike. the determination of the legality of the strike, it is not 2. any striker/union member who knowingly correct to say that it may be enforced only if he strike participates in the commission of illegal acts is legal and may be disregarded if illegal. Precisely, during the strike.

the purpose of the return to work order is to maintain the status quo while the determination is being made. Sarmiento v. Tuico, 162 SCRA 676 (1988) The return-to-work order should benefit only

those workers who comply with it and, regardless of The discretion to assume jurisdiction may be exercised by the Secretary of Labor and the outcome of the compulsory arbitration


proceedings, are entitled to be paid for the work they TI FF ( U nco mpr es s ed) dec om pr ess or

Employment without the necessity of prior notice ar e needed to s ee t his pi ct ur e.

of hearing given to any of the parties disputants have actually performed. Conversely, those workers who refuse to obey said order and instead wage a (Magnolia Poultry Employees Union, et.al. v. strike are not entitled to be paid for work not done or Sanchez GR. Nos. 76227-28, 05 November to reinstatement to the positions they have 1986)

abandoned by their refusal to return thereto as ordered. Consequences of Illegal Strike

Good-Faith Doctrine St. Scholastica’s College v. Torres, GR No.

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100158, 19 June 1992 - A probationary employee is considered regular A return to work order is immediately effective after 6 months, becomes regular.

and executory notwithstanding the filing of a motion May be terminated only for just / authorized for reconsideration. It must be strictly complied with causes even during the pendency of any petition questioning its validity. Test to determine regular employment

The respective liabilities of striking union officers and members who failed to immediately comply with Universal Robina Corporation v. Catapang, GR the return-to-work order is outlined in Art. 264 of the No. 164736. October 14, 2005 Labor Code which provides that any declaration of a The primary standard of determining regular strike or lockout after the Secretary of Labor and employment is the reasonable connection between Employment has assumed jurisdiction over the labor the particular activity performed by the employee to dispute is considered an illegal act. Any worker or the usual trade or business of the employer. The test union office who knowingly participates in a strike is whether the former is usually necessary or defying a return-to-work order may, consequently “be desirable in the usual business or trade of the declared to have lost his employment status.” employer. Also, the performance of a job for at least a year Batangas Laguna Tayabas Bus Company v. is sufficient evidence of the job’s necessity if not NLRC, GR No. 101858, 21 August 1992 indispensability to the business. This is the rule even

But to justify dismissal, the defiance of the return- if its performance is not continuous and merely to-work order must be proved. In one case the Court intermittent. The employment is considered regular, said that the mere fact that the majority of the strikers but only with respect to such activity and while such were able to return to work does not necessarily activity exists. mean that the rest deliberately defied the return to The practice of entering into employment work order or that they had been sufficiently notified contracts which would prevent the workers from thereof. As the Solicitor General correctly adds, some becoming regular should be struck down as contrary of them may have left Metro Manila and did not have to public policy and morals. enough time to return during the period given by the period given by petitioner. Casual Employment Activity performed is not usually necessary or Gold City Integrated Port Services, Inc. v. NLRC, desirable in the usual business or trade of the 245 SCRA 627 (1995) employer, not project and not seasonal

Art. 264 makes a distinction between workers Except: if he has rendered at least 1 year of and union officers who participate in a strike. service, whether such service is continuous or

An ordinary striking worker cannot be terminated broken, he is considered a REGULAR employee for mere participation in an illegal strike. There must with respect to the activity in which he is be proof that he committed illegal acts during a strike. employed and his employment shall continue

A union officer, on the other hand, may be while such activity exists. terminated from work when he knowingly participates Despite the distinction between regular and in an illegal strike, or when he commits an illegal act casual employment, every employee shall be during a strike. entitled to the same rights and privileges, and shall be subject to the same duties as may be granted by law to regular employees during the

V. POST-EMPLOYMENT period of their actual employment.

A. REGULAR, CASUAL, Fixed-Term Employment PROBATIONARY EMPLOYMENT Period is agreed upon knowingly and voluntarily Q uic kT im e™


by the parties without force, duress, or improper ar e needed to s ee t his pi ct ur e.

Art. 280. Regular and casual employment pressure exerted on the employee. Art. 281. Probationary employment Brent case: fixed-term employment repealed by LC. But the Civil Code, a general law, allows fixed-Regular Employment term employment Engaged to perform tasks usually necessary and Employee hired on a fixed-term is regular if job is

desirable to the business of the employer necessary and desirable to business of employer. Regular employment does not mean permanent (Philips Semiconductor v. Fadriquela, GR No.

employment 141717, April 2004)

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After lapse of probationary period (6 months), the Project Employment employee becomes regular. (Voyeur Visage, One whose employment has been fixed for a 2005)

specific project or undertaking the completion of Probationary employee may be dismissed before which has been determined at the time of end of the probationary period. engagement of the employee; the period is not the determining factor, so that even if the period Aberdeen Court, Inc. v. Agustin, GR No. 149371, is more than 1 year, employee does not 13 April 2005 necessarily become regular There is probationary employment where the

employee, upon his engagement, is made to undergo Maraguinot v. NLRC, 284 SCRA 539 (1998) a trial period during which the employer determines

Repeated hiring on a project to project basis is his fitness to qualify for regular employment, based considered necessary and desirable to the business on reasonable standards made known to him at the of the employer. Thus, employee is regular. time of engagement. The services of an employee who has been

engaged on probationary basis may be terminated FilSystems v. Puente, GR No. 153832, 18 March 2005 only for a just cause, when he fails to qualify as a

Repeated hiring does not necessarily mean regular employee in accordance with the reasonable standards prescribed by the employer. regular employment.

In all cases of probationary employment, the employer shall make known to the employee the “Day Certain” Rule – project employment ends on standards under which he will qualify as a regular a certain date does not end on an exact date, but employee at the time of his engagement. Where no on the completion of the project. standards are made known to the employee at that Phil. Global Communication case: usual and time, he shall be deemed a regular employee. desirable does not matter because employer

hires without intent of making them regular. Mariwasa Manufacturing, Inc. v. Leogardo, Jr., 26 Regularization is not a management prerogative. January 1989 It is a mandate of law. (PAL v. Pascua, 15 August Issue: 2003)

May the employer and the employee validly Nature of employment determines regular agree to extend the probationary period beyond six employment. months? Art. 280 does not apply to OFWs. (LC does not apply to migrant workers, RA 8042 does.) Held: Poseidon Fishing case: if engaged in deep-sea

YES. Such an extension may be lawfully agreed fishing, locally-hired employees, 280 applies upon, despite the seeming restrictive language of Article 281. A voluntary agreement extending the Probationary Employment original probationary period to give the employee a GR: Not to exc eed 6 months second chance to pass the probation standards constitutes a lawful exception to the statutory limit. Exceptions:

a. covered by an apprenticeship agreement UST v. NLRC, 15 February 1990 stipulating a longer period Issue: b. voluntary agreement of parties (especially when

For private school teachers, what are the legal nature of work requires a longer period) requirements for acquisition of permanent c. the employer gives the employee a second employment? chance to pass the standards set Q uic kT im e™

and aHeld: TI FF ( U nco mpr es s ed)

dec om pr ess orTermination of Probationary Employment ar e needed to s ee t

his pi ct ur e.(1) The teacher is a full-time teacher; (2) the a. just / authorized causes

teacher must have rendered three consecutive years b. when he fails to qualify as a regular employee in of service; and (3) such service must have been accordance with reasonable standards made satisfactory. known by the employer to employee at the time of his engagement

If allowed to work after the probationary period, Seasonal Employment he shall be considered a REGULAR employee

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Work or services to be performed is seasonal in nature and the employment is for the duration of Serious Misconduct the season Improper or wrong conduct; the transgression of

some established and definite rule of action, a forbidden act, a dereliction of duty, willful in Hacienda Fatima v. National Federation of character, and implies wrongful intent and not mere Sugarcane Workers-Food and General Trade, GR error in judgment. To be serious within the meaning No. 149440, 28 January 2003 and intendment of the law, the misconduct must be of The fact that seasonal workers do not work such grave and aggravated character and not merely continuously for one (1) whole year but only for the trivial or unimportant (Villamor Golf Club v. Pehid, 04 duration of the season does not detract from October 2005) considering them in regular employment since in a

litany of cases, the Court has already settled that Elements of Serious Misconduct seasonal workers who are called to work from time to 1. serious; time and are temporarily laid off during off-season are 2. relate to the performance of the employee’s not separated from service in said period, but merely

duties; considered on leave until re-employed. Workers who 3. employee has become unfit to continue working have performed the same tasks every season for

for the employer (Phil. Aeolus v NLRC, 2000) several years are considered regular employees for their respective tasks. Elements of Willful Disobedience 1. employee’s assailed conduct was willful or B. SECURITY OF TENURE

intentional, the willfulness being characterized by a wrongful and perverse attitude; Art. 279. Security of tenure

2. the order violated must have been reasonable, Applies to all establishment or undertakings lawful, made known to the employee and must whether for profit or not pertain to the duties which he has been engaged Project employees have no security of tenure. to discharge (Micro Sales Operation Network v. (see how full backwages are computed) NLRC,11 October 2005) Full backwages are computed from the time

wages are withheld up to the time the employee Gross and Habitual Neglect is actually reinstated. GROSS and HABITUAL must concur together. In the case of project employees, you cannot Implies a want or absence of or failure to demand wages for the time when there is no

exercise slight care or diligence, or the entire project. Thus, 279 does not apply to project absence of care. It evinces a thoughtless employees. disregard of consequences without exerting any effort to avoid them. C. JUST CAUSES, AUTHORIZED CAUSES,

Previous infractions by the employee should CONSTRUCTIVE DISMISSAL have been acted upon appropriately by the employer before terminating the former. Art. 282. Just Causes for Termination by

employer Fraud or Willful Breach of Trust Can be committed only by confidential and Grounds: (SoMe WiD GAN FWeT CO)

managerial employees 1. Serious Misconduct or Willful Disobedience by - confidential employees – charged with custody the employee of the lawful orders of his employer

and protection of employer’s property like a or representative in connection with his work cashier (this is different from the “confidential (work-related) employees” in labor relations) 2. Gross And habitual Neglect by the employee of Q uic kT im e™

and a A criminal case need not be actually filed. TI FF ( U nco mpr es s ed)

dec om pr ess orhis duties ar e needed to s ee t

his pi ct ur e.Commission of acts constituting a crime is 3. Fraud or Willful breach by employee of the Trust sufficient. reposed in him by his employer or duly

authorized representative (not mere suspicion) Analogous Cases; Examples 4. Commission of a Crime or offense by the violation of safety rules employee against the person of his employer or gross inefficiency any immediate member of his family or duly wrongful acts of employee against the company authorized representative violation of code of discipline 5. Other analogous cases

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failure to heed an order not to join an illegal 2. The substantial loss apprehended must be picket reasonably imminent.

immorality 3. It be reasonably necessary and likely to sexual harassment effectively prevent the expected losses. The

employer should have taken other measures Art. 283. Authorized Causes for Termination prior or parallel to retrenchment to forestall losses. Grounds: 4. The alleged losses if already realized, and the 1. Introduction of labor-saving devices expected imminent losses must be proved by 2. Redundancy sufficient and convincing evidence. (Oriental 3. Retrenchment Petroleum & Minerals Corp. v Fuentes, 14 4. Closure of business as a result of grave financial October 2005)

loss 5. Closure not due to losses Difference between redundancy and retrenchment: In redundancy, company has no Redundancy financial problems; in retrenchment, company Redundancy exists where the services of an suffers from financial problems.

employee are in excess of what is reasonably demanded by the actual requirements of the Closure Not Due to Losses enterprise. In cases of closure not due to losses, it must

A position has become superfluous as an NOT be in BAD FAITH. outcome of a number of factors such as If the dismissal is based on a just cause under overhiring of workers, decreased volume of Article 282 but the employer failed to comply with business, dropping of a particular product line or the notice requirement, the sanction to be service activity previously manufactured or imposed upon him should be tempered because undertaken by the enterprise (thus it only the dismissal process was, in effect, initiated by requires superfluity not duplication of work) an act imputable to the employee.

The redundancy SHOULD NOT have been If the dismissal is based on an authorized cause created by the EMPLOYER. under Article 283 but the employer failed to

comply with the notice requirement, the sanction Validity of a Redundancy Program should be stiffer because the dismissal process was initiated by the employer’s exercise of his DAP v. CA, GR No. 165811, 14 December 2005 management prerogative

The employer must comply with the following requisites to ensure the validity of the redundancy Constructive Dismissal program: 1. No formal dismissal 1. a written notice served on both the employees 2. The employee is placed in a situation by the

and the Department of Labor and Employment employer such that his continued employment (DOLE) at least one month prior to the intended has become UNBEARABLE. date of retrenchment

2. payment of separation pay equivalent to at least Veterans Security Agency v. Vargas, GR No. one month pay or at least one month pay for 159293. 16 December 2005 every year of service, whichever is higher Constructive dismissal exists when an act of

3. good faith in abolishing the redundant positions clear discrimination, insensibility or disdain on the 4. fair and reasonable criteria in ascertaining what part of the employer has become so unbearable as to

positions are to be declared redundant and leave an employee with no choice but to forego accordingly abolished continued employment.


Abandonment, as a just and valid cause for TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.Retrenchment termination, requires a deliberate and unjustified Resorted primarily to avoid or minimize business refusal of an employee to resume his work, coupled

losses. with a clear absence of any intention of returning to his or her work. Standards to Justify Retrenchment Abandonment is incompatible with constructive 1. The losses expected should be substantial and dismissal.

not merely de minimis in extent.

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Resigning employee not entitled to separation Article 286 applies only when there is a bona fide pay, unless company policy gives it. suspension of the employer’s operation of a business

or undertaking for a period not exceeding 6 months. In security agency parlance, being placed “off No Separation Pay in resignation; Exceptions;

detail” or on “floating” status means “waiting to be Waivers and Quitclaims, when valid posted.” It is the inherent prerogative of an employer to Candido Alfaro v. CA, et al., GR No.

transfer and reassign its employees to meet the 140812, 28 August 2001 requirements of its business. Be that as it may, the Generally, separation pay need not be paid to an prerogative of the management to transfer its employee who voluntarily resigns. However, an employees must be exercised without grave abuse of employer who agrees to expend such benefit as an discretion. The exercise of the prerogative should incident of the resignation should not be allowed to not defeat an employee's right to security of tenure. renege in the performance of such commitment. The employer’s privilege to transfer its employees to Not all waivers and quitclaims are invalid as different workstations cannot be used as a subterfuge against public policy. If the agreement was voluntarily to rid itself of an undesirable worker. entered into and represented a reasonable settlement, it is binding on the parties and may not Art. 284. Disease as ground for termination later be disowned, simply because of a change of mind. Disease as Ground for Termination When his continued employment is prohibited by Art. 286. When employment not deemed

law or prejudicial to his health or to the health of terminated his co-employees The bona-fide suspension of the operation of a

There is a certification by a competent public business or undertaking for a period not health authority that the disease is of such nature exceeding 6 months, or the fulfillment by the or at such stage that it cannot be cured within a employee of a military or civic duty shall not period of 6 months even with proper medical terminate employment. In all such cases, the treatment employer shall reinstate the employee to his

The requirement for a medical certificate cannot former position without loss of seniority rights if be dispensed with; otherwise, it would sanction he indicates his desire to resume his work not the unilateral and arbitrary determination by the later than one (1) month from the resumption of employer of the gravity or extent of the operations of his employer or from his relief from employee’s illness and thus defeat the public the military or civic duty. policy on the protection of labor. (Manly Express v. Payong, 25 October 2005) Temporary Lay-off Must not exceed 6 months.

Art. 285. Termination by employee Options of employer (i.e. security agency) in case Termination without Just Cause of pull out by client: 1. at least 1 month prior notice 1. retrenchment – must give notice 1 month before 2. employee may be held liable for damages for retrenchment; pay separation pay

failure to give notice 2. closure – must comply with 1 month advanced notice; no need to pay separation pay Termination with Just Cause 1. Grounds Abandonment

a. serious insult on the honor and person of means the deliberate, unjustified refusal of an employee by the employer or his employee to resume his/her employment Q uic kT im e™


representative ar e needed to s ee t his pi ct ur e.b. inhumane and unbearable treatment Two elements must be proved

accorded to the employee 1. the intention to abandon c. commission of a crime against person of the 2. an overt act from which it may be inferred that the

employee or any of the immediate members employee has no more intent to resume his/her of his family work

d. other causes analogous to the foregoing 2. Notice not necessary

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This is negated by immediate filing of an action contest the validity or legality of his dismissal by filing for ILLEGAL DISMISSAL. a complaint with the regional branch of the National

Labor Relations Commission. The burden of proving Employment Not Deemed Terminated that the termination was for a valid or authorized a. bona fide suspension of the operation of a cause shall rest on the employer. The Secretary of

business/undertaking for a period of not more the Department of Labor and Employment may than 6 months suspend the effects of the termination pending

b. fulfillment by the employee of a military or civic resolution of the dispute in the event of a prima facie duty finding by the appropriate official of the Department

of Labor and Employment before whom such dispute Employer shall reinstate the employee to his is pending that the termination may cause a serious

former position without loss of seniority rights IF labor dispute or is in implementation of a mass lay-employee indicates his desire to resume his off. work not later than 1 month from resumption of operations of his employer or his relief from the In cases of dismissal, employer has the burden military or civic duty of proof to show that the dismissal falls under

the just and authorized causes. (Tolentino v. Preventive Suspension PLDT, GR No. 160404, 08 June 2005) justified where the employee’s continued Due process refers to the process to be

employment poses a serious and imminent followed; burden of proof refers to the amount of threat to the life or property of the employer or of proof to be adduced his co-workers (there is a REASONABLE In money claims, the burden of proof as to the POSSIBILITY of the employee posing such a amount to be paid the employee rests upon the threat) employer since he is in custody of documents

must not exceed 1 month that would be able to prove the amount due, It is only for the purpose of investigating the such as the payroll.

offense to determine whether he is to be In cases of just and authorized causes, due dismissed or not. IT IS NOT A PENALTY. process must be observed.

if more than 1 month, the employee must be actually reinstated or reinstated in the payroll Due Process Requirements under Art. 277 (b)

officers liable only if with malice and bad faith Just Causes (282) Authorized Causes (283) Floating Status Twin Notice (Before and One notice only It is legal, such as in the case of security guards After Investigation - notice to employee1

who have no assignment. - notice of the charge month before Such a status should not exceed six-months; if it - notice that employee installation of LSD,

does, it amounts to a dismissal. is guilty (after retrenchment, or investigation) closure

D. DUE PROCESS - 1 month advanced Investigation notice to DOLE Art. 277. Miscellaneous Provisions (b) Subject to the constitutional right of workers to Non-compliance with due process requirements security of tenure and their right to be protected against dismissal except for a just and authorized Before the Agabon case, the doctrine in Serrano v. cause and without prejudice to the requirement of NLRC (GR No. 117040, 27 January 2000) was notice under Article 283 of this Code, the employer followed. It states that termination due to authorized shall furnish the worker whose employment is sought cause without giving the notice required under the Q uic kT im e™

and ato be terminated a written notice containing a TI FF ( U nco mpr es s ed)

dec om pr ess orLabor Code is not a violation of due process. It is ar e needed to s ee t

his pi ct ur e.statement of the causes for termination and shall valid although declared irregular / ineffectual. He afford the latter ample opportunity to be heard and to shall however be entitled to SEPARATION PAY AND defend himself with the assistance of his BACKWAGES. representative if he so desires in accordance with company rules and regulations promulgated pursuant Agabon v. NLRC, 17 November 2004 modifies to guidelines set by the Department of Labor and Serrano Employment. Any decision taken by the employer Dismissal for an authorized or just cause, w/o shall be without prejudice to the right of the worker to procedural due process is not an illegal dismissal

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which warrants backwages; employee entitled only to with the notice requirements as opposed to giving nominal damages. no notice at all.

The Court interpreted Art. 279 to the effect that SC reduced the nominal damages from Php 30,000 termination is illegal only if it is not for any of the to Php 10,000. justified or authorized causes provided by law. Payment of backwages and other benefits, including Agabon not given retroactive effect reinstatement, is justified only if the employee was The principle in law giving retroactive effect unjustly dismissed. where the subsequent law is corrective in character

The Court decided to follow Wenphil that where does not necessarily apply to judicial decisions. the dismissal is for a just cause, the lack of statutory Unless the SC provides otherwise, the ruling would due process should not nullify the dismissal or render have no retroactive effect. it illegal. However, the employer should indemnify the employee for the violation of his rights. The indemnity E. RELIEFS FOR ILLEGAL DISMISSAL should be stiffer than that provided in Wenphil to discourage the abhorrent practice of “dismiss now, 1. Backwages + Reinstatement without loss of pay later.” The indemnity should be in the form of seniority rights, or if reinstatement impossible nominal damages, which is adjudicated in order that 2. Backwages + Separation Pay a right of plaintiff, which has been violated by the defendant, may be vindicated. Where reinstatement is ordered, but the position is already filled up, the dismissed employee must Jaka Food Processing v. Pacot, 28 March 2005 still be reinstated if it is still possible.

If the dismissal is based on a just cause under Article 282 but the employer failed to comply with the Cases where reinstatement is impossible notice requirement, the sanction to be imposed upon 1. Doctrine of Strained Relations (applies to him should be tempered because the dismissal confidential and managerial employees only) process was, in effect, initiated by an act imputable to 2. In case of position has been abolished (applies to the employee. On the other hand, if the dismissal is both managerial and rank and file) based on an authorized cause under Article 283 but Moral and exemplary damages may also be the employer failed to comply with the notice awarded. requirement, the sanction should be stiffer because the dismissal process was initiated by the employer’s Computation of Separation Pay exercise of his management prerogative. Installation of labor- 1 month pay or 1 month

SC distinguished between non-compliance of due saving devices pay for every year of process requirements in just and authorized causes. service whichever is Authorized causes – Php 50,000 nominal Redundancy higher.

damages Just causes – Php 30,000 nominal damages 1 month pay for every

(because in just causes, employee is being year is always higher if dismissed due to his fault) the employee has

served for more than 1 Industrial Timber Corp. v. Ababon, 30 March 2006 year.

Factors to be taken into account in the Retrenchment to 1 month pay or at least determination of the amount of nominal damages in prevent losses 1/2 month pay for every dismissal cases: year of service 1. the authorized cause invoked, whether it was a Closures or cessation of whichever is higher

retrenchment or a closure or cessation of operations of operation of the establishment due to serious establishments or


business losses or financial reverses or TI FF ( U nco mpr es s ed) dec om pr ess or

undertaking NOT due to ar e needed to s ee t his pi ct ur e.

otherwise serious business losses 2. the number of employees to be awarded or financial reverses 3. the capacity of the employers to satisfy the

awards, taken into account their prevailing Disease financial status as borne by the records Closures or cessation of no separation pay

4. the employer's grant of other termination benefits operations due to in favor of the employees serious business losses

5. whether there was a bona fide attempt to comply or financial reverses

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* a fraction of at least 6 months is considered 1 year * without valid, just, or authorized cause If the retrenchment is later declared illegal, The option of “three months for every year” is

separation pay of 1 month for every year shall be available only if the employment is for at least one paid. Such computation is because the year. If the contract is shorter, the salary to be paid retrenchment was illegal and the employee was should be that for the unexpired portion. (Marsaman entitled to reinstatement. Manning Agency v. NLRC, 25 August 1999)

Reinstatement; payment of backwages F. RETIREMENT

Art. 287. Retirement Triad Security & Allied Services, Inc, et al. v (as amended by the Retirement Pay Law – RA 7641) Ortega, GR No. 160871, 06 February 2006 An order of reinstatement by the labor arbiter is Exempted: not the same as actual reinstatement of a dismissed retail, service, agricultural establishments or separated employee. Thus, until the employer operations employing not more than 10 continuously fails to actually implement the

employees reinstatement aspect of the decision of the labor arbiter, their obligation to the illegally dismissed Kinds employee, insofar as accrued backwages and other 1. OPTIONAL – 60 years old / 5 years in service benefits are concerned, continues to accumulate. It is

(includes authorized absences/vacations/regular only when the illegally dismissed employee receives holidays/mandatory military or civic service). This the separation pay (in case of strained relations) that depends on the stipulations in the CBA, company it could be claimed with certainty that the EER has retirement plan, or employment contract. formally ceased thereby precluding the possibility of

2. COMPULSARY – 65 years old/ regardless or reinstatement. In the meantime, the illegally years of service (company not bound to dismiss dismissed employee’s entitlement to backwages, 13th employee) month pay, and other benefits subsists. Until the

payment of separation pay is carried out, the Benefits employer should not be allowed to remain 1/2 month salary per year of service which shall unpunished for the delay, if not outright refusal, to include: immediately execute the reinstatement aspect of the 1. 15-day basic wage, plus labor arbiter’s decision. 2. 1/12 of the 13t h month pay, plus Further, the employer cannot refuse to reinstate 3. 5-day Service incentive leave pay plus the illegally dismissed employee by claiming that the 4. other benefits as maybe agreed upon by latter had already found a job elsewhere. Minimum

employer and employee wage earners are left with no choice after they are (a fraction of at least 6 months considered as 1 year) illegally dismissed from their employment, but to seek new employment in order to earn a decent living. Minimum benefits to be received = Surely, we could not fault them for their perseverance (no. 1 + no. 2 + no. 3) x years of service in looking for and eventually securing new If CBA / retirement plan has no prohibition, an employment opportunities instead of remaining idle

employee can get pay under the law, CBA, and and awaiting the outcome of the case. the retirement plan.

If what is provided in the CBA is lower that what Reliefs of local workers vs. migrant workers is provided for in law, the employee is entitled to Art. 279, LC Sec. 10, RA 8042 the higher amount. (local workers) (migrant workers)

Reinstatement Full reimbursement of Q uic kT im e™ and a


his placement fee with ar e needed to s ee t his pi ct ur e.

VI. DISPUTE SETTLEMENT interest of 12% per annum

A. JURISDICTIONS OF THE Full backwages from the Salaries for the DIFFERENT AGENCIES time his compensation unexpired portion of his was withheld from him employment contract or Bureau of Labor Relations up to the time of his for 3 months for every Original jurisdiction: appeal to DOLE Secretary actual reinstatement year of the unexpired

term, whichever is less

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Appellate jurisdiction: decision shall be Held: immediately executory upon issuance of entry of No. Unlike the NLRC which is explicitly vested final judgment; can be reviewed by the CA in a with the jurisdiction over claims for actual, moral, petition for certiorari under Rule 65 exemplary and other forms of damages, the BLR is

not specifically empowered to adjudicate claims of Jurisdiction such nature arising from intra-union or inter-union 1. Inter-union conflicts disputes. 2. Intra-union conflicts 3. All disputes, grievances or problems arising from As long as the agreement is voluntarily entered

or affecting labor-management relations in all into and has a reasonable award, it is valid. workplaces EXCEPT those arising from the It must be approved by the LA (NLRC Rules) implementation or interpretation of the CBA At the DOLE Secretary’s level, the Secretary which shall be the subject of grievance procedure must approve. and/or voluntary arbitration On appeal, the NLRC must approve the

4. Complaint involving federations, national unions, agreement. industry unions, its officers or member An offer to settle is not proof that something is organizations due to the employee.

Compromise Agreements Mindoro Lumber and Hardware v. Eduardo D. If voluntarily agreed upon by the parties with the Bacay, et. al., 08 June 2005

assistance of the BLR or the regional office of Article 277 of the labor code states that any DOLE final and binding upon the parties compromise settlement, including those involving

The only time NLRC or any courts can assume labor standard laws, voluntarily agreed upon by the jurisdiction over issues involved therein: parties with the assistance of the Bureau or the a. in case of non-compliance thereof regional office of the Department of Labor shall be b. if there is prima facie evidence that the final and binding upon the parties. ‘A’, a member of a

settlement was obtained through fraud, labor union and a party to a labor dispute executed a misrepresentation or coercion compromise settlement. He appeared before the

Office of the Regional Director to file said Power to Issue Subpoena compromise settlement together with a motion to When relevant to a labor dispute under its dismiss the case.

jurisdiction either at the request of any interested party or at its own initiative Issue:

Is the compromise settlement in compliance with Privileged Communication Article 277? Information and statements made at conciliation

meetings shall NOT be used as evidence in the Held: NLRC The assistance of the BLR or the regional office

Conciliators and similar officials shall not testify in of the DOLE in the execution of a compromise any court or body regarding any matters taken up settlement is a basic requirement. Without it, there at conciliation proceeding conducted by them can be no valid compromise settlement. Mere

appearance before BLR or the regional office of the Appeal DOLE to file the already executed compromise within 10 days to the DOLE Sec retary settlement is not the “assistance” required by the law. Grounds: As such, the compromise settlement executed by ‘A’

a. grave abuse of discretion cannot qualify as a valid compromise settlement. b. gross incompetence Q uic kT im e™


dec om pr ess orJurisdiction of Labor Arbiters ar e needed to s ee t

his pi ct ur e.Marino, Jr., et. al. v. Gamilla, et. al., 31 January 1. ULP (priority resolved within 30 cal days from 2005 submission for decision) Issue: 2. termination disputes

Does the bureau of labor relations have 3. claims for wages, rates of pay, hours of work and jurisdiction over claims for actual, moral, exemplary other terms and conditions of employment and other forms of damages arising from intra-union 4. claims for actual, moral, exemplary and other or inter-union disputes? forms of damages arising from employer- employee relationship

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5. cases arising from prohibited activities during c. Certified labor dispute causing or likely to strikes, including questions involving the legality cause a strike or lockout in an industry of strikes and lockouts indispensable to the national interest,

6. all other claims arising from employer-employee certified to it by the DOLE Secretary for relationship involving an amount exceeding compulsory arbitration P5000 regardless of whether accompanied by a 2. Exclusive Appellate Jurisdiction claim for reinstatement except ECC, SSS, a. All cases decided by the LAs, including Medicare, & maternity benefits contempt cases

7. Wage distortion cases in unorganized b. Cases decided by the DOLE Regional establishments Directors or his duly authorized hearing

8. All monetary claims of OFWs arising from EER or officers involving recovery of wages, simple by virtue of any law or contract involving Filipino money claims and other benefits not workers for overseas deployment, including exceeding Php 5,000 and not accompanied claims for actual, moral, exemplary and other by a claim for reinstatement forms of damages (RA 8042)

9. Enforcement of compromise agreements when OCULAR INSPECTION by Labor Arbiter & NLRC at there is non-compliance by any of the parties any time during working hours pursuant to Art. 227 of the Code (Sec. 1, Rule V, 2005 NLRC Rules) Jurisdiction of the POEA

Cancellation / Suspension of License of Authority Cooperatives to recruit of Recruitment Agencies (until phase Termination of members of cooperatives is not out within 5 years as provided in RA 8042)

cognizable by the LA (members are not Disciplinary Action against OFWs employees) Appeal to Secretary of DOLE within 10 calendar

LA has jurisdiction over illegal dismissal cases days cancellation/ revocation/ supervision of involving employees of cooperatives license or authority

Appeal to NLRC within 10 calendar days LA does NOT have jurisdiction over 1. violation of overseas employment contracts Intra-corporate disputes 2. disciplinary cases filed against overseas Cases involving corporate officers (bec. they are contract workers

not employees) – BUT in Prudential Bank v. Reyes (G.R. No. 141093, 20 February 2001), it Jurisdiction of DOLE Regional Directors was held that an employee who rose from the 1. visitorial power (Art. 128) ranks is a regular employee and not a mere 2. claims not exceeding Php 5,000 (Art. 129) corporate officer 3. violation of the constitution & by-laws and rights

Cases involving GOCCs with original charters & conditions membership Cases involving entities immune from suit (except 4. inter-union and intra-union disputes involving

when the entity performs proprietary functions) independent unions and chartered locals Local water districts (since they are quasi-public

corporations) Jurisdiction of the NCMB Actions based on tort (Tolosa v. NLRC, 10 April conciliation, mediation, and voluntary arbitration

2003 – Claim of a seaman for damages is under cases torts, regular court has jurisdiction.)

(SEE ANNEX L) Jurisdiction of the NLRC 1. Original Jurisdiction B. PROCEDURE

a. Injunction in ordinary labor disputes to enjoin Q uic kT im e™ and a

or restrain any actual or threatened Art. 221. Technical rules not binding and prior TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.commission of any or all prohibited or resort to amicable settlement unlawful acts or to require the performance of Art. 222. Appearances and Fees a particular act in any labor dispute which, if not restrained or performed forthwith , may The rules of evidence prevailing in courts of law cause grave or irreparable damage to any or equity shall not be controlling. party It is the spirit and intention of this Code which

b. Injunction in strikes or lockouts under Art. shall be used as reasonable means to ascertain 264 the facts in each case

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Without regard to technicalities of law and The only way to elevate the case to the CA is by procedure all in the interest of due process way of the special civil action of certiorari under

Parties may be represented by legal counsel but Rule 65 of the Rules of Civil Procedure. it shall be the duty of the Chairman, any presiding From the ruling of the Court of the Appeals, it Commissioner or any labor arbiter to exercise may be elevated to the SC by way of ordinary compete control of the proceedings at all stages appeal under Rule 45 of the Rules of Civil

GR: The only way to acquire jurisdiction is to Procedure. (St. Martin Funeral Home vs. NLRC, serve summons et al., GR No. 130866, 16 September 1998)

Voluntary appearance of the lawyer amounts to voluntary submission to the jurisdiction of the LA. Grounds (Santos v. NLRC, GR No. 101699, 13 March 1. prima facie evidence of abuse of discretion on 1996) the part of LA

Payment of docket fees is not required in labor 2. the decision, order or award was secured through standards claims under Art. 277(d). EXCEPT: in fraud or coercion including graft and corruption case of bargaining deadlock, the fees are shared 3. pure questions of law by the parties 4. raised serious errors in the findings of facts which

Failure to implead a substitute party is not a fatal could cause grave or irreparable damage or defect. (Chu v. Pasajo, 13 April 2003) injury to the appellant

Sec. 3, Rule V of the NLRC Rules allows parties 5. additional Requirement: in case of judgment to submit position papers with attachments and involving a monetary award-employer (appellant) they can be made basis of the LA’s decision. may perfect the appeal only upon the posting of a

Holding of trial on the merits is discretionary on cash or surety bond issued by a reputable the part of the LA. bonding company duly accredited by the NLRC in

Due process in Art. 277(b) (termination disputes) the amount equivalent to the monetary award in end line is hearing with representative of own the judgment appealed from

choice Due process in Art. 221 opportunity to be Requisites for Perfection of Appeal

heard 1. filed within the reglementary period It is wrong to apply opportunity be heard in due 2. Memorandum of Appeal under oath

process under Art. 277(b). 3. appeal fee Verification and Certification of Non-Forum 4. cash, property, or surety bond, if judgment

Shopping are required BUT Art. 221 can be involves monetary award invoked. 5. proof of service to the adverse party

NLRC Rules provide that before deciding, LA must inform parties that the case has been Procedure submitted for decision. If this is not complied with, 1. File Memorandum of Appeal within 10 calendar decision is still valid because of Art. 221. days, counted from receipt of decision

Art. 218(c) cannot be invoked to support a faulty 2. Other party can file an Answer within 20 calendar decision of the LA. The provision refers to a days from receipt of Appeal power of the NLRC and not the LA. 3. NLRC decides

4. NLRC decision becomes final and executory 10 C. APPEALS days after it is rendered

Art. 223. Appeal Appeal Involving Monetary Award Art. 224. Execution of decisions, orders or No monetary award, no appeal bond required awards If LA’s decision does not provide for a computation of the monetary award, no appeal


Appeal of LA’s Decision bond is required to be filed. TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e. Appeal from the decision of the Labor Arbiter is Bond should be posted within the 10-day period

brought by ordinary appeal to the NLRC within 10 for filing of appeal calendar days from receipt by the party of the If no bond is filed, appeal is not perfected decision. Remedy in case of failure to post bond, remedy is

From the decision of the NLRC, there is no to file a motion to dismiss appeal.

Motion to Reduce Bond

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Motion to reduce bond does not toll the running The unjustified refusal of the employer to of the period to perfect appeal reinstate an illegally dismissed employee entitles

the employee to payment of his salaries. In order to effectively stop the running of the If despite several writs of execution, the employer period within which to perfect the appeal, the still refuses to reinstate the employee, the motion to reduce bond must comply with the remedy is not the grant of additional backwages requisites that: to serve as damages but to file a motion to cite 1. filed within the reglementary period the employer for contempt. (Christian Literature 2. based on meritorious grounds Crusade v. NLRC, 171 SCRA 712, 10 April 1989) 3. a reasonable amount of bond in relation to the LA upheld the validity of the dismissal; NLRC

monetary award should be posted together with reversed. CA held that dismissal was valid. said motion HELD: The employer is liable to pay for the

salary of the employee previously ordered A substantial monetary award, even if it runs into reinstated by the NLRC although later on, the

millions, does not necessarily give the employer- dismissal of the employee was held not to be appellant a ‘meritorious case’ and does not illegal. (Roquero v. PAL, G.R. No. 152329, 22 automatically warrant a reduction of the appeal April 2003) bond. (Calabash Garments v. NLRC, GR No. If the former position is already filled up, the 110827, 08 August 1996) employee ordered reinstated under Article 223

Partial payment of the bond is deemed should be admitted back to work in a substantial compliance with the rules while the substantially equivalent position. (Medina v. motion to reduce bond is still pending with the Consolidated Broadcasting System, 222 SCRA NLRC. [Rosewood Processing v. NLRC, 352 Phil 707) 1013 (1998)] But the partial payment must be made within the reglementary period. Appeal of Voluntary Arbitrator’s Decision

An appellant cannot invoke financial difficulties as Appealable by ordinary appeal under Rule 43 of the Rules of Civil Procedure directly to the Court a ground in support of a Motion to Reduce Bond.

Suffice it to say that the law does not require of Appeals. From the CA, the case may be elevated to the outright payment of the total monetary award, but

only the posting of a bond to ensure that the Supreme Court by way of ordinary appeal under award will be eventually paid should the appeal the same Rule 45. (Luzon Development Bank v. fail. (Times Transportation v. NLRC, GR No. Association of Luzon Development Bank 16378, 16 February 2005) Employees, et al., GR No. 120319, 06 October

1995) Enforcement Any law enforcement agency may be deputized Appeal of BLR’s Decision

by the DOLE Secretary or the NLRC 1. Denial of application for registration of a union Issuance of writ of execution on a judgment Denial by the Regional Office, appeal to the

within 5 years from date it bec omes final and BLR executory motu proprio or in motion of any Denial is originally made by the BLR, appeal interested party may be had to the DOLE Secretary

2. Cancellation of registration of a union Reinstatement Pending Appeal Cancellation by the Regional Office, appeal If reinstatement is ordered in an illegal dismissal to the BLR.

case, it is immediately executory even pending Cancellation by the BLR in a petition filed appeal directly, appeal to DOLE Secretary by

Self-executing with no need for a writ of ordinary appeal Q uic kT im e™ and a

execution 3. Decision of the BLR rendered in its original TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e. Either admitted back to work under the same jurisdiction may be appealed to the DOLE

terms and conditions prevailing prior to his Secretary whose decision thereon may only be dismissal or separation or merely reinstated in elevated to the CA by way of certiorari under the payroll (at the option of the employer, i.e. Rule 65. confidential employee, but the choice must be 4. Decision of the BLR rendered in its appellate communicated to the employee by the employer) jurisdiction may not be appealed to the DOLE

Posting of a bond shall not stay the execution of Secretary but may be elevated directly to the CA reinstatement by way of certiorari under Rule 65. (Abbott

Page 76 of 83



Laboratories Philippines, Inc. vs. Abbott NLRC cannot order a refund of benefits or Laboratories Employees Union, et al., GR No. salaries. 131374, 26 January 2000) Rationale: for the employee to earn after all he

won in the LA level Appeal of Regional Director’s Decision under Art. Time to reckon reinstatement is the date of 129 receipt of LA’s decision; not NLRC decision Appeal to NLRC Relief of the employer is to ask for an injunction

under Art. 218(e) Summary If the employee is confidential, only payroll Decision of the Voluntary Arbiter – appeal to CA reinstatement is required.

under Rule 43 (Luzon Dev’t Bank) Decision of the DOLE and other attached

agencies (including NLRC) should be brought to VII. PENAL PROVISIONS AND LIABILITIES the CA under Rule 65 (St. Martin Funeral Homes)

Decision of the DOLE Secretary – certiorari to the Penalties for Violations of the Provisions of the CA under Rule 65 (NAFLU v. Laguesma) Labor Code

Fine of Php 1,000 to Php 10,000, or Order of the Med-Arbiter in CE in organized establishments – not appealable under DO 40-03 imprisonment for 3 months to 3 years, or both at the (2003). Thus, the recourse is certiorari under discretion of the court. Rule 65.

Decisions of the BLR in its appellate– certiorari Persons liable if an offense is committed by a under Rule 65 (UST Employees Union v. Bitonio) juridical person

The penalty shall be imposed upon the guilty Certiorari is not a substitute for lost appeal. 10 days to perfect appeal by filing a officer or officers of such corporation, trust, firm,

Memorandum of Appeal partnership, association or entity. Property bond is now allowed. [UERM-Memorial

Medical Center v. NLRC, 269 SCRA 70 (1997)] Prescriptive period of offenses penalized by the Appeal bond must be strictly complied with. Labor Code NLRC cannot resuscitate a lost appeal. GR: 3 years from the time the cause of action

accrued Only 1 MR is allowed. LA cannot entertain an MR or a petition for relief Exception: ULP cases prescribe within 1 year from

of judgment accrual of such unfair labor practice After the decision has become final and

executory, the writ of execution is NOT appealable.

To stay writ of execution, ask for an injunction under Art. 218(e)

Period to appeal cannot be extended BUT in a number of cases, SC entertained appeals filed out of time under the interest of justice rule (esp. if the appellants are the employees).

Doctrine of supervening event (i.e. closure of company) requires payment of separation pay and full backwages up to the time of the closure of the company.


Reinstatement Pending Appeal (RPA) TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.1. Decision of the LA 2. Independent right 3. Payroll reinstatement 4. Receipt of LA’s decision

Even if NLRC reverses LA decision, the SOCIAL LEGISLATION

employee is still entitled to the benefit of RPA. THIRTEENTH-MONTH PAY (PD 851)

Page 77 of 83



13th Month Pay for Certain Types of Employees All employers are required to pay all their rank- 1. Employees paid by results – entitled to 13th

and-file employees a 13th month pay not later month pay than December 24 of every year. Such 2. Those with Multiple Employers – entitled to the employees are entitled to the benefit regardless 13th month pay from all their private employers of their designation or employment status and regardless of their total earnings from each or all irrespective of the method by which their wages of their employers are paid, provided that they have worked for at 3. Private School Teachers – entitled regardless of least 1 mo. during a calendar year. the number of months they teach or are paid

13th Month Pay – 1/12th of the basic salary of an within a year, if they have rendered service for at employee within a calendar year least 1 month within a year.

13th Month Pay of Resigned or Separated Basic Salary – includes all remunerations or Employee – entitled to the benefit in proportion to the earnings paid by an employer to an employee for

services rendered but does not include cost of living length of time he worked during the year, reckoned allowances (COLA), profit-sharing payments and all from the time he started working during the calendar allowances and monetary benefits (e.g. unused VL year up to the time of his resignation or termination and sick leave credits, OT premium, night differential from the service and holiday pay) which are not considered or integrated as part of the regular or basic salary of the May be demanded by the employee upon the employee. However, the above should be included in cessation of EER. the computation if by individual or collective agreement, company practice or policy. Non-inclusion in Regular Wage – benefit need not

be credited as part of regular wage of employees for Exempted Employees: purposes of determining OT pay and premium pays, 1. Government and any of its political subdivisions, fringe benefits as well as contributions to the state

including GOCCs, except those corporations insurance fund, Social Security, Medicare, and operating essentially as private subsidiaries of private retirement plans the Government;

2. Employers already paying their employees 13th month pay or more in a calendar year or its ANTI-SEXUAL HARASSMENT ACT OF 1995 equivalent at the time of issuance of PD 851 (RA 7877) “Its equivalent” – includes Christmas bonus,

mid-year bonus, cash bonuses and other Where Committed payments amounting to not less than 1/12 of working, education, training environment (WET) the basic salary but shall not include cash and stock dividends, COLA and all other Who Commits allowances regularly enjoyed by the E’ee as 1. employer well as non-monetary benefits. 2. employee

3. Employers of household helpers and persons in 3. manager the personal service of another in relation to such 4. supervisor workers 5. agent of the employer

4. Employers of those who are paid on commission, 6. teacher boundary, or task basis, and those who are paid 7. instructor a fixed amount for performance of a specific 8. professor work, irrespective of the time consumed in the 9. coach performance thereof, EXCEPT where the 10. trainor Q uic kT im e™


workers are paid on a piece-rate basis, in which ar e needed to s ee t his pi ct ur e.

11. any other person having authority, influence or case the employer shall grant the required 13th moral ascendancy over another month pay to such workers. Piece Rate – employees who are paid a How Committed

standard amount for every piece or unit of Person liable demands, requests, or otherwise work produced that is more or less regularly requires any sexual favor from the other, regardless replicated, without regard to the time spent in of whether the demand, request or requirement for producing the same. submission is accepted by the object of said Act

Page 78 of 83

for them



All government employees can form, join or assist Work-Related/Employment Environment, Sexual employees’ organizations of their own choosing for Harassment Committed When the furtherance and protection of their interests. They 1. The sexual favor is made as a condition can also form, in conjunction with appropriate

a. in hiring or in the employment, reemployment government authorities, labor-management or continued employment of said individual committees, work councils, and other forms of

b. in granting said individual favorable workers’ participation schemes for the same compensation, terms, conditions, promotions objectives (§2) or privileges

c. the refusal to grant the sexual favor results in Who are Ineligible to Join Organization of Rank & limiting, segregating or classifying the File Government Employees employee which in any way would High-level employees whose functions are normally discriminate, deprive or diminish employment considered as policy-making or managerial or whose opportunities or otherwise adversely affect duties are of a highly confidential nature (§3) said employee

2. The above acts would impair the employee’s Protection of Right to Organize rights or privileges under existing labor laws They shall not be discriminated against in respect of

3. The above acts would result in an intimidating, their employment by reason of their membership or hostile or offensive environment for the employee participation in employees’ organizations. Their employment shall not be subject to the condition that Duty of Employer they shall not join or shall relinquish their

1. Promulgate appropriate rules and regulations membership therein (§5) prescribing the procedure for investigation of sexual harassment cases as well as guidelines Non-Interference of Government Authorities on proper decorum in the workplace Government authorities shall not interfere in the

2. Create a committee on decorum and establishment, functioning or administration of investigation of cases on sexual harassment. government employees' organizations through acts designed to place such organizations under the Liability of Employer / Head of Office control of government authority (§6)

Solidarily liable for damages arising from the acts of sexual harassment committed in the employment, Place of Registration education or training environment if the employer is CSC and DOLE (§7) informed of such acts by the offended party and no immediate action is taken Procedure for the Registration of Employees’ Organizations Prescription: 3 years 1. File application with BLR or Regional Office, which shall transmit the application to the BLR within 3 days from receipt EXECUTIVE ORDER NO. 180 2. BLR shall process the application in accordance Guidelines for the exercise of the right to organize of with the Labor Code (§7)

government employees, creating a public sector 3. Upon approval, a registration certificate will be labor-management council, and for other purposes. issued, recognizing it as a legitimate employees’ organization with the right to represent its Coverage members and undertake activities to further and It applies to all government employees--employees defend its interests

of all branches, subdivisions, instrumentalities, and 4. The certificates of registration shall be jointly agencies of the government, including GOCCs with approved by the Chairman of the CSC and Q uic kT im e™ and a

original charters (§1) TI FF ( U nco mpr es s ed) dec om pr ess or

Secretary of DOLE (§8) ar e needed to s ee t his pi ct ur e.

Excluded from Coverage Appropriate Organizational Unit Members of the Armed Forces of the Philippines, It is the employers unit consisting of rank-and-file including police officers, policemen, firemen and jail employees unless circumstances otherwise require. guards (§4) (§9) Right to Organize Sole and Exclusive Representative of Employees

Page 79 of 83



It is the duly registered employees’ organization Bautista v. CA, GR No. 123375, 28 February 2005 having the support of the majority of the employees in The SC affirmed its ruling in Association of Court the appropriate organizational unit (§10) of Appeals Employees v Ferrer-Calleja (GR No. 94716, 15 Nov. 1991), where it ruled that the BLR Voluntary Recognition has the jurisdiction to call for and supervise the A duly registered employees’ organization shall be conduct of certification elections in the public sector. accorded voluntary recognition upon a showing that The Court stated that there is no constitutional no other employees’ organization is registered or is objection to DOLE handling the certification process seeking registration, based on records of the BLR, considering its expertise, machinery and experience and that the said organization has the majority in this particular activity. EO 180 requires support of the R&F employees in the organizational organizations of government employees to register unit (§11) with both DOEL and CSC. This ambivalence notwithstanding, the CSC has no facilities, personnel Certification Election and experience in the conduct of certification Where there are 2 or more duly registered elections. BLR has to do the job. employees’ organizations in the appropriate organizational unit, the BLR shall, upon petition, order the conduct of a certification election and shall SALIENT PROVISIONS OF THE certify the winner as the exclusive representative of SSS LAW & GSIS LAW the R&F employees in said organization unit (§12) (ANNEX O) Subject of Negotiation Terms and conditions of employment or NATIONAL HEALTH INSURANCE ACT OF 1995 improvements thereof, except those that are fixed by (RA 7875) law, may be the subject of negotiations between duly recognized employees' organizations and appropriate General Objectives government authorities (§13) 1. provide all citizens of the Philippines with the mechanism to gain financial access to health Peaceful Concerted Activities and Strikes services; The Civil Service laws and rules governing concerted 2. create the National Health Insurance Program to activities and strikes in the government service shall serve as the means to help the people pay for be observed, subject to any legislation that may be health care services; enacted by Congress. (§14) 3. prioritize and accelerate the provision of health services to all Filipinos, especially that segment Public Sector Labor-Management Council of the population who cannot afford such It is the body charged with implementing and services; and administering EO 180. 4. establish the Philippine Health Insurance Corporation that will administer the Program at Composition of Council central and local levels 1. Chairman, CSC - Chairman 2. Secretary, DOLE – Vice-Chairman BENEFICIARY - Any person entitled to health care 3. Secretary, - DOF - Member benefits under this Act. 4. Secretary, DOJ – Member 5. Secretary, Department of Budget and CAPITATION - A payment mechanism where a fixed

Management – Member (§15) rate, whether per person, family, household or group, is negotiated with a health care provider who shall be Settlement of Disputes responsible for delivering or arranging for the delivery


The Civil Service and labor laws and procedures, of health services required by the covered person TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.whenever applicable, shall be followed in the under the conditions of a health care provider resolution of complaints, grievances and cases contract. involving government employees. In case any dispute remains unresolved after exhausting all the available CONTRIBUTION - The amount paid by or in behalf of remedies under existing laws and procedures, the a member to the Program for coverage, based on parties may jointly refer the dispute to the Council, for salaries or wages in the case of formal sector appropriate action. (§16) employees, and on household earnings and assets, in the case of the self-employed, or on the other

Page 80 of 83



criteria as may be defined by the Corporation in

PENSIONER - An SSS or GSIS member who

accordance with the guiding principles set of this Act.

receives pensions therefrom. DEPENDENT - The legal dependents of a member RETIREE - A member of the Program who has are: reached the age of retirement or who was retired on

1. the legitimate spouse who is

not a member

account of disability.

2. the unmarried and unemployed legitimate, legitimated, illegitimate, acknowledged children SELF-EMPLOYED - a person who works for himself

as appearing in the birth certificate; legally

and is therefore both employee and employer at the adopted or stepchildren below 21 years of age same time.

3. children who are 21 years old and above who are suffering from congenital disability, either THE NATIONAL HEALTH INSURANCE PROGRAM physical or mental, or any disability acquired that renders them totally dependent on the member Purpose for support 1. To provide health insurance coverage and

4. the parents who are 60 years old or above whose ensure affordable, acceptable, available and monthly income is below an amount to be accessible health care services for all citizens of determined by the Corporation in accordance the Philippines with the guiding principles set forth of this Act. 2. To serve as the means for the healthy to help pay

for the care of the sick and for those who can EMPLOYEE - Any person who performs services for afford medical care to subsidize those who an employer in which either or both mental and cannot. (§5) physical efforts are used and who receives compensation for such services, where there is an Establishment employer-employee relationship. 1. Include sustainable system of funds constitution, collection, management and disbursement for EMPLOYER - A natural or juridical person who financing the availment of a basic minimum employs the services of an employee. package and other supplementary packages of health insurance benefits by a progressively ENROLLMENT - The process to be determined by expanding proportion of the population. the Corporation in order to enlist individuals as 2. Limited to paying for the utilization of health members or dependents covered by the Program. services by covered beneficiaries or to purchasing health services in behalf of such MEMBER - Any person whose premiums have been beneficiaries. regularly paid to the National Health Insurance 3. Prohibited from providing health care directly, Program. He may be a paying member, an indigent from buying and dispensing drugs and member or a pensioner/retiree member. pharmaceuticals, from employing physicians and other professionals for the purpose of directly MEDICARE - The health insurance program currently rendering care, and from owning or investing in being implemented by the Philippine Medical Care health care facilities. (§5) Commission. It consists of:

a. Program I, which covers members of the Coverage All citizens of the Philippines (§6) SSS and GSIS including their legal

dependents; and b. Program II, which is intended for those not Enrollment

covered under the Program I 1. Beneficiaries shall be enrolled in order

o be placed under coverage that entitles them to Q uic kT im e™ and a

NATIONAL HEALTH INSURANCE PROGRAM -

avail of benefits.

TI FF ( U nco mpr es s ed) dec om pr ess or ar e needed to s ee t

his pi ct ur e.

2. Enrollment process

government as established in this Act, which shall

beneficiaries, issuance of appropriate

provide universal health

documentation specifyi

ensure affordable, acceptable,

tand

indicating

how

members

hip was

obtained

or

is being maintained.

accessible health care servi

Philippi

3. Enrollment shall proceed in accordance with

these specific policies:

Page 81 of 83


ATENEO CENTRAL BAR OPERATIONS 2007 a uta4t5a6N7b8idgovernments as part of Program II of MENTITLEMENT TO BENEFITS provisions of this Act, including indigent A. Requisites: members, shall also be enrolled in the 1. A member whose premium contributions for Program. at least 3 months have been paid within the 6

c. all persons eligible for benefits as members months prior to the first day of his or his of local health insurance plans shall also be dependents' availment; deemed to have enrolled in the Program. 2. He can show that he contributes with Enrollment of persons who have no current sufficient regularity; and health insurance coverage shall be given 3. He is not currently subject to legal penalties priority by the corporation; and

d. all persons eligible for benefits as members B. Monthly contributions need not be paid by the of other government initiated health following to be entitled to benefits: insurance programs, community-based 1. Retirees and pensioners of the SSS and health care organizations, cooperatives, or GSIS prior to the effectivity of this Act private non-profit health insurance plans shall 2. Members who reach the age of retirement be enrolled in the Program upon and have paid at least 120 monthly accreditation by the Corporation (§7) contributions; and

3. Enrolled indigents (§11) Benefit Package

1. Inpatient hospital care: GRIEVANCE SYSTEM Members, dependents, or health care providers b. services of health care professionals; facilities;

a. room and board; of the Program who believe they have been c. diagnostic, laboratory, and other medical aggrieved by any decision of the implementors of the examination services; Program, may seek redress of the grievance in

d. use of surgical or medical equipment and

accordance with the provisions of this Article.

2. Outpatient care:

e. prescription drugs and biologicals; subject to Grounds for Grievances

the limitations stated in Section 37 of this act

1. any violation of the rights of patients;

f. inpatient education packages 2. a willful neglect of duties of Program

implementors that results in the loss or non-

enjoyment of benefits by members or their

a. services of health care professionals;

dependents;

b. diagnostic, laboratory and other medical 3. unjustifiable delay in actions on claims; examination services; 4. delay in the processing of claims that extends c. personal preventive services; and beyond the period agreed upon; and d. prescription drugs and biologicals; subject to 5. any other act or neglect that tends to undermine the limitations described in Section 37 of this or defeat the purposes of this Act. (§40) Act Q u ic k T i m e ™ a nd a Grievance and Appeal Procedure TI FF ( U nco mpr

es s ed) dec om pr ess or

a r e n e ed e d t o s e e t h i s p i c t u r e .

3. Emergency and transfer services A 142 3. Health care provider Excluded Personal Health Service 1B. Procedure

1. A complaint for grievance must be filed with 2. outpatient psychotherapy and counseling for mental disorders; the Local Health Office (LHO)

Page 82 of 83



2. LHO shall rule on the complaint within 90 clarificatory questions by the proponent and calendar days from receipt by the Committee and may be cross-

3. Appeals from LHO decisions must be filed examined by the adverse party. The hearing with the Board within 30 days from receipt of shall be terminated within 15 days, and the notice of dismissal or disallowance by the case decided by the Committee within15 Office days from such termination.

5. The decision of GARC shall become final C. LHO has NO jurisdiction over any issue involving: and executory 15 days after notice thereof

1. suspension or revocation of accreditation 6. Such decision is appealable to the Board by 2. imposition of fines, or filing the appellant's memorandum of appeal 3. imposition of charges on members or their within 15)days from receipt of the copy of the

dependents in case of revocation of their judgment appealed from. The appellees shall entitlement. be given15 days from notice to file the

appellee's memorandum after which the D. All decisions by the Board as to entitlement to Board shall decide the appeal within 30 days

benefits of members or to payments of health from the submittal of the said pleadings. care providers shall be considered final and 7. The decision of the Board shall also become executory final and executory 15 days

E. Hearing Procedures of Grievance and Appeal Such decision is reviewable by the Supreme Court on

Review Committee (GARC) purely questions of law (§41) 1. Upon the filing of the complaint, GARC may

dismiss the case outright due to lack of verification, failure to state the cause of action, or any other valid ground for dismissal of the complaint after consultation with the Board; or require the respondent to file a verified answer within 5 days from service of summons.

2. Should the defendant fail to answer the complaint within the reglamentary five-day period, GARC, motu proprio or upon motion of the complainant, shall render the judgment.

3. After an answer is filed and the issues are joined, GARC shall require the parties to submit, within 10 days from receipt of the order, the affidavits of the witnesses and other evidence on the factual issues defined therein, together with a brief statement of their positions setting forth the law and the facts relied upon by them. In the event GARC finds, upon consideration of the pleadings, the affidavits and other evidence, and position statements submitted by the parties, that a judgment may be rendered thereon without need of a formal hearing, it may


proceed to render judgment not later 10 days TI FF ( U nco mpr es s ed) dec om pr ess orar e needed to s ee t

his pi ct ur e.from the submission of the position statements of the parties

4. In cases where GARC deems it necessary to hold a hearing to clarify specific factual matters before rendering judgment, it shall set the case for hearing for the purpose. At such hearing, witnesses whose affidavits were previously submitted may be asked

Page 83 of 83

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Ateneo Labor Law Reviewer