ER-EE RELATION (test to determine)

1. ER reserves the right to control not only the end to be achieve but also the means to be used in reaching such end LVN PICTURES vs. PHILIPPINE MUSICIAN GUILD

2. 4 fold test to determine ER-EE Relationshipa. Selection and engagement of employeeb. Payment of wagesc. Power of dismissald. Power to control employees conduct (must important)

3. PAKAIO a. workers are considered workers as long as ER exercise control over

the means by which worker are to perform their work ZAMUDIO vs. NLRC

4. LABOR ONLY CONTRACTOR(prohibited)a. the person supplying workers to an employer does not have

substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited

b. and placed by such person are performing activities which are directly related to the principal business of such employer

Note:

In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him

5. INDEPENDENT CONTRACTOR/JOB CONTRACTING (legitimate or allowed by law)

a. The contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and

b. The contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of his business. BROTHERHOOD LABOR UNITY MOVEMENT vs. ZAMORA

ER-EE (Jurisdiction)

1. REASONABLE CAUSAL CONNECTION between the claim asserted and ER_EE relations to put the case under the provisions of Article 217, ABSENT such link, the complaint will be recognizable by REGULAR COURTS

2. Where the claim to the PRINCIPAL RELIEF SOUGHT is to be resolve NOT by reference to the Labor Code or other labor relations statute of CBA but by general civil law, jurisdiction belong to regular courts

ER_EE INDEPENDENT CONTRACTOR

1. DBP vs. NLRCa. Test to determine LEGITIMATE JOB CONTRACTING /

INDEPENDENT CONTRACTORi. I ARM FREE CAPITAL TEAMWORK requisites

1. ARM 2. CAPITAL TEAMWORK

b. LABOR ONLY CONTRACTORi. The liability of the principal employer is ANY and ALL claims

under the circumstancec. LEGITIMATE JOB CONTRACTING

i. Principals employers liability is to the extend benefitedd. INDEPENDENT CONTRACTOR

i. The employees need not perform work which is necessary and desirable to the employers business

e. LABOR ONLY CONTRACTING, is the employees required to perform work which is necessary and desirable to the employers principal business?

i. YES, because employment status is determine by law and under Art. 287, in order for an employee to be considered as regular, he must perform work which is necessary and desirable to the employers principal business

EE_ER LABOR DISPUTES

1. ART. 212(1)

GROUP OF EMPLOYEES _SPECIAL_WOMEN

1. ART. 136

GROUP OF EMPLOYEES_ORDINARY_PROBATIONARY

1. WON probationary employees have right to security of tenure? Its duration?a. YES, the probationary employee enjoys the security of tenure during

the whole duration of probationary period. It entails that probationary employee CAN ONLY BE TERMINATED on JUST CAUSE or AUTHORIZE CAUSE OR when FAILS to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. BIBOSO vs. NLRC

2. Difference between PROBATIONARY and REGULAR employeea. PROBATIONARY and REGULAR is similar with regards to

termination of service, that they can only be terminated on JUST and AUTHORIZE cause

b. Difference, PROBATIONARY (limited security of tenure) employee’s services can be terminated if he did not meet the standards of the employer. Does not apply to REGULAR(unlimited security of tenure) BIBOSO vs. NLRC

3. The word probationary as used to describe period of the employment, implies the purpose of the term or period but not its length because what is important is the term and not the length of probationary employment or the purpose is material not the period. INTERNATIONAL CATHOLIC MIGRATION vs. NLRC

4. GENERALLY, probationary employment is limited to 6 months however under this case the 18th month probationary period is justified because of the management prerogative and the job complex. The directory will only be published after 1 year, only that time employer will be able to determine if employee had met the standards set by employer. VER BUISER vs. GTE DIRECTORIES

5. There is probationary employmenta. Where the employee, upon his engagement, is made to undergo a

TRIAL PERIOD during which the employer determines his fitness to qualify for regular employment, based on reasonable standards known to him at the time of engagement.

b. IF NO STANDARDS known to the employee at that time, he shall be deemed a regular employee

DOUBLE PROBATION

1. OJT then another 6 monthsa. It is double because the employer had twice determined the standards

to be met.b. It MIGHT be valid so long as the period does not exceed 6 moths

notwithstanding the existence of 2 probationary periodc. HOLIDAY INN MANILA vs. NLRC

GROUP OF EMPLOYEES_ORDINARY_REGULAR EMPLOYEES

1. ART. 280 of LC govern this concept. READ IT!2. Why is it important to attain regular status?

a. To enjoy security of tenure, that an employee can only be terminated through JUST CAUSE and AUTHORIZE CAUSE

3. Generally, employee who suffered to work for an activity which is necessary and desirable to the principal business of the employer is deemed to be a REGULAR EMPLOYEE

4. Other instancea. He is casual employee. Casual employee if he does not fall under the

1st paragraph of art. 2805. No security of tenure if CASUAL EMPLOYEE, but there is if CASUAL-

REGULAR EMPLOYEE6. THE TEST TO DETERMINE THE ER_EE RELATIONSHIP between the ER

and EE is NOT ART. 280 of the labor code but the CONTROL TEST because 280 is the determination of the status employee, whether he is regular, project, seasonal or regular-casual employee. ART. 280 PRESUPPOSES that there is already an employment of relationship

7. TEST TO DETERMINE REGULAR EMPLOYMENT a. Whether the work perform is usually necessary or desirable in the

usual business or trade of the employer

GROUP OF EMPLOYEES _ORDIANRY_TERM EMPLOYMENT

1. In BRENT SCHOOL vs. ZAMORA the term employment contract was valid despite the proviso in Art. 280 IF the employer has NO INTENTION to circumvent the right to tenurial security of the employee, indicators

a. The parties (especially the employee) had freely and voluntarily entered into contract OR the employees consent was not vitiated

b. Parties are on EQUAL FOOTING2. Employee hired on a fixed term is REGULAR if job is necessary and

desirable to the business of employer PHILIPS SEMICONDUCTOR vs. FADRIQUELA 2004

GROUP OF EMPLOYEES_ORDINARY_PROJECT EMPLOYEE

1. What is a project employee?a. The one who is employed on a certain project and upon the cessation

of the project his employment will also be terminated. VIOLETA vs. NLRC

2. What if the job performed by the employee is necessary and desirable, is he ALREADY considered as a regular employee?

a. NO!, because if he was assigned for a SPECIFIC PROJECT or undertaking and the completion or termination which has been determine at the time of the engagement of the employee or where the work or service performed is SEASONAL in nature and the employment is for the duration of the season, HE IS NOT A REGULAR EMPLOYEE. He is considered as a project or seasonal employee. CHUA vs. CA

3. In the case of CARTAGENAS vs. ROMAGO ELECTRIC, the duration of the employees is CO-TERMINUS with the project wherein the employees were assigned

a. NOTE : the determining factor is the COMPLETION of the project and NOT the PERIOD

4. If a regular employee was assigned to a particular project , HE IS A WORK POOL EMPLOYEE

5. How do I know if an employee a project employee? When is there a project employee despite the fact that there are 5 projects

a. If an employee undergone a process of APPLICATION, EVALUATION, HIRING and TERMINATION. FERNANDEZ vs. NLRC

6. Day Certain Rulea. Project employment ends on a CERTAIN DATE does not end on

exact date, but on the completion of the project

GROUP OF EMPLOYEES_ORDINARY_SEASONAL

1. Work or service to be performed is seasonal in nature and the employment is for the duration of the season

LABOR STANDARDS_GENERAL CONCEPTS

1. GENERAL RULEa. Quit claims are valid if it was freely and voluntarily agreed by the

parties 2. EXCEPTION

a. If it is contrary to public policyi. Contrary to public policy if it involves waiver of the labor

standards. PEFTOK INTEGRATED SERVICE vs. NLRC

WAGES

1. Definea. Remuneration or earnings, however designated, capable of express in

terms of money, whenever fixed or ascertained on a time, task, piece or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered

2. Fair wage for fair work / no work no pay principlea. If no work performed by the employee, there can be no wage or pay

UNLESS the laborer was able, willing and ready to work but was prevented by management or was illegally lock out, suspend or dismissed

3. Equal pay for equal work (not absolute)a. Person who work with substantial qualification, skill, effort and

responsibility, under similar condition, should be paid similar salaryb. Not absolute because, the payment of some of the employees

includes seniority factors, dislocation factor, expertise and such.4. Wages vs. Salary

a. Wages applies to compensation for manual labor, skilled or unskilled, paid at stated times and measured by day week, month or season WHILE salary denotes a higher degree of employment or a superior grade of service and implies a position of office

5. In the case of MAYON HOTEL vs. ADANA where meals and snacks purportedly provided to employees CANNOT be deducted as part of latters minimum wage even if it constitutes FACILITIES

a. Facilities i. Articles or service for the benefit of the employee or his family

but shall not include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employers business

b. Requirements for deducting the value of facilitiesi. Proof must shown that such facilities are customarily furnished

by tradeii. Provision of deductible facilities must be voluntarily accepted

in writing by the employeeiii. The facility must be charge at fair and reasonable value

6. MILARES vs. NLRCa. Monthly allowance are not automatically included for the computation

of labor benefits e.g. 13th month pay, separation pay. Those monthly allowances that are temporary, contingent and extra are not included as part of the basic salary for the computation of labor benefits

b. BUT, for it to be classified as a wage (allowances) especially to facilities or supplements, it must be FAIRLY and CUSTOMARILY given, meaning it is REGULARLY given to the employees

Payment of wages

1. LGM CHEMICALS CORP. vs. SECa. If one of the division is losing 150k per month but the other division

profiting more than what the other division is losing and upon adding all the profits earned by these division it will result that they are not suffering losses, THEN the employer can still increase the employees salary (who were part of the division losing profits)

2. SPECIAL STEEL PRODUCTS INC. vs. VILLAREAL (art. 116)a. An employer CANNOT simply refuse to pay the wages or benefits of

its employee because he has either defaulted in paying the loan guaranteed by his employer; or violated their MOA; or failed to rendered an accounting of his employers property

b. The employers salary cannot be set off to the loan because the nature of salary is a labor obligation and the nature of the loan (contract) is a civil obligation.

3. DBP vs. NLRC (art. 110)a. Sec. 10. Payment of wages in case of bankruptcy. — Unpaid wages

earned by the employees before the declaration of bankruptcy or judicial liquidation of the employer's business shall be given first preference and shall be paid in full before other creditors may establish any claim to a share in the assets of the employer

b. a declaration of bankruptcy or a judicial liquidation must be present before the worker's preference may be enforced. Thus, Article 110 of the Labor Code and its implementing rule cannot be invoked by the respondents in this case absent a formal declaration of bankruptcy or a liquidation order

c. In the present case, there is as yet no declaration of bankruptcy nor judicial liquidation of TPWII. Hence, it would be premature to enforce the worker's preference

4. Manner of wage paymenta. Wages shall be paid in LEGAL TENDER, the use of token, coupon,

promissory notes, vouchers or any other form alleged to represent legal tender is ABSOLUTELY PROHIBITED even when expressly requested by the employee

b. Paymen of CHECK, allowed5. Time of payment

a. Gen Rulei. Twice a month not exceeding 16 days

b. Exceptioni. Payment cannot be made due to force majeure or

circumstances beyond employers control

Wage Fixing

1. EMPLOYERS CONFEDERATION vs. NWPCa. 2 method in determination of wages

i. Floor wage

1. Involves the fixing of determinate amount that would be added to the prevailing statutory minimum wage

ii. Salary ceiling1. Whereby the wage adjustment is applied to

employees receiving a certain denominated salary ceiling

2. Filipinas Golf vs. NLRCa. Whether the compliance of wage order is compliance in the

increase in CBAi. YES, the employer is made not to pay twice the

concurrence amount of increase independently imposed by law and by agreement

3. PRUBANKERS vs. PRUDENTIAL BANK a. Wage distortion

i. a significant change occurs at the lowest level of positions in terms of basic wage without a corresponding change in the other level in the hierarchy of positions, negating as a result thereof the distinction between one level of position from the next higher level, and resulting in a parity between the lowest level and the next higher level or rank, between new entrants and old hires, there exists a wage distortion.

ii. Distortion will only apply in the same region e.g. a branch in davao but will not affect the branch in cebu or ormok

b. 4 elemetsi. An existing hierarchy of positions with corresponding

salary ratesii. . A significant change in the salary rate of a lower pay

class without a concomitant increase in the salary rate of a higher one

iii. The elimination of the distinction between the two levelsiv. The existence of the distortion in the same region of the

country.c. To correct distortion

i. The employer should increase all the salaries of the employee or maintain the intentional qualitative difference of the employees salaries

Working Condition

1. NATIONAL SUGAR vs. NLRCa. Why is there a need to determine if person is a supervisory

employeei. To determine the benefits that must be given to the

employee to wit, overtime pay etc.2. APEX MINING vs. NLRC

a. PR should not considered as domestic servant because the latter did not perform service in the employers home which is usually necessary or desirable for the maintenance and enjoyment thereof and does include ministering to the personal comfort and convenience of the members of the employers household. In this case the employee does not performing services for the employee’s family but for the corporation hence she is considered as an employee of the corporation

Hours of Work

1. RADA vs. NLRC (overtime pay)a. If driving these employees to and from the project site is not really

part of petitioner's job, then there would have been no need to find a replacement driver to fetch these employees. But since the assigned task of fetching and delivering employees is indispensable and consequently mandatory, then the time required of and used by petitioner in going from his residence to the field office and back, that is, from 5:30 a.m. to 7:00 a.m. and from 4:00 p.m. to around 6:00 p.m., which the labor arbiter rounded off as averaging three hours each working day, should be paid as overtime work.

b. Further, at the time he gets into the car he is working because he has to get some of the employees to go to the office at a specific time. This indicate, that this is for the benefit of the employer and not to the employee

2. PAN AMERICAN vs. PAN AMERICAN EMPLOYEES ASSOCIATION(1 hour meal period)

a. 1 hour meal period is not compensable HOWEVER in this case it is because even during meal period the mechanics were required to standby for emergency work and if happen that they were not available when they were called, they were reprimanded by the lead man

3. ARICA vs. NLRCa. The 30 min time is not compensable because the employer has

NO ABSOLUTE CONTROL and the work they perform at the time was not for the benefit of the employer. Y because it is only for roll calls and the assignments of their jobs, they can go to their houses after those.

4. OTa. Works exceed 8 hours within 24 hours workdayb. UNDERTIME CANNOT BE OFFSET BY OT because it would

result to undue deprivation of employees extra pay for OT / lost the premium pay he had rendered for the excess overtime

c. Right to OT cannot be waived except if it is in consideration of benefits and privileges which may even exceed OT pay

5. CAGAMPANGAN vs. NLRCa. Proof of actual work for the excess hour for the entitlement of OT

because seaman by the very nature of their job stays on board a ship vessel

b. It is need to prove actual work for overtime, in order for the employer to be liable for payment of overtime

Other employment benefits

1. REMERCO GARMENTS MANUFACTURING vs. MINISTER OF LABOR (weekly rest period)

a. is weekly rest period mandatory and when must it be giveni. YES it is mandatory, art. 91 of the labor code provides that a. it

shall be the duty of every employer whether operating for profit of not to provide each of his employees a rest period of NOT LESS than 24 hours consecutive hours after every 6 consecutive normal work days

b. The employer shall determine and schedule the weekly rest day of his employees rest day of his employees subject to CBA and to such rules and regulations as the sec of labor and employment may provide.

c. However employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds

2. VDA DE UCANG vs. WCCa. ER-EE relation is not suspended when an employee is given a

vacation leave with payb. The purpose of vacation leave is to afford the laborer a chance to get

much needed rest to replenish his worn out energies and to acquire a new vitality to enable his to effectively perform his duties, not merely to give his additional salary ir bounty

Holiday pay

1. Read PRODUCERS BANK vs. NLRCa. Divisor

2. ASIAN TRANSMISSION CORP vs. CA a. 2 holidays falling on the same day

Service Incentive Leave

1. Concepta. Every employee who has rendered ATLEAST 1 year (not less than 12

months, whether continuous or broken) of service shall be entitled to a yearly service incentive leave for 5 days WITH PAY

b. Convertible to cash2. AUTO BUS TRANSPORT SYSTEM vs. BAUTISTA

a. Exception to the service incentive leavei. Government

ii. Domestic helper and person in the personal service of anotheriii. Field personnel and other employees whose performance is

unsupervised by the employer (case at bar)iv. Those enjoying vacation leave with pay of at least 5 days v. Those employed in establishment regularly employing less

than 10 employees

Sick leave and vacation leave

1. They are not required by law and depends on voluntary employer policy or collective bargaining

2. Purposea. To afford to a laborer a chance to get a much-needed rest to replenish

his worn out energies and acquire a new vitality, to enable him to efficiency perform his duties, and not merely to give him additional salary or bounty

3. This privilege MUST be demanded in its opportune time and if he allows the years to go by in silence HE WAIVES it. SUN RIPE COCONUT PRODUCTS vs. NLRC

13th Month Pay

1. BROKENSHIRE MEMORIAL vs. NLRCa. Whether employees entitled to the so called 13th month pay prescribe

by PD 851 on top of bonuses already given by the employer prior to the decree

i. NO! the hospital cannot be obliged to bear the DOUBLE BURDEN of giving its employees not only the 13th month pay required by PD 851 but also Christmas bonus it had therefore been granting.

b. Intention of PD 851/ 13th month pay lawi. Was to grant some relief no to all workers but to the

unfortunate ones not actually paid a 13th month salary or what amounts to it by whatever name called

2. PHILIPPINE AGRICULTURAL vs. NLRCa. Gen rule

i. Commission are not part of the 13th month payb. In this case the computation of 13th month pay includes commission

because the employees are guaranteed a minimum wage and the COMMISSION FORMS PART OF THE MINIMUM WAGE. But again, commission are excluded for 13th month pay

3. SEVILLA TRADING COMPANY vs. NLRCa. A company practice favorable to the employee had indeed repined

into benefits enjoyed by them cannot be reduced diminished, discontinued or eliminated by the employer by the employer

4. HONDA PHILS vs. SAMAHAN NG MANGGAGAWAa. Whether the pro-rated computation of the 13th month pay and other

bonuses are validi. NO!

b. 13th month pay is subject to pro rating ONLY in the instance of RESIGNATION or SEPARATION. While the employee is STILL WORKING with you, you cannot pro-rate

Grounds for termination_ willful disobedience/serious misconduct

1. MANEBO vs. NLRCa. Requisites

i. Employees assailed conduct must have been willful or intentional and can be characterized as wrongful and perverse attitude

ii. The other violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he has been engaged to discharge

2. AGUILAR vs. NLRCa. This case is a serious misconduct

i. Because the employee knew it was wrong however he still persist on dong the same violation. Because he was already caught doing it, however he kept on doing it makes the action willful and perverse

Grounds for termination_ Abandonment

1. JARDINE DAVIES vs. NLRCa. 2 requisites of Abandonment

i. There must be deliberate unjustified refusal of the employee to resume his employment

ii. It must be accompanied by an overt act2. JACKSON BLDG vs. NLRC

a. IMMEDIATE filling of a case against abandonment of work with prayer for reinstatement NEGATES such allegation