D. Wage Prohibitions

1. prohibition against interference in disposal of wages

ART. 112. Non-interference in disposal of wages. - No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person, or otherwise make use of any store or services of such employer or any other person.

Sec 9. DOLE shall check: payroll other financial records to determine whether workers are properly paid or granted benefits under law or wage order

Unionized companies: president or responsible officer of bargaining unit or of any interested union shall accompany

inspector

Non-unionized companies: inspection in the presence of a worker representing workers rep shall have right to inspect own findings to DOLE and testify if he cannot concur with findings

of labor inspector

2. Prohibition against wage deduction

ART. 113. Wage deduction. - No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except:

(a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

(b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and

(c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.

Sec 10. funds from: included in annual GA Compensation and Organizational Adjustment Fund Contingent Fund Other savings under RA 6688 (general appropriations acts of 1989) From any unappropriated funds of National Treasury

Apodaca vs NLRC, 172 SCRA 442Facts: Petitioner was persuaded to subscribe to 1500 shares of corporation’s stocks. He paid 37,500 out of 150,000 but on January 2, 1986, he resigned.

Instituted complaint for payment of unpaid wages, COLA, etc. Company acknowledged unpaid wages but said that this has been applied to petitioner’s unpaid balance.

Issue 1: WON NLRC has jurisdiction over caseHeld: NORatio:

intracorporate dispute between stockholder and corporation as in the matter of unpaid subscriptions

Issue: WON such type of wage deduction is validHeld: NORatio:

no notice or call for payment of unpaid subscriptions so premature

Article 113 allows wage deductions only in 3 instances.

(a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

(b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and

(c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.

3. Prohibition against requirement to make deposits for loss or damage

ART. 114. Deposits for loss or damage. - No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer,

except when the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations.

ART. 115. Limitations. - No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made unless the employee has been heard thereon, and his responsibility has been clearly shown.

Sec 11. National Wages Council under EO 614 abolished National Productivity Commission under EO 615 abolished

stuff transferred to Commission

personnel: continue to function in a holdover capacity and shall be preferentially considered for appointments to or placement in Commission

employee separated from service: separation pay and retirement pay and other benefits

• also preferred

Dentech manufacturing vs NLRCFacts:Respondents used to work as welders, upholsterers, and painters of company. They were dismissed: allegedly coz of union activities (Confederation of Citizens Labor Union)

Wanted to get refund of cash bond filed but company said that these have been given to a certain carinderia to pay for the outstanding accounts of private respondents.

Issue: WON such requirement of cash bond is validHeld: NoRatio:

company failed to show that it is authorized by law to require workers to file cash bond refund!!

Five J Taxi vs NLRCFacts:Maldigan: working with Mine of GoldSabsalon: working with Bulaklak Company

abandoned cab in Makati without fuel refill worth 300 refused to work

wanted reimbursement of daily cash deposit:20- car washing15- for any deficiency in their boundary for every actual day

Issue: WON such deposits may be reimbursedHeld: Yes to 15, no to 20Ratio:

1. to defray deficiency in boundary is not contemplated by 114(loss or damage to tools, materials, equipment)

2. when they stopped working, alleged purpose for deposits no longer existed20 pesos:

1. not entitled to refund2. nothing could prevent them from washing cars themselves

4. Prohibition against withholding of wages

ART. 116. Withholding of wages and kickbacks prohibited. - It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent.

5. Prohibition against deduction to ensure employment

ART. 117. Deduction to ensure employment. - It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment.

6. Prohibition against retaliatory measures

ART. 118. Retaliatory measures. - It shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings.

7. Prohibition against false reporting

ART. 119. False reporting. - It shall be unlawful for any person to make any statement, report, or record filed or kept pursuant to the provisions of this Code knowing such statement, report or record to be false in any material respect.

8. Prohibiting against keeping of employee’s records in a place other than the workplace

(rule 10) SECTION 11. Place of records. — All employment records of the employees shall be kept and maintained by the employer in or about the premises of the work place. The premises of a work-place shall be understood to mean the main or branch office of the establishment, if any, depending upon where the employees are regularly assigned. The keeping of the employee's records in another place is prohibited.

South Motorists vs Tosoc, 181 SCRA 386

9. prohibition against garnishment/execution

Art. 1708. The laborer's wages shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance

Gaa vs CA, 140 SCRA 304Facts: Gaa was building admin of Trinity Building.

• acts that Europhil Industries considered as trespass upon its rights: cutting off its electricity, removing its name from building directory, gate passes

writ of garnishment of Gaa’s salary, commission, and/or remuneration.

Issue: Won such writ of garnishment may be executedHeld: YesRatio:

1. managerial or supervisory employee: for planning, directing, controlling and coordinating the activities of all housekeeping personnel

2. not a laborer: manual and physical labor3. wages vs salary: wages 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

E. WORKER PREFERENCE IN THE EVENT OF BANKRUPTCY

ART. 110. Worker preference in case of bankruptcy. - In the event of bankruptcy or liquidation of an employer’s business,

his workers shall enjoy first preference as regards their wages and other monetary claims, any

provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be

paid in full before claims of the government and other creditors may be paid. (As amended by

Section 1, Republic Act No. 6715, March 21, 1989).

Art. 1707. The laborer's wages shall be a lien on the goods manufactured or the work done.

Art. 2241. With reference to specific movable property of the debtor, the following claims or liens shall be preferred: (1) Duties, taxes and fees due thereon to the State or any subdivision thereof; (2) Claims arising from misappropriation, breach of trust, or malfeasance by public officials committed in the performance of their duties, on the movables, money or securities obtained by them; (3) Claims for the unpaid price of movables sold, on said movables, so long as they are in the possession of the debtor, up to the value of the same; and if the movable has been resold by the debtor and the price is still unpaid, the lien may be enforced on the price; this right is not lost by the immobilization of the thing by destination, provided it has not lost its form, substance and identity; neither is the right lost by the sale of the thing together with other property for a lump sum, when the price thereof can be determined proportionally; (4) Credits guaranteed with a pledge so long as the things pledged are in the hands of the creditor, or those guaranteed by a chattel mortgage, upon the things pledged or mortgaged, up to the value thereof; (5) Credits for the making, repair, safekeeping or preservation of personal property, on the movable thus made, repaired, kept or possessed; (6) Claims for laborers' wages, on the goods manufactured or the work done; (7) For expenses of salvage, upon the goods salvaged; (8) Credits between the landlord and the tenant, arising from the contract of tenancy on shares, on the share of each in the fruits or harvest; (9) Credits for transportation, upon the goods carried, for the price of the contract and incidental expenses, until their delivery and for thirty days thereafter; (10) Credits for lodging and supplies usually furnished to travelers by hotel keepers, on the movables belonging to the guest as long as such movables are in the hotel, but not for money loaned to the guests; (11) Credits for seeds and expenses for cultivation and harvest advanced to the debtor, upon the fruits harvested; (12) Credits for rent for one year, upon the personal property of the lessee existing on the immovable leased and on the fruits of the same, but not on money or instruments of credit; (13) Claims in favor of the depositor if the depositary has wrongfully sold the thing deposited, upon the price of the sale. In the foregoing cases, if the movables to which the lien or preference attaches have been wrongfully taken, the creditor may demand them from any possessor, within thirty days from the unlawful seizure. (1922a)

Art. 2242. With reference to specific immovable property and real rights of the debtor, the following claims, mortgages and liens shall be preferred, and shall constitute an encumbrance on the immovable or real right: (1) Taxes due upon the land or building; (2) For the unpaid price of real property sold, upon the immovable sold; (3) Claims of laborers, masons, mechanics and other workmen, as well as of architects, engineers and contractors, engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals or other works; (4) Claims of furnishers of materials used in the construction, reconstruction, or repair of buildings, canals or other works, upon said buildings, canals or other works; (5) Mortgage credits recorded in the Registry of Property, upon the real estate mortgaged; (6) Expenses for the preservation or improvement of real property when the law authorizes reimbursement, upon the immovable preserved or improved; (7) Credits annotated in the Registry of Property, in virtue of a judicial order, by attachments or executions, upon the property affected, and only as to later credits; (8) Claims of co-heirs for warranty in the partition of an immovable among them, upon the real property thus divided; (9) Claims of donors or real property for pecuniary charges or other conditions imposed upon the donee, upon the immovable donated; (10) Credits of insurers, upon the property insured, for the insurance premium for two years. (1923a)

Art. 2244. With reference to other property, real and personal, of the debtor, the following claims or credits shall be preferred in the order named: (1) Proper funeral expenses for the debtor, or children under his or her parental authority who have no property of their own, when approved by the court; (2) Credits for services rendered the insolvent by employees, laborers, or household helpers for one year preceding the commencement of the proceedings in insolvency; (3) Expenses during the last illness of the debtor or of his or her spouse and children under his or her parental authority, if they have no property of their own; (4) Compensation due the laborers or their dependents under laws providing for indemnity for damages in cases of labor accident, or illness resulting from the nature of the employment; (5) Credits and advancements made to the debtor for support of himself or herself, and family, during the last year preceding the insolvency; (6) Support during the insolvency proceedings, and for three months thereafter; (7) Fines and civil indemnification arising from a criminal offense; (8) Legal expenses, and expenses incurred in the administration of the insolvent's estate for the common interest of the creditors, when properly authorized and approved by the court; (9) Taxes and assessments due the national government, other than those mentioned in Articles 2241, No. 1, and 2242, No. 1; (10) Taxes and assessments due any province, other than those referred to in Articles 2241, No. 1, and 2242, No. 1; (11) Taxes and assessments due any city or municipality, other than those indicated in Articles 2241, No. 1, and 2242, No. 1; (12) Damages for death or personal injuries caused by a quasi-delict; (13) Gifts due to public and private institutions of charity or beneficence; (14) Credits which, without special privilege, appear in (a) a public instrument; or (b) in a final judgment, if they have been the subject of litigation. These credits shall have preference among themselves in the order of priority of the dates of the instruments and of the judgments, respectively. (1924a)

Phil Export vs CA, 251 SCRA 354Republic vs Peralta, 150 SCRA 37

F. WAGE RECOVERY/JURISDICTION

ART. 128. Visitorial and enforcement power. - (a) The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto.

(b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (As amended by Republic Act No. 7730, June 2, 1994).

An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994).

(c) The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation. (d) It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. (e) Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. (f) The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code.

ART. 129. Recovery of wages, simple money claims and other benefits. - Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be paid on order of, the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers.

Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules. The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code. (As amended by Section 2, Republic Act No. 6715, March 21, 1989).

ART. 217. Jurisdiction of the Labor Arbiters and the Commission. - (a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:

1. Unfair labor practice cases; 2. Termination disputes;

3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.

(b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. (c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989).

ART. 111. Attorney’s fees. - (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered.

(b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered.

Guico vs Sec of Labor, 298 SCRA 667 (98)Servando’s Inc. vs Sec of Labor, 184 SCRA 664 (90)

6. 13th Month Pay- PD 851

Cases:Archilles Manufacturing Corp vs NLRC, 224 SCRA 750 (95)Songco vs NLRC, 183 SCRA 610 (90)Boie Takeda vs de la Serna, 228 SCRA 329 (93)Phil Duplicators Inc. vs NLRC, 241 SCRA 380 (95)Iran vs NLRC, 289 SCRA 433 (98)Framanlis Farms, Inc vs MOLE, 171 SCRA 87 (89)

7. Bonus

a. nature

Phil Duplicators

b. Definition; When demandable

Luzon Stevedoring Corporation vs CIR, 15 SCRA 660 (65)Business Information Systems and Services Inc. vs NLRC, 221 SCRA 9 (93)Marcos vs NLRC, 248 SCRA 146 (95)Manila Banking Corp vs NLRC, 279 SCRA 602 (97)

C. Househelpers/ Caregivers

1. CoverageART. 141. Coverage. - This Chapter shall apply to all persons rendering services in households for compensation.

"Domestic or household service" shall mean service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers

Apex Mining Co. vs NLRC, 196 SCRA 251Candido performed laundry services at the staff house of company. Began as piece rate worker then later was paid on monthly basis.

On Dec. 18, 1987, while she was hanging laundry, she fell on her back. She immediately reported incident to dela Rosa, her immediate supervisor who offered her 2thou then 5thou for her to quit her job. She refused and preferred to return to work but petitioner did not allow her to work and she was dismissed.

Petitioner claims that Candido should be treated as a mere househelper or domestic servant and not as a regular employee.

Issue: WON Candida was a householderHeld: NoRatio: 1. (b) The term "househelper" as used herein is synonymous to the term "domestic servant" and shall refer to any person, whether male or female, who renders services in and about the employer's home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family.

2. criteria: personal comfort and enjoyment of the family of the employer in the home of said employer

separation pay granted. Reinstatement no longer possible.

2. Non-Household Work

ART. 145. Assignment to non-household work. - No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein.

3. Conditions of Employment

ART. 142. Contract of domestic service. - The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties.

ART. 143. Minimum wage. - (a) Househelpers shall be paid the following minimum wage rates: (1) Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities;

(2) Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and

(3) Five hundred fifty pesos (P550.00) a month for those in other municipalities. Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. (As amended by Republic Act No. 7655, August 19, 1993).

ART. 144. Minimum cash wage. - The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance. ART. 145. Assignment to non-household work. - No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein.

ART. 146. Opportunity for education. - If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper’s compensation, unless there is a stipulation to the contrary.

ART. 147. Treatment of househelpers. - The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper.

ART. 148. Board, lodging, and medical attendance. - The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance.

ART. 149. Indemnity for unjust termination of services. - If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity.

If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days.

ART. 150. Service of termination notice. - If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service.

ART. 151. Employment certification. - Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.

ART. 152. Employment record. - The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer.

Civil Code ProvisionsArt. 1689. Household service shall always be reasonably compensated. Any stipulation that household service is without compensation shall be void. Such compensation shall be in addition to the house helper's lodging, food, and medical attendance.

Art. 1690. The head of the family shall furnish, free of charge, to the house helper, suitable and sanitary quarters as well as adequate food and medical attendance.

Art. 1691. If the house helper is under the age of eighteen years, the head of the family shall give an opportunity to the house helper for at least elementary education. The cost of such education shall be a part of the house helper's compensation, unless there is a stipulation to the contrary.

Art. 1692. No contract for household service shall last for more than two years. However, such contract may be renewed from year to year.

Art. 1693. The house helper's clothes shall be subject to stipulation. However, any contract for household service shall be void if thereby the house helper cannot afford to acquire suitable clothing.

Art. 1694. The head of the family shall treat the house helper in a just and humane manner. In no case shall physical violence be used upon the house helper.

Art. 1695. House helper shall not be required to work more than ten hours a day.

Every house helper shall be allowed four days' vacation each month, with pay.

Art. 1696. In case of death of the house helper, the head of the family shall bear the funeral expenses if the house helper has no relatives in the place where the head of the family lives, with sufficient means therefor.

Art. 1697. If the period for household service is fixed neither the head of the family nor the house helper may terminate the contract before the expiration of the term, except for a just cause. If the house helper is unjustly dismissed, he shall be paid the compensation already earned plus that for fifteen days by way of indemnity. If the house helper leaves without justifiable reason, he shall forfeit any salary due him and unpaid, for not exceeding fifteen days.

Art. 1698. If the duration of the household service is not determined either by stipulation or by the nature of the service, the head of the family or the house helper may give notice to put an end to the service relation, according to the following rules: (1) If the compensation is paid by the day, notice may be given on any day that the service shall end at the close of the following day; (2) If the compensation is paid by the week, notice may be given, at the latest on the first business day of the week, that the service shall be terminated at the end of the seventh day from the beginning of the week; (3) If the compensation is paid by the month, notice may be given, at the latest, on the fifth day of the month, that the service shall cease at the end of the month.Art. 1699. Upon the extinguishment of the service relation, the house helper may demand from the head of the family a written statement on the nature and duration of the service and the efficiency and conduct of the house helper.

D. Homeworkers

1. Coverage and Regulation

ART. 153. Regulation of industrial homeworkers. - The employment of industrial homeworkers and field personnel shall be regulated by the government through the appropriate regulations issued by the

Secretary of Labor and Employment to ensure the general welfare and protection of homeworkers and field personnel and the industries employing them.

ART. 154. Regulations of Secretary of Labor. - The regulations or orders to be issued pursuant to this Chapter shall be designed to assure the minimum terms and conditions of employment applicable to the industrial homeworkers or field personnel involved.

ART. 155. Distribution of homework. - For purposes of this Chapter, the "employer" of homeworkers includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, sub-contractor or any other person:

(1) Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or

(2) Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person.

Department Order No. 5, DOLE, February 4, 1992

SECTION 1. General statement on coverage. — This Rule shall apply to any person who performs industrial homework for an employer, contractor or sub-contractor.

2. Definition- Sec 2, DO NO 5SECTION 2. Definitions. — As used in this Rule, the following terms shall have the meanings indicated hereunder:(a) "Industrial Homework" is a system of production under which work for an employer or contractor is carried out by a homework at his/her home. Materials may or may not be furnished by the employer or contractor. cdphilIt differs from regular factory production principally in that, it is a decentralized form of production where there is ordinarily very little supervision or regulation of methods of work.

(b) "Industrial Homeworker" means a worker who is engaged in industrial homework.

(c) "Home" means any room, house, apartment or other premises used regularly, in whole or in part, as dwelling place, except those situated within the premises or compound of an employer, contractor or subcontractor and the work performed therein is under the active or personal supervision by or for the latter.

(d) "Employer" means any natural or artificial person who, for his own account or benefit, or on behalf of any person residing outside the Philippines, directly or indirectly, or through any employee, agent, contractor, subcontractor, or any other person:

(1) delivers or causes to be delivered any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his direction; or

(2) sells any goods, articles or materials for the purpose of having such goods or articles processed in or about a home and then repurchases them himself or through another after such processing.

(e) "Contractor" or "subcontractor" means any person who, for the account or benefit of an employer, delivers or causes to be delivered to a homeworker goods or articles to be processed in or about his home and thereafter to be returned, disposed of or distributed in accordance with the direction of the employer.

(f) "Processing" means manufacturing, fabricating, finishing, repairing, altering, packing, wrapping or handling in any way connected with the production or preparation of an article or material.

(g) "Cooperative" is an association registered under the Cooperative Code of the Philippines.

(h) "Department" means the Department of Labor and Employment.

3. registration- Sec 4 and 5

SECTION 4. Registration of Homeworkers' Organization. — Any applicant homeworker organization or association shall acquire legal personality, and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements:

(a) Fifty-five Pesos (P55.00) registration fee;

(b) The names of its officers, their addresses, the principal address of the homeworkers organization, the minutes of the organizational meetings and the list of workers who participated in such meetings;

(c) The names of all its members comprising at least 20 percent of all the workers in the bargaining unit where it seeks to operate, if applicable;

(d) If the applicant has been in existence for one or more years, copies of its annual financial reports; and

(e) Four copies of the constitution and by-laws of the applicant organization, the minutes of its adoption or ratification and the list of members who participated in it.

SECTION 5. Registration of Employer, Contractor and Subcontractor. — The Department shall, as soon as possible, conduct consultation meetings with government agencies requiring registration of employers and determine if the data being supplied by the registration forms of such agencies are the same as or similar those needed by the Department in the implementation of this regulations. If the registration forms of other agencies do not provide the data needed by DOLE, it shall inquire into the possibility of adopting a common registration form with other agencies that will provide the data needed by all the agencies concerned.

4. Conditions of Employment/ Deductions- Sec 7-9

SECTION 7. Standard rates. — At the initiative of the Department or upon petition of any interested party, the Secretary of Labor and Employment or his authorized representative shall establish the standard output rate or standard minimum rate in appropriate orders for the particular work or processing to be performed by the homeworkers.The standard output rates or piece rates shall be determined through any of the following procedures:

(a) time and motion studies;(b) an individual/collective agreement between the employer and its workers as approved by the Secretary or his authorized representative;

(c) consultation with representatives of employers and workers organizations in a tripartite conference called by the Secretary.

The time and motion studies shall be undertaken by the Regional Office having jurisdiction over the location of the premise/s used regularly by the homeworker/s. However, where the job operation or activity is being likewise performed by regular factory workers at the factory or premises if the employer, the time and motion studies shall be conducted by the Regional Office having jurisdiction over the location of the main undertaking or business of the employer. Piece rates established through time and motion studies conducted at the factory or main undertaking of the employer shall be applicable to the homeworkers performing the same job activity. The standard piece rate shall be issued by the Regional Office within one month after a request has been made at said office.

Upon request of the Regional Office, the Bureau of Working Conditions shall provide assistance in the conduct of such studies.

Non-compliance with the established standard rates can be the subject of complaint which shall be filed at the Regional Office.

SECTION 8. Deductions. — No employer, contractor, or subcontractor shall make any deduction from the homeworker's earnings for the value of materials which have been lost, destroyed, soiled or otherwise damaged unless the following conditions are met:(a) the homeworker concerned is clearly shown to be responsible for the loss or damage;

(b) the homeworker is given reasonable opportunity to show cause why deductions should not be made;

(c) the amount of such deduction is fair and reasonable and shall not exceed the actual loss or damage; and

(d) the deduction is made at such rate that the amount deducted does not exceed 20% of the homeworker's earnings in a week.

SECTION 9. Conditions for payment of work.

(a) The employer may require the homeworker to redo the work which has been improperly executed without having to pay the stipulated rate again.

(b) An employer, contractor, or subcontractor need not pay the homeworker for any work which has been done on goods and articles which have been returned for reasons attributable to the fault of the homeworker.

5. Prohibitions

SECTION 13. Prohibitions for homework. — No homework shall be

performed on the following: (1) explosives, fireworks and articles of like

character; (2) drugs and poisons; and (3) other articles, the processing of which

requires exposure to toxic substances.

9. Medical, Dental and Occupational safety

a. First Aid TreatmentART. 156. First-aid treatment. - Every employer shall keep in his establishment such first-aid medicines and equipment as the nature and conditions of work may require, in accordance with such regulations as the Department of Labor and Employment shall prescribe.

The employer shall take steps for the training of a sufficient number of employees in first-aid treatment.

b. Emergency Medical and Dental Services1. When requiredART. 157. Emergency medical and dental services. - It shall be the duty of every employer to furnish his employees in any locality with free medical and dental attendance and facilities consisting of:

(a) The services of a full-time registered nurse when the number of employees exceeds fifty (50) but not more than two hundred (200) except when the employer does not maintain hazardous workplaces, in which case, the services of a graduate first-aider shall be provided for the protection of workers, where no registered nurse is available. The Secretary of Labor and Employment shall provide by appropriate regulations, the services that shall be required where the number of employees does not exceed fifty (50) and shall determine by appropriate order, hazardous workplaces for purposes of this Article;

(b) The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic, when the number of employees exceeds two hundred (200) but not more than three hundred (300); and

(c) The services of a full-time physician, dentist and a full-time registered nurse as well as a dental clinic and an infirmary or emergency hospital with one bed capacity for every one hundred (100) employees when the number of employees exceeds three hundred (300).

In cases of hazardous workplaces, no employer shall engage the services of a physician or a dentist who cannot stay in the premises of the establishment for at least two (2) hours, in the case of those engaged on part-time basis, and not less than eight (8) hours, in the case of those employed on full-time basis. Where the undertaking is non-hazardous in nature, the physician and dentist may be engaged on retainer basis, subject to such regulations as the Secretary of Labor and Employment may prescribe to insure immediate availability of medical and dental treatment and attendance in case of emergency. (As amended by Presidential Decree NO. 570-A, Section 26).

2. When not required

ART. 158. When emergency hospital not required. - The requirement for an emergency hospital or dental clinic shall not be applicable in case there is a hospital or dental clinic which is accessible from the employer’s establishment and he makes arrangement for the reservation therein of the necessary beds and dental facilities for the use of his employees.

c. Employer Assistance- Obligation

ART. 161. Assistance of employer. - It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case of emergency.

d. Occupational Safety and health standards training of supervisors/technicians

Book 3, Rule 2

SECTION 5. Training of personnel in safety and health. — Every employer shall take steps to train a sufficient number of his supervisors or technical personnel in occupational safety and health. An employer may observe the following guidelines in the training of his personnel:

(a) In every non-hazardous establishment or workplace having from fifty (50) to four hundred (400) workers each shift, at least one of the supervisors or technical personnel shall be trained in occupational health and safety and shall be assigned as part-time safety man. Such safety man shall be the secretary of the safety committee.

(b) In every non-hazardous establishment or workplace having over four hundred (400) workers per shift, at least two of its supervisors shall be trained and a full-time safety man shall be provided.

(c) In every hazardous establishment or workplace having from twenty (20) to two hundred (200) workers each shift, at least one of it supervisors or technical man shall be trained who shall work as part-time safety man. He shall be appointed as secretary of the safety committee therein.

(d) In every hazardous establishment or workplace having over two hundred (200) workers each shift, at least two of its supervisors or technical personnel shall be trained and one of them shall be appointed full-time safety man and secretary of the safety committee therein.

(e) The employment of a full-time safety man not be required where the employer enters into a written contract with a qualified consulting organization which shall develop and carry out his safety and health activities; Provided, That the consultant shall conduct plant visits at least four (4) hours a week and is subject to call anytime to conduct accident investigations and is available during scheduled inspections or surveys by the Secretary of Labor and Employment or his authorized representatives. The provisions of this Section shall be made mandatory upon orders of the Secretary of Labor and Employment as soon as he is satisfied that adequate facilities on training in occupational safety and health are available in the Department of Labor and Employment and other public or private entities duly accredited by the Secretary of Labor and Employment.

III. Employee ClassificationReference: Book 6, Rule 1

SECTION 5. Regular and casual employment. — (a) The provisions of written agreements to the contrary notwithstanding and regardless of the oral agreements of the parties, an employment shall be considered

to be regular employment for purposes of Book VI of the Labor Code where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

(b) Employment shall be deemed as casual in nature if it is not covered by the preceding paragraph; Provided, That any employee who has rendered at least one year of service, whether such service is continuous or not, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

(c) An employee who is allowed to work after a probationary period shall be considered a regular employee.

SECTION 6. Probationary employment. — (a) Where the work for which an employee has been engaged is learnable or apprenticeable in accordance with the standards prescribed by the Department of Labor, the probationary employment period of the employee shall be limited to the authorized learnership or apprenticeship period, whichever is applicable.

(b) Where the work is neither learnable nor apprenticeable, the probationary employment period shall not exceed six (6) months reckoned from the date the employee actually started working.

(c) The services of an employee who has been engaged on probationary basis may be terminated only for a just cause or when authorized by existing laws, or when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.

(d) In all cases involving employees engaged on probationary basis, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement.

1. coverage

ART. 278. Coverage. - The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not.

2. employee classification

ART. 280. Regular and casual employment. - The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

ART. 281. Probationary employment. - Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he 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. An employee who is allowed to work after a probationary period shall be considered a regular employee.

a. employer recognition

Romares vs NLRC, 1998Facts:Petitioner worked as a mason for PILMICO, a company engaged in the production of flour, yeast, feeds amd other flour products.

Was rehired after service of more than a year and assigned to the Maintenance/projects/Engineering department where he performed: painting, cleaning and operating machines, assisting other employees in their maintenance works.

On January 15, 1993, his services was terminated and company said it was due to expiration of contract as temporary worker.

Issue: WON petitioner is a regular workerHeld: YesRatio:

1. If an employee performs work which is usually necessary or desirable in the usual business or trade of the employer, then he is a regular employee.

2. Continuing need for the services of petitioner is sufficient evidence of the necessity and indispensability of his services.

3. T uphold otherwise: permit employer to avoid hiring permanent or regular employees by simply hiring them on a temporary or casual basis, thereby violating the employee’s security of tenure in their jobs.

Brent School vs Zamora:1. where from the circumstances it is apparent that the periods have been imposed to preclude

acquisition of tenurial security by the employee, they should be struck down or disregarded as contrary to public policy and morals.

2. Term employment is valid in relation to security of tenure if:a. the fixed period of employment was knowingly and voluntarily agreed upon by the parties

without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstance vitiating his consent or

b. it satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter.

Villa vs. NLRC, 98Facts:In line with its billet steel making project, NSC aimed to use 100% scrap as its raw materials and thus engaged in shipbreaking operations.

When project was completely phased out due to scarcity of vessels/ships for salvaging, the laborers hired as project employees for said project were terminated.

Company: laborers were project employees

Issue: WON workers contracted as project employees may be considered as regular employees on account of their performance of duties inherent in the business of the employerHeld: NORatio:

1. The fact that they performed other activities which were necessary or desirable in the usual business of the NSC and that the duration of their employment exceeded 1 year, does not make them regular employees.

2. Length of service is not the controlling determinant of the employment tenure of a project employee.

3. 280 providing that an employee who has served for at least 1 year, shall be considered a regular employee, relates only to casual employees and not to project employees.

4. Project employment contracts are valid: employer’s interest propels economic activity

b. employer determination/designation

Philippine Federation vs NLRC, 1998

Facts:In Sept., 1982, Victoria Abril was employed by PFCCI, a corp. engaged in organizing services to credit & cooperative entities, as Junior Auditor/Field Examiner and therefore held different positions e.g. as office secretary & cashier until April 1988.Abril went on maternity leave & returned only in Nov. 1989 where she found out that Santos had been permanently appointed to her position.She then accepted the position of Regional Field Officer which, as stated in the contract, shall be probationary for a period of 6 mos.Period elapsed & Abril was allowed to work until PFCCI presented to her another employment contract for a period of 1 year (Jan 1991-Dec 1991).

After which period, her employment was terminated. She filed a complaint for illegal dismissal but LA dismissed the same for lack of merit.NLRC reversed & directed PFCCI to reinstate Abril to position of Regional Field Officer.PFCCI appealed.

ISSUE: WON there was indeed illegal dismissal of Abril

Held: Yes

Ratio:Contention of PFCCI that Abril is a casual or contractual employee is misplaced.

-While the initial statements of the contract show that Abril was hired for a fixed period, the next provisions thereof contradicted the same when it provided that respondent shall be under probationary status from Feb 1990 – 6 mos thereafter.- Also, while PFCCI fixed the period of employment for 1 year, it likewise insisted that Abril was employed to perform work related to a project funded by the World Council of Credit Unions & hence her status is a project employee.- In this case, the terms of the contract are so ambiguous as to preclude a precise application of the pertinent labor laws. In Villanueva vs. NLRC, SC ruled that where a contract of employment, being a contract of adhesion, is ambiguous, any ambiguity therein should be construed strictly against the party who prepared it.

NLRC found that Abril became a regular employee entitled to security of tenure guaranteed under the Consti & labor laws.

- It is uncontroverted that Abril, having completed the probationary period & allowed to work thereafter, became a regular employee who may be dismissed only for just or authorized causes under Arts. 282, 283, & 284 of the Labor Code. Therefore, the dismissal, premised on the allegation of the expiration of the contract, is illegal & entitles respondent to the reliefs prayed for.

Petition dismissed.

De Leon vs NLRC, 89Facts:

De Leon was employed by La Tondeña, Inc. on Dec. 11, 1981 at the Maintenance Section of its Engineering Department in Tondo, Manila where his work consisted mainly of painting & other odd jobs related to maintenance. He was paid on a daily basis through petty cash vouchers.After more than 1 year of service, De Leon requested to be included in the payroll of regular workers. Company’s response was to dismiss him from his employment.De Leon demanded reinstatement but company refused repeatedly.De Leon filed a complaint for illegal dismissal, reinstatement & payment of backwages to the Office of the LA.Weeks after, he was rehired by the company through a labor agency & was returned to his post in the Maintenance Section & made to perform the same activities.LA found for De Leon & declared the dismissal as illegal. He ruled that De Leon was not a mere casual employee as asserted by private respondent but a regular employee.On appeal, NLRC reversed the decision of the LA. Motion for recon was denied. Hence, this appeal.

ISSUE: WON De Leon was mere casual employee

Held: NO, reversal of the decision was erroneous

Ratio:Under Art. 281 of the LC, the primary standard of determining a regular employment is the reasonable connection bet. the particular activity performed by the employee in relation to the usual business or trade of the employer. Also, if the employee has been performing the job for at least 1 year, even if the performance is not continuous or merely intermittent, the law deems the repeated & continuing need for its performance as sufficient evidence for the necessity if not indispensability of that activity to the business.In this case, the records reveal that De Leon’s tasks assigned to him included not only the painting of building as claimed by the respondent but also cleaning & oiling machines, even operating a drilling machine & other odd jobs.

- A regular employee, Tanque, attested in his affidavit that De Leon worked w/ him as maintenance man when there was no painting job.- In its comment, company confirmed the veracity of De Leon’s claim when it admitted that he was occasionally instructed to do other odd things in connection w/ the maintenance while he was waiting for materials he would need in his job or when he had finished early the one assigned to him

The law demands that the nature & entirety of the activities performed by the employee be considered.Furthermore, the petitioner performed his work of painting & maintenance activities during his employment which lasted for more than 1 year, until early Jan., 1983 when he demanded to be regularized but was dismissed.The fact that he was rehired weeks after shows that it can not be denied that his activities as regular painter & maintenance man still exist.

What determines whether a certain employment is regular or casual is not the will & word of employer to which the desperate worker often accedes nor the procedure of hiring or manner of payment of salary. It is the nature of the activities performed in relation to the particular business or trade considering all circumstances, & in some cases the length of time of its performance & its continued existence. There was an obvious devious dismissal of De Leon to evade the obligations of petitioner to the worker.

Petition granted.

Violeta vs NLRC, ‘97Violeta & Baltazar were former employees of Dasmariñas Industrial & Steelworks Corp. (DISC). Violeta was hired by DISC as Erector II for Philphos project & was subsequently reassigned to the same position in the 5 Stand TCM Project W/ vacation & sick leaves & was designated as a regular project employee At DISC’s project for Nat’l Steel Corp. He was appointed for project employment as handyman for NSC project & afterwards for the NSC ETL #3 Civil Works by DISC. Due to the completion of the particular item of work, DISC terminated his services on March ’92.On the other hand, Baltazar was hired as Lead Carpenter for project Agua VII on Oct ’81. Like, Violeta, he was then transferred from one project to another as regular project employee. He was also hired as Leadman II in ETL #3 Civil Works but was separated from employment on Dec ’91 as a result of the completion of the said item of work.Petitioners filed a complaint for illegal dismissal claiming that they are regular employees who cannot be dismissed on the ground of completion of the project where they are engaged with a prayer for reinstatement & backwages.LA dismissed for lack of merit but ordered DISC to grant them separation pay. He concluded that petitioners are project employees based on their own admission.NLRC reversed, finding them to be non-project employees. However, the same division of NLRC reversed itself upon motion of DISC & set aside its earlier decision.

ISSUE: WON petitioners are project employeesHeld: No, they are regular employees

Ratio:Although there is no dispute that petitioners were hired for a specific project & the same is already completed, the records are barren of any definite period or duration for the expiration of the assigned items of work at the time of their engagement.

-An examination of the appointments reveals that the completion of the project for which the petitioners were hired was not determined at the start of their employment. In fact, the lines for “DATE OF COVERAGE” in the appointments are left blank.-While “co-terminus” was used, it still cannot be said that their employment is for a definite period because there are other words used in the same appointments affecting their entitlement to stay in the job. It is stated that the appointments of the petitioners were not co-terminus w/ NSC ETL #3 but with the “need” for such particular items of work as were assigned to them, as distinguished from the completion of the project.-W/ such ambiguous & obscure words & conditions, petitioner’s employment was not co-existent w/ the duration of their particular assignments bec. their employer could determine, at any stage, whether their services were needed or not.

Also, nowhere in the records is there any showing that DISC reported the completion of its projects & the dismissal of petitioners in its finished projects to the nearest Public Employment Office in compliance with Policy Instruction No.20 of then Labor Secretary Blas F. Ople.

- Its failure to submit reports of termination cannot be sufficiently convince us further that petitioners are truly regular employees.

The fact that petitioners had rendered more than 1 year of service (at least 10 years) overturns private respondents allegations that petitioners were hired for a specific or fixed undertaking for a limited period of time.

- Although there are gaps in the employment, Art. 280 contemplates both continuous & broken services. Also, there is absolutely no evidence their having applied for or accepted other outside employment during the brief interruption in the continuity of their work.

Petition Granted

A. Regular employees

280, 1st par.The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

280, 2nd paragraphAn employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

281, last sentenceAn employee who is allowed to work after a probationary period shall be considered a regular employee.

75(d) Learnership agreement(d) A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners.

The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative.

Book 6, Rule 1.Sec 5 a.The provisions of written agreements to the contrary notwithstanding and regardless of the oral agreements of the parties, an employment shall be considered to be regular employment for purposes of Book VI of the Labor Code where the employee has been engaged to perform activities which are usually

necessary or desirable in the usual business or trade of the employer except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

(b) Employment shall be deemed as casual in nature if it is not covered by the preceding paragraph; Provided, That any employee who has rendered at least one year of service, whether such service is continuous or not, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

SECTION 6. Probationary employment. — (a) Where the work for which an employee has been engaged is learnable or apprenticeable in accordance with the standards prescribed by the Department of Labor, the probationary employment period of the employee shall be limited to the authorized learnership or apprenticeship period, whichever is applicable. (b) Where the work is neither learnable nor apprenticeable, the probationary employment period shall not exceed six (6) months reckoned from the date the employee actually started working.

(c) The services of an employee who has been engaged on probationary basis may be terminated only for a just cause or when authorized by existing laws, or when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.

(d) In all cases involving employees engaged on probationary basis, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement.

1. nature of work

Ecal vs. NLRC, ‘91Facts:

Petitioners were employed by Hi-Line Timber, Inc starting from Feb-May ‘86. They were all receiving their salaries & were required to work 7days/week inc. rest days, holidays except Christmas & Good Friday. They were not giving living allowance, overtime & premium pay & on June ’87 they were not allowed to work & instead were informed that their services were no longer needed.Hi-Line, on the other hand, denied the existence of the employer-employee relationship bet. The company & the petitioners claiming that the latter are under the employ of an independent contractor.Hi-Line claimed that Ecal was an independent contractor as the latter chooses the workers and not Hi-Line. Also, they were not included in the payroll but a lump sum money was given to Ecal every 4 days. LA dismissed the complaint for illegal dismissal & ruled that there was no employer-employee relationship bet. the parties.On appeal, NLRC affirmed the decision.

ISSUE:WON employer-employee relat’nship exists bet. the parties

Held: Yes

Ratio:An observation suggests that there is a certain relationship existing between the parties although a clear-cut characterization of such relationship is unavailing.Adopting the theory of the Sol Gen & the respondent, Ecal could not be an independent contractor under Art 106 par 1 &2 of the LC but a labor-only contractor under Sec. 9, Rule 8, Book 3 of the Omnibus Rules of the LC. Ecal was only a poor laborer at the time of his resignation on Feb ’87 who cannot even afford to have his daughter treated for malnutrition. He was only a laborer at the kiln drying section for the company & could not have the substantial capital or investment that is required of a job contractor.A finding that Ecal is a ‘ contractor labor-only’ is equivalent to a finding that an employer-employee relationship exists bet. the company & Ecal including the latter’s contract workers (petitioners), the relationship being provided by the law itself.(Sec.9 (b) of the Omnibus Rules)Court frowns upon the company policy of limiting the undertaking to 4 days presumably to make termination of the services of the petitioners easier & to prevent them from attaining permanent status. Hi-Line had no doubt took advantage of these laborers in order to escape the liability for benefits & privileges accruing to one holding a regular employment.

Decision reversed & set aside.

Datu vs NLRC, ‘96Facts:

Melanio & Florendo were hired by Datu & Co. as plumbers in June ’79.On July ’91, company through Salera issued a memorandum which took note of the fact that petitioners were not working and in connection with this, project in-charge was instructed to make petitioners report to the office to settle their salaries as Salera would not like to see them in the project anymore lest they stay in the worker’s quarters. Salera also deemed them absent & canceled their name in the daily time record.In defense, petitioners allege that their non-working was made in protest of the undue delay in the payment of their salaries. They also construed the memorandum as a termination order. They then filed w/ DOLE a complaint for illegal dismissal & non-payment of salaries.LA ruled in favor of petitioners and upon appeal by Datu & Co., NLRC affirmed the decision & added the grant of backwages in addition to separation pay.

ISSUE: WON petitioners were in fact terminated

Held: Yes

Ratio:Contrary to company’s claim that the 2 were merely being transferred to another project, they were in fact terminated as there was a need to settle their salaries. If it were so, petitioner should have required the workers to explain why they did not work full time rather than issue the questioned memorandum. Also, the statement, “I would not like to see them in this project anymore lest they stay in the worker’s quarters” could only lead to this conclusion since they were admittedly barred from reporting to their place of work by Datu’s security guards.Also, no word implying reassignment can be discerned in the said memorandum. Neither does it mention the project to which they shall be reassigned.

ISSUE #2: WON private respondents were project employees

Held: NO

Ratio:It cannot be denied that they had been performing activities which were necessary or desirable in the construction business of petitioner. Respondents were hired as plumbers for more than a decade by petitioner. There was no evidence that respondent’s employment was fixed for only a specific project. In fact, they were assigned from 1 project to another for a period of 12 years w/o any appreciable gap between the last project & the succeeding one.

-This fact argues persuasively for the existence of a work pool in the petitioner’s establishment from which the company drew its project employees among whom were the respondents.- it is also obvious that they were not hired in connection w/ a particular project because if this were so, the completion of the project would necessarily have the effect of terminating their services automatically.

On the issue of backwages, although respondents failed to claim them in their complaint, this is only a procedural lapse which cannot defeat a right which is granted to them under a substantive law as such they are still entitled to receive backwages including their separation pay in lieu of reinstatement.

Insular Life vs NLRC, ‘98Insular and Pantaleon de los Reyes entered into an agency contract authorizing the latter to solicit applications for life insurance and annuities for which he would be paid compensation in the form of commission. Contract stipulated that there would be no EE relationship between them.

Later, they entered into another contract where Reyes was appointed as Acting Unit manager under its office_CEBU DSO V.

recruitment, training, organization and development of underwriterssupervise the works of these underwriterscontract: acting unit manager and the agents of his unit to the company shall be that of independent contractor.

De los Reyes worked concurrently as agent and acting unit manager until he was notified that his services were terminated.

Issue: WON he was a regular employeeHeld: yesRatio:

1. EE relationship insofar as his role as acting unit manager despite contract stipulation that he was independent contractor: employment status of person is defined and prescribed by law and not by what the parties say it shud be.

2. manifestations of EE relationship:exclusivity of servicecontrol of assignmentscollection of premiumsfurnishing of company facilities and materials as well as capital described as Unit development Fund

E. Ganzon Inc vs NLRC, 199922 employees of E. Ganzon Inc, a company engaged in the construction business (manufactures own building materials), filed a complaint against company for illegal deduction, nonpayment of overtime pay, legal holiday pay, premium pay, SILP, vacation/sick leave pay, and 13th month pay.

After that, when they reported on Jan 25, 1991, the security guard informed them: Hindi na kayo puedeng pumasok/magtrabaho dito, ‘yan ang order galling sa itaas.’

Company’s defense: they were all contractual, project, temporary or casual employees.

Issue: Won they were regular employeesHeld: YesRatio:

1. respondents performed tasks usually necessary or desirable in the usual business or trade of company:

machinistmachinist operatorelectrical engineeraluminum installeretc

2. contracts: as project employees but were renewed every 3 months—successive contracts where they performed same kind of work makes it clear that they were performing necessary and desirable tasks.

3. also: if they were project employees, employer should have submitted report of termination to PUBLIC EMPLOYMENT OFFICE every time their employment was terminated due to completion of each construction project

2. extended periodTomas Lao Construction vs NLRC, ‘98Facts:Complainants were construction workers in different capacities for the Lao group of Companies:

TLC: Tomas Lao CorporationT&J: Thomas and James DevelopersLVM: LVM Construction Corporation

- construction of public roads and bridges- each would allow the utilization of their employees by the other 2.

Soon after, TLC ceased operation so Andres Lao issued a memo requiring all workers to sign employment contract forms and clearances.

Workers refused to sign becoz contracts expressly described them as project employees whose employments were for a definite period i.e. upon the expiration of the contract period or the completion of the project for which the workers were hired.

Coz of refusal to comply with directives, their services were terminated.

Issue: WON they were regular employees.Held: YESRatio:

1. repeated rehiring and continuing need for their services over a long span of time (shortest, at 7 years) made them regular employees

2. employments became non-coterminous with specific projects when they started to be continuously rehired

3. also: failure of employer to file termination reports proves that the employees are not project employees

4. no will disobedience: absent ff requirement:a. employee’s conduct must have been willful or intentional, the willfulness being

characterized by a wrongful and perverse attitudeb. the order violated must have been reasonable, lawful, made known to the employee and

must pertain to the duties which he has been engaged to discharge

3. repeated Renewal of ContractBeta Electric Corp vs NLRC, ‘90Facts:Petitioner hired private respondent as clerk typist 3 on December 15, 1986 and was renewed 5 times til June 1, 1987.

On June 22, 1987, her services were terminated without notice or investigation and company claimed that she was hired on a temporary basis for purposes only of meeting the seasonal or peak demands of the business.

Issue: Won she was regular employeeHeld: yesRatio:

1. contract-to-contract arrangement was to prevent her from acquiring security of tenure 2. at the very least, she should be considered a probationary employee: tenure having exceeded 6

months, she attained regular employment

3. The fact that she had been employed purportedly for the simple purpose of unclogging the petitioner’s files does not make such undertaking specific from the standpoint of law because in the 1st place, it is usually necessary and desirable in he usual business or trade of employer.

5. Enforcement

66. Appeal to the Secretary of LaborThe decision of the authorized agency of the Department of Labor may be appealed by any

aggrieved person to the Secretary of Labor within 5 days from receipt of the decision which shall be final and executory.

67. Exhaustion of administrative remediesBefore a person may institute any action

for the enforcement of any apprenticeship agreement or damages for breach of any such agreement

See also: Child Abuse Law of 1992 as amended by RA 7658

Section 12. Employment of Children- Children below 15 years old shall not be employed except:

1. when a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed. PROVIDED, HOWEVER,

a. that his employment neither endangers his life, safety, health and morals, nor impairs his normal development

b. that the parent or legal guardian shall provide the minor child with the prescribed primary and/or secondary education.

2. when a child’s employment or participation in public and entertainment or information through cinema, theater, radio or television is essential. PROVIDED:

a. the employment contract is concluded by the child’s parents or guardian with the express agreement of the child concerned, if possible, and the approval of the DOLE

b. that the following requirements in all instances are strictly complied with:

employer shall ensure the protection, health, safety and morals of the child employer shall institute measures to prevent the child’s exploitation or discrimination taking into

account the system and level of remuneration and the duration and arrangement of working time employer shall formulate and implement, subject to the approval and supervision of competent

authorities, a continuing program for the training and skills acquisition of the child

Before child is employed, employer shall first secure a work permit from the DOLE, which shall ensure observance of the above requirements.

The DOLE shall promulgate rules and regulations necessary for the effective implementation of this section.

c. Disabled Persons (Handicapped Workers)

78. Definition- those whose earning capacity is impaired by age or physical or mental deficiency or injury.

79. When employable when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards

80. Employment agreementa. names and address of the workers to be employedb. rate to be paid which shall be not less than 75% of the applicable minimum wagec. duration of the employment periodd. work to be performed

The agreement shall be subject to inspection by the Secretary of Labor or his reps.

81. Eligibility of apprenticeship- may be hired as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the

particular occupations for which they are hired

1. Definition

Section 4.a. disabled persons- those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being

b. impairment- any loss, diminution or aberration of psychological, physiological or anatomical structure or function

c. disability- shall mean 1. physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual

2. a record of such an impairment or

3. being regarded as having such an impairment

d. handicap- refers to a disadvantage for a given individual resulting from an impairment or a disability that limits or prevents the function or activity, that is considered normal given the age and sex of the individual

2. Policy declaration

Section 2.

3. Coverage all disabled persons and to the extent herein provided departments offices and agencies of the National Government NGOs Involved in the attainment of the objectives of this Act.

4. Rights and Privileges

Section 5. Equal Opportunity for EmploymentNo disabled person shall be denied access to opportunities for suitable employment. A qualified

disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.

Bernardo vs NLRC & FEBTC, 310 SCRA 186 (99)Nature: Special Civil Action in the Supreme Court. CertiorariFacts:

43 deaf mutes were hired by Far East Bank and Trust Co as Money Sorters and Counters. Later, they were dismissed from their positions and bank reasoned that since they were not regular employees, their complaint for illegal dismissal does not have merit.

Issue: WON they could be considered regular employeesHeld: Yes, but only the 27 employees who worked for more than 6 months and whose contracts were renewed

Ratio: tasks were necessary and desirable to the business of respondent bank (test: de Leon vs NLRC) Test: (LT Datu vs NLRC: employee is regular because of the nature of work and the length of

service, not because of the mode or even the reason for hiring them) removed under Article 80 coz it was shown that they were qualified to perform the responsibilities

of their positions when bank renewed contract after lapse of 6-month probationary period, the employees became

regular employees• Brent School vs Zamora- NA coz they were qualified• Back wages and separation fee!

4. Conditions of Employment

A. HOURS OF WORK

1. Regulation; Rationale

Manila Terminal Co. Inc vs CIR, 91 Phil 625 (52)Nature: Petition for review by certiorari of a decision of the CIR

Facts: Some 30 watchmen were hired by the Manila Terminal Company Inc on 12-hour shifts. This was

pursuant to their assumption of arrastre service in some of the piers in Manila’s Port Area at the request and under the control of the US Army.

However, workers were not properly granted overtime pay as is required by sections 3 and 5 of CA 444 and the Eight-Hour Law.

Issue: WON agreement of the employees as to inadequate compensation constitutes a waiver to their right to overtime pay

Held: NO

Ratio: laborers cannot waive their right to extra compensation laborer is in a disadvantageous position as to be naturally reluctant in asserting any claim which

may cause the employer to devise a way for exercising his right to terminate the employment Rationale for regulation: to safeguard the health and welfare of the laborer To minimize unemployment by forcing employers, in cases where more than 8-hour operation is

necessary, to utilize different shifts of laborers or employees working only for 8 hours each.

2. Coverage

82. The provisions of this tile shall apply to employees in all establishments and undertakings whether for profit or not, but not to:

• government employees• managerial employees• field personnel• members of the family of the employer who are dependent on him for support• domestic helpers• persons in personal service of another and• workers who are paid by results as determined by the Secretary of Labor in appropriate

regulations.

Managerial employees- those whose primary duty consists of the management of the establishment in which they are employed or of a department of subdivision thereof, and to other officers or members of the managerial staff.

Field personnel- non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours or work in the field cannot be determined with reasonable certainty.

Exemptions:a. government employees

b. managerial employees

International Pharmaceuticals Inc. vs NLRC, 297 SCRA 440 (98)

Nature: Special Civil Action in the Supreme Court. Certiorari.

Facts: Virginia Camacho Quintia was hired as Medical Director of petitioner’s Research and Development

Department.Her contract provided for a term of 1 year, subject to renewal by mutual consent of the parties at

least 30 days before its expiration.Subsequently, after her contract expired, she remained in the employ of petitioner where she also

served as company physician.On July 10, 1986, she was replaced after she was dismissed. She allegedly led the rank and file

employees to demand for a full disclosure of the association’s status.She complains of illegal dismissal.

Defense of petitioner: expiration of contract

Issue: WON Quintia was a regular employeeHeld: YesRatio:

necessary and desirable to biz no mention in contract that she was hired for just a project or of any consultancy agreement

fact that she was not required to report at a fixed hour does not change her status as a regular employee

• managerial employees not covered by the Labor Code provisions on hours of work• while loss of confidence is a valid ground for the dismissal, even managerial employees

enjoy security of tenure and can only be dismissed after cause is shown in appropriate proceeding (Western Shipping Agency, Inc vs NLRC)

• 2 written notices: apprises of particular acts and 2: informs employee of their decision to dismiss him

c. field personnel

Mercidar Fishing Corp vs NLRC, 297 SCRA 440 (98)

Nature: Special Civil Action in the SC. CertiorariFacts:

Fermin Agao, Jr. was employed by petitioner as a bodegero or ship’s quartermaster.He was allowed to go one leave without pay for one month from April 28, 1990 because of

sickness. However, when he reported back to work, he seemed to have been constructively dismissed when petitioner refused him assignments aboard its boats.

Action for: illegal dismissal, PD 851, and non-payment of 5-days service incentive leave. Petitioner contends that he was a field personnel who has no statutory right to service incentive leave.

Issue: WON he was a field personnelHeld: NoRatio:

Field personnel: non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

Not field personnel:• during entire course, required to remain on board its vessel• throughout duration of their work, they were under the effective control and supervision of

petitioner thru the vessel’s patron or master

d. dependent family memberse. domestic helpersf. persons in the personal service of anotherg. piece workers

Labor Congress vs NLRC, 290 SCRA 509 (98)

Nature: Special Civil Action in the SC. CertiorariFacts:

99 employees of Empire Food Products (repacking snack food) allegedly abandoned their work on January 21, 1991. Security Guard Cairo testified that said workers refused to work which resulted in the spoilage of cheese curls.Issue: WON they were regular employeesHeld: YES, piece-rate workers considered as regular employees

Piece-rate: those who are paid a standard amount for every piece or unit of work produced that is

more or less regularly replicated, without regard to the time spent in producing the same

Ratio: their job was necessary and desirable to biz (manufacture and selling of food products) employment was not dependent on a specific project or season length of time they have been working for respondents they are entitled to:

• holiday pay (Section 8(b), Rule 4, Book 3)

• 13th month pay (no 2 of 13th month pay law)

• overtime pay276. Government employees

The terms and conditions of employment of all government employees, including employees of GOCC, shall be governed by the Civil Service Law, rules and regulations.

Their salaries shall be standardized by the National Assembly as provided for in the New Constitution. However, there shall be no reduction of existing wages, benefits and other terms and conditions of employment being enjoyed by them at the time of the adoption of the Code.

Book 3Rule 1. Hours of WorkSection 1. General Statement on Coverage

-shall apply to all employees in all establishments and undertakings, whether operated for profit or not, except to those specifically exempted under Section 2 hereof.

Section 2. Exemption- The provision of this Title shall not apply to the ff persons if they qualify for exemption under the conditions set forth herein:

a. government employees whether employed by the National Government or any of its political subdivisions, including those employed in GOCCs

b. managerial employees, if they meet all of the following conditions, namely: 1. their primary duty consists of the management of the establishment in which they are employed or a department or subdivision thereof

2. they customarily and regularly direct the work of 2 or more employees therein

3. they have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight.

c. officers and members of a managerial staff if they perform the ff. duties and responsibilities:

1. primary duty consists of the performance of work directly related to management policies of their employer

2. customarily and regularly exercise discretion and independent judgment

3. i. regularly and directly assist a proprietor of a managerial employee whose primary duty consists of the management of the establishment or its subdivision

ii. execute under general supervision wok along specialized or technical lines requiring special training, experience, or knowledge

iii. execute under general supervision special assignments and tasks and4. who do note devote more than 20 percent of their hours worked in a work-week to activities which are not directly and closely related to the performance of the work above described.

d. domestic servants and persons in the personal service of another if they perform such services in the employer’s home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer’s household.

e. workers who are paid by results, including those who are paid on piecework, takay, pakiao, or task basis, if their output rates are in accordance with the standards prescribed under Section 8, Rule 7, Book 3, of these regulations, or where such rates have been fixed by the Secretary of Labor in accordance with the aforesaid Section.

f. non-agricultural field personnel if they regularly perform their duties away from the principal or branch office or place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

3. Normal Hours of Work

83. The normal hours of any employee shall not exceed 8 hours a day.

Health personnel in cities and municipalities with a population of at least 1M or in hospitals and clinics with a bed capacity of at least 100

• shall hold regular office hours for 8 hours a day• for 5 days a week• exclusive of time for meals• except where the exigencies of the service require that such personnel work for 6 days or

48 hours

- in which case they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the 6th day.

For purposes of this article, health personnel shall include:• resident physicians• nurses• nutritionists• dietitians• pharmacists• social workers• lab technicians• paramedical technicians• psychologists• midwives• attendants• and all other hospital or clinic personnel

4. Compensable Hours of Work- In General

a. On duty

84. Hours worked- shall include:a. all time during which an employee is required to be on duty or to be at a prescribed workplace

Book 3, Rule 1, Sec 3- a. all time during which an employee is required to be on duty or to be at a prescribed workplace

Sec 4. Principles in Determining Hours WorkedThe following general principles shall govern in determining whether the time spent by an

employee is considered hours worked for purposes of this Rule:

a. All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hours are spent in productive labor or involve physical of mental exertion.

b. At work

84. b. all time during which an employee is suffered or permitted to work

Book 3, Rule 1, Section 3 (b)- all time during which an employee is suffered of permitted to work

5. Specific Rules

a. Rest Period

i. Short duration

84. Hours worked-

Rest period of short duration during working hours shall be counted as hours worked.

Book 3, Rule 1, Sec 7, 2nd par.Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as Compensable

working time.

ii. More than 20 min.

Book 3, Rule 1, Sec 4(b)An employee need not leave the premises of the workplace in order that his rest period shall not

be counted, it being enough that he stops working, ay rest completely and may leave his workplace, to go elsewhere, whether within or outside the premises of his workplace.

b. meal period

i. One Hour-

85. Meal periodsSubject to such regulations as the Sec of Labor may prescribe, it shall be the duty of every

employer to give his employees not less than 60 minutes time-off for their regular meals.

Book 3, Rule 1, Sec 7, 1st par.Every employer shall give his employees, regardless of sex, not less than 1 hour time-off for

regular meals, except in the following cases when a meal period of not less than 20 minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee:

a. where the work is non-manual work in nature or does not involve strenuous physical exertion

b. when the establishment regularly operates not less than 16 hours a day

c. in cases of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer and

d. where the work is necessary to prevent serious loss of perishable goods.

Philippine Airlines vs NLRC, 302 SCRA 582 (99)

Nature: Special Civil Action in the SC. certiorariFacts:

Dr. Herminio Fabros served as flight surgeon of Pal Medical Clinic at Nichols and was on duty from 4 pm to 12 midnight.

February 17, 1994 at around 7 pm: he left post and went home to have dinner. PAL cargo Services employee, Acosta suffered a heart attack so nurse Eusebio called Fabros about emergency. When Fabros arrived at clinic at around 7:51, Eusebio had already left with patient. Patient died the next day.

Fabros was suspended for 3 months.

Issue: WON leaving company premises for meal constituted abandonment of workHeld: NORatio:

8-hour work period does not include meal breaks law does not require that employees must take their meals within company premises 83: normal hours of work: exclusive of time for meals 85: meal periods: at least 60 minutes off for their regular meals no damages: no bad faith on part of PAL

ii. Less than 1 hour but not less than 20 minutes

Book 3, Rule 1, Sec 7, 1st par.

Every employer shall give his employees, regardless of sex, not less than 1 hour time-off for regular meals, except in the following cases when a meal period of not less than 20 minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee:

a. where the work is non-manual work in nature or does not involve strenuous physical exertion

b. when the establishment regularly operates not less than 16 hours a day

c. in cases of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer and

d. where the work is necessary to prevent serious loss of perishable goods.

c. waiting time

Book 3, Rule 1, Sec 5 (a)Waiting time spent by an employee shall be considered as working time if waiting is an integral

part of his work or the employee is required or engaged by the employer to wait.

Arica vs NLRC, 170 SCRA 776 (89)

Nature: Petition for certiorari to review the decision of the NLRCFacts:

Workers of Standard Phil Fruits Corporation (STANFILCO) wanted court to declare that the preliminary activities done in the assembly area before ‘official’ work tie starts should be considered as waiting time and thus compensable.

Activities included:1. roll call and getting individual work assignmentsaccomplish Laborer’s Daily Accomplishment Reportget working materials from stockroomtravel to field with materials

Issue: WON prelim activities constitute compensable waiting timeHeld: NO (based on Associated Labor Union vs STANFILCO)Ratio:

cannot be considred waiting time within purview of section 5, rule 1, book 3 of RRI LC long practiced and institutionalized by mutual consent does not deprive them time to attend to other personal pursuits not subject to the absolute control of the company during such period

Sarmiento dissents: mas agree ako sa kanya

d. On call, Section 5 (b) An employee who is required to remain on call in the employer’s premises or so close thereto that

he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call.

e. Inactive due to work interruptions

Section 4 (d) The time during which an employee is inactive by reason of interruptions in his work beyond his

control shall be considered time either if the imminence of the resumption of work required the employee’s presence at the place of work of if the interval is too brief to be utilized effectively and gainfully in the employee’s own interest.

f. Work after normal hours

Section 4 ©

If the work performed was necessary of it benefited the employer, or the employee could not abandon his work at then end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked, if the work was with the knowledge of his employer of immediate supervisor.

g. Lectures, meetings, trainings

Section 6- shall not be counted as working time if all the ff conditions are met:

a. attendance is outside of the employer’s regular working hoursb. attendance is in fact voluntaryc. the employee does not perform any productive work during such attendance.

h. travel time

Rada vs NLRC, 205 SCRA 69 (92)

Nature: Special Civil Action for certiorari to review the decision of the NLRCFacts:

Petitioner was hired by Philnor Consultants and Planners, Inc as driver for the construction supervision phase of the Manila North Expressway Extension, 2nd Stage ( from July 1, 1977 to December 31, 1985).

Illegally dismissed and that he was not paid overtime pay although he was made to render 3 hours overtime work for a period of 3 years:* time used to and from his residence to the project site from 5:30-7 and from 4-6 pm: to pick up employees and drive them to site.

Issue: WON such 3 hours may be considered compensable overtime workHeld: YESRatio:

pick-up job not merely incidental to petitioner’s job as driver used to the benefit of company: to prevent project delays and inefficiencies resulting from

tardiness in fact, when he was not available, another driver had to be assigned to do the job

6. Overtime work/pay

87. Overtime workWork may be performed beyond 8 hours a day provided that the employee is paid for the

overtime work, an additional compensation equivalent to his regular wage plus at least 25% thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first 8 hours on a holiday or rest day plus at least 30% thereof.

89. Emergency overtime workAny employee may be required by the employer to perform overtime work in any of the following

cases:

a. when the country is at war or when any other national or local emergency has been declared by the Congress of the Chief Executive

b. when it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity.

c. when there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature.

d. when the work is necessary to prevent loss or damage to perishable goods, and

e. when the completion or continuation or the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.

Any employee required to render overtime work under this article shall be paid the additional compensation in this Chapter.

90. Computation of additional compensationFor purposes of computing overtime and other additional remuneration as required by this

Chapter the regular wage of an employee shall include the cash wag only, without deduction on account of facilities provided by the employer.

Section 8. Overtime PayAny employee covered by this rule who is permitted or required to work beyond 8 hours on

ordinary working a\days shall be paid an additional compensation for the overtime work in an amount equivalent to his regular wage plus at least 25% thereof.

Section 9. Premium and overtime pay for holiday and rest day work

a. except employees referred to under section 2, an employee who is permitted or suffered to work on special holidays or on his designated rest days not falling on regular holidays,

shall be paid with an additional compensation as premium pay of not less than 30% of his regular wage

For work performed in excess of 8 hours on special holidays and rest days not falling on regular holidays

• additional compensation equivalent to his rate for the 1st 8 hours on a special holiday or rest day plus at least 30% thereof

b. Employees of public utility enterprise as well as those employed in non-profit institutions and organization shall be entitled to:

the premium and overtime pay provided herein unless they are specifically excluded from the coverage of this Rule as provided in Section 2

hereof

c. The payment of additional compensation for work performed on regular holidays shall be governed by Rule 4, Book 3, of these Rules.

Section 10. Compulsory overtime work

a. war/local or national emergencyb. necessary to prevent loss of life or property or in case of imminent danger to public safetyc. there is urgent work to be performed on machines…d. necessary to prevent loss or damage of perishable goods

e. when the completion of continuation of work started before the 8th hour is necessary to prevent serious obstruction r prejudice to the business or operations of the employer

f. when the overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon

In cases not falling within any of these enumerated in this section, no employee may be made to work beyond 8 hours a day against his will.

Section 11. Computation of additional compensationRegular wage shall include:

cash wage only without deduction on account of facilities provided by the employer

Engineering Equipment Inc vs Minister of Labor, 138 SCRA 616

Nature: Petition to review the resolution of the Minister of Labor

Facts:Miguel Aspera worked as mechanical engineer in Saudi Arabia. Worked 10 hours a day and

wanted overtime pay: $1.2162 per hour.Issue: WON he was entitled to overtime pay

Held: NORatio:

he himself admitted that he was a managerial employee: not entitled to overtime pay under section 82

• exercised supervision and control over rank and file employees• power to recommend disciplinary action or their dismissal

contract had built-in overtime pay with free board and lodging petitioner acted in good faith in enforcing contract complainant approved contract himself

7. Night work

86. Night shift differential.Every employee shall be paid a night shift differential of not less than 10% of his regular wage for

each hour of work performed between 10 o’clock in the evening and six o’clock in the morning.

Book 3, Rule 2:Section 1. Coverage.

This Rule shall apply to all employees except:a. those of the government and any of its subdivisions, including GOCCsb. those of retail and service establishments regularly employing not more than 5 workersc. domestic helpers and persons in the personal service of anotherd. managerial employees as defined in book 3 of this codee. field personnel and other employees whose time and performance is unsupervised by the

employer, including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

Section 2. Night shift differentialAn employee shall be paid night shift differential of no less than 10% of his regular wage for each

hour of work performed between 10 pm-6 am.

Section 3. Additional compensationWhere an employee is required or suffered to work on the period covered after his work schedule,

he shall be entitled to his regular wage plus at least 25% and an additional amount of no less than 10% of such overtime rate for each hour of work performed between 10 pm-6 am.

Section 4. Additional compensation on scheduled rest day/special holidayAn employee who is required or permitted to work on the period covered during rest days and/or

special holidays not falling on regular holidays, shall be paid a compensation equivalent to his regular wage plus at least 30% and an additional amount of not less than 10% of such premium pay rate for each hour of work performed.

Section 5. Additional compensation on regular holidaysFor work on the period covered during regular holidays, an employee shall be entitled to his

regular wage during these days plus an additional compensation of no less than 10% of such premium rate for each hour of work performed.

Section 6. Relation to agreementsNothing in this rule shall justify an employer in withdrawing or reducing any benefits, supplements

or payments as provided in existing individual or collective agreements or employer practice or policy.

Shell Oil Co of the Phil vs National Labor Union, 81 Phil 315 (4) note: pp 327-330 only

Ahmm..Spanish case????

-for notes on case, refer to my brain. Historical ek-ek about night work- stuff about shifts, continuous, discontinuous work

IV. Termination of EmploymentReferences:Article 13, Section 3

ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

(e) Other causes analogous to the foregoing.

ART. 283. Closure of establishment and reduction of personnel. - The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay

or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.

ART. 284. Disease as ground for termination. - An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.

ART. 285. Termination by employee. - (a) An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages.

(b) An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes:

1. Serious insult by the employer or his representative on the honor and person of the employee;

2. Inhuman and unbearable treatment accorded the employee by the employer or his representative;

3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and

4. Other causes analogous to any of the foregoing.

ART. 286. When employment not deemed terminated. - The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.

(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33, Republic Act No. 6715, March 21, 1989).

Book 6, Rule 1

SECTION 7. Termination of employment by employer. — The just causes for terminating the services of an employee shall be those provided in Article 283 of the Code. The separation from work of an employee for a just cause does not entitle him to the termination pay provided in the Code, without prejudice, however, to whatever rights, benefits, and privileges he may have under the applicable individual or collective agreement with the employer or voluntary employer policy or practice.

SECTION 8. Disease as a ground for dismissal. — Where the employee suffers from a disease and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees, the employer shall not terminate his employment unless there is a certification by competent public health authority that the disease is of such nature of at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment. If the disease or ailment can be cured

within the period, the employee shall not terminate the employee but shall ask the employee to take a leave of absence. The employer shall reinstate such employee to his former position immediately upon the restoration of his normal health.

SECTION 9. Termination pay. — (a) An employee shall be entitled to termination pay equivalent to at least one month's salary for every year of service a fraction of at least six (6) months being considered as one whole year, in case of termination of his employment due to the installation of labor-saving devices or redundancy.

(b) Where the termination of employment is due to retrenchment to prevent losses and in case of closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, or where the employment is prohibited by law or is prejudicial to his health or to the health of his co-employees, the employee shall be entitled to termination pay equivalent to at least one-half month's pay for every year of service, a fraction of at least six months being considered as one whole year.

(c) The termination pay provided in the Section shall in no case be less than the employee's one month pay.

SECTION 10. Basis of termination pay. — The computation of the termination pay of an employee as provided herein shall be based on his latest salary rate, unless the same was reduced by the employer to defeat the intention of the Code, in which case the basis of computation shall be the rate before its deduction.

SECTION 11. Termination of employment by employee. — The just causes for putting an end to the employer-employee relationship by the employee shall be those provided in Article 286 of the Labor Code. SECTION 12. Suspension of relationship. — The employer-employee relationship shall be deemed suspended in case of suspension of operation of the business or undertaking of the employer for a period not exceeding six (6) months, unless the suspension is for the purpose of defeating the rights of the employees under the Code, and in case of mandatory fulfillment by the employee of a military or civic duty. The payment of wages of the employee as well as the grant of other benefits and privileges while he is on a military or civic duty shall be subject to special laws and decrees and to the applicable individual or collective bargaining agreement and voluntary employer practice or policy.

SECTION 13. Retirement. — In the absence of any collective bargaining agreement or other applicable agreement concerning terms and conditions of employment which provides for retirement at an older age, an employee may be retired upon reaching the age of sixty (60) years.

SECTION 14. Retirement benefits. — (a) An employee who is retired pursuant to a bona-fide retirement plan or in accordance with the applicable individual or collective agreement or established employer policy shall be entitled to all the retirement benefits provided therein or to termination pay equivalent to at least one-half month salary for every year of service, whichever is higher, a fraction of at least six (6) months being considered as one whole year.

(b) Where both the employer and the employee contribute to the retirement plan, agreement or policy, the employer's total contribution thereto shall not be less than the total termination pay to which the employee would have been entitled had there been no such retirement fund. In case the employer's contribution is less than the termination pay the employee is entitled to receive, the employer shall pay the deficiency upon the retirement of the employee.

(c) This Section shall apply where the employee retires at the age of sixty (60) years or older.

RULE XIV Termination of EmploymentSECTION 1. Security of tenure and due process. — No workers shall be dismissed except for a just or authorized cause provided by law and after due process.

SECTION 2. Notice of dismissal. — Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omission constituting the grounds for his dismissal. In cases of abandonment of work, the notice shall be served at the worker's last known address.

SECTION 3. Preventive suspension. — The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.

SECTION 4. Period of suspension. — No preventive suspension shall last longer than 30 days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker.

SECTION 5. Answer and hearing. — The worker may answer the allegations stated against him in the notice of dismissal within a reasonable period from receipt of such notice. The employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires.

SECTION 6. Decision to dismiss. — The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly the reasons therefor.

SECTION 7. Right to contest dismissal. — Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the Regional Branch of the Commission.

SECTION 8. Period to decide. — Cases involving the dismissal of a worker shall be decided by the Labor Arbiter within 20 working days from the date of submission of such cases for decision.

SECTION 9. Reinstatement pending hearing. — The Secretary may suspend the effects of the termination pending resolution of the case in the event of a prima facie finding that the termination may cause a serious labor dispute or is in implementation of a mass lay-off.

SECTION 10. Certification of employment. — A dismissed worker shall be entitled to receive, on request, a certificate from the employer specifying the dates of his engagement and termination of his employment and the type or types of work on which he is employed.

SECTION 11. Report of dismissal. — The employer shall submit a monthly report to the Regional Office having jurisdiction over the place of work all dismissals effected by him during the month, specifying therein the names of the dismissed workers, the reasons for their dismissal, the date of commencement and termination of employment, the positions last held by them and such other information as may be required by the Department for policy guidance and statistical purposes

A. General Concepts

1. Coverage

ART. 278. Coverage. - The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not.

2. Security of tenure

ART. 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989).

Condo Suite Club Travel Inc vs NLRC, Jan 28, 2000Facts:

Private respondent was first employed as housekeeper by Sunette Realty development Corp and was later employed by Condo Suite Club Travel Inc, both owned by ARCON.

Private respondent also owned a car which he rented out to one Landrigan which the latter operated as a taxi.

On August 15, 1994, Ladrigan approached the front desk clerk and a certain In HU had owes him 2000 for car service and for that amount to be included in the guest’s bill. Guest left hurriedly. But in Korea, discovered discrepancy. Complained. 16710---14710

Services terminated for loss of confidence in his malicious intent to defraud a guest.

LA: dismissed complaint for diminution of salary and illegal dismissalLA: affirmed dismissal of complaint for diminutionOrdered reinstatement since incident was Ladrigan’s fault

Issue: WON he was validly terminatedHeld: NORatio:

1. The fundamental guarantee of security of tenure dictates that no worker shall be dismissed except for just and authorized cause provided by law and with due process.

a. no just cause 282 c: fraud or willful breach by the employee of the trust reposed in him by his

employer not proven that there was intention to defraud

• No proof that PR ordered the front desk clerk to enter the additional amount

• PR had nothing to do with Ladrigan’s demand for payment

b. no notice and hearing

notices which states acts and omissions and 2nd notice informing him of decision to dismiss

incident report of Mr Padua not enough co it did not specifically indicate PR’s role in incident

Citytrust Banking Corp vs NLRC, 1996Facts:

Anita Ruiz: internal auditor of CitytrustLater designated as branch manager of Quaipo branch but refused position: demotion. Suspended

and after clearance by DOLE, she was terminated.Filed for illegal dismissal. Ordered reinstated as branch manager by NLRC.Minister of Labor: same decisionOffice of President: reinstated as internal auditor

Petitioner moved for recon: internal auditor abolished (resident inspector was new position in place) so Office of President ordered reinstatement to a substantially equivalent position. Company reinstated her as manager of auditing Department.

LA: not substantially equivalentNLRC: affirmed

Issue: WON the reinstatement to position as manager of auditing department upheld her right to security of tenureHeld: NORatio:

1. Reinstatement contemplates a restoration to a position from which one has been removed or separated so that the employee concerned may resume the functions of a position he already held.

2. An affirmation that those deprived of a recognized and protected interest should be made whole so that the employer will not profit from his misdeeds.

a. Nature of right/rationale

Alhambra Industries Inc vs NLRC, Nov. 18, 1994Facts:

Danilo Rupisan was employed by ALHAMBRA.Because of a surprise audit of the his records, the company found him guilty of violations of

company rules. Was placed under 1-month preventive suspension which he protested against.

A day before the end of his suspension, he as informed of the termination of his services effective February 8, 1990.

Suit for illegal dismissal with illegal suspension and unpaid backwages or commissions.

LA: termination was for just cause but there was violation of due process: backwages and separation pay in lieu of reinstatement

NLRC: affirmed lack of due process but said that he could have explained so they ordered reinstatement

Issue: WON he was validly dismissedHeld: YESRatio:

1. Nature of right: Security of tenure should be respected becoz termination of employment is not longer a mere severance of contractual relationship but an economic phenomenon affecting members of the family.

2. He was found guilty of serious misconduct so he cannot demand reinstatement nor separation pay3. Wenphil Corpo vs NLRC: a justly grounded termination without procedural due process would only

sanction payment of damages

Petition granted, assailed judgment set aside. Llosa Tan vs. Silahas International, 1990Facts:

Was front office cashier of Silahis International Hotel since November 2, 1976.Since 1977, Corporate Policy No. 014 was issued to minimize losses experienced by company

because of checks encashed by them which later bounced.Petitioner allegedly violated said policy when she encashed $1200 check of Mr. Gayondato, the

general cashier of Puerto Azul Beach resort and nephew of EVP.Suatengco ordered petitioner to explain and also placed her under preventive suspension.Petitioner wrote a letter of explanation but her services were nevertheless terminated on October

30, 1982.

LA: illegal dismissal: reinstateNLRC: set aside decision, dismissed complaint for illegal dismissal for lack of merit

Issue: WON petitioner was validly dismissed on the ground of gross negligenceHeld: NORatio:

1. gross negligence: the want of any right or slight care or the utter disregard of consequences not proven

2. encashment violated policy but:a. no bad faithb. policy not strictly enforcedc. superiors were aware: petitioner told Assistant manager Grulla who assured her that such

is alright3. The right of employer to freely select or discharge his employees is regulated by the state

because the preservation of the lives of the citizens is a basic duty of the state, more vital than the preservation of corporate profit.

4. Security of tenure is a right of paramount value guaranteed by the consti and should not be denied on mere speculation.

City Services Corp. Workers vs City Services Corp, 1985Facts:Valencia and other petitioners were hired as janitors by CSC and assigned to the Army and navy Club.

The club reported that petitioners could have been stealing club properties and asked that they be replaced.

CSC dismissed petitioners without previous formal investigation and previous clearance by sec of labor as required by the then prevailing law.

LA: illegally dismissed: reinstatement and backwages

NLRC: illegally dismissed but ordered separation pay since reinstatement has become remote and impossible considering that their dismissal took place six years ago.

Issue: WON NLRC decision was correct.Held: NoRatio:

1. NLRC simply assumed the remoteness of reinstatement2. Security of tenure is given specific recog and guarantee by consti.3. should not be denied on so nebulous a basis as mere speculation

4. 280: unjust dismissal reinstatement without loss of seniority rights and backwages from the time his compensation was withheld up to the time of his reinstatement

b. Coverage

InterOrient Maritime Enterprises Inc. vs NLRC, 1994Facts:

Captain Tayog was hired by Trenda World Shipping and Sea Horse Hip Management Inc thru petitioner as Master of the M/V Oceanic Mindoro.

He was given the instruction to assume the command of the vessel at Port of Hongkong where he was to replenish bunker and diesel fuel and to sail forthwith to Richard Bay, South Africa in order to load 120,000 metric tons of coal.

Upon hearing that storm Gordon was to hit Hongkong, Tayog followed up the request for oxygen and acetylene which were necessary for the repaid of the turbo-charger and the economizer.

The ship’s agent however informed them that the supplies could be delivered only at 0800 hours, 7 hours after the ETD from the port to Africa.

Tayog waited for the supplies and voyage was delayed. Upon arriving at Richard bay, he was instructed to turn-over his post to a new captain and thereafter was repatriated to the Philippines. He was not informed of charges.

POEA: validly dismissedNLRC: illegal: no opportunity to be heard, no evidence to prove loss of trust or confidence

Issue: WON he was validly dismissedHeld: NORatio:

1. Confidential employees cannot be arbitrarily dismissed at any time, and without cause as reasonably established in an investigation.

never informed of charges not accorded opportunity to hear he had valid and justifiable reasons for causing the delay

2. Captains are confidential employees who perform both management and fiduciary functionsa. general agent of shipownerb. commander and technical director of the vesselc. representative of the country under whose flag he navigates

Lopez vs NLRC, 1996Facts:

Petitioner was appointed General Manager on probationary status by th BOD of La Union Transport Services Cooperative (LUTRASCO).

Barely four months after his appointment, he was terminated on the ground of loss of trust and confidence and unsatisfactory performance.

1. Falsification of a board resolution which provides a free uniform for all the members of the Board of Directors by altering the wordings of the said resolution and made it to appear that the staff and himself are beneficiaries thereof, without the consent and authority of the board;2. Neglect of his duty as General Manager to check up regularly the inventory of the Diesel pump;3. Abandonment of work; Malingering;4. Unreasonable refusal to receive partial payment from members of their account, thereby denying the cooperative legitimate revenues/income;5. Negligence in sending notices to members of good standing of the general assembly meeting, resulting to embarrassment of some members;

6. Responsible in introducing partisan politics in the cooperative by deliberately ignoring the advice of the Chairman to post the names of the candidates in only one board and allowed a group of candidates to create their own tickets with his full support;7. Delegating his duty to make his report to the General Assembly thru the accountant;8. Wilful and deliberate refusal to comply with terms of his promissory note for the deduction of a certain amount during pay days in favor of the cooperative;9. Unauthorized cash advances from the sale of diesel.

LA: illegal, reinstateNLRC: illegal dismissal but reinstatement would not be conducive to industrial harmony since he is a managerial employeeBackwages: backwages up to 3 months since he was still probationary employee

OSG: from the time an employee is illegally dismissed to the time he is restored to his position of up to the finality of judgment

Issue: WON he was validly dismissedHeld: NO but no reinstatement since it would not be conducive to industrial harmonyRatio:

1. charges were baseless2. amount of backwages

NLRC connection between backwages and employee as probationary is incorrect No distinction: refers to all employees regardless of status Petitioner wrong that he was entitled to 3 years worth of backwages: no work,

no pay From April 9, 1990 to finality of judgment

c. Requisites for lawful dismissal and measure of penalty

Farrol vs. CA, Feb. 10, 2000

B. Project Employees

No date suppliedPOLICY INSTRUCTIONS NO. 20-76STABILIZING EMPLOYER-EMPLOYEE RELATIONS IN THE CONSTRUCTION INDUSTRYIn the interest of stabilizing employer-employee relations in the construction industry and taking into consideration its unique characteristics, the following policy instructions are hereby issued for the guidance of all concerned. cdGenerally, there are two types of employees in the construction industry, namely: 1) Project employees and 2) Non-Project employees.

Project employees are those employed in connection with a particular construction project. Non-project employees are those employed by a construction company without reference to any particular project.Project employees are not entitled to termination pay if they are terminated as a result of the completion of the project or any phase thereof in which they are employed, regardless of the number o projects in which they have been employed by a particular construction company. Moreover, the company is not required to obtain a clearance from the Secretary of Labor in connection with such termination. What is required of the company is a report to the nearest Public Employment Office for statistical purposes.

If a construction project or any phase thereof has a duration of more than one year and a Project employee is allowed to be employed therein for at least one year, such employee may not be terminated until the completion of the project or of any phase thereof in which he is employed without a previous written clearance from the Secretary of Labor. If such an employee is terminated without a clearance from the Secretary of Labor, he shall be entitled to reinstatement with backwages.The employees of a particular project are not terminated at the same time. Some phases of the project are completed ahead of others. For this reason, the completion of a phase of the Project is the completion of the project for an employee employed in such phase. In other words, employees terminated upon the

completion of their phase of the project are not entitled to separation pay and exempt from the clearance requirement.

On the other hand, those employed in a particular phase of a construction project are also not terminated at the same time. Normally, less and less employees are required as the phase draws closer to completion. Project employees terminated because their services are no longer needed in their particular phase of the project are not entitled to separation pay and are exempt from the clearance requirement, provided they are not replaced. If they are replaced, they shall be entitled to reinstatement with backwages.

Members of a work pool from which a construction company draws its project employees, if considered employees of the construction company while in the work pool, are non-project employees or employees for an indefinite period. If they are employed in the particular project, the completion of the project or of any phase thereof will not mean severance of employer-employee relationship.

However, if the workers in the work pool are free to leave anytime and offer their services to other employers then they are project employees employed by a construction company in a particular project or in a phase thereof.Generally, there are three (3) types of non-project employees: first, probationary employees; second, regular employees; and third, casual employees.

Probationary employees are those who, upon the completion of the probationary period, are entitled to regularization. Regular employees are those who have completed the probationary period or those appointed to fill up regular positions vacated as a result of death, retirement, resignation, or termination of the regular holders thereof. On the other hand, casual employees are those employed for a short term duration to perform work not related to the main line of business of the employer.

The non-project employees of a construction company shall have the right to self-organization and free collective bargaining. They may constitute or form part of the appropriate rank and file collective bargaining unit within the company.

On the other hand, it is the policy of the Department of Labor to promote the unionization of project employees by industry, but not by projects. In other words, for project employees the appropriate collective bargaining unit is the industry, not any particular project or any phase thereof. Therefore, the employees of a particular project cannot constitute an appropriate collective bargaining unit. They may, however, join the recognized industry union in the construction industry.

Pending the establishment of the recognized industry-wide union in the construction industry, a Tripartite Construction Industry Board (TCIB) is hereby established composed of representatives of the employers, representatives of the workers and representatives of the government for the purpose of establishing fair wages and other terms and conditions of employment in the industry, short of free collective bargaining. The Board shall also serve as a forum for consultations on all other matters affecting employer-employee relations in the industry, including manpower development and employment. cdsia(Note: The issuance is undated)

(SGD.) BLAS F. OPLESecretary

April 1, 1993DEPARTMENT ORDER NO. 019-93GUIDELINES GOVERNING THE EMPLOYMENT OF WORKERS IN THE CONSTRUCTION INDUSTRYIn the interest of stabilizing and promoting harmonious employer-employee relations in the construction industry and in order to ensure the protection and welfare of workers employed therein, the following guidelines are hereby issued for all concerned:SECTION 1. CoverageThis issuance shall apply to all operations and undertakings in the construction industry and its subdivisions, namely: general building construction, general engineering construction and special trade construction, based on the classification code of the Philippine Construction Accreditation Board of the Construction Industry Authority of the Philippines; to companies and entities involved in demolition works; and to those falling within the construction industry as determined by the Secretary of Labor and Employment.SECTION 2. Employment Status

2.1 Classification of employees. — The employees in the construction industry are generally categorized as a) project employee and b) non-project employees. Project employees are those employed in connection with a particular construction project or phase thereof and whose employment is co-terminus with each project or phase of the project to which they are assigned. prcdNon-project employees, on the other hand, are those employed without reference to any particular construction project or phase of a project.2.2 Indicators of project employment. — Either one or more of the following circumstances, among others, may be considered as indicators that an employee is a project employee.(a) The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable.(b) Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of hiring.(c) The work/service performed by the employee is in connection with the particular project/undertaking for which he is engaged.(d) The employee, while not employed and awaiting engagement, is free to offer his services to any other employer.(e) The termination of his employment in the particular project/undertaking is reported to the Department of Labor and Employment (DOLE) Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees' terminations/dismissals/suspensions.(f) An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies.2.3 Project completion and rehiring of workers. —(a) The employees of a particular project are not separated from work at the same time. Some phases of the project are completed ahead of others. For this reason, the completion of a phase of the project is considered the completion of the project for an employee employed in such phase. Meanwhile, those employed in a particular phase of a construction project are also not separated at the same time. Normally, less and less employees are required as the phase draws closer to completion.(b) Upon completion of the project or a phase thereof, the project employee may be rehired for another undertaking provided, however, that such rehiring conforms with the provisions of law and this issuance. In such case, the last day of service with the employer in the preceding project should be indicated in the employment.2.4 Types of non-project employees. — Generally there are three (3) types of non-project employees: first, probationary employees; second, regular employees; and third, casual employees.(a) Probationary employees are those who, upon the completion of the probationary period, are entitled to regularization. Upon their engagement, probationary employee should be informed of the reasonable standards under which they will qualify as regular employees.(b) Regular employees are those appointed as such or those who have completed the probationary period or those appointed to fill up regular positions vacated as a result of death, retirement, resignation or termination of employment of the regular holders thereof.(c) Casual employees are those employed to perform work not related to the main line of business of the Employer. Casual employees who are employed for at least one year, whether continuous or broken, shall be considered regular with respect to the activity in which they are employed and their employment shall continue for as long as such activity exists, unless the employment is terminated sooner by the employer for a just or authorized cause, or voluntarily by the employee. prcd2.5 Contracting and subcontracting. — The practice of contracting out certain phases of a construction project is recognized by law, particularly wage legislations and wage orders, and by industry practices. The Labor Code and its Implementing Regulations allow the contracting out of jobs under certain conditions. Where such job contracting is permissible, the construction workers are generally considered as employees of the contractor or sub-contractor, as the case may be, subject Art. 109 of the Labor Code, as amended.SECTION 3. Conditions of Employment3.1 Security of tenure. Project employees who have become regular shall enjoy security of tenure in their employment as provided under Article 280 of the Labor Code, as amended. Where their services are terminated for a cause/causes, they are not by law entitled to separation pay. The just causes for terminating employment are enumerated under Article 282 of the Code. Where the services of regular employees are terminated for any of the authorized causes under Article 283, as distinguished from just causes, they are entitled to separation pay.3.2 Project employees not entitled to separation pay. — The project employees contemplated by paragraph 2.1 hereof are not by law entitled to separation pay if their services are terminated as a result of the completion of the project or any phase thereof in which they are employed. Likewise, project employees whose services are terminated because they have no more to do or their services are no longer needed in the particular phase of the project are not by law entitled to separation pay.

3.3 Project employees entitled to separation pay. —a) Project employees whose aggregate period of continuous employment in a construction company is at least one year shall be considered regular employees, in the absence of a "day certain" agreed upon by the parties for the termination of their relationship. Project employees who have become regular shall be entitled to separation pay.A "day" as used herein, is understood to be that which must necessarily come, although it may not be known exactly when. This means that where the final completion of a project or phase thereof is in fact determinable and the expected completion is made known to the employee, such project employee may not be considered regular, notwithstanding the one-year duration of two or more employments in the same project or phase of the project.The completion of the project or any phase thereof is determined on the date originally agreed upon or the date indicated on the contract or, if the same is extended, the date of termination of project extension.b) If the project or the phase of the project the employee is working on has not yet been completed and his services are terminated without just cause or authorized cause and there is no showing that this services are unsatisfactory, the project employee is entitled to reinstatement with backwages to his former position or substantially equivalent position. If the reinstatement is no longer possible, the employee is entitled to his salaries for the unexpired portion of the agreement.3.4 Completion of the project. — Project employees who are separated from work as a result of the completion of the project or an phase thereof in which they are employed are entitled to the pro-rata completion bonus if there is an undertaking for the grant of such bonus. An undertaking by the employer to pay a completion bonus shall be an indicator that an employee is a project employee. Where there is no such undertaking, the employee may be considered a non-project employee. The pro-rate completion bonus may be based on the industry practice which is at least the employee's one-half (1/2) month salary for ever 12 month service and may be put into effect for any project bid (in case of bid projects) tender submitted (in case of negotiated projects) thirty (30) days from the date of issuance of these Guidelines.3.5 Statutory benefits. — During the period of their employment, the construction employees whether project or non-project shall enjoy all the benefits due to them under the law, both monetary and non-monetary.3.6 Payment by results. — Where the payment for work or services rendered is by results, e.g., piece rate or "pakiao", the rate shall be determined on the basis of not less than the minimum wage applicable in the region where the construction project is located. The minimum wage rates of workers who are paid by results may be determined by the appropriate DOLE Regional Office on its initiative or upon request of interested parties.SECTION 4. Preventive SuspensionSubject to Article 277 (b) of the Code, project and non-project employees may be preventively suspended if their continued employment poses a serious and imminent threat to the life or property of the employer or of their co-workers. No preventive suspension, however, shall last longer than fifteen (15) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. The employer shall designate a day, time and place within the period of preventive suspension, with notice of the employee, to hold a fact-finding investigation, to enable the suspended employee to be heard and be assisted by his counsel or representative, if he so desires, of the charge and against him and thereby exonerate the employee, or upon the employee's failure to vindicate himself, to find the employee guilty and thereby, to terminate his employment. Such termination shall not prejudice the right of the employee to question the severance of the relationship in the appropriate forum.SECTION 5. Self-Organization and Collective BargainingIn recognition of the right of employees to self-organization and collective bargaining, this Department hereby encourages the formation of "trade" unions in the construction industry, provided that the formation or activities of a recognized trade unions will not prejudice existing bargaining units, subject to existing laws. As used herein, trade unions refer to a combination of workers of the same trade or of several allied trades, for the purpose of securing by united action the most favorable conditions regarding wages, hours of labor and other terms and conditions of employment for its members.SECTION 6. Liabilities/Responsibilities of the Employer and the Workers.6.1 Requirements of labor and social legislations. —(a) The construction company and the general contractor and/or subcontractor referred to in Sec. 2.5 shall be responsible for the workers in its employ on matters of compliance with the requirements of existing laws and regulations on hours of work, wages, wage-related benefits, health, safety and social welfare benefits, including submission to the DOLE-Regional Office of Work Accident/Illness Report, Monthly Report on Employees' Terminations/Dismissals/Suspensions and other reports. The prime/general contractor shall exercise sound judgment and discretion in contracting out projects to ensure compliance with labor standards.

(b) Project and non-project employees shall observe the requirements of labor and social legislations and reasonable company rules and regulations on matters pertaining to their obligations.6.2 Implementation of safety and health standards. — The Department through the Regional Offices shall strictly enforce the Occupational Safety and Health Standards, as amended, particularly Rule 1005 on Duties of Employers, Workers and Other Persons and Rule 1410 on Construction Safety. Through the Bureau of Working Conditions, the Department may issue a code of practice on Occupational Safety and Health for the construction industry.6.3 Wage Increases. — As regards wage increases, whether mandated or agreed upon by the parties, the prescribed increase in the wage rates of the workers in construction projects shall be borne by the principals or clients of the construction contractors and the contracts shall be deemed amended accordingly. The wage rates of projects employees shall depend on the skills or level of competence of such project employees as determined by NMYC Trade and Standards subscribed to by the Philippine Construction Industry under the Five Year Construction Manpower Development Plan dated November 1991, provided that the rates established shall not be lower than that prescribed by the appropriate wage order and regulations. The liability in subsequent mandated rates of wage increases and/or allowances to construction workers shall be determined in accordance with the provisions of the applicable wage legislations or orders.SECTION 7. Effect on Existing Issuances and AgreementsThese issuances shall serve as guides for this Department and its agencies in the administration and enforcement of applicable labor and social legislations and their implementing regulations. prcdNothing herein shall be construed to authorize diminution or reduction of benefits being enjoyed by employees at the time of issuance hereof.This Department Order supersedes Policy Instructions No. 20 of 1977 and shall take effect immediately.

(SGD.) MA. NIEVES R. CONFESORSecretary

Cases:Imbuido vs. NLRC, 2000Facts:

Petitioner was employed as data encoder by International Information Services, company engaged in the business of data encoding and keypunching.

From August 26, 1988 until October 18, 1991, 13 employment contracts were entered, each lasting for a period of 3 months: specified that they were hired for a specific project/job contract.

When petitioners joined LAKAS in a petition for a certification election, company terminated them but said it was due to low volume of work.

Labor Arbiter: regular employee low volume: not a valid cause for termination of regular employees

NLRC: regular employer but only within the duration of specific project

Issue: WON they were project employeesHeld: Yes but they were eventually regularizedRatio:As to their being project employees:

1. passed principal test: WON they were assigned to carry out a specific project/undertaking, duration and scope of which were specified at the time the employee was engaged for that project

contained designation of the specific job contract and a specified period of employment

Regularized Project employees pursuant to requisites established in Maraguinot vs NLRC:1. there is a continuous rehiring of project employee ever after cessation of project2. tasks necessary and indispensable continuosly hired for more than 3 years 13 successive projects

Association of Trade Unions vs Comm AbellaFacts:

Petitioners were employed in various capacities (mechanic, painter, carpenter, etc), by Algon Engineering Construction Corporation.

In February 1989, they joined petitioner union which filed a petition for certification election. Company opposed such petition saying that they were project employees and not qualified to form part of rank and file CBU.

Sec of Labor and Employment ordered immediate holding of certification election.Pursuant to this, union sought for payment of wage differentials which left unheeded and also

resulted to the termination of workers. Company said they were being terminated owing to the completion of its projects or the expiration of contracts.

NLRC/ LA: project employees (??)

Issue: WON they were project employeesHeld: YESRatio:

1. Contracts showed that: hired for specific projects employment coterminous with completion of project for which they have been hired informed in advance that said project would end on a stated or determinable date

2. employer regularly submitted reports of termination of services of project workers3. Policy Instruction No. 20: Project employees are those employed in connection with a particular

construction project.

Magcalas vs NLRCFacts:

Petitioners were employed as leadman, tinsmith, tradeshelper to general clerk. They have been employed for a min number of 1 ½

Company has been engaged in the biz of installing air-conditioning and refrigeration equipment in its different projects and jobsites where complainants have been assigned.

ON August 30, 1988, they were dismissed en masse without prior notice and investigation. Complainants alleged it was due to their insistent demands for payment of money claims as mandated by law. Company said it was due to completion of projects

NLRC: project employees

Issue: WON they were project employeesHeld: No, they are regular employeesRatio:

1. performing work necessary or desirable in the usual biz off private respondent2. mere provision in CBA recognizing contract employment does not sufficiently establish that

petitioners were ipso facto contractual or project employees3. continuously employed without interruption4. company was unable to show evidence that there had been termination of contracts at the end of

each project5. regular employees cannot at the same time be project employees

ALU-TUCP vs NLRC:Project:

1. within regular or usual biz of employer company but which is distinct and separate and identifiable as such

2. outside regular biz.

ILLEGAL DISMISSAL:For dismissal to be valid, 2 reqs must concur:

1. employee is afforded due process2. dismissaly should be for valid cause as indicated in 282

Sandoval Shipyards vs NLRC

Magante vs NLRCFacts:

Petitioner was employed as carpenter by Constress Philippines Inc from April 17, 1980 to march 6, 1982.

His work involved making of molds for: Bridges Buildings Charcoal guilder Sea file

He was never assigned to work outside plant.

Every 3 months, he was made to sign employment contract relating to a particular phase of work in a specific project.

On march 6, 1982, a notice of termination was posted and petitioner was told that his services were being terminated because:1. he was already old2. contract has expired3. he was not renewed as project employee

LA: regular employeeNLRC: project employee pursuant to PI 20: in connection with a particular construction project

Issue: WON he was a project employeeHeld: NORatio:

1. never deployed from project to project2. regularly assigned to perform carpentry work under the supervision of the supervisor of the

Carpentry Department3. The determining factor of the status of the any worker is the nature of the work performed by

latter and the place where he performed his assignment4. no submission of termination reports

Fernandez vs NLRCFacts:

Petitioner was hired as labored (skilled welder) by DM Conssunji Inc.Worked from November 5, 1974-March 23, 1986.

Terminated on the ground that project was already completed.

LA: regular employees

Issue: WON they were project employeesHeld: YESRatio:

1. evidence showed gaps in between hiring showing that he did not work continuously but only intermittently for specific projects

2. Mercado vs. NLRC: only casual employees shall be deemed regular upon service of 1 year3. Did not comply with requirement under PI 20 that to qualify as member of work pool:

a. worker must still be considered employee of companyb. under obligation to be available on callc. not free to offer services to other employers

4. there was regular submission of termination reports

UY vs NLRCFacts:

Private respondents were employed by private contractor Rizalino Uy in different capacities: mason laborer carpenter

Dismissed.

Defnse: 1. no other biz2. hired on a pakyaw basis3. after completion of a project, they were free to find other jobs

LA: project employeesNLRC: regular employees

Issue: WON they were project employeesHeld: noRatio:NO evidence showing that:

1. they were hired for specific project the duration of which had been determined at time of hiring2. no documents that would show the dates of hiring and termination in relation to a particular

project3. no termination reports4. all of them: worked continuously without having been laid off for a min of 3 years and a man of 10

years5. when one project was completed, they were immediately reassigned to other projects belonged to

a work pool

B. WEEKLY REST PERIODS

91. Right to weekly rest day-

a) It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than 24 consecutive hours after every 6 consecutive normal working days.

b) The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Sec of Labor may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds.

92. When employer may require work on rest dayThe employer may require his employees to work on any day:

a) in case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety.

b) In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer.

c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;

d) To prevent loss or damage to perishable goofe) Where the nature of the work requires continuous operations and the stoppage of work may result

in the irreparable injury or loss to the employerf) Under other circumstances analogous or similar to the foregoing as determined by the Secretary

of Labor.

93. Compensation for rest daya) where an employee is made or permitted to work on his scheduled rest day,

he shall be paid an additional compensation of at least 30% of his regular wage. An employee shall be entitled to such additional compensation for work performed on

Sunday only when it is his established rest day.

b) where the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled,

he shall be paid an additional compensation of at least 30% of his regular wage for work performed on Sundays and holidays.

c) work performed on an special holiday shall be paid an additional compensation of at least 30% of the regular wage of the

employee. Where such holiday work falls on the employees scheduled rest day, he shall be entitled

to an additional compensation of at least 50% of his regular wage.

d) where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate.

Book 3, Rule 3, Sections 1-9

Section 1. General statement on coverage: all employers whether operating for profit or not, including public utilities operated by private persons

Section 2. Business on Sundays/HolidaysAll establishments and enterprises may operate or open for business on Sundays and holidays

provided that the employees are given the weekly rest day and the benefits as provided in this Rule.

Section 3. Weekly rest day- same as LC

Section 4. Preference of employeeThe preference of the employee as to his weekly day of rest shall be respected by the employer if

the same is based on religious grounds. The employee shall make known his preference to the employer in writing at least 7 days before the desired effectivity on the initial rest day so preferred.

Where, however, the choice of the employees as to their rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations of the undertaking and the employer

cannot normally be expected it resort to other remedial measures, the employer may so schedule the weekly rest day of their choice for at least 2 days in a month.

Section 5. Schedule of rest daya) where the weekly rest is given to all employees simultaneously, the employer shall make known

such rest period by means of a written notice posted conspicuously in the workplace at least 1 week before it becomes effective.

b) Where the rest period is not granted to all employees simultaneously and collectively, the employee shall make know to the employees their respective schedules of weekly rest through written notices posted conspicuously in the workplace at last 1 week before they become effective.

Section 6. When work on rest day authorized.An employer may require any of his employees to work on his scheduled rest day for the duration

of the following emergency and exceptional conditions:a) In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon,

earthquake, epidemic or other disaster or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety.

b) In case of urgent work to be performed on machineries, equipment or installations, to avoid serious loss which the employer would otherwise suffer.

c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures

d) To prevent serious loss of perishable goodse) Where the nature of the work is such that the employees have to work continuously for 7 days in

a week or more, as in the case of the crew members of a vessel to complete a voyage and in other similar cases

f) When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.

No employee shall be required against his will to work on his scheduled rest day except under circumstances provided in this Section, provided, however, that where an employee volunteers to work on his rest day under other circumstances, he shall express such desire in writing subject to the provisions of Section 7 hereof regarding additional compensation.

Section 7. Compensation on rest day/Sunday/holiday

a. except those employees referred to under Section 2, Rule 1, Book 3, an employee who is made or permitted to work on his scheduled rest day

Additional compensation of at least 30% of his regular wage.

* same if work is performed on a Sunday only when it is his established rest day

b. where the nature of the work of the employee is such that he has no regular work days and no regular rest days can be scheduled

Additional compensation of at least 30% of his regular wage for work performed on Sundays and holidays

c. work performed on any special holiday Additional compensation of at last 30% of the regular wage

* where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to at an additional of at least 50% of his regular wage

d. The payment of additional compensation for work performed on regular holiday shall be governed by the Rule 4, Book 3, of these regulations.e. Where the collective bargaining agreement or other applicable employment contract stipulates payment of a higher premium pay than that prescribed under this Section the employer shall pay such higher rate.

Section 8. Paid off-days

Nothing in this Rule shall justify an employer in reducing the compensation of his employees for the unworked Sundays, holidays, or other rest days, which are considered, paid off-days or holidays by agreement or practice subsisting upon the effectivity of the Code.

Section 9. Relation to agreementNothing herein shall prevent the employer and his employees or their reps from entering into any

agreement with terms more favorable to the employees than those provided herein, or be used to diminish any benefit granted to the employees under existing laws, agreements, and voluntary employer practices.

Caltex Regular Employees vs Caltex, 247 SCRA 398 (95)Nature: Special Civil Action in the SC. CertiorariFacts:

Union alleged that Caltex was guilty of the following non-payment violations:• night-shift differential• overtime pay• first day-off rates for work performed on a Saturday

Issue: WON Saturday was the day of rest indicated in the CBAHeld: NORatio:

• all CBA subsequent to 1970 (73, 76, 79, 82) had deleted the proviso in the 1970 CBA providing for 2 days off

• under 1985 CBA, hours worked on a Saturday do not, by that fact alone, necessarily constitute overtime work compensable at premium rates of pay, contrary to petitioner’s assertion.

• Saturday is not a rest day or a day-off but normal or regular work hours, compensable at regular rates of pay.

• Overtime only when it is in excess of the 40 hours which constitute the regular work week that such employee may be considered as performing overtime work on that Saturday.

1. Coverage

82. The provisions of this tile shall apply to employees in all establishments and undertakings whether for profit or not, but not to:

• government employees• managerial employees• field personnel• members of the family of the employer who are dependent on him for support• domestic helpers• persons in personal service of another and• workers who are paid by results as determined by the Secretary of Labor in appropriate

regulations.

Managerial employees- those whose primary duty consists of the management of the establishment in which they are employed or of a department of subdivision thereof, and to other officers or members of the managerial staff.

Field personnel- non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours or work in the field cannot be determined with reasonable certainty.

91. Right to weekly rest day-c) It shall be the duty of every employer, whether operating for profit or not, to provide each of his

employees a rest period of not less than 24 consecutive hours after every 6 consecutive normal working days.

d) The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Sec of Labor may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds.

2. Determination; Compulsory work; compensation- 91-93

Manila Electric Co vs Public Utilities Employees Assn, 79 Phil 409 (47)Nature: Petition to review on certiorari the decision of the CIRFacts:

Employees of Manila Electric Co are claiming added compensation for work during Sundays and legal holidays.

Issue: WON these employees are entitled to additional compensation for work performed on Sundays and legal holidaysHeld: NoRatio:

• 2nd part of Section 1 of CA 444: exempts public utilities performing some public service, from the prohibition of the enactment clause and may compel its employees or laborers to work during Sundays and legal holidays without paying them said extra compensation

• It would be unfair for the law to compel public utilities to pay an additional compensation to laborers whom they have to compel to work during Sundays and legal holidays, in order to perform a continuous service to the public.

• It would be tantamount to penalizing them for performing public service during said days in compliance with the requirement of the law and public interest.

Perfecto dissents:* This means simply that employers engaged in public utilities may or may not the additional compensation or any additional compensation for compelling their laborers to work on Sundays and holidays.

C. HOLIDAYS

94. Right to holiday pay

a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishment regularly employing less than 10 workers.

b) The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and

c) As used in this article, ‘holiday’ includes:• New Year’s Day• Maunday Thursday• Good Friday• April 9• May 1• June 12• July 4• November 30• December 25 and 30• Day designated by law for holding a general election

Executive Order No. 203 (1987) • election day no longer in list• November 1 and December 31 are called special days

10 regular holidays:• January 1• Maundy Thursday• Good Friday• April 9• Labor Day• Independence Day• National Heroes Day (Last Sunday of August)• Bonifacio Day

• December 25• Rizal Day

Book 3, Rule 4, IRRThis rule shall apply to all employees except:

a) those of the government and any of the political subdivision, including GOCCsb) those of retail and service establishment regularly employing less than 10 workersc) domestic helpers and persons in the personal service of anotherd) managerial employees as defined in Book 3 of this Codee) field personnel and other employees whose time and performance is unsupervised by the

employer including those who are engaged on task or contract basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

Section 2. Status of employees paid by the month Employees who are uniformly paid by the moth, irrespective of the number of working days

therein, with a salary of not less than the statutory or established minimum wage shall be presumed to be paid for all days in the moth whether worked or not.

For this purpose, the monthly minimum wage shall not be less than the statutory minimum wage multiples by 365 days divided by 12.

Section 3. Holiday payEvery employer shall pay his employees their regular daily wage for any unworked regular holiday.

Section 4. Compensation for holiday work• any regular holiday, not exceeding 8 hours• at least 200% of his regular daily wage

• if holiday falls on scheduled rest day

• additional premium of 30% of his regular holiday rate of 200% based on his regular wage rate

Section 5. Overtime pay for holiday work

• equivalent to his rate for the 1st 8 hours on such holiday work plus at least 30% thereof

• regular holiday-rest day rate: 200% of his regular daily wage rate plus 30% thereof

Section 6. Absencesa. All covered employees shall be entitled to the benefit provided herein when they are on leave of absence with pay. Employees who are on leave of absence without pay on the day immediately preceding a regular holiday may not be paid the required holiday pay if he has not worked on such regular holiday.

b. Employees shall grant the same percentage of the holiday pay as the benefit granted by competent authority in the form of employee’s compensation or social security payment, whichever is higher, if they are not reporting for work while on such benefits.

c. Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working day or rest day.

Section 7. Temporary or periodic shutdown and temporary cessation of work

a) xxx…, as when a yearly inventory or when the repaid or cleaning of the machineries and equipment is undertaken, the regular holidays falling within the period shall be compensated in accordance with this Rule.

b) The regular holiday during the cessation of operation of an enterprise due to business reverses as authorized by the Sec of Labor may not be paid by the employer.

Section 8. Holiday pay of certain employees

a) private school teachers, including faculty of colleges and universities, may not be paid for the regular holidays during semestral vacations. They shall, however, be paid for the regular holidays during Christmas vacation.

b) Where a covered employee is paid by the results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last 7 actual working days preceding the regular holiday; provided, however that in no case shall the holiday pay be less than the applicable minimum wage rate.

c) Seasonal workers may not be paid the required holiday pay during off-season when they are not at work.

d) Workers who have no regular working days shall be entitled to the benefits provided in this rule.

Section 9. Regular holiday falling on rest days or Sundaysa) A regular holiday falling on the employee’s rest day shall be compensated accordingly.b) Where a regular holiday falls on a Sunday, the following day shall be considered a special holiday

for purposes of the LC, unless said day is also a regular holiday

Section 10. Successive regular holidays.Where there are 2 successive regular holidays,,, an employee may not be paid for both holidays if

he absents himself from work on the day immediately preceding the 1st holiday unless he works on the 1st

holiday, in which case he is entitled to his holiday pay on the 2nd holiday.

Section 11. Relation to agreementsNothing in this Rule shall justify an employer in withdrawing or reducing any benefit, supplement,

or payment for unworked holidays, as provided in existing individual or collective agreement or employer practice r policy.

1. Coverage- 94(a)

Mantrade/FMMC Division Employees and Workers Union vs Bacungan, 144 SCRA 510Nature: Petition for certiorari and mandamus to review the decision of Arbitrator F. BacunganFacts:

Monthly paid employees of Mantrade Development Corporation seeks court remedy for them to be granted holiday pay.

Issue: WON monthly paid employees are qualified for holiday payHeld: Yes

Insular Bank of Asia and American Employees Union vs Inciong: 82 of LC: clear the monthly paid employees are not excluded from the benefits of holiday pay

Chartered Bank Employees Association vs Ople:While the additional exclusion is only in the form of a presumption that all monthly paid

employees have already been paid holiday pay, it constitutes taking away or a deprivation which must be in law if it is to be valid. An administrative interpretation which diminishes the benefits of labor more than what the statute delimits or withholds is obviously ultra vires.

2. Holiday Pay-94 (b)

a. Faculty in private school

Book 3, Rule 4, Sec 8 a) Private school teachers, including faculty members of colleges and universities, ay not be paid for

the regular holidays during semestral vacations. They shall however, be paid for the regular holidays during Christmas vacation.

Jose Rizal College vs NLRC, 156 SCRA 27 (87)Nature: Petition for certiorari with preliminary injunction to review the decision of the NLRCFacts:

The National Alliance of teachers and Office Workers (NATOW) filed a complaint against the college for alleged non-payment of holiday pay to its faculty who are paid per lecture hour.

Issue: WON faculty who according to their contracts are paid per lecture hour are entitled to unworked holiday payHeld/Ratio:

No to unworked regular holidays: these are specified by law and are known to both school and faculty members as no class days

• such teachers do not expect payment for said unworked days, and this was clearly in their minds when they entered into the contracts

Law and IRR are silent as to payment on Special Public Holidays:Yes, according to court.> When a special public holiday is declared, the teacher paid by the hour is deprived of expected income, and it does not matter that the school calendar is extended in view of the days or hours lost, for their income that could be earned from other sources is lost during the extended days.

b. Divisor as Factor

Trans-Asia Phil Employees Association vs NLRC, 320 SCRA 347 (99)

Nature: Special Civil Action in the SC. Certiorari.

Facts:

Union entered into CBA which provided for the payment of holiday pay with a stipulation

that if an employee is permitted to work on a legal holiday, the said employee will receive a salary

equivalent to 200% of the regular daily wage plus a 60% premium pay.

To compute for compensation, the company used the 286 divisor which already takes into

account the 10 regular holidays in a year.

365 calendar days minus unworked and unpaid 52 Sundays and 26 Saturdays (required to

work half-day).

Issue: WON holiday pay is already included in petitioner’s monthly salary

Held: Yes

Ratio:

• consistent use of 286 divisor establishes inclusion

Chartered Bank Employees Association vs Ople:

• NA to case at bar because there, the bank used different divisors in computing for its employees benefits and deductions

Court modified divisor based on ff computation:

250- ordinary working days

10- regular holidays

2 days- special days

262 days

26- Saturdays when employees are required to work half day

288 days

but there are only 9 unworked but paid legal holidays becoz under EO 203, one always falls on the

last Sunday of August, National Heroes Day

c. Sunday

Wellington Investment Inc vs Trajano, 245 SCRA 561 (95)

Nature: Special Civil Action in the SC. Certiorari.

Facts:

On August 6, 1991, a routine inspection was conducted by a Labor Enforcement Officer of

the Wellington Flour Mills.

The report found company guilty of nonpayment pf regular holidays falling on a Sunday for

monthly paid employees.

Issue: WON a monthly paid employee is entitled to an additional pay aside from his usual holiday

pay, whenever a regular holiday falls on a Sunday

Held: NO

Ratio:

• no provision of law requiring any employer to make adjustments in his employees’ monthly salaries on the number of times that a legal holiday fell on a Sunday

What the law requires:

• to assure that the monthly minimum wage shall not be less than the statutory minimum wage multiplied by 365 days divided by 12

• to pay that salary for all days in the month whether worked or not and irrespective of the number of working days therein

D. SERVICE INCENTIVE LEAVE AND PATERNITY LEAVE

95. Right to service incentive leave

a) every employee who has rendered at least 1 year of service shall be entitled to a yearly service incentive leave of 5 days with pay.

b) This provision shall not apply to• those who are already enjoying the benefit herein provided• those enjoying vacation leave with pay of at least 5 days and• those employed in establishment regularly employing less than 10 employees or• in establishments exempted from granting this benefit by the Sec of Labor after

considering the viability or financial condition of such establishment.

c) The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action.

Book 3, Rule 5, IRR

Section 1. Coverage

This rule shall apply to all employees except:

a. those of the government and any of its political subdivisions, including GOCCsb. domestic helpers and persons in the personal service of anotherc. managerial employeesd. field personnel xx…e. those who are already enjoying the benefit herein providedf. those enjoying vacation leave with pay of at least 5 days andg. those employed in establishments regularly employing less than 10 employees.

Section 2. Right to service Incentive leave

Every employee who has rendered at least 1 year of service: 5 days with pay

Section 3. Definition of certain terms

At least 1 year service: service within 12 months, whether continuous or broken reckoned from the

date the employee started working, including authorized absences and paid regular holidays unless

the working days in the establishment as a matter of practice or policy, or than provided in the

employment contract is less than 12 months, in which case said period shall be considered 1 year.

Section 4. Accrual of benefits

Entitlement to the benefit shall start December 16, 1975, the date the amendatory provision

of the Code took effect.

Section 5. Treatment of benefit

The service incentive leave shall be commutable to its money equivalent if not used or

exhausted at the end of the year.

Section 6. Relations to agreements

Nothing in the Rule shall justify an employer from withdrawing or reducing any benefits,

supplements or payments as provided in existing individual and collective agreements or employer’s

practices or policies.

Paternity Leave Act of 1996- see Azucena

1. Coverage

Makati Haberdashery vs NLRC, 179 SCRA 449 (89)Nature: Petition for certiorari to review the decision of the NLRCFacts:Pelobello and Rivera, a salesman for Haberdashery were leaving together when they were found with an open package containing a jusi barong Tagalog. Consequently dismissed after they failed to submit an explanation to company.

Union was then filing an action against company for: underpayment of

• basic wage• living allowance

non-payment of• holiday pay• service incentive pay

• 13th month pay• benefits provided for under Wage Orders 1,-5

Issue: WON employees paid on piece-rate basis are entitled to service incentive payHeld: NO, fall under exceptions set forth in the implementing rulesRatio:> as piece-rate workers being paid at a fixed amount for performing work irrespective of time consumed in the performance thereof, they fall under the exceptions. Also not entitled to holiday pay.

Labor Congress vs NLRC, 290 SCRA 509 (98)Nature: Special Civil Action in the SC. CertiorariFacts:

99 employees of Empire Food Products (repacking snack food) allegedly abandoned their work on January 21, 1991. Security Guard Cairo testified that said workers refused to work which resulted in the spoilage of cheese curls.Issue: WON they were regular employeesHeld: YES, piece-rate workers considered as regular employees

Piece-rate: those who are paid a standard amount for every piece or unit of work produced that is

more or less regularly replicated, without regard to the time spent in producing the same

Ratio: their job was necessary and desirable to biz (manufacture and selling of food products) employment was not dependent on a specific project or season length of time they have been working for respondents they are entitled to:

• holiday pay (Section 8(b), Rule 4, Book 3)

• 13th month pay (no 2 of 13th month pay law)• overtime pay

2. Paternity Leave- Sec 1-6

E. SERVICE CHARGES

96. service charges

All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of 85% for all covered employees and 15% for management. The share of the employees shall be equally distributed among them. IN case the service charge is abolished the share of the covered employees shall be considered integrated in their wages.

Book 3, Rule 6, IRR

Section 1. Coverage.Only to establishments collecting service charges such as hotels, restaurants, lodging houses,

night clubs, cocktail lounges, massage clinics, bars, casinos and gambling houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the government.

Section 2. Employees covered• all employees of covered employers• regardless of their positions, designations or employment status• and irrespective of the method by which their wages are paid, except to managerial

employees.

As used herein, a managerial employee shall mean one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign, or discipline employees or to effectively recommend such managerial actions. All employees not falling within this definition shall be considered rank-and-file employees.

Section 3. Distribution of service charges

• 85-15• 15% shall be for disposition by management to answer for the losses and breakages and

distribution to managerial employees at the discretion of the management in the latter case.

Section 4. Frequency of distributionThe shares referred to herein shall be distributed and paid to the employees not less than once

every 2 weeks or twice a month at intervals not exceeding 16 days.

Section 5. Permanency of service chargesIn case the service charge is abolished, the share of covered employees shall be considered

integrated in their wages. The basis of the amount to be integrated shall be the average monthly share of each employee for the past 12 months immediately preceding the abolition or withdrawals of such charges.

Section 6. Relation to agreements-Same-

Section 7. This rule shall be without prejudice to existing and future CBAs.Nothing in this rule shall be construed to justify the reduction or diminution if any benefit being

enjoyed by any employee at the time of effectivity of this rule.

Eastern Assurance and Surety Corp vs Secretary of LaborNature: Special Civil Action of certiorari to review the order of the Sec of LaborFacts:J & B Manpower Specialist, Inc applied for a license with the POEA to engage in business as a recruitment agency.

They, together with Eastern Assurance filed a surety bond to ensure faithful compliance of rules and regulations promulgated by Ministry of Labor.

Subsequently, JB failed to deploy 33 complainants and the latter filed claims for refund.

Issue: WON POEA has jurisdiction over caseHeld: YESRatio:

Rule-making power of Sec gave POEA on its own initiative or upon filing of a complaint or report or upon request for investigation by any aggrieved person to conduct the necessary proceedings for the suspension or cancellation of the license or authority..

Implicit here is the award of appropriate relief to the victims (claims for refund granted)

Issue: WON Sec of Labor has jurisdictionHeld: Yes, because these are complaints for violation of Articles 32 and 34(a) of Labor Code

32. Fees to be paid by workers

34. Prohibited practicesa) to charge xxx…any amount greater than that specified in the schedule of fees

The penalties of suspension and cancellation of license or authority are imposed and the Sec has the power under Section 35 of the law to apply these sanctions

And in section 36 not only to restrict and regulate the recruitment and placement activities of all agencies but also to promulgate rules and regulations to carry out the objectives and implement the provisions governing said activities.

EASCO no longer liable? NO. was notified/summoned prior to the expiration period of bond or before January 12, 1986.

5. Jurisdiction

5.1. RTC over violations

Section 9, RA 8042. Venue

A criminal action arising from illegal recruitment:1. shall be filed at RTC

of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense

2. Provided that: once first court has acquired jurisdiction, the other courts are excluded therein said provisions shall also apply to those criminal actions that have already been filed in court at

the time of the effectivity of this Act.

5.2. LA over money claims

Section 10. Money claims

Cases: claims arising out of an EE relationship or by virtue of any law or contract involving Filipino workers for overseas deployment

claims for actual, moral, exemplary and other forms of damagesWho: Labor Arbiters of NLRCWhat: original and exclusive jurisdictionWhen: within 90 calendar days after filing of complaint

Joint and several liability: for principal and agency provision is incorporated in the contract for overseas employment shall be condition precedent for its approval

On performance bonds: file by recruitment/ placement agency answerable for all money claims or damages that may be awarded to workers juridical persons’ corpo officers, directors, and partners shall be jointly and solidarily liable.

On liabilities: shall continue during the entire period or duration of employment contract shall not be affected by any

• substitution• amendment or• modification• made locally or in a foreign country

The following shall be paid within 4 months from the approval of the settlement: compromise settlement amicable settlement voluntary agreement on money claims inclusive of damages

Termination of overseas employment without just, valid or authorized cause: full reimbursement of hit placement fee

• with 12% interest per annum• plus his salaries for the unexpired portion of his employment or• for 3 months for every year of the unexpired term, whichever is less

Non-compliance with the mandatory periods for case resolutions shall result to:1. salary withheld until official complies therewith

2. suspension for not more than 90 days

3. dismissal from service with DQ to hold any appointive public office for 5 years

@ without prejudice to any liability incurred under other existing laws or rules as a consequence of violating the provisions of this paragraph

5.3 POEA over administrative and disciplinary cases

Section 28, RA 8042. Country-Team Approach all officers, reps, and personnel of Phil govt posted abroad

• shall act as one country-team • with a mission• under the leadership of the ambassador

The ambassador may:• recommend to the Sec of Dept of Foreign Affairs• the recall of ORP• for acts inimical to the national interest • such as, but not limited to, failure to provide the necessary services to protect the rights

of overseas Filipinos

The Sec of DFA shall:• endorse such recommendation

• to the dept secretary concerned for appropriate action• pending action, person recommended for recall may be placed under preventive

suspension

Consulates shall also be part of country-team. In the implementation of this approach,

• visiting Philippine delegations shall be provided full support and information

B. Public Sector Agencies

12 (f) to strengthen the network of public employment offices ..yada yada yada

14 (a) to organize and establish new employment offices xxx… as the need arises

Section 3, EO 247 (Reorganizing the POEA)Powers and Functions of POEA:

a. regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system

b. formulate a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and domestic manpower requirement

c. protect rights to fair and equitable R/E practices and ensure their welfared. original and exclusive jurisdiction

• all claims from EE relationship• or by virtue of contract• disciplinary cases• pre-employment cases which are

- administrative in character- arising from violation of requirement laws

• violation of rules and regulations including money claims arising therefrom• violation of conditions for issuance of license or authority to recruit workers

Penal: regular courts in close coordination with appropriate depts. And agencies

e. maintain a registry of skills for overseas placementf. recruit and place to service the requirement for trained and competent FW by foreign govts and

their instrumentalities and such other employers as public interest may requireg. promote development of skills and careful selection of Filipino workers for OEh. undertake O market development activities for placement of workersi. secure best terms and conditionsj. promote and protect well-beingk. develop and implement programs for the effective monitoring of returning contract workers,

promoting their retraining and re-employment or their smooth re-integration into the mainstream of the national economy in coordination with other govt agencies

l. institute a system for ensuring a fair and speedy disposition of cases m. speedy and efficient reinforcement of decision laid down through the exercise of its adjudicatory

functionsn. establish and maintain close relationship and enter into joint projects with the

• DFA• PTA• MIAA• DOJ• Dept of Budget and Management• Etc• Also establish and maintain joint projects with private orgs, domestic or foreign

c. Sanctions

35. Suspension and/or cancellation of License or Authority

iMinister of Labor: suspended or can any license or authority for violations of rules and regulations issued by

• Ministry of Labor• Overseas Employment and Development Board• National Seamen Board• Or for violation of the provisions of this and other applicable laws, general orders and

letters of instruction

39. Penalties

Violation PenaltyIllegal recruitment constitutes economic sabotage Life imprisonment AND

100 thouLicense or holder of authority violating any provision of this title or its R/R

2-5 years OR

10-50thou OR

bothNonholder of either violates provision 4-8 years OR

20-100thou OR

BothJuridical persons commit violation Officer gets penalty

Aliens get deported

In all cases, conviction shall cause: automatic revocation of license or authority all permits and privileges forfeiture of cash and surety bonds

• in favor of Overseas Employment Development Board or the National Seamen’s Board who will use the same to promote their objectives

Note: Article 38© Illegal recruitmentc. The minister of Labor and Employment or his reps shall have power to cause arrest and detention of such nonlicensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the search of the office or premises and seizure of docus, paraphernalia, properties, and other implements used in illegal recruitment activities and closure of companies, establishment, and entities found to engaged in the recruitment of workers for OE, without having been licensed to do so.

--declared unconstitutional per Const Article 3, Sec 2Salazar vs Achacoso, 183 SCRA 145 (90)

2. Alien Employment Regulation

Article 12, Sec 12, Consti:The State shall promote the preferential use of Filipino labor, domestic materials and locally

produced goods, and adopt measures that help make them competitive.

Article 40. Employment permit of non-resident aliens alien seeking admission for employment domestic or foreign employer who desires to engage an alien for employment in the Philippines

The employment permit may be issued: to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines

• who is competent, able and willing• at the time of the application

• to perform the services for which the alien is desired

to an enterprise registered in preferred areas of investments• upon recommendation of the government agency charged with the supervision of said

registered enterprise

Article 41. Prohibition against transfer of employment

a. alien cannot transfer to another job or change employer without approval of Sec

b. 289 and 290 shall apply for non-resident alien who shall take up employment in violation of this title and its r/r(1-10 thou or 3 months-3 years or both)(imposed on guilty officers)

Alien worker shall be subject to deportation after service of his sentence.

Article 42. Submission of listEmployer of non-resident foreign nationals shall:

submit a list of such nationals with SoL within 30 days after such date indicating their

• names• citizenship• foreign and local addresses• nature of employment• status of stay

SoL shall then determine if they are entitled to an employment permit.

Notes:

Employment of aliens resident aliens are not required to secure employment permit ALIEN EMPLOYMENT REGISTRATION CERTIFICATE (aerc)- for immigrants and resident aliens Foreigners may not be employed in certain nationalized business except:

• where Secretary of Justice specifically authorizes the employment of technical personnel• where the aliens are elected members of the board or governing body of corpos or

associations in proportion to their allowable participation in the capital of such entities• enterprises registered under Omnibus Investment Code (E) 226) may, for a limited period

—in technical, supervisory, or advisory positions

Implementing rules

Book 1, Rule 14, Sec. 5: nonresident alien worker and employer must train at least 2 Filipino understudies for a period to be determined by SLE

Section 6: Issuance of Employment Permit- The Sec may issue an employment permit based on:

1. compliance by the applicant and his employer with the requirements of Section 2 hereof2. report of the Bureau Director as to the availability or non-availability of any person in the

Philippines who is competent and willing to do the job for which the services of the applicant are desired

3. his assessment as to WON the employment of the applicant will redound to national interest4. admissibility of the alien as certified by the Commission on Immigration and Deportation5. The recommendation of the Board of Investments or other appropriate government agencies if the

applicant will be employed in preferred areas of investments or ina accordance with the imperative of economic development

a. Coverage

Almodiel vs NLRC, 223 SCRA 341 (93)

Nature: Petition for certiorari of the decision of the NLRCFacts:Labor Arbiter: declared his termination on the ground of redundancy illegal

NLRC: reversed and set aside Labor Arbiter’s decision- ordered payment of separation pay and financial assistance of 100thou- justified termination due to redundancy

Farle Almodiel was hired by Raytheon Philippines, Inc for the position of Cost Accounting Manager with the following major duties:

plan, coordinate and carry out year and physical inventory formulate and issue out hard copies of Standard Product costing and other pricing analysis if

needed an required set up the Cost Accounting System for the whole company

When the stndard cost accounting system was installed and used at the plants, his services became limited to the submissio of periodic reports that would use computerized forms prescribed and designed by the international head office of the Raytheon Company in California.

January 27, 1989- was told of the abolition of his position on the ground of redundancy

Issue: WON bad faith, malice and irregularity crept in the abolition of his position on the ground of redundancyHeld: NORatio:

employer is under no legal obligation to keep more employees than are necessary for the operation of its biz

fact that the functions of the position were simply added to the duties of another does not affect the legitimacy of the employer’s right to abolish a position when done in the normal exercise of its prerogative to adopt sound business practices in the management of its affairs

employer has much wider discretion in terminating employment relationship of managerial personnel compared to rank and file

As to functions being absorbed by Danny Ang Tan Chair, resident alien without a working permit: Article 40 refers to non-resident aliens only Claim that he is better qualified: untenable

• Ang Tan Chai was also promoted prior to the abolition of his position

b. Conditions for Grant of Permit

DOLE Revised Guideline for the Issuance of Alien Employment Permit (January 4, 1988)

BRENT SCHOOL INC. VS. ZAMORA

NATURE: Petition to review decision of the Office of the President

FACTS: •Alegre was engaved as athletic director by Brent School Inc. for a fixed term of 5 years.•About 3 months before the expiration of the stipulated period, he was given a copy of the report filede by Brent School with DOLE advising it of the termination of his services upon the expiration of his contract.•The ground for the termination was 'completion of contract, expiration of the definite period of employment"•At the investigation conducted by a Labor Cinciliator of the report of termination opf his services, Alegre protested the announced termination of his employment, arguing that although his contract did stipulate that the same would terminate on July 17, 1976, since his services were necessary and desirable in the usual business of his employer, and his employment had lasted for 5 years, he had acquired the status of a regular employee and could not be removed except for valid cause.•Regional Director required the reinstatement of Alegre, as a "permanent employee," to his former position without loss of seniority rights and with full backwages•Sec. of Labor sustained Reg'l. Director

•Brent appealed to the Office of the President which affirmed the Labor Secretary's decision; hence this appeal.

ISSUE: WON Alegre is a permanent employee who can only be removed for valid cause

HELD: No

RATIO: The entire purpose behind the development of legislation culminating in the present Art. 280 of the LC is the prevention of the circumvention of the employee's right to be secure in his tenure. The clause in said article indiscriminately and completely ruling out all written or oral agreements conflicting with the concept of regular employment as defined therein should be construed to refer to the substantive evil that the Code itself has singled out: agreements entered into precisely to circumvent security of tenure. It should have no application to instances where a fixed period of employment was 1) agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employer and absent any other circumstances vitiating his consent; or2) where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter.

Also, from the premise--that the duties of an employee entail "activities which are usually necessary or desirable in the usual business or trade of the employer"--the conclusion does not necessarily follow that the employer and employee should be forbidden to stipulate any period of time for the performance of those activities. There is nothing essentially contradictory between a definite period of an employment contract and the nature of the employee's duties set down in that contract as being "usually necessary or desirable in the usual business or trade of the employer." The concept of the employee's duties as being "usually necessary or desirable in the usual business or trade of the employer" is not synonymous with or identical to employment wioth a fixed term. Logically, the decisive determinant in term employment should not be the activities that the employee is called upon to perform, but the day certain agreed upon by the parties for the commencement and termination of their employment relationship, a day certain being understood to be "that which must necessarily come, although it may not be known when." Seasonal employment, and employment for a particular project are merely instances of employment in which a period, where not expressly set down, is necessarily implied.

PALOMARES VS. NLRC

NATURE: Special civil action in the SC. Certiorari (1997)

FACTS: •Petitioners Palomares and Mutia were hired by respondent National Steel Corp. (NSC) by virtue of contracts of employment for its Five Year Expansion Program (FYEP).•Petitioners along with other employees filed a consolidated petition for regularization, wage differential, and other benefits.•Petitioners and 4 others were adjudged as regular employees of NSC by the Labor Arbiter.•NLRC reversed LA decision, saying that petitioners were project employees and that their assumption of regular jobs were mainly due to peakloads or the absence of regular employees during the latter's temporary leave.•Motion for recon was denied; hence this petition.

ISSUE: WON petitioners are regular employees of NSC

HELD: No

RATIO: The principal test for determining whether an employee is a project employee and not a regular employee is whether he was assigned to carry out a specific project or undertaking, the duration or scope of which were specified at the time he was engaged for that project.

Records show that petitioners were hired to work on projects for FYEP I and II-A. On account of the expiraiton of their contracts of employment and/or project completion, petitioners were terminated from their employment. They were, however, rehired for other component projects of the FYEP because they were qualified.

There is nothing in the records which reveal an attempt to frustrate petitioners' security of tenure. The fact that petitioners were required to render services necessary or desirable in the operation of NSC's business for a specified duration did not in any way impair the validity of their contracts of employment which stipulated a fixed duraiton thereof.

ASIA WORLD RECRUITMENT INC. VS. NLRC

NATURE: Special civil action in the SC. Certiorari (1999)

FACTS: •Petitioner Asia World Recruitment is a domestic corporation with authority granted by the POEA to recruit and deploy Filipino overseas contract workers abroad, and its principal is Roan Selection, a diamond and gold mining firm in Angola, Africa.•Private respondent Medel entered into an employment contract as a Security Officer in petitioner's diamond mine for a period of 12 months.•During his employment, Medel elevated the grievances of his Filipino co-workers to the management, which apparently strained relations between him and management.•3 months after his arrival (on March 10, 1989), Medel received a letter of termination signed by the Gen. Mgr., telling him that the company was not satisfied with his performance within the three-month trial period and that his employment with the company would be terminated on March 13, 1989.•2 days after receiving the notice, he was repatriated to the Phils.•Medel filed a complaint for, among others, illegal dismissal, with the POEA Adjuducation Office, who found petitioner and its pricipal solidarily liable for his illegal dismissal.•NLRC affirmed; hence this petition.

ISSUE: WON Medel was illegally dismissed

HELD: Yes

RATIO: The records clearly showed that Medel was an employee with a fixed period of 12 months. he was therefore an enmployee hired for a fixed term whose employment was to end only at the expiration of the period stipulated in his contract. Thus, it is not a simple case of illegal dismissal of an employee whose employment is without a definite period, rather, the principal cause of action in Medel's complaint is breach of contract of employment for a definite period.

Even if he was only a probationary employee for a period of 3 months, as a probationary employee, he is nonetheless entitled to constitutional protection of security of tenure that no worker shall be dismissed except for cause provided by law and after due process.

PHIL. TOBACCO VS. NLRC

NATURE: Special civil action in the SC. Certiorari (1998)

FACTS: •The Lubat Group is composed of seasonal workers who were previously hired by petitioner for 6-8 months in its Balintawak operations but who were no longer rehired for the 1994 tobacco season. When they asked for separation pay, Phil. Tobacco told them that because they were not in the payroll for 1994, no such benefit would be paid to them.•The Luris Group were factory workers in Phil. Tobacco's Balintawak factory who were terminated because the Balintawak factory will be closed and transferred to Candon, Ilocos Sur due to alleged serious business losses. They are contesting the computation of the separation pay awarded to them.•the LA and the NLRC held that both the Lubat and the Luris groups were entitled to separation pay equivalent to 1/2 month salary for every year of service. Hence this petition.

ISSUES: 1) WON Luris group entitled to separation pay; 2)WON dismissal of Lubat group was legal

HELD: 1) Yes; 2) No

RATIO:

1) Standards that a company must meet to justify retrenchment:

a) the losses should be substantial and not merely de minimis in extentb) the substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employerc) the retrenchment must be reasonably necessary and likely to effectively prevent the expected lossesd) alleged losses if already realized, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence.

Petitioner did not actually close its entire business. It merely transferred or relocated its tobacco processing and redrying operations. Moreover, it was also engaged in, among otehrs, corn and rental operations, which were unaffected by the closure of its Balintawak plant.

Tested against the standards mentioned above, petitioner was not able to prove serious financial losses arising from its tobacco operations. The Statement of Income and Expenses was misleading and inaccurate because it deducted from the tobacco operations alone the operating costs pertaining to all businesses of petitioner, making it appear that all of its expenses--selling, administrative and interest expenses--resulted only from its tobacco processing and redrying operations, and that it incurred no expense in its other profit centers.

Petitioner was not able to establish that the closure of its business operations in its Balintawak plant was in fact due to serious financial losses. Therefore, under the last 2 sentences of Art. 283 of the LC, the dismissed employees belonging to the Luris group are entitled to separation pay "equivalent to 1 month pay or at least 1/2 month pay for every year of service, whichever is higher."

Petitioners also illegally dismissed the Lubat group when it refused to allow them to work during the 1994 season. The employer-employee relationship between petitioner and members of the Lubat group was not terminated at the end of the 1993 season. From the end of the 1993 season until the beginning of the 1994 season, they were considered only on leave, but nevertheless still in the employ of petitioner.

ST. MICHAEL’S INSTITUTE VS. SANTOS

NATURE: Petition for review on certiorari (2001)

FACTS: • St. Michael’s Institute is an institute of learning in Bacoor, Cavite, and respondents

Santos, Magcamit and Rosarda were its regular classroom teachers.• Santos, et. al. were served notices of termination of employment in September 1993;

Santos has been teaching at St. Michael’s since 1979 while the other two began teaching in 1990.

• Apparently, the termination stemmed from their participation in a public rally in August 1993; said rally was organized and participated in by faculty members, parents and some students of the school aimed at calling the attention of the school admin. to certain grievances…

• After the rally, respondents were sent identical memoranda requiring them to explain their acts of leading the rally of students outside of the school premises, preventing students from attending classes and denouncing school authority in their speeches.

• Respondents denied all the accusations attributed to them, and explained that they were invited by the core group of parents and merely joined them in expressing their sentiments.

• The school principal created an investigation committee; said committee recommended their termination from service.

• Their termination letters stated that they were being terminated for “serious disrespect” to their superior, and for “serious misconduct that resulted in the disruption of classes.”

• Respondents filed complaints for illegal dismissal • LA dismissed the complaints for lack of merit—there was just cause for respondents’

dismissal since they were guilty of dereliction of duty and insubordination for failing to exercise the very task that they are duty-bound to perform as teachers of the school,

that is, to conduct classes on the day of the rally; also, the willful conduct of respondents in disobeying the reasonable order of the principal to conduct classes is a just cause for termination and falls within the ambit of Art. 282 of the LC.

• NLRC reversed and held that respondents had been illegally dismissed because the rally which was purposely held to call the school’s attention to the grievances of its teachers and students could hardly be considered as without justification. Also:

o high school faculty formed a labor union during the early part of 1993 and respondents were among the organizers

o certain grievances were aired in a dialogue with the school admin but the dialogue proved futile

o sometime in March 1993 the school issued termination notices to the respondents and 3 others

o respondents filed illegal dismissal complaint with NLRC but the case was settled amicably with the condition that they withdraw their complaint

• CA affirmed NLRC decision; hence this petition

ISSUE: WON respondents were illegally dismissed

HELD: Yes

RATIO: • The reason basically cited for the dismissal is serious misconduct or willful disobedience

for dereliction of duty predicated on their absence for only one day of classes for attending a public rally and denouncing the school authority. The magnitude of the infraction must be weighed and equated with the penalty prescribed and must be commensurate thereto, in view of the gravity of the penalty of dismissal or termination from the service.

• The dismissal meted out on the respondents for dereliction of duty for one school day and denouncing school authority appears to be too harsh a penalty. The respondents are being held liable for a first time offense and, in the case of Santos, despite long years of unblemished service

• In the actual imposition of penalties upon the erring employee, due consideration must still be given to his length of service and the number of violations committed during his employment.

• The burden of proof is always on the employer to prove that the dismissal was for a just and valid cause; evidence must be clear, convincing and free from any inference that the prerogative to dismiss an employee was abused and unjustly used by the employer to further any vindictive end

o In this case, the facts show that respondents were singled out by the school apparently for being officers of the teachers’ union which they formed

• Misconduct: the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not mere error of judgment—as a ground for termination, it must be serious (grave and aggravated and not merely trivial or unimportant)

• Willfulness: characterized by a wrongful and perverse mental attitude rendering the employee’s act inconsistent with proper subordination.

PERPETUAL HELP CREDIT COOP. VS. FABURADA

FACTS: • Perpetual Help hired respondents to work for it; they worked regular hours, were

assigned specific duties, paid regular wages and made to accomplish daily time records just like any other regular employee.

• PHCCI dismissed them, saying that they were not regular employees but were its members and were working for it as volunteers

• Respondents filed a complaint for illegal dismissal with the LA• LA declared respondents illegally dismissed• NLRC affirmed; hence this petition

ISSUES: 1) WON respondents were regular employees2) WON respondents were illegally dismissed

HELD: 1) Yes; 2) Yes

RATIO: 1) respondents were rendering services necessary to the day-to-day operations of PHCCI; this fact alone qualifies them as regular employees.

2) As regular employees, they are entitled to security of tenure and their services may be terminated only for a valid cause, with observance of due process.

• Just causes (Art. 282)o serious misconduct or willful disobedience of lawful orders in connection with the

employee’s worko gross or habitual neglect of dutieso fraud or willful breach of trusto commission of a crime or an offense against the employer or his immediate

family member or representativeo analogous cases

• Authorized causes (Arts. 283 & 284)o installation of labor-saving deviceso redundancyo retrenchment to prevent losseso closing or cessation of operations of the establishment or undertaking, unless the

closing is for the purpose of circumventing the provisions of law• respondents were not dismissed for the above causes, they were dismissed because

PHCCI considered them to be mere voluntary workers, being its members, and as such work at its pleasure.

• Procedural due process requires that the employer serve the employees to be dismissed 2 written notices before the termination of their employment is effected: a) the first, to apprise them of the particular acts or omissions for which their dismissal is sought and b) the second, to inform them of the decision of the employer that they are being dismissed.

• In this case, only one notice was served upon respondents in the form of a Memo. Clearly, PHCCI failed to comply with the twin requisites of a valid notice.

ALFARO VS. CA

NATURE: Petition for review on certiorari of CA decision (2001)

FACTS: • Alfaro was employed by Star Paper as a helper/operator• He took a sick leave for 12 days, and was surprised upon his return to work that

another worker was recruited to take his place, and that he was instead transferred to the wrapping section where the working conditions are more difficult

• When he complained that he was being exposed to hard labor despite the fact that he had just come from an illness, he was told to look for another job because he was dismissed effective that day

• He was made to sign documents which indicated that he was renouncing claims against Star Paper

• He was offered a check of P3000 which will be given to him if he will sign the documents; forced by circumstances, he did sign the documents which were: a resignation letter and a Release and Quitclaim

• Alfaro filed a complaint for separation pay, later amended to illegal dismissal• LA dismissed, and NLRC and CA affirmed—they said that Alfaro resigned voluntarily;

hence this petition

ISSUE: WON Alfaro was illegally dismissed

HELD: No

RATIO: • There is no evidence which shows that he was pressured and made to sign a resignation

letter and Release and Quitclaim against his will and better judgment; this shows that his claim of illegal dismissal is unsubstantiated and a mere afterthought

• If he was indeed illegally dismissed, he should have pursued his claim against Star Paper by immediately filing a complaint for illegal dismissal. As it is, however, he filed a complaint for separation pay only after two years from his alleged dismissal which complaint was amended for the purpose of claiming ID almost 2 mos. Thereafter

• Voluntary resignation: an act of an employee, who finds himself in a situation in which he believes that personal reasons cannot be sacrificed in favor of the exigency of the service; thus he has no other choice but to disassociate himself from his employment

• He negotiated for a resignation with separation pay as the manner in which his employment relations with Star Paper would end. He was already suffering from a lingering illness at the time he tendered his resignation.

• His continued employment would have been detrimental not only to his health, but also to his performance as an employee therein; hence, the termination of employment relations between Alfaro and Star Paper was ultimately, if not outrightly inevitable. Resignation with separation pay was the best option for him under the circumstances.

OCEAN EAST AGENCY VS. NLRC

NATURE: Special civil action in SC. Certiorari (1998)

FACTS: • Respondent Capt. Gucor was hired by Ocean East (manning agent of European

Navigation or ENI) for a period of one year as master of M/V Alpine• He was later informed of his repatriation for his subsequent transfer to another

vessel• He perceived the transfer as an insult to his professional competence, and said that

unless his full benefits are accorded to him he shall refuse to leave the vessel knowing the cause for his repatriatin to be unreasonable

• Ocean East and ENI advised him that his services were not terminated at all, the repatriation being solely for documentation purposes

• His demands fully settled, he agreed to be repatriated• Since his original assignment was already assigned to someone else due to his initial

refusal to be repatriated, he was instrad assigned to M/V Eleptheria-K• He missed said assignment for failure to disembark when ordered to do so• His services were terminated for serious misconduct or willful disobedience• Gucor filed a complaint for ID with the POEA• POEA dismissed for lack of merit, saying that Ocean East and ENI were merely acting

in the exercise of their management prerogative• NLRC reversed and found for Gucor; hence this petition

ISSUE: WON he was illegally dismissed

HELD: No

RATIO: • In order that an employer may terminate an employee on the ground of willful

disobedience to the former’s order, regulations or instructions, it must be established that the said orders, regulations or instructions are a) reasonable and lawful, b) sufficiently known to the employee, and c) in connection with the duties which the employee has been engaged to discharged

• Ocean East and ENI have conscientiously apprised Gucor that his repatriation was solely for documentation purposes preliminary to his transfer to another vessel which the management believes him to be more familiar with.

• Gucor’s defiance of a lawful order posed serious and considerable prejudice to the business of the employer. Ocean East’s order was made within the sphere of its management prerogative. There was a clear, valid and legal cause for his termination

• His refusal to disembark and turn over command of his vessel to its new master when instructed to do so caused great pecuniary damage to his employer. The vessel was at anchorage for a long time disrupting its schedule. Not only that. He was not able to take command of the M/V Havre de Grace, forcing ENI to make the arrangements and assign a new master to it. ENI, exercising maximum tolerance in spite of Gucor’s insubordination, even went as far as assigning him to the Eleptheria-K after he missed the Havre de Grace. He likewise missed this assignment. All this because he believed that his transfer was an insult to his personal and professional capacity. He willfully disobeyed a lawful order of his employer, and his act of insubordination is a valid ground for dismissal.

LOPEZ vs. NLRCOctober 8, 1998

Facts:• Melody Paulino Lopez was employed as a guidance counselor by the elementary department of Letran. She was an

employee of the school from June 1979 to July 1991.

• Lopez organized a Career Orientation Program during which the students were able to witness and mingle with military men in uniform. After such event Lopez noticed that there was a conspiracy of harassment, intimidation and persecution to make her resign. She also found out that group conspired to have her son kicked out from a school. She wrote to Fr. Alarcon about these matters.

• Since then, Lopez became a frequent recipient of several memoranda requiring her to explain several infractions. Unsavory reports unknown to Lopez also surfaced in her file, such as an incident report relating that Lopez allegedly challenged a co-worker to a fight

• Lopez was replaced as elementary guidance counselor and was given the position of Head Psychometrician. When she was about to administer tests to the elementary department, she was refused entry by the security guard upon instructions from a certain Mr. Moralino.

• Later on, Lopez was offered a sizable amount of money in exchange for her voluntary resignation. She refused the offer.

• On February 16, 1991, Lopez reported for work to assist in giving entrance exams to high school students. Mendoza, an employee of the guidance counselor’s office asked from the guard for the key to the office, but Fr. Lao (who was then with the security guard), refused to give the key. Mendoza asked Lopez to intercede for him. At this point, what actually happened appears rather hazy.

Fr. Lao insists that Lopez uttered indecent and obscene remarks against him, while Lopez denied this accusation and in turn accused Lao for embarrassing and humiliating her.

• As a consequence of the February 16 incident, Lopez was preventively suspended for 30 days. She filed a complaint for illegal suspension. Meanwhile a committee was formed to investigate the charges of serious misconduct against Lopez, who explained her side in writing. On May 19, 1981, Lopez received notice of her dismissal from employment on the ground of serious misconduct, commission of a crime (grave oral defamation), insubordination, unfaithfulness to employer’s interest, quarreling and challenging to a fight and loss of confidence…WHEW! The complaint was amended to cover the illegal dismissal.

• The LA found that Lopez was dismissed for just cause and due process. However, it ordered Letran to pay separation pay. The NLRC reversed due to absence of just cause and due process but ordered Letran to grant separation pay in lieu of reinstatement. The claim for damages was dismissed.

Issue: WON a finding of an illegal dismissal ipso facto, results in the reinstatement of the dismissed employee

Held: NO

Ratio:

• There is no question that Lopez was illegally dismissed. Letran failed to establish by concrete and direct evidence the charges imputed against Lopez.

Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work is one of the grounds or just causes for termination of an employee. But there was no serious misconduct in this case because Lopez was merely interceding for another employee when the incident occurred. Such incident certainly was not in relation to her work as Head Psychometrician.

• In general, the remedy for illegal dismissal is the reinstatement of the employee to his former position without loss of seniority rights and payment of backwages. But there may be instances when reinstatement is not a viable remedy – as in this case – the relations between the employer and the employee have been so severely strained that it is not advisable to order reinstatement.

• Art. 279 of the Labor Code, as amended, provides that "an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of

allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement."

Pursuant to this rule, illegally dismissed employees are entitled to:(1) Reinstatement and full backwages – both reliefs are available to the illegally dismissed employee as a matter of

course.(2) Separation pay and full backwages – if reinstatement is not possible. The reliefs of separation pay and

backwages are CUMULATIVE, not alternative.

• Due to the personal animosities that have been generated as a result of the circumstances of this case, reinstatement would not be in the best interest of the parties. Thus, the NLRC correctly awarded separation pay equivalent to one month’s salary for every year of service.

• However, backwages should also be awarded in addition to separation pay. In accordance with the ruling in Bustamante vs. NLRC, an illegally dismissed employee (after March 21, 1989, or the date of enactment of RA 6715) is entitled to his full backwages from the time his compensation was withheld from him (or the time he was illegally dismissed) up to the time of his actual reinstatement. Full backwages means that there is no deduction of earnings derived elsewhere by the employee during the period of illegal dismissal. The backwages shall be computed from the date of dismissal from service up to the date of finality of this decision.

• Lopez is not entitled to moral and exemplary damages because there was no showing that her dismissal was effected in a wanton or oppressive manner.

MEDINA vs. CBS-DZWXMay 28, 1993

Nature: Petition for certiorari of the resolution of the NLRC.

Facts:• The petitioners are rank and file employees of Radio Station DZWX at Baguio City which is operated by the

Consolidated Broadcasting System (CBS), a corporation engaged in the broadcast media industry.

• On August 31, 1984, the Area Manager issued notices of termination dated July 24, 1984 individually to the petitioners. The LA ruled that the petitioners were illegally dismissed and ordered CBS to reinstate them with full backwages limited to three years. CBS was also found guilty of unfair labor practice (The company interfered with, restrained and coerced the petitioners in the exercise of their rights of self-organization.) The NLRC affirmed.

• On February 8, 1990, the petitioners filed a Motion for Issuance of Writ of Execution, because CBS did not reinstate them to their previous job but instead offered them assignments in Davao or Cebu. In view of this refusal to reinstate, the petitioners ask for additional backwages from receipt of the NLRC Resolution dated March 20, 1989 until their actual reinstatement.

While the motion was being resolved, CBS paid the backwages limited to three years.

• The LA issued a Writ of Execution ordering CBS to reinstate the petitioners but denied the petitioners’ claim for backwages under RA 6715. The NLRC dismissed the petitioners’ appeal because Art. 223 of the Labor Code does not apply since the case was decided by the LA on May 8, 1988 or before the enactment of RA 6715.

Art. 223, as amended by RA 6715In any event, the decision of the LA reinstating a dismissed or separated employee insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or at the option of the employer, merely reinstated in the payroll.

Issue: WON the refusal to reinstate entitles the illegally dismissed employees to additional backwages pursuant to RA 6715

Held: YES, but only from the time that RA 6715 took effect.

Ratio:

• Art. 223 (as amended by RA 6715), cannot cover the period before March 21, 1989 during which petitioners remained jobless due to CBS’s failure to admit them back to work. This provision may be applied but only from the time RA 6715 took effect on March 21, 1989.

• Under Art. 223 of the Labor Code, the employer has two options in order for him to comply with an order of reinstatement.

(1) The employer can admit the dismissed employee back to work under the same terms and conditions prevailing prior to his dismissal or separation or to a substantially equivalent position if the former position is already filled up.

(2) The employer can reinstate the employee merely in the payroll.

If the company fails to exercise any of the options above, it can be compelled under pain of contempt to pay instead the salary of the employee.

• The right of a person to his labor is deemed to be property within the meaning of the constitutional guaranty. Therefore, he should be protected against any arbitrary and unjust deprivation of his job. The employee should not be left without a remedy in case the employer unreasonably delays reinstatement.

• The unjustified refusal of the employer to reinstate an illegally dismissed employee entitles the employee to the payment of his salaries, from the date the employer failed to reinstate despite an executory writ of execution served upon him. This is in accord with the mandate of Art. 279 which awards full backwages until ACTUAL reinstatement.

• NOTE: The court also awarded additional backwages equivalent to three years without qualification and deduction. This is due to the evident bad faith and obstinacy on the part of CBS to reinstate petitioners despite a final order of reinstatement.

Thus, two amounts of backwages are awarded:(1) Award of LA, already received by the petitioners – intended to restore to some extent income of the employee

that was lost by reason of the illegal dismissal.(2) Award of SC – intended to indemnify the employee as a result of the unjustified failure to reinstate.

This is not in violation of the three-year limitation on backwages (Mercury Drug Rule) because such rule admits of certain exceptions. One such exception is when there is obstinacy or deceit in trying to defeat the judgment for reinstatement and consequently prolonged non-satisfaction of the judgment, as in this case.

• The case has not become moot and academic even if the parties agreed for the payment of separation pay instead of reinstatement. First of all, the agreement is not binding because it was made without the assistance of the LA. Also, the agreement operates as a quitclaim because it was entered into so that the petitioners would withdraw their complaints.

Petition granted.

UNION OF SUPERVISORS (RB) NATU vs. SEC. OF LABORMarch 29, 1984

Nature: Petition to review the decision of the Secretary of Labor

Facts:• In 1974, a complaint for unfair labor practice was filed by Norberto Luna against Republic Bank.

• While the case was still pending, there was a substantial change in the corporate structure of Republic Bank. To save the bank from financial collapse, an agreement was entered into between the old stockholders that the Philippine Sugar Commission (PSC) will buy a substantial portion of the bank to inject fresh capital.

• As a consequence of this reorganization, the old Republic Bank became the Republic Planters Bank, with new controlling stockholders, board membership and management. The bank was also made the financing arm of the PSC.

• On November 12, 1981, the Supreme Court rendered a decision finding that Luna was illegally dismissed by Republic Bank. The court held that Luna is entitled to reinstatement to his former position as San Juan Branch Manager, without loss of seniority rights and other benefits and increases recognized by law or granted by the bank during the period of the illegal dismissal, with backwages limited to three years. Republic Planters Bank only learned of this case after it was furnished a copy of the decision. The old management did not advise the present management of the pendency of the case.

• Thus, the bank filed a manifestation and motion to bring to the attention of the SC these facts and circumstances that occurred while the case was still pending. The bank argues that it should not be made to suffer the consequences of the unfair labor practices of the old management. The bank also manifested reinstatement of Luna to his old position would disturb the current organizational structure of the company.

• Before the court ruled on the motion, the bank paid Luna his backwages equivalent to three years without qualification.

Issue: WON Luna should be reinstated to his former position

Held: NO, he should be reinstated to a substantially equivalent position.

Ratio:• Reinstatement is a restoration to a state from which one has been removed or separated. It is the return to the

position from which he was removed and assuming again the functions of the office already held.

Reinstatement presupposes that the previous position from which one had been removed still exists, or that there is an unfilled position more or less of similar nature as the one previously occupied by the employee.

• Closure of business – There was no closure of business notwithstanding that the bank was almost at a brink of a financial ruin. Despite the widespread restructuring and reorganization, the position previously held by Luna was not abolished, but is now held by the incumbent manager who replaced him.

• Section 4, Rule 1, Book VI of the Implementing Rules states that:“An employee who is separated from work without just cause should be reinstated to his former position unless such position no longer exists, at the time of his reinstatement, in which case he shall be given a substantially equivalent position in the same establishment without loss of seniority rights.

Even though his former position still exists, Luna cannot be reinstated as San Juan Branch Manager because such position relates to trust and confidence and therefore the incumbent manager who has already won the company’s trust and confidence should not be dismissed in favor of Luna, whose competence and integrity has not been tested.

The fact that Luna had worked for the bank for 22 years without any showing of irregularity in the performance of his duties DOES NOT prove that he has the trust and confidence of the bank.

• Economic and Business Conditions - The reinstatement remedy must always be adapted to economic-business conditions. The bank had to undergo innovations (such as the replacement of management, hiring of new managers) to ensure recovery. To order the reinstatement of Luna to his former position would undermine the bank’s efforts at recovery

Considering these conditions, it is inevitable that these be reflected in the desire for efficient and productive management. This can only be effectuated if Luna is reinstated to a substantially equivalent position and the incumbent manager who is now holding Luna’s former position should be allowed to continue with his “tested” competence and integrity.

Other issues:(1) Is Luna entitled to increases and benefits recognized by law or granted by the bank during the period of his

dismissal?

NO. Mere continuance as an employee does not qualify him for benefits and increases. Benefits and increases are allowed because of outstanding performance of duties and not solely because of the length of service.

(2) Can the bank deduct the income derived by Luna from other sources during his illegal dismissal from the amount of backwages to be paid?

Generally YES. An employer is entitled to deduct from what the Court orders to be paid as backwages whatever an employee has earned elsewhere during the period for which backwages are supposed to be paid. Such qualification is implied in all judgments ordering reinstatement, unless otherwise expressly ordered by the Court. (NOTE: This ruling no longer applies after RA 6715 was enacted on March 21, 1989. See Bustamante vs. NLRC case)

However, the bank can no longer make deductions because it has already paid the full amount to Luna. Equity must operate in favor of the employee equally as it favors the employer.

DIVINE WORD HIGH SCHOOL vs. NLRCAugust 6, 1986

Nature: Petition to review the decision of the NLRC.

Facts:• Luz Catenza, a high school teacher of Divine Word College, filed a complaint for illegal dismissal against her

employer. In her complaint, Catenza alleged that she went on a vacation leave but when she tried to report back to work, she was informed that she is not anymore allowed to teach because of the “misdeeds” and “immoral acts” of her husband Pablo, who was then the principal of the same school

• In its answer to the complaint, the school alleged that Catenza was dismissed not because of the acts of her husband, but because of her own contemporaneous and subsequent conduct of covering up and concealing the immoral acts of her husband. Catenza apparently threatened to kill Remie Ignacio, the victim of her husband’s immoral acts.

• The Labor Arbiter held that there was illegal dismissal, and ordered the reinstatement of Catenza. The NLRC modified this decision by giving Catenza a choice of whether she wanted to be reinstated with full backwages or be separated from the service with termination pay. (NOTE: The NLRC considered the moral repercussions of Catenza’s act which it may have towards the minds of the students of the Divine Word, which was a catholic institution.)

Issues: (1) WON there was illegal dismissal(2) If yes, WON her reinstatement is proper

Held: (1) YES

A review of the records clearly shows that Catenza was dismissed without valid cause. The reason why she was dismissed was because of the alleged immoral conduct of her husband. However, her husband was never investigated nor was he ever convicted of the serious act alluded to him. Catenza should not be made to suffer for her husband’s indiscretion and infidelity.

(2) NO

Although Catenza was found to be illegally dismissed, her reinstatement is not proper. Her continued presence in the school may be met antipathy and antagonism by the Catholic school community.

Thus, Divine Word is ordered to pay Catenza separation pay equivalent to one month pay for every year of service, plus her backwages (not to exceed three years) from the time of the dismissal up to the time of actual payment.

NOTE: The issue of lack of due process was also raised by the school, because the LA had considered the case submitted for decision despite the fact that the school had not yet rested its case. However, a scrutiny of the records show that the school was afforded every opportunity to present its evidence but no one appeared at the four consecutive hearings scheduled for the purpose.

ESPEJO vs. NLRCMarch 29, 1996

Nature: Special Civil Action in the Supreme Court. Certiorari.

Facts:• On August 1, 1987, the Cooperative Insurance System of the Philippines (CISP) hired Espejo as General Manager

with a monthly salary of P9,000 plus some privileges, including the use of a company car with driver.

• On September 11, 1989, the Board of Directors of CISP held a meeting to discuss the “cease and desist order” issued by the Insurance Commission against CISP on the grounds of “capital impairment and margin of solvency deficiency.” In order to meet the capital requirements, the Board passed a resolution authorizing the sale of some CISP properties, including the car assigned to Espejo.

• Espejo objected to the proposed sale. The Board did not act on his objection so Espejo was prompted to tender his irrevocable resignation effective October 11, 1989.

• On September 22, 1989, the Board held another meeting, where they affirmed the sale of CISP properties. The Board also resolved to act on Espejo’s resignation.

• On September 26, 1989, the Chairman of the company met with Espejo who manifested that he had changed his mind about resigning and that he would continue as General Manager despite the sale of the company car. The Chairman wrote a memo to the Board on October 3 to inform the latter of Espejo’s oral revocation.

• On October 9, 1989, Espejo received a letter from the Chariman relaying the acceptance of his resignation effective October 11. Espejo replied stating that he was surprised about this action of the Board, since he had earlier verbally withdrawn his resignation. On November 14, 1989, CISP paid Espejo his unpaid benefits.

• Espejo filed a complaint for illegal dismissal and damages. The LA ruled in his favor and ordered CISP to reinstate him to his former position and to pay full backwages limited to three years. The NLRC affirmed the finding of illegal dismissal but deleted the reinstatement for having become moot and academic since Espejo was already 60 years old. The award of backwages was limited to 18 months.

Issue: WON an illegally dismissed employee may be reinstated even if he had already reached retirement age

Held: NO

Ratio:• CISP did not have any retirement plan for its employees. Thus, Sec. 13 Book IV of the Omnibus Rules shall apply.

This rule provides that in the absence of a retirement plan, an employee may be retired upon reaching the age of 60 years. This provision has been construed to mean that an employee may retire, or may be retired by his employer, upon reaching sixty.

Thus, Espejo cannot be reinstated anymore because he was already sixty years old at the time the decision was rendered.

• Generally, an illegally dismissed employee who cannot be reinstated is entitled to separation pay and backwages. However, considering that Espejo has already reached the statutory retirement age of sixty, he is only entitled to backwages. He is entitled to backwages because it is a form of relief that restores the income lost by reason of the unlawful dismissal. He is NOT entitled to separation pay because separation pay is oriented towards the immediate future, the transitional period the dismissed employee must undergo before locating a replacement job.

• However, the amount of backwages should only cover the time when Espejo was illegally dismissed up to the time when he reached sixty (from October 11, 1989 to January 31, 1990).

• Moral and exemplary damages cannot be awarded because the decision to sell the company car was made by the Board, and not the individual whom Espejo considers to be his enemy. Also, the sale was made to meet certain requirements of the Insurance Commission.

CISP also relied on the term “irrevocable” in accepting the resignation and did not take into account Espejo’s change of heart. This misapprehension of Espejo’s intentions cannot be deemed bad faith on the part of CISP.

Judgment affirmed, but portion relating to period of backwages set aside. LA ordered to compute award of backwages.

General Milling Corp vs Torres, 196 SCRA 215 (91)(digest from book)

Facts:The Department of Labor issued an alien employment permit in favor of Earl Timothy Code, a US citizen, as sports consultant and assistant coach for GMC.

Later, Board of Special Inquiry of the Commission on Immigration and Deportation approved Cone’s application for a change of admission status from temporary visitor to pre-arranged employee.

A month later, GMC requested renewal for Cone’s permit and that it be allowed to employ Cone as a full-fledged coach. DOLE Regional Director granted request.

Basketball Coaches Association of the Philippines: GMC failed to show that there is no person in the Philippines who is competent and willing to do the services required nor that the hiring of Cone would redound to national interest.

Issue: WON permit revocation was validHeld: YESRatio:

GMC’s right to choose is limited by statutory requirement of an employment permit No impairment of right to contract since requirement of alien employment permit were in

existence long before GMC and Cone entered into their contract of employment Labor Department, not Immigration Commission, is the agency vested with jurisdiction to

determine the question of availability of workers.

3. Development of Human ResourcesRA 7796

a. Manpower Development- Technical Education and Skills Development of Filipino Middle-Level Manpower

1. Definition- Section 4(e) Middle-Level Manpower refers to those:

a. who have acquired practical skills and knowledge through formal or non-formal education and training equivalent to at least a secondary education but preferably a post-secondary education with a corresponding degree or diploma

b. skilled workers who have becomes highly competent in their trade or craft as attested by industry

2. Policy- Section 2to provide technical education and skills development in support of the development of high quality Filipino middle-level manpower responsive to and in accordance with Philippine development goals and priorities

relevant accessible high quality efficient

The State shall encourage: active participation of various concerned sectors particularly private enterprises being direct participants in an immediate beneficiaries of a trained and skilled workforce in providing technical education and skills development opportunities

3. Goals and Objectives

Section 3.

a. promote and strengthen the quality of technical education and skills development programs to attain international competitiveness

b. focus technical education and skills development on meeting the changing demands for quality middle-level manpower

c. encourage critical and creative thinking by disseminating the scientific and technical knowledge base of middle-level manpower development programs

d. recognize and encourage the complementary roles of public and private institutions in technical education and skills development and training systems

e. inculcate desirable values through the development of moral character with emphasis on work ethic, self-discipline, self reliance and nationalism

b. Training and Employment of Special Workers- Apprentices and Learners

1. Policy Objectives

57. Statement of Objectives1. to help meet the demand of the economy for trained manpower

2. establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies and

3. to establish apprenticeship standards for the protection of apprentices

2. Definition

58-As used in this Title (sections from RA 7796)

a. apprenticeship- practical training on the job supplemented by related theoretical instruction (training within employment with compulsory related theoretical instructions involving a contract between an apprentice and an employer an established period assured by an apprenticeable occupation)

b. apprentice- worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this Chapter (person undergoing for an approved apprenticeable occupation during an established period assured by an apprenticeship agreement)

c. apprenticeship occupation- any trade, form of employment or occupation which requires more than 3 months of practical training on the job supplemented by related theoretical instruction (an occupation officially endorsed by a tripartite body and approved for apprenticeship by the Authority)

f. apprenticeship agreement- employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of the training (a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party)

73. Learners defined- persons hired as trainees in semiskilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively sort period of time which shall not exceed 3 months (persons hired as trainees in semi-skilled and other industrial occupation which are non-apprenticeable. Learnership programs must be approved by Authority)

3. Allowed Employment and When

60. Employment of apprentices only employers in the highly technical industries

only in apprenticeable occupations approved by the Minister of Labor and Employment

58 c. apprentice occupation

74. When learners may be hired. when no experienced worker are available to prevent curtailment of employment opportunities employment does not create unfair competition in terms of labor costs or impair or lower working

standards

4. Conditions of Employment

61. Contents of apprenticeship agreements conform to rules issued by Minister of Labor and Employment shall not exceed 6 months wage rates below legal minimum wage, which in no case shall start below 75 percent of the

applicable minimum wage Minister shall develop standard model programs of apprenticeship

75. Learnership agreement-shall include:a. names and addressesb. duration which shall not exceed 3 monthsc. wages or salary which shall begin at not less than 75% of the applicable minimum waged. a commitment to employ the learners if they so desire, as regular employees upon completion of

the Learnership. All learners who have been allowed or suffered work during the first 2 months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learner.

shall be subject to inspection by Sec of Labor or his rep

76. Learners in piecework.Or incentive rate jobs during the training period shall be paid in full for the work done.

72. Apprentices without compensation. may be allowed by Sec those whose training on the job is required by the school or training program curriculum pr as a

requisite for graduation or board examination

Section 7, RA 7277. ApprenticeshipDisabled persons shall be eligible as apprentices or learners:

provided that their handicap is not much as to effectively impede the performance of job operations in the particular occupation for which they are hired

that after the lapse of the period of apprenticeship of found satisfactory in the job, they shall be eligible for employment

Boie-Takeda Chemicals, Inc vs. de la SernaFacts:Labor and Development Officer Ramos, upon inspection, found out that Boie had not been including commissions earned by its med reps in the computation of their 13th month pay.

Company said that these were not part of the basic salary.

Issue: WON items of employee remuneration should go into the computation of 13th month payHeld: NORatio:

1. not part of basic salary: what employee receives for a standard work period2. commissions are for extra efforts exerted in consummating sales or other related transactions

d. Gratuity and Salary/Wages, Difference

Plastic Town center Corp vs NLRC, 172 SCRA 580Petitioner alleges that on May 1, 1984, it granted a 1.00 increase pursuant to Wage Order No. 4, which is in consonance with section 3 of the CBA was to be credited to the July 1, 1984 increase under the CBA. It was, therefore, a July increase.

Section 3, however, clearly states that CBA granted increases shall be credited against future allowances or wage orders. Thus, the CBA increase to be effected on July 1, 1984 cannot be retroactively applied to mean compliance with WO 4, which took effect on May 1, 1984.

Issue: WON under the principle of fair day’s wage for fair day’s labor, gratuity pay should be computed on the basis of 26 days for 1 month salary since employees are daily paidHeld: NORatio:

1. gratuity is something given freely, or without recompense2. not intended to pay a worker for actual services rendered

3. to reward employees who have rendered satisfactory and efficient service to company

e. effect on benefits

Davao Fruits Corp vs Associated Labor UnionFacts:Payment of 13th month pay differentials

Issue: WON in the computation of 13th month pay given, payments for sick, vacation, and maternity leave may be excluded in the computation thereof, regardless of long-standing company practiceHeld: YesRatio:Basic salary EXCLUDES:

1. cost of living allowance2. profit-sharing payments3. all allowances and monetary benefits which have not been considered as part of the basic salary

(supplementary rules and regulations implanting PD 851)

B. Wage Fixing Machinery1. Rationale for Wage Rationalization

to promote productivity-improvement and gain-sharing measures to ensure a decent standard of living

to guarantee the rights of labor to its juts share in the fruits of production to enhance employment generation in the countryside through industry dispersal to allow business and industry reasonable returns on investment, expansion and growth

The State shall: promote collective bargaining as the primary mode of settling wages and other terms and

conditions of employment minimum wage rates shall be adjusted in fair and equitable manner

• considering regional disparities in the cost of living and other socio-econ factors and the national economic and social development plans

3. Agencies in Wage Fixing Machinerya. National Wages and Productivity CommissionSec 3. 120 Creation of- attached to DOLE for policy and program coordination

121. Powers and Functions of the Commissiona. national consultative and advisory body on matters relating to wages, incomes and productivityb. formulate policies ad guidelinesc. prescribe rules and guidelines for the determination of appropriate minimum wage and

productivity measures at all levelsd. review regional wage levelse. undertake studies, researches, surveys: collect and compile data, disseminate infof. review plans and programs of RTWPBg. exercise technical and administrative supervision over RTWPBh. call national tripartite conference of reps of govt, workers and employers for the consideration of

measures to promote wage rationalization and productivityi. exercise such powers and functions as may be necessary

126. Prohibition against injunction

b. Regional Tripartite Wages and Productivity Board

Sec 3. 122. Creation of RTWPV1. develop plans, programs and projects relative to wages, incomes and productivity improvement

for their regions2. determine and fix minimum wage3. undertake studies, researches, and surveys

4. coordinate with other boards to attain policy and intention5. receive, process and act on application for exemption from prescribed wage rates6. exercise such other powers and functions as may be necessary to carry out their mandate

Nasipit Lumber Co. vs NLRC, 289 SCRA 667Facts:Nasipit applied for exemption from Wage Orders issued by Region 10 Board due to:

1. depressed economic activities due to worldwide recession2. peace and order and other related problems causing disruption and suspension of normal logging

operations3. imposition of environmental fee for timber production in addition to regular forest charges4. logging moratorium in Bukidnon5. etc

Unions claimed that company was not distressed since capitalization has not been impaired by 25%

Issue: WON guidelines by an RTWPB without approval of NWPC is validHeld: NORatio:

1. RA 6727 amended LC and grants NWPC power to prescribe rules and guidelines for determination of minimum wage and productivity measures

2. RTWPB has power to issue wage orders but subject to rules on Minimum Wage Fixing3. NWPC never assented to Guideline No. 34. Insertion of Guideline of ‘distressed industry’ as criterion for exemption is void: irregularly takes

away mandated increase in minimum wage awarded to workers

ALCO application approved: sustained capital impairment of 28.72%

3. Standards/Criteria for Minimum Wage Fixing

Sec 3. 124. regional minimum wages established by regional Board as nearly adequate as is economically feasible to maintain the minimum standards of living

necessary for health, efficiency and general well-being of employees within the framework of national economic and social development program

factors to be considered:a. demand for living wagesb. wage adjustment vis-à-vis consumer price indexc. cost of living and changes or increases thereind. needs of workers and their familiese. need to induce industries to invest in the countrysidef. improvement in standards of livingg. prevailing wage levelsh. fair return of the capital invested and capacity to pay of employersi. effects on employment generation and family incomej. equitable distribution of income and wealth along the imperatives of economic and social

development

5. Wage order123. wage Order

shall take effect after 15 days from its complete publication in at least 1 newspaper of general circulation in the region

Board shall conduct public hearings/consultations, giving notices Aggrieved party may appeal WO to commission within 10 calendar days from publication

• decide within 60 days

The filing of the appeal does not stay order unless the person appealing shall file with commission an undertaking with a surety or sureties satisfactory to the commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed.

c. Wage Distortion, 124 employer and union shall negotiate to correct distortions use grievance procedure under CBA if not resolved, voluntary arbitrator or panel of voluntary arbitrators within 10 calendar days from

the time said dispute was referred to voluntary arbitration

NO CBA: then settled through National Conciliation and Mediation Board if unsolved after 10 calendar days: referred to appropriate branch of NLRC mandatory for NLRC to conduct continuous hearings and decide dispute within 20 calendar days

from time said dispute is submitted for compulsory arbitration

The pendency of a dispute arising from a wage distortion shall not in any way delay the applicability of any increase in prescribed wage rates pursuant to the provisions of law or WO.

Wage distortion: a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative difference in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service or other logical bases of differentiation.

Prubankers Association vs Prudential Bank and Trust CoFacts:Petitioner granted a COLA of 17.50 to its Naga branch employees pursuant to Wage Order RB 05-03.

It also integrated 150 per month COLA into the basic pay of its rank-and-file employees at its Cebu, Mabolo, and P. del Rosario branches.

Issue: WON there was wage distortionHeld: NORatio:

1. quantitative difference in compensation between different pay classes remained the same in all branches in the affected region

2. Disparity in wages between employees holding similar positions but in different regions does not constitute wage distortion but is expected by the law

3. Wage distortion arises when a wage order engenders wage parity between employees in different rungs of the organizational ladder of same establishment

Wage distortion involves four elements:1. an existing hierarchy of positions with corresponding salaries2. a significant change in the salary rate of a lower pay class without a concomitant increase in the

salary rate of a higher one

3. elimination of the distinction between the 2 levels4. existence of the distortion in the same region of the country

establishment (NWPC Guideline No 1 an economic unit which engages in one or predominantly one kind of economic activity with a

single fixed location

C. Wage Payment and Protection1. Form of Payment102. not allowed:

promissory notes vouchers coupons tokens tickets chits or any object other than legal tender, even when expressly requested by employee

Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of the effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by Sec of Labor or as stipulated in a CBA.

1705, CC. The laborer's wages shall be paid in legal currency.

Omnibus Rules, Book 3, Rule 8Section 1. Manner of wage payment : same as LCSection 2. Payment by bank checks, postal checks or money orders

customary on date of effectivity where it is stipulated in a collective agreement or where all the ff conditions are met:

a. there is a bank or other facility for encashment within a radius of 1 kilometer from workplace

b. employer, or any of his agents or reps, does not receive any pecuniary benefit directly or indirectly from the arrangement

c. employees are given reasonable time during banking hours to withdraw their wages from the bank which time shall be considered as compensable hours worked if done during working hours

d. payment by check is with the written consent of employees concerned when there is no collective agreement authorizing the payment of wages by bank checks.

2. Time of Payment

103. at least once every 2 weeks or twice a month at intervals not exceeding 16 days exception: force majeure or circumstances beyond employer’s control no employer shall make payment with less frequency than once a month

Payment of wages of employees engaged to perform a task which cannot be completed in 2 weeks shall be subject to ff conditions, in the absence of CBA or arbitration award:

1. payments are made at intervals not exceeding 16 days, in proportion to amount of work completed

2. that final settlement is made upon completion of work

Sec 3: same as LC

3. Place of payment, 104 at or near the place of undertaking exception: provided by Sec under conditions to ensure greater protection of wages(Sec 7 of RA 6725: through banks with permission of majority AND Labor Advisory on Payment of salaries thru ATM)

Sec 4: other places when:1. by reason of deterioration of peace and orders conditions, or by reason of impending emergencies

caused by fire, flood, epidemic or other calamity rendering payment thereat impossible2. employer provides free transportation to employees back and forth3. under any other analogous circumstances; provided it be compensable

Not allowed: payment in: bar night or day club drinking establishment massage clinic dance hall other similar places where games are played with stakes of money or things representing money

or things representing except in the case of persons employed in said places

4. Direct Payment of wages105. Direct payment of wagesException:a. cases of force majeure or other special circumstances

may be paid thru another person under written authority given by workerb. worker has died

to heirs without need of intestate proceedings claimants of age shall execute an affidavit attesting to their relationship to the deceased and the

fact that they are his heirs, to the exclusion of all other persons affidavit presented it the employer who shall make payment through Sec of Labor or his reps rep shall act as referee in dividing amount payment here shall absolve the employer of any further liability with respect to amount paid.

Sec 5. Except1. employer is authorized in writing by employee to pay his wages to a member of his family2. when authorized by law, including payment of insurance premiums and union dues h\where the

right to check-off has been recognized by the employer in accordance with a collective agreement or authorized in writing by the employees

3. in case of death..same as LC

Maraguinot vs NLRCFacts:

Maraguinot as member of filming crew.Enero as shooting crew.

Tasks: 1. loading and unloading movie equipment2. arranging them3. retuning them to VIVA warehouse4. assist in the fixing of lighting system5. other task that maybe assigned

Sometime in May 1992, they requested for an adjustment in salary according to minimum wage law and they were informed that Vic del Rosario would agree to increase salary if they would sign blank employment contract. When they refused to do so, their services were terminated.

Viva’s defense: 1. only engaged in the biz of distribution and exhibition of movies 2. complainants were thus project employees of producers

Issue: Won they were project employeesHeld: YesRatio:

1. Viva admitted they workers were part of workpool2. regularized: Enero employed for 2 years in 18 projects while Maraguinot for 3 years in 23 projects3. PI also applies to other industries coz there is no substantial distinction between projects

undertaken in the construction industry and the film industry4. Both industries concern projects with a foreseeable suspension of work