2 DLSU LCBO Labor Law and Social

DE LA SALLE UNIVERSITY COLLEGE OF LAW Lasallian Commission on Bar Operations 2018

LABOR LAW AND SOCIAL LEGISLATION Animo Notes Pre-Week Reviewer

Chel Sy LCBO Chairperson Nico Garcia LCBO Vice Chair for Internals Steph Griar LCBO Vice Chair for Externals Pat Costales LCBO Executive Secretary

Tet Valeza Academic Affairs Chairperson

Andrei Elinzano Labor Law and Social Legislation Chairperson

Azanith Payad Academic Affairs Deputy Chairperson

Kella Ortega Labor Law and Social Legislation Deputy Chairperson

Rod Zantua Academic Affairs Deputy Chairperson

Roman Castillo Labor Law I Subject Head Dane Chua Labor Law II Subject Head

FUNDAMENTAL PRINCIPLES AND CONCEPTS Q: Are the state policies on labor under the Constitution self-executing? A: No. These provisions are not intended to be self-executing tenets ready for enforcement through the courts (Tanada v. Angara, 1997). 1997). They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by legislature, in its enactment of laws. The disregard of these provisions cannot give rise to a cause of action in the courts. They are mere guidelines for legislation (Kilosbayan v. Morato, 1995). Q: What are the principles on Labor Law enshrined under Article II of the 1987 Constitution? A: Article II of the 1987 Consitution provides that: (1) The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare (Sec. 18, Art. II, 1987 Consitution); and (2) The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all (Sec. 9, Art. II, 1987 Consitution). Q: Which constitutional provisions are generally not applicable to labor cases? A: The following provisions are generally not applicable because they can only be invoked against the government or the State, but not against a private party like an employer: (1) Constitutional Due Process (2) Right to Equal Protection of the Laws (3) Right Against Self Incrimination (4) Rights to Counsel and to Remain Silent (5) Right Against Unreasonable Searches and Seizures and Right to Privacy of Communication and Correspondence Q: Is the violation by the employer of the notice requirement considered a denial of due process? A: No. The Due Process clause of the Constitution is a limitation on governmental powers and does not apply to the exercise of private power. The purpose for the requirement of notice and hearing is not to comply with the Due Process Clause . Constitutional due process inapplicable to exercise of private power; may only be invoked against the t he government (Serrano v. NLRC, 2000). Q: Differentiate constitutional due process and statutory due process. A: Constitutional due process protects the individual from the government and assures him of his rights in criminal, civil, or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees employees from being unjustly terminated without just cause after notice and hearing. (Agabon v. NLRC, 2004) Q: Define contractual due process. A: Where there is an existing company policy enunciating the procedural due process that must be observed in termination of employment, compliance alone with the statutorily-prescribed statutorily -prescribed procedural due process would not suffice. There must also be compliance with the company prescribed due process procedure. (Abbott Laboratories v. Alcaraz, 2013) Q: When does constitutional due process set in? A: It applies ONLY when the case reaches reach es quasi-judicial or judicial tribunals.

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Q: Is there an obligation on the part of the employer to advise respondent employee or a witness of his right against self-incrimination? A: No, the employer has no affirmative obligation to advise the respondent employee of his right against self-incrimination. It is a right that the respondent employee or witness knows or should know, in accordance with the well known axiom that everyone is presumed to know the law and that ignorance of the law excuses no one. Q: Can the rights to counsel and to remain silent be invoked by the employee? A: No. Rights to counsel and to remain silent may be asserted only in custodial investigation. (Manuel v. N.C. Construction Supply, 1997) Q: Would the failure of the employer to inform the employee who is undergoing administrative investigation of his right to counsel amount to deprivation of due process? A: No. The right to counsel and the assistance of one in investigations involving termination cases is neither indispensable nor mandatory, except when the employee himself requests requests for one or that he manifests that he wants a formal hearing on the charges against him. (Lopez v. Alturas Group of Companies, 2011) Q: Can the employee invoke the right against unreasonable searches and seizure and right to privacy of communication and correspondence against his employer? A: No. The Bill of Rights does not protect citizens from unreasonable searches and seizures perpetrated by private individuals. Such an invasion gives rise to both criminal and civil liabilities. (Waterous Drug Corporation v. NLRC, 1997; People v. Marti, 1991) Q: Do government employees have the right to organize and join concerted mass actions without incurring administrative liability? A: No. Government employees have the right to organize, but they may be held liable for engaging in concerted mass action, it being a prohibited activity under CSC Law (E.O. 181). The right of government employees to organize is limited to the formation of unions or associations excluding the right to strike. (Gesite v. CA, 2004; 2009 Bar) Q: What is the constitutional provision that guarantees protection to labor? A: Under Section 3, Art. XIII of the Constitution: Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality e quality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure , humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Q: What is the nature of a CBA?


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A: While the terms of a CBA constitute the law between the parties, it is not, however, an ordinary contract to which is applied the principles of law governing ordinary contracts. A CBA, as a labor contract within the contemplation of Article 1700 of the Civil Code, is not merely contractual in nature but impressed with public interest, thus, it must yield the common good. (Davao Integrated Port Stevedoring Services v. Abarquez, 1993) Q: What is the principle of co-determination? A: It is the principle where one grants to the workers the right to participate in policy and decision making processes affecting their rights and benefits. (Art. 267, Labor Code; 2007 Bar Exams) Q: Are charitable institutions exempt from paying employees their statutory benefits? A: No. The Constitution guarantees that State shall afford protection to labor. They shall be entitled to security of tenure, humane conditions of work, and a living liv ing wage. Q: What is the general rule on Social Justice with regard to Lab or? A: The State is bound under the Constitution to afford full protection to labor and when conflicting interests of labor and capital are to be weighed on the scales of social justice the heavier influence of the latter should be counterbalanced with the sympathy and compassion the law accords the less privileged workingman. (Fuentes v. NLRC, 1997) Q: What is the exception to the abovementioned general rule? A: Social justice ceases to be an effective instrument for the equalization of the social and economic forces by the State when it is used to shield wrongdoing. (Corazon Jamer v. NRLC, 1997; 2003 Bar) Q: What are provisions that guarantees construction in favor of labor? A: There are two applicable provisions: Article 1702, New Civil Code. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living or the laborer. Article 4, Labor Code. Construction in favor of labor. All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor. Q: Relate Article 1702 of the Civil Code, in relation to Article 4 of the Labor Code. A: Article 4 of the Labor Code enunciates the time honored principle that all doubts in the implementation and interpretation of its provisions should be resolved in favor of labor. It applies to all workers – whether in the government or in the private sector. It appears that Article 1702 is broader in sc ope in that it pertain to “all labor contracts” and not merely to the “implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations.”

It may well be said that the provisions of the Civil Code and the Labor Code do not really differ in essence since the policy of the law is clear – any doubt should always be interpreted and construed in favor labor – which means, in more specific terms, the safety and decent living for the laborer. Q: What are the policies enshrined in Section 3, Article XIII of the Constitution which are not covered by Article 3 of the Labor Code on declaration of basic policy A: They are as follows: (1) All workers shall have the right to peaceful concerted activities, including the right to strike in accordance with law; (2) They shall be entitled to a living wage;


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(3) They shall participate in police and decision-making processes affecting their rights and benefits as may be provided by law; and (4) The state shall promote the principle pr inciple of shared responsibility between workers workers and employers Q: Can the Congress pass a law abolishing the security of tenure clause in the Labor Code? A: Abolition of the security of tenure clause in the Labor Code, is unconstitutional as it goes against the entitlement of workers to security s ecurity of tenure under Section 3, Article XIII of the 1987 Consittution. (2009 Bar) P romotion v. Spouses Cuaresma (2009). Q: Discuss the ruling in Becmen Service Exporter and Promotion A: The Supreme Court held that the relations between capital and labor are so impressed with public interest, and neither shall act oppressively against the other, or impair the interest or convenience of the public. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. Quejada-Lopez (2006). Q: Explain the ruling in Innodata Philippines v. Quejada-Lopez A: In the interpretation of contracts, obscure words and provisions shall not favor the party that caused the obscurity. Consequently, the terms of the contract of employment should be construed strictly against petitioner, which prepared prepared it. Indeed, a contract of employment is impressed with public interest. For this reason, provisions of applicable statutes are deemed written into the contract. For this reason, provisions of applicable statutes are deemed written into the contract. Hence, the “parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other.”

RECRUITMENT AND PLACEMENT Q: What is illegal recruitment? A: Illegal recruitment means any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-license or non-holder of authority, provided, that any such non-license or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged (Sec. 6, RA 8042). Q: What are the types of illegal recruitment? A: (1) Simple illegal recruitment; and (2) Illegal recruitment which is considered as an offense of fense involving economic sabotage. Q: What is syndicated illegal recruitment? A: It is when illegal recruitment is carried out by a group of three or more persons conspiring and/or confederating with one another (Sec. 6, RA 8042) Q: What is large-scale illegal recruitment? A: It is when illegal recruitment is committed against three or more persons whether individually or as a group (Sec. 6, RA 8042). 8042). Q: Is good faith a defense against illegal recruitment? A: No, good faith is not a defense in illegal recruitment. Illegal recruitment is malum prohibitum (Sec. 6 RA 8042). An affidavit of desistance from the complainant in illegal recruitment cases cannot exculpate the offender when the prosecution had successfully proven the latter’s guilt beyond reasonable doubt (People v. Ocden, 2011) Q: Who has the power to issue an arrest order or search warrant? A: In initiating action against illegal recruitments, only judges and not the DOLE Secretary may issue arrest order or search warrant. Labor Law and Social Legislation Animo Notes 2018

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Q: What is the liability of local agency with its foreign principal? A: The local agency is solidarily liable with the foreign principal, hence, severance of relations between the local agent and foreign principal does not affect the liability of the foreign principal (Sec. 10 (2) RA 8042). 8042) . Q: What is the effect of failure of the agency to de ploy a recruit without valid reason? A: When a recruitment agency fails to deploy a recruit without valid reason and without the recruiter’s fault, the agency is obligated to reimburse the recruit’s documentary and processing expenses. Q. What is a private employment agency? A: Any person or entity engaged in the recruitment and placement of workers for a fee, which is collected directly or indirectly to workers, employers or both (Sec. 1(c) Rule I, Book One, IRR of the Labor Code). Code) . Q: May an employer hire a Filipino worker for overseas employment? A: As a general rule, no employer may hire a Filipino worker for overseas employment, except through the Boards and entities authorized by the D OLE.

Exceptions: (1) Members of the diplomatic corps; (2) International organizations; and (3) Such other employers as may be allowed by the DOLE (Art. 18 Labor Code). Q: Who has the power to suspend or cancel a recruiter’s license? A: The power to suspend or cancel a license to recruit employees is vested on the POEA Administrator. (Revised POEA Rules on Land-based Filipino Workers of 2016; 2002 and 2012 Bar) Q: What are prohibited activities? A: Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment, whether or not for profit (Art. 26, Labor Code). Q: Where shall the State allow the deployment of overseas Filipino workers abroad? A: The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. It does not, however, guarantee to promote and facilitate re integration of migrants into the national mainstream. (Sec. 4, R.A. 8042, as amended by Sec. 3, R.A. 10022) Q: What is the rule on foreign remittance? A: It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with the rules and regulations prescribed by the Secretary of Labor and Employment. (Art. 22, Labor Code; 2006 Bar)

LABOR STANDARDS Q: What are the general principles in determining if time is considered as hours worked? A: They are as follows: (1) All hours are hours worked in the workplace, regardless of whether such hours are spent in productive labor or involve physical or mental exertion; (2) An employee need not leave the premises of the whole work place in order that his rest period shall not be counted, it being enough that he stops working, whether within or outside his work place; (3) If the work performed was necessary, or it benefitted the employer, or the employee could not abandon his work and had no replacement, if the work was with the knowledge of his employer or immediate supervisor; and Labor Law and Social Legislation Animo Notes 2018

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(4) When employee is inactive by reason of interruptions in his work beyond his control either: (a) If the employee’s presence at the place of work is required; or (b) If the interval is too brief to be utilized effectively and gainfully in the employee’s own interest (Sec. 4, Rule I, Book III of the Labor Code) Q: What is overtime pay? A: It is an additional pay for work rendered or performed in excess of eight hours a day by employees covered by the eight-hour labor law. The Labor Code is equally applicable to non-profit institutions. A covered employee who works beyond eight hours is entitled to overtime compensation. ( 2002 Bar) Q: What is overtime pay on ordinary working days? A: Regular wage plus at least 25% (Art. 87, Labor Code; 2012 Bar) Q: What is overtime pay on a holiday or rest day? A: Regular wage plus at least 30% (2012 Bar) Q: When may overtime work be required of an employee by the emp loyer? A: The following are the circumstances when the employer may require overtime work: (1) The country is at war or other national or local emergency declared by the National Assembly or the Chief Executive; (2) Necessary to prevent loss of life or property or imminent danger to public safety due to impending emergency in the locality caused by serious accidents, disaster or calamity; (3) Urgent work is needed to be performed on machines, installations, or equipment, equipment, to avoid serious loss or damage to the employer or similar nature; (4) Necessary to prevent loss or damage to perishable goods; or (5) Completion of continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business of the em ployer ( Art. ( Art. 89, Labor Code) Code) Q: Can there be a waiver of overtime pay? A: As a general rule, the t he right to overtime pay cannot be waived. The exception is that when the waiver of overtime pay is in consideration of benefits and privileged which may be more than what will accrue to them in overtime pay. (Meralco v. Workers Union, 1959) Q: Define composite or package pay. A: Composite or “package pay” is an arrangement where the overtime pay already built in. Q: May under-time offset overtime? A: No, under-time work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional a dditional compensation (Art. 88, Labor Code) Q: What are the normal hours of work? A: The normal hours of work of any employee shall not exceed eight hours a day. (Art. 83, Labor Code) The law prescribes a maximum, and not a minimum. Hence, part time work, or a day’s work less than eig ht hours, is not prohibited. Q: What are the conditions for a “compressed work week” schedule to be authorized? A: They are the following: (1) The employee voluntarily agrees to it; (2) There is no diminution in their weekly or monthly take home pay or fringe benefits; (3) The benefits are more than or at least commensurate or equal to what is due the employees without the compressed work week;


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(4) Overtime pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule; (5) No strenuous physical exertion, or that they are given adequate rest periods; (6) It must be for a temporary duration as determined by the DOLE (2005 Bar)

Q: What are compensable hours of work? A: Compensable hours of work are the following: (1) All time when employee employee is required to be on duty or to be at a prescribed workplace; and (2) All time when an employee is suffered or permitted to work. Q: Who are considered as night workers? A: A person whose work requires the performance of a s ubstantial number of hours of night work which exceed a specified limit. This limit shall be fixed by the Secretary of Labor. (RA 10151)

As a general rule, there shall s hall be an additional compensation of 10% of an employee’s employee’s regular wage for each hour of work performed between 10 PM and 6 AM. (Art. 86, Labor Code) Exceptions: (1) The government and GOCCs; (2) Retail and service establishments regularly employing not more than 5 workers; (3) Domestic helpers and persons in the personal service s ervice of another; (4) Managerial employees; (5) Field personnel and other employees whose time and performance is unsupervised by the employer or on contract basis, purely commission basis, or who are paid a fixed amount for performing work irrespective of the time performance. Q: Is a night worker entitled to rest days? A: Yes. Every employee is entitled to a weekly night off which is usually on a Saturday evening, or a weekly rest period of 24 hours beginning at the start of the night shift. Q: If a night worker works during special days and/or holidays, what is he entitled to? A: He is entitled to premium pay. Q: Is he entitled to overtime pay? A: Yes. It is given for overtime work during day or night while night differential is given only for work done between 10 PM and 6 AM. (Art. 87, Labor Code) Q: Is waiting time considered as working time? A: Yes, if such waiting time is an integral part of employee’s work or if th e employee is required or engaged by the employer to wait.

An employee who is required to remain “on -call” is considered working and therefore should be compensated for such hours. (2004 Bar) Q: What constitutes “while on call”? A: If the employee cannot use the he is required to be on call effectively and gainfully for for his own purpose. He is considered working and therefore compensated for such hours. Q: Define part-time work. A: It refers to hours of work substantially shorter than those considered as normal in the establishment.


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Q: Are part-time workers entitled to service incentive leave? A: Yes. (Art. 82, Labor Code) Q: Define a contract for a piece of work. A: If the goods are to be manufactured especially for the customer and upon his special order, and not fo r the general market, it is a contract for a piece of work. (Art. 1467, Civil Code) Q: Who are piece-rate employees? A: These are employees who are paid by results or other non-time basis. As such, they are not entitled to overtime pay for work done beyond eight hours if the piece rate formula is in accord with the labor department’s approved rates. (DO 125-13) Q: What is holiday pay? A: A one day pay given by law to an employee even if he does not work on a regular holiday (Art. 94, Labor Code). Code). Q: Who are covered by the holiday pay? A: As a general rule, all employees are entitled to holiday pay (Art. 94, Labor Code). Code) .

The exceptions are as follows: (1) Those in the government and GOCC; (2) Those in retail and service establishments regularly employing less than 10 workers; (3) Domestic helpers and persons in the personal service of another; (4) Managerial employees; and (5) Field personnel including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work (Art. 94, Labor Code). Code). Q: How is holiday pay computed? A: An employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent equivalent to twice his regular rate (Art. 94 (b), Labor Code) Code).. Q: Explain the rules on double holiday pay. A: According to “DOLE Explanatory Bulletin on Worker’s Entitlement to Holiday Pay on 9 April 1993” if 2 holidays fall on the same day: (1) If unworked, 200% of basic wage; and (2) If worked, 300% of basic wage (Asian Transmission Corp v. CA, 2004). 2004) . Q: Explain the rules on successive holiday pay. A: An employee is entitled to holiday pay for both days, if: (1) Present on day immediately preceding first holiday; or (2) Works on first holiday, which entitles him to pay on second holiday (Sec. 10 Rule IV IRR of the Labor Code). Code). Q: Who are required to pay 13 th month pay? A: As a general rule, all employers are required to pay all their rank and file employees a 13 th month pay not later than December 24 of every year provided that they have worked for at least 1 month during a calendar year.

The exceptions are as follows: (1) Government employees, including GOCCs except those operating essentially as private subsidiaries of the Government; (2) Employers already paying their employees 13 th month pay or more;


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(3) Employers of household helpers and persons in the personal service; and (4) Employers of those who are paid on purely commission, boundary or task basis and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof (PD 854). 854).

Q: When should the 13th month pay be paid? A: As a general rule, it should be paid not later than December 24 of each year. The exception is that an employer may give to his employees half of the required 13 th month pay before the opening of the regular school year and the other half on or before the 24 th of December every year. Q: Explain the rules on 13 th month pay in special cases. A: (1) Paid by results: Employees who are paid on piece work basis is, by law, entitled to 13 th month pay (Philippine (Philippine Duplicators v. NLRC, 1995); 1995); (2) An employee who is paid a fixed or guaranteed wage plus commission is entitled to 13 th month pay; the basis for computation shall be both his/her fixed or guaranteed wage and commission (Philippine (Philippine Duplicators v. NLRC, 1995); 1995); (3) Those with multiple employers: Government employees employees working part time in a private enterprise, including private educational institutions, as well as employees working in 2 or more private firms, whether on full or part time bases, are entitled to 13 th month pay from all their private employers regardless of their total earnings from each or all of their employers (Revised Guidelines on the Implementation Implementation of PD 851); (4) Private School Teachers: including faculty member of universities and colleges, are entitle, regardless of the number of months they teach or are paid within a year, if they have rendered service for at least 1 month within a year (Revised Guidelines on the Implementation Implementation of PD 851); th (5) Overload pay is not included in the computation of 13 month pay; overload is not overtime as it is additional work done within the normal shift (Letran v. NLRC, 2008); (6) Resigned or separated employee: Before the time for payment of t he 13 th month pay is entitled to this monetary benefit in proportion to the length of time he worked during the year (Revised Guideline on the Implementation Implementation of PD 851); (7) Wage difference: The difference between the minimum wage and the actual salary received by the employee cannot be deemed his 13 th month pay as such difference is not equivalent (JPL Marketing Promotions v. CA, 2005); (8) Employees: Payment of 13 th month pay may be demanded by the employee upon the cessation of Employer-Employee Employer-Employee relationship (Archilles v. NLRC, 1995). 1995) . Q: Who are covered by a service charge? A: It applies only to establishments which collect service charges such as: (1) Hotels, restaurants, lodging house, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses and similar enterprises; and (2) Similar enterprises including entities operating primarily as private subsidiaries of the Government (Sec. 1 Rule VI IRR of the Labor Code) Q: Explain the rules on service charge: A: As a general rule, it i t applies to all employees of covered employers: employers: (1) Regardless of their positions, designations, or employment status; and (2) Irrespective of the method by which their wages are paid

The service charge does not apply to managerial employees (Sec. 2 Rule VI IRR of the Labor Code). Code) . Labor Law and Social Legislation Animo Notes 2018

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Q: How is the service charge distributed? A: (1) 85% for the employees to be distributed equally among them; th em; (2) 15% for the disposition by management, to answer for losses and breakages, and distribution to managerial employees employees at the discretion of the management (Art. 96, Labor Code)

Q: How frequent should the distribution be? A: The share shall be distributed and paid to employees not less than once every 2 weeks or twice a month at intervals not exceeding 16 days (Sec. 4 Rule VI IRR of the Labor Code). Code) . Q: Define a rest day. A: Every employee, regardless of the nature of his work, is entitled to at least one whole day every week, as his rest day. The rest day or day off shall be determined by the employer. However, However, in cases where the employee is required by his religious belief to rest on certain days, such belief shall be respected by the employer. (Art. 91, Labor Code)

It is the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty four (24) consecutive hours after every six (6) consecutive normal work days, subject to CBA and to such rules and regulations as the Secretary of Labor may provide. (Art. 91(a), Labor Code) Q: Explain the “No Work, No Pay” principle. A: As a general rule, a fair day’s wage for a fair day’s labor; otherwise known as, no work, no pay.

However, if the laborer was able, willing, and ready to work but was illegally locked out, suspended or dismissed, or otherwise illegally prevented from working, he is entitled to his pay. (Art. 97, Labor Code) Q: How should employees of the same position and rank be paid? A: If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. (Philex Gold Philippines v. Philex Bulawan Supervisors, 2005) Q: Based on the above rule, who are excluded from its application? A: (1) Farm tenancy or leasehold; (2) Household or domestic helpers, including family drivers and other persons in the personal service of another; (3) Homeworkers Homeworkers engaged in needlework; (4) Workers in registered cottage industries who actually work at home; (5) Workers in registered cooperatives when so recommended by the Bureau of Cooperative Development, upon approval of the Secretary of Labor; (6) Workers in registered barangay micro business enterprise. (Art. 98, Labor Code) Q: What are the elements of wage distortion? A: For there to be wage distortion, there must be: (1) An existing hierarchy of positions with corresponding salary rates; (2) A significant change or increase in the salary rate of a lower pay class without a corresponding increase in the salary of a higher one; (3) The elimination of the distinction between two groups or classes; and


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(4) The distortion exists in the same region of the country. (Prubankers Association v. Prudential Bank and Trust, 1999) Q: How is wage distortion settled? A: Any dispute arising from wage distortion shall be resolved through the grievance procedure as provided for in the applicable collective bargaining agreement and, if the dispute remains unresolved, then through voluntary arbitration. (Bankard Employees Union v. NLRC, 2004) Q: Is wage distortion a valid ground for a strike or lockout? A: No. The legislative intent is to solve wage distortion through voluntary negotiation or arbitration. (Ilaw ng Manggagawa v. NLRC, 1991) Q: Can an employee’s debts be directly deducted from his wage? A: No. The practice of directly deducting payments of debts from the empl oyees’ wages is not allowed. The Labor Code absolutely prohibits the withholding of wages and kickbacks. (Art. 116, Labor Code) Q: Explain the rule on service incentive leave. A: Every employee who has rendered at least 1 year of service s ervice shall be entitled to a yearly service incentive leave of 5 days with pay. (Art. 95, Labor Code)

However, the following are not covered by the general rule: (1) Government employees, including GOCC employees; (2) Domestic helpers and persons in the personal service of another; (3) Managerial employees; (4) Field personnel or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time spent in its performance; (5) Enjoying vacation leave with pay of at least five (5) days; or (6) Establishments regularly employing less than 10 employees. (Sec. 1, Rule V, Book III, IRR of the Labor Code) Q: What is the meaning of “one year of service” A: Service for not less than 12 months, continuous or broker, 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 that provided for in the employment contract, is less than 12 months, in which case said period shall be considered one year. ( Sec. 2, Rule V, Book III, IRR of the Labor Code) Q: When are you entitled to receive your SIL pay? A: The SIL is commutable to its money equivalent if not used or exhausted at the end of the year. (Sec. 5, Rule V, Book III, IRR of the Labor Code)

If the employee wishes to accumulate his leave credits and opts for its commutation upon his resignation or separation from employment, his cause of action to claim the whole amount of his accumulated service incentive leave shall arise when the employer fails to pay such amount at the time of his resignation or separation from employment. employment. (Autobus Transport Systems v. Bautista, 2005) Q: Are piece rate workers entitled to SIL pay? A: No because they are being paid at a fixed amount for performing work irrespective of the time consumed in the performance thereof, they fall under one of the t he exceptions under the IRR of the Labor Code. (Makati Haberdashery v. NLRC, 1989) Q: Who are covered by Maternity Leave?


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A: Every woman in the private sector, whether married or unmarried, is entitled to maternity leave (Art. 131, Labor Code). Q: What are the conditions to be entitled to Maternity Leave? A: (1) A female employee employed at the time of delivery, miscarriage or abortion; (2) She has paid at least three monthly contributions in the 42-month period immediately preceding the semester of her childbirth, or miscarriage (Sec. 14-A,RA 8282); 8282); (3) Employee notifies employer employer of her pregnancy and an d the probable pro bable date of her childbirth, which notice shall be transmitted to the SSS (Sec. 14-A RA 8282). 8282).

Q: What are maternity leave benefits? A: It is equivalent to 100% of her average daily salary credit for: (1) Sixty days for normal delivery; or (2) Seventy-eight Seventy-eight days for caesarian section delivery (Sec. 14-A RA 8282). Q: Who are covered by Paternity Leave? A: All married male employees in the private and public sectors, regardless of their employment status. (Sec. 1(a) IRR of RA 8187). 8187) . Q: What is the purpose of Paternity Leave? A: The purpose is to lend support to his wife during her period of recovery and/or in nursing (Sec. 1(a) IRR of RA 8187). Q: Explain the rules on benefits. A: (1) Applies to the first four deliveries of the employee’s employee’s lawful wife with whom he is cohabiting; (2) It shall be for 7 calendar days, with full pay, consisting of basic salary and mandatory allowances fixed by the Regional Wage Board, if any, provided that that his pay shall not be b e less than the mandated minimum wage; and (3) Availment should not be later than 60 days after the date of delivery (Sec. 1(e) IRR of RA 8187). 8187) . Q: When should the benefit be used? A: Usage must be after the delivery, without prejudice to an employer’s policy of allowing the employee to avail of the benefit before or during the delivery, provided that the total shall not be more than 7 days for each covered delivery (Sec. 5 IRR of RA 8187 ). ). Q: What are the conditions for entitlement? A: (1) He is an employee at the time of the delivery of his child; (2) He is cohabiting with mother of his child; (3) He has applied for paternity leave with his employer within a reasonable period of time from the expected date of delivery by his pregnant spouse; and (4) His wife has given birth or suffered a miscarriage (Sec. 3 IRR of RA 8187). 8187) . Q: Can it be credited to existing benefits? A: If the existing paternity leave benefit under the CBA contract, or company policy is greater than 7 calendar days, the greater benefit shall prevail.


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Where a company policy, contract, or CBA provides for an emergency or contingency leave without specific provisions on paternity leave, the employer employer shall grant to the employee 7 calendar days of paternity leave (Sec. 6 RA 8187). Q: What is parental leave? A: It is the leave granted to a solo parent to enable him/her to perform parental duties (Parental Leave for Solo Parents, RA 8972). Q: Who are covered by parental leave? A: Any solo parent or individual who is left alone with the responsibility of parenthood due to: (1) Giving birth as a result of rape or other crimes against chastity; (2) Death of spouse; (3) Spouse is detained for at least 1 year; (4) Physical and/or mental incapacity of spouse; (5) Legal separation or de facto separation for at least 1 year provided that he/she is entrusted with the custody of the children; (6) Declaration of nullity or annulment annulment of marriage as decreed by a court or by a church; provided that he/she is entrusted with the custody of the children; (7) Abandonment of spouse for for at least 1 year; (8) Unmarried father/mother who has preferred to keep and rear his/her child instead of giving them up to a welfare institution; (9) Any other persons who solely provides parental care and support to a child or children; provided that: a. Said person is duly licensed as a foster parent by the DSWD; or b. Said person is a duly appointed legal guardian by the court; and (10) Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance, or prolonged absence of the parents or solo parent; provided, that such abandonment be for at least 1 year (Sec. 3(a) RA 8972). Q: What are the conditions for entitlement? A: (1) Employee must have rendered at least 1 year of service, continuous or broken; (2) Notified his/her employer that he/she will avail himself/herself of it, within a reasonable period time; and (3) Has presented to employer a Solo Parent Identification Card, which may be obtained from the DSWD office where he/she resides (Sec. 19 IRR of RA 8972). 8972). Q: Explain the rules on grant of flexible work schedule. A: As a general rule, the employer shall provide for a flexible working schedule for solo parents. The exceptions are as follows: (1) The same shall not affect individual and company productivity; and (2) Any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds (Sec. 16 IRR of RA 8972). 8972). Q: When is this benefit terminated? A: A change in the status or circumstance of the parent claiming the benefit shall terminate his/her eligibility for this benefit (RA 8972). 8972). Q: What is leave for victims of violation of RA 9262? A: It is a leave granted to women employees employees who are victims of violence as defined under RA 9262. They are entitled to take a paid leave of up to 10 days, which covers the days that employee has to attend to medical or legal concerns (Sec. 43 RA 9262). 9262). Labor Law and Social Legislation Animo Notes 2018

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Q: What is required to be entitled to this leave? A: The only requirement is for the victim-employee to present to her employer a certification from the barangay chairman or barangay councilor or prosecutor or the Clerk of Court, as the case may be, than an action relative to the matter is pending (RA 9262). 9262). Q: What are provisions against discrimination protecting women workers? A: It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex se x (Art. 135, Labor Code). Code). Q: Is a stipulation against marriage valid? A: No, it shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or upon getting married a woman employee shall be deemed resigned or separated or to actually dismiss, discharge, discriminate merely by reason reas on of her marriage (Art. 136, Labor Code). Code) . Q: What are the exceptions on the stipulation against marriage? A: (1) Employer can prove that the reasonable demands of the business require a distinction based on marital status and there is no better available or acceptable policy which could better accomplish the business purpose, an employer may discriminate against an employer based on the identity of the employee’s spouse (Star Paper v. Simbol, 2006). 2006) . (2) The Court sustained the validity of employer policy prohibiting an employee from having a personal or marital relationship with an employee of a competitor. That situation might compromise the interests of the company (Duncan Association of Detailmen v. Glasco Wellcome, 2004). 2004) . Q: Explain the rules on employment of minors. A: As a general rule, children below 15 years of age shall not be employed (Art. 137(a), Labor Code). Code). The exceptions are as follows: (1) Child workers directly under the sole responsibility of his parents or legal guardian where only members of the employer’s family are employed, provided that: a. His employment does not endanger his life, safety, health and morals; b. It does not impair his normal development; and c. It shall provide the said minor child with the prescribe primary and/or secondary education; (2) Child’s employment or participation in public entertainment or information through cinema, provided that: a. Employment does not involve ads or commercials promoting alcohol, tobacco and its byproducts or violence; b. The employment contract is concluded by by the child’s parent or guardian, with the express agreement of the child, if possible, and approved by the DOLE; c. The employer shall ensure the protection, health, safety and morals of the child; d. The employer shall institute measures to prevent the child’s exploitation or discrimination; and e. The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skill acquisition of the child (Sec. 12 RA 7610). 7610). Q: What constitutes hazardous workplaces? A: (1) Exposure to dangerous environmental elements, contaminants; (2) Construction work, deep sea fishing, and mechanized farming; (3) Handling of explosives and other pyrotechnic products; Labor Law and Social Legislation Animo Notes 2018

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(4) Exposure to use of heavy power-driven machinery; and (5) Exposure to or use of power-driven tools (1013 OSH Standards of DOLE). DOLE). Q: Who is a domestic worker or “kasambahay”? A: Any person engaged in domestic work within an employment relationship such as, but not limited to: general househelp, nursemaid or “yaya”, “yaya” , cook, gardener, or laundry person, but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis (Sec. 4(d) Art. I RA 10361) 10361).. Q: What are the benefits of househelpers? A: (1) Compensation (2) Leave Benefits - A domestic worker who has rendered at least 1 year of service shall be entitled to an annual service incentive leave of 5 days with pay; provided that any unused portion of said annual leave shall not be cumulative or carried over to the succeeding succeeding years. Unused leaves shall not be convertible to cash (Sec. 29, Art. IV RA 10361). 10361) . (3) SSS, PhilHealth and Pag-IBIG - A domestic worker who has rendered at least 1 month of service shall be covered by the SSS, PhilHealth and Pag-IBIG, and shall be entitled to all the benefits in accordance with the pertinent provisions provided by law (Sec. 30 Art. IV RA 10361). Q: What are the rights and privileges given to kasambahays? A: (1) Standard of treatment: The employer or any member of the household shall not subject a domestic worker to any kind of abuse not inflict any form of physical violence or harassment or any act tending to degrade the dignity of a domestic worker; (2) Board, lodging and medical attendance: Basic necessities to include at least 3 adequate meals a day and humane sleeping arrangements; appropriate rest and assistance in case of illnesses and injuries sustained during service; (3) Privacy of communication and personal effects; (4) Access to outside communication: Costs to be borne by the domestic worker; (5) Right to education and training: An opportunity to finish basic education and may allow access to alternative learning systems and, as far as practicable, higher education or technical and vocational training (Sec. 5-9 Art. II RA 10361); 10361) ; (6) Rest period: Aggregate daily rest period of 8 hours per day, and at least 24 consecutive hours of rest in a week (Sec. 20 and 21 Art. IV RA 10361). Q: Explain the rules on termination of kasambahays. A: As a general rule, neither the domestic worker nor the employer may terminate the contract before the expiration of the term (Sec. 32 Art. V. RA 10361). 10361). The exceptions are as follows: (1) The domestic worker may terminate the employment relationship at any time before the expiration of the contract for any of the following causes: a. Verbal or emotional abuse by the employer or any member of the household; b. Inhuman treatment including physical abuse by the employer or any member of the household; c. Commission of a crime or offense against him/her by the employer or any member of the household; d. Violation by the employer of the terms and conditions of the employment contract and other standards set forth under the law; e. Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and Labor Law and Social Legislation Animo Notes 2018

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f. Analogous causes (Sec. 33 Art. V RA 10361) (2) An employer may terminate the services of the domestic worker at any time before the t he expiration of the contract, for any of the following causes: a. Misconduct or willful disobedience of the lawful order of the employer in connection with the domestic worker’s work; b. Gross or habitual neglect of inefficiency in the performance of duties; c. Fraud of willful breach of the trust reposed by the employer on the domestic worker; d. Commission of a crime of offense by the domestic worker against the person of the employer or any immediate member of the employer’s family; e. Violation of the terms and conditions of the employment contract and other standards set forth under the law; f. Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and g. Analogous causes (Sec. 34 Art. V RA 10361) Q: What are the reliefs for unjust termination? A: (1) If the domestic worker is unjustly dismissed: The domestic worker shall be paid the compensation already earned plus the equivalent equivalent of 15 days of work by way of indemnity; (2) If the domestic worker leaves without justifiable reason: Any unpaid salary due not exceeding the equivalent 15 days of work shall be forfeited (Sec. 34 Art. V RA 10361), 10361) , Q: Differentiate apprenticeship and learnership. A: Apprenticeship Highly technical industries

Practical training supplemented theoretical instruction

by

related

Apprenticeable occupations approved by the SOLE Written apprentice agreement ratified by the the appropriate committees More than three months, shall not exceed six (6) months (1) The person is at least fifteen (15), provided those who are at least 15 but less than 18 may be eligible for apprenticeship only in non-hazardous occupation; (2) The person is physical fit for the occupation in which he desires to be trained; (3) The person possesses vocational aptitude.

Learnership Semi-skilled industrial occupations Practical training whether or not such practical training is supplemented by theoretical instructions

Non-apprenticeable Non-apprenticeable occupations Learnership agreement Shall not exceed three (3) months (1) When no experienced workers are available; (2) The employment of learners is necessary to prevent curtailment of employment opportunities; and (3) The employment does not create unfair competition in terms of labor costs or impair or lower working standards.

Q: Who are disabled persons? A: Those suffering from restriction of different abilities, as a result of a mental, physical or sensory impairment, to perform perform an activity in the manner or within the range considered normal for a human being (Sec. 4(a) RA 7277); Q: Define impairment. A: Any loss, diminution or aberration of psychological, physiological, or anatomical structure or function (Sec. 4(b) RA 7277). 7277) . Labor Law and Social Legislation Animo Notes 2018

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Q: Define disability. A: (1) A physical or mental impairment that substantially limits li mits one or more psychological, physiological or anatomical function of an individual or his/her activities; (2) A record of such an impairment; or (3) Being regarded as having such impairment (Sec. 4(o) RA 7277). Q: Define handicap. A: A disadvantage for a given individual, resulting from an impairment or a disability that limits or prevents the function or activity considered normal given his/her age and sex (Sec. 4(d) RA 7277). Q: What are the rights and privilege of disabled workers? A: (1) Equal opportunity for for employment - No 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, privileged, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person (Sec. 5 RA 7277); (2) Reserved positions - 5% of all casual, emergency and contractual positions in the DSWD, DOH, DepEd and other government agencies, offices or corporations engaged in social development shall be reserved for disable persons (Sec. 5 RA 7277) (3) Sheltered employment - If suitable employment for disabled persons cannot be found through open employment, the State shall endeavor to provide it by means of sheltered employment (Sec. 6 RA 7277) (4) Apprenticeship opportunity opportunity - Disabled persons shall be eligible as apprentices or learners provided: o That their handicap is not as much as to effectively impede the performance of job operations in the particular occupation for which they are hired; and o That after the lapse of the period of apprenticeship if found satisfactory in the job performance, they shall be eligible for employment (Sec. 7 RA 7277) (5) Full minimum minimum wage - All qualified handicapped workers shall receive the full amount of the minimum wage rate pursuant to RA 7277 (6) Prohibition on discrimination - No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment (Sec. 32, RA 7277) Q: Is there any incentive received by the employer for employing disabled persons? A: Yes. Private entities that employ disabled persons who meet the required skills or qualifications either as regular employee, apprentice, or learner, shall be entitled to an additional deduction, from their gross income, equivalent to 25% of the total amount paid as salaries and wages to disabled persons; provided, that such entities present proof, certified by the DOLE that disabled persons are under their employ, and that the latter are accredited with the DOH, as to their disability, skills, and qualifications. (Sec. 8(b), RA 7277; 2012 and 2013 Bar)

Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable tax able


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income, equivalent to 50% of the direct costs of the improvements improvements or modifications. However, this does not apply to improvements or modifications of facilities required under BP 344.

POST-EMPLOYMENT Q: What is the four-fold test in determining Employer-Employee relationship? A: There must be: (1) selection and engagement of employee; (2) payment of wage; (3) power of dismissal; and (4) power of control (Atok Big Wedge Co. v. Cizon, 2011). Q: What is the Control Test? A: The so-called control test is commonly regarded as the most crucial and determinative indicator of the presence or absence of the employer-employee relationship. Under this test, the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also a s to the means and methods by which the same is to be accomplished (Atok Big Wedge Co. v. Cizon, 2011).

Q: What is Regular Employment? A: (1) Involves activities which are usually necessary or desirable to the trade or business of the employer ( Art Art 295 LC ); ); or (2) Where any employee has rendered at least one (1) year of service. Q: Define casual/temporary employment. A: It is where the employment has been fixed for a specific project, the completion of which has been determined at the time of the t he agreement of the employee. Q: Define seasonal employment. A: It is one where work during a particular season on an activity that is usually necessary or desirable in the usual business or trade (Begino ( Begino v. ABS-CBN Corp, 2015). Q: Define project employment. A: It is one where work is fixed for a specific project or undertaking the completion of which has been determined at the time of engagement of the employee. The period is not the determining factor, so that even if the period is more than one (1) year, the employee does not necessarily become regular. (2002 Bar) Q: Define probationary employment: A: As a general rule, probationary employment shall not exceed a period of 6 months. The exception is when it is covered by an apprenticeship agreement covering a longer period (Art. 296, Labor Code) Q: What are the effects of probationary employment? A: If a probationary employee is allowed to work beyond six months, he/she becomes a regular employee by operation of law. An employer may determine if the employee is qualified for possible inclusion in the regular force (Holiday Inn Manila v. NLRC, 1993) Q: What are the grounds for terminating a probationary employee? A: A probationary employee could be terminated for (1) just and authorized causes or (2) failure to qualify as a regular employee in accordance with the standards communicated at the time of engagement. (Aliling v. Velinciano, 2012)


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Q: When is there permissible job con tracting? (Independent Contracting) A: There is permissible job contracting when: (1) The contractor carries on an independent business and undertakes to contract work on his own account under his own responsibility according to his own manner and method, free from the control and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work, except as to the results thereof; and (2) When the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other material which are necessary in the conduct of his business (Sec. 8 and 9, D.O. 10-97). Q: What are the stages of resignation? (1) Conduct before resignation (2) Resignation itself (3) Conduct after resignation (e.g. Quitclaim, EE went abroad, EE started working for another company)

There must be before and after conduct that manifests the intention to sever employment.

Q: Is a letter denying accusations for termination but accepting separation pay a resignation letter? A: No. There is no resignation without any conduct before and after the resignation manifesting intent to sever employment. employment. Q: When is constructive dismissal considered to be involuntary resignation? A: It is considered as involuntary resignation in the following cases: (1) Continued employment becomes impossible, unreasonable or unlikely; (2) There is a demotion in rank or diminution in pay; or (3) Clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee (Leonardo v. NLRC, 2000) Q: Explain the floating status of an employee. A: It should last not more than the legally prescribed period of six months. If it exceeds, he may be considered to have been illegally dismissed from service. He is then entitled to corresponding benefits for his separation. (Valdez v. NLRC, 1998) Q: What are just causes for dismissal from employment? A: The following are just causes for dismissal from employment: (1) Serious misconduct or willful disobedience; (2) Gross and habitual neglect by the employee; (3) Fraud or willful breach by the employee of the trust reposed in him; (4) Commission of a crime or offense against the person of his employer or any immediate Member of his family or his duly authorized representative; and (5) Other causes analogous to the enumeration given (Art. 297, Labor Code) Q: Define misconduct. A: Misconduct is a 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 in judgment ( Imasen Philippines Manufacturing Manufacturing Corp. v. Alcon, 1994). Q: Must serious misconduct relate to the work of the employee? A: As a general rule, yes.


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Q: When is there disobedience to a lawful order? (1) The order is known to the employee. He must be informed directly or it be contained in a code of conduct or memorandum. There must be no confusion to the implementation of the order; (2) The order must be lawful. If not, the employee cannot be charged for insubordination for not obeying it. (Coffee Bean v. Arenas, 2015) Q: Whether or not an employee who works in a Catholic institution be charged for insubordination for refusing to marry her boyfriend who got her pregnant? A: No. Immorality is not a religious issue but a secular one. Immorality must be treated not through the eyes of the church but through the eyes of the public. If it is not immoral for the public, then it cannot be considered as immoral. Such order violates the magna carta of women, which gives women to right to choose when and who to marry. An employee, therefore, cannot be charged for insubordination for not heeding to the unlawful order. ( Cadiz v. Brent, 2016) Q: Differentiate gross negligence from habitual neglect. A: Gross negligence connotes want of care in the performance one’s duties. Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances (Nissan Motors Phils., Inc. Inc. v. Angelo, 2011).

Exception: When Exception: When there is (MUD) – causes the employer monetary damage, undermines the authority and creates a hostile environment, disrupts other employees’ work and business. Q: What is the process in the dismissal of a rank-and-file employee for loss of confidence? A: The process is the following: (1) Loss of confidence should not be simulated; (2) It should not be used as subterfuge for causes which are improper illegal or unjustified; (3) It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and (4) It must be genuine, not a mere afterthought to justify their action (Nokom v. NLRC, 2000). 2000 ). Q: What are authorized causes? A: The following are examples of authorized causes: (1) Installation of labor-saving devices (automation); (2) Redundancy (superfluity (superfluity in the particular work); (3) Retrenchment (a) That the retrenchment is reasonably necessary to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual, and real or, if only expected, are reasonably imminent; (b) That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (c) That the employer pays the retrenched employees separation pay equivalent to one month pay or at least one month pay for every year of service, whichever is higher; (d) That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employee's’ right to security of tenure; and (e) That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status efficiency, seniority, physical fitness, age, and financial hardship for certain workers (Asian Alcohol Corp. v. NLRC, 1999). (4) The closing or cessation of operation of the establishment or undertaking and not for the purpose of circumventing the provisions of the Labor Code; and (5) Illness (Art. 297, Labor Code)


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(a) If illness is incurable within six months; (b) Deleterious to his health or his employees; and (c) Certification from public health officer that illness is incurable within six months (Art. 297, Labor Code) Q: What is Security of Tenure? A: As a general rule, employees cannot be terminated from their regular employment. ( Art ( Art 294, LC ) The exception is when the ground for termination is for a just cause or when authorized by law. Security of tenure prevails over management prerogatives. Q: What is the process to be observed in terminating the employment on the ground of just causes? A: The process is the following: (1) A written notice must be served on the employee specifying the ground or grounds for termination and giving him reasonable opportunity within which to explain ex plain his side; and (2) A written notice of termination must be served on the employee indicating that upon due consideration of all the circumstances, sufficient ground have been established to justify his termination ( Art. Art. 282, Labor Code) Code) Q: What is the process in the dismissal of a rank-and-file employee for loss of confidence? A: The process is the following: (1) Loss of confidence should not be simulated; (2) It should not be used as subterfuge for causes which are improper illegal or unjustified; (3) It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and (4) It must be genuine, not a mere afterthought to justify their action (Nokom v. NLRC, 2000). 2000 ). Q: What is the Two Notice Rule? A: The two notice rule states that: (1) The notice stating the particular acts or omissions constituting the grounds for his dismissal; and (2) The notice of the decision to dismiss him, stating clearly the reasons thereof. The employee must also be afforded the opportunity to be heard and defend himself with the assistance of his representative (RCPI v. NLRC 1993). Q: What are the doctrines concerning illegal dismissal? A: (SIT-Pro-Inc) (1) Security of Tenure (ST) (2) Inimical to interests of employer (InE) (3) Totality Doctrine (Tot) (4) Proportionality Doctrine (Pro) (5) Incompatibility Doctrine (Inc) Q: When is an act inimical to the interest of an employer? (MUD) A: (1) Causes monetary damage (2) Undermines authority and creates a hostile environment (3) Disrupts other employees work and operation Q: What is the Totality Doctrine? A: It refers to the dismissal of an employee based on numerous or repeated infractions despite imposed penalties. Such connotes a perverse mental condition. (Alvarez v. Golden Tri Bloc, Inc., 2013) Q: What is the Pro portionality Doctrine? A: The penalty of dismissal shall be proportionate to:


23

(1) (2) (3) (4) (5)

Years of Service Absence of derogatory record Minimal Damage to the employer Not a Manager Insufficiency Insufficiency of Evidence

Q: Whether or not the Proportionality Doctrine may be applied to the dismissal of employees of banks? A: No. the proportionality doctrine cannot be applied because because of the nature of the banking industry. Being imbued with public interest, extraordinary is required to the care of its accounts. (Security Bank v. Singson, 2016) Q: What is the Incapacity Doctrine? A: Dismissal of an employee is based on the mindset of the employee on the contention that he has psychological incapacity or a perverse mental condition to continue his employment. employment. Q: What is the prescriptive period for filing action for illegal dismissal? A: An action for reinstatement by reason of illegal dismissal must be brought within four years from the time of dismissal pursuant to Art. 1146 of the New Civil Code. (Azor Manufacturing v. NLRC, 1999). Q: What is the prescriptive period for money claims? A: General Rule: 3 years from the time of the accrual of the cause of action

Exception: Service Incentive Leave Pay (SILP) is cumulative. The 3 year prescriptive period accrues from the time the employee demands it. Q: What is the twin remedies rule? A: An illegally dismissed employee is entitled to the following twin remedies: (1) Full backwages and monetary benefits; and (2) Reinstatement without without loss of seniority rights (Alto Transportation v. Rodriguez, 2013). Q: What is the effect of reinstatement? A: It restores the employee who was unjustly dismissed t o the position from which he was removed, that is, to his status quo ante dismissal, while the grant of backwages allows the same employee to recover from the employer that which he had lost by way of wages as a result of his dismissal. (Santos v. NLRC, 1987) Q: What are the forms of reinstatement? A: There are two types of reinstatement namely: (1) Actual or physical reinstatement (2) Payroll reinstatement Q: Define actual or physical reinstatement. A: In actual or physical reinstatement, the employee shall be admitted admitted back to work. Q: Define payroll reinstatement. A: In payroll reinstatement, the employee is merely reinstated in the payroll. Q: How is an order for reinstatement enforced? A: The writ of execution for reinstatement is immediately executory. Q: What is the period covered by the payment of backwages? A: From the date of dismissal of the employee up to the date of actual reinstatement or the finality of the decision (Art. 279, Labor Code)


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Q: How are backwages computed? A: Backwages are computed based on the dismissed employee’s salary at the time of dismis sal, unless there is proof of automatic adjustment of the salary rate. ( Art. ( Art. 279, Labor Code) Code) Q: What are included in the computation of backwages? A: The following are included in the computation of backwages: (1) Allowances and other benefits granted and received by the employee (Evangelista v. NLRC, 1991). (2) Emergency living allowance and monetary equivalents of leaves mandated by law (Espejo v. NLRC, 1996) (3) 13th month pay. Q: What are the circumstances that prevent award of backwages? A: The circumstances that prevent award of backwages are: (1) Death of Employee; (2) Physical and mental incapacity; (3) Business Reverses; (4) Closure of business; and (5) Reinstatement of dismissed employee. Q: What is the prescriptive period for money claims? A: General Rule: 3 years from the time of the accrual of the cause of action

Exception: Service Incentive Leave Pay (SILP) is cumulative. The 3 year prescriptive period accrues from the time the employee demands it. Q: Who are eligible to receive retirement pay? A: All employees in the private sector, regardless of their position, designation or status, and irrespective of the method by which their wages are paid. The exceptions are: (1) Employees covered by the Civil Service Law; (2) Employees in retail, service and agricultural establishments or operations regularly employing not more than 10 employees employees (Sec. 1 RA 7641) Q: What is the difference between retirement plan and the retirement pay law? A: A retirement plan partakes the nature of a contract. The T he retirement pay law applies when: (1) There is no collective bargaining agreement or other applicable employment contract providing for retirement benefits for an employee; or (2) There is a collective bargaining agreement agreement or other applicable employment contract providing for retirement benefits for an employees, but it is below the r equirements set by law (Sec. 1 RA 7641). 7641). Q: What is the age of retirement? A: (1) Where there is a CBA or other applicable employment contract: Any employee may retire upon reaching the retirement age established therein; or (2) Where there is no CBA/retirement plan: a. Optional retirement: An employee, upon reaching the age of 60 years or more, who has served at least 5 years in the said establishment, may retire; b. Compulsory retirement: Upon reaching the age of 65 (Sec. 1 RA 7641) Q: What is the amount of retirement pay? A: The minimum retirement pay shall be equivalent to ½ month salary for every year of service, a fraction of at least 6 months being considered as one whole year (Sec. 1 RA 7641). 7641).


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For the purpose of computing retirement pay, ½ month salary shall include the following: (1) 15 days salary based on the latest salary rate; (2) Cash equivalent of 5 days of service incentive leave; and (3) ½ of the 13 th month pay (Reyes v. NLRC, 2007) Exceptions: (1) Retail, service and agricultural establishment or operations employing not more than 10 employees or workers who are exempted from the coverage of the provision on retirement benefits in the Labor Code; and (2) Where there is a retirement plan of the employer that grants more than what the Labor Code grants (Sec. 1 RA 7641). 7641). Q: Explain the rules on retirement benefits under a CBA or applicable contract. A: Any employee may retire or be retired by his/her employer upon reaching the age established in the CBA; Provided, that such retirement benefits shall not be less than the retirement pay (RA 7641). 7641). Q: What are the retirement benefits of workers who are paid by results? A: The basis for the determination of the salary for 15 days shall be their average daily salary. s alary. The average daily salary is derived by dividing the total salary or earnings for the last 12 months reckoned from the date of retirement by the number of actual working days in that particular period, provided that the determination of rates of payment by results are in accordance with established regulations (BWC Handbook on Workers’ Statutory Monetary Benefits, 2016). 2016). Q: What is the retirement benefit of part-time workers? A: Part-time workers are also entitled to retirement pay of 1 month salary for every year of service after satisfying the following: (1) There is no retirement plan between the employer and the employee; and (2) The employee has reached the age of 60 years, and has rendered at least 5 years of service (RA 7641). Q: Explain the rules on taxability of retirement benefits. A: As a general rule, any provision of law to the contrary notwithstanding the retirement benefits received by officials and employees of private firms, whether individual or corporate, in accordance with a reasonable private benefit plan untainted by the employer: (1) Shall be exempt from all taxes; and (2) Shall not be liable to attachment, garnishment, levy or seizure by or under any legal or equitable process whatsoever (Sec. 1 RA 4917).

Exceptions: (1) To pay a debt of the official or employee concerned to the private benefit plan; and (2) To pay a debt arising from liability imposed in a criminal action (Sec. 1 RA 4917). 4917). Q: What is a reasonable private benefit plan? A: A pension, gratuity, stock bonus or profit sharing plan maintained by an employer for the benefit of some or all of this officials and employees, wherein contributions are made by such employer or officials and employees, or both, for the purpose of distributing to such officials and employees the earnings and principal of the fun this accumulated, and wherein it is provided in said plan that at no time shall any part of the corpus or income of the fund be used for, or be diverted to, any purpose other than for the exclusive benefit of the said officials and employees (Sec. 1 RA 4917). 4917). Q: What is separation pay?


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A: It is an amount that an employee receives at the time of his severance from service and is designed to provide for him during the period that he is looking for another employment (Rasonable v. NLRC, 1996). 1996). Q: Explain the rules on separation pay. A: As a general rule, if the employee is dismissed for cause, he is not entitled to separation pay (PLDT v. NLRD, 1988).

There is no obligation to pay separation pay if the closure is not a unilateral and voluntary act of the employer (National Federation of Labor v. NLRC, 2000). 2000). If the closure or cessation of operation of an establishment is due to serious business losses or financial reverses, the employees are not entitled to separation pay (Art. 298, Labor Code). Q: Is separation pay applicable only to reinstatement as an alternative remedy? A: Yes. Separation pay, as a substitute remedy, is only proper for reinstatement but not for backwages. This remedy is not found in the Labor Code, but is granted in case reinstatement is no longer possible or feasible, such as when any of the following circumstances exist: (1) Under the Doctrine of Strained Relations or where the continued relationship between the employer and the employee is no longer viable due to strained relations and antagonism between them ; them ; (2) When reinstatement proves impossible, impracticable, not feasible, or unwarranted; (3) Where the employee decides not to be reinstated as when he does not pray for reinstatement in his complaint or position paper but asked for separation pay instead; (4) When reinstatement is rendered moot and academic due to supervening events; abd (5) To prevent further delay in the execution of the decision to the prejudice of the private respondent. Q: What is the amount of separation pay? pay? A: An employee is entitled to receive separation pay equivalent to ½ months pay for every year of service, a fraction of at least 6 months being considered as on whole year, if his/her separation from the service is due to any of the t he following: (1) Retrenchment Retrenchment to prevent losses; (2) Closure or cessation of operation not due to serious losses or financial reverses; and (3) Employee is suffering from a disease not curable within a period of 6 months and prejudicial to his/her health or to the health of co-employees (Art. 299, Labor Code). Code). Q: What is the basis of separation pay? A: The basis is the salary rate prevailing at the end of the period of putative service which refers to the period of imputed service for which the employee is entitled to backwages.

MANAGEMENT PREROGATIVE Q: Explain the rules on grant of bonus. A: An employer cannot be forced to distribute bonuses when it can no longer afford to pay. The granting of a bonus is a management prerogative, something given in addition what is ordinarily received by or strictly due the recipient (Producers Bank of the Philippines v. NLRC, 2001) Q: Is a 14th month year-end bonus allowed? A: Yes, the law does not prohibit a negotiated discontinuance of a CBA benefit such as the grand of 14th month year-end bonus (2011 Bar). Q: Can management change working hours?


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A: Yes, management is free to regulate, according to its own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and discipline, dismissal and recall of workers (Manila Jockey Club Employees Labor Union v. Manila Jockey Club, Inc., 2007). Q: Is a stipulation expressly prohibiting an employee from having a relationship with an employee of a competitor company valid? A: Yes. It is a valid management prerogative. The prohibition against personal or marital relationships with employees of competitor-companies upon its employees is reasonable under the circumstances because relationships of that nature might compromise the interests of the company. In other words, the policy is imposed to avoid conflict of interest. (Duncan Association of Detailman-PTGWO Detailman-PTGWO v. Glaxo Welcome Philippines, Inc., 2004) Q: What is the Reasonable Business Necessity Rule? A: When there is a stipulation prohibiting employees to do something such as get married or get pregnant, it will be struck str uck down if it violates the standard of reasonableness. ( Star Paper Corp. v. Simbol, 2008) Q: How may an employer discipline its employees? A: An employer has free reign and enjoys wide latitude of discretion to regulate all aspects of employment, including the prerogative to instill discipline in its employees and to impose penalties, including dismissal, upon erring employees. employees. This is a management prerogative, where the free will of management to conduct its own affairs to achieve its purpose takes form. The only criterion to guide the exercise of its management prerogative is that the policies, rules and regulation on work-related activities of the employees must always be fair and reasonable and the corresponding penalties, when prescribed, commensurate to the offense involved and to the degree of the infraction (St. Michaels Institute v. Santos, 2001). Q: Is transfer of employees a management prerogative? A: The transfer of an employee ordinarily lies within the ambit of management prerogatives. It must be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair play (Composite Enterprises v. Capamaroso, 2007 ). ).

Q: Explain the rule on productivity standard. A: As a general rule, it is part of management prerogative to contract out any work, task, job or project. The exception states that it is an unfair labor practice to contract out services or functions performed by union members when such will interfere with, restrain or coerce employees employees in the exercise of their rights to selforganization (Art. 259(c), Labor Code). Q: Are stipulations imposing a post-employment ban v alid? A: Yes. An employment contract prohibiting employment in a competing company within a reasonable period, work, and place is valid. The employer has the right to guard its trade secrets, manufacturing formulas, marketing strategies, and other ot her confidential programs and information. (2009 Bar) Q: What is a post-employment ban? A: It is an employment contract prohibiting employment in a competing company within a reasonable period of one year from separation. Q: Is a post-employment ban valid? A: Yes, the employer has the right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information (2009 Bar).


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SOCIAL WELFARE LEGISLATION Q: Who are subject to compulsory coverage under the SSS Law? A: The following are subject to compulsory coverage under the SSS Law: (1) All employees not over 60 years of age and their employees; (2) Domestic helpers whose income is not less than P1,000; (3) Self-employed (Sec. 9(a), RA 8282). Q: Who are subject to voluntary coverage under the SSS Law? A: The following are subject to voluntary coverage under the SSS Law: (1) Spouses who devote full time managing the household and family affairs; (Sec. 9(a), RA 8282) (2) Filipinos recruited by foreign based employers for employment abroad. (Sec. 9(c), RA 8282) Q: What are excluded by the SSS Law? A: The following are excluded from the compulsory coverage of the SSS Law: (1) Employment of purely casual and not for the purpose of the occupation or business of the employer; (2) Service performed on or in connection with an alien vessel if he is employed when such vessel is outside the Philippines; (3) Services performed in the employ of the Philippine Government Government or on instrumentality of agency thereof; (4) Service performed in the employ of a foreign government of international organization, or their wholly-owned wholly-owned instrumentality; and (5) Such other service performed by temporary employees (Sec. 8(j), RA 1611).

Q: When is the action commenced? A: The right to institute the necessary action against an employer may be commenced within twenty (20) years from the time the delinquency is known or the assessment is made by the SSS, or from the time the benefit accrues, as the case may be. (2001 Bar) Q: Distinguish a social security from union security. A: Social security refers to protection that will provide income benefits and/or medical care in contingencies like sickness, disability, death or retirement, including in the cases of the GSIS, separation, and unemployment benefits.

Union security, on the other hand, is a clause whereby the employer agrees to employ or continue in employment only workers who are members of the exclusive collective bargaining representative of the employees of said employer in a bargaining unit. (2004 Bar) Q: If an employee sustains an injury on his way to work, what is the presumption under the law? A: It is presumed that such injury arose out of an in the course of his employment. (Lentejas v. Employees’ Compensation Commission, 1991) Q: Is the claimant required to be legally married to be entitled to maternity leave benefit? A: No. Entitlement to said benefit is not dependent on claimant’s being legally married. (2010 Bar). The SSS Law does not discriminate bsed on the civil status of a female member-employee. As long as said female employee has paid at least three (3) monthly contributions on the Q: What are the benefits under GSIS Law? Labor Law and Social Legislation Animo Notes 2018

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A: The following are the benefits under the GSIS G SIS Law: (1) Employees compensation which shall include both income and medical and related benefits, including rehabilitation; (2) Temporary total disability benefit; (3) Permanent total disability benefit; (4) Separation benefit; and (5) Retirement benefit (2004 Bar). Q: Who are covered by the compulsory coverage of the GSIS Law? A: All employees receiving compensation who have not reached the compulsory retirement age, irrespective of employment status; and members of the judiciary and constitutional commissions for life insurance policy (2009 ( 2009 Bar ). ). Q: What are the basic requirements to claim survivorship benefits? A: The following are the basic requirements requirements to claim survivorship benefits: (1) That the GSIS member was in the service at the time of his death; or (2) If separated from service, that he has been in service for 3 years within the 5-year period and has had at least 36 monthly contributions (Sec. 21, RA 8291). Q: What are the advantages of the limited portability law? A: Under the provisions of RA 7699 on “portability”, a covered worker who transfers employment from one sector to another or is employed in both sectors shall s hall have his credible services or contributions in both Systems credited to his service or contribution record in each of the Systems and shall be totalized for purposes of old-age, disability, survivorship and other benefits (2011 Bar).

For this purpose, overlapping periods of membership shall be credited only once.

Q: Who are subject to compulsory coverage under the ECC? A: The following are subject to compulsory coverage under the ECC: (1) All employers; (2) Employees not over sixty (60) years old; (3) Employees over sixty (60) years old and paying contributions; and (4) Filipino employees employed abroad subject to prescribed ECC regulations. Q: When is a non-occupational disease compensable? A: A “non“non -occupational disease” is compensable when: (1) There is proof of a causal connection between the work; and (2) The ailment is established that respondent’s illnesses are connected to his w ork, given the nature of and pressure involved in his/her functions and duties ( GSIS v. Calumpiano, 2014). 2014). Q: When is the theory of increased risks applicable? A: It is only relevant when the ailment or sickness if not classified as an occupational disease ( Jebsens Maritime Inc., Inc., 2011; Juala v. ECC, 1984; 2012 Bar ). ).

LABOR RELATIONS Q: Who may unionize for purposes of collective bargaining? A: The following may exercise the right to self-organization for purposes of collective bargaining: (1) All persons employed in commercial, industrial, and agricultural enterprises;


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(2) Employees of government-owned or controlled corporations established under the Corporation Code; (3) Employees of religious, charitable, medical or educational institutions whether operating for profit or not; (4) Supervisory employees, employees, provided that they do not join the same union as rank and a nd file employees; (5) Alien employees (Sec. ( Sec. 2, Rule II, Book V, IRR of the Labor Code, as amended ); (6) Working children ( Art. 111; P.D. P.D. 603); 603); (7) Home workers (Sec. (Sec. 3, D.O. 05-92); 05-92); (8) Cooperative’s employees which are not members or co -owners thereof (CENECO ( CENECO v. Secretary of Labor, 1991); 1991); (9) Employees of legitimate contractors ( Sec. 8(d), D.O. 18-02). 18-02). Q: Who may unionize for purposes of mutual aid an d protection? A: The following may unionize for mutual aid and protection: (10) Ambulant workers; (11) Intermittent workers; (12) Self-employed; (13) Rural workers; and (14) Those without definite employment. Q: Can confidential employees form their own organiza tions? A: No. While Article 245 of the Labor Code singles out managerial employees as ineligible to join, assist, or form any labor organization, confidential employees are similarly disqualified under the doctrine of necessary implication, which states that what is implied in a statute is as much a part as that which is expressed (Pepsi (Pepsi Cola Products Phil. Inc. v. Secretary of Labor, 1999). 1999 ). Q: Can government employees form their own organizations? A: Yes. All government employees can form, join, or assist em ployees’ organization of their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labor-management labor- management committees, work councils, and other forms of workers’ participation schemes to achieve the same objectives. Q: Explain the substitutionary doctrine. A: It is when a new collective bargaining agent cannot repudiate an existing collective bargaining agreement, because the existing collective bargaining agreement must be honored by a new exclusive bargaining representative because of the policy of stability in labor relations between an employer and the workers. (General Maritime Stevedores’ Union of the Philippines v. South Sea Shipping Line, 1960) Q: Define a bargaining unit. A: It is a group of employees of a given employer, comprised of all or less than all of the entire body of employees, which the collective interest of all employees, consistent with equity to the employer indicate to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law. (University of the Philippines v. Ferrer-Calleja, 1992) Q: What are the tests to determine the constituency of an appropriate bargaining unit? A: The Globe Doctrine states that bargaining units may be formed through separation of new units from existing ones whenever plebiscites had shown the workers’ desire to have their own representatives. (Democratic Labor Union v. Cebu Stevedoring, 1958)

Under the test of Mutuality of Interests where the question is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights. The employees sought to be represented by the collective bargaining agent must have substantial mutual


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interests in terms of employment and working conditions as evinced by the type of work they perform. (San Miguel v. Laguesma, 1994) The doctrine of Collective Bargaining History puts premium on the history and prior affinity of the employees in determining the appropriate bargaining unit. However, the existence of a prior collective bargaining history is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. (NAFTU v. Mainit Lumber Development, 1990) Employment of Status doctrine refers to the determination of the appropriate bargaining unit based on the employment status of the employees. employees. (2007 Bar) Q: Who may file a petition for certification election? A: The following may file a petition for certification election: election: (1) Legitimate Labor Organization; (2) Federation on behalf of its chapter (Art. 268, 269, Labor Code); Code) ; or (3) The employer, when requested to bargain collectively. ( Art. ( Art. 270, Labor Code) Q: Explain the concept of a certification election. A: It is the process of determining through secret ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of collective bargaining. (Sec. 1(b), Rule I, Book V, IIR of the Labor Code, as amended by Department Order No. 40-03) Q: Explain the concept of a consent election. A: It is one voluntarily agreed upon by the parties with or without the intervention of the Department of Labor and Employment. Q: Explain the concept of a run off election. A: It refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, choices, where such a certified or consent results in in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty (50%) of the number of votes cast. (Art. 268, Labor Code) Q: When does a re-run election take place? A: It takes place in two (2) instances: (1) When one choice receives a plurality of votes and the remaining choices results in a tie; (2) When all choices received the same number of votes.

In both instances, the NO UNION is also a choice. The application of technicalities of procedural requirements in certification election disputes will serve no lawful objective or purpose. It is a statutory policy that no obstacles shall be placed on the holding of a certification election and that the law is indisputably partial to the holding of a certification election. (Western Agusan v. Trajano, 1991) Q: Can the choice of no-union win in a certification election? A: Yes. A “no“no -union” can win in a certification election, because the objective in a certification election is to ascertain the majority representation of the bargaining representative. The employees may desire not to be represented at all by anyone, hence, “no union” is one of the choices in a certification election. election. (2006 Bar) Q: What is the number of votes required to be certified as the bargaining agent? A: A majority of the valid votes cast is required. (2009 Bar)


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Q: Is a federation required to disclose the names of the local chapter’s officers nad members when they file a petition for certification election election in an unorganized establishment? A: No. (2011 Bar) Q: What are the grounds for the denial of a petition for certification election? A: The grounds for the denial of a petition for certification election are as follows: (1) The petitioner union is illegitimate or improperly registered; (2) Petition was filed outside the freedom period; (3) Failure to submit the twenty-five (25%) support requirement for the filing of a petition for certification election in an organized establishment; (4) Filed within an existing election bar; or (5) Non-appearance Non-appearance of the petitioner union for two (2) consecutive scheduled before the Med -Arbiter. (Sec. 14, Rule VIII, Book V, IRR of the Labor Code, as amended) Q: Is voluntary recognition still applicable applicable under our present labor laws? A: No. DO No. 40-I-15, Series of 2015 expressly repealed the entire provision on “Voluntary Recognition” and replaced it with the freshly minted mode of securing the status of a sole and exclusive bargaining agent through a “Request for SEBA Certification” or “Request”. Voluntary recognition is therefore no longer allowed and is effectively repealed by the “Request” mode. Q: What are the requisites for the collection of union dues and special assessments? A: (1) Authorization by a written resolution of the majority of all the members m embers at the general membership meeting duly called for the purpose; (2) Secretary’s record of the minutes of the meeting; and (3) Individual written authorization for check-off duly signed by the employee concerned. ( Gabriel v. Secretary of Labor, 2000)

Q: Is the collection of agency fees recognized under the Labor Code? A: Yes. The collection of agency fees, in an amount equivalent to union dues and fees, from employees, who are not union members, is recognized r ecognized under Article 259(e) of the Labor Code. The union may collect such fees even without any written authorization from the non-union member-employees, if said employees accept the benefit resulting from the CBA (Del Pilar Academy v. Del Pilar Academy Employees Union, 2008). Q: Explain the duty to bargain collectively. A: It is the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising from such agreement and executing a contract incorporating such agreements if requested by either party, but such duty does not compel any party to agree to a proposal or to make any concession . (Art. 263, Labor Code)

Until a new CBA has been executed by and between the parties, they are duty bound to keep the status quo and to continue, in full force and effect, the terms and conditions of the existing agreement. The law does not provide for any exception or qualification as to which of the economic provisions of the existing agreement shall remain in force and effect, therefore, it must be understood as encompassing all the terms and conditions of the said agreement. agreement . (Art. 263, Labor Code)


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Q: What is a Collective Bargaining Agreement? A: It is the negotiated contract between a duly recognized or certified exclusive bargaining agent of workers and their employer, concerning wages, hours of work, and an d all other terms and conditions of employment in the appropriate bargaining unit, including mandatory provisions for grievances and arbitration machineries. (Sec. 1(j), Rule I, Book V, IRR of the Labor Code) Q: Explain the contract bar rule. A: Under this rule, the Bureau of Labor Relations (BLR) may not entertain any petition for certification election which may disturb the administration of a duly registered CBA. It will also apply provided that the CBA is registered with the DOLE, assuming it has been validly ratified and contains the mandatory provisions. Q: Are the benefits of the CBA applicable to employees who are non-members? A: Yes. The benefits of the CBA are applicable to all employees regardless of their membership in the union, because to withhold the same from non-union non -union members would be to discriminate them. Q: Is the CBA preferred over an employee’s right to religious freedom? A: No. The CBA, which is contractual in nature, cannot prevail over the duty to respect the workers’ constitutional right to religious freedom. The latter has a preferred value in the hierarchy of values. ( BPI v. BPI Union-Davao Chapter, 2010) Q: What is the rule on the equity of the incumbent? A: At the expiration of the freedom period, the employer shall contine to recognize the majority status of the incumbent bargaining agent where no petition for certification election has been filed or pending ( Art. ( Art. 268, Labor Code). Code). Q: What is the freedom period? A: It is the last sixty (60) days of the 5-year lifeti me of a CBA’s representation aspect. It is the only time when, under the law, the majority status of the bargaining agent may be challenged by another union by filing the appropriate petition for certification election. election. (Art. 265, Labor Code)

Q: What happens upon the expiration of the CBA? A: Although a CBA has expired, it continues to have legal effect as between the parties until a new CBA has been entered into. ( Pier 8 Arrastre & Stevedoring Services Inc. v. Roldan Confessor, 1995) Q: Are workers allowed to negotiate wage increases separate and distinct from the legislated wage increases? A: Yes. (Supreme ( Supreme Steel Corporation v. Nagkakaisang Manggagawa ng Supreme Independent Union (NMS-IND APL)) Q: Enumerate the unfair labor practices of labor organizations. A: The following are the unfair labor practices of labor organizations: (1) To grossly violate a CBA; (2) To restrain or coerce employees in the exercise of their right to self-organization; (3) To ask for or accept negotiation or or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; (4) To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied, or to terminate an employee on any ground other than t he usual terms and conditions under which membership or continuation of membership is made available to other members;


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(5) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value in the nature of an exaction for services not performed, including the demand for a fee for union negotiations; or (6) To violate the duty or refuse to bargain collectively with the employer, provided it is the representative of the employees. employees. (Art. 260, Labor Code) Q: What are the unfair labor practices of the employers? A: No criminal prosecution for unfair labor practice may be made without a prior final judgment in an unfair labor practice case filed before the Labor Arbiter. Regardless, the final judgment would not be binding in the criminal case. Neither would such final judgment be considered as evidence in the t he criminal case. At best, it could only serve as proof of compliance with the requirement of prior exhaustion of administrative remedies. (Art. 258, Labor Code)

It shall be unlawful for an employer e mployer to commit any of the following unfair labor practices: (1) To interfere with, restrain, or coerce employees in the exercise of their right to self-organization; (2) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; (3) To contract out services or functions being performed by union members members when such will interfere with, restrain, or coerce employees in the exercise of their right to self-organization; (4) To initiate, dominate, assist, or otherwise interfere with the formation or administration of any labor organization including the giving of financial or other support to it or its organizers or officers; (5) To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization; (6) To dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or being about to give testimony; t estimony; (7) To violate the duty to bargain collectively; (8) To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; and (9) To violate a collective bargaining agreement. (Art. 259, Labor Code) Q: What is a runaway shop? A: It is an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws, but the term is also used to describe a plan removed to a new location in order to discriminate against employees at the old plant because of their union activities ( CEEA v. NLRC, 1999). However, a runaway shop is not automatically an unfair labor practice ( 2009 Bar). Q: What is the nature of an unfair labor practice? A: Unfair labor practices violate the constitutional right of workers and employees to self organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atm osphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations. (Art. 247, Labor Code) Q: Explain the concept of union security. A: Union security is a form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. (Picop Resources, Inc. v. Taneca, 2010) Q: In terminating an employee based on a union security clause, what must be proven?


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A: The following need to be proven in the termination of the employment of an employee based on a union security clause: (1) The union security clause is applicable; (2) The union is requesting for the enforcement of the union security provision in the CBA; and (3) There is sufficient evidence to support the union’s decision to expel the employee from the union. These requisites constituted just cause for terminating an employee based on the CBA’s union security clause. (Abalone Country Club v. NLRC, 2008) Q: Enumerate the different unfair labor practices in collective bargaining: A: The following are CBA-related unfair labor practices: (1) To violate the duty to bargain collectively as prescribed in the Labor Code (Art. 259(g), Labor Code) (2) To pay negotiation or attorney’s fees to the union or its officers or agent as apart of the settle ment of any issue in collective bargaining or any other dispute (Art. 259(b), Labor Code); and (3) To violate a CBA (Ar. 259(i), Labor Code). Q: What is the requirement for both parties when they bargain collectively? A: The law expressly mandates that both employers and labor organizations should bargain collectively in good faith. There is no per se test of good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts. The effect of an employer’s or a union’s actions individual ly is not the test of good faith bargaining, but the impact of all such occasions or actions, considered as a whole. (General Milling Corp. v. Court of Appeals, 2004) Q: Is one party obliged to accept the proposal of the o ther? A: No. It is not obligatory upon either side of a labor controversy to precipitately accept or agree to the proposals of the other. (GMC-ILU v. General Milling Corporation, 2011) Q: Is refusal to bargain an unfair labor practice? A: Yes. In De La Salle University v. DLSUEA-NAFTEU , the Court ruled that where an employer suspends collective bargaining negotiations with the union and placed the union funds in escrow considering the intra union dispute between two factions within the union, the employer had committed the unfair labor practice of refusal to bargain. Q: Explain the concept of surface bargaining. A: It is the “going through the motions of negotiating” without any legal intent to reach an agreement. Whether or not a party has engaged in unlawful surface bargaining is a question involving the latter’s intent, which can only be inferred from the total ity of the challenged party’s conduct both at and away from the bargaining table. More specifically, whether or not an employer’s conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining. (Standard Chartered Bank Employees Union v. Confesor, 2004) Q: What is blue sky bargaining? A: It is the unrealistic and unreasonable demand in negotiations by either or both labor and management, where neither concedes anything and demands the impossible. Q: What is a yellow dog contract? A: It is one which requires as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs. (Art. 259(b), Labor Code) Q: Define a strike. A: A strike is a temporary t emporary stoppage of work as a result of o f an industrial or labor dispute. (Art. 219(o), Labor Code)


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Q: Who may declare a strike? A: The proper party to a strike is any certified or duly recognized bargaining representative. (Sec. 2, Rule XIII, IRR of the Labor Code) Q: What are the requisites for a valid strike? A: The following are the requisites: (1) Valid and substantial grounds, recognized by law, which are: (a) Collective bargaining deadlock; and (b) Unfair labor practice. ( Art. ( Art. 278, Labor Labor Code) (2) Notice is filed with the National Conciliation and Mediation Board (NCMB) at least thirty (30) days, in cases of bargaining deadlocks, or fifteen (15) days, in cases of unfair labor practice, before the intended days thereof. (Sec. 7, Rule XXII, Book V, IRR of the Labor Code, as amended) (3) A notice of the conduct of the strike vote must be given to the DOLE at least 24 hours before the conduct of the strike vote; (4) A report of the vote must be filed with the NCMB at least seven (7) days before the intended strike. Decision to strike must be approved by a majority of the total union membership obtained by secret ballot; (5) Cooling-off Cooling-off period has lapsed and the dispute remains unsettled despite efforts at mediation and conciliation; (a) Thirty (30) days for bargaining deadlock; or (b) Fifteen (15) days for ULP, except in case of dismissal duly elected or union officers; (6) Union declaring it must have complied with its duty to bargain collectively; and (7) Strike must be staged and conducted by peaceful means. Q: How does the law regulate the use of strike as a form of concerted activity? A: The following are examples of how the law regulates regulates the use of strike as a form of concerted activity: (1) Procedural requirements should be observed, namely, filing of notice of strike, observance of cooling off period, taking of strike vote, and report of the strike vote; and (2) Use of violence, intimidation, or coercion and blockade of ingress-egress are prohibited and may also be criminally sanctioned. s anctioned. (Art. 278(b)(c)(f)(g), 278(b)(c)(f)(g), Labor Code) Q: What are the instances of an illegal strike? A: The following are the instances: (1) Without first having bargained collectively (Art. 279(a), Labor Code); (2) Without complying with mandatory procedural requisites, such as those held by minority or illegal labor unions, or by dismissed employees; (3) After the assumption of jurisdiction by the President or the Secretary of Labor; (4) In violation of labor law rules on picketing; (5) When it employs unlawful means in the pursuit of its objective, such as widespread terrorism of non-strikes (Art. 279(e), Labor Code); (6) When it is contrary to a specific prohibition of law, such as a strike by employees performing governmental function (TMPCWA ( TMPCWA v. NLRC, 2007) (7) When it is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against non-union employees; (8) When it is declared in violation of an existing injunction, such as a temporary restraining order, such as prohibitory injunction, or order issued by the DOLE Secretary and the NLRC; (9) When it is contrary to an existing agreement in the CBA, such as a “no strike, no lockout” clause; (10) General strikes, such as extended sympathy strikes or welga ng bayan (Biflex Phils. Labor Union v. Filfrex Industrial and Manufacturing, 2006) (11) After the notice to strike has been converted to a preventive mediation case;


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(12) During the pendency of conciliation and mediation proceedings between the employer and the labor organization before the NCMB ( Sec. 1, Rule XXII, Book V of the IRR of the Labor Code, as amended); (13) Based on a non-strikeable issues, such as: (a) Inter-union or intra-union disputes; (b) Simple violations of the CBA; (c) Based on issues already brought to voluntary or compulsory arbitration (Sec. 5, Rule XXII); (d) Violation of labor standards; and (e) Legislation wage orders (wage distortion). Q: Even if the purpose of the strike is valid and has complied with the procedural requirements, can a strike be held illegal? A: Yes. Despite the validity of the purpose of a strike and compliance with the procedural requirements, a strike may still be held illegal where the means employed are illegal. The means become illegal when they come within the prohibitions under Article 264(e) of the Labor Code. (Phimco Industries v. PILA, 2010) Q: What happens to the union officers who participate in an illegal strike? A: When the strike is held illegal, the union officers who knowingly knowingly participated will be considered to have lost their employment status. The union members who knowingly participated in the commission of illegal acts during the strike may also be held liable. (Art. 279(a), Labor Code) Q: Define picketing. A: It is the marching to and fro at the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. (IBM v. NLRC, 1995) Q: What are the requisites for lawful picketing? A: For picketing to be llawful, awful, the following requisites requisites must exist: (1) The picket should be peaceful; (2) There should be no attendant act of violence, coercion, or intimidation; (3) The ingress or egress from the company premises should not be obstructed; and (4) Public thoroughfares should not be impeded. (Sec. 11, Rule XIII, IRR of the Labor Code) Q: Define boycott. A: It is the concerted refusal to patronize an employer’s goods or services and to a like refusal. Q: Define lockout. A: It is the temporary refusal by an employer to furnish work as a result of an industrial or labor dispute which consists of shutdown, mass retrenchment, r etrenchment, and dismissals initiated. (Art. 219(p), Labor Code) Q: When in the opinion of the DOLE Secretary, the labor dispute causes or will likely cause a strike or lockout in an industry indispensable to the national interest, he is empowered to do either of two (2) things. What are these? A: These powers are namely: (1) He may assume jurisdiction over the labor dispute and decide it himself; or (2) He may certify it to the NLRC for compulsory arbitration, in which case, the NLRC shall hear and decide it. (Art. 278(g), Labor Code) Q: Can the above powers be exercised even before the actual staging of a strike or lockout? A: Yes. The DOLE Secretary may exercise such powers even before the actual staging of a strike or lockout since Article 278(g) does not require the existence of a strike or lockout but only of a labor dispute involving national interest.


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Q: What is the nature of an assumption order or certification certification order? A: The power to issue assumption or certification orders is an extraordinary authority granted to the President and to his alter ego, the DOLE Secretary, the exercise of which is strictly limited to national interest cases. (Tabangao Shell Refinery Employees Association v. Pilipinas Shell Petroleum Corp., 2014) Q: Is such power constitutional? A: Yes. The constitutionality of the power of the Secretary of Labor under the Labor Code to assume jurisdiction over over a labor dispute in an industry indispensable to the national interest interest has been upheld upheld as an exercise of police power of the State. (UFE-DFA-KMU v. Nestle, 2008)

This is done for the promotion of the common good considering that a prolonged strike or lockout can be inimical to the national economy. The Secretary of Labor acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not intended to impede the workers right to strike but to obtain a speedy settlement of the dispute. (PTWU v. Confesor, 1997) Q: What are the requisites of a valid assumption order or certification order? A: For the assumption order or certification order to be valid, the following requirements requirements must be complied with: (1) There exists a labor dispute causing or likely to cause a strike or lockout; and (2) That the labor dispute is an industry indispensable in dispensable to the national interest. (Art. 278(g), Labor Code) Q: Who can issue injunctions in labor disputes? A: The following can issue injunctions in labor disputes: (1) President (Art. 278(g), Labor Code); (2) Secretary of Labor; (3) NLRC (Art. 225(e), Labor Code); (4) Labor Arbiters, as delegated by the Commission (Sec. 14, Rule XXII, Book V, IRR of the Labor Code, as amended); (5) Regional Directors; and (6) Med Arbiters. Q: What is the effect of defiance of an assumption order or certification order? order? A: The defiance by the union, its officers, and members of the Labor Secretary’s assumption of jurisdiction or certification order constitutes a valid ground for dismissal.

The following are the justifications: (1) A strike that is undertaken after the issuance by the DOLE Secretary of an assumption or certification order becomes a prohibited activity, thus illegal. The striking union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal strike; (2) From the moment a worker defies a return to work order, he is deemed to have abandoned his job; (3) By so defying, the worker has forfeited his right to be admitted to work.

JURISDICTION AND REMEDIES Q: What are the cases subject to the exclusive and original jurisdiction of the Labor Arbiter? A: Labor Arbiters have jurisdiction over the following cases, involving all workers, whether agricultural or nonagricultural: (1) Unfair labor practice cases; (2) Termination disputes;


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(3) If accompanied with a claim for reinstatement, those cases 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 employer-employee relations; (5) Cases arising from any violation of Art. 279 of the Labor Code, including the legality of strikes and lockouts; (6) All other claims arising from employer-employee relations, including those in domestic or household service, involving an amount exceeding P5,000.00 whether or not accompanied with a claim for reinstatement; Exception: Exception: Claims for Employment Compensation, Social Security, Philhealth and maternity benefits. (7) Wage distortion disputes in unorganized establishments nor voluntarily settled pursuant to R.A. 6727; (8) Enforcement of compromise agreements when there is non-compliance by any of of the parties pursuant to Art. 233, Labor Code; (9) Money claims arising from employer-employee relations or by virtue of any law or contract involving overseas contract workers under the Migrant Workers Act of 1995 (R.A. 8042, as amended by R.A. 10022); (10) Other cases as may be provided by law. (Sec. ( Sec. 1, Rule V, 2011 NLRC, Rules of Procedure) Q: Who has jurisdiction over small money claims? A: The Regional Director has jurisdiction. It is empowered through summary proceedings and after due notice, to hear and decide cases involving recovery of wages and other monetary claims and benefits, including legal interest, provided that the following requisites are present: (1) The aggregate money claims of each employee or house-helper does not exceed P5,000.00; (2) The claim is presented by an employee or person employed in domestic or household service or house helper; (3) The claim arises from the employer-employee employer-employee relations; and (4) The claimant does not seek reinstatement (2012 Bar)

As a general rule, in the absence of any of the above requisites, the Labor Arbiter shall have exclusive original jurisdiction over claims arising from employer-employee relations. The exception is claims for employee’s employee’s compensation, social security, medicare and maternity benefit. (Art. 229, Labor Code) Q: Does the Labor Arbiter have jurisdiction over cases involving corporate officers? A: No. Jurisidction over cases involving corporate officers lies with the regular courts ( 2011 Bar ). ). Q: Do Labor Arbiters have jurisdiction over wage distortion cases? A: Labor Arbiters have jurisdiction over wage distortion cases in unorganized establishments when the same are not voluntarily resolved by the parties before the NCMM. (Art. 124, LC; 2011 Bar). Q: What is subject to the concurrent jurisdiction of the Labor Arbiter and the NLRC? A: Contempt cases. Q: Does the LA have jurisdiction over claims by members of the cooperatives? A: None. Members of cooperatives are also owners, thus, there is no employer-employee employer-employee relationship, so the LA has no jurisdiction. jurisdiction . (RA No. 6938) Q: Does mere execution of a contract by the prospective employer and prospective employee, in case of breach give the LA jurisdiction?


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A: No. Mere execution of a contract by the prospective employer employer and prospective employee does not vest the LA jurisdiction because there is no employer-employee relationship yet. To establish employeremployee relationship, there must be control – thus, employee must have started working already. Q: Does the LA have jurisdiction over claims of government employees working in government owned and controlled corporations? A: It depends. LA has jurisdiction over employees of government owned and controlled corporations WITHOUT an original charter.

If the GOCC has a special charter (ex. UP), then it is the Civil Service Commission that has jurisdiction. (Zamboanga City Water District vs Buat, 1994) Q: Must there be an employer-employee relationship before a Labor Arbiter has jurisdiction over the money claims of the claimant? A: Yes. Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas employment, including claims for actual, moral, exemplary and other forms of damages. Q: Is there an exception to the above rule? A: Yes. Under the Migrant the Migrant Workers Act, Act, RA No. 10022, 10022, the Labor Arbiter has jurisdiction over money claims of OFWs even if they have not started working yet, as long as the contract has already been perfected. Q: Is the doctrine of judicial courtesy practiced before the LA? A: Yes. Proceedings in the LA are held in abeyance for 3-6 months pending actions in the higher court. Q: What are the cases that must be referred by the Labor Arbiter to the grievance machinery and voluntary arbitration? A: The following are cases that must be referred by the Labor Arbiter to the grievance machinery and voluntary arbitration: (1) Disputes on the interpretation and implementation of the CBA; and (2) Disputes on the interpretation or enforcement enforcement of company personnel policies. Q: Can there be jurisdiction by estoppel? A: It depends. If the jurisdiction is conferred by a special law (ex. For cooperatives, SSS claims etc.) then there can be no jurisdiction by estoppel because jurisdiction is conferred by law. The jurisdiction or lack thereof by the court over the subject s ubject matter may be questioned even on appeal.

However, if the jurisdiction is provided for by the Labor Code (ex. Money claims) and the party fails to question the jurisdiction of the Labor Arbiter during the mandatory conciliation and mediation conference, he may be estopped from questioning the LA’s jurisdiction.

Q: What is the procedure to stay the decisions, awards or orders of the Labor Arbiter? A: The general rule is by filing an appeal to the Commission by any or both parties within 10 calendar days from receipt of such decisions, awards or orders. The exception is the reinstatement aspect which is immediately executory. (Sec. 1, Rule VI, 2011 NLRC Rules of Procedure) Q: What are the grounds for appeal? A: (ACID) (1) Abuse of discretion; (2) Corruption or coercion;


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(3) Interpretation or issues of law; (4) Damage that is irreparable. Q: What are the requirements to perfect an appeal to the NLRC? A: To perfect an appeal to the NLRC, the following must be complied with: (1) It must be verified by the appellant in accordance with Sec 4, Rule 7 of the rules of Court (2) It must be in the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date when appellant receive the appealed decision, award or order. (3) It must be in three (3) typewritten or printed copies; and (4) It must be accompanied by: (a) Proof of payment of appeal fee and legal research fee; (b) Posting of cash and surety bond; and (c) Proof of service upon the other parties.

In case the decision involves a monetary award, an appeal by the employer may only be perfect upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission equivalent in i n amount to the monetary award, exclusive of damages and attorney’s at torney’s fees. (Art. 299, LC; Sec. 6, Rule VI, 2011 NLRC Rules of Procedure) Mere filing of a motion reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal. (Sec. 6, Rule VI, 2011 NLRC Rules of Procedure) Q: What are the prohibited pleadings in proceedings before the Labor Arbiter? A: All pleadings are prohibited, except a motion to dismiss for (JVRPF): (1) Lack of jurisdiction over the subject matter; (2) Res judicata; (3) Improper venue; (4) Prescription; (5) Forum shopping. Q: Is a motion for extension to file position paper also a prohibited pleading? A: Yes. However, if you did not file on time, the t he arbiter will still admit since they are obligated to determine the merits of case and not on the technicalities. (Article 218 (3), Labor Code) Q: What are the requirements of making a position paper? A: There must be verification v erification and certification of non-forum shopping; and proper venue Q: What is the effect of non-verification? A: None. The LA can motu propio order propio order the parties to make the verification. This can be corrected anytime. (Art. 218 (3), Labor Code)

Q: What is the effect of not having or having a defective certification of non-forum shopping? A: For complainant, the case can be dismissed and the position paper may be ordered stricken off. On other other hand, respondent is not required to append a certification. Q: Can there be a motion to dismiss on the ground of improper venue? A: Yes. It must be filed before the MCMC, otherwise it is deemed waived.


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Q: What is the remedy of the defendant who has been deemed to have waived the filing of a position paper? A: The defendant may file a motion to lift or set aside the order of waiver. Q: What bond must be filed for the appeal of money claims? A: Supersedeas bond. (Article 223, Labor Code) Q: What are money claims? A: Monetary claims not including attorney’s fees and damages. Q: What is the rule on payment of supersedeas bond that is required to perfect an appeal? A: If the appeal bond is too high, the defendant may file a motion to reduce bond, and then deposit 10% of the amount. This will be sufficient to perfect an appeal.

In Mcburnie In Mcburnie v. Ganzon (2013), the (2013), the Supreme Court allowed the motion to reduce supersedeas bond as long as at least 10% of the bond is paid. Pending resolution of that motion, the reglementary period for filing position paper is put on hold. Q: May an order of execution be appealed? A: An order or execution may be appealed in the following instances: (1) Where the order of execution varies or goes beyond the terms of the judgment it seeks to enforce or thr terms of the judgment are ambiguous (DBP ( DBP v. Union Bank, 2004); 2004 ); (2) Where the implementation of the Order was irregular ( Metrobank v. CA, 2001; ). 2001; 2002 Bar ). Q: Is the decision of the Labor Arbiter which orders reinstatement immediately executory? A: Yes. The decision of the Labor Arbiter is immediately executory insofar as the reinstatement aspect is concerned and the posting of an appeal bond by the employer shall not stay such execution. There is no need for a motion for issuance of writ of execution on the reinstatement order as it is self executory. (Art. 229, Labor Code) Q: What are the cases subject to the original jurisdiction of the NLRC? A: The NLRC has original jurisdiction over the following cases: (3) Petition for injunctions or TRO in ordinary labor disputes. (Art. 225, LC; Sec. 1, Rule X, 2011 NLRC Rules of Procedure); (4) Petition for injunction in strikes and lockouts (Sec. 2, Rule X, 2011 NLRC, Rules of Procedure); (5) Certified cases by the secretary of Labor in an industry indispensable to t he national interest. (Art. 278 (g), LC; Sec. 2, Rule VIII, 2011 NLRC Rules of Procedure); (6) Petition to annul or modify the decision of the Court of Appeals. (Rule XII, 2011 NLRC Rules of Procedure). Q: What are the cases subject to the appellate jurisdiction of the NLRC? A: The NLRC has appellate jurisdiction over the following cases: (1) Cases decided by the Regional offices over monetary claims of workers not exceeding P5,000.00; (2) Cases decided by Labor Arbiters under Article 229 of the Labor Code and Section 10 of the Migrant Workers’ Act. (3) Cases decided by Labor Arbiters on wage distortion issues in non-unionized establishment; (4) Cases certified by the Regional Director; and (5) Denial of the claim of the third party where property was levied on by the Sheriff. (R.A. 9347, 2011 NLRC Rules of Procedure) Q: Does the NLRC have jurisdictional cognizance over compromise agreements/settlements? agreements/settlements?


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A: As a general rule, rule, any compromise agreement, agreement, including including those involving involving labor standards standards laws, voluntarily agreed upon by the parties with the assistance of the Bureau of Regional Office of the Department of Labor, shall be final and binding upon the parties. The NLRC or any court shall not ass ume jurisdiction over the issues involved therein. Exceptions: (1) In case of non-compliance therewith or; (2) If there’s a prima facie evidence that the settlement set tlement was obtained through fraud, misinterpretation of coercion. ( Arellano, ( Arellano, et. al. v. Powertech Powertech Corp., 2008). Q: Can there be contempt proceedings before the NLRC? A: Yes. There can be direct or indirect contempt. (Art. 218 (4) Labor Code) Q: Distinguish the jurisdiction of a Labor Arbiter from the NLRC. A: The Labor Arbiter can hear and resolve cases under Art. 224 of the Labor Code, money claims under Sec. 7 of R.A. 10022 and referred wage distortion disputes in unorganized establishments, as well as the enforcement of compromise agreements pursuant to the 2011 NLRC Rules of Procedure as amended. On the other hand, the NLRC has the following jurisdiction: (a) Review decisions rendered by the Labor Arbiter; (b) Review decisions or orders rendered by the Regional Director under Art. :129 of the Labor Code; and (c) Conduct compulsory arbitration in certified cases.

As to the authority on issuing a labor injunction, the NLRC can issue an injunctive writ. On the other hand, the Labor Arbiter cannot issue an injunctive writ. Q: What is the remedy to review the NLRC decision? A: The way to review NLRC decision is through filing of special civil action of certiorari under Rule 65, in the Court of Appeals. (St. Martin Funeral Home v. NLRC, 1998). Thus, the 1997 Rules of Civil Procedure Procedure should be observed to wit: (1) The petition for certiorari must be filed not later than sixty six ty (60) days from notice of judgment, order or resolution. If a motion for new trial or reconsiderations filed, the 60-day period shall be c ounted from denial of such motion. (2) The petition should be accompanied by a certified true copy of the NLRC decision and by a sworn certification of non-forum shopping as well as all relevant pleadings and documents.

In observance of the hierarchy of courts, the petition must be filed in the first instance with the CA. Q: What are the cases subject to the exclusive and original jurisdiction of the Bureau of Labor Relations - Med-Arbiters? A: It has exclusive and original jurisdiction to act on its own initiative or upon the request of either or both parties on the following: (1) Intra-union and inter union conflicts; and (2) All disputes, grievances or problems arising from or affecting labor-management relations in all workplaces. EXCEPTION: Those arising from the implementation or interpretation of CBAs. (Art 232, Labor Code) Q: What is an intra-union dispute? A: Any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union's Labor Law and Social Legislation Animo Notes 2018

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constitution and by-laws or disputes arising from chartering or disaffiliation of the union. (Employees Union of Bayer Philippines v. Bayer Philippines, 2010) Q What are inter-union conflicts? A: Any conflict between and among legitimate labor unions involving representation questions for the purpose of collective bargaining or to any other conflict or dispute between between legitimate labor unions. (Sec 1 (x) Rule 1, D.O. 40-03) Q: What are other related labor relations disputes? A: Any conflict between a labor organization and the employer or any individual, entity or group that is not labor organization or worker’s association. This includes: (1) Cancellation Cancellation of registration of unions and worker’s associations, and (2) A petition for interpleader. (Sec 2, Rule XI, D.O 40-03) Q: What is Arbitration? A: A system of dispute settlement that may be compulsory or voluntary, whereby the parties are compelled by the government or agree to submit their dispute before an arbiter, with the intention to accept the resolution of said arbiter over the dispute as final and binding on them (Luzon Development Bank v, Association of Luzon Luzon Development Employees, 1995) Q: What is Conciliation? A: It is the process of dispute management whereby parties in dispute are brought together for the purpose: (1) Amicably settling the case upon a fair compromise; (2) Determining the real parties in interest; (3) Defining and simplifying simplifying the issues in the case; (4) Entering into admissions or stipulations of facts; and (5) Threshing out all other preliminary matters. (Sec. 8, Rule V, 2011 NLRC Rules of procedure as amended) Q: What is Mediation? A: It is a voluntary process of settling disputes where the parties elect a mediator to facilitate the communication and negotiation between between the parties in dispute for the purpose of assisting them in reaching reachin g a compromise. (Sec. 3(q), R.A. 9285 or the Alternative Dispute Dispute Resolution Law) Q: What are visitorial and enforcement powers? A: The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standards laws can be exercised even when the individual claims exceed P5,000. The authority under Article 128 of the Labor Code may be exercised regardless of the monetary value involved. Under Article 129, however, the authority is only for claims not exceeding P5,000 per claimant. (Ibid.) Q: What is the scope of visitorial powers of the DOLE Secretary? A: The scope of the DOLE Secretary’s visitorial powers are the following: (1) Access to employer’s records and premises at any time of day or night when there is work; (2) Copy records; (3) Question any employee; (4) Investigate matters to determine whether there are violations of LC; (5) Issue compliance orders and; (6) Issue writs of execution to appropriate authority for enforcement of orders.

Exception: When Exception: When the employer contests findings of the officer and raises r aises issues supported by documentary proof not considered during inspection. inspection. This is a matter that may be raised to the Labor Arbiter. Q: What is a Grievance Machinery?


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A: Grievance machinery is a mechanism for the adjustment of controversies or disputes arising from the interpretation or implementation of the CBA and the interpretation or enforcement of company 150 personnel policies. (Sec. 1, Rule XIX, D.O. No. 40-03) Q: What is Voluntary Arbitration? A: The process of submission of the dispute to an impartial person for determination on the basis of the evidence and arguments of the parties. The award is enforceable on the disputants. Q: When is Grievance Machinery and Voluntary Arbitration available? A: When a dispute or controversy arises over the implementation or interpretation of a CBA or from the implementation or enforcement of company personnel policies, and either the union of the employer invokes the grievance machinery provisions for the adjustment or resolution of such dispute or controversy. (Art. 273, Labor Code) Q: What are the cases subject to the exclusive and original jurisdiction of the Voluntary Arbitrator? A: The Voluntary Arbitrator has exclusive original jurisdiction over the following cases: (1) All grievance arising from the implementation or interpretation of the CBA’ (2) Interpretation of enforcement of company personnel policies which remain unsolved after exhaustion of grievance procedure; (3) Wage distortion issues arising from the application of any wage orders in organized establishments; and (4) Unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA 6971.

Includes termination disputes, provided the agreement agreement between the parties states that they conform to the submission of termination disputes and ULP to voluntary arbitration. This is so because termination disputes are generally within the exclusive and original jurisdiction of the Labor Arbiters. (Art. 268, Labor Code) Q: Enumerate the prescription periods of the various cases. A: (1) For unfair labor practice cases: 1 year from the act (2) For money claims arising from the employer-employee employer-employee relationship: 3 years from cause of action (3) For offenses penalized under the Labor Code, except ULP: 3 years from cause of action (4) For simple illegal recruitment: 4 years (5) For economic sabotage: 20 years Q: What is the prescriptive period for sexual harassment? A: As a general rule, 3 years. The exception is that the 3 year prescriptive period does not run when the employer still exercises authority, influence, and moral ascendancy over the employee. (AIM) (Domingo v. Rayala, 2008) Q: Can an action for sexual harassment be filed by a secretary against a janitor? A: As a general rule, the secretary cannot file an action for sexual harassment because she could not be a subordinate of the janitor.

Exception: In Exception: In one case, it was allowed when moral ascendancy was proven. (ex. father figure) (Domingo v. Rayala, 2008) "Satisfaction lies in the effort, not in the attainment, full effort is full victory." - Mahatma Gandhi


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2 DLSU LCBO Labor Law and Social

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