Final Handout for Bar 2015 Bullet Reminders in Labor Law Note: Consistent with the Bar Syllabus, the old numbering of the LC is used. Please bear with the format. ________________________________________
Benedict Guirey Kato Labor Arbiter, Bar Reviewer, Law Prof. MCLE Lecturer ________________________________________ I LABOR PRINCIPLES Constitution 1. Sec. 3, Art. XIII 1.1. Sec. 3, XIII is not an actual source of enforceable rights. It requires implementing law/s. (Serrano v. Galant Maritime Services, 24 March 2009). Note: The Full Protection Clause can be applied even without an implementing law. 1.2. Portions with implementing laws: a. Just share/Expansion & Growth (RA 6971, Productivity Incentives Act). b. Participation (RA 6715, Arts. 211 & 255). c. Voluntary modes (RA 10396. Pursuant to its Sec. 2, no complaint shall be filed unless the disputants have undergone mediation or SEnA proceedings). d. Equality of employment opportunities (Anti-discrimination laws: RA 8972, Solo Parents Welfare Act; RA 9710, Magna Carta for Women). e. Just & humane conditions of work (RA 7877, Anti-Sexual Harassment Act). 1.3. The Full Protection Clause (FPC) a. Bar 1998, Q No. 1 (4 salient features of the protection to labor provision of the Const’n: (1) extent – full; (2) coverage – local & overseas/organized & unorganized; (3) principles – (new principles); & (4) rights – individual & collective rights) b. Disparate Treatment (direct discrimination) vs. Disparate Impact (indirect discrimination) c/o Star Paper Case, 2006. Both types of discrimination are proscribed by the FPC. c. Death of a seaman outside contract. General rule: death arising from disease/injury is compensable if the disease/injury is (1) work-related; and (2) the death occurs during the period of the contract. Exception: Death after expiration of contract is compensable if: (1) disease is work-related (listed under Sec. 32-A); (2) it is the cause of the medical repatriation; and (3) the disease is the proximate cause of death (Canuel Case 2014); (2) compensable even if disease is not listed (e.g. brainstem cavernous cavernous malformation) if employer does not destroy the disputable presumption of work-relation; the disease is the cause of repatriation; and it is the proximate cause of death (Racelis Case 2014) d. Bar 2003 modified: Can the FPC as a guiding principle in labor law be so applied if it collides with the Equal Protection Clause (EPC)? No. Full protection to labor cannot result in in reasonless discrimination against employers. Social justice authorizes neither self-destruction nor oppression of the latter. The State must balance their rights because both have social utility (Social Utility Theory, Milan Case 2014) e. Essay: (i) What is the Principle of co-management? (It is codetermination which is not the same as participation). (ii) Cite, if any, the legal basis for its adoption in the Ph. (None) 1.4. Distinctions: a.
b. c.
Collective Bargaining (CB) vs. Collective Negotiations (CN) Note: (i) CB is both a right (Sec. 3, Art. XIII) and a duty (Art. 252, LC); CN is a right. Note: Right to CB implies the right to suspend it (Waterfront Davao Case) (ii) Other distinctions: ii.a. CB is the function of an EBR; CN is the function of any group of workers (Art. 255, LC); ii.b. CB is subject to compliance with jurisdictional preconditions; CN is not; ii.c. Refusal or evasion of CB duty is ULP; refusal to enter into CN C N is not ULP; ii.d. CB result is CBA and CBA violation is ULP; CN result is CNA but CNA violation is not ULP. ii.e. It may be said that CB is to the private sector; whereas, CN is to the public sector. Conciliation vs. Mediation vs. Arbitration Note: Only conciliation & mediation are ADRs. Full employment vs. Over-employment A person who is not fully employed must render OT and/or work for other employers to augment his income. In such state, he is deemed over-employed. So the two terms do not mean the same. One is over-employed for not being fully employed.
d.
Organized labor (unionized) vs. Unorganized labor (not unionized) Note: Organized establishment (OE) vs. Unorganized establishment (UE) Uses: (1) Resolution of wage distortion disputes – OE - GM then VA UE - NCMB then LA (2) Effectivity of economic provisions of CBA –
(3)
(4)
e.
2.
Voluntary CBAs OE if concluded w/in 6 months from expiry of old eco provisions, to retroact to day immediately following date of expiry; if concluded after 6 months, to take effect on date agreed upon. They can be retroacted or not. If not, the period in between shall be governed by the old eco provisions pursuant to the Hold Over Doctrine. UE - to take effect on date agreed upon (not date of signing) Involuntary CBAs OE SOLE shall give parties opportunity to agree on date of effectivity; if they cannot agree, SOLE shall fix it. UE SOLE to give parties opportunity to agree on date; if they cannot agree, eco provisions will take effect like judicial decisions. (Meralco Case) CE Petitions OE Med Arbiter shall hear and resolve the the petition. UE Med Arbiter shall automatically grant the petition. CE Appeals OE Both parties may appeal UE Only the union can appeal
Security of Tenure (Substantial Evidence vs. Clear & Convincing Evidence) (i) Fact of dismissal (EER; complete severance; and overt act) – must be established with substantial evidence. (ii) Validity of dismissal (Just or Authorized Cause) – must be established with clear & convincing evidence (Duty Free, Phil v. Tria, 27 June 2007) Note: Hierarchy of Burdens of Proof (Manalo v. Roldan-Confessor, 19 nov. 1992; cited in De la Cruz v. Malunao, Per Curiam, 20 March 2012): (1) Proof Beyond Reasonable Doubt (2) Clear and Convincing Evidence (3) Preponderance of Evidence (4) Substantial Evidence
1.5.
Regulation of EER a. Arts. 1700-1702, NCC b. Characteristics of EER ( A CRISI & I Rel Full of Questions) A Assymetrical C Contractual R Relation between master and servant I Impressed with public interest S Shared-responsibility I In personam I Inter-party Q Question of Fact Q Question of Law
1.6.
Previous Bar Questions 1988: Const’l provisions on labor a. b. 1996: Rights of employers & employees Salient features of the protection to labor provision of the Const’n c. 1998: d. 2007: Codetermination e. 2008: Right of workers to be represented in the BoD of a corporation f. 2011: shared-responsibility g. 2012: voluntary arbitration
Sec. 1, Art. III 2.1. Types of Due Process a. Constitutional (Due Process Clause: Life, Liberty & Property) b. Statutory (Art. 277, old, LC: Property) Note: (i) Abandonment as a ground vs. abandonment as a defense. No distinction. Employer must still send notice of abandonment to last known address even if no intent to dismiss. Violation justifies award of P30K nominal damages. (Tugade Bros. Case) (ii) Ineffectual Dismissal vs. Illegal Dismissal In Ruben Serrano, effect of violation of due process was to make the dismissal ineffectual. This has been abandoned. The effect is payment of nominal damages. Dismissal is illegal if without just or authorized cause.
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c. 2.2.
Contractual (Abott Laboratories Case)
Effects of Violation a. Constitutional - State action is void b. Statutory - nominal damages c. Contractual - nominal damages Question: Distinguish constitutional due process (CDP) from statutory due process (SDP). As to nature, CDP has two aspects, viz., substantive and procedural; whereas, SDP is procedural only. As to extent, CDP protects right to life, property and liberty; whereas, SDP protects property only. As to coverage, CDP regulates State acts; whereas, SDP regulates private acts. As to effect of violation, violation of CDP makes the act of the State void; whereas, violation of SDP justifies the award of nominal damages.
2.3.
Equal Protection Clause a. Strict Judicial Scrutiny Test (Q: Is there a State interest sought to be protected/promoted by the classification? A: None; hence, the classification (OFW with less than 1 year of contract vs. OFW with at least 1 year) is not valid. b. Old Test (Germane t o the purpose of a law; etc…)
3.
Sec. 14, Art. II 3.1. Halaguena, et al. vs. PAL. 2 Oct. 2009 3.2. Possible Question: If mode of attack is a petition for declaratory relief, RTC has jurisdiction.
4.
Social Justice Clause 4.1. Concept (Calalang; Social Utility Theory, Milan Case 2014) 4.2. Equal Protection Clause 4.3. 2003 Bar: Can social justice as a guiding principle in labor law be so used if it collides with the Equal Protection Clause? (You know what to do!)
New Civil Code 1.
2.
3. 4.
5.
Art. 13: 1 Month is 30 Days 1.1. Mitsubishi Case - Apply Art. 13 if the probationary employment contract says 6 months and it bears date of commencement only. Count 180 days (6 x 30) from that date. If employee was dismissed for poor performance after 180 days, he is deemed illegally dismissed. After 180 days, he is a regular employee. 1.2. Alcira Case – Do not apply Art. 13 if the contract bears dates of commencement and expiry. If dismissed for poor performance after the second date, employee is deemed illegally dismissed. After that date, he is a regular employee. Art. 19: Principle of Abuse of Rights 2.1. Eviota Case – RTC has jurisdiction over damage claim based on failure to give 30-day notice under Art. 285, LC, abuse of right to resign, and uttering derogatory remarks against employer. 2.2. Moral & exemplary damages – Abusive exercise of right to dismiss justifies award of damages. Principle of Unjust Enrichment. Even if CA does not order restitution, LA must direct restitution by seafarer of disability award in order not to enrich him at the expense of his employer (Magsaysay Maritime Services, 2014) Principle of the Necessitous Person. If employee was subjected to abuse as to make her a necessitous person, she is deemed constructively dismissed for having been placed in a situation that left her no option except to continue (opposite of quit) working (Orchard Golf & Country Club Case, 2013). Principle of Least Transmission of Rights. Retirement pay, per retirement plan signed by the employee which requires construction, must be computed based on her notional/local rate (Php) instead of foreign rate (USD) because this computation will transmit the least right or benefit to her (Gerlach Case).
Labor Code 1. Art. 3: Bar 2009 Principles in sec. 3, Art. XIII not found in Art. 3, LC: Participation, etc. 2. Art. 12 Free Choice of Employment Lateral Transfer (cannot be refused) vs. Scalar Transfer (can be refused because it is a promotion). 3. Art. 211 3.1. Free Collective Bargaining (CB is free if the selection of the EBR is free from employer or State interference. How: Standby Rule; No Direct Certification Rule) 3.2. Participation (not codetermination) 4. Art. 110: Arts. 2241 & 2242, NCC, list of Special Preferred Credits (SPCs) vs. Art. 2244, list of Ordinary Preferred Credits (OPCs). Only OPCs are affected by Art. 110. SPCs are liens which, by nature, attach to specific properties. Those properties cannot be given to unpaid workers who just enjoy a mere preference.
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5.
Art. 277: Important provisions: (1) self-organization; (2) statutory due process; (3) appeal fee (in labor standards disputes, worker shall not be assessed appeal fee); and (4) suspension power of SOLE (Sec. can suspend effect of a dismissal that will result in a mass lay-off or aggravate a current labor dispute). Jurisprudence 1. Theory of Secondment. A secondment is a return from an assignment; its effect is continuity of EER (Intel vs. NLRC, 2014). 2. Theory of Imputed Knowledge. Knowledge of agent is knowledge of principal, not the other way around (Sunace Case, 2008). 3. Proximate Cause Theory. Chain of causes, if unbroken by any EIC (notorious negligence, intoxication, attempt against one’s life or that of another), makes death/disability compensable. 4. Increased Risk Theory. Performance by the employee of his work increased his risk of contracting the unlisted disease; hence, his disability/death is compensable. 5. Reasonable Nexus Rule. Absence from place of work and presence at place of contingency have a reasonable connection; hence off-premises death/injury is compensable. Reasonable connectors: 24-hour duty; peacekeeping mission; overnight pass; instruction of commander; reliable information). 6. Principle of Promissory Estoppel. Elements: (1) an unequivocal promise by words or conduct; (2) promise reasonably induces belief or inaction on the part of the promisee; and (3) inequity if the promissor were to go back on the promise. 7. SIL as a Curious Animal. Service Incentive Leave (SIL) does not prescribe in 3 years as other benefits do. A covered employee may avail of the benefit by: (a) using his 5 SIL; (b) monetizing it; or (c) commuting all his SIL’s until he retires, gets separated or gets terminated. If he avails of the third option, SILs that accrue d before the onset of the 3-year prescriptive period immediately preceding date of filing of his complaint for payment are not deemed prescribed. 8. Total Permanent Disability 8.1. Total - disablement to perform customary work, or work trained for. 8.2. Permanent (Taok List) (a) the company-designated physician failed to issue a declaration as to his fitness to engage in sea duty or disability even after the lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability, hence, justify an extension of the period to 240 days; (b) 240 days had lapsed without any certification being issued by the company-designated physician; (c) the company-designated physician declared that he is fit for sea duty within the 120-day or 240-day period, as the case may be, but his physician of choice and the doctor chosen under Section 20-B(3) of the POEA-SEC are of a contrary opinion; (d) the company-designated physician acknowledged that he is partially permanently disabled but other doctors who he consulted, on his own and jointly with his employer, believed that his disability is not only permanent but total as well; (e) the company-designated physician recognized that he is totally and permanently disabled but there is a dispute on the disability grading; (f) the company-designated physician determined that his medical condition is not compensable or work-related under the POEA-SEC but his doctor of choice and the doctor selected under Section 20-B(3) of the POEA-SEC found otherwise and declared him unfit to work; (g) the company-designated physician declared him totally and permanently disabled but the employer refuses to pay him the corresponding benefits; and (h) The company-designated physician declared him partially and permanently disabled within the 120-day or 240-day period but he remains incapacitated to perform his usual sea duties after the lapse of the said periods. 9.
Non-involvement Clause. Undertaking not to get employed by employer in the same industry for a period of time after separation. It is not necessarily void for being in restraint of trade as long as: (1) there is a limitation as to time or place; and (2) the restraint upon one party is not greater than the protection the other party requires. 9.1. Ferrazzini vs. Gsell. Against public policy for being in restraint of trade because: (1) the prohibition was for 5 years; (2) with duty to get prior written permission from employer before engaging in similar business or occupation in the Philippines. The limitation was limited as to time and space but not as to nature of trade. It forces the employee to leave the Philippines to work should written permission be denied. 9.2. G. Martini Ltd vs. Glaiserman. Prohibited for 1 year from engaging in any business similar to his employer’s. Void because employee was only employed in connection to purchase and export of abaca, among the many businesses of the employer. The restraint is too broad since it effectively prevented the employee from working in any other business similar to his employer’s even if his employment was limited only to one of its multifarious business activities. 9.3. Del Castillo vs. Richmond. Valid. The employee was restricted from opening, owning or having any connection with any other drugstore within a radius of 4 miles from the employer’s place of business during the time the employer was operating the drugstore. 9.4. Platinum Plans Case. Valid. It is limited as to trade and time. It only prohibits employee from engaging in any pre-need business akin to employer’s for 2 years. The purpose is to protect trade secrets considering that the employee is Asst. VP and Territorial Operations Head in charge of respondent’s Hong Kong and Asean operations.
10.
Distinct Impression Rule. Has the respondent/accused misrepresented his authority, ability, or influence to procure employment for his recruit, reason the latter parted with his money? If yes, he is liable for illegal recruitment. If not, he is not liable (Darvin v. CA).
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II LABOR PROCEDURE A Labor Jurisdiction 1.
2.
Reasonable Causal Connection Rule Exceptions: 1.1. Un-deployed OFWs Art. 212: “…regardless of whether the disputants stand in the proximate relation of employer and 1.2. employee.” 1.3. Inter-union disputes; 1.4. Intra-union disputes; 1.5. ULPs under Art. 249 where victim is not the employer; 1.6. Material allegations and relief sought. Reference to Labor Law Rule 2.1. Quasi-delict (NCC, hence regular court) 2.2. Replevin (NCC, hence regular court) 2.3. Nullity of CBA provision (brought by petition for declaratory relief; hence, RTC) B Employer-Employee Relationship
Employer 1. 2. 3. 4. 5. Employee 1. 2.
EER Tests 1.
2. 3.
Statutory Employer (Art. 106, LC). Employer under Art. 212 (e), LC. “Acting in the interest of an employer.” Employer under Sec. 31, Corporation Code (Carag vs. NLRC, 2007) Employer under Sec. 8, RA 8282 & Art. 153, LC. Employer as a withholding agent under Rev. Memo Circ. 039-2012.
Employee after 60 (Sec. 5, RA 9994). A senior citizen has the right to be employed. Hence, EER (not only independent contractorship) is legally possible after 60. Employee under Art. 212 (f), LC. Terminated by reason of /on the occasion of ULP or current labor dispute and has not found a substantially equivalent & permanent position; plus, he has contested his dismissal before a forum of appropriate jurisdiction (LA or VA if there is an express stipulation to bring case to VA).
Two-tiered Test. Four-fold Test and Economic Reality Test are combined in cases wherein it is difficult to distinguish between corporate officer and corporate employee; employee and independent contractor; consultant as employee and as an independent contractor, etc. Ecclesiastical Affair Test (Austria v. NLRC; Taruc v. Bishop De La Cruz). “Did the dispute arise from an ecclesiastical affair?” If so, judicial and quasi -judicial bodies have no jurisdiction. Art. 280, LC is not an EER test but a regularity of employment test only (Atok Big Wedge Mining, 2011).
CLEOPAI PPTR Defenses. 1. Independent Contractor (IC) vs. Job Contractor (JC). Do not look for substantial capital or investment if the status at issue is IC. One can be an IC based on skills, talents and celebrity status (Sonza vs. ABSCBN) or expertise (De Raedt vs. SGV). 2. Negative Pregnant Defenses. The following arguments should be disregarded for admitting EER in the course of denying it: (1) You are not my employee. You are just my project employee; and (2) You are not my employee. You are just my program employee. Got it? If not - “You are not my wife. You are just the mother of my legitimate children.” Get it now? 3. Non-employees: PBA referee; cockfight sentenciador; and TV/radio talent. They are ICs. C Interplay of Jurisdictions 1.
Art. 128 vs. Art. 129 vs. Art. 217 1.1. RD has jurisdiction over: (a) 128 & 129 cases; (b) CR cancellation; (c) CBA deregistration; (d) complaints of apprentices, subject to PAC (plant apprenticeship committee) mediation; (e) complaints of kasambahays (Sec. 37, RA 10361); and (f) inter & intra union disputes involving WACLIU (workers associations, charters, locals & independent unions). If FINTCAM (federations, industry unions, trade unions, chapters, affiliates & members) are involved, BLR has jurisdiction. 1.2. Visitorial Power. RD can order closure of establishments or suspension of business operations based on violations of health and safety rules. Lost wages by reason of closure or suspension as ordered by RD (but not DENR) shall be restored by the employer who is found guilty (NAMAWU vs. Marcopper). Take note of the suspension of mining operations of a company in Antique. Order was issued by the DOE. Applying Marcopper, the company cannot be ordered to restore the lost wages of the affected coal miners because it was not the RD who issued that order. 1.2. Filing of a motion to reduce appeal bond is available when appealing 129 orders/decisions. The remedy is not available when appealing 128 orders.
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1.3. 1.4. 1.5. 1.6.
Appeals from128 orders are taken to the SOLE within 10 days; whereas, appeals from 129 orders/decisions are taken to the NLRC within 5 days only. Ouster of jurisdiction is possible under Art. 128 but not under Art. 129. Order referring a case to the LA is not a disposition on the merits. Thus, the case can be brought back to the RD even after 10 days because the continuation of proceedings is not barred by res judicata. 128 power is exercisable over establishments ( motu propio); hence, no need for all the employees to sign complaint or verification of appeal. On the other hand, 129 power is exercisable when a simple money claim is brought by a signed complaint.
2.
Spaghetti Doctrine (Do Not Use in the Bar). 2.1. From SOLE to BLR ( pababa). No abdication by SOLE of appellate power if he transmits to the BLR an appeal from an RD decision disposing a WACLIU case. Art. 226 gives the BLR jurisdiction over interunion and intra-union disputes (Barles Case). 2.2. From BLR to SOLE ( pataas). Elevation of case from BLR to SOLE by reason of the inhibition of the BLR Director is permissible because, in view of such inhibition, the SOLE can hear and resolve the case in the exercise of his power of supervision over the BLR (Heritage Hotel Case).
3.
Labor Arbiter (LA) and Voluntary Arbitrator (VA). 3.1. Conferment vs. Acquisition of Jurisdiction (a) Jurisdiction over the subject matter of a suit is conferred by law. But cases conferred on the LA may be brought to the VA via CBA stipulation; hence, there is jurisdiction by stipulation because Sec. 3, Art. XIII of the Constitution requires preferential use of voluntary modes of settling disputes. (b) VA acquires jurisdiction (conferred by Art. 261 or CBA) thru: (1) submission agreement (when both parties are willing to comply with their contractual obligation to go to VA); (2) notice to arbitrate (when one is willing but the other is unwilling); or (3) appointment (when the case is wrongly brought to the LA, in which case parties may appoint the LA as their VA). (c) Only the EBR can serve a notice to arbitrate to the exclusion of other LOs despite Art. 255 which in substance provides that workers shall be represented by the EBR for purposes of collective bargaining without prejudice to the right of a worker or group of workers to directly deal with the employer. The provision does not include right to serve a notice to arbitrate (Tabigue Ruling). (d) Hypothetical Problem: The disputants appoint the LA as their VA. The LA renders a decision. If that decision is appealed, should it be appealed to the NLRC or CA? If CA, is there a need to post an appeal bond? What is the appeal period, 10 or 15 day? Opinion: Appeal should be taken to the CA; no need to post appeal bond; and the appeal period is 10 days (Phil Electric Co. v. CA, 2014, has overtaken prior rulings like Samahan vs. Magsalin stating that the appeal period was 15 days).
4.
Med-Arbiter, BLR, SOLE & CA. 4.1. CE Proceedings (a) Appeal – to SOLE (b) Protest – to SOLE 4.2. WACLIU Cases (a) Inter-union Disputes Appeal – to BLR (b) Intra-union Disputes Appeal – to BLR 4.3. BLR Decisions (a) FINTCAM Cases (original jurisdiction) – to SOLE (b) WACLIU Cases (appellate jurisdiction) – to CA.
5.
SOLE and NLRC. 5.1. Unlike the BLR, the NLRC is not subject to the power of supervision of the SOLE. 5.2. In national interest cases, if the SOLE certifies a case to the NLRC then it becomes the duty of the NLRC to conduct compulsory arbitration, render judgment, and enforce it. It cannot dismiss the case based on its opinion that national interest is not involved. The only opinion that matters on this point is the SOLE’s. Art. 263 (g) provides “If in his opinion….” The opinion whereof it speaks is the opinion of the SOLE which the NLRC cannot review because it does not sit to review in certified cases. III DISTINCTIONS
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
Liberal Interpretation Rule vs. Utmost Liberality Rule Totality of Infractions Rule vs. Cognate Offenses Rule Hold Over Doctrine vs. Automatic Renewal Clause Nightshift vs. Nightwork Learner vs. Apprentice SPI within vs. SPI without OFW vs. Migrant Worker Overtime vs. Overload Simple Illegal Recruitment vs. Economic Sabotage License vs. Authority Just Cause vs. Authorized Cause Redundancy vs. Preventive Retrenchment
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13. 14. 15. 16. 17. 18. 19. 20.
Backwages vs. Separation Pay Backwages vs. Salaries for Unexpired Portion of Contract Solo parent vs. Single parent No Strike Clause vs. Compulsory Arbitration Clause Confidential Employee vs. Employee Occupying a Position of Confidence Compulsory SSS Coverage vs. Voluntary SSS Coverage Contributory Retirement Plan vs. Non-contributory Retirement Plan SSS vs. EC IV CONFLICTS IN LABOR LAW
PD 442 VS. ORILC 1. Art. 82 vs. Sec. 8 (b), Rule IV, Bk III. Art. 82 excludes workers paid by result (e.g. piece-raters) from the coverage of holiday pay. However, the ORILC entitles piece-raters to holiday pay. Note: Villuga Case 1993 – piece-raters are not entitled. Labor Congress Case 1998 – they are entitled based on ORILC. Mark Roche Int’l Case 1999 – not entitled. What to do? (a) If asked to lawyer for a piece-rater, apply Labor Congress. (b) If asked to lawyer for the company, apply Art.82 and support it with Villuga and Mark Roche. (c) If appointed by the examiner as judge, you may apply the Operative Fact Doctrine. Tell him that the ORILC provision is valid and will continue to produce legal effects until nullified for being amendatory of Art. 82. Thus, you can award holiday pay to a piecerater. 2.
Art. 279 vs. Sec. 2, Rule I, Bk VI Art. 279 on pre-termination procedure requires the giving of ample opportunity to be heard but the ORILC requires hearing or conference. Statute prevails over implementing rule; hence, no need to conduct a hearing. Exception: If hearing is requested in writing by the employee (PT&T Ruling 2009).
SC RULING VS. POEA-SEC 1. Sickness Allowance. In the Transocean Case decided by Justice Velasco, the maximum was 120 days based on the POEA-SEC. But in the subsequent Magsaysay Maritime Services Case decided by Justice Brion, it was held that the 120-day limit may be extended. Hence, sickness allowance equivalent to 197 days was awarded. 2. Company-designated Physician. At one point, the SC discredited the medical opinion of the company-designated physician for being biased. In subsequent decisions, it recognized the primacy of that opinion in consonance with the POEASEC and other considerations, such as: privity to the examination and treatment; number of examinations and tests; length of medical attention given; etc. 3. Disputable Presumption. At one point, the SC still required the seafarer to prove work-connection of his unlisted disease despite the disputable presumption of work-connection given him by the POEA-SEC. In the 2014 Racelis Case, however, it already required the employer to destroy the presumption. 4. Third Physician. The POEA-SEC provides that in the event of conflicting medical opinions, the parties “may agree” on a third physician whose finding shall be final and binding on them. The optional character of the provision was made mandatory by Justice Brion in the 2013 Phil. Hammonia vs. Dumadag Case. As a result, if no third physician is employed then the opinion of the company-designated physician becomes determinative of the medical status of the seafarer. Note: VA to CA. The Labor Code provides that VA decisions maybe challenged in 10 days. In Samahan vs. Magsalin, among others, the SC held that the appeal period was 15 days. However, in the 2014 Phil Electric Co. Case, Justice Leonen reduced the 15 to 10. RA 10151 VS. D.O. 119-12 Congress in R.A. 10151 defined a nightworker as one who rendered not less than 7 consecutive hours of work between 12 midnight and 5 am the following day. But how could one do 7 when there were only 5 between midnight and 5am? Hence, the DOLE had to redefine a nightworker in D.O. 119-12 as one who renders not less than 7 consecutive hours of work between 10 pm and 6 am the following day. Reason dictates that the DOLE definition should be applied. V QUESTIONS TO ASK BEFORE ANSWERING A QUESTION 1.
Cause of Action (Labor Standards Claims): Is the money award proper? 1.1. Is the claimant an employee? 1.2. If so, is he a covered employee? 1.3. If so, does he suffer from any special disqualification? 1.4. If not, has he complied with prerequisites? 1.5. If he has, is his claim barred by prescription or res judicata, waived, paid, etc.?
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2.
Entitlement to Maternity Benefits (SSS): If A is entitled to maternity benefits, how much would it be? 2.1. Is the claimant a member? 2.2. Has she exhausted all her leave credits? 2.3. Has she reported her pregnancy and expected date of delivery to her employer? 2.4. What is the semester of contingency? 2.5. Has she paid at least three monthly contributions during the 12-month period immediately preceding the semester of delivery, miscarriage or CS? 2.6. What are her highest monthly salary credits during that 12-month period? 2.7. If all six monthly salary credits were added and divided by 180 days, what would be the quotient? 3.8. If the quotient is multiplied by 100%, how much is the product? 3.9. Do I know how to multiply (w/o my cp) the product by: 60 days if normal delivery/miscarriage; or 78 days if CS? Note: Use the same formula (but multiply by 90%) when computing sickness benefits. Multiply by number of days sick.
3.
Wage Distortion Adjustment: Adjust the wage elimination/compression. 3.1. What is the minimum wage? 3.2. What is the salary rate of the complaining wage group? 3.3. What is the Prescribed Increase (PI)? 3.4. Do I know how to divide minimum wage by the complainant’s salary rate? 3.5. Do I know how to multiply (w/o my cp) the quotient by the PI? 3.6. Do I know how to add (w/o my cp) the product to the wage rate of the complainant in order to restore/adjust the lost wage gap? WDA = Minimum Wage x Prescribed Increase Actual Salary Note: Is there a WD to adjust in the following: A, B, C & D received less than P100 daily while E, F and G received P110 daily. A law was passed directing payment of +P10 to workers receiving less than P100 per day. On the day it took effect, a CBA was concluded. By stipulation, its economic provisions providing for a salary increase of +P10 were made retroactive by six months. E, F and G complained of wage distortion. Adjust. There is nothing to adjust because what would have been a wage distortion was aborted. Since the +P10 provision of the CBA was made retroactive, nobody was receiving below P10 anymore at the time the law took effect. Hence, nobody qualified. As a result, the wage advantage/gap enjoyed by E, F & G was neither eliminated nor compressed. Besides, the CBA gave all employees +P10.
4.
WD is inter-wage group. When is there a WD? 4.1. Are there at least 2 wage groups (WG “A” & WG “B”)? 4.2. Does one wage group enjoy a wage advantage (wage gap) over the other? 4.3. Has the wage advantage/gap been eliminated/compressed (seriously contracted)? 4.4. If so, what led to it (wage law/order; CBA renegotiation; merger)? Note: If casuals receiving lower pay rate become regulars, old regulars cannot complain of WD based on uniform pay rates. Reason: After promotion, there is only 1 wage group to speak of. Promotion is not one of the causes of WD. Old regulars cannot demand sub-classification of employees into old regulars and new regulars because adoption of a wage structure consisting of wage groups and corresponding wage rates is management prerogative (NFL Case,1984).
5.
Retirement Benefits (Art. 287, old, LC): Compute X’s retirement pay. 5.1. Is there a CBA or company retirement plan? 5.2. If none, is the employer exempt? 4.3. If not, is the claimant 60/65 with at least 5 years of service? 4.4. If so, is he entitled to the entire 22.5 days per Art. 287 formula which is: (22.5 x daily basic salary) x length of service Note: 15 is constant, whereas 5 (SIL) and 2.5. (1/12 of 13 th month pay) are dependent on coverage. Hence: Is the claimant covered for purposes of SIL? Is he entitled to 13 th month pay? If yes to both, give additional 7.5. If not entitled to 13 th month pay but entitled to SIL, just give additional 5; or if not entitled to SIL but entitled to 13 th month pay, give additional 2.5. Note:
6.
Refer to Diagram of Art. 82 & 13MP
Backwages: How full are A’s backwages? 6.1. Was the claimant dismissed without just cause? 6.2. How much is his basic monthly salary (BMS)? 6.3. Is he entitled to SIL and 13 th month pay? 6.4. How many months are there from date of illegal dismissal to date of reinstatement or finality of judgment?
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E.g. BMS = P30K; Item 6.4 = 18 months Assume A is entitled to 13MP and SIL (If manager, not entitled to both. See diagram for Art. 82 & 13MP.) Computation: a. Basic Salary P30K x 18 months = P540,000.00 b. 13MP P540,000 / 12 months = P 45,000.00 c. SIL (P1,153.85 x 5 / 12) x 18 = P 8,653.85 P593,653.85 Note: 6.8.
P1,153.85 = P30,000.00 / 26 days
Am I computing backwages after 1 July 2013? Before: P593,653.85 x 12% legal interest After: P593,653.85 x 6% legal interest
7.
Separation Pay: Compute X’s separation pay in lieu of reinstatement. 7.1. How many years (6 months = 1 year) has he done until finality of judgment? 7.2. How much is his basic monthly salary (excluding allowances and benefits)? 7.3. Without my cp, do I know how to multiply basic monthly salary by length of service?
8.
Violation of Right to Security of Tenure: Is A liable for illegally dismissing B? 8.1. Has the complainant established the fact of his dismissal with substantial evidence, i.e.: a. EER (e.g. Co. ID, appointment letter); b. Complete severance of EER (e.g. being dropped from the payroll) ; and c. Overt act resulting in complete severance (e.g. notice or act of barring; or just cause for quitting)? 8.2. Has the respondent proven his just or authorized cause with clear and convincing evidence? a. Just Cause (e.g. Elements of Serous Misconduct) b. Authorized Cause (e.g. FS duly certified to by independent external auditor)
9.
Validity of Certification Election: Is the CE valid? 9.1. Is the CE barred (by Contract Bar, CE Year Bar, Deadlock Bar, etc)? 9.2. Contract Bar: (a) If there is a pre-existing CBA, is the CBA registered? No. Then no bar. (b) If registered, is it a sweetheart CBA? Yes. Then no bar, etc. 9.3. CE Year Bar: (a) After certification, did the EBR commence collective bargaining within 12 months? No. Then no bar (b) Did the EBR sustain collective bargaining? No. Then no bar even if commenced. 9.4. Deadlock Bar: (a) Has the dispute been submitted to mediation/ arbitration? No. Then no bar. (b) Is the dispute the subject of a valid notice of strike? No. Then no bar. 9.5. Did majority of the eligible voters cast their votes? Yes. Then the CE is valid as long as not barred. Note: Valid if not barred and Major ELVOT CASVOT!
10.
CE Winner: Which union can be certified as EBR? 10.1. How many votes constitute the valid votes? (Exclude spoiled ballots, blank ballots). 10.2. Which of the participating unions got majority of the valid votes? (50% + 1). Note: Winner is Major VOT CASVOT!
11.
Run-Off Election: Should a run-off election be ordered? 11.1. Is the CE valid? 11.2. Do the participants (including No Union) number 3 or more? 11.3. What is the highest vote and is it equivalent to majority based on valid votes? 11.4. If none got majority based on valid votes, is the total number of votes garnered by the participants (excluding No Union) at least 50% of the votes cast? 11.5. Is there an election contest likely to materially affect the CE result? None. Then proceed to run-off.
12.
13th Month Pay: Is A entitled to 13th month pay? If so, how much? 12.1. Is the claimant a land-based (not a seafarer) rank-n-filer? 12.2. If land-based but not rank-n-filer, is there a CBA, contract, policy or practice granting him 13 th month pay? 12.2. Is he a MES G WPD (subject to RA 10361) employee? 12.3. If W (worker paid by result) employee, is he a piece-rater? Yes. Then entitled because his employer is not exempt. 12.4. If paid on commission basis, does he also receive basic salary? Yes. Then entitled. 12.5. Do I know how to divide “total annual basic monthly salary” by 12 w/o my cp? No. Then pract ice w/o cp now!
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13.
Solidary Liability under D.O. 18-A: Is the contracting legitimate? 13.1. Is the contractor substantially capitalized or with investment? 13.2. Does he actually and directly use his capital or investment in performing or completing the work contracted out to him? 13.3. Does he perform his work on his own account and responsibility? 13.4. Is he independent of his principal as to his means and methods? 13.5. Was he issued a D.O. 18-A CR by the DOLE RD? 13.6. Does his service agreement with his principal contain protective provisions in favour of his workers? Yes to 1-6. Then he is a legitimate JC. As to his principal, the limit of his solidary liability is up to withheld salaries and benefits only (Meralco Industrial Eng’g Services R uling, 2008). He cannot be ordered to pay backwages and separation pay in lieu of reinstatement. This can be done only if his contactor is a labor-only contractor. 13.7. Is the job contracting void for being against public policy? (In-house contracting, etc…)
14.
Total Permanent Disability Compensation (POEA-SEC): Is the disability claim meritorious? 14.1. Is the disability total in that the seafarer can no longer continue performing his customary onboard work? 14.2. Is the disease/injury resulting in disability work-related? 14.3. Is there a medical repatriation? 14.4. Is there a showing that the seafarer reported within 3 days from arrival to his manning agent? 14.5. Was he given a medical referral and did he submit himself to further medical examination and treatment w/o abandoning the medical intervention of the company-designated physician? 14.6. Did the company-designated physician assess his disability (not work-related, resolved, Grade lower than Grade 1)? 14.7. If he consulted his own physician, did he disclose the latter’s medical opinion as to allow his employer to initiate the selection of a third physician? 14.8. Is the medical opinion of the third physician credible (supported with diagnostic results, etc.)? 14.9. Did the company-designated physician issue his assessment within 120 days/240 days?
15.
Death Benefits (POEA-SEC): Is the death claim meritorious? 15.1. Did the seafarer die (death certificate) or simply missing? 15.2. Is his death by reason of a work-related disease (listed under Sec. 32-A) or work-related injury (at the workplace, while performing work, or elsewhere as required by his work)? 15.3. If not listed, did the employer dispute the presumption that his unlisted disease (brainstem cavernous malformation, lung cancer) is work-related? 15.4. Did he die of the disease/injury during the effectivity of his contract? 15.5. If not, was he medically repatriated by reason of a work-related disease/injury? 15.5. Was that disease/injury the proximate cause of his death?
16.
Foreign GOCCs: Is Ich Hachtung, a German corporation doing business in Ph, immune from suit? 16.1. Is it registered or not? Not registered – it has immunity (deemed as extension of Germany). 16.2. If registered, under what private law of Germany? 16.3. Does that private law give it the power to sue? Yes. It has no immunity. 16.4. Did you fail to see the private law? Yes. Presumed to be the same as Ph Corporation Code which gives power to sue (Processual Presumption Doctrine). No immunity. (NTZ Case)
17.
Confidential Employee (CE): Is A an eligible Cert El voter? 17.1. Does A report to or assist B in a fiduciary capacity? 17.2. Does B possess labor relations information? If B possesses business information, A is not a CE. 17.3. Does A have access to that information? 17.4. Is his access inherent in his job? If accidental, A is not a CE.
18.
Illegal Recruitment (IR) : Is X liable for IR? 18.1. Has X entered a CUTE CPA with Cute Red Peanut? 18.2. Does X have a recruitment license? 18.3. If with license, has he committed a prohibited act?
19.
Sexual Harassment (SH): Is the dismissal of A valid? 19.1. Was the act/s complained of committed in a WET (work, education, training) environment? 19.2. Does A have MIA (moral ascendancy, influence, authority) over the complainant? 19.4. Did A demand, request or require sexual favour (DRR for sexual favour)? 19.5. Did the complainant reject or accept the DRR? If she accepted, acceptance is not a defense. What is punished is abuse of MIA, not violation of the sexuality of the complainant (Phil Aeolus Automotive Case) 19.6. If she rejected, did the WET environment become a HOI (hostile, offensive, intimidating) environment? Yes. Liable for SH.
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20.
Solo Parent: Is Jennilyn M entitled to a 7-day parental leave? 20.1. Is she alone or solo in discharging parental responsibility? 20.2. If so, is it because of “IF NO DADS Unbearable Caring? 20.3. Does she have a dependent who is <18 DULU (less than 18, dependent, unmarried, living with, unemployed)?
Good Luck to All 2015 Bar Examinees We Are Praying for Your Success God Bless
From: ABRC Family
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