LABOR STANDARDS
between them by the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation and arbitration.
PRELIMINARY TITLE
(Azucena, 2007) e.g. Additional allowance pursuant to
Q: What is labor?
CBA
2001)
Social legislation - It includes laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance' of social justice. (Azucena, 2007)
Q: What is labor law?
e.g. GSIS Law, SSS Law, Philhealth
3.
A: It is the exertion by human beings of physical or mental efforts, or both.jowards the production of goods and services? (MenCfoza,
A: The law governing the rights and duties of the employer and employees with respect to: 1. The terms and conditions of employment and 2. Labor disputes arising from collective bargaining (CB) respecting such terms and conditions. Q: What is the purpose of labor legislation? A: Labor legislation is an exercise of police power. The purpose of labor legislation is to regulate the relations between employers (Ers) and employees (Ees) respecting the terms and conditions of employment, either by providing for certain standards or for a legal framework within which better terms and conditions of work could be negotiated through CB. It is intended to correct the injustices inherent in Er-Ee relationship. (2006 Bar Question)
benefits
Q: Is there any distinction between labor legislation and social legislation? Explain. A: Labor legislation is sometimes distinguished from social legislation by the former referring to labor statutes, like Labor Relations Law and Labor Standards, and the latter to Social Security Laws. Labor legislation focuses on the rights of the worker in the workplace. Social legislation is a broad term and may include not only laws that give social security protection, but also those that help the worker secure housing and basic necessities. The Comprehensive Agrarian Reform Law could also be considered a social legislation. All labor laws are social legislation, but not all social legislation is labor law. (1994 Bar Question)
Q: What are the classifications of labor law? ART. 3. QECLARATION OF POLICY
A: 1.
Labor standards - The minimum terms and conditions of employment prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance and other monetary and welfare benefits. (Batong Buhay Gold Mines, Inc. v. Dela Serna, G.R. No. 86963, August 6,1999) e.g.
2.
ra"
Q: What is the State policy on labor?
A:
1. 2. 3. 4.
month pay
relations Defines and regulates the status, rights and duties, and the institutional mechanisms, that govern the individual and collective interactions of Ers, Ees, or their representatives. It is concerned with the stabilization of relations of Er and Ees and seek to Labor
5.
Afford full protection to labor Promote full employment Ensure equal work opportunities r€~ardless of sex, race, or creed Assure the rights of workers to self organization, security of tenure, just and humane conditions of work, participate in policy and decisionmaking processes affecting their right and benefits Regulate the relations between workers and employers
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1.
LI\BOR STANDARDS: GENERAL PROVISIONS Q: What oppression?
is
the
principle
of
non-
employment and equality 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.
A: The principle mandates capital and labor not to act oppressively against each other or impair the interest and convenience of the public. The protection to iabor clause in the Constitution is not designed to oppress or destroy capital. (Capili v. NLRC, G.R. No. 117378, Mar. 26, 1997) Q: What is the aim of labor laws? A: The justification of labor laws is social justice. Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic force by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-Sonstitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.(Calalang v. Williams, G.R. No. 47800, Dec. 2, 1940)
Q: What is "compassionate
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. 2.
Sec. 9, Art. II - 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.
3.
Sec. 18, Art./ II - The State affirms labor as a primary social economic force. It shall protect the rights of workers and prqmote their welfare.
4.
Sec. 8, Art. III - The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.
5.
Sec. 18 (2), Art. III - No servitude in any form except as a punishment whereof the party shall duly convicted .
6.
Sec. 12, Art. XII - The State shall establish and maintain an effective food and drug regulatory system and
justice"?
A: It is disregarding rigid rules and giving due weight to all equities of the case. e.g: Employee validly dismissed given severance pay.
may still be
Q: What are the sources of labor laws? A: 1. 2. 3. 4. 5.
Labor Code and other related gf,ecial legislation Contract Collective Bargaining Agreement Past practices Company policies
Q: What are the constitutional with regard labor laws?
A:
mandates
..L. Sec. 3, Art. XIII - The State shall afford full protection to labor, and overseas, organized unorganized, and promote
2
local and full
involuntary shall exist for a crime have been
UST GOLDEN NOTES 2010 undertake appropriate health, manpower development, and research, responsive to the country's health needs and problems.
7.
the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provisions of the RPC.
Sec. 14, Art. XIII - The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will Iflhanc~ their welfare and enable them to 'realize their full potential in the service of the nation.
3.
Q: What are other related laws to labor?
A:
1.
Civil Code a.
b.
Art.
1700 - The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common gooa.· Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects. Art. 1701 - Neither capital nor
Q: What are the basic rights of workers guaranteed by the Constitution?
A:
labor shall act oppressively against the other, or impair the interest or convenience of the public. c.
2.
1. 2. 3. 4. 5. 6.
Art. 1702 - 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.
d.
Special Laws a. GSIS Law b. 13th Month Pay Law c. Retirement Pay Law d. SSS Law e. Paternity Leave Act f. Anti - Child Labor Act g. Anti - Sexual Harassment Act h. Magna Carta for Public Health Workers i. Solo Parents Welfare Act of 2000 j. National Health Insurance Act as amended by R.A. 9241 k. Migrant Workers and Overseas Filipinos Act of 1995 as amended by RA 10022 I. PERA Act of 2008 m. Home Development Mutual Fund Law of 2009 n. The Magna Carta of Women o. Comprehensive Agrarian Reform Law as amended by R.A. 9700
7. 8.
Security of tenure Receive a living wage Humane working conditions Share in the fruits of production Organize themselves Conduct collective bargaining or negotiation with management Engage in peaceful concerted activities including strike Participate in policy and decision making processes
Art. 1703 - No contract which
Q: Who is an employer (Er)?
practically amounts to involuntary servitude, under any guise whatsoever, shall be valid.
A:
Revised Penal Code
1. 2.
Art. 289 - Formation, maintenance and prohibition of combination of capital or labor through violence or .threats. - Any person who, for the
One who employs the services of others One for whom employees work and who pays their wages and salaries
Q:Who isan employee (Ee)? A:
purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in
1. 2.
UNIVERSITY
A person working for salary or wages Any person in the service of another under a contract for hire, express or implied, oral or written
OF SANTO TOMAS de ([)erecno CiviC
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LABOR STANDARDS~ GENERAL PROVISIONS
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Q: Describe employer fEr) - employee (Ee) relationship?
A:
1.
2.
Contractual in nature but impressed with public interest. - It arises from the agreement of the parties. However, since a labor contract is impressed so much with public interest, it must conform to the common good. Hence, it is subject to special laws on public unions, collective bargaining and strikes, etc .: Further, the parties are enjoined not to act oppressively against each other, or impair the interest or convenience of the public. In personam It rendition of personal Ee (partakes of relationship) and the relationship will only parties.
involves the service by the master-servant effects of the extend to the
Q: What is the importance of determining
employer (Er)-employee(Ee)relationship?
A:
GR: Labor standards and conditions only if there is Er-Ee relationship.
apply
XPN: Even if there is no Er-Ee relationship, the LC may still be invoked: 1. Indirect Er's liability 2. Illegal recruitment 3. Misuse of POEA license
Note: The LC may apply even if the parties are not Ers and Ees of each other. Employment relationship is not a precondition to the applicability. of the LC but it depends on the kind of issue involved. Q: Who is an independent contractor? A: A person who accomplishes work as specified by the accordance with his own means As long as the desired result is means and methods used are the principal.
the desired principal in and methods. achieved, the immaterial to
Q: Why is it important to distinguish whether the relationship is that of an Er and Ee or that of a principal and independentcontractor? 1.
Laws governing them are different. Labor laws govern the rights and liabilities of the parties in an Er-Ee
relationship, while ordinary rules on contract will apply to an independent contractor and principal. 2.
.
Courts which have jurisdiction are likewise different - Labor tribunals will have jurisdiction over Er-Ee disputes while regular courts will have jurisdiction to an independent contractor and principal.
ART: 4. CONSTRUCTION _LABOR
IN
FAVOR OF . .
j
Q: How should doubts in the implementation and interpretation of the Labor Code (LC) and its Implementing Rules and Regulations (IRR)be resolved? A: They should be resolved in favor of labor.
Q: What is the concept of liberal approach in interpreting the LC and its IRR? A: The workers' welfare should be the paramount consideration in interpreting the LC and its IRR. This is rooted in the constitutional mandate to afford full protection to labor. (PLOT v. NLRC, G.R. No. 111933, July 23, 1997). It underscores the policy of social justice to accommodate the interests of the working class on the humane justification that those who have less in life shaH have more in law. (PAL v. Santos, G.R. No. 77875, Feb. 4, 1993). (2006 Bar
Question) Q: Art. 4 of the LC provides that in case of doubt In the implementation and interpretation of the provisions of the LC and its IRR, the doubt shall be resolved in favor of labor. Art. 1702 of the Civil Code also provides that in case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living of the laborer. Mica-MaraCompany assails the validity of these statutes on the ground that they violate its constitutional right to equal protection of the laws. Is the contention of Mica Mara Companytenable? Discuss fully. A: No, the Constitution provides that the State shall afford full protection to labor. Furthermore, the State affirms labor as a primary economic force. It shall protect the rights of workers and promote their welfare.
(1998Bar Question)
UST GOLDEN NOTES 2010 Q: What are the reasons for affording greater protection to employees?
A:
management function. Considering the nature and reason for existence of the school, it may adopt such policy as will advance its laudable objectives. In fact, the policy accords with the· constitutional precept of inculcating ethical and moral values in schools. The- school policy does not discriminate against women solely on account of sex (Art. 135, LC) nor are the acts prohibitedunder Art. 137 of the LC.
Greater supply than demand for labor; and 2.. Need for employmentby labor comes from vital. .and .desperate necessity. 1.
(Sanchez Construction 18, 1950)
v. Harry Lyons Inc., G.R. L-2779, Oct.
Q: Are all labor disputes resolved in favor of labor?
2.
A: No. The law also recognizes that managementhas rights which are also entitled to respect and enforcement in the interest of fair play. (St. Lukes Medical Center Ees Ass'n v. NLRC, GR. No. 162053, Mar. 7, 2007) Q: What is management prerogative? A: It is the right of an Er to regulate, unless otherwiselimited by special laws, accordingto his own discretionand judgment, all aspectsof employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of Ees, work supervision, lay-off of workers and' the discipline,dismissaland recall of workers. Q: Is the exercise prerogative unlimited?
of
management
A: No. A line must be drawn between management prerogatives regarding business operations per se and those which affect the rightsof employees(Ees). In treatingthe latter, managementshould see to it that its Ees are at least properly informed of its decisions and modes of actions. (PAL v. NLRC, GR. No. 8598~Aug. 13, 1993) Q:1. An exclusive school for girls, run by a
religious order, has a policy of not employing unwed mothers, women with live-in partners, and lesbians. Is the policy violative of any provision of the LC on employment of women? 2. The same school dismissed 2 female faculty members on account of pregnancy out of wedlock. Did the school violate any provision of the LC on employment of women? A: 1.
No, the policy does not violate the LC. The practice is a valid exerciseof
No, because to tolerate pregnancy out of wedlock will be a blatant contradiction of the school's laudable mission which, as already stated, accords with high constitutional precepts. This answer does not contradict the ruling in Chua-Qua where the teacher merely fell in love with a bachelor student and the teacher, also single, did not get pregnant out of wedlock. (2000 Bar Question)
Little Hands Garment Company, an unorganized manufacturer of children's apparel with around 1,000 workers, suffered losses for the 1st first time in history when its US and European customers shifted their huge orders to China and Bangladesh. The management informed its Ees that it could no longer afford to provide transportation shuttle services. Consequently, it announced that a normal fare would be charged depending on the distance traveled by the workers availing of the service. Q:
Was the Little Hands Garments Company within its rights to withdraw this benefit which it had unilaterally been providing to its Ees? A: Yes, because this is a management prerogative which is not due any legal or contractual obligation. - The facts of the case
do not state the circumstancesthrough which the shuttle service may be considered as a benefit that ripened into a demandable right. There is no showing that the benefit has been deliberately and consistently granted, i.e. with the employer's full consciousnessthat despite its not being bound by law or contractto grant it, it just the same granted the benefit. (2005 Bar Question) Q: Arnulfo, a supervisor of Quantum Foods Inc., was transferred by the latter as Area Sales Manager of Cebu to Area Sales Manager of head office when the former
UNIVERS!TY
OF
f£acu{taa
SANTO
TOMAS
ae (j)erecno CiviC'
5'
~
.
LABOR STANDARDS: GENERAL PROVISIONS denied liability of the company's decrease in merchandise due to his mismanagement of sales. Was the transfer of Arnulfo valid?
Q: To whom shall all rights under the LC apply?
A: Yes. In the pursuit of its legitimate business interests, especially during adverse business conditions, management has the prerogative to transfer or assign Ees from one office or area of operation to another provided there is no demotion in rank or diminution of salary, benefits and other privileges and the action is not motivated by discrimination, bad faith, or effected as a form of punishment or demotion without sufficient cause. This privilege is inherent in the right of Ers to control and manage their enterprises effectively. The right of Ees to security of tenure does not give them vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them. (Endico v. Quantum Foods Distribution Center, G.R. No. 161615, Jan. 30, 2009, J. CarpioMorales)
ART. 5. RULES AND REGULATIONS Q: Who is given the "rule-making
power"?
A:
GR: All rights and benefits granted to workers under the LC shall apply alike to all workers, whether agricultural or nonagricultural.
:
XPN: 1. Government employees (Ees) 2. Ees of government corporations created by special or original charter 3. Foreign governments 4. International agencies 5. Corporate officers/ intra-corporate disputes which fall under P.D. 902-A and now fall under the jurisdiction of the regular courts pursuant to the SRC 6. Local water district except where NLRC's jurisdiction is invoked. 7. As may otherwise be provided by the LC
Q: What is the test in determining a GOCC is subject
A: The Department of Labor and other gov't agencies charged with the administration and enforcement of the Labor Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and regulations shall become effective 15 days after announcement of their adoption in newspapers of general circulation.
whether to the Civil Service Law?
A: It is determined by the manner of their creation. Gov't corporations that are created by special (original) charter from Congress are subject to Civil Service rules, while those incorporated under the General Corporation Law are covered by the Le. Q: Who is an agricultural/farm
Q: What are the limitations to the "rulemaking power" given to the Secretary of Labor and Employment and other gov't agencies?
A:
1. 2.
A: It must: 1. Be issued under the authority of the law 2. Not be contrary to taw and the Constitution
6
Iteam:__
and benefits
3.
worker?
One employed in an agricultural or farm enterprise, Performs tasks which are directly related to agricultural activities of the Er, and Any activities performed by a farmer as an incident to farming operations. (Azucena, 2007)
UST GOLDEN NOTES 2010 l:teX·'3·'¢'j
Q: What are the essential elements in determining whether one is engaged in recruitment/placement?
PRE- EMPLOYMENT RECRUITMENT AND PLACEMENT OF WORKERS Art. 12. POLICY OF THE STATE Q: What is the policy regards labor?
A:
of the State as
1.
Promote and maintain a State of full employment through improved manpower training, allocation and utilization 2. Protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of employment 3. Facilitate a free choice of available employment by persons seeking work in conformity with the national interest 4. Facilitate and regulate the movement of workers in conformity with the national interest 5. Regulate the employment of aliens, including the establishment of a registration and/or work permit system 6. Strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives 7. Ensure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippines abroad ART. 13. DEFINITIONS
A: It must be shown that: 1. The accused gave the complainant the distinct impression that she had the power or ability to send the complainant for work, 2. Such that the latter was convinced to part with his money iii aider to be so employed. (People v. Goee, G.R. No. 113161, Aug. 29, 1995) Q: Who Is deemed engaged in recruitment and placement? A: Any person or entity which, in any manner, offers or promises for a fee employment to 2 or more persons. (Art. 13[b), Le) Q: What if employment
Is offered to only
one person? A: Immaterial. The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to 2 or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption. (People v. Pan is, G.R. L-58674-77, July 11, 1986) 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 charged, directly or indirectly, from the workers or employers or both. Q: What is a license?
Q: Who is a worker? A: Any member of the labor force, whether employed or unemployed. (Art. 13 [aJ, LC)
A: It is issued by DOLE authorizing a person or entity to operate a private employment agency.
Q: What is recruitment and placement?
Q: What is a private recruitment agency?
A:
A: It is any person or association engaged in the recruitment and placement of workers without charging any fee, directly or indirectly, from the workers or employers.
1. 2.
Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers; and Includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not. (Art. 13 [b},LC)
Q: Who is a seaman? A: Any person employed in a vessel engaged in maritime navigation.
UNIVERSITY OF SANTO TOMAS Pacu{tati tie
7
~. .
LABOR STANDARDS: PRE-EMPLOYMENT Rule III, POEA Rules Governing Employment as amended in 2002)
Q: What is overseas
employment?
A: It is employment Philippines.
of a worker outside the
Q: Who (OFW)?
is
an overseas
Filipino
worker
A: A person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a citizen or on board a vessel navigat!ng the foreign seas other than a government ship used for military or non-commercial purposes or on an installation located offshore or on the high . seas; to be used interchangeably with migrant worker. (Sec. 2, R.A. 10022 amending R.A. 8042) Q: Who is an emigrant? A: Any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit or its equivalent in the country of destination.
-ART. 16. PRIVATE RECRUITMENT
;
Q: What is the placement?
A:
rule
in recruitment
and
GR: No person or entity other than the public employment offices, shall engage in the recruitment and placement of workers XPN: 1. Construction contractors if authorized by the DOLE and Construction Industry Authority 2. Other persons or entities as may be authorized by the SLE 3. Members of the diplomatic corps (but hiring must go through POEA) 4. Public employment offices 5. Private recruitment offices 6. Private employment agencies 7. POEA 8. Shipping or manning agents or representatives 9. Name hires
ART. 17. PHILIPPINE OVERSEAS .. EMPLOYMENT ADMINISTRATION (POEA) Q: What are the principal POEA?
A:
8
functions
of the
1.
Protection of the right of Filipino workers to .fair and equitable emploYglent practices 2. Regulation of private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system 3. Deployment of Filipino workers through gov't to gov't hiring 4. Formulation, implementation, and monitoring of overseas employment of Filipino workers taking into consideration their welfare and domestic manpower requirements 5. Shall inform migrant workers not only of their rights as workers but also of their rights as human beings, instruct and guide the workers how to assert their rights and provide the available mechanism to redress violation of their rights. (Sec. 14, R.A. 10022) 6. Implementation, in partnership with other law-enforcement agencies, of an intensified program against illegal recruitment activities. (Sec. 14, R.A. 10022)
Q: What OFWs?
is
the
rule
on
deployment
A: The State shall allow the deployment OFWs:
of
of
1.
Only in countries where the rights of Filipino migrant workers are protected.
2.
To vessels navigating the foreign seas or to installations located offshore or on high seas whose owners/Ers are compliant with international laws and standards that protect the rights of migrant workers.
3.
To companies and contractors with international operations: Provided, That they are compliant with standards, conditions and requirements, as embodied in the employment contracts prescribed by
Q: Who are name hires? A: They are individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation of any agency. Their hiring, nonetheless, shall pass through the POEA for processing purposes. (Part /II,
Overseas
UST GOLDEN NOTES 2010 the POEA and in accordance with internationally-accepted standards. (Sec. 3, R.A. 10022 amending R.A. 8042) Q: What are the guarantees country for the protection OFWs?
A:
of the receiving of the rights of
1.
It has existing labor and social laws protecting the rights ~pf workers, including migrant workers;'
2.
It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; and
3.
It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of OFWs .. (Sec. 3, R.A. 10022 amending R.A. 8042)
Workers Welfare Administration, in coordination with appropriate international agencies, shall take charge of the repatriation. (Sec. 15, R.A. 8042) Q: What is the rule on mandatory repatriation of underage migrant workers? A: Upon discovery or being informed of the presence of migrant workers whose ages fall below the minimum age requirement for overseas deployment, the responsible officers in the foreign service shall without delay repatriate said workers and advise the DFA through the fastest means of communication available of such discovery and other relevant information. The license of a recruitment/manning agency which recruited or deployed an underage migrant worker shall be automatically revoked and shall be imposed a fine of not less than P500,000 but not more than P1 ,000,000. (Sec. 9, R.A. 10022) Q: What are the regulatory and adjudicatory functions of the POEA?
A:
1.
Regulatory - It regulates sector participation in the and overseas placement through its licensing and system.
2.
Adjudicatory a. Administrative cases involving violations of licensing rules and regulations and registration of recruitment and employment agencies or entities b. Disciplinary action cases and other special cases which are administrative in character involving employers, principals, contracting partners and Filipino migrants.
Provided, that the receiving country is taking positive, concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees. Note: In the absence of a clear showing that any of the guarantees exists in the country of destination of the migrant workers, no permit for deployment shall be issued by the POEA.
Q: What is the rule on repatriation?
A:
GR: The repatriation of the: 1 . Worker and the transport of his personal belongings - shall be the primary responsibility of the agency which recruited or deployed the worker overseas. 2.
Remains and transport of the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or the local agency. XPNs: 1. If the termination of employment is due solely to the fault of the worker, the principall Er or agency shall not be responsible for the repatriation of the former andlor his belongings 2. In cases of war, epidemic, disaster or calamities, natural or man-made, and other similar event, and where the principal or recruitment agency cannot be identified, the Overseas
Q: What are the grounds
the private recruitment of workers registration"
for disciplinary
action? A: Under R.A. 8042, these are: 1. Prostitution 2. Unjust refusal to depart for the worksite 3. Gunrunning or possession of deadly weapons 4. Vandalism or destroying company property 5. Violation of the laws and sacred practices of the host country and unjustified breach of employment contract 6. Embezzlement of funds of the company or fellow worker entrusted for delivery to relatives, in the Phils.
UNIVERSITY
OF SANTO
Pacu[taa
TOMAS
ae i1)ereclio CiviC
~"'l
9
LABOR STANDARDS: PRE-EMPLOYMENT 7.
8. 9.
10. 11. 12.
13. 14.
Creating trouble at the worksite or in the vessel Gambling initiating or joining a strike or work stoppage where the laws of the host country prohibits strikes or similar actions Commission of felony punishable by Philippine laws or by the host country Theft or robbery Drunkenness Drug addiction or possession or trafficking of prohibited drugs Desertion or abandonment
Q: What is the jurisdiction ofthe
distinction between LA and POEA?
present case involves the employment contract entered into by petitioner for overseas employment, his claims are cognizable by the labor arbiters of the NLRC. (Santiago v. CF Sharp Crew Management,G.R. No. 162419, July 10, 2007) Q: What matters fall outside of the POEA?
A:
1.
the
2.
, .' Original and exclusive jurisdiction over all claims arising out of Er-Ee relationship or by virtue of any law or contract involving OFWs including claims for: 1. Actual 2. Moral 3. Exemplary 4. Other forms of damages. (Sec. 10, R.A. 8042)
jurisdiction over: 1. All cases which are administrative in character relating to licensing and registration of recruitment and employment agencies 2. Disciplinary Action cases and other special cases, which are administrative in character, involving Ees, principals, contracting partners and Filipino migrant workers. (Rule VII, Book VII, POEA
Q: A seafarer was prevented from leaving the port of Manila and refused deployment without valid reason. His POEA-approved employment contract provides that the employer-employee relationship shall commence only upon the seafarer's actual departure from the port in the point of hire. Is the seafarer entitled to relief under the Migrant Workers' Act, in the absence of an employer-employee relationship? A: Yes. Despite the absence of an employer-employee relationship, the NLRC has jurisdiction over the seafarer'S complaint. The jurisdiction of labor arbiters is not limited to claims arising from Er-Ee relationships. Sec. 10 of the Migrant Workers Act provides that the labor arbiters shall have jurisdiction over claims arising out of an Er-Ee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. Since the
10
the jurisdiction
Foreign judgments - such claim must be brought before regular courts. POEA is not a court; it is an administrative agency, exercismq adjudicatory or quasi-judicial functions. Torts - falls under the provisions of the Civil Code.
ART.
18. BAN
ON DIRECT HIRING
Q: What is the ban on direct-hiring?
A:
GR: An Er may only hire Filipino worker for overseas employment through POEA or entities authorized by DOLE. XPN: Direct 1. 2. 3. 4.
hiring by International organizations Name hires Members of the diplomatic organizations Other Ers as may be allowed by DOLE
Reasons: 1. To ensure the best possible terms and conditions of employment for the worker. 2. To assure the foreign Er that he hires only qualified Filipino workers. 3. To ensure full requlation of employment in order to avoid exploitation. Q: May the POEA, at any time terminate or impose a ban on employment of migrant workers? A: Yes, in consultation with the DFA based on the ft. grounds: 1. In pursuit of the National Interest or 2. When public welfare so requires. (Sec. 4 R.A. 10022)
UST GOLDEN NOTES 2010 Q: What is the liability of the private employment agency and the principal or foreign-based employer?
XPN: 1.
A: They are jointly and severally liable for any violation of the recruitment agreement and the contracts of employment.
2.
3.
Note: This joint and solidary liability imposed by law against recruitment agencies and foreign Ers is meant to assure the aggrieved worker of immediate and sufficient payment ~f what is due him. If the recruit menUplacement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the claims and damages. (Becmen Service Exporter and Promotion v. Cuaresma, GR. Nos. 182978-79, April 7, 2009)
Q: What provisions contracts?
A:
1.
2. 3. 4.
are the minimum of overseas
Q: What is the effect of failure to remit?
A:
conditions/ employment
Guaranteed wages for regular hours and overtime, not lower than the minimum wage prescribed in all of the ff: a. The host country b. Bilateral agreements or international conventions ratified by the host country and the Philippines c. The Philippines Free transportation to and from the worksite or offsetting benefit Free food and accommodation or offsetting benefit Just/authorized causes of termination of the contract or services of the worker
The worker's immediate family members, beneficiaries and dependents are residing with him abroad Immigrants and Filipino professionals and employees working with the UN agencies or specialized bodies Filipino servicemen working in U.S. military installations. (Resolution No. 1-83, Inter-Agency Committee for Implementation of E. O. 857)
1.
Workers - Shall be suspended or removed from the list of eligible workers for overseas employment.
2.
Employers - Will be excluded from the overseas em ployment program. Private employment agencies shall face cancellation or. revocation of their licenses or authority to recruit. (Sec. 9, E.O. 857)
CHAPTER II REGULATIONS OF RECRUITMENT PLACEMENT ACTIVITIES .
AND' .
ART. 25. PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS Q: What are the entities in the private sectors that can participate in recruitment and placement of workers?
A:
Note: An agreement that diminishes the Ees pay and benefits as contained in a POEA-approved contract is void, unless such subsequent agreement is approved by the POEA.
1. 2. 3. 4.
5. ART. 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS
6.
Shipping or manning agents or representatives Private recruitment offices Public employment offices Construction contractors if authorized by the DOLE and Construction Industry Authority. Persons that may be authorized by the SLE Private employment agencies. (Sec. t, Rule VII, Book I, IRR)
Q: What is the rule on remittance of foreign exchange earnings?
A: GR: it shall be mandatory for all OFWs to remit a portion of their foreign exchange earnings to their families, dependents, andlor beneficiaries ranging from 50% - 80% depending on the worker's kind of job. (Rule VIII, Book III, POEA Rules) UNIVERSITY
OF
Pacu{tatI
SANTO
TOMAS
tie cJJerecno CiviC
~~-~11
LABOR STANDARDS: PRE-EMPLOYMENT Q: What participation of workers?
A:
are the qualifications, for in recruitment and placement '
2.
3. 1,
Filipino citizens, partnerships or corporations at least 75% of the authorized capital stock of which is owned and controlled by Filipino citizens; (Art, 27, LC)
2.
Capitalization a. Single proprietorship or partnership -A minimum capitalization of P2 million b. Corporation -A minimum paid-up capital of P2 million
4.
Provided, that those with existing licenses shall, within 4 yrs from the effectivity hereof, increase their capitalization or paid up capital, as the case may be, to P2 million at the rate of P250,000.00 every year. (Art. 28, LC) 3,
Not otherwise disqualified by law or other government regulations to engage in the recruitment and placement of workers for overseas employment. (Rule I, Part II, POEA Rules)
4.
Payment of registration fees
5,
Posting of surety/cash bonds
5.
Q: How will POEA regulate private participation in the recruitment overseas placement of workers?
sector and
A: By setting up a licensing and registration system. (Sec. 14, R.A. 10022) Q: Is a corporation, 70% of the authorized and voting capital of which is owned and controlled by Filipino citizens, allowed to engage in the recruitment and placement of workers, locally or overseas? Explain briefly. A: No. It is because Art, 27 of the Labor Code requires at least 75%. (2002 Bar Question) Q: Who are disqualified business of recruitment workers?
A:
12
1.
to engage in the and placement of
Travel agencies and sales agencies of airline companies; (Art. 26, LC)
6.
Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency; Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency; Persons, partnerships or corporations which have derogatory records, such as but not limited to those: a. Certified to have derogatory record or information by the NBI or by the Anti-Illegal Recruitment Branch of the POEA; b. Against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exists; c. Convicted for illegal recruitment or other related cases and/or crimes involving moral turpitude; and d. Agencies whose licenses have been previously revoked or cancelled by the POEA for violation of RA 8042, PD. 442 as amended and their implementing rules and regulations as well as these rules and regulations, Any official or Ee of the DOLE, POEA, OWWA, DFA and other government agencies directly involved in the implementation of RA 8042 and/or any of his/her relatives within the 4t~ civil degree of consanguinity or affinity; and Persons or partners, officers and directors of corporations whose licenses have been previously cancelled or revoked for violation of recruitment laws. (Sec. 2, Rule I, 2002 Rules and Regulations on the Recruitment and Employment of Land-Based Workers)
UST GOLDEN NOTES 2010 :~.__
-c-
citizenship and capitalization requirements. (Arts. 27-28, LC). (1998 Bar Question)
ART. 26. TRAVEL AGENCIES'PROHIBITED TO RECRUIT
Note: Change of ownership or relationship of a single proprietorship licensed to engage in overseas employment shall cause the automatic revocation of the license.
Q: What is the rule on recruitment of travel agencies and sales agencies of airline companies? A: They are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.
~~
ART. 32. FEES TO BE PAID' BY WORKERS
~
Q: When maya worker be charged any fee?
Q: w:rTA is a well-known travel agency and an authorized sales agent of the PAL. Since majority of its passengers are overseas workers, WTT A applied for a license for recruitment and placement activities. It stated in its application that its purpose is not for profit but to help Filipinos find employment abroad. Should the application be approved? A: The application should be disapproved, as it is prohibited by Art. 26 of the LC, to wit: "Art 26. 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 for profit or not." Rule I, Part II POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Workers (2002) disqualifies any entity having common director or owner of travel agencies and sales agencies of airlines, including any business entity from the recruitment and placement of Filipino workers overseas, whether they derive profit or not. (2006 Bar Question)
Note: A land based agency may charge and collect from its hired workers a placement fee in an amount equivalent to 1 month salary, exclusive of documentation costs. Q: What are the only authorized payments that may be collected from a hired worker?
A:
1.
2.
.
Placement fee in an amount equivalent to one month's salary of the worker and Documentation costs.
ART. 34..PROHIBITED~PRACTICES Q: What are prohibited recruitmentl placement?
A:
Q: Is the license or authority transferable? A: No, they are non-transferable.
A: Only when: 1. He has obtained work through recruiter's efforts, and 2, The worker has actually commenced working
1.
(Art. 29)
Q: A Recruitment and Placement Agency declared voluntary bankruptcy. Among its assets is its license to engage in business. Is the license of the bankrupt agency an asset which can be sold in public auction by the liquidator? A: No, because of the non-transferability of the license to engage in recruitment and placement. The LC (Art. 29) provides that no license to engage in recruitment and placement shall be used directly or indirectly by any person other than the one in whose favor it was issued nor may such license be transferred, conveyed or assigned to any other person or entity. It may be noted that the grant of a license is a governmental act by the DOLE based on personal qualifications, and UNIVERSITY
2. 3.
4.
5, 6, 7.
practices
in
Furnishing or publishing any false notice/information/document related to recruitment/employment Failure to file reports required by SLE Inducing or attempting to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions Recruitment/placement of workers in jobs harmful to public health or morality or to the dignity of the country Engaging directly or indirectly in the management of a travel agency Substituting or altering employment contracts without approval of DOLE Charging or accepting any amount greater than that specified by DOLE OF SANTO
Pacu(taa
TOMAS CiviC
ae Verecno
~.
13
LABOR STANDARDS: PRE-EMPLOYMENT
8.
9.
10.
11.
12.
13.
14.
15.
16.
14
or make a worker pay any amount greater than actually received by him Committing any act of misrepresentation to secure a license or authority Influencing or attempting to influence any person/entity not to employ any worker who has not applied of employment through his agency Obstructing or attempting to obstruct inspection by SLE or by his representatives Withholding or denying travel documents from applicant workers before departure for monetary considerations other than authorized by law Granting a loan to an OPN which will be used for payment of legal and allowable placement fees Refusing to condone or renegotiate a loan incurred by an OPN after his employment contract has been prematurely terminated through no fault of his or her own For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and For a recruitment/manning agency or a foreign principal/ Er to pass on the OPN or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage Imposing a compulsory and exclusive arrangement whereby an OPN is required to: a. Avail a loan only from specifically designated institutions, entities or persons b. To undergo health examinations only from specifically designated medical, entities or persons, except seafarers whose medical examination cost is shouldered by the shipowner c. To undergo training of any kind only from designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners. (Sec. 6, R.A. 10022)
ART. 35. SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY Q: Who is a non-licensee authority?
I non-holder
, of
A: Any person, corporation or entity: 1. Which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor and Employment (SLE) or 2. Whose license or authority has been suspended, revoked or cancelled by the POEA or the SLE
Q: What are the grounds
for revocation
of
license?
A: 1.
2. 3.
4.
Incurring an accumulated 3 counts of suspension by an agency based on final and executory orders within the period of validity of its license Violations of the conditions of license Engaging in acts of misrepresentation for the purpose of securing a license or renewal Engaging in the recruitment or placement of workers to jobs harmful to the public health or morality or to the dignity of the country. (Sec. 3, Rule I, Book VI, Rules and Regulations Governing Overseas Employment)
Q: What are the grounds cancellation of license?
for suspension
or
A: 1. 2. 3.
4. 5.
Prohibited acts under Art. 34 Publishing job announcements w/o POEA's approval Charging a fee which may be in excess of the authorized amount before a worker is employed Deploying workers w/o processing through POEA Recruitment in places outside its authorized area. (Sec. 4, Rule II, Book IV, POEA Rules)
Q: Concerned Filipino contract workers in the Middle East reported to the DFA that XYZ, a private recruitment and placement agency, is covertly transporting extremists to terrorist training camps abroad. Intelligence agencies of the gov't allegedly confirmed the report. Upon being alerted by the DFA, the DOLE issued orders cancelling the licenses of XYZ, and
UST GOLDEN NOTES 2010 imposing an immediate travel ban on its recruits for the Middle East. XYZ appealed to the Office of the President to reverse and set aside the DOLE orders, citing damages from loss of employment of its recruits, and violations of due process including lack of notice and hearing by DOLE. The DOLE in its answer claimed the existence of an emergency in the Middle East which required prompt measures to protect the life and limb of OFWs from a clear and present danger posed by the 0Qgoing war against terrorism. Should the DOLE orders be upheld or set aside?
ART. 38. ILLEGAL RECRUITMENT Q: Who are the persons engaging the business migrant workers?
A:
1.
Unlawful for any official or Ee of the: a. DOLE b. POEA c. Overseas Workers Welfare Administration (OWWA) d. DFA e. Other gov't agencies involved in the implementation of this Act
2.
Their relatives within the 4th civil degree of consanguinity or affinity, to engage, directly or indirectly in the business of recruiting migrant workers. (Sec. 8, R.A. 8042)
A: 1.
The DOLE order cancelling the licenses of XYZ is void because a report that an agency is covertly transporting extremists is not a valid ground for cancellation of a Certificate of Registration (Art. 239, LC and there is failure of due process as no hearing was conducted prior to the cancellation (Art. 238, LC).
2.
" i
The DOLE order imposing the travel ban is valid because it is a valid exercise of police power to protect the national interest (Sec. 3, Art. XIII, Constitution on full protection to labor safety of workers) and on the rule making authority of the SLE. (Art. 5, LC; Phil. Ass'n. of Service Exporters v. Drilon, G.R. No. 81958, June 30, 1988). (2004 Bar Question)
Q: What are recruitment?
A: 1.
2.
Restrict and regulate the recruitment and placement activities of all agencies Issue orders and promulgate rules and regulations
the
elements
of
illegal
A:
CHAPTER 111MISCELLANEOUS PROVISIONS ART. 36. REGULATORY POWERS
Q: What are the regulatory powers of the Secretary of Labor and Employment (SLE)?
prohibited from of recruiting
1.
Offender is a non-li~nsee or nonholder of authority to lawfully engage in the recruitmenUplacement of workers
2.
Offender undertakes: a. Any act of canvassing, enlisting. contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not (Art. 13[bJ) or b. Any of prohibited practices under Art. 34
Q: Larry Domingo was accused of the crime of illegal recruitment. He argued that he issued no receipt or document in which he acknowledged as having received any money for the promised jobs. Hence, he should be free him from liability. Was Larry engaged in recruitment activities? A: Yes. Even if at the time Larry was promising employment no cash was given to him, he is still considered as having been engaged in recruitment activities, since Art.13(b) of the LC states that the act of recruitment may be for profit or not. It suffices that Larry promised or offered employment for a fee to the complaining witnesses to warrant his conviction for illegal recruitment. (People v. Domingo, G.R. No. 181475, April 7, 2009, .J. Carpio- Morales)
UNIVERSITY
OF
Pacu{taa
SANTO
TOM.A~
ae (])ereChO
Ct'ln{
15
,,~ .
LABOR STANDARDS: PRE-EMPLOYMENT Q: What is the difference between the LC and R.A. 8042 or the Overseas Filipinos· and Overseas Migrant Workers Act?
A:
Lc (Art . 38)
R.A. 8042, as amended by 'RA 10022 '. .
Local recruitment
Applies to recruitment for overseas employment Illegal recruitment under Sec. 6 means any recruitment activity committed by nonlicensees/ non-holders of authority or prohibited acts (same as Art. 3~, l.C)
Illegal recruitment under Art 38 means any recruitment activity including prohibited acts under Art. 34 committed by nonlicensees or nonholders of authority.
Q: How does one prove illegal recruitment? A: It must be shown that the accused gave the distinct impression that he had the power or ability to send complainants abroad for work such that the latter were convinced to part their money in order to be deployed. be
A: Yes, any person (whether non-licensee, non-holder of authority, licensee or holder of authority) who commits any of the prohibited acts, shall be liable for l\Iegal recruitment. (R.A. 8042) Q: When is illegal recruitment as economic sabotage? A: When it is committed:
16
By a syndicate - carried out by 3 or more persons conspiring/confederating with one another or
2.
In large scale - committed against 3 or more persons individually or as a group. (Sec. 6, 10022)
Q: While her application for renewal of her license to recruit workers for overseas en1nlovemnt was still Dendina Marvrose -~~~~~ited- AI~a, ~nd he~ 3 si~ters, Ana, Joan, and Mavic, for employment as housemates in Saudi Arabia. Maryrose represented to the sisters that she had a license to recruit w9rkers for overseas employment and demanded and received P30,OOO.OO from each of them for her services. However, her application for the renewal of her license was denied, and consequently failed to employ the 4 sisters in Saudi Arabia. The sisters charged Maryrose with large scale illegal recruitment. Testifying in her defense, she declared that she acted in good faith because she believed that her application for the renewal of her license would be approved. She' adduced in evidence the Affidavits of Desistance which the four private complainants had executed after the prosecution rested its case. In the said affidavits, they acknowledge receipt of the refund by Maryrose of the total amount of P120,OOO.00 and indicated that they were no longer interested to pursue the case against her. Resolve the case with reasons.
G~~d-';
Added to the following in the list of prohibited acts: 1. Failure to actually deploy without valid reason; 2. Failure to reimburse expenses incurred by the worker in connection with his/her documentation and processing for purposes of deployment; 3. To allow a non-Filipino citizen to head or manage a licensed recruitmenV manning agency.
Q: Maya licensee or holder of authority held liable for illegal recruitment?
1.
considered
A: l\Iegal recruitment is defined by law as any recruitment activities undertaken by nonlicenses or non-holders of authority. (People v. Senoron, G.R. No. 119160, Jan. 30,1997) And it is large scale illegal recruitment when the offense is committed against 3 or more persons, individually or as a group. (Art. 38[b), l.C) In view of the above, Maryrose is guilty of large scale illegal recruitment. Her defense of GF and the Affidavit of Desistance as well as the refund given will not save her because R.A. No. 8042 is a special law, and illegal recruitment is malum prohibitum. (People v. Saulo, G.R. No. 125903, Nov. 15, 2000). (2005 Bar Question)
UST GOLDEN NOTES 2010 Q: What is the consequence of conviction of illegal recruitment (IR)?
Life imprisonment fine of P2M-P5M
IR as economic sabotage Provided: 1. If person illegally recruited is bel~~w18 rears of ~em . 2. Illegal recruitment is committed by a nonlicensee/non-holder
lJ
+
Maximum penalty 'hall be imposed
12 yrs and 1 day - 20 yrs imprisonment; or Fine: P1M-P2M
Any person found guilty of illegal recruitment Any person found guilty of the prohibited acts Licensee/holder of authority violates provisions Non-licensee/non-holder of authority violates provisions Corporation, partnership, association, or entity
6 yrs and 1 day - 12 yrs imprisonment; or Fine of P500K - P1M yrs imprisonment; or Fine: P10K - P50K; or both 4-8 yrs imprisonment; or Fine: P20K - P1OOK or both Penalty imposed upon officer/s responsible for violation Penalties prescribed under RA 10022,
Alien
+
Deportation without further proceedings In every case
Automatic revocation of license or authority and all permits and privileges of the recruitment m manning agency, lending institutions, training school or medical clinic
UNIVERSITY
OF
Pacu{taa
SANTO
TOMAS
de (])ereclio Civ-i{
C·
.".-
17
LABOR STANDARDS: PRE-EMPLOYMENT Q: What are the remedies under the Migrant Workers Act and how may they be enforced?
Original and exclusive jurisdiction to hear and decide claims arising out of an Er-Ee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. 1. The liability of the principal! Er and the recruitmenU placement agency for any and all claims shall be joint and several. 2. The performance bond to de filed by the recruitmenU placement agency shall be answerable for all money claims or damages that may be awarded to the workers. 3. If the recruitmenUplacement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the claims and damages.
Original and exclusive jurisdiction to hear and decide: 1. All cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities and 2. Disciplinary action (DA) cases and other special cases which are administrative in character, involving Ers, principals, contracting partners and Filipino migrant workers. a.lt may be filed with the POEA Adjudication Office or the DOLEIPOEA regional office of the place where the complaint applied or was recruited at the option of the complainant. The office with which the complaint was first filed shall take cognizance of the case. b. DA cases and other special cases, as mentioned in the preceding Section, shall be filed with POEA Adjudication Office.
Within 5 yrs from the time illegal recruitment has happened
18
Within 20 yrs from the time illegal recruitment has happened. (Sec. 12,R.A. 8042)
UST GOLDEN NOTES 2010 Q: Can SLE issue warrants of arrest?
search
warrants
or
A: No. Only a judge may issue search and arrest warrants. Art 38 (c) of the Labor Code is unconstitutional inasmuch as it gives the SLE the power to issue search or arrest warrants. The labor authorities must go through the judicial process. Q: Is compromise claims allowed?
agreement
on money
A: Yes. Consistent with the policy encouraging amicable settlement of labor disputes, Sec. 10 of R.A. 8042 allows resolution by compromise of cases filed with the NLRC. Q: When shall compromise money claims be paid?
agreements
on
A: Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages shall be paid within 4 months from the approval of the settlement by the appropriate authority.
Q: Serrano, a seafarer, was hired by Gallant Maritime and Marlow Navigation Co. for 12 months as Chief Officer. On the date of his departure, he was constrained to accept a downgraded employment contract for the position of Second Officer, upon the assurance that he would be made Chief Officer after a month. It was not done; hence, he refused to stay on as Second Officer and was repatriated to the Phi/so He had served only 2 months & 7 days of his contract, leaving an unexpired portion of 9 months & 23 days. Serrano filed with the LA a Complaint against Gallant Maritime and Marlow for constructive dismissal and for payment of his money claims. The LA rendered a favorable decision to Serrano awarding him $8,770.00, representing his salary for 3 months of the unexpired portion of his contract of employment applying R.A. 8042, Sec 10, par 5: Money Claims. • In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of 12% per annum, plus his salaries for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term, whichever is less.
Is the subject
clause constitutional?
A: No. The subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or· local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage. The clause is a violation of the right of Serrano and other OFWs to equal protection and right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose. Furthermore, prior to R.A. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries multiplied by the entire unexpired portion of their employment contracts. The same applies local workers with fixed-term employment. Thus, Serrano is entitled to his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of RA 8042. (Serrano v. Gal/ant Maritime Services & Marlow Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009) Do OT and leave pay form part of the salary basis in the computation of the monetary award? A: No. The word salaries in Sec. 10(5) does not include overtime and leave pay. For seafarers, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of OT, leave pay and other bonuses; whereas OT pay is compensation for all work "performed" in excess of the regular 8 hours, and holiday pay is compensation for any work "performed" on designated rest days and holidays. (Serrano v. Gal/ant Marffime Services & Marlow Navigation Co., Inc., G.R. No. 167614, Mar. 24, 2009)
UNIVERSITY
OF
PacuCtaa
SANTO
TOMAS
ae (])erecfio CiviC
~i."~ 19
LABOR STANDARDS: PRE-EMPLOYMENT , EMPLOYMENT
OF NON-RESIDENT
Q: What is required non-resident aliens?
ALIENS
in the employment
')
3.
Th""
~"r.....,i+
111e; POIIIIIL
ART. 41. PROHIBITION AGAINST TRANSFER OF EMPLOYMENT Q: Who .are required employment permit?
~''''U'
IllaJ
hI"\,
iro~II""\I'~ LI'Ci I.;:)..:;JUGU
+'"
\.\oJ
.
of
A: Any alien seeking admission to the Phil. for employment purposes and any domestic or foreign employer (Er) who desires to engage an alien for employment in the Philippines: 1. Shall obtain an employment permit from the DOLE L...
:
l
obtain
an
A: GR: Only non-resident aliens; XPNS: -1-.-Diplomatic services and foreign gov't offlcials 2. Officers and staff of int'I organizations and theirdeqitimate spouses 3. Members of governing board who has voting rights only 4. Those exempted. by special laws 5. Owners and representatives of foreign principals who interview Filipino applicants for employment abroad 6. Aliens whose purpose is to teach, present and/or conduct research studies 7, Resident aliens. (D.O. 75-06, May 31, 2006)
.." nn.•.·L
CA:IIVII-
resident alien or to the applicant Er after a determination of the nonavailability of a person in the Phil. who is competent, able and willing at the time of application to perform the services for which the alien is desired For an enterprise registered in preferred areas of investments, said permit may be issued upon recommendation of the gov't agency charged with the supervision of said registered enterprise
Q: The DOLE issued an alien employment permit for Earl Cone, a U.S. citizen, as sports consultant and assistant coach for GMC. Later, the Board of Special Inquiry of the Commission on Immigration and Deportation approved Cone's application for a change of admission status from temporary visitor to pre-arranged employee. A month later, GMC requested that it be allowed to employ Cone as fullfledged coach. The Dole Regional Director granted the request. The Basketball Association of the Phils. appealed the issuance of said permit to the SLE who cancelled Cone's employment permit because GMC failed to show that there is no person in the Philippines who is competent and willing to do the services nor that the hiring of Cone would redound to the national interest. Is the act of SLE valid?
to
Q: What is required resident aliens? A: An Alien Certificate.
for
Employment
Q: What is the duration permit?
A:
immigrants
and
Registration
of the employment
GR: Minimum of 1 year XPN: Unless renewal
revoked
and
subject
Q: May aliens be employed in engaged in nationalized activities?
to
entities
A:
GR: No.
A: Yes. GMC's claim that hiring of a foreign coach is an Er's prerogative has no legal basis. Under Art. 40 of the LC, an Er seeking employment of an alien must first obtain an employment permit from the DOLE. GMC's right to choose whom to employ is limited by the statutory requirement of an employment permit. (GMC v. Torres, G.R. No. 9366, April 22, 1991)
20
XPNS: 1. Sec. of Justice specifically authorizes the employment of technical personnel 2. Aliens are elected members of the board of directors or governing body of corporations or associations or 3. Enterprises registered under the Omnibus Investment Code in case of technical, supervisory or advisory positions, but for a limited period.
UST GOLDEN NOTES 2010 conditions as it continues discipline and values.
BOOK TWO
personal
.HUMAN RESOURCES DEVELOPMENT '/PROGRAM TRAINING AND EMPLOYMENT OF·SPECIAL WORKERS
Q: What is manpower?
Q: What (HRO)?
A: It means that portion of the nation's population which has actual or potential capability to contribute directly to the production of goods and services.
is human
resource
development
A: It refers to the process by which the actual and potential labor force is made systematically to acquire greatw kno'J,!!edge, skills, and capabilities for the nation's sustained economic and social growth. Q: What is the rationale
Q: What is entrepreneurship? A: It means training for self-employment assisting individual or small industries.
or
of HRD? TITLE II TRAINING AND EMPLOYMENT - OF SPECIAL WORKERS
A: It will produce skilled workers. With the abundance of skilled workers, labor industry can operate efficiently; hence, economic stability and growth will be sustained.
Q: Who are special
Note: HRD is not intended solely for the purpose of training workers to serve employers; it also means training for self-employment or entrepreneurship.
A:
Q: What is the agency HRD?
Q: What are employment?
tasked
to regulate
A: Technical Education and Skills Development Authority (TESDA). It is the body created under R.A. 7796 to replace and absorb the National Manpower and youth Council, the Bureau of Technical and Vocational Education as well as the apprenticeship program of the DOLE. (R.A.
7796) Q: What are the powers TESDA?
and functions
A:
1. 2. 3.
,
workers?
Apprentices Learners Handicapped workers
1. 2.
.
their
conditions
of
their
Work shall not exceed 8 hours per day OT allowed, but with pay
CHAPTER I APPRENTICES , ART. 58. DEFINITION OF TERMS
of
Q: Who is an apprentice?
A: It is responsible for formulating, continuing coordinating and fully integrating technical education and skills development policies, plans and programs.
A: Any worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under the LC.
Q: What is dual system/training?
Q: What is apprenticeship?
A: It refers to a delivery system of quality technical and vocational education which requires training to be carried out alternately in 2 venues, in school and in the actual production or plant area.
A: It is practical supplemented by instruction,
1.
2.
In school training - the trainee is taught of the theoretical foundation, basic training, guidance, and human foundation In plant training - the trainee is given the opportunity to develop his skills and proficiency in actual work
training on the job reiated theoretical
Q: What is an apprenticeable
occupation?
A: That which requires more than 3 months of practical training with theoretical instruction Q: What is on the job training
UNIVERSITY
OF
PacuCtati
SANTO
TOMAS
tie (])ereclio Ci1JiC
(OJT)?
LABOR STANDARDS:
SPECIAL WORKERS
A: It is practical work experience through actual participation in productive activities given to or acquired by an apprentice.
3.
Q: What are highly technical
4.
industries?
A: Those which are engaged in the application of advanced technology. Q: What instructions?
related
are
theoretical
A:
Technical information based on apprenticeship standards approved by the Bureau.
Note: Prior approvai by TESDA (formerly DOLE) of the proposed apprenticeship program is a condition sine qua non. Otherwise, apprentice becomes a regular Ee. (Nitto Enterprises v. NLRC, G.R. No. 114337, Sep. 29, 1995).
ART. 59. QUALIFICATIONS APPRENTICE Q: What are apprentice?
A:
the
qualifications
Workers are engaged in the manufacture or handling of explosives and other pyrotechnic products Workers use, or are exposed to heavy or power-driven machinery or equipment.
ART. 60. EMPLOYMENT
OF APPRENTICES
Q: Who may empioy appfwiitices?
A:
1. 2.
Only employers in highly technical industries and Only in apprenticeable occupations approved by SLE
Q: What
is
the
employment
status
of
apprentices?
A: They are contractual workers whose length
OF
of
an
of service depends on the term provided for in the apprenticeship agreement. Thus, the employer is not obliged to employ the apprentice after the completion of his training. Q: What Is the period of apprenticeship?
1.
At least 15 yrs of age Note: Those below 18 years of age shall not work in hazardous occupations
2.
3. 4.
5.
Physically tit for the occupation Possess vocational aptitude and capacity Possess: a. The ability to comprehend, and b. Follow oral and written instructions The company must have an apprenticeship program duly approved by the DOLE.
Note: Trade and industry associations may recommend to the SLE appropriate educational requirements for different occupations. Q: When hazardous?
A:
1.
2.
22
is
an
occupation
deemed
Nature of work exposes worker to dangerous environmental elemental contaminants or work conditions Workers are engaged in construction work, logging, firefighting, mining, quarrying, blasting, stevedoring, deep-sea fishing, and mechanized farming
A: Must not exceed 6 months: 1. 2 monthsl400 hours: Trades 2.
or occupations which normally require 1 year or more for proficiency 1 monthl200 hours: Occupations and jobs which require more than 3 months but less than 1 year for proficiency. (Sec. 19, Rule VI, Book II, IRR)
Q: What is the status of an apprentice after such term?
hired
A: He is deemed a regular Ee. He cannot be hired as a apprenticeship period.
probationary is deemed
Ee since the the probationary
Q: What is the wage rate of an apprentice? A: Start at not less than 75% of the statutory minimum wage for the 1s1 6 months (except OJT); thereafter, shall be paid in full minimum wage, including the full COLA. Note:
!iB:
Apprenticeship programs shall be primarily voluntary XPN: Compulsory apprenticeship: 1. National security or economic development so demand, the President may require compulsory training
UST GOLDEN NOTES 2010 2.
r ART.
-
61. CONTENTS OF- APPRENTICESHIP regarding
A: Apprenticeship aqreernentss including wage rates of apprentices, shall: '.
the
Conform to the rules issued by SLE.
2.
The period of apprenticeship exceed 6 months.
3.
Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75% of the applicable min. wage, may be entered into only in accordance with apprenticeship programs duly approved by the SLE.
shall not
The DOLE shall develop standard model programs of apprenticeship. (Sec. 18, Rule VI, Book II, IRR)
ART. 62. SIGNING OF APPRENTICESHIP AGREEMENTS Q: Who agreement?
signs
the
A: Every apprenticeship signed by:
apprenticeship
agreement
shall be
1.
The employer or his agent, or
2.
An authorized representative of any of the recognized organizations, associations or groups, and
3.
The apprentice.
Q: Who minor?
will
sign
if the
apprentice
hired
Q: What are the rules on working
1.
4.
be
without
A: Required: 1. By school 2. By the training program curriculum 3. For Graduation 4. For board examinations
AGREEMENTS
Q: What are the rules apprenticeship agreements?
WITHOUT
-
Q: May apprentices compensation?
-'
.
ART. 72. APPRENTICESHIP COMPENSATION
Services of foreign technicians are utilized by private companies in apprenticeable trades.
is a
scholars?
A: There is no Er-Ee relationship between students on one hand, and schools, where there is written aqreernent between them under which the former agree to work for the latter in exchange for the privilege to study free of charge. The student is not considered an Ee. (Sec. 14, Rule IX, Book III, IRR) Q: Padilla entered into a written agreement with Gomburza College to work for the latter in exchange for the privilege of studying in said institution. His work was confined to keeping clean the lavatory facilities of the school. One school day, he got into a fist fight with a classmate, Monteverde, as a result of which the latter sustained a fractured arm. Victor filed a civil case for damages against him, impleading Gomburza College due to the latter's alleged liability as his Er. Under the circumstances, could Gomburza College be held liable by Victor Monteverde as an Padilla's Er? A: Gomburza College is not liable for the acts of Padilla because there is no Er-Ee relationship between them. As provided in the Rules and Regulations Implementing the LC "there is no Er-Ee relationship between students on one hand, and schools, colleges, or universities on the other, where students work with the latter in exchange for the privilege to study free of charge, provided the students are given real opportunity, including such facilities as may be reasonable and necessary to finish their chosen courses under such arrangement." (1997 Bar Question)
A: An apprenticeship agreement with a minor shall be signed in his behalf by: 1.
His parent or guardian, or if the latter is not available,
2.
An authorized DOLE.
representative
of the
UNIVERSITY
OF
tFacu{taa
SANTO
TOMAS
de CDerecno CiviC
~
~ ,"• 23
1{J'
LABOR STANDARDS: SPECIAL WORKERS 2.
ART. 65. VIOLATION OF APPRENTICESHIP AGREEMENT .
r
3. Q: Who may terminate agreement?
A:
1.
2.
an apprenticeship
Either party may terminate an agreement after the probationary period but only for a valid cause. It may be initiated by either party upon filing a complaint or upon DOLE's own initiative.
~
"-" " " ' . ~ "...: ,,','
A:
1.
3.
of the
4. 5,
A: It may be appealed by any aggrieved person to the SLE within 5 days from receipt of the decision.
:. '.
. ART. 67. EXHAUSTION OF., " ADMINISTRATIVE REMEplES (EAR) . Q: What is EAR?
A: It is a condition precedent to the institution of action. (Sec. 32b, Rule VI, Book II, IRR)
Q: How is the principle case of agreement?
breach
of
of EAR applied in apprenticeship
.
Q: Who are learners?
2.
Note: The decision of the SLE shall be final and executory.
CtfAPIER II '"' "" *"~,". :. ··I.:iEARNERS'" .;.:"i-.~ .-,":::' ·Ff-';"-:I
"
ART. 66. APPEAL Q: Who may appeal the decision authorized agency of the DOLE?
Stating the reason for such decision; and A copy of said notice shall be furnished the Apprenticeship Division concerned.
They are persons hired as trainees in semi-skilled and other industrial occupations Which are non-apprenticeable and Which may be learned through practical training on the job in a relatively short period of time Which shall not exceed 3 months Whether or not such practical training is supplemented by theoretical instructions. (Sec. 1a, Rule VII, Book II,IRR)
Q: Distinguish Apprenticeship.
Learnership
from
A: Training on the job in semi-skilled and other industrial occupation or trades which are nonapprentice able and which may be learned thru practical training on the job in a relatively short period of time.
Training in trades which are apprenticeable, that is, practical training onthejob supplemented by related theoretical instruction for more than 3 months.
Max: 3 months
Min: 3 months Max: 6 months
With commitment to employ the learner as a regular Ee if he desires upon completion of learners hip
No commitment to hire
rn"" irl<>rt,ti a reg if pre-termination occurs after 2 months of training and the dismissal is without fault of the learner.
Worker not considered as regular employee.
A: No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies. Q: Who shall settle differences of apprenticeship agreement?
arising
out
A: The plant apprenticeship
committee shall have the initial responsibility for settling differences arising out of apprenticeship agreement. (Sec. 32b, Rule VI, Book II, IRR)
Q:
What termination
is the procedure of apprenticeship?
for
the
A: The party terminating shall: 1. Serve a written notice on the other at least 5 days before actual termination,
24
Semi-skilled/lndus-trial occupations
UST GOLDEN NOTES 2010 There is a list of learnable trades by TESDA
"'"
'"
Requires learnership agreement
1>'ARL"74'. WHEN LEARNERS Q: When may learners
Requires Apprentices hip Agreement
1, 2, 3.
I.. "
A: They are deemed regular employees. 4, Rule VII, Book II, IRR)
be em!?loyed?
AGREEMENT
Q: Who are handicapped
A: Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include: 1. The names and addresses of the learners; 2. The duration of the learnership period, which shall not exceed 3 months; 3. The wages or salary rates of the learners which shall begin at not less than 75% of the applicable minimum wage; and 4. A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. of a learner?
workers
(HW)?
A: Those whose earning capacity is impaired by: 1.
2. 3. 4. 5. 6. _
Q: What is a learners hip agreement?
Q: What is the qualification
. CHAPTER III HANDICAPPED WORKERS
,
"
When no experienced worker is available It is necessary to prevent curtailment of employment opportunities; and Employment does not create unfair competition in terms of labor costs or impair or lower working standards.
ART. 75. LEARNERSHIP
(Sec.
MAY BE HIRED
v
A:
Q: What is the status of learners who have been allowed or suffered work during the first 2 months, if training is terminated by the Er before the end of the stipulated period through no fault of the learner?
No list
.
Physlcat deficiency Age Injury Disease Mental deficiency Illness
ART. 80. EMPLOYMENT
AGREEMENT
Q: What is the duration of the employment period of handicapped workers? A: There is no minimum or maximum duration. It depends on the agreement but it is necessary that there is a specific duration stated. Q: May handicapped workers apprentices or learners? A: Yes, if effectively operations which they
be hired
as
their handicap is not such as to impede the performance of job in the particular occupations for are hired, (Art. 81)
Q: Can a handicapped status of a regular
workers
acquire
the
Ee?
A: Yes, if work is usually or necessarily or desirable to the business. (Bernardo v. NLRC, G.R No. 122917, July 12, 1999)
A: Must be at least 15 years of age. Note: Those below 18 years of age shall not work in hazardous occupations.
Q: Who may employ learners? A: Only employers in semi-skilled and other industrial occupations which are nonapprenticeable.
Q: Who may employ
handicapped
workers?
A: Employers in all industries. Provided, the handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired
UNIVERSITY
OF
'Facu[taa
SANTO
TOMAS
ae cDerecfio CiviC
LABOR STANDARDS: SPECIAL WORKERS Q: When can employed?
A:
1.
2.
handicapped
workers
be
When their employment is necessary to prevent curtailment of employment opportunities and When it will not create unfair competition in labor costs or lower working standards. (Art. 79)
Q: Does the mere fact that a worker has a disability, make him a handicapped workers?
A: No, because his disability may not impair his efficiency or the quality of his work. If despite his disability he can still efficiently perform his work, he cannot be classified as handicapped; he would be considered a qualified disabled worker entitled to the same treatment as qualified ablebodied workers. Q: Distinguish handicapped from disabled?
A: i
,.
Covers only workers.
Disabled (Differently Ab.led) Refers to all suffering from restriction of different abilities as a result of mental, physical or sensory impairment to perform an activity in the manner or within range considered normal for a human being. Covers all activities or endeavors.
Basis: loss/impairment of earning capacity.
Basis: range of activity which is normal for a human being.
Loss due to injury or physical or mental defect or age.
Restriction due to impairment of mental/physical! sensory defect.
Handicapped
Earning capacity is impaired by age, or physical or mental deficiency or injury.
If hired, entitled to 75% of minimum wage. Subject to definite periods of employment. Employable only when necessary to prevent curtailment of employment opportunity.
26
If qualified, entitled to all terms and conditions as qualified able-bodied person. No restrictions on employment. Must get equal opportunity and no unfair competition.
Academics Committee Chairperson: Abraham D. Genuine II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head: Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batal1a Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diolrno Genesis R. Fulgencio J eanelle C. Lee ] emuel Paolo M. Lobo Andrew W. Montesa Maria Maica A.ngelikaRoman
UST GOLDEN NOTES 2010
l:t.1·';t·1I33:1 CONDITIONS OF EMPLOYMENT
i
-,
;:.:.,
,,,
"'<~....:..
:
CHAPTER I HOURS_OE WORK _..
Q: Who determines
'
_.
working conditions?
A: Generally, they are detwmine,p by the employer, as he is usually free to: regulate, according to his discretion, all aspects of employment. Q: What is the limitation on the employer's power to regulate working conditions? A: It must be done in good faith and not for the purpose of defeating or circumventing the rights of the employees. Such are not always absolute and must be exercised with due regard to the rights of labor. Note: One's employment, profession, trade or calling is a property right and the wrongful interference therewith is an actionable wrong. Q: When employment
does the condition on under the Labor Code apply?
A: Only if an Er-Ee relationship exists. Q: Who are the employees that are covered by the conditions of employment?
A:
GR: It applies establishments. XPN: 1. 2. 3. 4. 5. 6.
to
a\l
Ee's
in
all
Gov't employees Managerial employees Field personnel The employers family members who depend on him for support Domestic helpers and persons in the personal service of another, and Workers who are paid by results as determined under DOLE regulations
Q: ASIA executed a 1-year contract with the Baron Hotel (BARON) for the former to provide the latter with 20 security guards to safeguard the persons and belongings of hotel guests, among others. The security guards filled up Baron application form and submitted the executed forms directly to the Security Department of Baron. The pay slips of the security guards bore BARON's logo and showed that Baron deducted
therefrom the amounts for SSS premiums, medicare contributions and withholding taxes. Assignments of security guards, who should be on duty or on call, promotions, suspensions, dismissals and award citations for meritorious services were all done upon approval by BARON's chief security officer. After the expiration of the contract with ASIA, BARON did not renew the same and instead executed another' contract for security services with another agency. ASIA placed the affected security guards on "floating status" on "no work no pay" basis. Having been displaced from work, the ASIA security guards filed a case against the BARON for illegal dismissal, overtime pay, minimum wage differentials, vacation leave and sick leave benefits, and 13th month pay. BARON denied liability alleging that ASIA is the employer of the security guards and therefore, their complaint for illegal dismissal and payment of money claims should be directed against ASIA. Nevertheless, BARON filed a Third Party Complaint against ASIA. Is there an Er-Ee relationship between the BARON, on one hand, and the ASIA security guards, on the other hand? Explain briefly. A: As a general rule, the security guards of a private security guard agency are the employees of the latter and not of the establishment that has entered into a contract with the private security guard agency for security services. But under the facts in the question, Baron Hotel appear to have hired the security guards, to have paid their wages, to have the power to promote, suspend or dismiss the security guards and the power of control over them, namely, the security guards were under orders of Baron Hotel as regard their employment. Because of the abovementioned circumstances, Baron Hotel is the Er of the security guards. Q: Assuming that ASIA is the Er, is the act of ASIA in placing the security guards on "floating status" lawful? Why? A: It is lawful for a private security guard agency to place its security guard on a "floating status" if it has no assignment to give to said security guards. But if the security guards are placed on a ''floating status" for more than 6 months, the security guards may consider themselves as having been dismissed. (1999 Bar Question)
UNIVERSITY
OF
If'acu{taa
SANTO
TOMAS
de (])erecno CiviC
LABOR STANDARDS: CONDITIONS
OF EMPLOYMENT:
Q:Lacson was one of more than 100 Ees who were terminated from employment due to the closure of LBM Construction Corporation. LBM was a sister company of Lastimoso Construction, Inc. and RL Realty & Dev't Corp. All 3 entities formed what came to be known as the Lastimoso Group of Companies. The 3 corporations were owned and controlled by members of the Lastimoso family; their incorporators and directors all belonged to the Lastimoso family. The 3 corporations were engaged in the same line of business, under one management, and used the same equipment including manpower services. Lacson and his co-Ees filed a complaint with the Labor Arbiter against LBM, RL Realty and Lastimoso Construction to hold them jointly and severally liable for backwages and separation pay. Lastimoso Construction, Inc. RL Realty & Development Corporation interposed a Motion to Dismiss contending that they are juridical entitles with distinct and separate personalities from LBM Construction Corporation and therefore, they cannot be held jointly and severally liable for the money claims of workers who are not their Ees. Rule on the motion to dismiSS. Should it be granted or denied? Why? A: It is very clear that even if LBM Construction company, Lastimoso Construction Company, Inc. and RL Realty & Dev't Corp. all belong to the Lastimoso family and are engaged in the same line of business under one management and used the same equipment including manpower services, these corporations were separate juridical entities. Thus, only the LBM Construction Corp. is the Er of Teofilo Lacson. The other corporation do not have any Er-Ee relations with Lacson. The case in question does not include any fact that would justify piercing the veil of corporate fiction of the other corporations in order to protect the rights of workers. In a case (Concept Builders, Inc. v. NLRC, G.R. No. 108734, May 29, 1996) the SC ruled that it is a fundamental principle of corporation law that a corporation is an entity separate and distinct from its stockholders and from other corporations to which it may be connected. But this separate and distinct personality of a corporation is merely a fiction created by law for convenience and to promote justice. So, when the notion of separate juridical personality is used to defeat public convenience, justify wrong, protect fraud or defend crime, or is used as a device to defeat the labor laws, this separate personality of the corporation maybe disregarded or the veil of
28
corporate Question)
fiction
HOURS OF WORK pierced.
(1999
Bar
Q: What factors determine the existence of an Er-Ee relationship? A: The "four-fold test": 1. Selection and engagement of the employee; 2. Payment of wages; 3. Power of dismissal; and 4. Power of control. (The Labor Code with Comments and AzucenIJ, Vol I, p. 158)
Cases
2007,
Q: What is control test? A: The person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end. Note: However, in certain cases the control test is not sufficientto give a complete picture of the relationship between the parties, owing to the complexityof such a relationship where several positions have been held by the worker. The better approach is to adopt the two-tiered test. (Francisco vs. NLRC, G.R. No. 170087, Aug. 31, 2006)
Q: What is the two-tiered test?
A:
1.
2.
The putative Er's power to control the Ee with respect to the means and methods by which the work is to be accomplished; and The underlying economic realities of the activity or relationship.
Note: This two-tieredtest would provideus with a framework of analysis, which would take into consideration the totality of circumstances surroundingthe true nature of the relationship between the parties. This is especially appropriatein this case where there is no written agreement or terms of reference to base the relationshipon and due to the complexity of the relationship based on the various positions and responsibilities given to the worker over the period of the latter's employment. (Francisco vs. NLRC, GR. No. 170087, Aug. 31, 2006)
Q: What is the proper economic dependence?
standard
for
A: The proper standard is whether the worker is dependent on the alleged employer for his continued employment in that line of business
UST GOLDEN NOTES 2010 Q: What determines the employment relationship?
existence
of an
A:
It is determined by law and not by contract. Whether or not an Er-Ee relationship exists between the parties is a question of fact. In this regard, the findings of the NLRC are accorded not only respect but finality if supported by evidence. Note: Taxi or jeepney drivers under the "boundary" system are Ee's of tl;1.e taxi or jeepney owners/operators; so also the" passenger bus drivers and conductors. (Jardin vs. NLRC and Goodman Taxi, G.R. No. 119268, Feb. 23, 2000) Q: The employment contract stipulates that there is no Er-Ee relationship between the parties. Is that valid? A: No. The existence of an Er-Ee relation is a question of law and being such, it cannot be made the subject of agreement.' (Tabas v. California Manufacturing Co., G.R. No. L80680, Jan. 26, 1989)
Q: Banco de Manila and the Ang Husay Janitorial and Pest Control Agency entered into an Independent Contractor Agreement with the usual stipulations: specifically, the absence of Er-Ee relationship, and the relief from liability clauses. Can the bank, as a client, and the agency, as an independent contractor, stipulate that no Er-Ee relationship exists between the bank and the Ees of the Agency who may be assigned to work in the Bank? Reason. A: Yes, they can stipulate provided the relationship is job contracting. However the stipulation cannot prevail over the facts and the laws. The existence of Er-Ee relationship is determined by facts and law and not by stipulation of the parties. (Insular Life Assurance Co.. Ltd. v. NLRC, G.R. No. 119930, March 12,1998)
Q: Who are government A: They 1. 2. 3.
employees
(Ees)?
are Ees of the: National Government Any of its political subdivisions Including those employed in GOCCs with original charters.
Q: What law governs A: The Civil regulations.
government
Service
Law,
Q: Who are managerial
Ees?
A: Those whose primary duty consists of the management of the establishment in which they are employed or a department or subdivision thereof, and other officers or members of the managerial staff. They must meet all of the ff. conditions, namely: 1. Primary duty: management of the establishment in which they are employed or of a department or subdivision thereof; 2. Customarily or regularly direct the work of 2 or more Ees 3. Has the authority to hire or fire other Ees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any change of status of other Ees are given particular weight. 4. Execute under general supervision work along specialized or technical lines requmnq special training, experience, or knowledge 5. Execute under general supervision special assignment and tasks; and 6. Do not devote more than 20% of their hours worked to activities which are not directly and closely related to performance of the work described. (Art. 82[2]) Q: Why are managerial
Ees not covered?
A: They are employed by reason of their special training, expertise or knowledge and for positions requiring the exercise of discretion and independent judgment. Value of work cannot be measured in terms of hours. Q: Who are field personnel? A: They are: 1. non-agricultural em ployees 2. who regularly perform their duties 3. away from the principal place of business or branch office of the em ployer; and 4. whose actual hours of work in the field cannot be determined with reasonable certainty.
Ees? rules
and
UNIVERSITY
OF
PacuCtaa
SANTO
TOMAS
de
LABOR STANDARDS: CONDITIONS Q: Who are workers
paid by results?
OF EMPLOYMENT: ,
HOURS OF WORK
ART. 83. NORMAL HOURS OF WORK
A: They are: 1. paid based on the work completed; and 2. not on the time spent in working 3. including those who are paid on piece-work, 'takay", "pakiaw", or task basis if their output rates are in accordance with the standards prescribed.
Note: Only the maximum is prescribed, not the minimum. Part-time work is therefore not prohibited.
Q: Who are domestic helpers and persons in the personal service of another?
Q: Can the normal. hours shortened or cornpressed?
A: Those who: 1. perform services in the employers (Er) home which are usually necessary or desirable for the maintenance or enjoyment thereof; or . 2. minister to the personal comfort, convenience or safety of the Er as well as the members of his Ers household.
A: Yes.
Q: A house personnel was hired by a ranking company official to maintain a staff house provided for the official. The personnel is being paid by the company itself. Is the house personnel a domestic servant of the company official? A: No, the personnel is not a domestic helper but a regular employee of the company. Q: What are the 3 groups (Ees) under the LC?
A:
1.
2.
3.
30
of employees
Managerial Ee - One who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline Ees. Supervisory Ee - those who in the interest of the Er, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. Rank-and-File Ee • all Ees not falling within any of the above definitions. (Art. 212{mJ)
Q: What is the normal Ee?
hours of work of an
A: It should not exceed 8 hours in a general working day.
Q: What is a compressed
of
work
be
workweek?
A: The normal workweek is reduced to less than 6 days but the total number of work-hours of 48 hours per week shall remain. The normal workday is increased to more than 8 hours but not to exceed 12 hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the normal workweek of the company. (Department Advisory Order No.2, Series of 2009) Q: When compressed
is the implementation work week valid?
of
a
A: The validity of the reduction of working hours can be upheld when the arrangement is temporary, it is a more humane solution instead of a retrenchment of personnel, there is notice and consultations with the workers and supervisors, a consensus is reached on how to deal with deteriorating economic conditions and it is sufficiently proven that the company was suffering from losses. Under the Bureau of Working Conditions' bulletin, a reduction of the number of regular working days is valid where, the arrangement is resorted to by the employer to prevent serious losses due to causes beyond his control, such as when there is a substantial slump in the demand for his goods or services or when there is lack of raw materials. There is one main consideration in determining the validity of reduction of working hours - that the company was suffering from losses. A year of financial losses would not justify a reduced workweek. (Linton Commercial v. Hel/era, G.R. No. 163147, October 10,2007)
UST GOLDEN NOTES 2010 Q: Under what conditions may a "compressed work week" schedule be legally authorized as an exception to the "S-hour a day" requirement under the LC?
A: 1. 2.
3.
4.
5. 6.
The Ee voluntarily agrees to it There is no diminution in their weekly or monthly take home payor fringe benefits The benefits are more than or at least commensurate or equal to what is due the Ees without the compressed work week OT 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. No strenuous physical exertion or that they are given adequate rest periods. It must be for a temporary duration as determined by the DOLE. (2005 Bar Question)
Q: What are the requisites compressed workweek?
lor
adoption
2. 3.
The Er shall notify the DOLR through the Regional Office which has jurisdiction over the workplace, of the adoption of compressed workweek. The notice shall be in Report Form attached to the advisory. The Regional Office shall conduct an ocular visit to validate whether the adoption of the flexible work arrangements is in accordance with this issuance. (Department Advisory Order No.2, Series of 2009)
Q: Is an employer (Er) obliged to pay an employee (Ee), who rendered less than 8 hours of work, the wages due for S hourswork?
A: GR: No, following the principle of "a fair day's wage for a fair day's labor" XPN: If by voluntary practice or policy, the Er, for a considerable period of time, has been paying his Ees wages due for 8 hours although their work shift is less than 8 hours.
days?
A: It should not be more than 5 days in a workweek. It may begin at any hour and on any day, including Saturday or Sunday, designated by the employer. Q: Who are health personnel?
A:
Includes resident physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. Q: What are the hours personnel?
of work
of health
A: GR: 8 hours/5 days (40-hour work week), exclusive of time for meals. XPN: Where the exigencies of the service require that such personnel work for 6 days or 48 hours, they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the day.
of
A: 1.
Q: What are regular working
s"
Note: 40-hour work week does not apply if there is a training agreement between the resident physician and the hospital and the training program is duly accredited or approved by appropriate government agency. Q: Who week?
are covered
by the 40-hour
work
A: 1.
2.
Health personnel in cities and municipalities with a population of at least 1 million; or Hospitals and clinics with a bed capacity of at least 100
Note: Art. 83(2) do not require hospital to pay the Ees a full weekly salary with paid 2 days off. (San Juan de Dios Ees Assoc.-AFW et al. VS. NLRC, G.R. No. 126383, Nov. 28, 1997) Q: Distinguish day?
work day from calendar
A: WORK DAY . It refers to 24 hr. period commencing from the time an Ee regularly starts to work regardless of whether the work is continuous or broken.
UNIVERSITY
OF
Pacu{taa
SANTO
CALENDAR DAY It refers to the 24 hr. period commencing at 12 midnight and ending at 11:59 pm
TOMAS
de Verecno
Civi(
LABOR STANDARDS: CONDITIONS ,
ART. 84. HOURS WORKED Q: What are considered
2.
HOURS WORKED
Q: When is an Ee considered on call?
working
while
hours worked?
A: 1.
OF EMPLOYMENT:
All time during which an Ee is required to be: a. On duty, or b. At the Ers premises, or c. At a prescribed workplace All time during which an Ee is suffered or permitted to work. (Sec. 3, Rule I, Book III, IRR)
A: When Ee is required to remain on call in the Ers premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose. Q: When is working time?
waiting
time
considered
A: 1.
If waiting
is an integral
part of his
work or » Q: What are the principles hours worked?
in determining
A: 1.
2.
3.
4.
32
All hours which the Ee is required to give to his Er regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. Rest period is excluded from hours worked, even if Ee does not leave his workplace, it being enough that: a. He stops working b. May rest completely and c. May leave his workplace, to go elsewhere, whether within or outside the premises of the workplace All time spent for work is considered hours worked if: a. The work performed was necessary b. If it benefited the Er c. Or the Ee could not abandon his work at the end of his normal working hours because he had no replacement d. Provided, the work was with the knowledge of his Er or immediate supervisor The time during which an Ee is inactive by reasons of interruptions in his work beyond his control shall be considered working time: a. If the imminence of the resumption of the work requires the Ees presence at the place of work or b. If the interval is too brief to be utilized effectively and gainfully in the Ees own interest. (Sec. 4, Rule I, Book III, IRR)
2.
The Ee is required or engaged by the Er to wait (engaged to wait)
Note: The controlling factor is whether waiting time spent in idleness is so spent predominantly for the Er's benefit or for the Ee. Q: When is waiting working time?
time
not
considered
A: When the Ee is waiting to be engaged: idle time is not working time; it is not compensable. Q: Lito and Bong were employed as truck drivers of Line Movers, Inc. Usually, Lito is required by the personnel manager to just stay at the head office after office hours because he could be called to drive the trucks. While at the head office, Lito merely waits in the manager's reception room. On the other hand, Bong is allowed to go home after office hours but could be contacted whenever his service as driver becomes necessary. Would the hours that Lito and Bong are on call be considered compensable working hours? A: The hours of Lito and Bong while on call can be considered compensable hours. The applicable rule is: "An Ee who is required to remain on call in the Er's premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on can. An Ee who is not required to leave word at his home or with company officials where be may be reached is not working while on cal!." Here, Bong is required to stay at the office after office hours so he could be called to drive the trucks of the Company. As for Bong, he is required to keep his cellular phone so that he could be contacted whenever his services as driver as needed. Thus, the waiting time of Lito and Bong should be considered are compensable hours. (1997 Bar Question) Note: It could be argued that in the case of Bong who is not required to stay in the office but is
UST GOLDEN NOTES 2010 allowed to go home, if he is not actually asked by cellular phone to report to the office to drive a car, he can use his time effectively and gainfully to his own purpose, thus, the time that he is at home may mean that there are not compensable hours. Q: When is travel time?
A:
1.
time considered
working
Travel from home to work
GR: Normal travel frofh horne to work is not working time. XPNS: ;-Emergency call outside his regular working hours where he is required to travel to his regular place of business or some other work site. b. Done through a conveyance provided by the employer (Er). c. Done under the supervision and control of the Er. d. Done under vexing and dangerous circumstance.
2.
Q: What are the conditions in order for lectures, meetings and training programs to be not considered as working time? A: All of the ft. conditions must be present: 1. Attendance is outside of the employers regular working hours 2. Attendance is in fact voluntary and 3. The employee does not perform any productive work during such attendance. Q: Are regular full-time teachers entitled to salary and COLA during semestral breaks? A: Yes. It is a form of interruption beyond their control. (University of Pangasinan Faculty Union vs. University of Pangasinan, G.R No. L-63122, Feb. 20, 1984) Q: What are interruptions?
A:
Travel that is all in a day's work time spent in travel as part of the employees (Ees) principal activity
1.
2.
e.g. travel from job site to job site during the work day, must be counted as working hours.
3.
Travel away from home
GR:
a Travel
3.
b.
4.
that requires. an overnight stay on the part of the Ee when it cuts across the Ees workday is clearly working time. The time is not only hours worked on regular workdays but also during corresponding working hours on non-working days. Outside of these regular working hours, travel away from home is not considered working time.
the
guidelines
on
power
Brownouts of short duration but not exceeding 20 minutes shall be treated as worked or compensable hours whether used productively by the employees (Ees) or not. Brownouts running for more than 20 minutes may not be treated as hours worked provided any of the following conditions are present: a. The Ees can leave their workplace or go elsewhere within or without the work premises; or b. The Ees can use the time effectively for their own interest. In each case, the Er may extend the working hours of his Ees outside the regular schedules to compensate for the loss of productive man-hours without being liable for OT pay. lndustrial enterprises with one or two work shifts may adopt any of the work shift prescribed for enterprises with 3 work shifts to prevent serious loss or damage to materials, machineries, or equipment that may result case of power interruptions. (Policy Instruction No. 36)
XPN: During meal period or when Ee is permitted to sleep in adequate facilities fumished by the Er.
UNIVERSITY
OF
PacuCtad
SANTO
TOMAS
de
JO...IJJ..
33
LABOR STANDARDS: CONDITIONS ART. 85. MEAL P-ERIODS Q: What is the duration
of the meal period?
Q: Is the meal period compensable? A: Being time-off, it is not Employee must be completely duty. meal
compensable. relieved from
period
considered
A: It is compensable where the lunch period or mealtime: 1. Is predominantly spent for the employers benefit or 2. Where it is less than 20 minutes. Note: Where during meal period, the taborers are required to stand by for emergency work, or where the meal hour is not one of complete rest, such is considered OT. (Pan Am vs. Pan Am Ees Association, G.R. No. L-16275, Feb. 23, 1961) Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as compensable working time. (Sec. 7, Rule f, Book III, IRR) Q: Are meal periods work compensable?
provided
during
OT
A: Yes, since the 1 hour meal period (noncompensable) is not given during OT work because the latter is usually for a short period and to deduct from the same would reduce to nothing the Ees OT work. Thus, the 1 hour break for meals during OT should be treated as compensable. Q: What are the instances where meal periods shortened to not less than 20 minutes is compensable or not compensable?
A:
1.
34
Compensable - At the instance of Employer, when: a. Work is non-manual in nature or does not involve strenuous physical exertion; b. Establishment regularly operates less than 16 hours a day; c. Work is necessary to prevent serious loss of perishable goods. d. Actual or impending emergency or there is urgent work to be performed on machineries and equipment to avoid serious loss
MEAL PERIODS
which the Er would otherwise suffer. (Sec. 7, Rule I, Book III, IRR)
'
A: Every Er shall give his Ees not less than 60 minutes or 1 hour time-off for regular meals.
Q: When is the compensable?
OF EMPLOYMENT:
2.
Not Compensable - Ee requested for the shorter meal time so that he can leave work earlier than the previously established schedule. Requisites: a. Ees voluntarily agree in writing and are willing to waive OT pay for the shortened meal period; b. No diminution in the salary and other fringe benefits of the Ees which are existing before the effectivity of the shortened meal period; c. Work of the Ees does not involve strenuous physical exertion and they are provided with adequate coffee breaks in the morning and afternoon; d. Value of the benefits derived by the Ees from the proposed work arrangements is equal to or commensurate with the compensation due them for the shortened meal period as well as the OT pay for 30 minutes as determined by the Ees concerned; e. OT pay will become due and demandable after the new time schedule f. Arrangement is of temporary duration.
UST GOLDEN NOTES 2010 . ~-~ART. Jl!)", flI_IGHTSH~Ft
DIFFERENTIAL
Q: What is night shift differential
'.
(NSD)?
A: It is additional compensation of not less than 10% of an Ees regular wage for every hour worked between 10:00 pm to 6:00 am, whether or not such period is part of the worker's regular shift. Q: Who are entitled
A: Yes. Under Art 86 of the Labor Code, NSD shall be paid to every Ee for work performed between 10:00 o'clock in the evening to six o'clock in the morning. Therefore, Goma is entitled to nightshift differential for work performed from 10:00 pm until 6:00 am of the day following, but not from 6:00 am to 7:00 am of the same day. (2002 Bar Question)
to NSD? ~l
,
A: GR: NSD applies to all employeesIfies).
XPN:
1. 2. 3. 4. 5.
6.
Ees of the Gov't and any of its including political subdivisions, GOGG's. Retail and service establishments regularly employing not more than 5 workers. Includes task and contract basis Domestic helpers and persons in the personal service of another. Field personnel and Ees whose time and performance is unsupervised by the employer Managerial Ees
Q: Mayan NSD?
A:
employee
waive
the
right
to
GR: No, such waiver is against public policy. (Mercury Drug Co., Inc. vs. Dayao, et al., G.R. No. L-30452, Sep. 30, 1982) XPN: Higher/better benefits
Q: Distinguish
NSD from overtime
pay.
•..."...,. .'~ i:~.·~
.•
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie I\. Laurentino Via-Cbar for Arbnin & Finance: Aissa Celine H. Luna Vice-Chair jar Layout & Design: Loise Rae G. Naval
Labor Law Committee
A: NSD' Payment for work done during the night (10pm-6am) 10 % of basic wage
Subject Head' Lester Jay Alan E. Flores II .Assistant Subject Head' Domingo B. Diviva V
- OVERTIME PAY Payment for the excess of the regular 8-hr work
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L Dacayo-Garcia Christian Nino i\. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica i\ngehka Roman
25% or 30% of basic wage
Note: When the Ee's shift falls at nighttime, the receipt for OT pay shall not preclude the right to receive NSD. Q: As a tireman in a gasoline station, open 24 hours a day with only 5 employees, Goma worked from 10:00 P.M. until 7:00 A.M. of the following day. He claims he is entitled to NSD. Is he correct? Explain briefly. UNIVERSITY
•• "~
OF
PacuCtati
.... ~
SANTO
•.••.•••••••.•
TOM.A~
tie (/)ereclio CunC
7
~;! 35 '9
LABOR STANDARDS: CONDITIONS .
ART. 87. OVERTIME WORK Q: What is overtime
work (OT)?
A: Work performed beyond 8 hours within the worker's 24 hour workday. Note: Express instruction from the employer (Er) to the employee (Ee) to render OT work is not required for the Ee to be entitled to OT pay; it is sufficient that the Ee is permitted or suffered to work. However, written authority after office hours during rest days and holidays are required for entitlement to compensation. Q: What is a work day? A: The 24-hour period which commences from the time the employee regularly starts to work e.g. If the worker starts to work 8 am today, the workday is from 8 am today up to 8am tomorrow. Note: Minimum normal working hours fixed by law need not be continuous to constitute the legal working day.
Q: Distinguish
A:
~.
OT PAY'
Additional compensation for work performed beyond 8 hours on ordinary days (within the worker's 24hour workday)
OT from premium
pay.
. PREMIUM PAY . Additional compensation for work performed within 8 hours on days when normally he should not be working (on non-working days, such as rest days and special days.) But additional compensation for work rendered in excess of 8 hours during these days is also considered OT pay.
Q: What are the OT pay rates?
Rate of the first 8 hours worked on plus at least30% of the regular wage (RW): if done on a special holiday OR rest day: 30% of 130% of RW If done on a special holiday AND rest day: 30% of 150% of RW if done on a regular holiday: 30% of 200% of RW
36
OF EMPLOYMENT: Q: What is the rationale
OVERTIME behind OT pay?
A: Employee is made to work longer than what is commensurate with his agreed compensation for the statutory fixed or voluntarily agreed hours of labor he is supposed to do. (PNB VS. PEMA and CIR, G.R. No. L-30279, July 30, 1982) Discourages the employer (Er) from requiring such work thus protecting the health and wellbeing of the worker, and also tend to remedy unemployment by encouraging Ers to employ others workers c. to do what cannot be accomplished during the normal hours of work. Q: Can the right to OT pay be waived? A:
. GR: The right to OT pay cannot be waived as it is governed by law and not merely by the agreement of the parties. XPN: 1. If the waiver is done in exchange for certain valuable .benefits and privileges, which may' even exceed the OT Pay, waiver may be permitted. 2. Compressed work week
Q: What is the basis of computing pay and additional remuneration?
the OT
A: Regular wage-includes the cash wage only, without deduction on account of facilities provided by the employer. (Art. 90)
Q: In lieu of OT pay, the employee
was given permission to go on leave on some other day, is that valid? A: No. Permission given to the employee (Ee) to go on leave on some other day of the week shall NOT exempt the employer from paying the additional compensation required because it would prejudice the Ee, for he will be deprived of the additional pay for the OT work he has rendered and which is utilized to offset the undertime he may have incurred. Undertime could be charged against the Ees accrued leave.
UST GOLDEN NOTES 2010 Q: Socorro is a clerk-typist in the Hospicio de San Jose, a charitable institution dependent for its existence on contributions and donations from well wishers. She renders work 11 hours a day but has not been given O'T pay since her place of work is a charitable institution. Is Socorro entitled to O'T pay? Explain briefly.
rates of pay on the thesis that they were not required to complete, and they did not in fact complete, the B-hour work period daily from Monday through Friday. Given the circumstances, the Er contended that the Ees were not entitled to OT compensation, i.e., with premium rates of pay. Decide the controversy.
A: Yes. Socorro is entitled to OT compensation. She does not fal! under any of the exceptions to the covera9;.~ of ~rt. 82, under the provisions of hours of work. The Labor Code is equally applicable to non-profit institutions. A covered Ee who works beyond 8 hours is entitled to OT compensation. (2002 Bar Question)
A: The Er is correct. While Art. 88 of the LC clearly provides that undertime work on any other particular day shall not be offset by overtime work on any other day, this rule is inapplicable in this case pertaining to Saturday work which in reality does not constitute OT work as Saturday is still a working day under the law and there is no CBA stipulation against it. (2003 Bar Question)
Q: Flores applied for the position of driver in the motor-pool of Gold Company, a multinational corporation. Danilo was informed that he would frequently be working aT as he would have to drive for the company's executives even beyond the ordinary 8-hour work day. He was provided with a contract of employment wherein he would be paid a monthly rate- equivalent to 35 times his daily wage, regular sick and vacation leaves, 5 day-leave with pay every month and time off with pay when the company's executives using the cars do not need Danilo's service for more than eight hours a day, in lieu of OT. Are the above provisions of the contract of employment in conformity with, or violative of, the law?
ART.'89. EMERG-EN€Y OVERTIME WORK Q: Mayan employee render O'I work?
A:
Q: Can undertime
or
(UT) offset OT?
A: No, UT work on any particular day shall not be offset by OT work on any other day. Q: A case against an employer (Er) company was filed charging it with having violated the prohibition against offsetting UT for aT work on another day. The complainants were able to show that, pursuant to the CBA, employees (Ees) of the union had been required to work "O'I" on Saturday but were paid only at regular
compelled
to
GR: No. OT work is voluntary. XPN: Compulsory OT work in any of the following situations: 1. Urgent work to be performed on machines and installations in order to avoid serious loss or damage to the Er or some other cause of similar nature. 2. Work is necessary to prevent loss or damage to perishable goods. 3. In case of imminent danger to the public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity. 4. Country is at war, 5. Completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business operations of the Er 6. Any other national or local emergency has been declared 7. Necessary to prevent loss of life or property.
A: Except for the provision that Oanilo shall have time off with pay when the company's executives using the cars do not need Oanilo's service for more than 8 hours a day, in lieu of OT, the provisions of the contract of employment of Oanilo are not violative of any labor law because they instead improve upon the present provisions of pertinent labor laws.
ART: 88. UNDERTIME N,OTOFFSET BY
be
Note: There should be payment of additional compensation. Ees refusal to obey the order of the Er constitutes insubordination for which he may be subjected to disciplinary action.
UNIVERSITY
OF
Pacu(taa
SANTO
TOMAS
ae
LABOR STANDARDS: CONDITIONS
OF EMPLOYMENT:
OVERTIME
Q: The employment contract requires work for more than 8 hours a day with a fixed· wage inclusive of OT pay. Is that valid? A: It depends. 1. When the contract of employment requires work for more than 8 hours at specific wages per day, without providing for a fixed hourly rate or that the daily wages include OT pay, said wages cannot be considered as including OT compensation. (Manila Terminal Go. vs. GIR, et al., 91 Phil.,
2.
625) However, the employment contract may provide for a "built-in" OT pay. Because of this, non-payment of OT pay by the employer is valid. (Eng'g Equipment vs. Minister of Labor, G.R. No. L-64967, Sep. 23, 1985)
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Lqout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee ] emuel Paolo M. Lobo Andrew W. Montesa Maria Maica AngeJika Roman
38
UST GOL1)EN NOTES 2010 CHAPTER II WEEKLY REST PERIODS - ART~-9C RIGI:rt-foWEEKLY REST Q: What (WRD)?
is the
right
to weekly
ART. 92. EMPLOYER MAY REQUIRE WORK ON A REST DAY -
rest
day
Q: Can an Ee be compelled rest day?
A:
A: Every employer shall give his employees a rest period of not less than 24 consecutive hours after every 6 consecutive normal work days. (Sec. 3, Rule III, Book III, IRR)
A: It shall apply to all employers whether operating for profit or not, including public utilities operated by private persons. (Sec. 1, Rule III, Book III, IRR) the WRD?
A: GR: Er shall determine WRD of his Ee.
and schedule the
XPNs: 1. CSA 2. Rules and regulations as the SLE provides 3. Preference of employee (Ee) based on religious grounds - Ee shall make known his preference in writing at least 7 DAYS before the desired effectivity of the initial rest day so preferred. (Sec. 4(1), Rule III, Book III, IRR) XPN to XPN no. 3: employer (Er) may schedule the WRD of his choice for at least 2 days in a month if preference will inevitably result in: a. serious prejudice to the operations of the undertaking and b. the Er cannot normally be expected to resort to other remedial measures. (Sec. 4(2), Rule III, Book III, IRR)
GR: No.
Q. What is the rule when an Ee volunteers to work on his rest day under other Circumstances? A: He shall express it in writing subject to additional compensation. (Sec. 6[2J, Rule III, Book III, IRR)
ART. 93. COMPENSATION FOR REST DAY, SUNDAY or HOLIDAY WORK (SPECIA[ HOLIDAY) Q: What is premium
Q: When should employees (Ees) informed of their schedule of WRD?
to work on his'
XPN: 1. Urgent work to be performed on the machinery, equipment or installation, to avoid serious loss which the Er would otherwise suffer; 2. Nature of work requires continuous operations for 7 days in a week or more and stoppage of the work may result in irreparable injury or loss to the Er; 3. Abnormal pressure of work due to special circumstances, where the Er cannot be ordinarily expected to resort to other measures; 4. Actual or impending emergencies (serious accident, fire, flood, typhoon, earthquake, etc.) 5. Prevent loss or damage to perishable goods; 6. Analogous or similar circumstances as determined by the SLE; 7. Work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.
Q: What is the scope of WRD?
Q: Who determines
--
-
D~-
pay?
be
A: Er shall make known rest period by means of: 1. Written notice 2. Posted conspicuously in the workplace 3. At least 1 week before it becomes effective. (Sec. 5, Rule III, Book III. IRR)
A: It is the additional compensation for work rendered by the employee on days when normally he should not be working such as special holidays and weekly rest days. Q: Can the Er and Ee agree on the rate of premium pay other than that provided by law? A: Yes. Nothing shall prevent the Er and his Ee or their representatives from entering into any agreement with terms m9re favorable to
UNIVERSiTY
OF
PacuCtaa
SANTO
TOMAS
ae CDerecno
CiviC
~i. 39
.
,(;1'
•
LABOR STANDARDS: CONDITIONS the Ees Provided: It shall not be used to diminish any benefit granted to the Ees under existing laws, agreements and voluntary Er practices. (Sec. 9, Rule III, Book III, IRR) Q: What are the rates of compensation rest day, Sunday or holiday work?
A: INSTANCES Work on a scheduled rest day
Work has no regular workdays and rest days (If performed on Sundays and Holidays) Work on a Sunday (If Ee's scheduled rest day)
for
RATES OF ADDITIONAL COMPENSATION + 30% Premium Pay (PP) of 100% regular' wage (RW). (Sec. 7, Rule III, Book III, IRR) + 30% PP of 100% RW . . (Sec. 7, Rule III, Book III,IRR + 30% PP of 100% RW. (Sec. 7, Rule III, Book III,IRR)
OF EMPLOYMENT:
REST DAY
work on Sundays and holidays, which Jose signed. Is such a waiver binding on Jose? Explain. A: As long as the annual compensation is an amount that is not less than what Jose should receive for all the days that he works, plus the extra compensation that he should receive for work on his weekly rest WRD and for night differential pay for late night work, considering the laws and wage orders providing for minimum wages, and the pertinent provisions of the LC, then the waiver that Jose signed is binding on him, for he is not really waiving any right under Labor Law. It is not contrary to law, morals, good customs, public order or public policy for an Er and Ee to enter into a contract where the Ees compensation that is agreed upon already includes all the amounts he is to receive for OT work and for work on weekly rest days and holidays and for night differential pay for late night work. (1996 Bar Question)
1st 8 hrs; + 30% PP of 100% RW Work performed on any Special Holiday
Work performed on a Special Holiday and same day is the scheduled rest day
Work performed on a Special Working Holiday
Excess of 8 hrs: + 30% of hourly rate on said date. (M.C. No. 10, Series of 2004) 1st 8 hrs: + 50% PP of 100% regular wage Excess of 8 hrs: + 30% of hourly rate on said date. (M.C. No. 10, Series of 2004) Ee is only entitled to his basic rate. No PP is required. Reason: Work performed is considered work on ordinary working days. (Sec. 7, Rule III, Book III, IRR)
Note: Holiday work provided under Art.93 pertains to special holidays or special days. Q: Jose applied with Mercure Drug Company for the position of Sales Clerk. Mercure Drug Company maintains a chain of drug stores that are open everyday till late at night. Jose was informed that he had to work on Sundays and holidays at night as part of the regular course of employment. He was presented with a contract of employment setting forth his compensation on an annual basis with an express waiver of extra compensation for
40
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie "-\.Laurentino Vice-Chair for Admin & Finance: Aissa Cehne H. Luna Vice-Chair for Layou: & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencic ] eanelle C. Lee ] emuel Paolo M. Lobe Andrew W. Montesa Maria Maica Angelika Romaz
UST GOLDEN NOTES 2010 . ".~ ~-CHAPTERIJI' --"~-,,_ ~HOUOAYS, S ENTIVE LEAVES AND ';". S .ARGES
Q: What is holiday
~ BEGUt:~HOt:IDAYS. New Year's Day Maundy Thursday Good Friday Eid'IFitr 8raw ng Kagitingan
pay (HP)?
,babor Day A: It is a premium given to employees (Ees) pursuant to law even if he has' not been suffered to work on a regular holiday. It is limited to the 11 regular, also called legal, holidays listed by law. The employee (Ee) should not have been absent without pay on the working day preceeding the regular holiday.
1
independence Day National Heroes Day ~onifacio Day Christmas Day Bizal Day
Q: What are the classes (SO)?
of special
days
2.
Monday nearest June 12 Last Monday of August (Aug. 30) Monday nearest Nov. 30 (Nov. 29) December 25 Monday nearest Dec. 30 (Dec.27)
Note: RA 9492 provides that Holidays, except those which are religious in nature, are moved to the nearest Monday unless otherwise modified by law, order or proclamation. (Proc. No. 1841)
A: 1.
0
DATE January 1 April 1 April 2 Movable Date Monday nearest April 9 Monday nearest May
National Special Public Holiday GR: Non working days XPN: Otherwise declared by the President
If the holiday falls on a Wednesday, the holiday will be observed on the Monday of the week. If the holiday falls on a Sunday, it will be observed on the Monday that follows. (R.A 9492)
Local Special Public Holiday Regular working day. (LOt 814 as amended by L011087)
Q: What are Muslim
NATIONAL SPECIAL DAYS· All Saints Day Last Day of the Year
I
Ninoy Aquino Day
DATE
Q: When shall Eid" Fitr andlor be declared a national holiday?
2007)
Q: What are regular
February 22 (Monday nearest 25)
e.g. Manila day (in Manila only) holidays
Eid'/ Adha
A: The proclamation declaring a national holiday for the observance of Eid'l Fitr and/or Eid'l Adha shall be issued: 1. After the approximate date of the Islamic holiday has been determined in accordance with the: a. Islamic Calendar (Hijra) or b. Lunar Calendar or c. Upon astronomical calculations d. Whichever is possible or convenient.
December 24
~'11f!''''1;,j:{1t'!' •••
Those declared by: 1. Law or 2. Ordinance
(MH)?
A: The MHs, except Eid'/ Fitr, are observed in specified Muslim areas. All private corporations, offices, agencies and entities or establishments operating within the designated Muslim provinces and cities are required to observe MH.
November 1 December 31 Monday Nearest August 21(RA 9462, July 25,
Other days declared by law 1. Special Non-working days 2. Special Public Holidays 3. Special National Holiday 4. Special Holiday ( for all schools) a. Edsa Revolution Anniversary
Holidays
2. \
The Office of Muslim Affairs shall inform the Office of the President on which day the holiday shall fall. (Sec.2, Proc. No. 1841)
(RH)?
A: They are compensable whether worked or nworked subject to certain conditions. They are also called legal holidays. The following a-e considered regular holidays. (R.A 9492) UNIVERS!TV
OF SANTO
Pacu{tad
TOMAS
de (])erecho CiviC
.•.A ••••••
~
41
LABOR STANDARDS: CONDITIONS Q: Can a Christian within the Muslim work during MH?
employee (Ee) working area be compelled to
A: No. Christians working within the Muslim areas may not report for work during MH. Not only Muslim but also Christian Ee in the designated provinces and cities are entitled to HP on the MH. (SMC v. CA, G.R. 146775, Jan. 30,2002) Q: Can a Muslim Ee working outside the Muslim area be compelled to work during the observance of the MH?
A:
GR: No. Muslim Ees shall be excused from work during MH without diminution of salary or wages. XPN: Those who are permitted or suffered to work on MH are entitled to at least 100% basic pay + 100% as premium of their basic pay. (SMC v. CA, G.R. No. 146775, Jan. 30, 2002)
Note: RH falling within temporary or periodic shutdown and temporary cessation of work are compensable. However, if the temporary or periodic shutdown and cessation of work is due to business reverses, the employer may not pay the RHs during such period.
Q: Distinguish
OF EMPLOYMENT: Q: Who are entitled
A:
to HP?
GR: All employees (Ees) are (Sec. 1, Rule IV, Book III, IRR)
entitled.
XPNS: 1. Gov't Ees and any of its political subdivisions, including GOCCs (with original charter) 2. Retail and service establishments regularly employing less than 10 workers 3. Domestic helpers and persons in the personal service of another 4. Ee engaged on task or contract basis or purely commission basis 5. Members of the Family of the Er who are dependent on him for support 6. Managerial Ee and other member of the managerial staff 7. Field personnel and other Ee whose time and performance are unsupervised by the Er 8. Ee paid Fixed amount for performing work irrespective of the time consumed in the performance thereof. (Sec. 1, Rule IV, Book III, IRR)
Q: What are retail establishments? A: They are engaged in the sale of goods to end users for personal or household use. (e.g. Grocery)
RH from SO.
Q: What are service Regular pay (subject to certain conditions for daily paid
HOLIDAY PAY
No Pay
Ee'
A: They are engaged in the sale of services to individuals for their own or household use. (e.g. TV repair shop) Q: Is an exercise service?
2x regular pay (200%)
establishments?
of profession
retail
or
A: It is neither retail nor service. Not exclusive
Q: Mayan
Er require an Ee to work on RH?
A: Yes. But Ee shall be compensated regular rate.
42
twice his
UST GOLDEN NOTES 2010 Q: What are the rates of compensation for RH on Ees regular workday and RH on Ees rest day?
100%
e.g. 300 Php (RW) + 30% of 200%
200% e.g 600 -200% of RW X 0.3 180 180+ 600= 780
e.g. 300- RW + 300 000 = Total Wage (1W)
230%
Q: What is an important condition should be met in order to avail/receive single HP?
monthly
that the
paid and
A: Monthly Paid Ees One who is paid his wage or salary for everyday of t e month, including rest ays, Sundays, regular or special days, although he does not regularly work on these days. at excluded from benefit
of HP. Q: What is the effect on a Sunday?
Daily Paid Ees One who is paid his wage or salary only on those days he actually worked, except in cases of regular or special days, although he does not regularly work on these days.
if a legal holiday
A:
is a and
A:
A: The Ee should not have been absent ithout pay on the working day preceding the RH. Q: Distinguish between daily paid Ees.
of absences.
Q: What is the effect in case there temporary or periodic shutdown temporary cessation of work?
230% + 30% of hourly rate on said - date
200% + 30% of hourly rate on said date
the concept
. ~ ABSENCES LOA with pay on the LOA without pay on the ",- daY,lmmedlatley,,~ _., day Immediately . • '. preceding RH " r:: preceding a RH. GR: An Ee may not be paid the required HP if he has not worked on such RH. XPN: Where the day immediately GR: All covered Ees preceding the are entitled to HP. holiday is a: 1. Non-working day (NWD) in the establishment or 2. The scheduled rest day (RD) of the Ee.
\l100%~
e.g. 300 Php regular
Q: Discuss
falls
A: A legal holiday falling on a Sunday creates legal obligation for the Er to pay extra to the ::e who does not work on that day, aside from . e usual HP to its monthly paid Ee. ellington v. Trajano, G.R. 114698, July 3, '995)
UN IV
TEMPORARY OR PERIOEHC SHUTDOWN and TEMPORARY CESSATION OF WORK' , (Sec 7, Rule ,V, Book /I(IRR) Instances Rule: 1. Yearly inventory or 2. When the repair or RH falling within the cleaning of period shall be machineries is com pensated. undertaken Due to business reverses RH may not be paid (cessation as authorized by the Er by the Sec. of Labor) Q: What are the HPs of certain employees?
A:
'. EMPLOYEES Private school teachers (Faculty members of colleges and universities ) Ee paid by: 1. results or 2. output (Piece work payment) Seasonal Workers Workers having no regular work days E R SIT Y 0 F SAN
PacuCtaa
RULE RH during semestral vacations - Not entitled to HP 2. RH during Christmas vacation - Shall be paid HP HP shall not be less than his average daily earnings for the last 7 actual work days preceding the RH, Provided: HP shall not be less than the statutory minimum wage rate. May not be paid the required HP during offseason where they are not at work. 1.
Shall be entitled to HP
ToT
ae Verecno
0 MAS
CiviC
I''''''''~~
~•.
43
LABOR STANDARDS: CONDITIONS
OF EMPLOYMENT:
allegedly not an integral part of the school year and no teaching service were actually rendered by her. In short, the University invoked the principle of "no work, no pay". She seeks your advice on whether or not she is entitled to receive her ECOLA during semestral breaks. How would you respond to the query?
Q: Are the school faculty who according to their contracts are paid per lecture hour entitled to unworked HP? .
A:
1. If during regular holiday - No. Art. 94 of LC is silent with respect to faculty members paid by the hour who because of their teaching contracts are obliged to work and consent to be paid only for work actually done (except when an emergency or a fortuitous event or a national need calls for the declaration of special holidays). RH specified as such by law are known to both school and faculty members as "no class days" certainly the latter do not expect payment for said unworked days, and this was clearly in their minds when they entered into the teaching contracts. (Jose Rizal College v. NLRC, G.R. No. 65482, Dec. 1, 1987) 2. If during special public holidays Yes. The law and the IRR governing HP are silent as to payment on Special Public Holidays. It is readily apparent that the declared purpose of the HP which is the prevention of diminution of the monthly income of the Ees on account of work interruptions is defeated when a regular class day is cancelled on account of a special public holiday and class hours are held on another working day to make up for time lost in the school calendar. Otherwise stated, the faculty member, although forced to take a rest, does not earn what he should earn on that day. Se it noted that when a special public holiday is declared, the faculty member paid by the hour is deprived of expected income, and it does not matter that the school calendar is extended in view of the days or hours lost, for their income that could be earned from other sources is lost during the extended days. Similarly, when classes are called off or shortened on account of typhoons, floods, rallies, and the like, these faculty members must likewise be paid, whether or not extensions are ordered. (Jose Rizal Col/ege v. NLRC, G.R. No. 65482, Dec.1, 1987)
Q: Lita, a full time professor in San IIdefonso University, is paid on a regular monthly basis. She teaches for a period of 10 months in a school year, excluding the 2 month summer-break. During the semestral break, the University did not pay her emergency Cost of Living allowance (ECOLA) although she received her regular salary since the semestral break was
44
HOLIDAY PAY
A: There is no longer any law making it the legal obligation of an employer to grant an Emergency Cost of Living Allowance (ECOLA). Effective 1981, the mandatory living allowances provided for in earlier Presidential Decrees were integrated into the basic pay of all covered employees. Thus, whether the ECOLA will be paid or not during the semestral break now depends on the provisions of the applicable wage order or contract which may be a CSA, that many grant said ECOLA. (1997 Bar Question) Q: What is the concept
of double
HP?
A: 2 RH on same day. MAUNDY THURSDAY&, ARAW NG KAGITI,NGAN ' unworked unworked
\ \
l
WED
-.
!-
Present LOAw/pay LOAw/ pay
worked
Authorized absence
worked
Same
Worked and day is Rest Day
Q: Is double HP applicable
RATE 200% 200% 300% (at least) 300% (at least) 390% (+30% of each 3 100%)
at present?
A: No, because Araw ng Kagitingan is moved to Monday nearest April 9. (R.A. 9242) Q: What is the concept
of successive
RH?
A: WED Worked LOA wlpay LOA wlo pay LOA wlo pay
GOOD FRIDAY RH
ENTITLED TOHP Yes. Both
RH
RH
Yes. Both
RH
RH
No. Both
Worked
RH
Yes. Only to HP on Friday
MAUNDY THURS RH
I
i
\
UST GOLDEN NOTES 2010 Q: What are the conditions so that an Ee may be entitled to 2 successive HP? A: On the day immediately preceding the 151 H, he must be: 1. Present (worked), or 2. On LOA with pay. (Sec. 10, Rule IV, Book III, IRR) Q: What if the conditions
are not met?
A: He must work on the 1st RH to,:ge entitled to • P on the 2nd RH. (Sec. 10, Rule' IV, Book III, IRR)
Academics Committee Chairperson. Abraham D. Genuino II Vice-Cbair Jor Academics: Jeannie ,\. Laurentino Vice-Cbair Jar .Admin & Finance: Aissa Celine H. Luna Vice-Chair Jar Lqout & Desien: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Divrva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee J emuel Paolo M. Lobo )\ndrew W. Montesa Maria Maica Angelika Roman
UNIVERSITY
OF
Pacu{taa
SANTO
TOMAS
ae ([)ereclio CiviC
LABOR STANDARDS: CONDITIONS OF EMPLOYMENT: SERVICE INCENTIVE LEAVE
5 days leave with pay for every who has rendered at least 1 yr of It is commutable to its money if not used or exhausted the end
Institute of Technology teaching personnel cannot be deemed as field personnel which refers "to non-agricultural Ees who regularly perform their duties away from the principal place of business or branch office of the Er and whose actual hours of work in the field cannot be determined with reasonable certainty. (Par. 3, Art. 82, LC). (CIT vs. Ople, G.R. No. 70203, Dec. 18, 1987)
Q: What do you mean by at least 1 year of service?
Q: Is SIL commutable to its monetary equivalent if not used or exhausted at the end of the year?
ART. 95. RIGHT TO SERVICE INCENTIVE LEAVE" Q: What is service incentive A: It is employee service. equivalent of year.
leave (SIL)?
at
A: Service for not less than 12 months, whether continuous or broken reckoned from the date the employee started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year. (Sec. 3, Rule V, Book III, IRR) Q: Who are entitled to SIL?
A:
XPNS: 1.Government Ees and any of its political subdivisions including GOCCs 2. Those already enjoying the benefit 3. Domestic helpers and persons in the personal services of another 4. Those already enjoying vacation leave with pay of at least 5 days 5. Managerial Ees 6. Field personnel and other Ees whose performance is unsupervised by the Er 7. Employed in establishments regularly employing less than 10 workers 8. Exempt establishments 9. Engaged on task or contract basis, purely commission basis, or those who are paid in a fixed amount of performing work irrespective of the time consumed in the performance thereof. (Art. 95[b]) schools
on
A: Yes. The phrase "those who are engaged on task or contract basis" should, however, be related with "field personnel" applying the rule on ejusdem generis that general and unlimited terms are restrained and limited by the particular terms that they follow. Clearly, Cebu
46
Q:.What is the basis for cash conversion? A: The basis shall be the salary rate at the date of commutation. The availment and commutation of the SIL may be on a pro-rata basis. (No. VI(e), DOLE Handbook on Worker's Statutory Monetary Benefit) Q: Are part-time workers entitled to the full benefit of the yearly 5 day SIL?
GR: Applies to every Ee who has rendered at least 1 year of service. (Art. 95[a])
Q: Are teachers of private contract basis entitled to SIL?
A: Yes. It is aimed primarily at encouraging workers to work continuously and with dedication to the company.
A: Yes. Art. 95 of Labor Code speaks of the number of months in a year for entitlement to said benefit. (Bureau of Working Conditions Advisory Opinion to Phil. Integrated Exporter's, Inc.) Q: Are piece-rate workers entitled to the full benefit of the yearly 5 day SIL? A: It depends. 1. Yes. Provided: a. They are working inside the premises of the employer (Er) and b. Under the direct supervision of the Er. 2. No. Provided: a. They are working outside the premises of the Er b. Hours spent in the performance of work cannot be ascertained with reasonable certainty c. The are not under the direct supervision of the Er Q: Does it apply to Ees with salaries above minimum wage? A: No. The difference between the minimum wage and the actual salary received by the Ees cannot be deemed as their month pay and SIL pay as such difference is not
is"
UST GOLDEN NOTES 2010 equivalent to or of the same import as the said benefits contemplated by law. (JPL Marketing Promotions v. CA, GR. No. 151966, July 8, 2005.) Q: Explain Ees to SIL.
A:
1.
2.
the
entitlement
of terminated
Illegally dismissed Ees - entitled to SIL until actual reinstatement. (Integrated Conirectoe and E;lumbing Works, Inc. v. NLRC, G.R.No. Aug.9, 2005) Legally dismissed Ees - the Ee who had not been paid of SIL from outset of employment is entitled only of such pay after a year from commencement of service until termination of employment or contract. (JPL Marketing Promotions v. CA, GR. No. 151966, July 8,2005)
Q: What is the nature leave (VASl)?
of vacation
and sick
Q: What is the reason for VASl? A: Vacation leave is intended to give the employees a rest from the monotony and rigors of his daily work, on the other hand, sick leave is meant to be enjoyed only during actual illness. Q: In to an given on its
the grant of vacation leave privileges employee (Ee), is the employer (Er) the discretion to impose conditions entitlement and commutation?
A: Yes.The grant of vacation leave is not a standard of law, but a prerogative of management. It is a mere concession or act of grace of the Er and not a matter of right on the part of the Ee. Thus, it is well within the power and authority of an Er to impose certain conditions, as it deems fit, on the grant of vacation leaves, such as having the option to schedule the same. (PNCC Skyway Traffic Management v. PNCC Skyway Corp.,G.R. No. 171231, Feb. 17,2010) Q: What is the solo parent leave (SPl)?
A: It is voluntary. It lies- purely within management discretion or an output of collective bargaining agreement. Q: What is the basis of VASl? A: It is a result of 1. Collective bargaining negotiations or 2. Established employer practice or policy, not granted by law
A: It days who (R.A.
is a leave of not more than 7 working granted every year to any solo parent Ee has rendered service of at least 1 yr. 8972)
Note: The terms and conditions of employment cannot be prejudiced by reason of having the status of a solo parent. Q: Is the SPl convertible
Q: How does an Ee enjoy VASl
benefits?
A:
A: It must be enjoyed by the Ee within 1 year, thru established practice or policy of the Er and cannot be unilaterally withdrawn by the latter. Q: What is the effect if not enjoyed yr?
within
GR: No. XPN: If specifically agreed upon otherwise, and is non- cumulative. (R.A. 8972) Noncompliance with the law may make the employer liable for damages. (Azucena, 2007)
1
Q: What is the effect if there is a change in status of the parent?
A:
GR: Considered waived. XPN: When the labor contract or the established practice of the employer provides otherwise. Q: Can it be converted
to cash?
A: If the solo parent is no longer left alone with the responsibility of parenthood it shall terminate his/her eligibility for these benefits. (R.A. 8972)
to cash? Q: What is battered woman
A: GR: No. XPN: Unless allowed by the employer
leave (BWl)?
A: A female Ee who is a victim of violence (physical, sexual or psychological) is entitled to a paid leave of 10 days in addition to other paid leaves. (R.A. 9262, Anti-VAWC Act)
UNIVERSITY
OF
Pacu{tad
SANTO
TOMAS
de CJ)ereclio CiviC
f.
LABOR STANDARDS: CONDITIONS OF EMPLOYMENT: SERVICE INCENTIVE LEAVE Q: Is BWL extendible? A:
Yes, when
the necessity
arises.
(R.A.
9262) Q: What is special leave benefits women?
for
A: A woman Ee having rendered continuous aggregate employment service of at least 6 months for the last 12 months shall be entitled to a special leave benefit of 2 months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders. (Sec. 18, R.A. 9710)
Academics Committee Chairperson: Abraham D. Genuine II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Lryout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head: Lester Jay Alan E. Flores II Assistant Subject Head: Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R.'Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio ] eanelle C. Lee ] emuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
48
UST GOLDEN NOTES 2010 ;
" ART. 96. SERVICE CHARGES Q: What are service
charges
(SC)?
A: These are charges collected by hotels, restaurants and similar establishments and shall be distributed at the rate of:
1. Equally distributed among them
2.
To answer fqr losses and breakages and Distributed to Ees receiving more than P2000 a month at the discretion of the management.
Q: Who are covered
A:
Ees?
GR: All Ees are covered, regardless of their position, desiqnation, employment status, irrespective of the method by which their wages are paid.
Note: Since a tip is considered a pure gift out of benevolence or friendship. it cannot be demanded from the customer. Whether or not tips will be given is dependent on the will and generosity of the giver. Although a customer may give a tip as a consideration for services rendered, its value still depends on the giver. They are given in addition to the compensation by the employer. A gratuity given by an employer in order to inspire the employee to exert more effort in his work is more appropriately called a bonus. Q: What happens by customers?
to the tips given freely
A: Pooled tips should be monitored, accounted for and distributed in the same manner as the service charges where a restaurant or similar establishment does not collect service charges but has a practice or policy of monitoring and pooling tips given voluntarily by its customers. (No. 7[c] DOLE Handbook on Workers Statutory Monetary Benefits)
Note: Applies only to hotels; restaurants and similar establishment collecting service charges. XPN:
Managerial
Ees. (Sec. 2, Rule VI,
Book JIJ, IRR) Q: When distributed
is the share of and paid to them?
employee
A: Not less than once every 2 weeks or twice a month at intervals not exceeding 16 days. Q: What happens
If the SC is abolished?
A: The share of the covered Ees shall be considered integrated in their wages on the basis of the average monthly share of each Ees for the past 12 months immediately preceding the abolition.
Academics Committee Chairperson: Abraham D. Genuino II 'Vice-Char for .Academics: Jeannie i\. Laurentino Vice-Chair for Admin ri'7' Finance: Aissa Celine H. Luna Vice· Chair for LaJ10ut & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester] ay Alan E. Flores II .Assistant Subject Head' Domingo B. Diviva V
Note: Service charges form part of the award in illegal dismissal cases. Q: What is the difference
SC? A:
SERVICE CHARGE'
What the restaurant requires you to pay for the benefit of its Ees Not a voluntary contribution on the part of the customer
between
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nirio A. Diaz Angelo S. Diokno Genesis R. Fulgencio eanelle C. Lee J emuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
tip and
TIP' What you give to the waiter/waitress after eating if you like their service
J
Voluntary contribution
UNIVERSITY
OF
Pacu{taa
SANTO
TOMAS
de ([)erecno CiviC
LABOR STANDARDS: WAGES Q: What does a "fair day's wage for a fair day's labor "mean (no work no pay)?
,
TITLE 2 WAGES
,
CHAPTER I PRELIMINARY MA TIERS
l
, ' ,A,~T. ,9.7. DEFINITION
:'
A:
' , "", '- ,
!
Q: What is a wage? A: It is the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, payable by an employer (Er) to an employee (Ee) under a written or unwritten contract of employment: 1, For work done or to be done, or for services rendered or to be rendered; and includes 2, Fair and reasonable value of board, lodging, or other facilities customarily furnished by the Er to the E,e as determined by SLE, Q: What do you mean by customary?
A: It is founded
on long-established constant practice connoting regularity,
and
Q:
and
What reasonable
do you value?
mean
by
fair
A:
WAGE .' SALAR¥ . (Ga
50
Q: What is equal pay for equal work? A: Ees who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries, (Int'I School Alliance of Educators v. Quisumbing, G.R No, 128845, June 1, 2000) Q: What are included
1,
2. 3,
between wage and salary?
XPN: Debts incurred for food, shelter, clothing and medical attendance.
XPN: The laborer was able, willing and ready to work but was: 1, Prevented by management; 2, Illegally locked out; 3, Illegally suspended; 4, Illegally dismissed 5, Otherwise illegally prevented from working, (Aklan Electric Coop, v. NLRC, G.R No, 129246, Jan. 25, 2000)
in wage or salary?
A:
A: It shall not include any profit to the employer (Er) or to any person affiliated with the Er. Q: Distinguish
GR: If there is no work performed by the Ee, without the fault of the Er, there can be no wage or pay,
Subject to execution,
Commission Facilities Commodities
and supplements
Q: What is commission? A: Direct remuneration received by an agent, salesman, executor, broker, or trustee calculated as a percentage on the amount of his transactions or on the profit to the principal. Q: Are sales commission earned by a salesman who make or close a sale of duplicating machines' distributed by Phil. Duplicators Corp., constitute part of his "wage" or "salary"?
A: Yes. Sales commission
form part of the "wage" or "salary" of salesmen and are not in the nature of an "allowance" or "additional fringe" benefit. Commissions are in the form of incentives of encouragement, so that the salesman would be inspired to put a little more industry on the jobs particularly assigned to them, The nature of the work of a salesmen and the reason for such type of remuneration for services rendered demonstrate clearly that commissions are part of salesman wage or salary. (Phil. Duplicators, Inc. v. NLRC, G.R No, 110068, Nov. 11, 1993)
UST GOLDEN NOTES 2010 Q: Distinguish supplement?
between
..A:
. ~,
FACILITIES Items of expenses necessary for the laborer's and his family's existence and subsistence
~':"',
. --.
Note: Does not include tools of trade or articles/ services primarily for the benefit of the Er or necessary to the conduct of the Er's business. Forms part of the wage Deductible from wage For the benefit of the worker and his family.
facilities
and
. SUPPLEMENT Extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earainqs 01: wages (Atok Big Wedge Mining Co. v, Atok Big Wedge Mutual Benefit Assoc, G.R. No. L7349, July 19, 1955) . Independent of wage Not wage deductible Granted for the convenience of the Er.
availability is a necessary matter in the operations of a small hotel. Furthermore, granting that meals and lodging were provided and indeed constituted facilities, such facilities could not be deducted without the Er complying first with certain legal requirements. These requirements were not met in the instant case. (Mabeza v. NLRC, G.R. No. 118506, April 18, 1997) Q: What is gratuity pay? A: It is something given freely to reward Ees who have rendered satisfactory and efficient service to the company. It does not fonm part of the wage. Q: What are allowances? A: Amounts of money given in consideration of certain expenses like transportation and representation. It does not form part of the wage.
Q: What is the criterion in determining whether an item is a supplement or facility?
ART. 98. APPLICATION
A: The criterion is not so much with the kind of the benefit or item (food, lodging, bonus or sick leave) given, but its purpose. (State Marine v. Cebu Seamen's Ass'n., G.R. No. L-12444, Feb. 28, 1963) ..
Q: To whom does the title on wages apply? A:
Q: When can the cost of facilities furnished by the Er be charged against an Ee? A: In order that the cost be charged against the Ee, the latter's acceptance of such facilities must be voluntary. Q: What are the requirements values for facilities?
A:
1.
2.
3.
OF TITLE
for deducting
Proof must be shown that such facilities are customarily furnished by the trade; The provision of deductible facilities must be voluntarily accepted in writing The facilities must be charged at fair and reasonable value (Mabeza v, NLRC, G.R. No. 118506, April 18,
GR: It applies to all employees XPN: -1-. -Farm tenancy or leasehold; 2. Household or domestic helpers, including family drivers and persons working in the personal service of another; 3. Home workers engaged in needlework or in any cottage industry duly registered in accordance with law' 4. Wo~kers in duly registered cooperatives when so recommended by the Bureau of Cooperative Development and upon approval of the Secretary of Labor and Employment: 5. Workers of a barangay micro business enterprise (R.A. 917E})
1997) Q: Are food and lodging, or the electricity and water consumed by a hotel worker, considered facilities? A: No. These are supplements. Considering, therefore, that hotel workers are required to work different shifts and are expected to be available at various odd hours, their ready UNIVERSITY
OF
PacuCtaa
SANTO
TOMAS
ae rDerecno
CiviC
LABOR STANDARDS: WAGES . , :
,
Q: What is the purpose wage?
. CHAPTER II . " MINIMUM WAGE RATES
ART. ,99. REGIONALMINIMUM Q: What is minimum
..VVAGES
'-;
A:
minimum
2.
wage?
A: The minimum wage rates for agricultural and non-agricultural Ees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Board (RTWPB). Q: What is statutory
minimum
wage?
A: This shall refer to rate fixed by the RTWPB, as defined by the Bureau of Labor and Employment Statistics (BLES) of the DOLE, (RA 9504) Q: Who are minimum wage earners? A: Workers in the private sector paid the statutory minimum wage, or to an employee in the public sector with compensation income of not more than the statutory minimum wage in the non-agricultural sector where he/she is assigned, (RA 9504) Q: Are minimum wage earners exempt from payment of income tax on their taxable income? A: Yes, provided that the holiday pay, overtime pay, night shift differential pay and hazard pay received by such minimum wage earners shall likewise be exempt from income tax. (RA 9504)
Q: Who are daily-paid
Ees?
Q: Can an Er be exempt from his obligation to pay minimum wages because of poor financial condition of the company?
A:
No. The payment of minimum wage is not being dependent on the Ers ability to pay. Payment of wage is a mandatory statutory obligation. (De Racho VS. Mun. of J/agan, G.R. No. L-23542, Jan. 2, 1968) Q: Can an Ee be estopped in suing his Er by accepting his wage below the minimum wage without objection? A: No. It does not give rise to estoppel. The Ee can still sue his Er for the difference between the amount received and the amount he should have received pursuant to a valid minimum wage law where it does not appear that the Er changed his position to his own prejudice.
( ARTS. 122. CREATION OF THE REGIONAL ; TRIPARTITE WAGES AND PRODUCTIVITY , BOARD (RTWPB) , Q: Who may set the minimum
A:
A: Ees paid only for days he actually worked. Q: Who are monthly
paid Ees?
A: Ees paid by the month, irrespective of the number of working days, with a salary not below the established minimum wage, shall be presumed to be paid for all the days in the month whether worked or not. The monthly minimum wage shall not be less than the statutory minimum wage multiplied by 365 days divided by 12.
52
a minimum
Provide rock-bottom wage to be paid to Ees by Ers and below which the rate must not fall, Gives protection to enlightened Er who without legal compulsion voluntarily pays a decent wage against competition of Er who pays Ee inadequate wages and thus operates at -a lower cost and sell products at lower price,
wage?
A: It is the lowest basic wage rate fixed by law that an employer (Er) can pay his employees (Ees), Q: What is regional
1.
of fixing
1. 2,
wage?
RTWPB Congress
Q: What is the duty of RTWPB? A: Prescribe the minimum wage rates for agricultural . and non-agricultural Ees and workers in each and every region of the country, Q: What is the composition
A:
1, 2. 3.
of RTWPB?
Regional Director of DOLE Regional Director of NEDA Regional Director of DTI
UST GOLDEN NOTES 2010 4. 5. 6.
2 members from the employers' sector 2 members from the workers' sector; and Secretariat
;::t~·:"':A.J~T:,124.:~;rANDA~DSICRITERIA
r,:
'i,.":. FOR"MfNIMUM
r-
WAGE FIXING
Q: What are standards minimum wage fixing?
A:
or
.
.:
criteria
for
1. 2.
Demand for living wages Wage adjustment vis-a-vis the consumer price index 3, Cost of living and changes or increase therein 4. Needs of workers and their families 5. Need to induce industries to invest in the countryside 6. Improvements in standards of living 7. Prevailing wage levels 8. Fair return of capital invested and the capacity to pay of Ers 9. Effects on employment generation and family income 10. Equitable distribution of income and wealth along the imperatives
Q: What is salary ceiling method? A: A method of minimum wage adjustment whereby the wage adjustment is applied to Ees receiving a certain denominated ceiling. In other words, workers already being paid more than the existing minimum wage are also to be given a wage increase. (ECOP v. NWCP, G.R. No. 96169, Sep. 24, 1991). Q: What is a floor wage method? A: It involves the fixing of a determinate amount to be added to the prevailing statutory minimum wage rates. Q: The Regional Wage Board of Region \I issued a Wage Order granting all Ees in the private sector throughout the region an across-the-board increase of P15.00 daily. Is this Wage Order valid?
daily minimum wage rates. In the present case, the Regional Wage Board did not determine or fix the minimum wage rate. It did not set a wage level nor a range to which a wage adjustment or increase shall be added. Instead, it granted an across-the-board wage increase of P15.00 to all Ees in the region. In doing so, the Regional Wage Board exceeded its authority by extending the coverage of the Wage Order to wage earners receiving more than the prevailing minimum wage rate, without a denominated salary ceiling. The Wage Order granted additional benefits not contemplated by R.A. No. 6727. (MBTC v NWPC Commission, G.R. No. 144322, Feb. 6, 2007) Q: Since the Wage Order was declared void with respect to its application to employees receiving more than the prevailing minimum wage rate at the time of the passage of the Wage Order, should these Ees refund the wage increase received by them? A: No. The Ees should not refund the wage increase that they received under the invalidated Wage Order. Being in good faith, the employees need not refund the benefits they received. Since they received the wage increase in good faith, in the honest belief that they are entitled to such wage increase and without any knowledge that there was no legal basis for the same, they need not refund the wage increase that they already received. (MBTC v NWPC Commission, G.R. NO. 144322, Feb. 6, 200~ Q: What is wage distortion
(WO)?
A: A situation where an increase in wage results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among the Eegroups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service or other logical bases of differentiation. Q: What are the elements of WO?
A:
A: The Wage Order is valid insofar as the mandated increase applies to Ees earning the prevailing minimum wage rate at the time of the passage of the Wage Order and void with respect to its application to Ees receiving more than the prevailing minimum wage rate at the time of the passage of the Wage Order. Pursuant to its authority, the Regional Wage Boards may issue wage orders which set the UN!VERSITY
1. 2.
3. 4.
An existing hierarchy of positions with corresponding salary rates. A significant change or increase in the salary rate of a lower pay class without a corresponding increase in the salary rate of a higher one; The elimination of the distinction between the 2 groups or classes; and The WD exists in the same region of the country. (Alliance Trade Unions v.
OF SArHO TOMAS Pacu(taa de (])erecfio Civif
LABOR STANDARDS: WAGES NLRC, 2004)
G.R. No.
140689,
Feb.
17,
resolved within 10 days from the time the' dispute was referred to voluntary arbitration.
Q: Is the Er legally obliged to correct WD? A: The Er and the union shall negotiate to correct the distortions. If there is no union, the Er and the workers shall endeavor to correct such distinctions.
Q: Can the issue notice of strike?
1.
2. 3.
4.
The concept of WD assumes an existing group or classification of Ees which establishes distinctions among such Ees on some relevant or legitimate basis. This classification is reflected in a differing wage rate for each of the classes of Ees Often results from gov't decreed increases in minimum wages. Should a WD exist, there is no legal requirement that, in the rectification of that distortion by re-adjustment of the wage rates of the differing classes of Ees, the gap which had previously or historically existed be restored in precisely the same amount. In other words, correction of a WD may be done by reestablishing a substantial or significant gap (as distinguished from the historical gap) between the wage rates of the differing classes of Ees. The re-establishment of a significant difference in wage rates may be the result of resort to grievance procedures or collective bargaining negotiations. (Metro Transit Org., Inc. v. NLRC, GR. No. 116008, July 11, 1995)
Q: Distinguish the process. for correction of WD of organized establishments and unorganized establishments?
A: ;
Organized Establishment (with union) The Er and the union shall negotiate to correct distortion. Any dispute shall be resolved through a grievance procedure under the CSA. If it remains unresolved, it shall be dealt with through voluntary arbitration. The dispute will be
54
Unorganized Establishments (without union) The Er and the workers shall endeavor to correct the distortion. Any dispute shall be settled through the NCMB. If it remains unresolved within 10 days it shall be refers to the NLRC. The NLRC shall
of WD be raised
in a
A: No. WD is non-strikeable. (flaw at Buklod ng Manggagawa v. NLRC, G.R. No. 91980, June 27, 1991.) WD is neither a deadlock in collective bargaining nor.ULP.
Q: What are the basic principles in WD?
A:
conduct continuous hearings and decide the dispute within 20 days from the time the same was referred.
. : .
ART. 100. PROHIBITION AGAINST ELIMINATION OR DIMINUTION OF BENEFITS Q: What is the concept (ND) of benefits?
A:
of non-diminution
GR: Benefits being given to employees (Ees) cannot be taken back or reduced unilaterally by the employer (Er) because the benefit has become part of the employment contract, whether written or unwritten. XPN: To correct an error, otherwise, if the error is not corrected for a reasonable time, it ripens into a company policy and Ees can demand it as a matter of right.
Q: When is ND applicable? A: It is applicable if it is shown that the grant of benefit: 1. Is based on an express policy of the law; or 2. Has ripened into practice over a long period of time and the practice is consistent and- deliberate and is not due to an error in the construction/ application of a doubtful or difficult question of law. Q: What are the tests existence of binding and . company practice?
ascertaining enforceable
A: The act of the employer: 1. Has been done for a long period of time; 2. Has been done consistently and intentionally; 3. Should not have been a product of erroneous interpretation or construction of a doubtful or difficult question on law.
UST GOLDEN NOTES 2010 Q: What is a bonus? A: It is an amount granted and paid to an Ee for his industry and loyalty which contributed to the success of the Ers business and made possible the realization of profits. Q:Canbonusbedemanded?
A: GR: Bonus is not demandable as a matter of right. It is a management @rerogqtive given in addition to what is ordinarily received by or strictly due to recipient. . (Producers Bank of the Phil. v NLRC, G.R. No. 100701, March 28, 2001) XPN: Given for a long period of time 1. Consistent and deliberate Er continued giving benefit without any condition imposed for its payment 2. Er knew he was not required to give benefit 3. Nature of benefit is not dependent on profit 4. Made part of the wage or compensation agreed ana stated in the employment contract. Q: The projected bonus for the Ees of Suerte Co. was 50% of their monthly compensation. Unfortunately, due to the slump in the business, the president reduced the bonus to 5% of their compensation. . Can the company unilaterally reduce the amount of bonus? Expiain briefly. A: Yes. The granting of a bonus is a management prerogative, something given in addition to what is ordinarily received by or strictly due the recipient. An Er cannot be forced to distribute bonuses when it can no longer afford to pay. To hold otherwise would be to penalize the Er for his past generosity. (Producers Bank of the Phil. v NLRC, G.R. No. 100701, March 28, 2001). (2002 Bar Question) Q: What is covered
by basic salary?
A: All remunerations or earnings paid by its Er 'or services rendered.
excluded from the computation of basic salary. (Honda Phil., Inc. v. Samahan ng Malayang Manggagawa sa Honda, G.R. No. 145561, June 15,2005) Q: What are excluded
in basic salary?
A: Allowances and monetary benefits which are not considered integrated as part of the regular or basic salary such as vacation and sick leave credits, OT, premium, night differential, holiday pay and COLA. Provided: they are treated as part of the basic salary if provided by reasons of individual or collective bargaining or company practice or policy. Q: Suarez is a salesman for Star Pharmaceuticals. Star Pharmaceuticals has applied with the DOLE for clearance to terminate (by way of retrenchment) the services of Suarez due to financial losses. He, aside from his monthly salary, receives commissions on the sales he makes and allowances. The existing CBA between Star Pharmaceuticals and the union, of which Suarez is a member, states that any Ee separated from employment for causes not due to the fault of the Ee shall receive from the company a retirement gratuity in an amount equivalent to one month's salary per year of service. Suarez contends that in computing his separation pay, his sales commission and his allowances should be included in the monthly salary. Do you agree? A: I agree, with some conditions. In computing separation pay, the monthly salary should include commissions because a commission received by a salesman is part of his salary. But for allowances to be included as part of salary, they should be for services rendered or to be rendered, like a cost of living allowance. But transportation and representation allowances are not considered as part of salary because they are to meet expenses for transportation and representation. Thus, cost of living allowances, but not transportation or representation allowances, shall be included as part of salary in the computation of separation pay. (1997 Bar Question)
Note: For Ees receiving regular wage, the term oaslc salary does not mean the amount actually eceived by an Ee, but 1/12 of their standard onthly wage multiplied by the length of their service within a given calendar year. The ayments of sick, vacation, and maternity leaves, ight differentials, holiday pay, and premiums for Nork done on rest days and special holidays are UNIVERSITY
OF SANTO
TOMAS
lFacuCtaa de i])erecno CiviC
55
LABOR STANDARDS: WAGES ,-
ART. 101. PAYMENT BY RESUtTS Q: What does payment include?
A:
of wages
-
"
by results
Q: Distinguish Ee.
piece rate Ee from task work
A: ;-:
1.
2. 3.
Pakyaw Piece-work Other non-time work
PIECE RATE - '. -:TASKWORK' " Stress is placed on the Emphasis on the task unit of work produced, itself or the quantity thereof. Payment is not reckoned in terms of Uniform amount is paid numbers of unit per unit accomplished produced, but in terms of completion of work,
Note: It is regulated by DOLE Sec. to ensure the payment of fair and reasonable wage rates, preferably through time and motion studies or in consultation with representatives of workers and Er's organizations.
Q: What are the benefits
Q: What are the two categories rate workers?
A:
A:
of piece-
1_ 2.
1.
2.
As to presence of control a. Piece-rate worker works directly under the supervision of their Er. b. Pakyaw or takay - works away from the Ers work premises and are not directly supervised by the Er. As to rate of payment a. Those who are paid rates as prescribed in Piece Rate Orders by the DOLE b. Those who are paid output rates which are prescribed by the Er and are not yet approved by the DOLE.
Q: Who are non-time
workers?
A: They are workers paid according to the quantity, quality or kind of job and the consequent results thereof.
Q: Who are workers
paid
on
piece-rate
basis? A: Workers paid by standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.
payable
to piece-
rate workers?
3. 4.
5. 6. 7. 8. 9.
Thirteenth month pay Night shift differential (NSD) pay Service incentive leave of five days with pay Holiday pay Applicable statutory minimum daily rate Meal and rest periods Premium pay (conditional) Overtime pay (conditional) Other benefits granted by law, individual or collective bargaining agreements or company policy or practice.
Note: The rules implementing the Labor Code (LC) on NSD and SIL do not apply to Ees whose time and performance is unsupervised by the Ers, including those who are engaged on task or contract basis, purely commission or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. Q: TRX, a local shipping firm, maintains a fleet of motorized boats plying the island barangays of AP, a coastal town. At day's end the boat operators/crew members turn over to the boat owner their cash collections from cargo fees and passenger fares, less the expenses for diesel fuel, food, landing fees and spare parts .. 50% of the monthly income or earnings derived from the operations of the boats are given to the boatmen by way of compensation. Deducted from the individual shares of the boatmen are their cash advance and peso value of their absences, if any. Are these boatmen entitled to OT pay, holiday pay, and 13th month pay? A: If the boatmen are considered Ees, like jeepney drivers paid on a boundary system, the boatmen are not entitled to O'T and holiday pay because they are workers who are paid by
56
UST GOLDEN NOTES 2010
~~~~==~~~~~--
results. Said workers, under the LC are not entitled, among others, to OT pay and holiday pay. In accordance with the rules and regulations implementing the 13th month pay law, however, the boatmen are entitled to the 13th month pay. Workers who are paid by results are be paid their 13th month pay. (2004 Bar Question)
.
. ART. 103. TIME OF PAYMENT
Q: When should wages be paid?
A:
to
~
ART. 102. FORMS OF PAYMENT
GR: Wages shall be paid 1. At least once every 2 weeks, or 2. Twice a month at intervals exceeding 16 days
not
Note: No Er shall make payment with less frequency than once a month.
~ " Q: What is the form of payment of wages?
XPN: Payment cannot be made with such regularity: 1. Due to force majeure or circumstances beyond the employer's control. 2. If engaged to perform a task which cannot be completed in 2 weeks and in the absence of CBA.
A: GR: Wages shall be paid in legal tender. XPN: Payment of wages by bank checks, postal checks or money orders is allowed where such manner of wage payment is: 1. Customary on the date of the effectivity of the Labor Code. 2. Stipulated in the CBA. 3. Where all of the following conditions are met: a. There is a bank or other facility for encashment within a radius of 1 km. from the workplace; b. The Er or any of its agents or representatives does not receive any pecuniary benefit directly or indirectly from the arrangement. c. The Ees are given reasonable time during banking hours to withdraw their wages from the bank which time shall be considered as compensable hours worked if done during working hours. d. Payment by check is with consent of the Ees concerned IF there is no CBA authorizing payment of wages by bank checks. 4. Other instances when necessary because of special circumstances as specified in appropriate regulations to be issued by the SLE.
Q: How can payment be made in case of force majeure or circumstances beyond the Ers control?
A: Er shall pay wages immediately after such force majeure or circumstance
has ceased.
Q: How will wages of employees engaged to perform a task which cannot be completed in 2 weeks be paid? A: In the absence of a CBA or arbitration award: 1. Payment is made at intervals not exceeding 16 days, in proportion to the amount of work completed. 2. Final settlement is made immediately upon completion of work. ART. 104. PLACE OF PAYMENT Q: Where wages?
A:
Q: Are the use of tokens, promissory notes, coupons vouchers or any other form allowed? A: No. Any form alleged to represent legal tender is absolutely prohibited even when expressly requested by the Ee.
UNiVERSITY
is
the
place
of
payment
of
GR: Place of payment shall be at or near the place of undertaking. XPN: Permissible only under the following circumstances: 1. When payment cannot be effected at or near the place of work a. by reason of the deterioration of the peace and order conditions or b. by reason of actual or impending emergencies covered by fire, flood, epidemic, or other calamity c. rendering payment thereat permissible; OF
Pacu{tati
SANTi,.)
~rO~f1.!\S
tie Derecho
CiviC
LABOR STANDARDS: WAGES 2.
3.
When the employer (Er) provides free transport to the employee (Ee) back and forth; Any analogous circumstances provided that the time spent by the Ee in collecting their wage shall be considered compensable hours worked.
Q: What payment?
A:
are
the
prohibited
places
4. 5.
6.
of
GR: Places where games are played with stakes of money or things representing money like: 1. Bar; 2. Night club; 3. Day club; 4. Drinking establishment; 5. Massage clinic; 6. Dance hall; 7. Other similar places or in places
7.
and in the amount prescribed under the LC. There is a bank or ATM facility within a radius of 1 km. from the workplace; Upon the request of the concerned Ee, the Er shall issue a record evidencing payment of wages, benefits and deductions for a particular period; The ATM system of payment shall neither result in diminution of benefits and privileges of the Ee nor shall the latter incur additional expenses in the process; and, The Er shall assume full responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement (DOLE's Explanatory Bulletin on Wage Payment through A TM Facility, Nov. 25, 1996)
- ART. 105. DIRECT PAYMENT OF WAGES XPN: In case of workers employed places. . Q: When permitted?
A:
1. 2. 3.
can
payment
thru
in said
banks
Q: How should made?
payment
of wages
be
be
Written permission of the majority of the Ees concerned in the establishments Establishment must have 25 or more Ees Establishment must be located within 1 km. radius to the bank. (Sec. 7, Wage Rationalization Act, R.A. 6727)
A:
GR: It shall be made directly to the Ees entitled thereto. XPN:
1.
Q: What is the duty of the bank? 2. A: Whenever applicable and upon request of a concerned worker or union, the bank shall issue a certification of the record of payment of wages of a particular worker or workers for a particular payroll period. Q: Is payment through ATMs allowed? A: Yes. Provided: 1. The ATM system of paym ent is with the written consent of the Ee concerned; 2. The Ees are given reasonable time to withdraw their wages from the bank facility which, if done during the working hours, shall be considered as compensable hours worked; 3. The system shall allow the Ee to receive their wage within the period
3.
Force majeure rendering such payment impossible or under other special circumstances in which the worker may be paid: a. Through another person under written authorization, or b. Upon authorization to a member of his family. Authorized by existing laws a. Payment for the insurance premiums of the Ee and b. Union dues where the right to check off is provided in CBA or c. Authorized in writing by the individual Ees concerned. (Sec. 5, Rule VIII, Book III, IRR). In case of death of the Ee, in which case it will be paid directly to the worker's heirs.
Q: What is the procedure in payment through heirs of worker?
A:
1.
case
of
When the heirs are of age, they shall execute an affidavit attesting to their relationship to the deceased and the
UST GOLDEN NOTES 2010
2.
3.
4.
fact that they are his heirs to the exclusion of all other persons. In case any of the heirs is a minor, such affidavit shall be executed in his behalf by his natural guardian or next kin. Affidavit shall be presented to the Er who shall make payment through the DOLE Secretary or his representative. Payment of wage shall absolve the Er of any other liability ~with respect to the amount paid.
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair jor .Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: A..issaCehne H. Luna Vice-Chair for Layoi« & Design: Loise Rae G. Naval Labor Law Committee Subject Head: Lester Jay Alan E. Flores II Assistant Subject Head: Domingo B. Diviva V Members:
Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
UNiVERSITY
OF
Pacu{taa
SANTO
TOMAS
de CDereclio Civif
59
LABOR STANDARDS ART. 106. CONTRACTOR SUBCONTRACTOR
I
:.
Q: What is a permissible
to an arrangement between the latter and a principal. (0.0. 18-02)
OR
job contracting
or
subcontracting? A: It refers to an arrangement whereby a principal agrees to farm out with a contractor or subcontractor the performance of a specific job, work, or service within a definite or predetermined period, regardless of whether such job, work or, service is to be performed or completed within or outside the premises of the principal. Under this arrangement, the following conditions must be met: 1.
The contractor carries on a distinct and independent business and undertakes the contract work on his account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of his work except as to the results thereof;
2.
The contractor has substantial capital or investment; and
3.
The agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social welfare benefits. (Gal/ego v. BAYER Phi/s., lnc., GR. No. 179807, July 31, 2009, J. CarpioMorales)
Q: Describe
the relationship arising from contractual arrangements. A: There is a trilateral relationship between the principal, contractor and Ee. There exists a contractual relationship between the principal and the contractor or subcontractor to its Ees.
Q: Who are the parties in contracting
and
subcontracting?
A:
1. Contractor/subcontractor - Refers to any person engaged in a legitimate contracting or subcontracting arrangement.
2. Contractual Ee - One who is employed by a contractor or subcontractor to perform or complete a job, work, or service pursuant
60
3. Principal - Any Er who puts out or farms out a job, service, or work to a contractor or subcontractor. Q: What are the factors to consider in determining whether contractor is carrying on an independent business?
A:
1. 2. 3. 4. 5. 6. 7. 8. 9.
Nature and extent of work Skill r~quired Term and duration of the relationship Right to assign the performance of specified pieces of work Control and supervision of worker Power of employer to hire, fire and pay wages Control of the premises Duty to supply premises, tools, appliances, materials and labor Mode, manner and terms of payment. (Vinoya v. NLRC, G.R. No. 126286, Feb 2, 2000)
Note: Individuals with special skills; expertise or talent enjoy the freedom to offer their services as independent contractors. An individual like an artist or talent has a right to render his services without anyone controlling the means and methods by which he performs his art or craft. (Sonza VS. ABS-CBN, G.R. No. 138051, June 10, 2004) Q: Is the Sonza doctrine on "talents" applicable to other workers of ABS-CBN, such as production assistants and production crew? A: No. In the selection and engagement of the production assistants and production crew, no peculiar or unique skill, talent or celebrity status was required from them since they were merely hired through the company's personnel department just like any ordinary Ee. Their socalled "talent fees" correspond to wages given as a result of an Er-Ee relationship. They did not have the power to bargain tor huge talent fees, a circumstance negating independent contractual relationship. The presumption is that when the work done is an integral part of the regular business of the employer and when the worker, relative to the employer, does not furnish an independent business or professional service, such work is a regular employment of such employee and not an independent contractor. (ABS-CBN v. Marquez, June 22, 2005; ABS-CBN v. Nazareno, Sep. 26, 2006)
Q: What are the rights (CEe)?
of
a contractual
Ee
A: They shall be entitled to all the rights and privileges due to a regular Ee as provided in the LG, as amended to include the ff: 1. Safe and healthful working conditions; 2. SI~ rest days, OT pay, holiday pay, 13 month pay and separation pay; 3. Social security and welfare benefits; 4. Self-organization, GSA) and eeaceful concerted actions; '. 5. Security of tenure (Sec. 8, DO 18-02) Q: What are the effects of termination of CEe to separation pay and other benefits?
A: 1.
2.
If prior to the expiration of the employment contract between the principal and the contractor or subcontractor - The right of GEe to separation payor other related benefits shall be governed by the applicable laws and jurisprudence on termination of employment. If the termination results from the expiration of the contract between the principal and the contractor or subcontractor - The Ee shall not be entitled to separation pay. However, this is wlo prejudice to completion bonuses or other emoluments including retirement pay as may be provided by law or in the contract between the principal and the contractor.
Q: When is the principal deemed employer of the contractual employee? A: Where: 1. There is labor-only contracting 2. The contracting arrangement within the prohibited acts
the
falls
Q: May the Er or indirect
Er require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract to answer for the wages due to Ees in case the contractor or subcontractor fails to pay the same? A: Yes. The Er or indirect Er may require the contractor or subcontractor to furnish a bond that will answer for the wages due to the Ees.
Q: What is the liability
of the principal?
A: The principal shall be solidarily liable with the contractor in the event of any violation of
any provision of the LG, including the failure to pay wages. This will not prevent the principal from claiming reimbursement from the contractor. Q: What does investment mean?
substantial
capital
or
A: It refers to the capital stocks and subscribed capitalization in case of corporations, tools, equipments, implement, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out. (D. O. 18-02) Note: The law does not require both substantial capital and investment in the form of tools equipments, machineries, etc. This is clear fro~ the use of conjunction "or". If the contention was to require the contractor to prove that he has both capital and requisite investment, then the conjunction "and" should have been used. (Virginia Neri v. NLRC, G.R. No. 97008, July 21, 1993) Q: What does the right to control
mean?
A: It refers to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end. (~.O. 18-02) Q: SMC and Sunflower Cooperative entered into a 1-yr Contract of Services, to be renewed on a month to month basis until terminated by either party, Pursuant to the contract, Sunflower engaged private respondents to render services at SMC's Bacolod Shrimp Processing Plant. The contract was deemed renewed by the parties every month after its expiration on Jan, 1, '94 and respondents continued to perfonn their tasks until Sep, 11, '95. In July '95, private respondents filed a complaint before the NLRC, praying to be declared as regular Ees of SMC, with claims for recovery of all benefits and privileges enjoyed by SMC rank and file Ees. Respondents subsequently filed an Ame"tlded Complaint to include illegal dismissal as additional cause of action following SMC's closure of its Bacolod Shrimp Processing Plant on which resulted in the termination of their services. SMC filed a Motion for Leave to File Attached Third Party Complaint to implead Sunflower as 3rd -Party Defendant. Are private respondents Ees of . the
. ~. lFac'u{tad'
de lDerecfio
CiviC
LABOR STANDARDS independent cooperative (Sunflower) or of the SMC?
A: The contention of SMC holds no basis. Using the "substantial capital" doctrine and the "right of control test", the Court found that the Sunflower had no substantial capitai in the form of tools, equipment, machineries, work premises and other materials to qualify itself as an independent contractor. The lot, building, machineries and ali other working tools utilized by private respondents in carrying out their tasks were owned and provided by SMC. In addition, the shrimp processing company was found to have control of the manner and method on how the work was done. Thus, the complainants were deemed Ees not of the cooperative but of the shrimp processing company. Since respondents who were engaged in shrimp processing performed tasks usually necessary or desirable in the aquaculture business of SMC, they should be deemed regular Ees of the latter and as such are entitled to ali the benefits and rights appurtenant to regular employment. (SMC vs. Prospero Aballa, et a/., G.R. No. 149011, June 28, 2005, J. Carpio-Morales) Q: What are the conditions permitting job contracting?
before
A: 1.
2.
The labor contractor must be duly licensed by the appropriate Regional Office of the DOLE There should be a written contract between the labor contractor and his client-Er that will assure the Ees at least the minimum labor standards and benefits provided by existing laws.
Note: The Ees of the contractor or subcontractor shall be paid in accordance with the provisions of the tc. (Art. 106) Q: What is labor-only
which are directly related to principal business of such Er.
contractor
contracting?
A: It refers to an arrangement where the foliowing conditions concur: 1. The person supplying workers to an Er does not have substantial capital or investment in the form of tools, equipment, machineries, work, premises, among others, or 2. Even if such person has substantial assets, the same are not actualiy or directly used by the Ees contracted out; 3. The workers recruited and placed by such person are performing activities
Q: Why prohibited?
is
labor
only
the
contracting
A: It gives rise to confusion as to who is the real Er of the workers and who is liable to their claims. It also deprives workers of the opportunity to become regular Ees. Q: How do we determine if one is engaged in labor/job only contracting? A: The test to determine whether one is a job/labor only contracting is to look into the elements of a job contractor. If ali the elements of a job contractor are present, then he is a job .contractor, Absent one of the elements for a job contractor, then the person is a labor-only contractor. Q: Distinguish between and labor only contracting
A: JOB CONTRACTING Liability is limited (shall be solidarily liable with Er only when the Er fails to comply with req'ts as to unpaid wages and other labor standards violations) Permissible, subject only to certain conditions The contractor has substantial capital or investment
job
contracting
LABOR-ONLY CONTRACTING Liability extends to all those provided under the Labor Standards law
Prohibited by Law Has no substantial capital or investment
Q: Metro Grocery Inc. arranged with Dado, a Barangay Chairman, to provide the grocery with workers who 'will work as cashiers, bag boys, shelf-counter helpers and sanitation workers. The grocery will pay Dado an amount equivalent to the direct and hidden costs of the wages of each worker assigned, plus 10% to cover the administrative costs related to their arrangement. Dado, in turn, will pay directly the workers their wages. As far as the workers are concerned, Dado is their Er. A group of concerned workers consulted you if Dado is really under the law their Er. (2000 Bar Question) 1. 2.
How will you analyze the problem in order to formulate your answer? What is the legal significance, if any, the question of concerned workers as to
UST GOLDEN NOTES 2010 who is their Er? A: I will apply the four- fold test of Er-Ee relationship. I will examine if Dado exercises power of control or supervision over the workers' manner and method of doing their work. Control is the most important factor in examining Er-Ee relationship. The other factors are hiring, payment of wages, and power to dismiss, I will also examine whether there was job contracting or labor-only contracting. iJ
..•
Q: SMPC entered into a contract with Arnold for the milling of lumber as well as the hauling of waste wood products. The company provided the equipment and tools because Arnold had neither tools and equipment nor capital for the job. Arnold, on the other hand, hired his friends, relatives and neighbors for the job. Their wages were paid by SMPC to Arnold, based on their production or the number of workers and the time used in certain areas of work. All work activities and schedules were fixed by the company. 1. Is Arnold a job contractor? Explain briefly 2. Who is liable for the claims of the workers hired by Arnold? Explain briefly.
A:
1.
2.
No. In the problem given, Arnold did not have sufficient capital or investment for one. For another, Arnold was not free from the control and direction of SMPC because all work activities and schedules were fixed by the company. Therefore, Arnold is not a job contractor. He is engaged in labor-only contracting. SMPC is liable for the claims of the workers hired by Arnold. A finding that Arnold is a labor only contractor is equivalent to declaring that there exist an Er-Ee relationship between SMPC and workers hired by Arnold. This is so because Arnold is considered a mere agent of SMPC (Lim v. NLRC, G.R. No. 12463G, Feb. 19, 1999); 2002 Bar Question)
Q: What are the grounds for delisting contractors or subcontractors?
A:
1.
2. 3.
4.
engaged in labor-only contracting and other prohibited activities; Non-compliance with labor standards and working conditions. (Sec. 16, D.O. 18-02)
~ . ART. 107. INDIRECT-EMPLOYER Q: Who is an indirect Er? A: The provisions of Art. 106 shall likewise apply to any person, partnership, association or corporation which, not being an employer (Er), contracts with an independent contractor for the performance of any work, task, job or project. (Art. 107) Note: The Er or indirect Er may require the contractor or subcontractor to furnish a bond to the cost of labor under the contract conditioned to answer for the wages due the Ees should the latter fail to pay the same. (Art. 108) Q: What is the liability
of an indirect Er?
A: Every Er or indirect Er shall be held responsible with his contractor or subcontractor for any violation of the provisions of the LC. For purposes of determining their civil liability, every Er or indirect Er shall be considered as direct Ers. (Art. 109, LC) Q: CMI had provided janitorial services to the NEDA since April '88. Its service contract was renewed every three months. However, in the bidding held on July 1992, CMI was disqualified and excluded. In '93, G janitors of CMI formerly assigned at NEDA filed a complaint for underpayment of wages. Both CMI and NEDA were impleaded as respondents for failure to comply with NCR Wage Orders Nos. 01 and 02, which took effect on Nov. 1, '90 and Jan. 2, '92, respectively.
of
Non-submission of contracts between the principal and the contractor or subcontractor when required to do so; Non-submission of annual report; Findings through arbitration that the contractor or subcontractor has UNiVERSITY
Should NEDA, a gov't agency subject to budgetary constraints, be held solidarily liable with CMI for the payment of salary differentials due the complainants? A: NEDA shall be held solidarily liable with CMI for the payment of salary differentials due to the complainants, because NEDA is the indirect Er of said complainants. The LC provides that xxx A person, partnership, association or corporation which, not being an Er, contracts with an independent contractor for the performance of any work, task, job or project" xxx "shall be jointly and severally liabie with his contractor or subcontractor to OF
Pacu{tal
SANTO
TOMAS
de Verecfio CiviC.'
I,~~
6'" ~
Note: Termination pay, after all, is considered as additional remuneration for services rendered to the employer for a certain period of time; it is computed on the basis of length of service. (PNB vs. Cruz, G.R. No. 80593, Dec. 18, 1989)
such Ees (of the contractor or subcontractor) to the extent of work performed under the contract xxx." (Arts. 106 and 107, LC) (2004 Bar Question)
5.
Q: Can the Er require a bond? A: An Er or indirect Er may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees (Ees) should the contractor or subcontractor, as the case may be, fail to pay the same. Where the Er fails to require the contractor or subcontractor to post a bond, the Er must answer for whatever liabilities the contractor may have incurred to his Ees. This is without prejudice to its seeking reimbursement from the contractor for whatever amount it will have to pay the said Ees. (Baguio v. NLRC, G.R. Nos. 79004-08, Oct. 4, 1991)
:
ART. 110 -. WORKER PREFERENCE IN CASE OF BANKRUPTCY Q: What happens if the Er business experiences bankruptcy or liquidation? A: His workers shall enjoy first preference as regards their wages and monetary claims, any provrsion of the law to the contrary notwithstanding. Q: What are the principles preference?
A:
underlying
the
1.
Declaration of bankruptcy or judicial liquidation before enforcement of the worker's preferential right
2.
Filing of claims by workers.
3.
The right does not constitute a lien to the property of the insolvent debtor in favor of workers. (DBP VS. NLRC, G.R. No. 82763 Mar. 19, 1990 and G.R. No. 97176, Mar. 18, 1993)
4.
The preference in favor of the Ees applies to discharge of funds. The preference does not only cover unpaid wages, it also extends to . termination pay and other monetary claims.
Applicable only to ordinary preferred credit, hence, must yield to special preferred credits.
Q: Are workers preferred claims of the Gov't?
than
the
tax
A: No. Art. 110 did not sweep away the overriding preference accorded under the scheme of the Civil Code to tax claims of the gov't. Q: Is worker preference applicable corporation is under rehabilitation?
if the Er-
A: No. Suspension of payments order by the SEC mandates the holding in abeyance the filing or the proceedings on labor cases against an Er who is under rehabilitation to give the Er the chance to concentrate on how to revive his business and not be distracted in trying to defend itself in labor cases filed against it. (Rubberworld, Inc. v. NLRC, G.R. No. 126773, April 14, 1999) Q: Premiere Bank, being the creditormortgagee of XYZ & Co., a garment firm, foreclosed the hypothecated assets of the latter. Despite the foreclosure, XYZ & Co. continued its business operations. A year later, the bank took possession of the foreclosed property. The garment firm's business operations ceased without a declaration of bankruptcy. Caspar, an employee of XYZ & Co., was dismissed from employment due to the cessation of business of the firm. He filed a complaint against XYZ & Co. and the bank. The Labor Arbiter, after hearing, so found the company liable, as claimed by Caspar, for separation pay. Premiere Bank was additionally found subsidiarily liable upon the thesis that the satisfaction of labor benefits due to the Ee is superior to the right of a mortgagee of property. Was the Labor Arbiter correct in his decision? A: No. The preference of credits established in Art. 110 of the LC cannot be invoked in the absence of any insolvency proceedings, declaration of bankruptcy, or judicial liquidation. (DBP v. Santos, G.R. No. 75801, March 20, 1991). (2003 Bar Question)
UST GOLDEN NOTES 2010 Q: Distinguish the mortgage created under the Civil Code from the right of 1 st preference created by the LC as regards e unpaid wages of workers. Explain.
A: A mortgage
directly subjects the property which it is imposed, whoever the oossessor may be, to the fulfillment of the bligation for which it was constituted. It c eates a real right which is enforceable against the whole world. It is therefore a lien an identified real property. .,
.ipon
'{I
,
Aortgage credit is a special preferred credit .rider the Civil Code in the classification of edits. The preference given by the lC when I' t attached to any specific property, is an dinary preferred credit. (1995 Bar Question)
ART. 111. ATTORNEY'S
FEES
Q: What are the limitations to assessment of attorney's lien against culpable party?
the the
2.
In case of unlawful withholding of wages - 10% of the amount of wages to be recovered. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, atty's fees that exceed 10% of the amount of wages recovered.
ote: The prohibition on atty's lien refers to oceedings for recovery of wages and not to services rendered in connection with CBA ~egotiations. In the latter case, the amount of arty's fees may be agreed upon by the parties a d the same is to be charged against union . ds as provided for in Art. 222 of the Labor Code, (Pacific Banking Corp.v. Clave, GR. No. - 965, Mar. 7, 1984) Q: What is ordinary
attorney's
fee?
A: It is the reasonable compensation paid to a awyer by his client for the legal services he as rendered. Q: What is extraordinary
attorney's
Note: Art.111 of the LC deals with the extraordinary concept of attorney's fees. It may not be used as the standard in fixing the amount payable to the lawyer by his client for the legal services he rendered. (Masmud v. NLRC, GR. No. 18338~ Feb. 13,2009) Q: Santiago, a project worker, was being assigned by his Er, Bagsak Builders, to Laoag, !locos Norte. Santiago refused to comply with the transfer claiming that it, in effect, constituted a constructive dismissal because it would take him away from his family and his usual work aSSignments in Metro Manila. The Labor Arbiter (LA) found that there was no constructive dismissal but ordered the payment of separation pay due to strained relations between Santiago and Bagsak Builders plus atty's fees equivalent to 10% of the value of Santiago's separation pay. Is the award of atty's fees valid? reasons for your answer.
A: 1.
(Traders Royal Bank Ee's Union-Independent v. NLRC, GR. No. 120592, Mar. 14, 1997)
fee?
A: It is the indemnity for damages ordered by e court to be paid by the losing party in a r 'gation and is not to be paid to the lawyer but t the client, unless they have agreed that the award shall pertain to the lawyer as an additional compensation or as a part thereof.
State the
A: No, the award of atty's fees is not valid. According to the lC (Art. 111 [a]), atty's fees may be assessed in cases of unlawful withholding of wages which does not exist in the case. The worker refused to comply with a lawful transfer order, and hence, a refusal to work. Given this fact, there can be no basis for the payment of atty's fees. Could the LA have validly awarded moral and exemplary damages to Santiago instead of atty's fees? Why? A: No, moral and exemplary damages can be awarded only if the worker was illegally terminated in an arbitrary or capricious manner. (Nueva Ecija Electric Cooperative inc., Ees' Ass'n., vs. NLRC, GR No. 116066, Jan. 24, 2000; Cruz VS. NLRC, GR. No. 116384, Feb. 7, 2000; Phil. Aeolus etc., VS. NLRC, GR. No. 124617, April 28, 2000). (2001 Bar Question) Q: When can attorney's fees and damages be awarded in an illegal dismissal case? A: For attorney's fees, moral and exemplary damages to be granted, the plaintiff must prove that the facts of his case fall within the enumerated instances in the Civil Code. Thus, moral damages may only be recovered where the dismissal or suspension of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or
UNIVERSITY
OF
Pacu[taa
SANTO
TOMAS
ae !lJerecho CiviC
(:;J .•.
65
LABOR STANDARDS was done in a manner contrary to morals, good customs or public policy. In other words, the act must be a conscious and intentional design to do a wrongful act for a dishonest purpose or some moral obliquity. Exemplary damages, on the other hand, may only be awarded where the act of dismissal was effected in a wanton, oppressive or malevolent manner. (Chaves v. NLRC,G.R. No. 166382, June 27, 2006) Q: What is union service
fee?
A: The appearance of labor federations and local unions as counsel in labor proceedings has been given legal sanction under Art. 222 of the LC, which allows non-lawyers to represent their organization thereof. The said labor federations and local unions have a valid claim to atty's fees which is called the Union Service Fee.
c
Academics
Committee
Chairperson: Abraham D. Genuine II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for LEgOII! & Design: Loise Rae G. Naval
Labor Law Committee S lIo/eci Head' Lester Jay Alan E. Flores II Assistant SlIo/eet Head' Domingo B, Diviva V
Members: Rene Francis P. Batalla . Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Niii.o A, Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee J emuel Paolo M, Lobo Andrew \'1/.Montesa Mana Maica Angelika Roman
66
UST GOLDEN NOTES 2010 :. .
CHAPTER IV PROHIBITIONS REGARDING
'., :, --
ART. 112. NON-INTERFERENCE -IN-DISPOSAL OF WAGES
Q: What is the rule on non-interference disposal of wages?
or
A: No employer (Er) shall: 1. Limit or otherwise interfere with the freedom of any Ee to dispose. of his wages 2. Force, compel, or oblige his Ees to purchase merchandise, commodities or other property from any person, or otherwise make use of any store, or service of such Er or any other person
ART. 113. WAGE DEDUCTIONS
. Q:
A:
11. In court awards, wages may be subject of execution or attachment, but only for debts incurred for food, shelter, . clothing, and medical attendance. (Art. 1703, Civil Code) 12. Salary deduction of a member of a legally established cooperative. (R.A 6938, Art. 59)
WAGES
What Is the rule in wage deductions?
GR: It is strictly prohibited XPN: 1. Deductions under Art. 113 for insurance premiums 2. Union dues in cases where the right of the worker or his union to check off has been recognized by the employer (Er) or authorized in writing by the individual worker concerned (Art 113). Art. 241 (0) provides that special assessments may be validly checkedoff provided that there is an individual written authorization duly signed by every employee (Ee). 3. Deductions for SSS, Medicare and Pag-ibig premiums 4. Taxes withheld pursuant to the Tax Code 5. Deductions under Art. 114 for loss or damage to tools, materials or equipments 6. Deductions made with the written authorization of the Ee for payment to a third person. (Sec 13, Rule VIII, Book 11/of the IRR) 7. Deductions as disciplinary measures for habitual tardiness (Opinion dated March 10, 1975 ofthe SLE). 8. Agency fees under Art. 248(e) 9. Deductions for value of meals and facilities freely agreed upon 10. In case where the Ee is indebted to the Er where such indebtedness has become due and demandable. (Art. 1706, Civil Code)
Q: An explosion in a mine site resulted in the death of 50 miners. At the time of the accident (1) the mining company has not yet paid the wages, OT, holiday and rest day compensation of the deceased miners; (2) all the deceased miners owed the miners Cooperative Union sums of money; (3) the mining company was served by a sheriff writs of garnishment of wages of some of the deceased miners by virtue of final Judgments in several collection suits. After the accident, the wives, paramours, brothers, sisters and parents of the deceased miners filed their claims for unpaid wages, OT, holiday and rest day compensation. The company has acknowledged its obligations. However, it is in a quandary as to how to adjudicate the conflicting claims; and whether it can deduct from the monies due the miners their unpaid debts with the credit union. How will you advise the mining company on the ff: 1) Can the mining company defer payment of the money claims until an appropriate court has ruled on the conflicting claims? 2) Can the mining company deduct from the amount due to each miner an amount equivalent to their debt and remit the same to the credit union?
A:
UNIVERSITY
1.
I will advise the mining company to pay to the respective heirs of the deceased miners whatever the unpaid wages were, OT, holiday and rest day compensation of said deceased miners without the necessity of intestate' proceedings. The claimants, if they are all of age shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs, to the exclusion of all other persons. If any of the heirs is a minor, the affidavit shall be executed on his behalf by his natural guardian or next of kin. The affidavit shall be presented to the OF .sANTO
Pacu{tad
TOMAS
d« (])erecno Civit
~~;
.•
67
employer who shall make payment through the Secretary of Labor (SLE) or his representative. The representative of the SLE shall act as referee in dividing the amount paid among the heirs. (Art. 105 (b), LC) 2.
.
ARTS.116-119·
Q: What are considered unlawful acts? A:
I will advise the mining company not to deduct from the amount due to each miner the amount equivalent to his debt to the credit uuion. The debts of a deceased worker to the credit union is not one of the allowable deductions under the Labor Code (LC), or any rules and regulations of the DOLE. (Art. 113, LC) (1998 Bar Question)
1.
Withholding of any amount, by any person, indirectly or directly, from the wage of a worker or induce the worker to give up any part of his wages by force, stealth, intimidation, thereat or by any other means whatsoever without the worker's consent. (Art. 116)
2.
Make any deductions from the wages of any Ee for the benefit of the Er or his representative or intermediary as consideration of a promise or employment or retention in employment. (Art 117)
3.
Refusal of an Er to payor reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this title or has testified or is about to testify in such proceedings. (Art. 118)
4.
For any person to make any statement, report or record filed or kept pursuant to the provisions of the LC Knowing such statement, report or record to be false in any material aspect. (Art. 119)
Q: What is the rule in check-off?
A: An Er may be compelled to check-off union dues from the wages of his Ee when it has been authorized to do so by the Ee. This is upon the theory that it is necessary to promote the welfare and integrity of the union to which he belongs. It is a forward step to promote social justice as envisaged by our Constitution. (Manila Trading and Supply Co. v. Manila Trading Labor Ass'n, G.R. No. L-5062, April 29, 1953)
ART. 114. DEPOSIT FOR LOSS OR' . DAMAGES .
1
Q: Are Ers mandated to require his Ee to make deposits for loss or damages to materials of the former? \
ART. 125. FREEDOM TO BARGAIN Q: Is the worker free to bargain wages?
A: GR: No deposits damage supplied
Er shall require his worker to make for the reimbursement of loss or to material, equipment, or tools by the Er.
XPN: When the trade, occupation or business of the Er recognizes, or considers the practice of making deductions or requiring deposits necessary or desirable. However, the same does not apply to or permit deposits to defray any deficiency which a taxi driver may incur in the remittance of his boundary. (Five J Taxi v. NLRC, G.R. No. 111474, Aug. 22, 1994)
as regards
A: The question of minimum wage is beyond the sphere of bargaining of the parties. It is not negotiable. Under R.A. 6727, what the law prohibits is bargaining for wages below the floor set by law or Wage Order. The worker is free to bargain for higher wages.
UST GOLDEN NOTES 2010 . .
ART. 12S. PROHIBITION INJUNCTION Q: Does NWPC/RlWPB.
injunction
AGAINST
lie
against
A: No ..Proceedings of the National Wages and Productivity Commission or the RTWPB are beyond the reach of the injunction powers of judicial or quasi-judicial bodies. Q: What is the against injunction?
purpose
~f prohibition
A: In order for the National Wages and Productivity Commission or the RTWPB to perform its powers and functions speedily without regard to unnecessary interventions that may tremendously affect the wage fixing functions. (Poouiz, 2005)
Academics Committee Chairperson: Abraham D. Genuine II Vice-Chair jor Academics: Jeannie J\. Laurentino Vice-Chair jar Admin & Finance: Aissa Celine H. Luna Vice-Chair jar Layout & DeSign: Loise Rae G. Naval Labor Law Committee Subject Head' Lester J ay "\Ian E. Flores II Assistant Subject Head' Domingo B. Diviva V Members:
Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee J emuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
UN!
V E R SIT Y 0 F
Pacu{taa
S P.
N ToT
ae Derecho
0 il: Po S
Civil
~Q~
'.'.
69
LABOR STANDARDS: SPECIAL GROUPS OF EMPLOYEES: TITLE III WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES CHAPTER I . EMPLOYMENT.OF WOMEN
f
, I
!
\
3.
Work is necessary to prevent serious loss to perishable goods
4.
Woman Ees a. Holds a responsible position of managerial or technical nature, or b. Has been engaged to provide health and welfare services
5.
Nature of the work a. Requires .the manual skill and dexterity of women workers and b. The same cannot be performed with equal efficiency by male workers
6.
Women Ees are immediate members of the establishment or undertaking
7.
In analogous cases exempted by the SLE in appropriate regulations. (Art.
Q: What is the coverage of this Title?
A:
GR: It covers all Er, whether operating for profit or not including charitable, religious and educational institutions. (Sec. 1, Rule XII, Book III, IRR) XPNs: 1. GOCCs 2. Ers of househelpers and those in their personal service only insofar as said workers are concerned
Q: What is night work prohibition regard to women workers?
with
131)
A:
Note: The operation of Call Contract Centers which provides offshore case solutions to US based clients who phone in to conduct product inquiries and technical support, operating for 24/7, has been exempted from the prohibition considering the inevitable time difference between the US and the Phi Is. and the peak time for its operation is between 8:00 pm to 10:00 am Manila time, thereby making it necessary for 80% of its Ees, including women, to work during graveyard shift. (BWC-WHSD Opinion No. 491, s.
GR: No woman regardless of age shall be employed or permitted to work, with or without compensation in any:
1.
Industrial undertaking or branch thereof between 10pm and 6am of the following day.
2.
Commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and 6am of the following day
3.
Agricultural undertaking at nighttime unless she is given period of rest not less than 9 consecutive hours.
XPNS: 1. Actual or impending emergencies a. Caused by serious accident, fire, flood, typhoon, earthquake, epidemic, other disasters, or calamity b. To prevent loss of life or property or c. In case of force majeure or d. Imminent danger to public safety
2.
70
Urgent work a. To be performed on machineries, equipment or installations, b. To avoid serious loss which the Er would otherwise suffer
WOMEN
2003)
:
-
ART. --------~---~-132. FACILITIES' FOR WOMEN -- -------
Q: What are facilities
~-
--
for women?
A: SLE may require Ers to: 1.
2. 3. 4.
5.
Provide seats which are proper for women Establish separate toilet rooms and lavatories for men and women Provide at least one dressing room for women Establish a nursery in the establishment Determine appropriate minimum age and other standards for retirement or termination of employment in special occupations such as those of flight attendants and the like
UST GOLDEN NOTES 2010 ,- ART. 134. FAMILY PLANNING Q: .Are Ers mandated planning services?
to
SERVICES
provide
family
A: Ers who habitually employ more than 200 workers in any locality shall provide free family-planning services to employeesspouses which shall include, but not limited to, the application or use of contraceptive pills and intra-uterine devices. (Sec. 11, Rule XII, Book II. IRR of the LC) Q
:'
ARTS. 135 -137 Q: What are women Ee?
the
unlawful
acts
against
A: 1.
2.
Discrimination with respect to the terms and conditions of employment solely on account of sex a. Payment of lesser compensation to a female Ee as against a male Ee for work of equal-value b. Favoring a male Ee with respect to promotion, training opportunities, study and scholarship grants on account of gender. (Art. 135) c. Favoring a male applicant with respect to hiring where the particular job can equally be handled by a woman d. Favoring a male Ee over a female Ee with respect to dismissal of personnel. Stipulating, whether as a condition for employment or continuation of employment: a. That a woman Ee shall not get married, or b. That upon marriage, such woman Ee shall be deemed resigned or separated. (Art. 136) Note: A woman worker may not be dismissed on the ground of dishonesty for having written "single" on the space for civil status on the application sheet, contrary to the fact that she was married. (PT& T Co. v. NLRC, GR. No. 118978, May 23, 1997)
3.
Dismissing, discriminating or otherwise prejudice a woman Ee by reason of her being married. (Art. 136)
4.
Denying any woman Ee provided by law. (Art. 137)
benefits
5.
Discharge any woman for the purpose of preventing her from enjoying any of the benefits provided by law. (Art. 137)
6.
Discharging such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy. (Art. 137)
7.
Discharging or refusing the admission of such woman upon returning to her work for fear that she may again be pregnant. (Art. 137)
Note: Discrimination in any form from preemployment to post employment. including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is unlawful. (Philippine AIDS Prevention and Control Act of 1998, [R.A. 8504]) Under Sec. 2 of R.A. 9710 or the Magna Carta of Women, the State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every member of society. The State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the effectivity of this Act. (Sec. 12. R.A. 9710)
Q: Can an individual,
the sole proprietor of a business enterprise, be said to have violated the Anti-Sexual Harassment Act of 1995 if he clearly discriminates against women in the adoption of policy standards for employment and promotions in the enterprise? Explain. A: When an employer (Er) discriminates against women in the adoption of policy standards for employment and promotion in his enterprise, he is not guilty of sexual harassment. Instead, the Er is guilty of discrimination against women Ees which is declared to be unlawful by the LC. For an Er to commit sexual harassment, he as a person of authority, influence or moral ascendancy should have demanded,
U N I V E R SIT Y 0 F SAN ToT 0 MAS PacuCtaa ae (])ereChO Civif
(:)
'9-
71
LABOR STANDARDS: SPECIAL GROUPS OF EMPLOYEES: WOMEN requested or otherwise required a sexual favor from his Ee whether the demand, request or requirement for submission is accepted by the object of said act. (2003 Bar Question) Q: At any given time, approximately 90% of the production workforce of a semiconductor company are females. 75% of the female workers are married and of child-bearing years. It is imperative that the Company must operate with a minimum number of absences to meet strict delivery schedules. In view of the very high number of lost working hours due to absences for family reasons and maternity leaves, the company adopted a policy that it will employ married women as production workers only if they are at least 35 yrs of age. Is the policy violative of any law? A: Yes, it is violative of Art. 140 of the LC which provides that no employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. (1998 Bar Question) Q: What policy?
A:
is
the
no-spouse
Simbol, 2006) Q: What Rule?
1.
2.
qualification
Q: What Is the BFOQ rule?
To justify a BFOQ the employer must prove two factors: 1. That the employment qualification is reasonably related to the essential operation of the job involved; and 2. That there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable .to properly perform the duties of the job. (Star Paper v.
72
BFOQ
To ensure that the Ee can effectively perform his work So that the no-spouse rule will not impose any danger to business.
A: The prohibition against personal or marital relationships with Ees of competitors companies upon Glaxo's Ees is reasonable under the circumstances because relationships of that nature might compromise the interest of the company. Glaxo does not impose an absolute prohibition against relationships between its Ees and those of competitor companies. Its Ees are free to cultivate relationships with and marry persons of their own choosing. What the company merely seeks to avoid is a conflict of interest between the Ee and the company that may arise out of such relationships. Furthermore, the prohibition forms part of the employment contract and Tecson was aware of such restrictions when he entered into a relationship with Bettsy. (Duncan Asso. of DetailmanPTGWO v. G/axo WeI/come Phil. Inc., G.R. No. 162994, Sep.17, 2004),
employment
A: There must be a finding of any BFOQ to justify an Ers no spouse rule. There must be a compelling business necessity for which no alternative exist other than the discriminating practice.
of the
Q: Tecson was employed by Glaxo as medical representative who has a policy against Ees having relatiOnships against competitor's Ees. Tecson married Bettsy, a Branch coordinator of Astra, Glaxo's competitor. Tecson was transferred to another area. Tecson did not accept such transfer. Is the policy of Glaxo valid and reasonable so as to constitute the aet of Teeson as willful disobedience?
in the same company. May not facially violate Art. 136 of the LC but it creates a disproportionate effect and the only way it could pass judicial scrutiny is by showing that it is reasonable despite the discriminatory albeit disproportionate effect.
XPN: Bona fide occupational rule (BFOQ)
importance
12,
A:
§B: 1. Policy banning spouses from working 2.
is the
G.R., No. 164774, April
. r
ART. 138. CLASSIFICATION OF CERTAIN WOMEN WORKERS Q: Who are covered
under this Title?
A: Any women who is permitted or suffered to work: 1. With or without compensation 2. In any night club, cocktail lounge, massage clinic, bar or similar establishment the effective control or 3. Under supervision of the Er for a substantial period of time 4. Shall be considered as an Ee of such establishment for purposes of labor and social legislation.
,
UST GOLDEN NOTES 2010 ;' ;
-CHAPTER II EMPLOYMENT OF MINORS
~:., ART. ·139. MINIMUM EMPLOYABLE
AGE
GR: 1.
2.
C.
Above 18 - no prohibition
What is the duty of engaging child into work?
No person under 18 years of age will be allowed to be employed in an undertaking which is hazardous or deleterious in nature. . No Er shall discriminate against any person in respect to terms and conditions of employment on account of his age.
XPN: A. Below 15 yrs. Old 1. The child works directly under the sole responsibility of his parents, or guardians who employ members of his family, subject to the following conditions: a. Employment does not endanger the child's safety, health and morals b. Employment does not impair the child's normal dev't c. Er-parent or legal guardian provides the child with the primary and/or secondary education prescribed by the. Dept. of Education 2.
Above 15 but below 18 - may be employed in any non-hazardous work
Q;
Q: What are the general prohibitions?
A:
B.
The child's employment or participation in public entertainment or information through cinema, theater, radio or television is essential provided: a. Employment contract is concluded by the child's parents or legal guardian, b. With the express agreement of the child concerned, if possible, and c. The approval of DOLE, the following must be complied with: i. The employment does not involve advertisement or commercials promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts or exhibiting violence ii. there is a written contract approved by DOLE iii. the conditions provided in the first instance are met.
the
Er
before
A: The Er shall first secure a work permit from the DOLE which shall ensure observance of the requirements. (Sec. 12, R.A. 7160) Q: What is the rule regarding the issuance of work certificatesl permits for children at least 15 but below 18 years of age? A: The issuance of a DOLE Certificate to youth aged 15 to'"below 18 years of age is not required by law. No employer shall deny opportunity to any such youth applying for employment merely on the basis of lack of work permit or certificate of eligibility for employment. Any young person aged 15 to below 18 years of age may present copy of this DOLE advisory to any employer, job provider, government authority, or his/her representative when seeking employment or anytime during employment. (DOLE Department AdviSOry No. 01-08) Q: What is a non-hazardous
work?
A: It is any work or activity in which the Ee is not exposed to any risk which constitutes an imminent danger to his safety and health.
Q: What are hazardous workplaces?
A:
UNIVERSITY
1. Nature of work exposes the workers to dangerous environmental elements, contaminants or work conditions; 2. Workers are engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work, deep-sea fishing, and mechanized farming; 3. Workers are engaged in the manufacture or handling of explosives and other pyrotechnic products; 4. Workers use or are exposed to heavy or power-driven tools.
OF
PacuCtaa
SANTO
TOMAS
de
LABOR STANDARDS: SPECIAL GROUPS OF EMPLOYEES: Q: You were asked by a paint manufacturing company regarding the possible employment as a mixer of a person, agQd 17, who shall be directly under the care of the section supervisor. What advice would you give? Explain briefly. A: I will advise the paint manufacturing company that it cannot hire a person who is aged 17. Art 139 (c) of the LC provides that a person below 18 yrs of age shall not be allowed to work in an undertaking which is hazardous or deleterious in nature as determined by the SLE. Paint manufacturing has been classified by the SLE as a hazardous work. (2002 Bar Question) Q: What are the prohibitions employment of children in advertisements?
on the certain
A: No employment of child models commercial advertisements promoting: 1. Violence 2. Alcoholic beverages 3. Intoxicating drinks 4. Tobacco and its by products
in all
Q: What are the pertinent provisions of the Child and Youth Welfare Code (P.O. 603)?
A:
1.
Art. 107 - Children below 16 years of age may be employed to perform light work which is not harmful to their safety, health or normal development and which is not prejudicial to their studies.
2.
Art. 108 - The Er shall submit to DOLE a report of all children employed by him.
3.
Art. 109 Every Er in any commercial, industrial or agricultural establishment or enterprise shall keep: a. A register of all children employed by him, indicating dates of their birth b. A separate file for the written consent to their employment given by their parents c. A separate file for their educational and medical certificates d. A separate file for special work permits issued by the SLE in accordance with existing laws.
4.
Art. 110 - If a domestic helper is under 16 years of age, the head of the family shall give him an opportunity to complete at least elementary education as required under Art. 71.
Q: What are the provisions on child labor?
A:
1.
2.
MINORS
under the RPC
Art. 273 - Exploitation of Child labor Art. 278 - Exploitation of Minors
Q: A spinster school teacher took pity on one of her pupils, a robust and precocious 12-year old boy whose poor family could barely afford the cost of his schooling. She lives alone at her house near the school after her housemaid left. In the afternoon, she lets the boy do various chores as cleaning, fetching water and all kinds of errands after school hours. She gives him rice and P30.00 before the boy goes home at 7:00 every night. The school principal learned about it and charged her with violating the law which prohibits the employment of children below 15 years of age. In her defense, the teacher stated that the work performed by her pupil is not hazardous, and she invoked the exception provided in the Department Order of DOLE for the engagement of persons in domestic and household service. Is her defense tenable? Reason? A: No, her defense is not tenable. Under Art. 139 of the LC on "minimum employable age", no child below 15 years of age shall be employed except when he works directly under the sole responsibility of his parents or guardian, the provisions of the alleged DO of DOLE to the contrary notwithstanding. A mere DO cannot prevail over the-express prohibitory provisions of the LC. (2004 Bar Question) Q: Determine whether the following minors should be prohibited from being hired and from performing their respective duties indicated hereunder: 1. A 17-year old boy working as miner at the Walwadi Mining Corporation. A: Yes, he should be prohibited from being hired and from performing the duties of a miner because such constitutes hazardous work under D.O. No. 04 Series of 1999. Art. 139 (c) of LC expressly prohibits the employment of persons below 18 years of age in an undertaking which is hazardous or deleterious in nature as determined by the SLE.
UST GOLDEN NOTES 2010 2. An 11-year old boy who is an accomplished singer and performer in different parts of the country. A: No, he should not be prohibited from being hired and from performing as a singer. Under Art. VIII Sec. 12 par. 2 of R.A. 7619 as amended by R.A. 7658, this constitutes an exception to the general prohibition against the employment of children below 15 years of age, provided that the following requirements are strictly complied with: ,1, 1. 2.
3.
the guidelines issued by the SLE. Working as a dealer in a casino is classified as hazardous under D.O. No. 04 Series of 1999 as it exposes children to physical, psychological or sexual abuses. (2006 Bar Question)
The Er shall ensure the protection, health safety and morals of the child The Er shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and The Er shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skill acquisition of the child. Moreover, the cfiild must be directly under the sole responsibility of his parents or guardian and his employment should not in any way interfere with his schooling.
3. A 15-year old girl working as a library assistant in a girls' high school. A: No, she should not be prohibited from working as a library assistant because the prohibition in the LC against employment of persons below 18 years of age merely pertains to employment in an undertaking which is hazardous or deleterious in nature as identified in the guidelines issued by the SLE working as a library assistant is not one of undertakings identified to be hazardous under D.O. No 04 Series of 1999.
Academics Committee Chairperson: ;\braham D. Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
4. A 16-year old girl working as model promoting alcoholic beverages. A: Yes, she should be prohibited from working as a model promoting alcoholic beverages. R.A. 7610 categorically prohibits the employment of child models in all commercials or advertisements promoting alcoholic beverages and intoxicating drinks, among other things. 5. A 17-year old boy working as a dealer in a casino. A: Yes, he should be prohibited from working as a dealer in casino, because Art. 140 of the LC prohibits the employment of persons below 18 years of age in an undertaking which is hazardous or deleterious in nature identified in UNIVERSITY
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee J emuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
OF
PacuCtaa
SANTO
TOMAS
ae lDerecfio CiviC
LABOR STANDARDS: SPECIAL GROUPS OF EMPLOYEES: HOUSEHELPERS CHAPTER III EMPLOYMENT OF HOUSEHELPERS
5.
Non-assignment to commercial, industrial enterprise at a wage lower than that agricultural or workers. (Art. 145)
6.
Ees under 18 years of age shall be given opportunity for at least elementary education. The cost of education shall be part of the HH's compensation, unless otherwise stipulated. (Art 146)
7.
Should be treated in a just humane manner. (Art. 147)
, ----;--- - -----ARTS-:--f41-=1S2.- - ------ ~ ~;-. Q: What service?
A:
is
domestic
or
household
1. 2. 3.
Services in the Ers home Usually necessary or desirable For the maintenance and employment thereof 4. Includes ministering to the personal comfort and convenience of the members of the Ers household 5. Including services of family drivers. Q: Who is a househelper (HH)?
8.
A: A HH is synonymous to domestic servant 1. Any person, male or female 2. Who renders services in and about the Ers home and 3. Services are usually necessary or Desirable for the maintenance and enjoyment thereof, and 4. Ministers exclusively to the personal comfort and enjoyment of Ers family
9.
Q: What are the rights of HHs?
A:
1.
2.
3.
4.
76
Original contract of domestic service shall not last for more than 2 years but it may be renewed by the parties. (Art. 142) Entitled to minimum wage in addition to lodging, food, and medical attendance. (Art. 144) Employment contract should be reviewed every 3 years with the end view of improving the terms and conditions of employment. (Art. 143) SSS benefits for those who are receiving at least Pi ,000 per month. (Art. 143)
with
and
physical
Suitable and sanitary living headquarters as well as adequate food and medical attendance. (Art. 148)
10. Termination of employment should be a. upon expiration of term of employment, or b. based on just cause (Art. 149)
Note: The children and relatives of a HH who live under the Ers roof and who share the accommodations provided for the HH by the Er shall not be deemed as HH's if they are not otherwise engaged as such and are not required to perform any substantial household work. (Sec 3, Rule XII, Book III, IRR) The definition of a HH cannot be interpreted to include househelp or laundry women working in staffhouses of a company. (APEX Mining CO., Inc., v. NLRC, GR. No. 94951, April 22, 1991)
Not to be treated . violence (Art. 147)
a work in a or agricultural or salary rate provided for non-agricuitural
11. Indemnity service
for
unjust
termination
of
12. Employment certification as to nature and duration of service and efficiency and conduct of househelper.
Q: What is the minimum
A:
wage for HHs?
1. P800 a month for HHs in Metro Manila. a month for HHs in other chartered cities or first class 3. P550 a month for HHs in other municipalities.
2. P650
Note: The minimum cash wage rates shall be paid to the HHs in addition to lodging, food and medical attendance. Q; Is there an OT Pay for HHs? A: No. The LC is silent on the grant of OT pay, HP, Premium Pay and SIL to those engaged in the domestic or household service. Moreover Art. 82 of LC expressly excludes domestic helpers from its coverage. (Ultra Villa Food Haus v. Geniston, G.R. No. 120473, June 23,
1999)
UST GOLDEN NOTES 2010 Q: Erlinda worked as a cook, preparing the lunch and merienda of the Ees of Remington Industrial Sales Corp. She worked at the premises of the company. When Erlinda filed an illegal dismissal case, Mr. Tan, the managing director of Remington Corp. claimed that Erlinda was a domestic helper, and not a regular Ee of Remington Corp. Mr. Tan argued that it is only when the househelper or domestic servant is assigned to certain aspects of the business of the Er ~hat ~such househelper or domestic servant may be considered as such an employee. Is Erlinda a domestic or househelper? A: No, Erlinda is clearly not a househelper. A "househelper" or "domestic servant" under the Implementing Rules of the LC is one who is employed in the Er's home to minister exclusively to the personal comfort and enjoyment of the Er's family. A househelper, domestic servant or laundrywoman in a home or in a company staffhouse is different in the sense that in a corporation or a single proprietorship engaged in business or industry or any agricultural or similar pursuit, service is being rendered in the staffhouses or within the premises of the business of the Er. In such instance, they are Ees of the company or Er in the business concerned, entitled to the privileges of a regular Ee. The mere fact that the househelper or domestic servant is working within the premises of the business of the employer and in relation to or in'connection with its business, as in its staffhouses for its guest or even for its officers and Ees, warrants the conclusion that such househelper or domestic servant is and should be considered a regular Ee and not a househelper. (Remington Industrial v. Castaneda, G.R. Nos.
G.R. No. 127864, Dec. 22. 1999), (2000 Bar
Question) ART. 149. INDEMNITY FOR UNJUST TERMINATION OF SERVICE
.
Q: What are the rules for indemnity? A:
1.
2.
3.
If the period for household service is fixed, neither the Er nor the househelper may terminate the contract before the expiration' of the term except for just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for the 15 days by way of indemnity. If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding 15 days.
Q: When can the HH employment certification?
demand
for
A: Upon the severance of the household service relationship, the househelper may demand from the Er a written statement of the nature and duration of the service and his/ her efficiency and conduct as househelper.
169295-96, Nov.20, 2006)
Q: NBC has a resthouse and recreational facility in the highlands of Tagaytay City for the use of its top executives and corporate clients. The resthouse staft includes a caretaker, two cooks and a laundrywoman. All of them are reported to the SSS as domestic or household Ees of the resthouse and recreational facility and not of NBC. Can NBC legally consider the caretaker, cooks and laundrywoman as domestic Ee's of the resthouse and not of NBC? A: No, they are not domestic Ees. They are NBC's Ees because the resthouse and recreational facility are business facilities as they are for use of the top executives and clients of NBC.(Traders Royal Bank v. NLRC, UNIVERSITY
OF SANTO
Pacu(taa
TOMAS
ae (])ereclio CiviC
LABOR STANDARDS: SPECIAL GROUPS OF EMPLOYEES: HOME WORKERS I
,
")
;:
ART. 153. REGULATION OF INDUSTRIAL HOMEWORKERS Q: Who are homeworkers
(HW)?
A: They are those who perform in or about his own home any processing or fabrication of goods or materials, in whole or in part, which have been furnished directly or indirectly, by an Er and sold thereafter to the latter. Q: Who is the Er of HW? A: Includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an Ee, agent contractor, subcontractor or any other person: 1.
2.
Delivers or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions. Sells any goods, articles or materials to be processed or fabricated in or abut a home and then rebuys them after such processing or fabrication, either by himself or through some other person.
Q: Can the Er make earnings?
A:
deductions
XPN: Unless the ft. conditions are met:
2.
3.
4.
78
A: It shall be the duty of the Er to provide in such contract that the Ees or HWs of the contractor and the latter's subcontractor shall be paid in accordance with the LC. Q: What is the liabilty of the Er if the contractor or subcontractor fails to pay the wages or earnings of his Ees? A: Er shall be jOintly and severally liable with the contractor or sub-contractor to the workers of the latter to the extent that such work is performed under such contract, in the same manner as if the Ees or HWs were directly engaged by the Er. Q: Can HWs form labor organizations? A: Yes. DO No.5, replacing Rule XIV of the IRR Book 3 of the LC, authorizes the formation and registration of labor organization of industrial HWs. It also makes explicit the Ers duty to pay and remit SSS, Philhealth and ECC premiums. Q: What are homework?
The HW is clearly shown to be responsible for the loss or damage The Ee is given reasonable opportunity to show cause why deductions should not be made; The amount of such deduction is fair and reasonable and shall not exceed the actual loss or damages; and The deduction is made at such rate that the amount deducted does not exceed 20% of the HW's earnings in a week.
the
prohibitions
against
A: No homework shall be performed on:
on HW's
GR: No Er, contractor or subcontractor shall make any deduction from the HWs earnings for the value of materials which have been lost, destroyed, soiled or otherwise damage.
1.
Q: What is the duty of the Er in case the he contracts with another the performance of his work?
1. 2. 3.
Explosives, fireworks and similar articles; Drugs and poisons; and Other articles, the processing of which requires exposure to toxic substances. (Sec. 13, Rule XIV, Book
1I1,IRR) Q:
Distinguish homeworkers.
A:
HOUSEHELPERS
Minister to the personal needs and comfort of his Er in the latter's home
househelpers
from
HOMEWORKERS Performs in or about his own home any processing or fabrication of goods or materials, in whole or in part, which have been furnished directly or indirectly, by an Er and sold thereafter to the latter.
UST GOLDEN NOTES 2010 Q: Josie is the confidential secretary of the Chairman of the Board of the bank. She is presently on matemity leave. In an arrangement where the Chairman of the Board can still have access to her services, the bank allows her to work in her residence during her leave. For this purpose, the bank installed a fax machine in her residence, and gave her a ceilphone and a beeper. Is Josie a homeworker under the law? Explain. @ ~ A: No, she is actually an office worker. She is not an industrial homeworker who accepts work to be fabricated or processed at home for a contractor, which work, when finished, will be returned to or repurchased by said contractor. (Art. 155,LC) (2000Bar Question)
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Loyout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Asst. Subjed Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee ] emuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
UNIVERSITY
OF SANTO TOMAS I£acu{taa ae
~! .•
79
LABOR RELATIONS LABOR RELATIONS ,.
Q: What is the control test?
POLICY AND DEFINITIONS Q: What is labor relations? A: It refers to the interactions between employer (Er) and employees (Ees) or their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted and enforced. Q: What is labor relations law?
Q: For whose accorded?
A: It defines the status, rights and duties and the institutional mechanisms that govern the individual and collective interactions of Ers, Ees or their representatives. It is concerned with the stabilization of relations of Er and Ees and seeks to forestall and adjust differences between them by the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation and arbitration.
Q: Distinguish
labor
relations
from
labor
standards.
A: :
Labor Relations
Labor Standards
Regulates the relations between Ers and workers
Prescribes the minimum terms and conditions of employment which the Er is required to grant its Ees
Q: What is collective
bargaining
A: Under the control test, an Er-Ee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved, but also the manner and means to be used in reaching that end. It is regarded as the most crucial and determinative indicator of the presence or absence of an Er-Ee relationship. (Almirez v. Infinite Loop Technology Corp., G.R. No. 162401, Jan. 31, 2006, J. Carpio-Morales) benefit
is the control
test
A: For the benefit of the worker. Q: Who has the burden of proof that worker is an Ee of Er? A: Burden is on the part of the worker that he is an Ee but need not prove that he was actually controlled. Note: For control test to apply, it is not essential for the Er to actually supervise the performance of duties of the Ee, it being enough that it has the right to wield the power. (Calamba Medical Center, Inc., vs. NLRC, G.R. No. 176484, Nov. 25, 2008, J. Carpio-Morales) Q: What happens if there is no certainty that the worker under the control test is an Ee? A: Economic reality test will be used to determine whether a worker is an Ee of the Er.
(CB)? Q: What is economic reality test?
A: It is a democratic framework to stabilize the relation between labor and management to create a climate of sound and stable industrial peace. It is the process of negotiation between an Er and Ees' organization or union to reach agreement on the terms and conditions of employment for a specified period. Note: CB process is possible only when there is a labor organization, i.e. Labor union, Ees-ass'n. Q: Can there relationship?
be
CB without
an
Er-Ee
A: No. Er-Ee relationship must exist so that labor relations law may apply within an enterprise. Absent an Er-Ee relation, there is no basis for organizing for purposes of CB since there is no labor relation to speak of.
80
A: It is another important
test of an Er-Ee relationship which inquires whether or not a worker is spending all his time for the Er and is dependent on the latter for his income. Note: There is no problem if worker is controlled by an Er. He is an Ee under the control test.
Q:
What are the rights of workers guaranteed by the 1987 Constitution? A: Sec. 3, Art. X/II of the 1987 Constitution guarantees to all workers their right to: 1. Self - organization; 2. CB and negotiations; 3. Peaceful concerted activities including right to strike in accordance with law; 4. Security of tenure; 5. Humane conditions of work; 6. Living wage; and
UST GOLDEN NOTES 2010 7.
Q: When is a labor organization Er?
Participation in policy and decisionmaking processes involving their rights and benefits as may be provided by law.
deemed an
A: When it is acting as such in relation to persons rendering services under hire, particularly in connection with its activities for profit or gain.
Q: What are the policy objectives of our labor relations law? A: The State aims to promote: 1. Free collective bargaining) (CB) -and negotiations, including voluntary arbitration, mediation and conciliation as modes of settling labor or industrial disputes 2. Free trade unionism 3. Free and voluntary organization of a strong and united labor movement 4. Enlightenment of workers concerning their rights and obligations as union members and as Ees 5. Adequate administrative machinery for the expeditious settlement of labor or industrial disputes 6. Stable but dynamic and ju?t industrial peace 7. Participation of workers in the decision-making processes affecting their rights, duties, and welfare 8. Truly democratic method of regulating the relations between the Ers and Ees by means of agreements freely entered into through CB, no court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as otherwise provided under the LC.
ART. 212. DEFINITIONS Q: Who is an employer (Er)? A: Any person acting in the interest of an Er directly or indirectly. The term does not includ~ a labor organization (LO) or any of its officers and agents, except when acting as an Er. (Art. 212[eJ) An Er is defined as any person or entity that employs the services of others; one for whom work and who pays their wages of salaries; any person acting in the interest of an Er; refers to the enterprise where the LO operates or seeks to operate. (Sec. 1lSi, Rule I, Book V, IRR)
Note: The mere fact that respondent is a labor union does not mean that it cannot be considered an Er for persons who work for it. Much less should it be exempted from labor laws. (Bautista v. inciong, GR. No. L-52824, Mar. 16, 1988) Q: Who is an employee (Ee)?
A:
1.
Any person in the employ of the Er Any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment One who has been dismissed from work but the legality of dismissal is being contested in a forum of appropriate jurisdiction. (D. O. No. 4003, Mar. 15, 2003)
2.
3.
Note: The term shall not be limited to the Ees of a particular Er unless the LC explicitly states. Any Ee, whether employed for a definite period or not, shall, beginning on the first day of service, be considered an Ee for purposes of membership in any labor union. (Art. 277[c), LC) Q: What is a labor dispute? A: Includes any controversy or matter concerning: 1. Terms and conditions of employment, or 2. The association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment 3. Regardless of whether the disputants stand in the proximate relation of Er and Ee. (Art.212[lj)
Q: What
are the tests on whether a controversy falls within the definition of a labor dispute?
A:
UNIVERSITY
1.
As to nature - It depends on whether the dispute arises from Er-Ee relationship, although disputants OF
PacuCtaa
SANTO
TOMAS
de IDerecno Civif
~i~ .'
81
LABOR RELATIONS need not be proximately of another. 2.
As to subject matter - The test depends on whether it concerns terms or conditions of employment or association or representation of persons in negotiating, fixing, maintaining or changing terms or conditions of employment.
Q: What are the kinds of labor disputes?
A:
termination; employment
"Er' or "Ee"
2.
82
Labor standard disputes a. Compensation E.g. Underpayment of minimum wage; stringent output quota; illegal pay deductions b. Benefits - E.g. Non-payment of holiday pay, OT payor other benefits c. Working Conditions E.g. Unrectified work hazards Labor relations disputes Organizational right disputes/ULP - E.g. Coercion, restraint or interference in unionization efforts; reprisal or discrimination due to union activities; company unionism; ULP, strike or lockout; union members' complaint against union officers b. Representation disputes - E.g. Uncertainty as to which is the majority union; determination of appropriate CS unit; contests for recognition by different sets of officers in the same union c. Bargaining disputes E.g. Refusal to bargain; bargaining in bad faith; bargaining deadlock; economic strike or lockout d. Contract administration or personnel policy disputes - E.g. Non-compliance with CSA provision (ULP if gross non compliance with economic provisions); disregard of grievance machinery; non observance of unwarranted use of union security clause; illegal or unreasonable personnel management policies; violation of no-strike/no-Iockout agreement e. Employment tenure disputes E.g. Non-regularization of Ees; non-absorption of labor only contracting staff; illegal
a.
of
Q: Who are the parties to a dispute?
A:
1.
2.
Primary parties are the Er, Ees and the union. Secondary parties are the voluntary arbitrator, agencies of DOLE, NLRC, Secretary of Labor and the Office of the President.
Q: What is an inter-union 1.
non-issuance contract
dispute?
A: Any conflict between and among legitimate labor unions involving representation questions for the purposes of CS or to any other contlict or dispute between legitimate labor unions. Q: What is an intra-union
dispute?
A: Any conflict between and 'among union members, grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union's constitution and by-laws, or disputes from chartering or affiliation of union. Q: What are rights disputes? A: They are claims for violations of a specific right arising from a contract, i.e. CSA or company policies. Q: What are interest disputes?
A: They involve questions on "what should be included in the CSA". Strictly speaking, the parties may choose a voluntary arbitrator to decide on the terms and conditions of employment, but this is impracticable because it will be a value judgment of the arbitrators and not of the parties. Q: What are contract-negotiation
disputes?
A: These are disputes as to the terms of the CSA. Q: What disputes?
are
contract-interpretation
A: These are disputes arising under an existing CSA, involving such matters as the interpretation and application of the contract, or alleged violation of its provisions.
UST GOLDEN NOTES 2010 :,
4.
RIGHT TO SELF ORGANIZATION ART. 24.6. NON-ABRIDGEMENT OF RIGHT " :'[0 SELF ORGANIZATION
5.
"
Q: What is the extent organization?
of the right
to self-
6.
A: It includes the right: 1. To form, join and assist labor organizations for the purpose of collective bargaining (CB:) through representatives of their 'own choosing; and 2. To engage in lawful and concerted activities for the purpose of CS or for their mutual aid and protection. (Art.
7. 8.
246) Q: May the right bargained away? A: No. express cannot Calleja,
9. to self-organization
be
It must be upheld in the absence of provision of the law to the contrary. It be curtailed by a CSA. (SPFL v. GR. No. 80882, April 24, t989)
Q: Who are the persons! a labor CB?
organization
Ees eligible to join (LO) for purposes of
A: The entities covered are all persons employed in: 1. Commercial, industrial, and agricultural enterprises; and 2. Religious, charitable, medical or educational institutions whether operating for profit or not. (Art. 243) Q: Who are the personsl Ees eligible a La for mutual aid and protection?
Members of the AFP including police officers, policemen, firemen, and jail guards. (Sec. 4, E.O. 180) Confidential Ees. (Metrolab Industries Inc. v. Confesor, G.R. No. 108855, Feb. 28, 1996) Ees of cooperatives who are its members (Benguet Elec. Coop. V. Ferrer-Calleja, G.R. No. 79025, Dec. 29, 1989); However they may form worker's association. (NEECO Ees' Assoc. v. NLRC, G.R. No. 16066, Jan.24, 2000) Non-Ees. (Rosario Bros. v. Ople, G.R. No. L-5390, July 31, 1984) Gov't Ees, including GOCCs with original charters (Arizala v. CA, G.R. Nos. 43633-34, Sep. 14, 1990) Aliens without a valid working permit or aliens with working permit but are nationals of a country which do not grant Filipinos to the exercise the right of self-organization and to join or assist labor organizations. (Art. 269 of LC; D.O. NO.9 [1997J, Rule II, Sec. 2)
Q: What is the concept of non-abridgement of right to self organization?
A: It shall be unlawful
for any person to restrain, coerce, discriminate against or unduly interfere with Ees in their exercise of the right to self-organization. (Art. 246) Note: Any act intended to weaken or defeat the right is regarded by law as an offense, which is technically called "unfair labor practice".
to join
A: The following enjoy the right to selforganization for mutual aid and protection: 1. Ambulant workers 2. Intermittent workers 3. Itinerant workers 4. Self-employed people 5. Rural workers 6. Those without any definite Ers. (Art.
243) Q: Who are the personsl Ees not granted the right to self-organization?
A:
1. 2.
3.
High level or managerial gov't Ees. (Sec. 3, E. O. 180) Ees of int'l organizations with immunities. (fCMC v. Calleja, G.R. No. 85750, Sep. 28,1990) Managerial Ees. (Art. 212 of LC) UNIVERSiTY
OF
PacuCtaa
SANTO
TOMAS
de
~.
',.'
83
LABOR RELATIONS: SPECIAL GROUPS OF EMPLOYEES f
Note: It is the nature of the Ee's function and not the nomenclature or title given to his job which determines whether he has a rank-and-file or managerial status. (Eng'g Equipment, Inc. v. NLRC, G.R. No. L-59221, Dec. 26, 1984)
SPECIAL GROUPS OF EMPLOYEES Q: What are the special
groups
of Ees?
A: 1.
2. 3. 4.
5. 6. 7.
;
Managerial and supervisory Ees Confidential Ees Security guards Members of cooperatives Religious objectors Gov't Ees Ees of int'I organizations
MANAGERIAL AND SUPERVISORY EMPLOYEES Q: Who are managerial
Ees?
A: Those vested with the powers and prerogatives to: 1. Lay down and execute management policies; and/or 2. Hire, transfer, suspend, lay-off, recall, discharge, assign or discipline Ees. (Sec. 1[hh), Rule I, Book V, IRR)
Q: Distinguish Labor Standards Relations.
t
Managerial Ees (ME) in from ME in Labor
A: ME under Lab STO Primary duty consists of the management of the establishment in which they are employed or of a department or division.
Includes the officers and members of the managerial staff.
To determine whether or not certain Ees are covered by Book III of the LC on conditions of employment.
I
ME under Lab REL Lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline Ees. Does not include the managerial staff since they are classified as supervisory Ees (may/ may not be eligible to join labor union with rank-and-file Ees) To determine Ees eligibility in joining/forming a labor union.
Q: Does the mere designation of an Ee as "manager" ipso facto make him one? A: No. Designation should be reconciled with the actual job description of the Ee for it is the job description that determines the nature of employment". (APC VS. Farolan, G.R. No. 151370, Oec.4, 2002, J. Carpio-Morales)
84
Q: Who are supervisory
Ees?
A: Those who, in the interest of the Er, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. (Sec. 1, Rule I, Book V, IRR) '
Q: Who are rank-and-file
Ees?
A: Those whose function is neither managerial nor supervisory in nature. Q: Are managerial Ees eligible to join, assist or form any labor organization (LO)?
A:
GR: No, managerial Ees are prohibited to organize for collective bargaining because they are the alter egos of the Ers and thus they are supposed to be on the side of the Er to act as its representatives, and to see to it that its interests are well protected. The Er is not assured of such protection if these Ees are union members. (Bulletin Publishing Co. Inc. v. Sanchez, G.R. No. 74425, Oct. 7, 1986) XPN: They are not prohibited from organizing for other purposes such as for mutual aid and protection. (Pagkakaisa ng mga Manggagawa sa Triumph tnt'! v. Ferrer-Calleja, G.R. No. 85915, Jan. 17, 1990)
Q: Is Art. 245 of the LC a violation of the right to self-organization of managerial Ees? A: No. They are not deprived of the right to organize. Just like any right, the right to selforganization is not an absolute right. It is subject to the police power of the State, as well as to certain limitation. Note: Art. 245 does not absolutely disqualify managerial Ees from exercising their right to association. What it prohibits is merely the right to join labor organizations. Q: May supervisory LO?
Ees form, assist, join a
A: Yes. They may form, assist and join LOs on their own but not with the rank-and-file Ees. (Art. 245, as amended by R.A. 9481)
UST GOLDEN NOTES 2010 If one exercises independent judgment which is not subject to the evaluation of other department heads/superiors, then they may form a LO on their own (separate from the rank-and-file).
Note: A LO composed of both rank-and-file and supervisory Ees is not a LO at all. It cannot for any guise or purpose be considered a legitimate LO. (Toyota Motor Phi/so Corp. v. Toyota Motor Phils Corp. Labor Union, G.R. No. 121084, Feb. 19, 1997)
If their responsibilities do not inherently require the exercise of discretion and independent judgment, then they may join the union composed of the rank-and-file Ees.
Q: What is the reason behind the exclusion of supervisors from unions of rank-and-file Ees at plant level?
Q: What is the test in determinin~ an Ee is managerial or supervisory?
A:
1.
2.
A: Supervisory Ees, while in the performance of supervisory functions, become the alter ego of management in the making and the implementing of key decisions at the submanagerial level. Certainly, it would be difficult to find unity or mutuality of interests in a bargaining unit consisting of a mixture or rankand-file and supervisory Ees. This is so because the fundamental test of a bargaining unit's acceptability is whether or not such a unit will best advance to all Ees within the unit the proper exercise of their CB rights". (TMPLU v. Toyota Motor Phils, GR. No. 135806, Aug. 8, 2002)
whether ~
Whether a person possesses authority to act in the interest of his Er or Whether such authority is not merely routinary or clerical in nature but requires the use of independent judgment.
Note: If recommendatory powers are subject to evaluation, review, and final action of a department head or other higher executives of a company, it is not considered an exercise of independent judgment as required by law. (Baker v. Trajano, G.R. No. L-75039, Jan. 28, 1988) Q: Are professors, associate professors, and assistant professors high-level Ees? A: No. They cannot be considered as exercising managerial or highly confidential functions as would justify their being categorized as "high-level Ees". It is the University Academic Personnel Committee (dean, assistant for academic affairs, and chief personnel) which formulates policies, standards and rules respecting selection, compensation, and promotion. Hence, such Ees are considered as rank and file. (UP v. Ferrer-Calleja, G.R. No. 96189; July 14, 1992)
Q: Is commingling level?
allowed
at the federation
A: Yes. The rank-and-ftle union and the supervisors' union operating within the same establishment may join the same federation or national union. (Art. 245, as amended by R.A. 9481)
CONFIDENTIAL
EMPLOYEES
Q: Who are confidential
Ees?
A: Those entrusted with confidence on delicate matters or with the custody, handling, or care and protection of the Er's property. (NA TU-Republic Planters Bank Supervisors Chapter v. Torres, G.R. No. 93468, Dec. 29, 1994)
Q: What is commingling?
Q: What are the criterias whether one is a confidential
A: It is membership of supervisory and rankand-file Ees in one and the same labor organization.
A:
Q: Is commingling
allowed
at the
2.
plant
level? A: No. Supervisory Ees shall not be eligible for membership in the collective bargaining unit of the rank-and-file Ees. (Art. 245, as amended by R.A. 9481)
1.
to determine Ee?
Assist and act in a confidential capacity, or Have access to confidential matters of persons who exercise managerial functions in the field of labor relations. (Philips Industrial Dev't v. NLRC, G.R No. 161933, June 25, 1992)
Note: The 2 criteria are cumulative, and both must be met if an Ee is to be considered a confidential Ee.
UNIVERSITY
OF
PacuCtaa
SANTO
TOMAS
de (])erecfio
CiviC
( .••.. ~.
-.-
85
LABOR RELATIONS: SPECIAL GROUPS OF EMPLOYEES Q: What does the phrase labor relations" mean?
"in the field
of
LO. (Sugbuanon Rural Bank v. Laguesma, G.R. No. 116194, Feb. 2, 2000) In the case at bar, legal secretaries fall under the category of confidential Ees with no right to self-organization. (Pier & Arrastre Stevedoring Services, Inc. v. Confessor, GR. No. 110854 Feb. 13, 1995) (2002 Bar Question) Q: Is a managerial Ee a confidential Ee?
A: It stresses labor nexus.The confidential information must be related to labor relations matters. When the Ee does not have access to confidential labor relations information, then the prohibition to form, join, or assist a union does not apply. (Sugbuanon Rural Bank v. Laguesma, G.R. No. 116194, Feb. 2, 2000) Note: If an Ee has access to confidential labor relations information but such is merely incidental to his duties and knowledge thereof is not necessary in the performance of such duties, such access does not render the Ee a confidential Ee. (SMC Supervisors and Exempt Union v. Laguesma, G.R. No. 110399, Aug. 15, 1997) Q: May confidential a labor organization
Ees form, assist (LO)?
A: No. The following rules will govern the right of selt-orqanlzation of Jemuel, Genesis, and the other executive secretaries:
2.
86
,
or join
A: No. The disqualification is based on the doctrine of necessary implication which provides that what is implied in a statute is as much part thereof as that which is expressed. Under Art. 245 of the LC, managerial Ees are prohibited from joining, assisting, or forming any LO. But by virtue of necessary implication, confidential Ees are similarly disqualified. (National Association of Trade Union (NA TU) v. NLRC, G.R. No. 93468, Dec.29, 1994) Q: Jemuel is the Executive Secretary of the SVP of a bank while Genesis is the Legal Secretary of the bank's lawyer. They and other executive secretaries would like to join the union of rank-and-file Ees of the bank. Are they eligible to join the union? Why? Explain briefly.
1.
A: Yes. Every managerial position is confidential because one does not become a manager without having gained the confidence of the appointing' authority. But not every confidential Ee is managerial; he may be a supervisory or even a rank-and-file Ee.
No Right to Self-Organization Confidential Ees who act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor- management relation. The 2 criteria are cumulative and both must be met. (SMC Supervisors and Exempt Union v. Laguesma, G.R. No. 110399, Aug. 15, 1997) With Right to Self-Organization When the Ee does not have access to confidential labor relations information, there is no legal prohibition against confidential Ees from forming, assisting, or joining a
SECURITY GUARDS Q: May security organization (LO)?
guards
join
, a
labor
A: Yes. Under R.A. 6715, security guards may now freely join a LO of the rank-and-file or that of the supervisory union, depending on their rank. (Manila Electric Co. v. Sec. of Labor and Employment, G.R. No. 91902, May 20, 1991)
MEMBERS OF COOPERATIVES
I
Q: May members LO?
of a cooperative
join
a
A: No. An Ee of a cooperative who is at the same time a member and co-owner cannot invoke the right to collective bargaining, for certainly an owner cannot bargain with himself or his co-owners. However, to Ees who are neither members nor co-owners of the cooperative they are entitled to exercise the rights to self-organization, CB and negotiation. (San Jose Electric Service Cooperative, Inc. vs. Ministry of Labor, G.R. No. 77231, May 31, 1989) Note: It is the fact of ownership of the cooperative, not the involvement in management, which disqualifies a member from joininq any LO. (Benguet Electric Coop. v. Ferrer-Calleja, G.R. No. 79025, Dec. 29, 1989)
;~. ~.
RELIGIOUS·OBJECTORS.·
_ ""
Q: Victoriano is a member of Iglesia ni Cristo (INC) and an Ee of the company which had a CBA containing a closed-shop provision. A law was passed exempting members of any sect who prohibits affiliation of their members from joining
UST GOLDEN NOTES 2010 any labor organization (LO). Victoriano then resigned but the union opposed and manifested that he should be dismissed due to the closed-shop provision of the CBA. May a member of the INC be compelled to join a labor union under a CSA with a closed-shop proviso? A: No. Members of said religious sect whose teaching forbid membership in a labor union cannot be compelled to join any labor union or refused employment or be dismi~sed f[om their job on the ground that they are' not members of the bargaining unit. The right to join a LO includes the right not to join. Moreover, religious freedom, although not unlimited, is a fundamental personal right and liberty, and has a preferred position in the hierarchy of values. (Victoriano v. Elizalde Rope Workers Union, GR. No.L-25246, Sep.
12, 1974)
Q: May religious objectors form their own union? A: Yes. The right of the members of INC not to join a labor union for being contrary to their beliefs does not bar them from forming their own union. The recognition of the belief of the sect should not infringe on the basic right of self-organization granted by the Constitution. (Kapatiran Sa Meat and Canning Division v. Ferrer-Calleja, G.R. No. L-82914, June 20,
1988)
UNIVERSITY
OF SANTO 'Facu{taa
ae
TOMAS
Verecfio
Civil
87
LABOR RELATIONS: EMPLOYEES IN THE PUBLIC SERVICE , :
ART. 244. RIGHT OF EMPLOYEES PUBLIC SERVICE ART. 276. GOVERNMENT
,
IN THE
EMPLOYEES
Q: Are the Ees in public service the right to self-organization?
covered
by
2.
Ees of gov't corporations established under the Corporation Code shall have the right to organize and bargain collectively with their respective Ers. (Bliss Dev't Corp. Union v, Ferrer-Cal/eja, G.R. No. 80887, Sep. 30, 1994) All other Ees in the civil service shall have the right to form associations for purposes not contrary to law.
Q: Who organization
are allowed to jorn in the public sector?
2. 3. 4.
1.
2.
3.
Agencies of the national gov't and their regional offices, attached agencies and their regional office State universities and colleges GOCCs with original charters LGUs
Can form, Join or assist: 1. Ees' organizations 2, Labor management committees 3. Work councils 4. Other forms of Ees' participation schemes of their own choosing.
Q: When will a corporation the Corporation Code be GOCC?
created deemed
under as a
A: The ownership test has been applied consistently. A corporation shall be deemed a GOCC if the majority of its voting stocks are owned by the gov'!. (Bliss Dev't Corp. Union v. Ferrer-Calleja, G.R. No. 80887, Sep. 30, 1994) Q: Who are those gov't join Ees' organizations?
Ees not allowed
to
A: 1. 2. 3. 4.
88
High-level, coterminous Members of Members of Firemen
highly-confidential Ees the AFP the PNP
and
on the
Gov't Ees shall not be discriminated against by 'reason of their membership in Ees' organizations or participation in the normal activities of their organization. (Sec. 5, E.O. 180) Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the Ees' organizations. (ibid) Gov't authorities shall not interfere in the establishment, functioning or administration of gov't Ees' organization through acts designed to place such organizations under the control of gov't authority. (Sec. 6, E.O. 180)
Q: Who are high level employees
(Ees)?
A: Those who perform managerial such as the exercise of powers to management policies and decisions, transfer, assign, lay-off, recall or Ees. Q: Who are highly-confidential
Note: Eligibility for membership in any Ees' organization shall commence on the first day of Ee's service.
given
A:
Ees
A: AIIEesin: 1,
Jail guards Other personnel who, by nature of their functions, are authorized to carry firearms, except when there is express written approval from management.
Q: What are the protections gov't Ees' right to organize?
A: Yes.
1.
5. 6.
functions formulate or to hire, discipline
Ees?
A: Those who occupy a position which requires a high degree of trust and confidence and close intimacy with the appointing authority or immediate" supervisor which ensures free and open communication without harassment or freedom from misgivings '.of betrayal of personal trust or confidential matters of state. The term is used interchangeably with primarily confidential Ees. Q: Are gov't Ees allowed
to go on strike?
A: No. By reason of the peculiar character of the public service, it must necessarily regard the right to strike given to unions in the private industry as not applying to public Ees. It has been stated that the gov't, in contrast to the private Er, protects the interest of all people in the public service, and that accordingly such conflicting interest as are present in private labor relations could not exist in the relations
UST GOLDEN NOTES 2010 between employ.
the
gov't
and
those
whom
they
Moreover, the CSC declared that the right to self organization accorded to gov't Ees shall not carry with it the right to engage in any form of prohibited concerted activity or mass action causing or intending to cause work stoppage or service disruption, albeit of temporary nature. (Sec. 4, Resolution No. 021316, Oct. 11, 2002; Jacinto v. CA, GR. No. 124540, Nov. 14, 1997)
Q: Because of al/eged "ULPs" by the management of GFI System, a gov'towned and controlled financial corporation, its Ees walked out from their jobs and refused to return to work until the management would grant their union official recognition & start negotiations with them. The leaders of the walk-out were dismissed, and the other participants were suspended for 60 days. In arguing their case before the CSC, they cited the principle of social justice for workers and the right to self-organization and collective action, including the right to strike. They claimed that the Constitution shielded them from any penalty because their walkout was a concerted action pursuant to their rights guaranteed by the basic law. Is the position taken by the walk-out leaders and participants legally correct? Reasonbriefly. A: The position taken by the walk-out leaders and participants is not legally correct. They are gov't Ees, and as such, they do not have the right to strike. According to the actual wording of Sec. 3 of Art. XIII of the Constitution, the State "shall guarantee the rights of all workers to self-organization, CB and negotiations, and peaceful concerted activities including the right to strike in accordance with law." Thus, the last clause of the above-quoted provision of the Constitution makes it very clear: the right to strike is not constitutional, it is statutory because the right should be "in accordance with law". And there is as yet no law giving gOY'! Ees the right to strike.
(2004Bar Question) Q: What are the matters that may be the subject of negotiation?
A:
GR: The employment services may between
organizations and appropriate authorities. (Sec. 13, E. 180)
a
XPN: Those terms and conditions employment that are fixed by law.:-
qov't
of
Q: Distinguish the rights of Ees in GOCCs with original charters from those without original charter.
A:
GOCC wI Original Charter w/o Original Charter Not allowed to strike.
Note: Governed by Civil Service Law. Enjoined by CS Memo Circular 6, under the pain of administrative sanctions from staging strikes, demonstrations, mass leaves, walkouts and other concerted activities. Cannot bargain wi the gov't. concerning the conditions of their employment.
Note:However, they can negotiate (through collective negotiation agreements or MOA) with the gov't. on those terms and conditions of employment wlc are not fixed by law. They have limited bargaining riqhts, Can only join or assist Las for purposes not contrary to law.
Allowed to strike subject to the provisions of the LC. Note: Created under the Corporation Code therefore the Ees have the same rights as those of in the private sector.
Can Bargain. Has unlimited bargaining rights.
Can only join or assist Las for purposes of CBA, etc.
Note: Ees of the gov't corporations incorporated under the Corporation Code and registered with the SEC are governed by the LC and not by E.O. 180. They are allowed to organize because they are not involved in public service and the terms of their employment are not fixed by law.
Q: What are considered as non-negotiable terms and conditions of employment in GOCCswith original charters? A: Those which: 1. Require appropriation of funds 2. Involve the exercise of management prerogatives
terms and conditions of or improvements in gov't be the subject of negotiations duly recognized Ees' UN I V E R SIT Y 0 F SAN
'Facu[taa
ToT
0 M.A ~
de (])erecfio Ctvd
~~::,! 89 ~
LABOR RELATIONS: EMPLOYEES IN THE PUBLIC SERVICE Q: What appropriation
A:
1.
2. 3. 4. 5. 6. 7. 8.
are those of funds?
which
require
Increase in salary and emoluments and other allowance not presently provided for by law Facilities requiring capital outlays Car plan Provident fund Special hospitalization, medical, dental and dental services Rice, sugar and other subsidies Travel expenses Increase in retirement benefits
Q: What are those
negotiable terms and conditions of employment in GOCCs with original charters?
A:
1. 2. 3. 4. 5. 6. 7. 8. 9.
90
Schedule of vacation and other leaves Work assignment of pregnant women Personal growth and development Communication system (lateral and vertical) Provision for protection and safety Provision for facilities for handicapped personnel Provision for first-aid medical services for married women Annual medical/physical examination Recreational, social, athletic and cultural activities and facilities. (Rules implementing E.O. 180)
EMPLOYEES OF INTERNATIONAL ORGANIZATIONS Q: What (IO)?
is an international
organization
A: It is an organization set up by agreement between two or more States. Q: What are specialized
agencies?
A: Are las having functions in particular fields. Q: May Ees of lOs organize? A: Yes.
Q:
May a certification conducted in an 10 which has granted immunity jurisdiction?
election be the Phil. Gov't from local
A: No. The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their int'I character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The . exercise of jurisdiction by the DOLE in these instances would defeat the very purpose of immunity, which is to shield the affairs of int'I organizations, in accordance with int'I practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions. (lCMC v. Calleja, G.R. No. 85750, Sep. 28, 1990)
UST GOLDEN NOTES 2010 f .
i,
_,
I
Note: It does not have any retroactive effect.
ACQUISITION AND RETENTION OF MEMBERSHIP; UNION SECURITY . AGREEMENTS .
2.
Semi-closed shop agreement- The prospective Ee must be a member of the union as a condition of employment and has no requirement for the Ee to remain as a member of the contracting union in good standing as a condition for continued employment.
3.
Union shop - Non-members may be hired, but to retain their employment must become union members after a certain period. (Requirement applies to present and future Ees)
4.
Modified union shop - Ees who are not union members at the time of signing the contract need not join the union, but all workers hired thereafter must join. Maintenance of membership shop No Ee is compelled to join union, but all present and future members must, as a condition of employment, remain in good standing in the union.
Q: Enumerate LC provisions which governs the acquisition and retention of membership in a labor organization? A:
1.
2.
An Ee, whether employed for a definite period or not, shall, beginning on his first day of .setvice, be considered an Ee for ~purpoSes of membership in any labor union. (Art. 277[cJ) Nothing in the LC or in any other law shall stop the parties from requiring membership in a recognized collective bargaining (CS) agent as a condition of employment, except those Ee's who are already members of another union at the time of the signing of the CSA (Art. 248[e])
Q: What is a union security
5.
clause?
A: It is a generic term which is applied to and comprehends "closed shop", "union shop", "maintenance of membership" or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment.
6.
Exclusive bargaining shop - The union is recognized as the exclusive bargaining agent of all Ees in the bargaining unit, whether union members or not.
Note: Inclusion of union security clause in CSA is not considered as ULP.
7.
Bargaining for members only - The union is recognized as the bargaining agent only for its members.
8.
Agency shopl treasury shop - An agreement whereby Ees must either join the union or pay the union as exclusive bargaining agent a sum equal to that paid by the members. (This is directed against "free rider" Ees who benefit from union activities without contributing financially to union support.)
9.
Open shop - An arrangement which does not require union membership as a condition for employment.
Q: What are the principles
of union security
cl ausesl arran gements?
A:
1.
2.
3.
Protection - To shield union members from whimsical and abusive exercise of management prerogatives. Benefits - An additional source of income to the union in the form of union dues and special assessments. Self-preservation - It strengthens the union through selective acceptance of new members on the basis of commitment and loyalty.
Q: What are the kinds
of union
security
agreements?
A:
1.
Closed shop - Only union members can be hired by the company and they must remain as union members in good standing to retain employment in the company.
UNIVERSITY
10. Preferential shop agreement - An agreement whereby the Er merely agrees to give preference to the members of the bargaining union in hiring, promotion or filing vacancies and retention in case of lay-off. The Er has the right to hire from the open market if union members are not available. OF
Pacu(taa
SANTO
TOM.A~
de 1Jerecno
Cl'fJl(
~.! 91
.;
LABOR RELATIONS: MEMBERSHIP Note: The law has sanctioned stipulations for the union shop and the closed shop as a means of encouraging the workers to join and support the labor union of their own choice as their representative in the negotiation of their demands and lhe protection of their interest vis-a-vis the Er. ,(Liberty Flour Mills Ees v. Liberty Flour Mills, G.R. No. 58768-70, Dec. 29, 1989) Q: Is a closed-shop agreement valid? A: Yes. It is true that disaffiliation from a labor union is not open to legal objection. It is implicit in the freedom of association ordained by the Constitution. But a closed shop provision is a valid form of union security, and such provision in a CSA is not a restriction of the right of freedom of association guaranteed by the Constitution. (Villar v. Inciong, G.R. Nos. L-50283-84, April 20, 1983)
Note: In order that the maintenance of membership clause to take effect and entitle the company to dismiss those who did not maintain membership, it must be a clear and unequivocal stipulation that maintenance of membership is a condition for continued employment. (Manila Cordage Co. v. CIR, G.R. No. L-27079, Aug. 31, 1977) Q: Who are the Ees not covered by the closed shop provision?
A: 1.
2.
3. 4.
Any Ee who at the time the closedshop agreement takes effect is a bona fide member of a religious organization which prohibits its members from joining labor unions on religious grounds Ees already in service and already members in a labor union or unions other than the majority union at the time the closed shop agreement took effect Confidential Ees who are excluded from the rank and file bargaining unit Ees excluded from the closed shop by express terms of the agreement.
Q: Victoriano is a member of INC and an
employee of the company which had a CBA containing a closed-shop provision. A law was passed exempting members of, any sect who prohibits affiliation of their members from JOining any labor organization. Victoriano then resigned but the union opposed and manifested that he should be dismissed due to the closedshop provision of the CBA. The further argues that the law impairs obligations and contracts.
92
IN LABOR ORGANIZATIONS Is the dismissal of the Victoriano due to the closed-shop proviso proper? A: No. Members of said religious sect whose teaching forbid membership in a labor union cannot be compelled to join any labor union or refused employment or be dismissed from their job on the ground that they are not members of the bargaining unit. Moreover, religious freedom, although not unlimited, is a fundamental personal right and liberty, and has a preferred position in the hierarchy of values. (Victoriano v. Elizalde Rope Workers Union, GR. No.L-25246, Sep. 12, 1974) Q: A CBA was entered into between the company and the union containing a closed shop proviso. Santos was already an Ee of the company prior to the effectivity of the CBA. He was required by the company to join the Union. Santos was dismissed due to his refusal to join the union. Is the closed-shop proviso in the CBA applicable to old Ees? A: Yes. The closed-shop proviso of a CSA entered into between the bargaining union and Er is applicable to the old Ees provided they are not members of any LO at the time the CSA was entered into. On the other hand, an Ee who is already a member of another union at the time the CSA took effect cannot be compelled to be a member of the current bargaining agent. (Santos-Juat v. CIR, G.R. No. L-20764, Nov. 29, 1965) Q: In a certification election conducted by the DOLE, Associated Workers Organization in Laguna (AWOL) headed by Bastian Flores, won over Pangkat ng mga Manggagawa sa Laguna (PML), headed by Martin Ortiz. Hence,AWOL was certified as the exclusive bargaining agent of the rankand-file Ees of the Laguna Transportation Company (LTC).
Shortly thereafter, a CBA was concluded by LTC and AWOL which provided for a closed shop. Consequently, AWOL, demandedthat Martin Ortiz and all the PML members be required to become members of AWOL as a condition for their continued employment. Otherwise, they shall be dismissed pursuant to the closed shop provision of the CBA. The union security clause of the CBA also provided for the dismissal of Ees who have not maintained their membership in the union. For one reason or another, Ruben Simbulan, a member of AWOL, was expelled from the union membership for
UST GOLDEN NOTES 2010 acts inimical to the interest of the union. Upon receipt of the notice that Ruben Simbulan failed to maintain his membership in good standing with AWOL, LTC summarily dismissed him from employment.
b.
5. Can Martin Ortiz and all the PML members be required to become members of the AWOL pursuant to the closed shop provision of the CBA? Why? (:j
bases for the request of the union The termination of the services of the Ee is not automatic upon the request of the union.
It cannot be applied to Ees who are already members of the rival union or to the Ees based on their religious belief.
..••
A: Martin Otiz and all the PML members can not be required to become members of AWOL pursuant to the closed shop provision of the CBA. According to Art 248(e) of the LC, a closed shop provision cannot be applied to those Ees who are already members of another union at the time of the signing of the CBA. Q: Is the termination from employment of Ruben Simbulan by LTC lawful? Why? A: Pursuant to the closed shop provision of the CBA entered into by AWOL with LTC, membership in AWOL has become a condition of employment in LTC. As long as the expulsion of Ruben Simbulan from AWOL was done in accordance with applicable provisions of law and with the Constitution and By-laws of the AWOL, then it was lawful for LTC to terminate Simbulan. (Ferrer v. NLRC, G.R. No. 100898, July 5, 1993) (1999 Bar Question) Q: What are the requirements for a valid termination by the Er of the services of an Ee pursuant to a union or closed-shop agreement?
A:
....,..,.... ~ ...
".
~
..
Academics Committee Chairperson: Abraham D. Genuino II Vice· Chair for .Acadermcs: Jeannie A. Laurentino Vice-Char jor Admin & Fillallce: Aissa Celine H. Luna Vice-Chair jor Lryout & Desigll: Loise 'Rae G. Naval
Labor Law Committee 1.
The agreement must be expressed in a clear and unequivocal way so as not to leave room for interpretation because it is a limitation to the exercise of the right to self organization.
2.
Any doubt must be resolved against the existence of a closed-shop agreement.
3.
The agreement can only have prospective application and cannot be applied retroactively.
4.
It can only be exercised by giving the Ee his right to due process a. The Er has the right to satisfy himself that there are sufficient UNIVERSITY
Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Mana Kristina L. Dacayo-Garcia Christian Nino A Diaz ,\ngelo S. Diokno Genesis R. Fulgencio Jeanelle C Lee Jemuel Paolo M. Lobo Andrew W. Montesa Mana Maica Angelika Roman
OF
Pacu(tarI
SANTO
TOMAS
rIe (])erecno CiviC
~" .••...• ~
~.
03 '7
LABOR RELATIONS: LABOR ORGANIZATIONS ~,"
L~BORORGANIZATIONS
Q: What is a labor organization
"
affiliates each of which must be a duly certified or recognized CB agent.
(LO)? - A group of labor unions in a private establishment organized for CB or for dealing with Er concerning terms and conditions of employment for their member unions or for participating in the formulation of social and employment policies, standards and programs, registered with the BLR in accordance with the implementing rules. (Sec. 1 [kk), Rule 1, Book V, Omnibus Rules)
A: It is any union or association of Ees which exists in whole or in part for the purpose of collective bargaining (CB) or of dealing with Ers concerning terms and conditions of employment. (Art.212{gJ) Any union or association of Ees in the private sector which exist in whole or in part for the purpose of CB, mutual aid, interest, cooperation, protection or other lawful purposes. (Sec.1{ce), Rule 1, Book V, Omnibus Rules) Q: What is a legitimate (LLO)?
4.
Affiliate - An independent union affiliated with a federation, national union, or a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation, reported to the Regional Office (RO) and the BLR in accordance with this Rules. (Sec. 1 [a), Rule 1, Book V, IRR)
5.
Chartered local - A LO in the private sector operating at the enterprise level that acquired legal personality through the issuance of a charter certificate by a duly registered federation or national union, and reported to the RO. (Sec. 1 [i], Rule I, Book V, IRR)
6.
Industry union - Any group of LLO operating within an identified industry, organized for CB or for dealing with Ers concerning terms and conditions of employment within an industry or for participating in the formulation of social and employment policies, standards, and programs in such industry registered with DOLE.
7.
Legitimate worker's association - An association of workers organized for the mutual aid and protection of its members or for any purpose other than CB registered with the DOLE. (Sec. 1 (ft], Rule 1, Book V, IRR)
8.
Trade union center - Means any group of registered national unions or federations organized for the mutual aid and protection of its members, for assisting such members in CB or for participating in the formulation of social and employment policies, standards and programs duly registered with the DOLE. (SMCEU v. San Miguel Packaging Products Ees Union, G.R. 171153, Sep. 12, 2007)
labor organization
A: Any LO in the private sector registered or reported with the DOLE. (Sec.1[ee), Rule I, Book V, IRR) The term includes a local/chapter of the Bureau of Labor Relations directly chartered by a legitimate federation or national union which has been duly reported to the DOLE in accordance with Sec. 2, Rule VI, Book V, IRR
of LG.
Note: Not every LLO can act as bargaining representative and be certified as such. This is true only of a union that has won in certification election or has been voluntarily recognized by the employer. Q: What is a company union? A: It is any LO whose formation, function or administration has been assisted by any act defined as unfair labor practice under the LC.
Q: What are the classifications
A:
1.
2.
3.
94
of LOs?
Union - Any LO in the private sector organized for collective bargaining (CB) and for other legitimate purposes. (Sec. 1 [zz), Rule 1, Book V,IRR) Independent union Any LO operating at the enterprise level whose legal personality is derived through an independent action for registration with the Bureau of Labor Relations (BLR) of DOLE prescribed under Art.234. (Sec. 1 [w), Rule 1, Book V, IRR) National union/federation - Any LO with at least 10 locals/chapters or
UST GOLDEN NOTES 2010 9.
Worker's association - An association of workers organized for mutual aid and protection of its members for any legitimate purpose other than CB.
;-ART. 231. REGISTRY OF UNIONS AND fiLE OF ~OLtECTIVE,B~RGAINING . ' L' •. " .~~.' AGREEMENTS' , ;"
r: "
Q: What is the nature of a CBA?
o
A: It is more than a contract; it is highly impressed with public interest for it is an essential instrument to promote industrial peace. (TUP v. Laguesma, G.R. No. 95013, Sep.21, 1994) Q: When, registered?
A:
1.
2.
3. 4.
5.
where
and
how
is
a
required
ART. 234. REQUIREMENIS ~ ',;' REGISTRATION'" -
for the validity
of
A: No. The certification of the CBA by the BLR is not required to put a stamp of validity to such contract. Once it is duly entered into and signed by the parties, the CBA becomes effective as between the parties regardless of whether or not the same has been certified by the BLR. (Liberty Flour Mills Ees v. Liberty Flour Mills Inc., G.R. Nos. 58768-70, Dec. 29,
OF
~
- _.
Q: Is registration necessary?
of a labor
'.'
"
-
organization
A: No. A La may be registered or not. Q: What is the purpose
of registration?
A: Registration with the BLR is the operative act that gives rights to a labor organization (La). 1.
CBA
The parties shall submit, within 30 days from execution, copies of the CBA directly to the Bureau of Labor Relations (BLR) or Regional Offices (RO) of the DOLE. it must be accompanied by the ff: a. Verified proof of posting in 2 conspicuous places in the place of work; b. Verified proof of ratification by the majority of all workers in the bargaining unit. Action upon the application for registration within 5 calendar days from receipt thereof. The RO shall furnish the BLR with a copy of the CBA within 5 days from its submission. The BLR or RO shall assess the Er for every CBA. A registration fee of not less than P1,000.00 or any amount deemed appropriate by the Secretary of Labor. Issuance of certificate of registration.
Q: Is registration the CBA?
'.
It is the fact of being registered with the DOLE that makes a La legitimate in the sense that it is clothed with legal personality to claim representational and bargaining rights enumerated in Art. 242 or to strike or picket under Art. 263. Note: A union having been validly issued a certificate of registration should be considered to have already acquired juridical personality which may not be assailed collaterally. (THIGCI v. THEU-PGTWO, G.R. No. 142000, Jan. 22, 2003, J. Carpio-Morales)
2.
The req't of registration is not the curtailment of the right to association. It is merely a condition sine qua non for the acquisition of legal personality Las, associations or unions and the possession of the rights and privileges granted by law to Las.
3.
It is a valid exercise of police power since the activities in which Las, associations, or. unions of workers are engaged affect public interest. (PAFLU v. Sec. of Labor, G.R. No. L22228, Feb. 27, 1969)
Q: What is registered?
the
effect
if
a LO
is
not
A: A La is not "illegitimate" just because it is unregistered. It is still a lawful organization and can deal with the Er, but it has no legal personality to demand CB with the Er. It cannot petition for a certification election and cannot hold a legal strike.
1989)
UNIVERSITY
OF
If'acu(taa
SANTO
TOMAS
ae !Derecfio CiviC
LABOR RELATIONS: LABOR ORGANIZATIONS Q: What are the req'ts for the issuance of the certificate of registration of a national federation, national union or industry or trade union center or an independent union?
A:
1. 2.
3.
4.
5.
P 50.00 registration fee Names of its officers, their addresses, the principal address of the LO, the minutes of the meeting of the organizational meetings and the list of the workers who participated in such meetings In case the applicant is an independent union, the names of all the Ees in the bargaining unit where it seeks to operate If the applicant union has been in existence for one or more years, copies of its annual financial reports and 4 copies of the constitution and bylaws of the applicant union, minutes of its adoption or ratification and the list of the members who participated in it. (Sec. 1, R.A. 9481)
3.
Note: Under the LC and the rules, the power granted to LOs to directly create a chapter or local through chartering is given to a federation or national union only, not to a trade union center. (SMCEU v. San Miguel Packaging Products Ees Union, G.R. No. 171153, Sep. 12,2007) Q: Where is the application filed',?
Q: How is a local chapter
created?
A: A duly registered federation or national union may directly create a local/ chapter by issuing a charter certificate indicating the establishment of a local/chapter. 1.
The' chapter personality only a petition for from the date it certificate
shall acquire legal for purposes of filing certification election was issued a charter
2.
The chapter shall be entitled to all other rights and privileges of a legitimate labor organization (LLO) only upon the submission of the following documents in addition to its charter certificate: a. Names of the chapter's officers, their addresses, and the principal office of the chapter b. Chapter's constitution and bylaws c. Where the chapter's constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly
for registration
A: 1.
2. , ART. 234-A. CHARTERING AND CREATION . OF A LOCAL CHAPTER (as Inserted by R.A. 9481)
The genuineness and due execution of the supporting requirements shall be: a. Certified under oath by the secretary or treasurer of the local/chapter, and b. Attested to by its president. (Sec.2{e), Rule 11/,Book V, IRR, as amended by D. O. 40-F-03)
Independent labor unions, chartered locals or worker's associations - It is filed with the Regional Office (RO). where the applicant principally operates. It shall be processed by the Labor Relations Division at the RO. Federations, national unions or worker'S association operating in more than one region - It is filed with the BLR of the RO, but shall be processed by the BLR.
Q: What is the duty of the BLR after a LO had filed the necessary papers and documents for registration? A: It becomes mandatory for the BLR to check if the req'ts under Art. 234 of the LC have been sedulously complied with. If its application for registration is vitiated by falsification and serious irregularities, especially those appearing on the face of the application and the supporting documents, a LO should be denied recognition as a LLO. (Progressive Dev't Corp.-Pizza Hut v. Laguesma, et.a/., G.R. No. 115077, April 18, 1997) Q: Within what period should the BLR act on the applications submitted before it? A: It shall act on all applications for registration within 10m days from receipt either by: 1. Approving the application and issuing the certificate of registration/acknowledging the notice/report; or 2. Denying the application/notice for failure of the applicant to comply with the requirements for registration/notice (D. O. 40-03, Rule IV, Sec.4, series of 2003)
UST GOLDEN NOTES 2010 Note: All requisite documents shall be: 1. Certified under oath by the secretary or treasurer of the organization, as the case may be and 2. Attested to it by its President. Q: May the BLR review certificate of registration?
the issuance
of a
A: No. The SLR has the duty to review the application for registration not the issuance of a certificate of registration. Q: Why is a lesser requirement a chartered local?
imposed
6.
for
A: The intent of the law in imposing lesser req'ts in the case of branch or local of a registered federation or national union is to encourage the affiliation of a local union in order to increase the local union's bargaining power respecting terms and conditions of labor. (Progressive Dev't Corp v. SLE, G.R. No. 96425, Feb. 4, 1992) Q: What are the req'ts before a federation can be issued a certificate of registration? A: The application for registration of federations and national unions shall be accompanied by the following documents: 1. A statement indicating the name of the applicant labor union, its principal address, the name of its officers and their respective addresses; 2. The minutes of the organizational meeting(s) and the list of Ees who participated in the said meeting(s); 3. The annual financial reports if the applicant union has been in existence for 1 or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included in the application; 4. The applicant union's constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting(s). In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting(s); 5. The resolution of affiliation of at least 10 LLOs, whether independent unions or chartered locals, each of which must be a duly certified or recognized bargaining agent in the
establishment where it seeks to operate; and The name and addresses of the companies where the affiliates operate and the list of all the members in each company involved. (D. O. 40-03, Rule, III, Sec. 2-8, series of 2003)
Q:
What affiliation?
are
the
requirements
for
A: The report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by the following documents: . 1. Resolution of the labor union's board of directors approving the affiliation; 2. Minutes of the general membership meeting approving the affiliation; 3. The total number of members comprising the labor union and the names of members who approved the affiliation; 4. The certificate of affiliation issued by the federation in favor of the independently registered labor union; and notice to the employer 5. Written concerned if the affiliating union is the incumbent bargaining agent. (D.O. 40-03, Rule, III, Sec. 7, series of 2003) Q: What is the effect of affiliation? A: The labor union that affiliates with a federation is subject to the laws of the parent body under whose authority the local union functions. The constitution, by-laws and rules of the mother federation, together with the charter it issues to the local union, constitutes an enforceable contract between them and between the members of the subordinate union inter se. Thus, pursuant to the constitution and by-laws, the federation has the right to investigate and expel members of the local union. (Villar v. Inciong, G.R. No. L50283-84, April 20, 1983) Q: Maya local federation?
A:
UNIVERSITY
union
disaffiliate
from
the
GR: A labor union may disaffiliate from the mother union to form an independent union only during the 60-day freedom period immediately preceding the expiration of the CSA. XPN: Even before the onset of the freedom period, disaffiliation may still, be carried out, OF
Pacu{taa
SANTO
TOMAS
ae CDerecno CiviC
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·9·
97
LABOR RELATIONS: LABOR ORGANIZATIONS A: Yes. The pendency of an election protest does not bar the valid disaffiliation of the local union which was supported by the majority of its members.
but such disaffiliation must be effected by the majority of the union members in the bargaining unit. Note: This happens when there is a substantial shift in allegiance on the part of the majority of the members of the union. In such a case, however, the CSA continues to bind the members of the new or disaffiliated and independent union up to determine the union which shall administer the CSA may be conducted. (ANGLO-KMU v. Samahan ng Manggagawang Nagkakaisa sa Manila Bay Spinning Mills at J.P. Coats, G. R. No.118562, July 5, 1996) Q: What is the limitation
The right of a local union to disaffiliate with the federation in the absence of any stipulation in the constitution and by-laws of the federation prohibiting disaffiliation is well settled. Local unions remain as the basic unit of association, free to serve their own interest subject to the restraints imposed by the constitution and bylaws of national federation and are free to renounce such affiliation upon the terms and conditions laid down in the agreement which brought such affiliation to existence. In the case at bar, no prohibition existed under the constitution and by-laws of the federation. Hence, the union may freely disaffiliate with the federation. (Philippine Sky/anders v. NLRC, G.R. No. 127374, Jan. 31, 2002)
to disaffiliation?
A: Disaffiliation should be in accordance with the rules and procedures stated in the constitution and by-laws of the federation. A local union may disaffiliate with its mother federation provided that there is no enforceable provision in the federation's constitution preventing disaffiliation of a local union. (Tropical Hut Ees Union v. Tropical Hut, G.R. Nos. L-43495-99, Jan. 20, 1990) Note: A prohibition to disaffiliate in the Federation's constitution and by-laws is valid because it is intended for its own protection. Q: What is the effect of cancellation of registration of a federation or a national union?
A:
GR: It shall operate to divest locals/chapters of their status as LLO.
its
XPN: Locals/chapters retain status as LLO if they arecovered by a duly registered CSA. Note Locals or chapters who retained status as LLO shall be allowed to register as independent unions. If they fail to register, they shall lose their legitimate status upon the expiration of the CSA. Q: PSEA is a local union in Skylander company which is affiliated with PAFLU. PSEA won the certification election among the rank and file Ees of the Skylander company but its rival union PSEA-WATU protested the results. Pending the resolution of such controversy, PSEA disaffiliated with PAFLU and hence affiliated with NeW which was supported by its members. May a local union disaffiliate with its mother federation per1ding the settlement of the status as the sole and exclusive bargaining agent?
98
Q: Distinguish between an independently registered and unregistered chartered local union.
: :
A:
l
CHARTERED LOCAL UNION Independently U· t d Registered nreqrs ere
~ By signing contract of affiliation
By application of with the federation for the issuance of a charter certificate to be submitted to the BLR
iii !;'!~f1tl~~OfDisalfiliittlti1i'tq!fhff:~U.ftIQ.ri.:(IQc"aJ),··. Would not affect its being a LLO and therefore it would continue to have legal personality and to posses all rights and privileges of LLO.
Would cease to be LLO and would no longer have the legal personality and the rights and privileges granted by law to LLO, unless the local chapter is covered by its duly registered CBA.
'/' ;" ii' f~c}fE"ff.ectofrti$~fffU.atio'i.to:th~CBll'.
An existing CBA would continue to be valid as the LO can continue administering then CBA.
.'
The CSA would continue to be valid. The local chapter will not lose its personality, unless it registers a new.
!
!h,:EJititl~mljn.fZtp.\;('iiltQ"aiiei;ilf1'ef;;£)1$~ffi(iiltioH.· ...• LO entitled to the union dues and not the federation from which the LO disaffiliated.
Union dues may no longer be collected as there would no longer be any labor union that is allowed to collect such union dues from the Ees.
UST GOLDEN NOTES 2010 ~ART. 236. DENIAL OF REGISTRATION . Q: What is the form of the decision denial of application for registration?
of the
Q: What is the effect of a petition cancellation or of union registration?
A: It shall be: 1. In writing; 2. Stating in clear terms the reason for the decision; and 3. Applicant union must be furnished a copy of said decision. <0
Q: Is the denial of registration
...•
appealable?
A: Yes. 1. 2.
3.
4.
Decisions of the Regional Office shall be appealable to the BLR and CA. The BLR's decisions on cases appealed from Regional Director are final and not appealable to the SLE. Decisions of the BLR denying the registration of a LO (federation or national union) is appealable to the SLE within 10 days from receipt of the decision, on grounds of: a. Grave abuse of discretion; or b. Gross incompetence. Decision of SLE appealable to CA.
Q: How is appeal taken with regard denial or cancellation of registration?
ART. 238-A. -EFFECT OF A PETITION" FOR CANCELLATION OF REGISTRATION for
A: It shall not suspend the proceedings for certification election (CE) nor shall it prevent the filing of CEo In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts. Q: Where is a petition for cancellation of registration or application for voluntary dissolution filed?
A:
1.
For legitimate independent labor unions, local/chapter and worker's association - It shall be filed with the Regional Office which issued its certificate of registration or creation.
2.
For federations, national and trade union centers filed with the BLR. (Sec. Book V, IRR as amended F-03)
to
Q: Who may file a petition
or industry - It shall be 1, Rule XIV, by 0.0.40-
for cancellation
of registration?
A:
1.
For legitimate individual labor union, chartered local and worker's association - Any party-in-interest may file a petition for cancellation of registration if the ground is: a. Failure to comply with any of the req'ts under Art. 234, 237 and 238 of the LC. b. Violation of any provision under Art. 239, LC.
2.
For federations, national or industry unions, trade union centers - Only members of the labor organization (LO) concerned may file if the grounds are actions involving violations of Art. 241, subject to the 30% rule.
SLE decides on the matter within 20 days from receipt of records
Note: Appeal is by memo of appeal within 10 days from receipt of notice.
ART. 238. CANCELLATION REGISTRATION
Q:
Who registration?
cancels
the
OF
certificate
of
A: The certificate of registration of any LLO, whether national or local, may be cancelled by the BLR, after due hearing, only on the grounds specified in Art. 239. (as amended by R.A. 9481)
UN IV
Q: What is the effect of cancellation of registration if the cancellation is made in the course of the proceedings? A: Where a labor union is a party in a proceeding and later it loses its registration permit in the course or during the pendency of the case, such union may continue as party E R SIT
Y 0 F
PacuCtaa
5
ANT
0 TOM
AS
ae (])erecno CiviC
~~
.•
99
LABOR RELATIONS: LABOR ORGANIZATIONS without need of substitution of parties, subject however to the understanding that whatever decision may be rendered will be binding only upon those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits. Note: Rationale: Principle of agency is applied the Ees are the principals, and the LO is merely an agent of the former, consequently, the cancellation of the union's registration would not deprive the consenting member-Ees of their right to continue the case as they are considered as the principals.
i ;
ART. 239. GROUNDS FOR CANCELLATION OF UNION REGISTRATION '" Q: What are the grounds union registration?
for cancellation
2.
Misrepresentation, false statement or fraud in connection with the: a. Adoption or application of the constitution and' by-laws or amendments thereto b. Minutes of ratification and c. List of members who took part in the ratification; d. Election of officers e. Minutes of the election of officers and f. List of voters (Art. 239 as amended) Voluntary members.
dissolution (as amended
by by
ART.239-A. VOLUN"A~y.CA~CELLATION :, ~"",',. ".,' .- ~'';.OE€RE~I,Sl:~TleN '/..'" ".:' .' . :'"'i~ t_
Q: How is voluntary cancellation of registration made? A: Registration may be cancelled by the organization itself provided: 1. At least % of its general membership votes todissolve the organization, in a meeting duly called for that purpose; and 2.
of
A: 1.
be a ground to cancel registration of either union. (Sec. 6, Rule XIV, Book V, as inserted by D. O. 40-F-03)
the R.A.
9481)
Q: What are the "reportorial requirements" required to be submitted by a legitimate labor organization (LLO) ? A: The following documents are required to be submitted to BLR by the Ll.O concerned: 1.
Within 30 days from adoption or ratification of the constitution and by laws (CBl) or amendments thereto: a. CBl or amendments thereto b. Minutes of ratification c. List of members who took part in the ratification of the constitution and by-laws;
2.
Within 30 days from date of election or appointment: a. List of elected and appointed officers and agents entrusted with the handing of union funds b. Minutes of election of officers c. List of voters
3.
Annual financial report within 30 days after the close of every fiscal year
4.
List of members at least once a year or whenever required by the Bureau. (Sec. 1, Rule V, Book V, IRR, as amended by D.O. 40-F-03)
Note: A pronouncement as to the legality of the strike is not within the meaning of Art. 239 of the LC.
Q: What are the prohibited grounds cancellation of union registration?
for
A: 1.
2.
100
The inclusion as union member of Ees who are outside the bargaining unit shall not be a ground to cancel the union registration. The ineligible Ees are automatically deemd removed from the list of membership of the union as. (Art. 245-A as amended by RA 9481) The affiliation of the rank-and-file and supervisory unions operating within the same establishment to the same federation or national union shall not
An application to cancel registration is thereafter submitted by the' board of the organization, attested by its president.
Note: Failure to submit reportorial requirements is no longer a ground for cancellation but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty (Art. 242-A, as inserted by R.A. 9481).
UST GOLDEN NOTES 2010 . :
ART. 241. RIGHTS AND CONDITIONS MEMBERSHIP IN A LABOR ORGANIZATION
a.
OF
Q: What is the nature
of the relationship between the union and its members?
A: It is fiduciary in nature, and arises out of 2 factors: 1. Degree of dependence of the individual Ee on the union organizatien and ~ ~ 2. The comprehensive power vested in the union to the individual. Q: What are the rights and conditions of membership in a labor organization (LO)?
A: 1.
Political right a. Right to vote b. Right to be voted for Note: Both are subject to provisions on qualifications disqualificatiens
2.
3.
lawful and
Deliberative and decision-making right a. Right to' participate in deliberations on major policy questions b. Right to decide on such major policy questions by secret ballet Rights over money matters a. Right against: i. Excessive fees ii. Unauthorized collection iii. Unauthorized disbursements b.
Right to: Require adequate records of income and expenses ii. Access financial records iii. Vote on officer's compensation iv. Vote on proposed special assessments v. Deduction of special assessments only with written authorization from member i,
4.
5.
Right to information - Right to be informed about the organization's constitution and by-laws and the CSA and about labor laws
LOs cannot knowingly admit or continue in membership any individual who belongs to a subversive organization er engaged directly or indirectly in any subversive activity b. A member who has been convicted for a crime of moral turpitude (by final judgment) is ineligible fer election or appointment in the union c. Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer and entered into the record of the erganization d. Every income shall be evidenced by a record shewing its source. Every expenditure shall be evidenced by a receipt from the person who was paid. The receipt shall state the date, place and purpose of such payment. Q: When, how and under what conditions does an Ee become a union member? A: It depends on the constitution and by-laws inasmuch as Art.249 gives a LO the right to prescribe its own rules for acquisition or retention of membership. The relationship of the union and members is governed by their mutual agreement, terms and conditions of which are set forth in the union's constitution and by-laws and binding on the members as well as the organization itself. (Oca v. Trajano, G.R. No. 76189, Aug. 8, 1991) Note: An Ee, whether employed for a definite period or not, shall beginning on his first day of service, be considered an Ee for purposes of union membership. (Art. 277) Q: How are union officers
elected?
A: They are elected directly by the members through secret balloting. Election takes place at intervals of 5 years which is the term of office of the union officers including these of a national union, federation or a trade union center. Note: What positions to fill up, where and how the election should be done are matters left by law to the union's constitution and by-laws or to agreement among the members. Only in the absence thereof will the IRR of Book V apply.
Other rights and conditions under Art.
241 UNIVERSITY
OF SANTO
Pacu{tati
TOMAS
tie cJ)erecno CiviC
~~
101
LABOR RELATIONS: LABOR ORGANIZATIONS Q: Who takes part in the election officers?
of union
membership in LOs cannot compelled into union membership.
A: Only members of the union can take part in the election of union officers. (Art. 241{c])
Q: Who are those disqualified officer?
Q: Who is a member in good standing?
A:
A: Any person who has: 1. Fulfilled the req'ts for membership in the union, and 2. Not voluntarily withdrawn from membership or 3. Not been expelled or suspended from membership after appropriate proceedings consistent with the lawful provisions of the union's constitution and by-laws. Q: What may be eligibility to vote?
used
to
determine
A: The question of eligibility to vote may be determined through the use of the applicable payroll period and Ee's status during the applicable period - the payroll of the month next preceding the labor dispute in case of regular Ees and the payroll at or near the peak of operations in case of Ees in seasonal industries. (Tancinco v. Pura Ferrer-Calleja, G.R. No. 78131, Jan. 20, 1988) Note: If none of the contending unions insisted on the use of the payroll period-list as voting list, the act of the non-union Ees of joining the election by casting their votes is a clear manifestation of their intention to join a union. They must therefore be considered ipso facto union members. Said Ees having exercised their right to unionism, by joining one of the unions, their decision is paramount. (Tancinco v, Pura Ferrer-Calleja, G.R. No. 78131, Jan. 20, 1988) Q: Is it necessary Ee?
that a union officer
be an
A: Yes. No qualification req'ts for candidacy to any position shall be imposed other than membership in good standing in subject LO. (Art. 241{c], 2"d sentence) Q: What are the limitations in unions?
in memberships
A: 1.
2.
3.
102
The LO cannot compel Ees to become members of the LO if they are already members of a rival union. The persons enumerated under Art. 241 (e) of the LC are prohibited from becoming members of a LO. The members of of religious organizations whose religion forbids
be
to be a union
1.
Person who has been convicted of a crime involving moral turpitude. (Art. 241[f])
2.
Any individual who belongs to a subversive organization or who is engaged indirectly or indirectly in any subversive activity. (Art. 241{e])
3. Non-employees.
(Art. 241{c])
Q: Wh,at is a union election
protest?
A: It is a complaint or protest regarding election of union officers and is treated as an inter/intra-union dispute, Q: What are union dues?
A: These are regular monthly
contributions paid by the members to the union in exchange for the benefits given to them by the CSA and to finance the activities of the union in representing the union. Q: What is check-off? A: It is a method of deducting from an Ee's pay at a prescribed period, the amounts due the union for fees, fines and assessments. Deductions for union service fees are authorized by law and do not require individual check-off authorizations. Q: What is the check-off?
nature
and
purpose
of
A: Union dues are the lifeblood of the union. All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings. (Art. 277[a])
UST GOLDEN NOTES 2010 Q: What are the requisites off?
of a valid check-
A: GR: No special assessments, atty's fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee (Ee) without individual written authorization duly signed by the Ee. The authorization should specifically the: 1. Amount 2. Purpose & 3. Beneficiary of the deduction.
consent of the workers affected. Q: What are special extraordinary fees?
Q: What are the requisites for a valid levy of special assessment or extraordinary fees?
A:
Q: What is an agency fee? A: It is an amount equivalent to union dues, which a non-union member pays to the union because he benefits from the CBA negotiated by the union. Note: Agency fee cannot be imposed on Ees already in the service and are members of another union. If a closed shop agreement cannot be applied to them, neither mayan agency fee, as a lesser form of union security, be imposed to them. Payment by non-union members of agency fees does not amount to an unjust enrichment basically the purpose of such dues is to avoid discrimination between union and non-union members. union
dues from
agency
A: Union Dues
Is deducted from members for the payment of union dues
May not be deducted from the salaries of the union members without the written
or
A: These are assessments for any purpose or object other than those expressly provided by the labor organization's constitution and bylaws.
For mandatory activities under the LC For agency fees When non-members of the union avail of the benefits of the CBA: a. Non-members may be assessed union dues equivalent to that paid by union members; b. Only by board resolution approved by majority of the members in general meeting called for the purpose.
Q: Distinguish fees.
assessments
state
XPN:
1. 2. 3.
I
1.
Authorization by a written resolution of the majority of all members at the general membership meeting duly called for that purpose;
2.
Secretary's record of the minutes of the meeting, which must include the: a. List of members present b. Votes cast c. Purpose of the special assessments d. Recipient of such assessments;
3.
Individual written authorization to check-off duly signed by the Ee concerned to levy such assessments.
Q: What is the effect of failure to strictly comply the req'ts set by law? A: It shall invalidate the questioned special assessments. Substantial compliance of the requirements is not enough in view of the fact that the special assessment will diminish the compensation of union members. (Palacol v. Ferrer-Calleja, GR. No. 85333, Feb. 26, 1990) Q: Who has jurisdiction disputes?
over
check-off
A: Being an intra-union dispute, the Regional Director of DOLE has jurisdiction over check off disputes.
Agency Fee Is deducted from nonmembers of the bargaining agent (union) for the enjoyment of the benefits under the CSA. May be deducted from the salary of the Ees without their written consent. UNIVERSiTY
OF SANTO
Pacu{taa
TOMAS
ae (])erec/io Civi]
(..<.1.'. .~.
103
LABOR RELATIONS: LABOR ORGANIZATIONS Q: Distinguish assessments.
check-off
from
special
Q: What are the remedies for violation rights and conditions of membership?
A:
A: As to impeachment of a union officer, as per reference to the union's constitution and by-laws (CBL): By written resolution approved by majority of all the members at the meeting called for that e.
(Union Dues) By obtaining the individual written authorization duly signed by the Ee which must specify: 1. Amount 2. Purpose 3. Beneficiary
(Agency fees) Not necessary when: 1. For mandatory activities under the LC 2. For agency fees 3. When non-members of the union avail of the benefits of the CBA: a. Said non-members may be assessed union dues equivalent to that paid by union members; b. Only by Board resolution approved by majority of the members in general meeting called for the
No exception; written resolution is mandatory in all instances.
Q: Are Ees who are members union considered free riders?
of another
Q: Who
reports complaint rights of union members?
for
Impeachment must be initiated by a petition Signed by at least 30% of all bona fide members of the union and addressed to the chairman of the Executive Board;
2.
A general membership meeting shall be convened by the Board Chairman to consider the impeachment of an officer;
~.
Before the impeachment is finally taken, the union officer against whom the impeachment charges have been filed shall be given ample opportunity to defend himself; and
4.
A majority of all members of the union shall be required to impeach or recall union officers.
Q: Is the 30% support of union membership mandatory for filing of a complaint regarding a violation of the rights and conditions of membership?
A: No. When the union bids to become the bargaining agent, it voluntarily assumes the responsibility of representing all the Ees.
REMEDIES FOR VIOLATIONS.OF
1.
Note: Despite the practical difficulties in complying with the procedure, petitioners should show substantial compliance' with said impeachment procedure, by giving the union officer ample opportunity to defend himself, as contrasted to an outright impeachment, right after he failed to appear before the first and only investigation scheduled. (Litton Mills Ee's Ass'nKapatiran v. Ferrer-Calleja, GR. No. L-78061, Nov. 24, 1988)
Note: Individual written authorization is not necessary for the collection of agency fees.
:
of
A: No. The fact that the word "may" was used in the LC negates the presumption that such is mandatory. It clearly shows that the said req't is permissive in nature. (Rodriguez v. Director of BLR, G.R. Nos. L-76579-82, Aug. 31, 1988)
RIGHTS violation
A: GR: Complaint for violation of right must be reported by at least 30% of the union members. XPN: When the violation directly affects only one or two members, then only one or two members can report such violation.
Q: What is the consequence
of violation
such rights? A: Expulsion of the culpable officers.
of
. ,
ART. 242. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS _ Q: What are the rights organizations (LLOs)?
of legitimate
labor
A: A LLO shall have the right to: 1. Act as the exclusive representatives of its members 2. Represent union members
UST GOLDEN NOTES 2010 3. 4. 5. 6. 7.
Be furnished by the Er with its annual audited financial statements Own properties Sue and be sued in its registered name Undertake all other activities for the benefit of members Be exempted from taxes
Q: When will the financial statements be given to the union?
A: 1.
2.
3. 4. 5.
After the union has been recognized by the Er as the sole bargaining representative of the Ees in the bargaining unit After the union is certified by DOLE as such sale bargaining representative. Written request from the union Within the last 60 days of the life of a CBA. During the negotiation
collective
Q: Do unions have the right to
Ees similarly situated," the title of the case filed by it at the LA's Office so expressly states. While a party acting in a rep. capacity, such as a union, may be permitted to intervene in a case, ordinarily, a person whose interests are already represented will not be permitted to do the same except when there is a suggestion of fraud or collusion or that the rep. will not act in GF for the protection of all interests represented by him. Petitioners cite the dismissal of the case filed by ICTSI, first by the LA, and later by the CA. The dismissal of the case does not, however, by itself show the existence of fraud or collusion or a lack of GF on the part of APCWU. (Jerry Acedera, et a/. v. ICTS/, G.R. No. 146073, Jan. 13, 2003, J. Carpio-Morales)
bargaining
collect fees?
A: Yes, the right to collect fees is recognized in Art. 277(a) and discussed under Art. 241 of the LC. Q: Jerry Acedera and his co-Ees works for
ICTSI and are officers! members of APCWU-ICTSI.ICTSI entered into a CBA with APCWU.CBA reduced Ees' work days per yr from 304 days to 250 days. However ICTSI continued using the 304-day. Later. RTWPBdecreed a daily wage Increase for all workers but ICTSI did not comply and used 365 days as the divisor for Ees' rate of pay. APCWU filed with the LA a complaint against ICTSI while Jerry Acedera and his co-Ees filed with the LA a Complaint-in-Intervention with Motion to Intervene. They wanted to insure by their intervention that the case would thereafter be prosecuted with all due diligence and would not again be dismissed for lack of interest to prosecute on the part of the union. The LA denied it. Can the Ees intervene in the case?
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair Jor Admin & Finance: Aissa Cehne H. Luna Vice-Chair [or Layout & DeJign: Loise Rae G. Naval
Labor Law Committee Sui?jeet Head' Lester Jay Alan E. Flores II Assistant Suo/eet Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A Diaz Angelo S. Diokno Genesis R Fulgencio J eanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
A: No. A labor union is the party authorized to represent its members under Art. 242(a) of the LC which provides that a union may act as the representative of its members for the purpose of CB. This authority includes the power to represent its members for the purpose of enforcing the provisions of the CBA. That APCWU acted in a representative capacity "for and in behalf of its union members and other UNIVERSITY
..
"'~.'~".~
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ae lIJerecfzo CiviC
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LABOR RELATIONS: UNFAIR LABOR PRACTICE :
UNFAIR LABOR PRACTICES
ART. 247. CONCEPT OF ULP AND PROCEDURE FOR PROSECUTION THEREOF "0····
I
;
k.·
~'..
<
•••
Q: What is the concept
Q: Distinguish civil aspect of ULP?
(ULP)
Note: Because self-organization is a prerequisite of industrial democracy, the right to self-organize has been enshrined in the Constitution, and any attack to it - any act intended to defeat or debilitate the right - is regarded by law as an offense.
1. 2.
Er-Ee relationship between the offender and the offended party. Act done is expressly defined in the LC as an act of ULP.
Note: ULP is negation of the right to organize which is available only to Ees in relation to their Er. No organizational right can be negated or assailed if the Er-Ee relationship is absent in the first place. The prohibited acts are all related to the workers' self-organizational right and the observance of a CBA, except Art. 248(f) - dismissing or prejudicing an Ee for giving testimony under the LC.
A: No. Because to the right to observance of every unfair act
Agents who partiCipated or authorized or ratified the act and agents, repres entatives, members of the gov't board, including ",rt,n"'''' members
The officers and agents of Er or LO
Labor Arbiter
Substantial evidence
1 year from the accrual of ULP. (Art. 290)
1 year from the accrual of ULP, however, it will be suspended once the administrative case has been filed and would only continue running once the administrative case has attained finality.
Note: Final judgment in the administrative proceeding finding that ULP has been committed:
of ULP?
Q: Are all unfair acts considered
criminal
A:
A: ULP are: 1. Criminal offenses against the State 2. Violations of civil rights of both labor and management 3. Violates the constitutional rights of workers and Ees to self-organization 4. Inimical to the legitimate interest of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect 5. Disrupt industrial peace 6. Hinder the promotion of healthy and stable labor-management relations and mutual respect (unstable labormanagement relations)
A:
from
,,,~.
of ULP?
Q: What are the elements
aspect
as ULP?
ULP is and has to be related self organization and to the the CBA, it follows that not is ULP.
Note: ULP refers only to acts opposed to workers' right to organize. When committed by the Er, it commonly connotes anti-unionism.
1. Is a prerequisite in filing a criminal case 2.
of ULP. Shall not be binding in the criminal case nor shall be considered as an evidence of guilt but merely as a proof of compliance of the requirements prescribed by the LC.
Q: Who is liable juridical person?
if ULP is committed
by a
A: When committed by: 1. Corporation, trust, firm, partnership, association or any other entity Penalty shall be imposed upon its guilty officer or officers. (Art. 289) 2. Labor organization - Parties liable are the officers of the governing boards, representatives or agents or members of labor associations or organizations who have participated in authorized or ratified such. (Art.
249)
UST GOLDEN NOTES 2010
Q: What committed
A:
1. 2. 3. 4. 5. 6. 7. 8. 9.
are the by Ers?
ULP
that
may
be
Interference Yellow dog condition Contracting out Company unionism Discrimination for or against ,union membership Discrimination because of testimony Violation of duty to bargain Paid negotiation and Gross violation of CBA
Q: What is meant by interference? A: The act of Er to interfere with, restrain or coerce Ees in the exercise of their right to self organization. Q: What is the test of interference? A: Whether the Er has engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise ofIhe Ees right to self-organization. Note: Direct evidence that an Ee was in fact intended or coerced by the statements of threats of the Er is not necessary if there is a reasonable interference that the anti-union conduct of the Er does have an adverse effect on self-organization and CB. (The Insular Life Assurance-NA TU v. The Insular Life Co. Ltd, G.R. No.L-25291, Jan. 30, 1971) Q: What is the totality
of conduct
doctrine?
A: It states that the culpability of Er's remarks is to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances. Under this doctrine, expressions of opinion by an Er, though innocent in themselves, frequently were held to be ULP because of: 1. The circumstances under which they were uttered 2. The history of the particular Er's labor relations or anti-union bias 3. Their connection with an established collateral plan of coercion or interference. (The Insular Life Assurance-NA TU v. The Insular Life Co. Ltd, G.R. No.L-25291, Jan. 30,
officers and Gebu Seamen's Association (GSA) is another union representing some of Philsteam's officers. PMOG sent a letter to Phllsteam requesting for GS but the company asked the former to first prove it represents the majority. Simultaneously, Philsteam interrogated its captains, deck officers and engineers while GSA likewise sent its demands to Philsteam. The company recognized GSA as representing the majority and entered into a GSA. Hence PMOG declared a strike. PMOG was subjected to vilification and Philsteam's pier superintendent participated in the solicitation of membership for GSA. Is the company guilty of ULP? A: Yes. Although the company is free to make interrogations as to its Ees' union, the same should be for a legitimate purpose and must not interfere with the exercise of selforganization otherwise it is considered as ULP. Moreover, Philsteam's supervisory Ees' statement that PMOG is a "money-making" union, which is made to appear to be said in behalf of the union and the participation of the company's pier superintendent in soliciting membership for the competing union, is ULP for interfering with the exercise of the right to self-organization. (Philsteam and Navigation v. Philippine Marine Officers Guild, G.R. Nos. L20667 and L-20669, Oct. 29, 1965) Q: What is a lockout? A: It means any temporary refusal of an Er to furnish work as a result of an industrial or labor dispute. (Art.212[pJ) Q: When does lockout ULP?
Q: What are other interference?
examples
of acts
of
A:
Q: Phil. Marine Officers representing
amount to
A: A lockout, actual or threatened, as a means of dissuading the Ees from exercising their rights is clearly an ULP. However, to hold an Er guilty, the evidence must establish that the purpose was to interfere with the Ees exercise of their rights.
1971) union
or closure
Guild (PMOG) is a some of Philsteam's UNIVERSITY
1. 2.
Outright and unconcealed intimidation In order that interrogation would not be deemed coercive: a. The Er must communicate to the Ee the purpose of questioning b. Assure him that no reprisal would take place c. Obtain Ee participation voluntarily OF
tf'acu(taa
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ae 1)erecno
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~i~ 107
LABOR RELATIONS: UNFAIR LABOR PRACTICE d.
3.
Must be free from Er hostility to union organization e. Must not be coercive in nature Intimidating expressions of opinion by Er
Note: An Er who interfered with the right to selforganization before a union is registered can be held guilty of ULP. (Samahan ng mga Manggagawa sa Bandolino-LMLC v. NLRC, GR. No. 125195, July 17,1997) It is the prerogative of the company to promote, transfer or even demote its Ees to other positions when the interests of the company reasonably demand it. Unless there are circumstances which directly point to interference by the company with the Ees right to self-organization, the transfer of an Ee should be considered as within the bounds allowed by law. (Rubberworld Phils. v. NLRC, G.R. No. 75704, July 19, 1989)
Q: What is a yellow dog condition? A: It is to require as a condition of employment that a person or an Ee shall not join a labor organization or shall withdraw from one to which he belongs. Q: What is a yellow dog contract? A: It is a promise exacted from workers as condition of employment that they are not to belong to or attempt to foster a union during their period of employment. Q: Is yellow dog contract valid? A: No. It is null and void because: 1. It is contrary to public policy for it is tantamount to involuntary servitude. 2. It is entered into without consideration for Ees in waiving their right to selforg anizatio n. 3. Ees are coerced to sign contracts disadvantageous to their family. Note: This is one of the cases of ULP that may be committed in the absence of an Er-Ee relationship.
Q: What are the 3 usual provisions
under a
yellow dog contract?
A: 1.
2. 3.
lOB
A representation by the Ee that he is not a member of a labor union. A promise by the Ee not to join a labor union. A promise by the Ee that upon joining a labor union, he will quit his employment.
Q: What is "contracting ULP?
out" as ·a form of
A: It is to contract out services or functions being performed by union members when such will interfere with, restrain or coerce Ees in the exercise of their rights to selforganization. Q: Does it mean that an Er cannot contract out work? A: GR: Contracting per se.
out services
is not ULP
XPN: It is ULP only when the ft. exists: 1. The services contracted out are being performed by union members; and 2. Such contracting out interferes with, restrains, or coerce Ees in the exercise of their right to selforganization. Note: When the contracting out is being done for business reasons such as decline in business inadequacy of equipment or to reduce cost, the~ it is a valid exercise of management prerogative. Q: Company "A" contracts out its clerical and janitorial services. In the negotiations of its CBA, the union insisted that the company may no longer engage in contracting out these types of services, which services the union claims to be necessary in the company's business, without prior consultation. Is the union's stand valid or not? For what reason(s)? A: The union's stand is not valid. It is part of management prerogative to contract out any work, task, job or project except that it is an ULP to contract out services or functions performed by union members when such will interfere with, restrain or coerce Ees in the exercise of their rights to self-organization. (Art. 248[c] of the l.C). (2001 Bar Question) Q: What is a run-away shop? A: It is an industrial plant moved by its owners from one location to another to escape labor regulations or State laws or to discriminate against Ees at the old plant because of their union activities.
Q: Is resorting to run-away shop ULP? A: Yes. Where a plant removal is for business reasons but the relocation is hastened by antiunion motivation, the early removal is ULP. It
UST GOLDEN NOTES 2010 is immaterial that the relocation is accompanied by a transfer of title to a new employer (Er) who is an alter ego of the original Er. Q: What is a company
union?
A: Any labor organization whose formation, function or administration has been assisted by any act defined as ULP. (Arl. 212[i]) Q: What unionism?
are
the
forms
o~) company
A: 1.
Initiation of the company union idea by: a. Outright formation by Er or his representatives b. Ee formation on outright demand or influence by Er and c. Managerially motivated formation by Ees
2.
Financial supporl to the union by: a. Er defrays union expenses b. Pays atty's fees to the attorney who drafted the Constitution or by-laws of the union.
3.
4.
Er encouragement assistance Immediately granting of exclusive recognition as bargaining agent without determining whether the union represents the majority of the employees Supervisory assistanceSoliciting membership, permitting union activities during work time or coercing Ees to join the union by threats of dismissal or demotion
Q: What is meant by the act of companydomination
of union?
A: This is to initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization including giving of financial or other support to it or its organizers or supporters. Q: Why is company unionism a form of ULP?
unionism/captive
A: It is considered ULP because the officers will be beholden to the Ers and they will not look after the interest of whom they represent. Q: What is meant form of ULP?
A: It is 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.
by discrimination
as a
Q: When is discriminatory?
a
discharge
of
an
Ee
A: For the test of determining whether or not a discharge is discriminatory, it is necessary that the underlying reason for the discharge be established. The fact that a lawful cause for discharge is available is not a defense where the Ee is actually discharged because of his union activities. If the discharge is actually motivated by lawful reason, the fact that the Ee is engaged in union activities at the time will lie against the Er and prevent him from the exercise of business judgment to discharge an Ee for cause. (Phil. Metal Foundries Inc. v. GIR, G.R. Nos. L-34948-49, May 15, 1979) Q: Jobo has 3 hotels, the Taal Vista Lodge, Manila Hotel and the Pines Hotel. Among the 3, Pines Hotel had more Ees and the only one with a labor organization (LO). When the bonus was distributed among the 3 hotels, Pines Hotel Ees received the least amount compared to the Ees of Manila Hotel and Taal Vista Lodge. Did the company commit ULP? A: Yes. The sharing of the bonuses is discriminatory and such constitute ULP. The Pines Hotel Ees would be receiving fewer bonuses compared to the Ees of Taal Vista Lodge and Manila Hotel where neither has a LO nor does the complainant union has a member. Taking into account that Pines Hotel is realizing profit compared to that of Taal Vista. Same analogy applies in the salary increase. (Manila Hotel Co. v. Pines Hotel Ees' Ass'n, G.R. No.L-30139, Sep. 28, 1972) Q: When can discrimination?
there
be
a
valid
A: The employer is not guilty of ULP if it merely complies in good faith with the request of the certified union for the dismissal of employees expelled from the union pursuant to the union security clause in the CSA. (Soriano v. Atienza, G.R. No. L-68619, Mar. 16, 1989)
Q: A profit sharing
scheme was introduced by the company for its managers and supervisors who are not members of the union, hence do not enjoy the benefits of the CSA. The respondent union wanted to
UNiVERSITY
OF
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.
109
LABOR RELATIONS: UNFAIR LABOR PRACTICE participate with the scheme but was denied by the company due to the CSA. Subsequently the company distributed the profit sharing to the manager, supervisors and other non-union member Ees. As a result the union filed a notice of strike alleging ULP. Is the non-extension of the profit sharing scheme to union members discriminatory and an ULP? A: No. There can be no discrimination when the Ees are not similarly situated. The situation of union members is different and distinct from non-union members because only union members enjoy the benefit under the CSA. The profit sharing scheme was extended to those who do not enjoy the benefits of the CSA. Hence, there is no discrimination and ULP is not committed. (Wise and Co., Inc. v. NLRC, GR No. L-87672, Oct. 13, 1989) Q: Is dismissal of an Ee pursuant union security clause a form of ULP?
to a
A: No. Union security clauses in the CSA, if freely and voluntarily entered into, are valid and binding. Thus, the dismissal of an Ee by the company pursuant to a labor union's demand in accordance with a union security agreement does not constitute ULP. (Ma/ayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos, G.R. No. 113907, Feb. 28, 2000) A union member who is employed under an agreement between the union and his Er is bound by the provisions thereof since it is a joint and several contract of the members of the union entered into by the union as their agent. (Mana/ang v. Artex Dev't, GR No. L20432, Oct. 30, 1967)
Q: Is notice and hearing required Ee is dismissed security clause?
pursuant
in case an to a union
dismissed matter.
Q: Mabeza and her co-Ees were asked by the company to sign an affidavit attesting to the latter's compliance with pertinent labor laws. Mabeza signed the affidavit but refused to swear to its veracity before the City prosecutor. Mabeza then filed a LOA which was denied by management. After sometime, she attempted to return to work but the company informed her not to report for work and continue with her unofficial leave. Did the company commit ULP? A: Yes. The act of compelling an Ee to sign an instrument indicating the Er's compliance with Labor laws which the company might have viotated together with the act of terminating or coercing those Ees to cooperate is an act of ULP. This is analogous with Art. 248 (f) of the LC which provides: "to dismiss, discharge or otherwise prejudice or discriminate against an Ee for having given or being about to give testimony under this Code". For in not giving a positive testimony in favor of the Er, Mabeza reserved not only her right to dispute the claim but also to work for better terms and condition. (Mabeza v. NLRC, G.R No. 118506, April 18,
1997) Q: What is vlolation as a kind of ULP?
Notwithstanding the fact that the dismissal was at the instance of the federation and that it undertook to hold the company free from any liability resulting from such dismissal, the company may still be held liable if it was remiss in its duty to accord the would-be
110
of the duty to bargain
A: This is the act of violating the duty to bargain collectively as prescribed in the LC. Q: What bargaining?
are
the
forms
of
ULP
in
A: 1. 2. 3.
A: Yes. Although a union security clause in a CSA may be validly enforced and dismissal pursuant to thereto may likewise be valid, this does not erode the fundamental requirement of due process. The reason behind the enforcement of union security clauses which is the sanctity and inviolability of contracts cannot erode one's right to due process.
Ees their right to be heard on the
4.
Failure or refusal to meet and convene Evading the mandatory subject of bargaining Sad faith (SF) bargaining, including failure to execute the CSA if requested Gross violation of the CSA
Note: A company's refusal to make counterproposal, if considered in relation to the entire bargaining process, may indicate BF and this is especially true where the union's request for a counter proposal is left unanswered. (Kiok Loy v. NLRC, G.R. No. L-54334, Jan. 22, 1986)
UST GOLDEN NOTES 2010 Q: What are bargaining?
A:
1.. 2.
3. 4.
5.
the
examples
of
ULP
the duty to bargain collectively only with a legitimate labor organization designated or selected by the majority of the Ees in an appropriate CB unit. It is not a ULP for an Er to ask a union requesting to bargain collectively that such union first show proof of its being a majority union. (1997 Bar Question)
in
Delaying negotiations by discussing unrelated matters Refusal to accept request to bargain Rejecting a union's offer to prove its majority claim Shutdown to avoid bargaining and Engaging in surface bargaining
H
Q: What is surface
"
Q: Balmar Farms Ees Association (BFEA) is affiliated with Associated Labor Union (ALU). ALU won in the certification election held in the company. Thus, ALU sent its proposal for a CBA, but the company refused to act on it alleging that BEA is the sole and exclusive bargaining representative and that BFEA through its president had sent a letter informing the company of its disaffiliation with ALU. Is the company guilty of ULP for refusing to bargain collectively? A: Yes. ALU is the certified exclusive bargaining representative after winning the certification election. The company merely relied on the letter of disaffiliation by BFEA's president without proof and consequently refusing to bargain collectively constitutes ULP. Such refusal by the company to bargain collectively with the certified exclusive bargaining representative is a violation of its duty to collectively bargain which constitutes ULP. (Balmar Farms v. NLRC, G.R. No. 73504, Oct, 15, 1991)
Q: The Kilusang
Kabisig, a newly-formed labor union claiming to represent a majority of the workers in the Microchip Corp., proceeded to present a list of demands to the management for purposes of collective bargaining (CB). The Microchips Corp., a multinational corp. engaged in the production of computer chips for export, declined to talk with the union leaders, alleging that they had not as yet presented any proof of majority status. The Kilusang Kabisig then charged Microchip Corp. with ULP, and declared a "wildcat" strike wherein means of ingress and egress were blocked and remote and isolated acts of destruction and violence were committed. Was the company guilty of an ULP when it refused to negotiate with the Kilusang Kabisig? A: No. It is not an ULP not to bargain with a union which has not presented any proof of its majority status. The LC imposes on an Er
bargaining?
A: It is the act of going through the motions of negotiating without any legal intent to reach an agreement. It involves the question of whether or not the Ers conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining. (Standard Chartered Bank v. Confessor, G.R. No, 114974, June 16, 2004) Note: Occurs when the Er constantly changes its position over the agreement. Q: What is meant form of ULP?
by paid negotiation
as a
A: It is the act of the employer to pay negotiation or atty'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. Q: When is the violation as ULP?
of CBA considered
A: Only when the violation is gross - There must be a flagrant and/or malicious refusal to comply with the economic provision of the CBA. Note: All the ULP acts must have a relation to the Ees exercise of their right to self-organization. Anti-union or anti-organization motive must be proved because it is a definitional element of ULP. If violation is not gross, it is not ULP but a grievance under CBA. The "grossly violate" phrase is an amendment by RA 6715. Q: A complaint for ULP was filed by a prosecutor of the CIR against Alhambra company, upon the charges of the union that 15 of its members employed as drivers and helpers are discriminated for being deprived of the benefits under the CBA with no justifiable reason other than union membership. Is the company guilty of ULP? A: Yes. The refusal to extend the benefits and privileges under the CBA to Ees constitutes ULP. Failure on the part of the 'Company to live up in goo faith to the terms of- the CBA is a
UNIVERSITY
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LABOR RELATIONS: UNFAIR LABOR PRACTICE serious violation of the duty to collectively bargain which again amounts to ULP. The 15 drivers and helpers are found to be Ees of the company, hence, the benefit and privileges under the CBA should be extended to them. (Alhambra Industries v, CIR, G.R. No. L25984, Oct. 30, 1970) Q: What cases?
are the
reliefs
available
A: Yes, because ULPs are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment. (Arl. 247 LC; See also B.P. Big. 386 as amended by R.A. 6715). However, the criminal aspect can only be filed when the decision of the labor tribunals, finding the existence of ULP, shall have become final and executory. (2005 Bar Question)
ART. 249. ULP OF LABOR ORGANIZATIONS Q: What are the ULP of LOs? A: It shall be ULP for a La, its officers, agents or representatives: 1. To restrain or coerce Ees in the exercise of their rights to selforganization. However, a LO shall have the right to prescribe its own rules with respect to the acquisition or retention of membership 2.
112
4.
To cause or attempt to cause an Er to payor deliver or agree to payor deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations
5.
To ask for atty's fees settlement bargaining or
6.
To violate a CBA.
to
Q: Is the commission of an ULP by an employer subject to criminal prosecution?
.
To violate the duty, or refuse to bargain collectively with the Er, provided it is the representative of the Ees
bargain. CBA may be imposed. Strike by union members
Note: ULP cases are not subject to compromise in view of the public interest involve. The relation between capital and labor is not merely contractual. They are impressed with public interest that labor contracts must yield to common good.
i
3.
in ULP
A: The following reliefs may be availed of: 1. Cease and desist order 2. Affirmative order 3. Court may order the employer 4.
under which membership or continuation of membership is made available to other members
To cause or attempt to cause an Er to discriminate against an Ee, including discrimination against an Ee with respect to whom membership in such organization has been denied or to terminate an Ee on any ground other than the usual terms and conditions
Q: Is interference
or accept negotiations or from Ers as part of the of any issue in collective (CB) or any other dispute
by a LO an ULP?
A: No, because interference by a LO in the exercise of the right to organize is itself a function of self-organizing. Q: What are examples of interference does not amount to ULP?
which
A: 1.
2.
3.
Union campaigns for membership even among members of another union Filing by a union of a petition to dislodge an incumbent bargaining union A bargaining union, through a union security clause, requires an incoming employee to join the union.
Q: Maya union coerce Ees to join a strike? A: No. A union violates the law when, to restrain or coerce non-strikers from working during the strike, it: 1. Assaults or threatens to assault them 2. Threatens them with the loss of their jobs 3. Blocks their ingress to or egress from the plant 4. Damages non-strikers' automobiles or forces them off the highway 5. Physically preventing them from working 6. Sabotages the Er's property in their presence, thereby creating an atmosphere of fear or violence
UST GOLDEN NOTES 2010 7.
8.
9.
Demonstrates loudly in front of a nonstrikers' residence with signs and shouts accusing the non-striker of "scabbing" Holding the non striker up to ridicule Seeking public condemnation of the non-striker
Q: What is discrimination
Q: What is blue-sky
bargaining?
A: It is defined as making unreasonable proposals.
a case of union induced by labor organization (LO)?
A: This pertains to the arbitrary security clause.
Note: The resulting CBA is considered as a contract" - a CSA that does not substantially improve the employees wages and benefits and whose benefits are far below than those provided by law. "sweetheart
w;e of ~union "
A union member may not be expelled from the union, and consequently from his job, for personal and impetuous reasons or for causes foreign to the closed shop agreement. (Manila Mandarin Ees Union v. NLRG, G. R. No. 76989, Sep. 29, 1987) Labor unions are not entitled to arbitrarily exclude qualified applicants for membership and a closed-shop applicants provision will not justify the employer in discharging, or a union in insisting upon the discharge of an employee whom the union thus refuses 10 admit to membership without any reasonable ground thereof. (Salunga v. GIR, G.R. No. L-22456, Sep. 27, 1967)
exaggerated
or
Note: Whether or not the union is engaged in blue-sky bargaining is determined by the evidence presented by the union as to its economic demands. Thus, if the union requires exaggerated or unreasonable economic demands, then it is guilty of ULP. (Standard Chartered Bank v. Confessor, G.R. No. 114974, June 16, 2004) Q: When does boulwarism
occur?
A:
It occurs when employer (Er) directly bargains with the employee (Ee) disregarding the union; the aim was to deal with the labor union through Ees rather than with the Ees thru the union. Er submits its proposals and adopts a take-it-or-Ieave-it stand.
Q: When is there refusal to bargain? A: A union violates its duty to bargain collectively by entering negotiations with a fixed purpose of not reaching an agreement or signing a contract. Q: What activities?
is
featherbeddingl
make
work
Academics
A: It refers to the practice of the union or its agents in causing or attempting to cause an employer (Er) to payor deliver or agree to pay or deliver money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, as when a union demands that the Er maintain personnel in excess of the latter's requirements.
Labor Law Committee S ub;ect Head: Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V Members:
Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino ,-\. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
Note: It is not featherbedding if the work is performed no matter how unnecessary or useless it may be.
Q: What is the sweetheart
doctrine?
A: It is when a LO asks for or accepts negotiations or atty's fees from employers as part of the settlement of any issue in GB or any other dispute.
UNIVERSITY
Committee
Abraham D. Genuino II Via-Cbairfor Academics: Jeannie /\, Laurentino 'Vise-Chairjor Admin & Finance: Aissa Celine H. Luna Vice-Chair jor Layout ~." Design: Loise Rae G, Naval Chairperson:
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LABOR RELATIONS: COLLECTIVE BARGAINING , ~
Q: What are the jurisdictional in collective bargaining?
COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS Q: What is collective
A:
1.
2.
3.
bargaining
A:
(CB)?
It is the process of negotiation by an organization or group of workmen, in behalf of its members, with the employer (Er), concerning wages, hours of work, and other terms and conditions of employment and The settlement of disputes by negotiation between an Er and the representative of his employees (Ee) It is the 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 under such agreement and executing a contract incorporating such agreements if requested by either party but such does not compel any party to agree to a proposal or to make any concession. (Art. 252, LC)
Note: GR: No court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work, or other terms and conditions of employment XPN: As otherwise provided under the LC: 1. National Wages and Productivity Commission and R1WPB as to wage fixing. (Art. 99 and 122, LC) 2. NCMS and NLRC as to wage distortion. (Art. 124, LC) 3. SLE and President of the Philippines as to certification and assumption of powers over labor disputes. (Art. 236[gj, LC) Q: What is the purpose
behind this rule?
A: It is to encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through CB.
Q: Who are the parties to a CB?
A:
1. 2.
Employer Employees, represented exclusive bargaining agent
by
the
1.
2. 3.
preconditions
Possession of the status of majority representation of the em ployees representative in accordance with any of the means of selection or designation provided for the Labor Code Proof of majority representation A demand to bargain under Art. 250 (a) of the LC. (Kiok Loy v. NLRC, G.R. No. L-54334, Jan.22, 1986)
Q: When does the duty of the employer to bargain collectively arise?
(Er)
A: Only after the union requests the Er to bargain. If there is no demand, the Er cannot be in default. Note: Where a majority representative has been designated, it is an ULP for the Er, as a refusal to collectively bargain, to deal and negotiate with the minority representative to the exclusion of the majority representative. Where there is a legitimate representation issue, there is no duty to bargain collectively on the part of the Er (Lakas ng mga Manggagawang Makabayan v. Marcelo Enterprises, G.R. No. L38258. Nov. 19, 1982) Q: What are bargaining?
A:
1. 2. 3. 4.
the
4
forms
of
ULP
in
Failure to meet and convene Evading the mandatory subjects of bargaining. Bad faith in bargaining (boulwarism) Gross violation of the CBA
Note: Violations of CSA, except those which are gross in character, shall no longer be treated as ULP but a grievance under CSA. (Art. 261, LC, Silva v. NLRC. GR. No. 110226, June 19 1997) Q: What agreement
is a (CSA)?
collective
bargaining
A: It is a contract executed upon request of either the Er or the exclusive bargaining representative of the Ees incorporating the agreement reached after negotiations with respect to wages, hours of work, terms and conditions of employment, including proposals for adjusting any grievance or questions under the agreement. Note: The certification of the CBA by the BLR is not required to make such contract valid. Once it
UST
GOLDEN NOTES
Q: What are the stages in CS?
is duly entered into and signed by the parties, a GSA becomes effective as between the parties whether or not it has been certified by the SLR. (Liberly Flour Mills Ee's Association v. Liberly Flour Mil/s, G.R. Nos. 58768-70, Dec. 29, 1989)
A:
1.
Q: What is a zipper clause?
2. 3.
A: It is a stipulation in a CSA indicating that issues that could have been negotiated upon but not contained in the CSA cannot be raised for negotiation when the CSA is already in ~) ..• effect.'
4. 5.
Note: Only provisions embodied in the GSA should be liberally interpreted and complied with. Where the proposal of one party does not find print in the GSA, it is not part thereof and the proponent has no claim whatsoever to its implementation. (Samahang Manggagawa sa Top Form v. NLRG, GR. No. 113856, Sep. 7, 1998) Q: When shall bargaining
6. 7.
8.
commence?
Preliminary process: Sending a written notice for negotiation which must be clear and unequivocal Negotiation process. Execution process: The signing of the agreement Publication for at least 5 days before ratification Ratification by the majority of all the workers in the bargaining unit represented in the negotiation (not necessary in case of arbitral award) Registration process. Administration process: The CSA shall be jointly administered by the management and the bargaining agent for a period of 5 years. Interpretation and Application process.
Q: What are the mandatory the CSA?
A: It commences
within 12 months after the determination and certification. of the Ees exclusive bargaining representative. (certification year)
A:
1.
2. 3. 4.
, ' ART. 250. PROCEDURE IN COLLECTIVE , BARGAINING (CB) Q: What is the procedure
2010
5. 6. 7.
in CB?
A: When a party desires to negotiate an agreement: 1. It shall serve a written notice upon the other party with a statement of proposals 2. Reply by the other party shall be made within 10 days with counter proposals 3. In case of differences, either party may request for a conference which must be held within 10 calendar days from receipt of request 4. If not settled, NCMS may intervene and encourage the parties to submit the dispute to a voluntary arbitrator 5. If not resolved, the parties may resort to any other lawful means (either to settle the dispute or submit it to a voluntary arbitrator). Note: During the conciliation proceeding in the NCMS, the parties are prohibited from doing any act which may disrupt or impede the early settlement of disputes. (Arl.250[dj, LC)
provisions
of
Wages Hours of work Grievance machinery Voluntary arbitration Family planning Rates of pay Mutual observance clause
Note: In addition, the SLR requires the CSA should include a clear statement of the terms of the GSA. Er's duty to bargain is limited to mandatory bargaining subjects; as to other matters, he IS free to bargain or not. Q: Does a petition for cancellation of union's certificate of registration involve prejudicial question that should first settled before parties could be required collectively bargain?
a a be to
A: No. A pending cancellation proceeding is not a bar to set mechanics for collective bargaining (CB). If a certification election may still be held even if a petition for cancellation of a union's registration is pending, more so that the CS process may proceed. The majority status of the union is not affected by the cancellation proceedings. (Capitol Medical Center v. Trajano, G.R. No. 155690, June 30, 2005)
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LABOR RELATIONS: COLLECTIVE BARGAINING ART. 251. DUTY TO BARGAIN COLLECTIVELY IN THE ABSENCE OF CBA
;
ART.2S2. MEANING OF DUTY TO BARGAIN - COLLECTIVELY Q: What is the duty to bargain when there is no CSA?
collectively
A: It is the performance of a mutual obligation: 1. To meet and convene promptly and expeditiously in good faith (GF) 2. For the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment 3. Including proposals for adjusting any grievances or questions arising under such agreement; and 4. To execute a contract incorporating such agreements if requested by either party. (Art. 252)
Q: What are the limitations
to the duty to
bargain collectively?
A: 1.
2.
Such duty does not compel any party to agree to a proposal or to make any concession. Parties cannot stipulate terms and conditions of employment which are below the minimum req'ts prescribed by law.
Q: May either party bargain to an impasse? A: It depends: 1. Where the subject of mandatory bargaining party may bargain to long as he bargains in 2.
Q: What faith?
a dispute is a subject, either an impasse as GF.
Where the subject is non-mandatory, a party may not insist in bargaining to the point of impasse. His instance may be construed as evasion of duty to bargain. is the test
of bargaining
in bad
A: There is no perfect test of good faith (GF) in bargaining. The GF or BF is an inference to be drawn from the facts and is largely a matter for the NLRC's expertise. The charge of BF should be raised while the bargaining is in progress. Note: With the execution of the CSA, SF can no longer be imputed upon any of the parties thereto. All provisions in the CSA are supposed
116
to have been jOintly and voluntarily incorporated therein by the parties. This is not a case where private respondent exhibited an indifferent attitude towards CS because the negotiations were not the unilateral activity of petitioner union. The CSA is good enough that private respondent exerted "reasonable effort of GF bargaining." (Samahang Manggagawa sa Top Form Manufacturing-United Workers of the Pnits v. NLRC, G.R. No. 113856, Sept. 7, 1998) Q: Does an Er's steadfast insistence to exclude a particular substantive provision in the negotiatiol1s for a CSA constitute refusal to bargain or bargaining in SF? A: No. This is no different from a bargaining representative's perseverance to include one that they. deem of absolute necessity. Indeed, an adamant insistence on a bargaining position to the point where the negotiations reach an impasse does not establish bad faith. Obviously, the purpose of CB is the reaching of an agreement resulting in a contract binding on the parties; but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an agreement. While the law makes it an obligation for the Er and the Ees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement. (Union of Fi/ipro Ees v. Nestle Phils., G.R. Nos. 158930-31, Mar. 3, 2008) Q: What is a deadlock? A: It is synonymous with impasse or a standstill which presupposes reasonable effort at GF bargaining but despite noble intentions does not conclude an agreement between the parties. Q: In case of deadlock in the renegotiation of the CSA, what are the actions that may be taken by the parties? A: The parties may: 1. Call upon the NCMB to intervene for the purpose of conducting conciliation or preventive mediation; 2. Refer the matter for voluntary arbitration or compulsory arbitration;
UST GOLDEN NOTES 2010 3.
Declare a strike or lockout upon compliance with the legal req'ts (This remedy is a remedy of last resort).
Q: May economic to bargain?
exigencies
justify
refusal
A: No. An employer is not guilty of refusal to bargain by adamantly rejecting the union's economic demands where he is operating at a loss, on a low profit margin, or in a depressed industry, as long as he continues to negotiate. But financial hardship constitutes no excuse for refusing to bargain collectively.
: : ,
ART.253. DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A COLLECTIVE BARGAINING AGREEMENT Q: What is the duty to bargain when there is a CBA?
collectively
A: 1.
2.
3.
When there is a CSA the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. Either party can serve a written notice to terminate or modify the agreement at least 60 days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to 'continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. (Art. 253, LC)
Q: What is the automatic CBAs?
renewal
clause of
A: Although a CBA has expired, it continues to have legal effects as between the parties until a new CBA has been entered into (Pier & Arrastre Stevedoring Services, Inc. v. Confessor, G.R. No. 110854, February 13, 1995). This is so because the law makes it a duty of the parties to keep the status quo and to continue in full effect the terms and conditions of the existing agreement until a new agreement is reached by the parties. (Art. 253, LC). (2008 Bar Question) Q: What may be done freedom period?
during
independent union only during the 60day freedom period immediately preceding the expiration of the CBA. 2. Either party can serve a written notice to terminate or modify agreement at least 50-days prior to its expiration period. 3. A petition for certification election may be filed. Q: When to file CBA? A: Within 30 days from execution of CSA.
Q: What are the req'ts for registration? A: The application for CBA registration shall be accompanied by the original and 2 duplicate copies of the following req'ts: 1. CSA 2. A statement that the CSA was posted in at least 2 conspicuous places in the establishment concerned for at least 5 days before its ratification 3. Statement that the CBA was ratified by the majority of the Ees in the bargaining unit. Note: The following documents must be certified under oath by the representative of the Er and the labor union. No other document shall be required in the registration of the CSA Q: What is a single enterprise
A: It involves negotiation between one certified labor union and one Er. Any voluntarily recognized or certified labor union may demand negotiations with its Er for terms and conditions of work covering Ee's in the bargaining unit concerned. Q: What is a multi-Er
bargaining
scheme?
A: It involves negotiation between and among several certified labor unions and Ers.
ART. 253-A. TERMS OF A CBA Q: What is the duration
s:»
of a CBA?
A: 1.
the 50-day 2.
A: 1.
bargaining?
A labor union may disaffiliate from the mother union to form a local or UNIVERSITY
With respect to the representation aspect (refers to the identity and majority status of the union that negotiated the CSA as the exclusive bargaining representative): 5 years With respect to all other provisions (refers to the rest of the CSA, economic as well as non-economic provisions other than representational
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LABOR RELATIONS: COLLECTIVE BARGAINING provisions): 3 years execution of the CSA Q: What are the economic CBA?
A:
1. 2. 3. 4.
provisions
1. 2. 3. 4. 5.
the
of a
Wages Family planning Effectivity of the agreement Other terms and conditions employment
Q: What are the non-economic of a CBA?
A:
after
of
provisions
Coverage of the bargaining unit Union security clauses Management prerogatives and/or rights/responsibilities of employees Grievance machinery and voluntary arbitration No strike - no lock out provision
Q: What is the effectivity and retroactivity date of other economic provisions of the CBA? A: 1.
If the CSA is the very first for the bargaining unit, the parties have to decide the CSA effectivity date.
2.
Those made date of expiry to automatic immediately expiry.
within 6 months after of the CSA are subject retroaction to the day following the date of
3.
Those not made within 6 months, the parties may agree to the date of retroaction.
Note: This rule applies only if there is an existing agreement. If there is no existing agreement, there is no retroactive effect because the date agreed upon shall be the start of the period of agreement. Art. 253-A on retroactivity does not apply if the provisions were imposed by the SLE by virtue of arbitration. It applies only if the agreement was voluntarily made by the parties. Q: May the economic provisions of an existing CBA be extended beyond the 3 year period as prescribed by law in the absence of a new agreement? A: Yes. Under the principle of hold over, until a new CSA has been executed by and between the parties, they are duty bound to keep the
status quo and must 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 existinq agreement are to retain force and effect. Therefore, it must be encompassing all the terms and condition in the said agreement. (New Pacific Timber v. NLRC, G.R. No. 124224, Mar. 17, 2000) Q: Mindanao Terminal Company and respondent union has an existing CBA which was about to expire. Thus, negotiations were held regarding certain provisions of the CBA which resulted in a deadlock. Thus the union filed a notice of strike. During the conference called by the NCM13 the company and the union were able to agree on all of the provisions of the CBA except for one. However, the last unresolved provision was subsequently settled but no CBA was signed. Hence, in the records of the Mediation Arbiter, all issues were settled before the lapse of the 6 month period after the expiration of the old CBA. Does the Signing of the CBA determine the date it was entered into within the 6 month period? A: No. The signing of the CSA does not determine whether the agreement was entered into within the 6 month period from the date of expiration of the old CSA. In the present case, there was already a meeting of the minds between the company and the union prior to the end of the 6 month period after the expiration of the old CSA. Hence, such meeting of the mind is sufficient to conclude that an agreement has been reached within the 6 month period as provided under Art. 253A of the LC. (Mindanao Terminal and Brokerage Services lnc., v. Confessor, GR. No. 111809, May 5, 1997) Q: When is the effectivity of a CBA arbitral award concluded beyond 6 months from the expiration of the old CBA? A: The CSA arbitral awards granted 6 months from the expiration of the last CSA shall retroact to such time agreed upon by both the Er and the union. Absent such agreement as to retroactivity, the award shall retroact to the 51 1 day after the 6 month period following the expiration of the last day of the CSA should there be one. In the absence of a CSA, the SLE's determination of the date of retroactivity as part of his discretionary powers over arbitral award shall control. (Manila Electric Company v. Quisumbing, G.R. No. 127598, Feb. 22 and Aug. 1, 2000)
UST GOLDEN NOTES 2010 Q: PAL was suffering from a worsened financial condition resulting to a retrenchment which downsized its labor force by more than 1/3 thereby affecting numerous union members. Hence, the union went on strike. The PAL offered that shares of stock be transferred to its Ees but the union refused. Thus, PAL claimed it has no alternative left but to close. Hence, the union PALEA offered that the CBA be suspended for 10 years and to waive some of the economic benefits i~ the, CBA provided they remain the certlfled bargaining agent. PAL agreed and resumed operations. Is the agreement to suspend the CBA for 10 years abdicated the worker's right to bargain? A: No. The primary purpose of a CBA is to stabilize labor-management relations in order to create a climate of a sound and stable industrial peace. The assailed agreement was the result of the voluntary CB negotiations undertaken in the light of severe financial situation faced by PAL. Q: Is the agreement In conflict with Art. 253-A of the LC? A: No. There is no conflict between the agreement and Art. 253-A of the LC for the latter has a 2-fold purpose namely: a) to promote industrial stability and predictability and b) to assign specific time tables wherein negotiations become a matter of right and requirement. In so far as the first purpose, the agreement satisfies the first purpose. As regard the second purpose, nothing in Art. 253-A prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same. Q: Does the agreement violate the 5 year representation limit as provided under Art. 253-A of the LC?
BARGAINING AGENT and CERTIFICATION PROCEEDINGS ART. 255. EXCLUSIVE BARGAINING REPRESENTATION (EBR) AND WORKER'S . PARTICIPATION IN POLICY AND DECISION ,. '. MAKING . C
•
Q: What is the extent of the worker's right to participate in policy and decisionmaking processes in a company? A: Such right refers not only to formulation of corporate programs and policies but also to participation in grievance procedures and voluntary modes of settling disputes. Q: Explain the extent of the workers' right to participate in policy and decisionmaking process as provided under Art. XIII, Sec. 13 of the 1987 Constitution. Does it include membership in the Board of Directors of a corporation? A:
No.
In Manila
Quisumbing,
Electric Company v, G.R. No. 127598, January 27,
1999, the SC recognized the right of the union to participate in policy formulation and decision making process on matters affecting the Union members' rights, duties and welfare. However, the SC held that such participation of the union in committees of Er Meralco is not in the nature of a co-management control of the business of Meralco. Impliedly, therefore, workers' participatory right in policy and decision-making processes does not include the right to put a union member in the Corporation's Board of Directors. (2008 Bar Question) Q: Mayan Er solicit questions, suggestions and complaints from Ees even though the Ees are represented by a union? A: Yes, provided:
A: No. For under the said article, the representation limit of the exclusive bargaining agent applies only when there is an existing CBA in full force and effect. In this case, the parties agreed to suspend the CBA and put in abeyance the limit on representation. (Rivera v. Espiritu, G.R. No. 135547, Jan, 23, 2002)
UNIVERSITY
1.
The CB representative executes an agreement waiving the right to be present on any occasion when Ee grievances are being adjusted by the Er; and
2.
Er acts strictly within the terms of his waiver agreement.
OF SANTO
PacuCtaa
TOMAS
ae CDerecno CiviC
LABOR RELATIONS: COLLECTIVE BARGAINING Q: The hotel union filed a Notice of Strike with the NCMB due to ULP against the Diamond Hotel who refused to bargain with it. The hotel advised the union that since it was not certified by the DOLE as the exclusive bargaining agent, it could not be recognized as such. Whether the Union may bargain collectively? A: No. Art. 255 of the LC declares that only the labor organization designated or selected by the majority of the Ees in an appropriate collective bargaining (CB) unit is the exclusive representative of the employees (Ees) in such unit for the purpose of CB. The union is admittedly not the exclusive representative of the majority of the Ees of the hotel, hence, it could not demand from the hotel the right to bargain collectively in their behalf. (Manila Diamond Hotel v. Manila Diamond Hotel Ees Union, G.R. No. 158075, June 30, 2006, J. Carpio-Morales)
.' :-'
ART. 256-259. PETIT10N FOR __ CERTIFICATION ELECTION (PCE~
Q: What is a bargaining unit?
A:
5.
A group of employees (Ees) Of a given employer Comprised of all or less than all of the entire body of Ees Which the collective interest of all the Ees consistent with equity to the Er Indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions.
Q: What are the factors considered determining the appropriateness of bargaining unit?
in a
A: 1. 2.
Ees allowed to vote at the time of the certification elections?
120
1. 2. 3. 4.
Q: Are probationary
A: Yes. Under Art. 255 of the LC the "labor organization designated or selected by the majority of the Ees in an appropriate bargaining unit shall be the exclusive representative of the Ees in such unit for purposes of CB. " CB covers all aspects of the employment relation and the resultant CSA negotiated by the certified union binds all Ees in the bargaining unit. Hence, all rank and file Ees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The LC makes no distinction as to their employment status as basis for eligibility in supporting the petition for certification election. The law refers to "a\l" the Ees in the bargaining unit. All they need to be eligible to support the petition is to belong to the "bargaining unit." The provision in the CSA disqualifying probationary Ees from voting cannot override the constitutionally-protected right of workers to self-organization, as well as the provisions of the LC and its implementing rules on certification elections and jurisprudence. A law is read into, and forms part of, a contract. Provisions in a contract are valid only if they are not contrary to law, morals, good customs, public order or public policy. (NUWHRAIN-MPHC v. SLE, G.R. No. 181531, July 31,2009, J. Carpio-Morales)
, '" .
3. 4.
Will of the Ees. (globe doctrine) Affinity and unity of the Ees' interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions. (substantial mutual interest rule) Prior collective bargaining history Similarity of employment status. (SMC v. Laguesma, G.R. No. 100485, September 21, 1994)
Q: What. are the factors determining the substantial doctrine?
A:
1.
considered in mutual interest
Similarity in the scale and manner of determining earnings 2. Similarity in employment benefits, hours of work, and other terms and conditions of employment 3. Similarity in the kinds of work performed 4. Similarity in the qualifications, skills and training of Ees 5. Frequency of contract or interchange among the Ees . 6. Geographical proximity 7. Continuity and integration of production processes 8. Common supervision and determination of labor-relations policy 9. History of CS 10. Desires of the affected Ees or 11. Extent of union organization
UST GOLDEN NOTES 2010 Q: A registered labor union in UP, ONAPUP, filed a petition for certification election (PCE) among the non-academic Ees. The university did not oppose, however, another labor union, the All UP Workers Union assents that it represents both academic and non-academic personnel and seeks to unite all workers in 1 union. Do Ees performing academic functions need to comprise a bargaining unit distinct from that of the non-academic E~? 0 • A: Yes. The mutuality of interest test should be taken into consideration. There are two classes of rank and file Ees in the university that is, those who perform academic functions such as the professors and instructors and those whose function are non-academic who are the janitors, messengers, clerks etc. Thus, not much reflection is needed to perceive that the mutuality of interest which justifies the formation of a single bargaining unit is lacking between the two classes of Ees. (u.P. v. Ferrer-Calleja, GR. No.96189, July 14, 1992) Q: Is the bargaining history a decisive factor in the determination of appropriateness of bargaining unit? A: No. While the existence of a bargaining history is a factor that may be reckoned with in determining the appropriate bargaining unit, the same is not decisive or conclusive. Other factors must be considered. The' test of grouping is community or mutuality of interests. This is so because the basic test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the combination which will best assure to a" Ees the exercise of their CB rights. (Democratic Labor Ass'n v. Cebu Stevedoring Company, lnc., GR.. No. L-10321, Feb. 28, 1958)
Q: What
is
"one-union,
one-company"
policy?
A:
GR: It is the proliferation of unions in an Er unit. Such is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of Ees to the right to self-organization for purposes of collective bargaining (CB).
2.
Supervisory Ees who are allowed to form their own unions apart from the rank-and-file Ees and The policy should yield to the right of Ees to form union for purposes not
and
Note: Two companies cannot be treated into a single bargaining unit even if their businesses are related. Subsidiaries or corporations formed out of former divisions of a mother company following a reorganization may constitute a separate bargaining unit. Q: Union filed a peE among the rank and file Ees of three security agencies including the Veterans Security. The latter opposed alleging that the three security agencies have separate and distinct corporate personalities. Maya single PCE filed by a labor union in the three corporations instead of filing 3 separate petitions? A: Yes. The following are indications that the 3 agencies do not exist and operate separately and distinctly from each other with different corporate direction and goals: 1) Veterans Security failed to rebut the fact that they are managed through the Utilities Management Corp with a" their Ees drawing their salaries and wages from the said entity; 2) that the agencies have common and interlocking incorporators and officers; 3) that they have a single mutual benefit system and followed a single system of compulsory retirement. 4) they could easily transfer security guards of one agency to another and back again by simply filling-up a common pro-forma slip; 5) they always hold joint yearly ceremonies such as the PGA Annual Awards Ceremony; and 6) they continue to be represented by one counsel. Hence, the veil of corporate fiction of the 3 agencies should be lifted for the purpose of allowing the Ees of the 3 agencies to form single union. As a single bargaining unit, the Ees need not file 3 separate PCE. (Philippine Scout Veterans Security and Investigation Agency v. SLE, G.R. No. 92357, July 21,
1993) ART. 256. REPRESENTATION; ISSUE IN ORGANIZED ESTABLISHMENT Q: Who is a bargaining
XPN:
1.
contrary to law, self-organization to enter into CB negotiations.
.
representative?
A: It is a LLO or an officer or agent of such organization whether or not employed by the Er. (Art. 2120])
UNIVERSITY
OF
Pacu[taa
SANTO
TOMAS
de ([)erecno CiviC
("""'.
'9'
121
LABOR RELATIONS: COLLECTIVE BARGAINING Q: Who is representative?
an
exclusive
bargaining
A: Any LLO duly recognized or certified as the sole and exclusive bargaining agent of all the Ees in a bargaining unit. (Sec. 1 [t), Rule I, Book V, IRR)
Q: Can there be several bargaining unit?
unions
in one
A: Yes, but only one will be chosen as the bargaining agent thru certification election. Q: Can there be several in one unit?
bargaining
agents
Q: Can there be several in one company?
bargaining
agents
1.
Q: Can there be several CBA in one company? A: Yes, provided there is only one CSA per bargaining unit. unions
a bargaining
A: No. establishment?
A: It refers to an enterprise where there exists a recognized or certified sole and exclusive bargaining unit. (Sec. 1 [II], Rule I, Book V, IRR) Q: What is an unorganized establishment? A: It is one where no union has yet been duly recognized or certified as bargaining representative.
Q: PT& T
Supervisory employees (Ees) Union-APSOTEU filed a petition for certification election (PCE) among the supervisory Ees of PT& T. The UNION later on amended its petition to include the allegation that PT&T was an unorganized establishment employing roughly 100 supervisory Ees from whose ranks will constitute the bargaining unit sought to be established. PT&T opposed the petition, alleging that a certified bargaining unit already existed among its rank-and-file Ees which makes it an organized establishment. Is PT&T an organized or unorganized establishment?
:i22
Q: IJYhat are the 3 methods of determining the bargaining representative?
A:
A: Yes.
Q: What is an organized
The fact that petitioner's rank-and-file Ees were already represented by a certified bargaining agent does not make PT&T an organized establishment vts-e-vis the supervisory Ees. After all, supervisory Ees are "not eligible for, membership in a labor organization of the rank-and-file Ees. (PT& T Corp. v. Laguesma, G.R. No. 101730, June
17, 1993)
A: No.
Q: Are all legitimate agent?
A: The supervisory Ees of PT&T did not yet have a certified bargaining agent to represent them at the time the union, which is a LLO duly registered with the DOLE, filed the PCE. Since no certified bargaining agent represented the supervisory Ees, PT&T may be deemed an unorganized establishment.
2. 3.
Voluntary recognition Certification election run-off Consent election
Q: What is voluntary
with or without
recognition?
A: The process by which a legitimate labor union is recognized by the employer (Er) as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office. (Sec. 1 [bbb), Rule I, Book V, IRR)
Q: What voluntary
are the three (3) conditions recognition (VR)?
to
A: VR requires 3 concurrent conditions: 1. VR is possible only in an unorganized establishment. 2. Only one union must ask for recognition. If there 2 or more unions asking to be recognized, the Er cannot recognize any of them; the rivalry must be resolved through an election. 3. The union voluntarily recognized should be the majority union as indicated by the fact that members of the bargaining unit did not object to the projected recognition. If no objection is raised, the recognition will proceed, the DOLE will be informed and CSA recognition will commence. If objection is raised, the recognition is barred and a certification election or consent election will have to take place.
UST GOLDEN NOTES 2010 Note: in an organized establishment, voluntary recognition is not possible. A petition to hold a CE has to be filed within the freedom period which means the last 60 days of the s" year of the expiring CSA. The petition may be filed by any LLO, but the petition must have written support of at least 25% of the Ees in the bargaining unit. Q: Where and when to file the petition VR?
for
A: Within 30 days from such rec,ognition, Er shall submit a notice of VR with the Regional Office which issued the recognized labor union's certificate of registration or certificate of creation of a chartered local. Q: What are the requirements
for VR?
A: The notice of VR shall be accompanied by the original copy and 2 duplicate copies of the following req'ts: 1. Joint statement under oath of VR 2. Certificate of posting of joint statement for 15 consecutive days in at least 2 conspicuous places in the establishment of the bargaining unit 3. Certificate of posting 4. Approximate number of Ees in the bargaining unit and the names of those who supported the recognition 5. Statement that the labor union is the only LLO operating within the bargaining unit. Note: Where the notice of voluntary recognition is sufficient in form, number and substance and where there is no registered labor union operating within the bargaining unit concerned, the Regional Office, through the Labor Relations Division shall, within 10 days from receipt of the notice, record the fact of VR in its roster of legitimate labor unions and notify the labor union concerned.
Q: What are the effects of recording of voluntary
recognition
of fact
(VR)?
A: 1.
The recognized labor union shall enjoy the rights, privileges and obligations of an existing bargaining agent of all the employees (Ees) in the bargaining unit. 2. It shall also bar the filing of a petition for certification election by any labor organization for a period of 1 year from the date of entry of VR. Q: What is certification election (CE)? A: It is the process of determining through secret ballot the sale and exclusive representative of the Ees in an appropriate
bargaining negotiation.
unit, for purposes of CB or (Sec. 1 [hi, Rule I, Book V, IRR)
Note: The process is called CE because it serves as the official, reliabie and democratic basis for the BLR to determine and certify the union that shall be the exclusive bargaining representative of the Ees for the purpose of bargaining with the Er.
Q: What election?
is
the
nature
of
certification
A: A certification election is not a litigation but merely an investigation of a non-adversarial fact-finding character in which BLR plays a part of a disinterested investigator seeking merely to ascertain the desire of the employees as to the matter of their representation. (Airline Pilots Ass'n of the Philippines v. CIR, 76 SCRA 274)
Q: What election?
is the purpose
of a certification
A: It is a means of determining the worker's choice of: 1. Whether they want a union to represent them for collective bargaining or if they want no union to represent them at all. 2. And if they choose to have a union to represent them, they will choose which among the contending unions will be the sale and exclusive bargaining representative of the employees in the appropriate bargaining unit. Q: What are the issues certification proceeding?
involved
in
a
A: Certification proceedings directly involve two issues: 1. Proper composition and constituency of the bargaining unit; and 2. The veracity of majority membership claims of the competing unions so as to identity the one union that will serve as the bargaining representative of the entire bargaining unit. Note: Some of the Ees may not want to have a union; hence, "no union" is one of the choices named in the ballot. If "no union" wins. the company or the bargaining unit remains ununionized for at least 12 months, the period is known as 12-month bar. After that period, a petition for a CE may be filed again.
UN!VERSITY
OF SANTO
PacuCtaa
TOMAS
ae (])ereclio CiviC
LABOR RELATIONS: COLLECTIVE BARGAINING Q: Distinguish the requisites for certification election organized and an establishment.
for a petition between an unorganized
3. 4.
A:
CE except within 60 days before the expiration of the CSA. (See Art. 253 & Must be duly supported by 25% of all the members of the appropriate bargaining unit (ABU). Percentage base: all members of an ABU.
Not applicable. No freedom period. Petition can be filed anytime.
No substantial support rule. Why? Intention of law is to bring in the union, to implement policy behind Art. 211(a).
Note: The approval of the PCE in an unorganized bargaining unit is NEVER appealable, the reason being that the law wants the ununionized to be unionized. Q: Should the consent signatures of at least 25% of the Ees in the bargaining unit be submitted simultaneously with the filing of the petition for certification election (peE)? A: No, the administrative rule requiring the simultaneous submission of the 25% consent signatures upon the filing of PCE should not be strictly applied to frustrate the detenmination of the legitimate representative of the workers. Accordingly, the Court held that the mere filing of a PCE within the freedom period is sufficient basis for the issuance of an order for the holding of a CE, subject to the submission of the consent signatures within a reasonable period from such filing. (Port Workers Union of the Phils. v. Laguesma, G.R. Nos. 94929-30 Mar. 18, 1992) ,
Q: Who may file a petition election (peE)?
for certification
A: 1. 2.
124
Any legitimate labor organization (LLO) A national union or federation which has already issued a charter
certificate to its local chapter participating in the CE A local chapter which has been issued a charter certificate An Er only when requested to bargain collectively in a bargaining unit where no registered CSA exists. (Sec 1, Rule VIII, Book V, IRR as amended by D. O. 40-F-03)
Note: A national union or federation filing a petition in behalf of its local/chapter shall not be required to disclose the names of the local/chapter's officers and members, but shall attach to the petition the charter certificate it issued to its local/chapter. (Sec. 1, Rule VIII, Book V, IRR as amended by D. O. 40-F-03) Q: Mayan employee intervene in the petition for certification election (peE)? A: Yes, for the purpose of protecting his individual right. (Sec. 1, Rule VIII, Book V, IRR as amended by 0.0.40-03) Q: Where is peE filed? A: It shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local. (Implementing Rules, as amended by D.O. 40-03) Q: Who shall hear and resolve the peE? A: The Mediator-Arbiter. Q: When to file peE? A: The proper time to file the PCE depends on whether the Certified Bargaining Unit has a CSA or not: 1. If it has no CBA, the petition may be filed anytime outside the 12-month bar (certification year). 2. If it has CBA, it can be filed only within the last 60 days of the s" year of the CBA. Note: At the expiration of the freedom period, the Er shall continue to recognize the majority status of the incumbent bargaining agent where no PCE is filed.
UST GOLDEN NOTES 2010 Q: Distinguish union certification election.
A:
, ,
ONION ELECTION
! -,;.;~
Held pursuant to the union's constitution and by-laws Right to vote is enjoyed only by union members
Winners of union election become officers and representatives of the union only
election
freedom period of such CBA.
from
Alternative Answer: A PCE may be filed outside the freedom period of a current CBA if such CBA is a new CBA that has been prematurely entered into, meaning, it was entered into before the expiry date of the old CBA. The filing of the PCE shall be within the freedom period of the old CBA which is outside the freedom period of the new CSA that had been prematurely entered into.
CERTIFICATION . ELECTION The process is ordered and supervised by DOLE All Ees whether union or non-union members who belon~to the., appropriate bargaining unit can vote The winner in a CE is an entity, a union, which becomes the representative of the whole bargaining unit that includes even the members of the defeated unions.
Note: Both in CE and union election, prescribed procedures should be followed.
Q: Are probationary employees entitled to vote in a CE? Why?
the
Q: Can a "no-union" win in a ceriification Election (CE)? A: Yes. Because the objective in a CE is to ascertain the majority representation of the bargaining representative, if the Ee's desire to be represented at all by anyone. Hence, no union is one of the choices in aCE, (2006 Bar Question) Alternative Answer: No. A no union cannot win in a CEo The purpose of a CE is to select an excusive bargaining agent and a no union vote would precisely mean that the voter is not choosing any of the contending unions. If the no- union votes constitute a majority of the valid votes cast, this fact will all the more mean that no union won in CEo A one-year bar will consequently stop the holding of another CE to allow the Er to enjoy industrial peace for at least one year. Q: In what instance may a PCE be filed outside the freedom period of a current CBA? A: As a general rule, in an establishment where there is a CBA in force and effect, a PCE may be filed only during the freedom period of such CBA. But to have that effect, the CBA should have been filed and registered with the DOLE. (Art 231, 253-A and 256, LC). (1997 Bar Question) Thus, a CBA that has not been filed and registered with the DOLE cannot be a bar to a CE and such election can be held outside the UN!V
(Ees)
A: In a CE, all rank-and-file Ees in the appropriate bargaining unit (ABU) are entitled to vote. This principle is clearly stated in Art. 255 of the LC which states that the "labor organization designated or selected by the majority of the Ees in such unit shall be the exclusive representative of the Ees in such unit for the purpose of collective bargaining (CB)." CB covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all Ees in the bargaining unit. Hence, all rank- and-file Ees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The LC makes no distinction as to their employment status as basis for eligibility to vote in the petition for CEo The law refers to "all" the Ees in the bargaining unit. All they need to be eligible to vote is to belong to the "bargaining unit," (Airtime Specialists, Inc. V. Ferrer-Calleja, G.R. No. 80612-16, Oec. 29, 1989). (1999 Bar Question) Q: What is direct certification? A: It is the process whereby the Med-Arbiter directly certifies a labor organization of an appropriate bargaining unit (ABU) of a company after a showing that such petition is supported by at least a majority of the Ees in the bargaining unit. Q: Does the failure of SAMAFIL (an independent union) to prove its affiliation with NAFLU-KMU federation affect its right to file a PCE as an independent union? A: No, as a LLO, it has the right to file a PCE on its own beyond question. Its failure to prove its affiliation with the NAFLU-KMU cannot affect its right to file said PCE as an independent union. At the most, its failure will result in an ineffective affiliation -,yith NAFLUE R S ITY
OF
Pacu(taa
S ANTO
TOM.A~
de CDereclio Cl'lld
~li! "i,
125
LABOR RELATIONS: COLLECTIVE BARGAINING KMU. Despite affiliation, the local union remains the basic unit free to serve the common interest of ali its members and pursue its own interests independently of the federation. (Samahan ng mga Manggagawa sa Filsystems v. SLE, G.R. No. 128067, June 5, 1998)
Rule VIII, Book V, IRR as amended by DO 40-F03)
Q: What are the requisites before union can be declared a winner majority rule)?
a labor (double
A: Q: May illegally dismissed company participate in the election (CE)?
Ees of the certification
A: Yes, it is now well-settled that Ees who have been improperly laid off but who have at present an una ban do ned right to or expectation of re-employment, are eligible to vote in CE's. Thus, and to repeat, if the dismissal is under question, as in the case now at bar whereby a case of iliegal dismissal and/or ULP was filed, the Ee's concerned could still qualify to vote in the elections. (Phi/. Fruits & Vegetables Industries v. Torres, G.R. No. 92391, July 3, 1992) Q: Is direct certification
(DC) still allowed?
A: No. Even in a case where a union has filed a petition for CE, the mere fact that there was no opposition does not warrant a DC. More so in a case when the required proof is not presented in an appropriate proceeding and the basis of the DC is the union's self-serving assertion that it enjoys the support of the majority of the Ees, without subjecting such assertion to the test of competing claims. (Samahang Manggagawa sa Permex v. Secretary, G.R. No. 107792, Mar. 2, 1998) Q: Can the BLR certify a union as the exclusive bargaining representative after showing proof of majority representation thru union membership cards without conducting an election? A: No. The LC (In Arts. 256, 257 and 258) provides only for a CE as the mode for determining the exclusive collective bargaining representative if there is a question of representation in an appropriate bargaining unit. (1998 Bar Question) Q: What is a consent
election?
A: An election voluntarily agreed upon by the parties, with or without the intervention by DOLE. (Sec. 1 (hi, Rule I, Book V, IRR) Note: To afford an individual employee-voter an informed choice where a local/chapter is the petitioning union, the local/chapter shall secure its certificate of creation at least 5 working days before the date of the consent election. (Sec.1,
1. 2.
Majority of the eligible voters cast their votes. Majority of the valid votes cast is for such union.
Q: How to determine rule?
the double
majority
A: 1. 2.
In determining the eligible votes cast (first majority) include spoiled ballots In determining valid votes (second majority), eliminate spoiled ballots but included the challenged votes.
Q: A certification election was conducted among the rank-and-file Ees of Holiday Inn Manila Pavilion Hotel. In view of the significant number of segregated votes, contending unions, National Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavilion Hotel Chapter (NUWHRAIN-MPHC) and Holiday Inn Manila Pavilion Hotel Labor Union (HIMPHLU), referred the case back to the Med-Arbiter to decide which among those votes would be opened and tallied. 11 votes were initially segregated because they were cast by dismissed Ees, albeit the legality of their dismissal was still pending before the CA. 6 other votes were segregated because the Ees who cast them were already occupying supervisory posltions at the time of the election. Still 5 other votes were segregated on the ground that they were cast by probationary Ees and, pursuant to the existing CBA, such Ees cannot vote. NUHWHRAIN-MPHC further avers that HIMPHLU, which garnered 169 votes, should not be immediately certified as the bargaining unit, as the opening of the 17 segregated ballots would push the number of valid votes cast to 338, hence, the 169 votes which HIMPHLU garnered would be 1 vote short of the majority which would then become 170. Was HIMPHLU able to obtain the required majority for it to be certified as the exclusive bargaining agent? A: No, it is well-settled that under the "double majority rule" for there to be a valid certification election, majority of the bargaining unit must
UST GOLDEN NOTES 2010 have voted and the winning union must have garnered majority of the valid votes cast. Following the ruling that all the probationary Ees votes should be deemed valid votes while that of the supervisory Ees should be excluded, it follows that the number of valid votes cast would increase. Under Art. 256 of the LC, the union obtaining the majority of the valid votes cast by the eligible voters shall be certified as the sole exclusive bargaining agent of all the workers in the appropriate bargaining unit. This majority is 50% + 1, in tthis case at least 170. HIMPHLU obtained 169, clearly it was not able to obtain a majority vote. (NUWHRAIN -MPHC v. SLE, G.R. No. 181531, July 31,2009, J. Carpio-Morales) Q: What is a run-off
election?
A: An election conducted when: 1. An election which provides for 3 or more choices results in none of the contending unions receiving a majority of the valid votes cast, and 2. There are no objections or challenges which if sustained can materially alter the results, provided 3. The total number of votes for all the contending unions is at least 50% of the number of votes cast. (Sec. 1, Rule X, Book V, IRR) 4. Not one of the choices obtained the majority of the valid votes cast (50%+ 1 second majority); 5. The two choices which garn·ered the highest votes will be voted and the one which garners the highest number of votes will be declared the winner provided they get the majority votes of the total votes cast. Q: Who election?
are
the
choices
in
a
run-off nd
A: The unions receiving the highest and 2 highest number of the votes cast. (Sec. 2, Rule X, Book V, IRR) Note: "No Union" shall not be a choice in the runoff election
UNIVERSITY
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LABOR RELATIONS: Q: Distinguish certification elections.
COLLECTIVE BARGAINING
election, consent election, direct certification,
and run-off and re-run
A:
To determine the sole and exclusive bargaining agent of all the Ees in an appropriate bargaining unit for the purpose of collective bargaining.
Requires petition CE filed by a union or Er. A Med-Arbiter grants the petition and an election officer is designated by regional director to supervise the election. Note: Med-Arbiter may determine if there is Er-Ee r<>",tir.,nc: h,;n and if the voters are
o determine the issue majority I of all the workers in the appropriate CB unit mainly for the purpose of determining the administrator of the CBA when the contracting union suffered massive disaffiliation and not for the purpose of determining the ent for of CB. is directly cert as an appropriate bargaining unit of a company upon showing that petition is supported by at least a majority of the Ees in the bargaining unit. allowed.
~~~ Held by agreement of the unions with or without the participation of the Med-Arbiter.
Med-Arbiter union is the exclusive CB representative of the Ees of an appropriate bargaining unit without holding a CE, but merely on the basis of evidence of in support of the union's claim that is the choice of the majority of the Ees.
Takes place 1. If one choice receives a plurality of the vote and the remaining choices results in a tie; or 2. If all choices received the same number of votes. union is also a choice. Note: Petition for cancellation of registration is not a bar to a PCE. No prejudicial question shall be entertained in a petition for certification election. (D. O. 40-03)
(0
BARS TO CERTIFICATION ELECTlON(CE)'
3.
The petition was filed before or after the FREEDOM PERIOD of a duly registered GBA; provided that the 60day period based on the original GBA shall not be affected by any amendment, extension or renewal of the GBA; (contract bar rule)
4.
The petition was filed within 1 year from entry of voluntary recognition or within the same period from a valid certification, consent or run-off election and no appeal on the results of the certification, consent or run-off election is pending; (12-month bar; certification year bar rule)
Q: What are the grounds for denying the PCE?
A: 1.
2.
128
The petitioning union or federation is not listed in the DOLE's registry of legitimate labor unions or that its registration certificate legal personality has been revoked or cancelled with finality Failure of a local chapter or national union/federation to submit a duly issued charter certificate upon filing of the petition
UST GOLDEN NOTES 2010 5.
A duly certified union has commenced and sustained negotiations with the Er in accordance with Art. 250 of the LC within the 1-year period. (negotiation bar rule)
5.
There exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to. which an incumbent or certified' batg~ining agent is a party. (deadlock bar rule)
7.
In case of an organized establishment, failure to submit the 25% support req't for the filing of the PCE.
8.
Non-appearance of the petitioner for 2 consecutive scheduled conferences before the med-arbiter despite due notice, and
9.
Absence of Er-Ee relationship between all the members of the petitioning union and the owner of the establishment where the proposed bargaining unit is sought to be represented. (Sec. 14[a), Rule VIII, Book V, IRR, as amended by D.O. 40-F-03)
Q: What is a prohibited ground for denial/suspension of the petition certification election?
the for
of a duly registered union, the MedArbiter issued an order calling for a CE on July 25, 2001. This order was promulgated and served on the parties on July 12, 2001. On July 14, 2001, UNlOAD submitted and served the required documents for its registration as an independent union, which documents were 'approved by the DOLE on July 15,2001. During the elections, UNlOAD won over SIGAW. SIGAW questioned UNlOAD's victory on the ground that UNlOAD was not a duly registered union when it filed the petition for a CEo Shall SIGAW's case prosper or not? Why? A: No, SIGAW's case will not prosper. The application of technicalities of procedural req'ts in CE disputes will serve no lawful objective or purpose. It is a statutory policy that no obstacles should be placed on the holding of aCE, (Samahang ng Manggagawa sa Pacific Plastic vs. Laguesma, GR. No. 111245, Jan. 31, 1997) and that the law is indisputably partial to the holding of a CE. (Western Agusan vs. Trajano G.R. No. 65833, May 6, 1991) At any rate, UNlOAD completed all the req'ts for union registration on July 14,2001, and legitimate union status was accorded on July 15, 2000, or at least 10 days before the. scheduled date for holding the CEo (2001 Bar Question) Q: What is meant by "contract-bar
A: The inclusion as union members of Ees outside the bargaining unit. Said Ees are automatically deemed removed from the list of membership of said unions. Q: Does the filing of a petition to cancel the petitioner's registration cause the suspension or dismissal of the petition for certification election? A: No. To serve as a ground for dismissal of a PCE, the legal personality of the petitioner should have been revoked or cancelled "with finality". Q: UNlOAD, a labor organization claiming to represent the majority of the rank and file workers of BAGSAK Toyo Manufacturing Corp. (BMTC), filed a petition for CE during the freedom period obtaining in said corp. Despite the opposition thereto by SIGAW Federation on the ground that UNlOAD was not possessed with all the attributes
rule"?
A: Contract-bar rule means that while a valid and registered CSA is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent union except during the 50-day period immediately prior to its expiration, which period is called the freedom period. Note: In the absence of such timely notice or filing of petition, the contract executed during the automatic renewal period is a bar to CEo There shall be no amendment, alteration, or termination of any of the provisions of the CSA except to give notice of one party's intention to amend, alter and terminate the provisions within the freedom period.
UNIVERSITY
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LABOR RELATIONS: COLLECTIVE BARGAINING Q: What are the req'ts in order to invoke the contract bar rule? A: The existing CBA must: 1. Be in writing and signed by all contracting parties 2. Contain the terms and conditions of employment 3. Cover employees in an appropriate bargaining unit 4. Be for a reasonable period or duration 5. Be ratified 6. Be registered with the SLR; and 7. The violation of the contract bar rule or the existence of a duly registered CSA must be specially pleaded as a defense.
Q: What is the effect
of an invalid
or
unregistered eBA? A: There is no bar and therefore a certification election may be held. Note: Registration of CSA only puts into effect the contract-bar rule but the CSA itself is valid and binding even if unregistered. Q: What are the exceptions bar rule?
to the contract
A: 1. 2. 3. 4.
5.
6.
7.
8. 9.
The CSA is unregistered The CSA is inadequate and incomplete The CSA was hastily entered into (Doctrine of premature extension) Withdrawal of affiliation from the contracting union brought about by schism or mass disaffiliation Contract where the identity of the representative is in doubt. (ALU v. Ferrer Calleja, G.R. No. 85085, Nov. 6, 1989) CSA entered into between the Er and the union during the pendency of a petition for CE (Vassar Industries Ees Union v. Estrella, G.R. No. L-46562, Mar. 31, 1978) CBA conducted between the Er and the union is not bar to a certification election filed by another union and said CSA can be renegotiated at the option of the new bargaining agent. (ATU v. Hon. Noriel, G.R. No. L48367, Jan. 16, 1979) A CBA registered with falsified supporting documents CSA was concluded in violation of an order enjoining the parties from
entering into a CSA until the issue of representation is resolved 10. Petition is filed during the 50-day freedom period. Note: Basic to the contract bar rule is the proposition that the delay of the right to select representatives can be justified only where stability is deemed paramount. Excepted from the contract bar rule are certain types of contracts which do not foster industrial stability, such as contracts where the identity of the representative is in doubt. Any stability derived from such contracts must be subordinated to the Ees' freedom of choice 'because it does not establish the type of industrial peace contemplated by law. (Firestone Tire & Rubber Company Ee's Union v. Estrella, G.R. No. L-45513-14, Jan. 6, 1978) Q: What doctrine?
is
the
successor-
in-interest
A: GR: It is when an Er with an existing CSA is succeeded by another Er, the successorin-interest who is the buyer in good faith has no liability to the Ees in continuinq employment and the bargaining agreement because these contracts are in personam. XPNs: -1-.-When the successor-in-interest expressly assumes an obligation; 2. The sale is a device to circumvent the obligation; or 3. The sale or transfer is made in bad faith. Q: What is the substitutionary
doctrine?
A: It is where there occurs a shift in the Ees union allegiance after the execution of a collective bargaining (CS) contract with the Er, the Ees can change their agent (labor union) but the CS contract which is still subsisting continues to bind the Ees up to its expiration date. They may however, bargain for the shortening of said expiration date. Note: The Er cannot revoke the validly executed CS contract with their Er by the simple expedient of changing their bargaining agent. The new agent must respect the contract. (Benguet Consolidated Inc. v. BCI Ees and Worker's Union-PAFLU, GR. No. L-24711, April 30, 1968) It cannot be invoked to support the contention that a newly certified CS agent automatically assumes all the personal undertakings of the former agent-like the "no strike clause" in the CBA executed by the latter.
UST GOLDEN NOTES 2010 Q: When does deadlock arise? A: It arises when there is an impasse, which presupposes reasonable effort at good faith bargaining which, despite noble intentions, did not conclude in an agreement between the parties. Q: What is deadlock bar rule?
A: A petition for certification election (PCE) cannot be entertained if, before th!)lfiling of the PCE, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid strike or lockout. Q: What are the indications
deadlock?
A:
1. 2.
of a genuine
The submission of the deadlock to a third party conciliator or arbitrator; and The deadlock is the subject of a valid notice strike or lockout. -
Q: Capitol Medical Center Ees' AssociationAlliance of Filipino Workers (CMCEA-AFW) emerged as the certified representative of the rank-and-file Ees at Capitol Medical Center (CMC). Due to CMC's refusal to bargain collectively, CMCEA-AFW filed a notice of strike and later on staged the strike after complying with the other legal req'ts. The SLE assumed jurisdiction over the case and issued an order certifying the same to the NLRC for compulsory arbitration. During all of these events Capitol Medical Center Alliance of Concerned employees (Ees)-Unified Filipino Service Workers filed a petition for CE among the regular rank-and-file Ees of CMC. The petition for CE was dismissed and the CMC was directed to negotiate with CMCEA-AFW. Was the dismissal of the PCE proper? A: Yes, if the law proscribes the conduct of a CE when there is a bargaining deadlock submitted to conciliation or arbitration, with more reason should it not be conducted if, despite attempts to bring an Er to the negotiation table by the certified bargaining agent, there was "no reasonable effort in good faith" on the Er to bargain collectively. The circumstances in this case should considered as similar in nature to "bargaining deadlock" when no CE could held. This is also to make sure that
be a be no UN IV
floodgates will be opened for the circumvention of the law by unscrupulous Ers to prevent any certified bargaining agent from negotiating a CBA. Sec. 3, (Rule VIII), Book V of the IRR should be interpreted liberally so as to include a circumstance where a CBA could not be concluded due to the failure of one party to willingly perform its duty to bargain collectively. (Capdol Medical Center Alliance of Concerned Ees v. Laguesma, 118915, Feb. 4, 1997)
GR. No.
Should the certification election proceedings be suspended in view of the pending case for cancellation of the union's certificate of registration? Q:
A: No, the pendency of a cancellation case is not a ground for the dismissal or suspension of a representation proceeding considering that a registered labor organization (LO) continues to be a legitimate one entitled to all the rights appurtenant thereto until a final valid order is issued cancelling such registration. Once a LO attains the status of a LLO it begins to possess all of the rights and privileges granted by law to such organizations. As such rights and privileges ultimately affect areas which are constitutionally protected, the activities in which LO, associations and unions are engaged directly affect the public interest and should be zealously protected. (Progressive Dev't Corp. v. SLE, G.R. No. 115077, April 18, 1997) Q: What is negotiation bar rule? A: A PCE cannot be entertained if, before the filing of the PCE, the duly recognized or certified union has commenced negotiations with the Er in accordance with Art. 250 of the LC. Q: What is certification year rule?
A: No PCE may be filed within one year from the date of a valid certification, consent, or runoff election or from the date of voluntary recognition. ART. 258-A. EMPLOYER AS A BYSTANDER Q: What is the concept of an Er as a bystander? A: In all cases, whether the petition for certification election (PCE) is filed by an Er or a legitimate labor organization, the Er shall not be considered a party thereto with a concomitant right to oppose a P,CE. E R SIT
Y 0 F SAN
Pacu{taa
ToT
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ae (])ereclio CiviC
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131
LABOR RELATIONS: COLLECTIVE BARGAINING Note: Er's participation shall be limited to: 1. Being notified or informed of petitions of such nature; 2. Submitting the list of Ees during the preelection conference should the MedArbiter act favorably on the petition. Q: May the company actively participate in the conduct of the election in order to see to it that the election is clean, peaceful, orderly and credible? A: Yes, the manner in which the election was held could make the difference between industrial strife and industrial harmony in the company. What an Er is prohibited from doing is to interfere with the conduct of the certification election for the purpose of influencing its outcome. But certainly an Er has an abiding interest in seeing to it that the election is clean, peaceful, orderly and credible. (National Federation of Labor v. SLE and Hijo Plantation Inc., G.R. No. 104556, Mar. 1g, 1998) Q: PT & T Supervisory Ees Union filed a petition for the holdlnq of a certification election (CE) among the supervisory Ees of the PT&T Company. The company moved to dismiss the petition on the ground that union members were performing managerial functions and were not merely supervisory Ees. The company also alleged that a certified bargaining unit existed among its rank and file Ees which barred the filing of the petition.
1.
2. 3.
Does the company have the standing to file the motion to dismiss? Explain. If you were the Med-Arbiter, how would you resolve the petition. What is the proper remedy of an Er to ensure that the Ees are qualified to hold aCE?
A: 1.
2.
No, the company has no standing to file the motion to dismiss as the Er has no right to interfere in a purely union matter or concern. (Phil. Fruits and Vegetable Industries, Inc. v. Torres, G.R. No. 92391, July 3, 1992) A CE is the sole concern of the workers and the Er is regarded as nothing more than a bystander with no right to interfere at all in the election. As the med arbiter, I will: a. Deny, for lack of merit, the Er's
3.
4.
motion to dismiss the Union's PCE b. Proceed to hear the merits of the petition, especially: i. The appropriation of the claimed bargaining unit; ii. Inclusion and exclusion of voters, or the proposed voter list; and iii. If the petition is in order, to set the date, time and place of the election. The Er has no remedy. The petition for CE was initiated by the union; hence, the Er is a total stranger or a bystander in the election process. (Phil. Fruits and Vegetable In d u s t r i e s , Inc. v. Torres, G.R. No. 92391, July 3, 1992) To allow an Er to assert a remedy is an act of interference in a matter which is purely a concern of the Union. (1996 Bar Question)
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant SlIbject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz A.ngelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
UST GOLDEN NOTES 2010 (Republic Savings Bank v. CIR, G.R. No. L20303, Oct. 31, 1967)
:~"'~STRIKES;iOCKOUTS'AND CONCERTED I' - -,. , .. ACTION-S-:' -~ Q: What is the strikes, lockouts activities?
constitutional and other
Q: What is a strike?
basis of concerted
A: The State 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 (Sec. 3, A~. XIII,,1987 Constftution) . Note: The law does not look with favor upon strikes and lockouts because of. their disturbing and pernicious effects upon the social order and the public interests; to prevent or avert them and to implement Sec. 6, Art. XIV of the Constitution, the law has created several agencies, namely: the BLR, the DOLE, the Labor Management Advisory Board, and the CIR. (Luzon Marine Dev't Union v. Roldan, G.R. No. L-2660, May 30, 1950) Q: What is a concerted
action?
A: It means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. (Sec. 1 [uu), Rule I, Book V, IRR) It shall comprise not only concerted work stoppages, but also slowdowns, mass leaves, sitdowns, attempt to damage, destroy or sabotage plant equipment and facilities, and similar activities. (Samahang Manggagawa sa Sulpicion Lines v. Sulpicio Lines, Inc., G.R. No. 140992, Mar. 25, 2004) Q: What is the purpose
of a strike?
A: A strike is a coercive measure resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less, paralyzed. (Phil. Can Co. v. CIR, G.R. No. L3021, July 13, 1950)
A: It is an activity undertaken by 2 or more employees, by one on behalf of the others.
Q: What is a lockout?
Q: Are all concerted
A: It means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. (Art. 212 [pJ)
actions
strikes?
A: Not all concerted activities are strikes. They may only be protest actions - they do not necessarily cause work stoppage by the protesters. A strike in contrast is always a group action accompanied by work stoppage. Q: The Ees wrote and published a letter to the bank president, demanding his reSignation on the grounds of immorality, nepotism, favoritism and discrimination in the appointment and promotion of bank Ees. The bank dismissed the 8 Ees on the alleged libelous letter. Were the Ees engaged in a concerted activity? A: Yes, assuming that they acted in their individual capacities when they wrote the letter, they were nonetheless protected, for they were engaged in a concerted activity, in their right of self-organization that includes concerted activity for mutual aid and protection. Any interference made by the company will constitute as ULP. The joining in protests or demands, even by a small group of Ees, if in furtherance of their interests as such is a concerted activity protected by the Industrial Peace Act. It is not necessary that union activity be involved or that collective bargaining be contemplated,
Q: What is picketing? A: It is the act of marching to and fro the employers premises which is usually accompanied by the display of placard and other signs, making known the facts involved in a labor dispute. The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the Constitution. If peacefully carried out, it can not be curtailed even in the absence of Er-Ee relationship. (PAFLU v. Cloribel, G.R. No. L25878, Mar. 28, 1969) Q: Is the right to picket an absolute
right?
A: No, while peaceful picketing is entitled to protection as an exercise of free speech, the courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interests, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. (Liwayway Pub., Inc. v. Permanent Concrete
UNIVERSiTY
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LABOR RELATIONS: STRIKES, LOCKOUTS AND CONCERTED ACTIONS Workers
Union, G.R. No. L-25003,
Oct. 23,
1981) Q: Who is a strike-breaker? A: Any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining. (Art. 212 [r))
Q: What is a strike area? A: It means the establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of the Er struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment. (Sec. 1 [wi, Rule I, Book V, IRR) Q: What is an internal
union dispute?
A: It includes all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by laws of a union, including any violation of the rights and conditions of union membership provided for in this i.c. (Art. 212 [qj) Q: What is a boycott? A: It is an attempt, by arousing a fear of loss, to coerce others, against their will to withhold from one denominated "unfriendly to labor" their beneficial business intercourse.
Q: What is a slowdown? A: It is a method by which one's employees, without seeking a complete stoppage of work, retard production and distribution in an effort to compel compliance by the employer with the labor demands made upon him. Q: Does an "overtime boycott" or "work slowdown" by the employees constitute a strike and hence a violation of the CBA's "No strike, no lockout" clause? A: Yes, the concept of a slowdown is a "strike on the installment pian." It is a willful reduction in the rate of work by concerted action of workers for the purpose of restricting the output of the employer (Er), in relation to a labor dispute; as an activity by which workers, without a complete stoppage of work, retard production or their performance of duties and functions to compel management to grant their demands.
134
Such a slowdown is generally condemned as inherently illicit and unjustifiable, because while the employees (Ees) "continue to work and remain at their positions and accept the wages paid to them," they at the same time "select what part of their allotted tasks they care to perform of their own volition or refuse openly or secretly, to the Er's damage, to do other work;" in other words, they "work on their own terms." (Interphil Laboratories Ees UnionFFW v. Interphil Laboratories, Inc., G.R. No. 142824,Oec. 19,2001)
Q: What are the characteristics
A:
1. 2. 3. 4. 5. 6.
of a strike?
An Er-Ee relationship Existence of a labor dispute Employment relation is deem.ed to continue although in a state of belligerent suspension Temporary work stoppage Work stoppage is done through concerted action The striking group is a legitimate labor organization; in case of a bargaining deadlock, it must be the employees' sole bargaining representative
Q: PAL dismissed strike leader Capt. Gaston as a result of which the Union resolved to undertake the grounding of all PAL planes and the filing of applications for "protest retirement" of members who had completed 5 years of continuous service, and "protest resignation" for those who had rendered less than 5 years of service in the company. PAL acknowledged receipt of said letters and among the pilots whose "protest reslqnatlcn or retirement" was accepted by PAL were Enriquez and Ecarma. Before their readmission, PAL required Enriquez and Ecarma to accept 2 conditions, namely: that they sign conformity to PAL's letter of acceptance of their retirement and or reslqnatlon and that they submit an application for employment as new employees (Ees) without protest or reservation. As a result of this their seniority rights were lost. Are the pilots entitled their seniority rights?
to the restoration
of
A: No, an Ee has no inherent right to seniority. He has only such rights as may be based on a contract, statute, or an administrative regulation relative thereto. Seniority rights which are acquired by an Ee
UST GOLDEN NOTES 2010 through long-time employment are contractual and not constitutional. The discharge of an Ee thereby terminating such rights would not violate the Constitution. When the pilots tendered their respective retirement or resignation and PAL immediately accepted them, both parties mutually terminated the contractual employment relationship between them thereby curtailing whatever seniority rights and privileges the pilots had earned through the years.
,1
~
Q: Does the action of the Ees of PAL fall under the ambit of concerted actions protected by law1 A: No, the pilot's mass action was not a strike because Ees who go on strike do not quit their employment. Ordinarily, the relationship of Er and Ee continues until one of the parties acts to sever the relationship or they mutually act to accomplish that purpose. As they did not assume the status of strikers, their "protest retirement/resignation" was not a concerted activity which was protected by law. (Enrique v. Zamora, G.R. No. L-51382, Dec. 29, 1986) Q: What is a labor dispute? A: Any controversy or matter concerning terms or conditions or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants stand in the proximate relation of Ers and Ees. (Gold City Integrated Port Services, Inc. v. NLRC, G.R. No. 103560, July
6, 1995) Q: When is a person or entity as partiCipating or interested dispute?
A:
1. 2. 3. 4.
considered in a labor
If relief is sought against him or it, and He or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or Has a direct or indirect interest therein, or Is a member, officer, or agent of any association composed in whole or in part of employees or employers engaged in such industry, trade, craft, or occupation.
Q: Liwayway Publication Inc. is a second sub lessee of a part of the premises of the Permanent Concrete Products, Inc. It has a bodega for its newsprint in the sublet property which it uses for its printing and publishing business. The daily supply of newsprint needed to feed its printing plant is taken from its bodega. The Ees of the Permanent Concrete Products Inc. declared
a strike against their company. The union members picketed, stopped and prohibited Liwayway's trucks from entering the compound to load newsprint from its bodega. Does the lower court have jurisdiction to issue a writ of preliminary injunction considering that there was a labor dispute between Permanent Concrete Products, Inc. and the union? A: Yes, Liwayway is not in anyway related to the striking union except for the fact that it is the sub- lessee of a bodega in the company's compound. The business of Liwayway is exclusively the publication of magazines which has absolutely no relation or connection whatsoever with the cause of the strike of the union against their company, much less with the terms, conditions or demands of the strikers. Liwayway is merely a 3rd person or an innocent by-stander. (Liwayway Pub., Inc. v. Permanent Concrete Workers Union, G.R. No. L-25003, Oct. 23,
1981) Q: Because of financial problems, the company decided to temporarily shutdown its operations at the dyeing and finishing division. It notified the DOLE of the shutdown. Raymund Tomaroy with 16 members of the union staged a picket in front of the company's compound, carrying placards. He demanded a resumption of work and 13th month pay. The company filed a petition to declare the strike illegal. The union argues that they did not stage a strike, for considering that the dyeing and finishing division of the company was shut down, it could not have caused a work stoppage. Was the action of the union a strike? A: Yes, the concerted efforts of the members of the union and its supporters caused a temporary work stoppage. The allegation that there can be no work stoppage because the operation in the division had been shut down is of no consequence. It bears stressing that the other divisions were fully operational. (Bukluran ng Manggagawa sa C/othman Knitting Corp. v. CA, G.R. No. 158158, Jan. 17, 2005)
UNIVERSITY
OF
Pacu[taa
SANTO
TOMAS
de lDerecfzo CiviC
LABOR RELATIONS: STRIKES, LOCKOUTS AND CONCERTED Q: What are the types of strike?
who are joining the strikers and the latter's Er
A: 1.
2.
Economic strike - used to secure the economic demands such as higher wages and better working conditions for the workers ULP strike - protest against ULP of management
Q: Give examples legality.
of strike and explain
5.
their
Sit-down strike - Characterized by a temporary work stoppage of workers who seize or occupy property of the Er or refuse to vacate the premises of the Er.
N9te: A strike can validly take place only in the presence of and in relation to a labor. dispute between Er and Ee. 6.
Welga ng bayan (Cause Oriented Strikes) - A political strike and therefore there is neither a bargaining deadlock nor any ULP II/egal- It is a political rally
7.
Quickie strikesbrief unannounced temporary stoppage
II/egal Amounts to a criminal act because of the Ee's trespass on the premises of the Er 2.
Wildcat strike - A work stoppage that violates the labor contract and is not authorized by the union. II/egal -Because it fails comply with certain req'ts . the law, to wit: notice strike, vote and report strike vote
3.
4.
to of of on
Slowdown - Strike on an installment plan; an activity by which workers, without complete stoppage of work, retard production or their performance of duties and functions to compel management to grant their demands II/egal - Ees work on their own terms; while the Ees continue to work and remain in their positions and accept wages paid to them, they at the same time select what part on their allotted tasks they care to perform on their own volition or refuse openly or secretly Sympathetic strike - Work stoppages of workers of one company to make common cause with other strikers or other companies without demands or grievances of their own against the Er II/egal - There is no labor dispute between the workers
136
Secondary strike - Work stoppages of workers of one company to exert pressure on their Er so that the latter will in turn bring pressure upon the Er of another company with whom another union has a labor dispute I/Iegal - There is no labor dispute involved.
A: 1.
ACTfONS
and work
II/egal- failure to comply with notice requirements and etc. Q: Two unions, joined a welga ng bayan . The unions, led by their officers, staged a work stoppage which lasted for several days, prompting FILFLEX and BIFLEX Corporations to file a petition to declare the work stoppage illegal for failure to comply with procedural req'ts. Whether the Ees committed an illegal work stoppage? A: Yes. Ees, who have no labor dispute with their Er but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage. There being no showing that the two unions notified the corporations of their intention, or that they were allowed by the corporations, to join the welga ng bayan, their work stoppage is beyond legal protection.(BIFLEX Phils. Inc. Labor Union (NAFLU) vs. FILFLEX Industrial and Manufacturing Corp., G.R. No. 155679, Dec. 19, 2006, J. Carpio-Morales)
UST GOLDEN NOTES 2010 Q: What are the grounds of strike?
4.
for the declaration
5.
A: 1. 2.
Deadlock in CSA (economic) ULP (political) 6.
Note: It is possible tochange an economic strike into a ULP strike. (Consolidated Labor Ass'n of the Phils. v. Marsman and Co., G.R. No. L17038, July 31, 1964)
After assumption of jurisdiction by the SLE After certification or submission of dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for strike or lockout Labor standards cases such as wage orders. (Guidelines governing Labor Relations [Oct. 19, 19B7) issued by Sec. Drilon. See also Art. 261, LC)
'OJ
Violations of CBA must be gross to b'e considered as ULP. Q: What is conversion
Q: Distinguish between and an ULP strike.
a
strike
be
converted
into
a
lockout? A: No, a strike cannot be converted into a pure and simple lockout by the mere expedient of filing before the trial court a notice of offer to return to work during the pendency of the labor dispute between the union and the employer. (Rizal Cement Workers Union v. CIR, GR. No. L-18442, Nov. 30, 1962).
Q: What are the tests legality
strike
doctrine?
A: It is when a strike starts as economic and later, as it progresses, it becomes a ULP, or vice versa.
Q: Can
an economic
in determining
, Voluntary strike because the Ee will declare a strike to compel management to grant its demands
Involuntary strike; .forced to go on strike because of the ULP committed against them by the Er. It is an act of selfdefense since the Ee's are being pushed to the wall and their only remedy is to stage a strike
agent the appropriate bargaining unit can declare an economic strike
Either the CB agent or the LLO in behalf of its members
30 days from notice of strike before the intended date of actual strike subject to the 7strike ban
15 days from the filing of the notice of strike
the
of strike?
A: The following must concur: 1. Purpose test - the strike must be due to either bargaining deadlock and/or the ULP 2. Compliance with the procedural and substantive req'ts of the law. (See requisites of a valid strike) 3. Means employed test - It states that a strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which is widespread, pervasive and adopted as a matter of policy and not mere violence which is sporadic which normally occur in a.strike area. Q: What are the instances when a strike lockout cannot be declared?
or
, .<
No exception mandatory Note: notice of strike and strike vote may be dispensed with; they may strike immediately
A: Non-strikable issues: 1. CSA violations not gross in character 2. Grounds involving inter/intra-union disputes 3. When there is no notice of strike or lockout or without the strike or lockout vote
UNIVERSITY
OF
Pacu{taa
SANTO
The cooling-off period may be dispensed with, and the union may take immediate action in case of dismissal from employment of their officers duly elected in accordance with the union's constitution and by-laws, which may constitute union busting where the existence of the union is threatened. It must still observe the mandatory 7-day strike ban period before it can stage a valid strike
TOMAS
de (/)erecno CiviC
137
LABOR RELATIONS: STRIKES, LOCKOUTS AND CONCERTED ACTIONS Q: Who may declare a strike?
A: 1.
2.
Any certified or duly recognized bargaining representative; in its absence Any LLO, on grounds of ULP only
5.
Q: What are the procedural and substantive requisites before a strike may be declared?
Note: To give DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members in addition to the cooling-off period before the actual strike. (Lapanday Workers' Union, et.a!. v. NLRC, G.R. Nos. 95494-97, Sep. 7,
A: 1.
Notice of strike - filed with the NCMB taking into consideration the coolingoff period Note: The failure of the union to serve the company a copy of the notice of strike is a clear violation of Section 3, Rule XXII, Book V of the Rules Implementing the LC. The Constitutional precepts of due process mandate that the other party be notified of the adverse action of the opposing party. (Filipino Pipe and Foundry Corp. v. NLRC, G.R. No. 115180, Nov.r 16, 1999)
2.
3.
4.
138
30115 day Cooling-off
period before the intended date of actual strike notice of strike is filed with the NCMB taking into consideration the coolingoff period, at least: a. 30 days before the intended strike for bargaining deadlocks; b. 15 days before the intended strike for ULP Strike vote a. The decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned. b. It must be obtained by secret ballot through meetings or referenda called for the purpose. c. Its purpose is to ensure that the intended strike is a majority decision. The report on the strike vote must be submitted to DOLE at least 7 days before the intended strike subject to the cooling-off period. d. The regional branch may supervise the conduct of the secret balloting at its own initiative or upon request of any party. Furnish the regional branch of the NCMB with a notice to conduct a
strike vote, at least 24-hours before the meeting for such purpose (Sec. 10, Rule XXII of the Omnibus Rules ofthe NLRC). 7-Day strike ban - a 7-day waiting period before the date of the purported strike (within which the union intending to conduct a strike must at least submit a report to DOLE as to the result ofthe strike vote)
1995)
Q: What is a cooling-off
period?
A: It is the period of time given the NCMB to mediate and conciliate the parties. It is the span of time allotted by law for parties to settle their disputes in a peaceful manner before staging a strike or lockout. Note: COOling-off and waiting period may be done simultaneously. Q: What is the effect of non-compliance with the requisites of a strike? A: The strike may be declared illegal.
Q: What is the purpose of giving notice of the conduct of a strike vote to the NCMB at least 24 hours before the meeting for the said purpose?
A: 1. 2.
3.
Inform the NCMB of the intent of the union to conduct a strike vote; Give the NCMS ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent any acts of violence and or irregularities; Ample time to prepare for the deployment of the requisite personnel. (Capitol Medical Center v. NLRC, G.R. No. 147080, April 26,
2005) Q: Is a no strikellockout
clause legal?
A: Yes, but it is applicable only to economic strikes, not ULP strikes. As a provision in the CSA, it is a valid stipulation although the clause may be invoked by an employer (Er) only when the strike is economic in nature or one which is conducted to force wage or other
UST GOLDEN NOTES 2010 concessions from the Er that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on ULP. (Panay Electric Co. v. NLRC, G.R. No. 102672, Oct. 4, 1995; Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos, G.R. No. 113907, Feb. 28,2000) Q: What is a preventive
mediation
case?
A: It involves labor disputes wlYch are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB. (Sec. 1 (mmj, Rule I, Book V, IRR) Note: The regional branch may treat the notice as preventive mediation case upon agreement of the parties. Q: What are the contents strike or lockout?
of the notice
of
A: 1. 2. 3. 4. 5. 6. 7.
8.
Name and addresses of Er Union involved Nature of the industry to which the Er belongs Number of union members Workers in the bargaining unit Other relevant date In case of bargaining deadlocks: unresolved issues, written proposals of the union, counter-proposals of the Er and proof of request for conference to settle differences In case of ULP: The acts complained of, and the efforts taken to resolve the dispute
Note: NCMB shall inform the concerned party in case notice does not conform with the req'ts. Q: What action will the board take on the notice of strike of strike or lockout?
A: 1.
2.
3.
4.
Upon receipt of notice, the regional branch of the Board shall exert all efforts at mediation and conciliation to enable the parties to settle the dispute amicably. It shall also encourage the parties to submit the dispute to voluntary arbitration. The regional branch of the NCMB may, upon agreement of the parties, treat a notice as a preventive mediation case. During the proceedings, the parties shall not do any act which may
disrupt or impede the early settlement of the dispute. They are obliged, as part of their duty to bargain collectively in good faith and to participate fully and promptly in conciliation meetings called by the regional branch of the NCMB. A notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration.
Q: Was the strike held by the union legal based on the fact that the notice of strike only contained general allegations of ULP? A: No. Rule XIII Sec. 4 Book V of the Implementing Rules of the LC provides: In cases of ULP, the notice of strike shall as far as practicable, state the acts complained of and the efforts to resolve the dispute amicably. (Tiu v. NLRC, G.R. No. 123276, Aug. 18, 1997)
Q: NFSW, the bargaining agent of Central Azucarera de la Carlota (CAC) rank and file employees, filed a notice of strike based on non-payment of the 13th month pay and 6 days thereafter they held the strike. A day after the commencement of the strike, a report of the strike-vote was filed by NFSW with MOLE. CAe filed a petition to declare the strike illegal due to non-compliance with the 15-day cooling of period and the strike was held before the lapse of 7 days from the submission to the MOLE of the result of the strike vote. Was the strike held by NFSW legal? A: No. The cooling-off period in Art. 264(c) and the 7-day strike ban after the strike-vote report prescribed in Art. 264 (f) were meant to be mandatory. The law provides that "the labor union may strike" should the dispute "remain unsettled until the lapse of the requisite number of days from the filing of the notice", this clearly implies that the union may not strike before the lapse of the cooling-off period. The cooling-off period is for the Ministry of Labor and Employment to exert all efforts at mediation and conciliation to effect a voluntary settlement. The mandatory character of the 7-day strike ban is manifest in the provision that "in every case" the union shall furnish the MOLE with the results of the voting "at least 7 days before the intended strike." This period is to give time to verify that a strike vote was actually held. (NFSW v. Ovejera, G.R. No. L-59743, May 31, 1982)
UNIVERSITY
OF
Pacu[tad
SANTO
TOMAS
de cDereclio Civil
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139
LABOR RELATIONS: STRIKES, LOCKOUTS AND CONCERTED Q: Fil Transit Ees Union filed a notice of
Q: What are the exceptions to the "no backwagesrule" of strikers?
strike with the BLR because of alleged ULP of the company. Because of failure to reach an agreement the union went on strike. Several employees (Ees) were dismissed because of the strike. The union filed another notice of strike alleging ULP, massive dismissal of officers and members, coercion of Ees and violation of workers rights to self-organization. The Ministry of Labor and Employment, after assuming jurisdiction over the dispute, ordered all striking Ees including those who were dismissed to return to work. The company however countered that no strike vote had been obtained before the strike was called and the result of the strike vote was not reported to Ministry of Labor and Employment. Was the strike held by the union illegal for failure to hold a strike vote? A: Yes, there is no evidence to show that a strike vote had in fact been taken before a strike was called. Even if there was a strike vote held, the strike called by the union was illegal because of non-observance by the union of the mandatory 7-day strike ban counted from the date the strike vote should have been reported to the DOLE. (First Cfty Interlink Transportation Co., Inc. v. Confessor, GR. No. 106316, May 5, 1997) Q: The company conceived and decided to
retrench its Ees and selected about 40 Ees to be dismissed because of the lack of work. Because of this about 200 Ees during break-time boarded buses and went to the Ministry of Labor but they were advised to return to work. Upon returning to the company's premises, the Ees were only allowed to stay in the canteen and were not given work because according to the company the machines were undergoing repairs. Are the Ees entitled to reinstatement and backwages? A: The Ees are entitled to reinstatement but not to backwages. Both parties being in pari delicto, having conducted an illegal strike and lockout respectively, there must be a restoration of the status quo ante and must bring the parties back to their respective positions prior to the illegal strike and lockout which shall be done by reinstating the remaining Ees. However, it is the general rule that strikers are not entitled to backwages. The principle of "no work, no pay" is applicable in view of the finding of the illegality of the strike. (Philippine Inter-Fashion, Inc v. NLRC, G.R. No. L-59847, Oct. 18, 1982)
140
ACTIONS
A: 1. 2. 3.
4.
When the Ees were illegally locked thus compelling them to stage a strike When the Er is guilty of the grossest form of ULP When the Er committed discrimination in the rehiring of strikers refusing to readmit those against whom there were pending criminal cases while admitting nonstrikers who were also criminally charged in court; When the workers who staged a voluntary ULP strike offered to return to work unconditionally but the Er refused to reinstate them. (Manila Diamond Hotel VS. Manila Diamond Hotel Ees' Union, G. R. No. 158075, June 30, 2006, J. Carpio-Morales)
A~T. 254. INJUNCTION
.
Q: What is an injunction? A: It is an order or a writ that commands a person to do or not to do a particular act. It may be a positive (mandatory) or a negative (prohibitory) command. Q: May the court or quasi-judicial entity
issue any strikes/lockouts?
injunction
during
A: GR: No court or entity shall eruom any picketing, strike or lockout, or any labor dispute. XPN: 1. When prohibited or unlawful acts are being or about to be committed that will cause grave or irreparable damage to the complaining party. (Art. 218[e]) 2. On the ground of national interest 3. The SLE or the NLRC may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same (Art. 263[g])
UST GOLDEN NOTES 2010 Q: What must an "innocent by-stander" satisfy before a court may enjoin a labor strike? A: The innocent by stander must show: 1. Compliance with the grounds specified in Rule 58 of the Rules of Court,and 2. That it is entirely different from, without any connection whatsoever to, either party to the dispute and, therefore, its interests ,?re totally foreign to the context the·reof. (MSF Tire & Rubber v. CA, G.R. 128632, Aug. 5, 1999) Q: May the RTC take cognizance of the complaint where the same is but an incident of a labor dispute?
A: No, the concerted action taken by the members of the union in picketing the premises of the dep't store, no matter how illegal, cannot be regarded as acts not arising from a labor dispute over which the RTCs may exercise jurisdiction. (Samahang Manggagawa ng Liberty Commercial v. Pimentel, G.R. No. L-78621, Dec. 2, 1987)
ART. 263(g)~ASSUMPTIOtf:OF J'URISDICTION; RETU~N-TO-WORK ORDER Q: Discuss the assumption of jurisdiction by the Secretary of Labor and Employment (SLE) on strikes/lockouts.
A:
A:
No, where the subject matter of the 3'd party claim is but an incident of the labor case, it is a matter beyond the jurisdiction of the RTC, such courts have no jurisdiction to act on labor cases or various incidents arising therefrom, including the execution of decisions, awards or orders.
1.
A party, by filing its 3rd party claim with the deputy sheriff, it submitted itself to the jurisdiction of the NLRC acting through the LA. The broad powers granted to the LA and to the NLRC by Art. 217, 218 and 224 of the LC can only be interpreted as vesting in them jurisdiction over incidents arising from, in connection with or relating to labor disputes, as the controversy under consideration, to the exclusion of the regular courts. The RTC, being a co-equal body of the NLRC, has no jurisdiction to issue any restraining order or injunction to enjoin the execution of any decision of the latter. (Delta ventures v. Cabato, G.R. No. 118216, Mar. 9, 2000)
Note: A motion for reconsideration does not suspend the effects as the assumption order is immediately executory.
Q: The employer
filed with the RTC a complaint for damages with preliminary mandatory injunction against the union, the main purpose of which is to dispense the picketing of the members of the union. The union filed a motion to dismiss on the ground of lack of jurisdiction. The RTC denied the motion to dismiss and enjoined the picketing, it said that mere allegations of Er-Ee relationship does not automatically deprive the court of its jurisdiction and even the subsequent filing of charges of ULP, as an afterthought, does not deprive it of its jurisdiction. Was the issuance by the RTC of the injunction proper?
UNIVERSITY
Discretionary a. If in his opinion there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. b. He may certify the same to the NLRC for compulsory arbitration c. Effect - Automatically enjoins the intended or impending strike/lockout but if one has already taken place, all striking or locked out Ees shall immediately return to work and the Er shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lockout (Trans-Asia Shipping Lines, Inc.-Unlicensed Crews Ee's Union v. CA, G.R. No. 145428, July 7, 2004)
2.
Mandatory (within 24 hours) a. In labor disputes adversely affecting the continued operation of hospitals, clinics or medical institutions. b. May assume jurisdiction or certify it to the NLRC for compulsory arbitration c. Duty of striking union or locking out Er to provide and maintain an effective skeletal workforce of medical and other health personnel, where movement and service shall be unhampered and unrestricted as are ~ecessary to OF
Pacu{taa
SANTO
TOMAS
de
~i! '"
141
LABOR RELATIONS: STRIKES, LOCKOUTS AND CONCERTED insure the proper and adequate protection of the life and health of its patients most especially emergency cases for the duration of the strike or lockout (Arl. 263 [gJ) Q: What does the phrase "under the same tenns and conditions" contemplate?
A: GR: It contemplates only actual reinstatement. This is in keeping with the rationale that any work stoppage or slowdown in that particular industry can be inimical to the national economy. XPN: Payroll reinstatement in lieu of actual reinstatement but there must be showing of special circumstances rendering actual reinstatement impracticable, or otherwise not conducive to attaining the purpose of the law in providing for assumption of jurisdiction by the SLE in a labor dispute that affects the national interest. (Manila Diamond Hotel Ees Union v. SLE, G.R. No. 140518, Dec. 16,2004) Q: What are issues that the SLE may resolve when he assumes jurisdiction a labor dispute?
A:
1.
2.
over
Issues submitted to the SLE for resolution and such issues involved in the labor dispute itself. (St. Scho/astica's College v. Torres, G.R. No. 100158, June 2, 1992) SLE may subsume pending labor cases before LAs which are involved in the dispute and decide even issues falling under the exclusive and original jurisdiction of LAs such as the declaration of legality or illegality of strike (Int'I. Pharmaceuticals v. SLE, G.R. Nos. 92981-83, Jan. 9, 1992)
Note: Power of SLE is plenary and discretionary. (St. Luke's Medical Center v. Torres, G.R. No. 99395, June 29, 1993) Q: What is the effect return to work order?
of defiance
to the
A: It shall be considered an illegal act committed in the course of the strike or lockout and shall authorize the SLE or the NLRC, as the case may be, to enforce the same under pain or loss of employment status or entitlement to full employment benefits from the locking-out Er or backwages, damages and/or other positive and/or affirmative reliefs,
142
ACTIONS
even to criminal prosecution against the liable parties. (Sec. 6, Rule IX, of the New Rules of Procedure of the NLRC; St. Scholastica's Col/ege v. Torres, G.R. No. 100158, June 2, 1992) Q: Is it necessary for the SLE to issue a return-to-work order in an assumption order? A: No, the mere issuance of an assumption order automatically carries with it a return-towork order although not expressly' stated therein. (TSEU-FFW v. CA, G.R. Nos. 14301314, Dec. 18, 2000) Q: What is the extent of the powers President during strikes/lockouts?
of the
A: 1. 2.
May determine the industries, which are in his opinion indispensable to national interest May intervene at any time and assume jurisdiction over any such labor dispute in order to settle or terminate the same. (Arl. 263[gJ)
Note: The decision of the PresidenUSLE is final and executory after receipt thereof by the parties. Q: Maya return to work order issued pending determination legality of the strike?
be validly of the
A: Yes. Where the return to work order is issued pending the determination of the legality of the strike, it is not correct to say that it may be enforced only if the strike is legal and may be disregarded if illegal. Precisely, the purpose of the retum to work order is to maintain the status quo while the determination is being made. (Sarmiento v. Tuico, G.R. Nos. 75271-73, June 27, 1988) Q: What is the nature under Art. 263(g)?
of the power
of SLE
A: The assumption of jurisdiction is in the nature of a police power measure. 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 SLE acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not intended to impede the worker's right to strike but to obtain a speedy settlement of the dispute. (Philtread Workers Union v. Confesor, G.R. No. 117169, Mar. 12, 1997) Art. 263(g) does not interfere with the workers right to strike but merely regulates it, when in
UST GOLDEN NOTES 2010 the exercise of such right national interest will be affected. The LC vests upon the SLE the discretion to determine what industries are indispensable to national interest. Q: A notice of strike was filed by the PSBA Ees Union-FFW, alleging union busting, coercion of Ees and harassment on the part of PSBA. The conciliation being ineffective, the strike pushed through. A complaint for ULP and for a declaration of illegality of the strike with a ~praye! for preliminary injunction was filed by PSBA against the union. While the cases were pending, a complaint was filed in the RTC of Manila by some PSBA students against PSBA and the union, seeking to enjoin the union and its members from picketing and from barricading themselves in front of the schools main gate. A TRO was then issued by the RTC, which the union opposed on the ground that the case involves a labor dispute over which the RTC had no jurisdiction. The Acting SLE later on assumed jurisdiction over the labor dispute and ordered the striking Ee's to return to work. Was the SLE correct in ordering the striking Ees to return to work? A: Yes. In the opinion of the Acting SLE, the labor dispute adversely affected the national interest, affecting as it did 9,000 students. He is authorized by law to assume jurisdiction over the labor dispute, after finding that it adversely affected the national interest. This power is expressly granted by Art. 263 (g) of the LC, as amended by B.P. Big. 227.
service pursuant to its redundancy program. Pursuant to Art. 263(g) of the LC the SLE certified the labor dispute for compulsory arbitration. Accordingly the SLE enjoined the strike staged by the union and all striking workers were directed to return to work within 24 hours except for those who were terminated due to redundancy. Was the SLE correct in excepting from the return-to-work order those who were terminated due to redundancy? A: No, Art. 263(g) is clear and unequivocal in stating that all striking or lock-out Ees shall immediately return to work and the Er shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. Records of the case would show that the strike occurred one day before the members of the union were dismissed due to alleged redundancy. Thus the abovementioned article directs that the Er must readmit all workers under the same terms and conditions prevailing before the strike. (PLOT v. Manggagawa ng Komunikasyon sa Pilipinas, G.R. No. 162783, July 14, 2005)
CONSEQUENCES Q: When is a strike illegal?
A:
the RTC have jurisdiction to on the case filed by the PSBA
A: No, the RTC was without jurisdiction over the subject matter of the case filed by some PSBA students, involving as it does a labor dispute over which the labor agencies had exclusive jurisdiction. That the regular courts have no jurisdiction over labor disputes and to issue injunctions against strikes is well-settled. (PSBA v. Nonet, G.R. No. 80648, Aug. 15, 1988) Q: Members of the union learned that a redundancy program would be implemented by the company. Thereupon it filed a Notice of strike on the grounds of ULP. A number of conciliation meetings were conducted but to no avail so the union staged a strike while the company terminated 383 union members from
1. 2. 3.
Q: Does decide students?
OF STRIKE
4.
5. 6.
Contrary to specific prohibition of law, such as strike by employees (Ees) performing governmental functions; Violates a specific req't of law; Declared for an unlawful purpose, such as inducing the employer (Er) to commit ULP against non-union Ees; Employs unlawful means in the pursuit of its objective, such as widespread terrorism of non-strikers; Declared in violation of an existing injunction; Contrary to an existing agreement, such as a no strike clause or conclusive arbitration clause
Q: When is an expression of an opinion the Er held to be culpable (totality conduct doctrine)?
by of
A: The expressions of an opinion by an Er which, though innocent in themselves, may be held by the Court to be culpable based on the ff: 1. The circumstances under which they were uttered
UNIVERSITY
OF SANTO
Pacu{taa
TOM.AS
de ([)erecno
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143
LABOR RELATIONS: 2. 3.
STRIKES, LOCKOUTS AND CONCERTED
The history of the particular Ers labor relations of anti-union bias Their connection with an established collateral plan of coercion or interference
Q: What is the purposes?
doctrine
of
means
and
A: It states that a strike is legal when lawful means concur with lawful purpose. (GOP-CCP Workers v. CIR, GR. No. L-33015, Sep. 10, 1979) Q: What doctrine?
is
"good
faith
(GF)
strike"
A: A strike may be considered legal where the union believed that the company committed ULP and the circumstances warranted such belief in GF, although subsequently such allegations of ULP are found out as not true. (Bacus V. Ople, GR No. L-56856, Oct. 23, 1984, People's Industrial and Commercial Ees and Organization (FFW) V. People's Industrial and Commercial Corp., G.R. No. 37687, Mar. 15, 1982) Q: What is the effect of the GF of strikers on the legality of strike?
A:
GR: A strike grounded on ULP is illegal if no such acts actually exist.
Q: What is the striking workers?
Q: Who are not entitled
of
to reinstatement?
A: 1.
Union officers who knowingly participate in the illegal strike 2. Any striker or union who knowingly .participates in the commission of illegal acts during the strike Note: Those union members who have joined an illegal strike but have not committed any illegal act shall be reinstated but without back wages, The responsibility for the illegal acts committed during the strike must be on an individual and not on a collective basis. (First City Interlink Transportation Co., Inc, v. Confesor, G.R. No, 106316, May 5, 1997) Q: Are strikers entitled or strike duration pay?
A:
Q: Should separation pay and backwages be awarded to the participants of an illegal strike?
144
on reinstatement
A: Striking employees are entitled to reinstatement, regardless of whether or not the strike was the consequence of the employers ULP because while out on strike, the strikers are not considered to have abandoned their employment, but rather have only ceased from their labor; the declaration of a strike is not a renunciation of employment relation.
XPN: Even if no ULP acts are committed by the Er, if the Ees believe in GF that ULP acts exist so as to constitute a valid ground to strike, then the strike held pursuant to such belief may be legal. Where the union believed that the Er committed ULP and the circumstances warranted such belief in GF, the resulting strike may be considered legal although, subsequently, such allegations of ULP were found to be groundless. (NUWHRAIN-Interim Junta V. NLRC, G.R. No. 125561, Mar. 6, 1998)
A: No backwages will be awarded to union members as a penalty for their participation in the illegal strike. As for the union officers, for knowingly participating in an illegal strike, the law mandates that a union officer may be terminated from employment and they are not entitled to any relief. (Gold City Integrated Port Services, Inc. V. NLRC, G.R. No. 86000, Sep. 21, 1990)
rule
ACTIONS
to their
GR: No, even if such strike was legal. XPN: 1. Where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer - workers are entitled to back wages from the date their offer was made 2, When there is a return-to-work order and the Ees are discriminated against other Ees, workers are entitled to back wages from the date of discrimination 3, In case of a ULP strike, in the discretion of the authority deciding the case
Q: What is the rule in strikes
A:
backwages
1.
in hospitals?
It shall be the duty of the striking employees or locking-out employer to provide and maintain an effective skeletal workforce of medical and health personnel for the duration of the strike or lockout.
UST GOLDEN NOTES 2010 2.
SLE may immediately assume jurisdiction within 24 hours from knowledge of the occurrence of such strike or lockout certify it to the NLRC for compulsory arbitration.
Q: More or less 1400 Ees of the company
ART. 264.PROHIBITEDACTIVITIES . Q: What are the prohibited activities during a strike/lockout? A:
staged a mass walk-out, allegedly without anybody leading them as it was a simultaneous, immediate and unanimous group action and decision, to protest the non-payment of their salaries sand wages. The Minister of Labor and Employmentwho found the strike to be illegal granted the clearance to terminate the employment of those who were instigators in the Illegal strike. Was the decision of the Minister of Employment in granting the clearance correct? A: No, a mere finding of the illegality of a strike should not be automatically followed by wholesale dismissal of the strikers from their employment. While it is true that administrative agencies exerclsinq quasi-judicial functions are free from the rigidities of procedure, it is equally well-settled that avoidance of technicalities of law or procedure in ascertaining objectively the facts in each case should not, however, cause denial of due process. (Bacus v. Ople, G.R. No. L-56856, Oct. 23, 1984) Q: 2 days after the union struck, the SLE ordered the striking workers to return to work within 24 hours. But the striking union failed to return to work and instead they continued their pickets. As a result, violence erupted in the picket lines. The service bus ferrying non-striking workers was stoned causing injuries to its passengers. Threats, defamation, illegal detention, and physical rnjunes also occurred. The company was directed to accept back all striking workers, except the union officers, shop stewards, and those with pending criminal charges. Was the SLE correct in not including the union officers, shop stewards and those with pending criminal charges in the return-towork order? A: No, to exclude union officers, shop stewards and those with pending criminal charges in the directive to the company to accept back the striking workers without first determining whether they knowingly committed illegal acts would be tantamount to dismissal without due process of law. (Telefunken Semiconductors Ees Union-FFW v. SLE, G.R. No. 122743 & 127215, Dec. 12, 1997)
1.
No labor organization or employer (Er) shall dec/are a strike or lockout without: a. First having bargained collectively in accordance with Title VII of the LC or . b. First having filed the notice required in Art 263 or c. The necessary strike or lockout vote first having been obtained and reported to DOLE
2.
No strike or lockout shall be declared: a. After assumption of jurisdiction by the President or the DOLE Secretary or b. After certification or submlssion of the dispute to compulsory or voluntary arbitration or c. During the pendency of cases involving the same grounds for strike/lockout.
3.
No (third) person shall obstruct, impede or interfere with by force, violence, coercion, threats or intimidation any peaceful picketing by employees (Ees) during any labor controversy or in the exercise of the right of self-organization or CB or shall aid or abet such obstruction or interference.
4.
No Er shall use or employ any strike breaker nor shall any person be employed as a strike breaker'
5.
GR: No public official or Ee, including officers and personnel of the AFP, PNP or armed persons shall bring in, introduce, or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein. XPN: Nothing herein shall be interpreted to prevent any public officers from taking any measure necessary to: a. Maintain peace and order b. Protect life and property c. Enforce the law and legal order
UNIVERSITY
OF SANTO
Pacu[taa
TOMAS
ae Verecno
CiviC
145
.~
"
LABOR RELATIONS: STRIKES, LOCKOUTS AND CONCERTED 6.
No person engaged in picketing shall: a. Commit any act of violence, coercion or intimidation, or b. Obstruct the free ingress to or egress from the Er's premises for lawful purpose or obstruct public thoroughfares
Q: Distinguish improved offer from reduced offer balloting.
To determine WON the improved offer of the Er is acceptable to the union members.
Q: The hotel union which was not certified by the DOLE as the exclusive bargaining agent staged a strike against the Hotel. NLRC declared the strike illegal. CA affirmed but ordered the reinstatement of union members and officers. Are Union members and officers who participated in the illegal strike entitled to reinstatement?
To ascertain the real sentiment of the" silent majority of the union members on strike.
A: It depends. The union officers should be dismissed for staging and participating in the illegal strike, ff. par. 3, Art. 264(a) of the LC which provides that "any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during strike may be declared to have lost his employment status" An ordinary striking worker cannot, thus be dismissed for mere participation in an illegal strike. There must be proof that he committed illegal acts during a strike, unlike a union officer who may be dismissed by mere knowingly participating in an illegal strike and/or committing an illegal act during a strike. (Manila Diamond Hotel vs. Manila Diamond Hotel Ees Union, GR. No. 158075, June 30, 2006, J. Carpio-Morales)
On or before the day of strike
offer balloting?
A: A referendum conducted by DOLE on or before the day of the strike, for the purpose of determining whether or not the improved offer of the employer is acceptable to the union members.
so"
Q: What is reduced
offer balloting?
A: A referendum conducted by DOLE for the purpose of determining whether or not the reduced offer of the union is acceptable to the board of directors, trustees or partners.
14,6
, :
so"
balloting
To determine WON reduced of the union is acceptable to the Er. To ascertain whether at least a majority of the Board of Directors or trustees or partners holding the controlling interest vote to accept the reduced offer
On or before the so" day of lockout
Applies only to economic strikes
Applies only to economic strikes deadlock in bargaining
Majority of union members vote to accept improved offer: striking workers shall immediately return to work and Er shall readmit them upon signing of the agreement
Majority of Directors, trustees or partners vote to accept the reduced offer: workers shall immediately return to work and Er shall readmit them upon signing of the ent
ART.265. IMPROVED OFFER BALLOTING Q: What is improved
ACTIONS
ART. 266. REQUIREMENTS FOR ARREST AND DETENTION' Q: Can police officers immediately and detain union members for activities?
arrest union
A: GR: A police officer CANNOT arrest or detain a union member for union activities without previous consultations with the SLE. XPN: 1, 2. 3.
Incidences pertaining to: National security Public peace Commission of crimes
,
UST GOLDEN NOTES 2010 Q: In what cases can arrest be lawfully made?
A:
1.
Any person who obstructs the free and lawful ingress and egress from the Ers premises or who obstructs public thoroughfares.
2.
Any person who shall have in his possession deadly weapons in violation of B.P. Big. 6 and firearms and explosives. (Guidelines for the conduct of PNPIAFP Personnel in Labor Disputes)
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie .\. Laurentino Vice-Chair for Admin & Finance: ,\issa Celine H. Luna Vice-Chair for Layout & Design: Loise Rae G. Naval Labor Law Committee S ubject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V Members:
Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee ] emuel Paolo M. Lobo Andrew W. Montesa Maria Maica .\ngelika Roman
UNIVERSITY
OF
Pacu{taa
SANTO
TOMAS
ae i])erecfio CiviC
LABOR RELATIONS: POST-EMPLOYMENT
POST EMPLOYMENT
V\'
,ART.
278. COVERAGE,
,
'"',),:'-.
The practice of entering into employment contracts which would prevent the workers from becoming regular should be struck down as contrary to public policy and morals. (Universal Robina Corp. v. Catapang, G.R. No. 164736, Oct. 14,2005)
Q: Discuss the coverage of the Labor Code as regards post-employment,
Q: What is the test employment?
A: It applies to all establishments and undertakings, whether operated for profit or not, including educational, medical, charitable and religious institutions and organizations in cases of regular employment
A:
Q: What employment is excluded coverage of the Labor Code (LC)?
1.
from the
A: The coverage of the LC excludes employment in the gov't and its political subdivisions including GOCCs.
ART. 280. REGULAR AND CASUAL EMPLOYMENT Q: What is regular employment?
A: 1.
An employment shall be deemed to be regular where the Ee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the Er, the provisions of written agreements to the contrary notwithstanding and regardless of the oral agreements of the parties. (Sec. 5 raj, Rule I, Book VI,IRR)
2.
Any Ee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular Ee with respect to the activity in which he is employed and his employment shall continue while such activity exists. (Sec. 5 [bJ, Rule I, Book VI, IRR)
Notes: Regularization is not a management prerogative; rather, it is the nature of employment that determines it. It is a mandate of the law. (PAL v. Pascua, G.R. No. 143258, Aug. 15, 2003) Regular employment does not mean permanent employment. A probationary Ee becomes a regular Ee after 6 months. A regular Ee may only be terminated for jusUauthorized causes.
148
regular
The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee (Ee) to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the Er. (De Leon v. NLRC, G,R. No. 7070~Aug. 21, 198~ Note: The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. (Highway Copra Traders v, NLRC, G.R. No. 108889, July 30, 1998)
CLASSES OF EMPLOYEES .
to determine
2.
Also, the performance of a job for at least a year is sufficient evidence of the job's necessity if not indispensability to the business. This is the rule even if its performance is not continuous 'and merely intermittent The employment is considered regular, but only with respect to such activity and while such activity exists. (Universal Robina Corp. v. Catapang, GR No. 164736, Oct. 14, 2005).
Note: The status of regular employment attaches to the casual Ee on the day immediately after the end of his first year of service. The law does not provide the qualification that the Ee must first be issued a regular appointment or must first be formally declared as such before he can acquire a regular status. (Aurora Land Projects Corp, v. NLRC, G.R No. 114733, Jan. 2, 1997) Q: Is the mode of compensation determinative of regular employment? A: No, while the Ees mode of compensation was on a "per piece basis" the status and nature of their employment was that of regular Ees. (Labor Congress of the Phils v. NLRC, GR No. 123938, May 21, 1998)
UST GOLDEN NOTES 2010 Q: When does Art. 280 not apply? A: It does not apply in case of OFWs. Note: Seafarerscannot be consideredas regular Ees. Their employment is governed by the contractsthey sign everytimethey are hired and their employment terminated when the contract expires. Their employment is fixed for a certain periodof time. (Ravago v. Esso Eastern Maritime Ltd., GR. No. 158324, Mar. 14, 2005)
Q: Moises was employed by La ron delia at the maintenance section of its Eng'g Dep't paid on a daily basis through petty cash vouchers. His work consisted mainly of painting company building and equipment and other odd jobs relating to maintenance. After a service of more than 1 year, Moises requested that he be included in the payroll of regular workers, instead of being paid through petty cash vouchers. Instead La Tondefia's dismissed Moises and claimed that Moises was contracted on a casual basis specifically to paint certain company buildings and that its completion tenninated Moises' employment. Can Moises be considered as a regular Ee? A: Yes, the law demands that the nature and entirety of the activities performed by the Ee be considered. Here, the painting and maintenance work given Moises manifests a treatment consistent with a maintenance man and not just a painter, for if his job was only to paint a building there would be no basis for giving him other work assignments in-between painting activities. It is not tenable to argue that the painting and maintenance work of Moises are not necessary in La Tonderia's business of manufacturing liquors; otherwise, there would be no need for the regular maintenance section of the company's eng'g dep't. (De Leon v. NLRC, 1989)
G.R.
No.
70705, Aug.
21,
Q: Honorio Dagui was hired by Dona Aurora Suntay Tanjangco in 1953 to take charge of the maintenance and repair of the Tanjangco apartments and residential bldgs. He was to perform carpentry, plumbing, electrical and masonry work. Upon the death of Dona Aurora Tanjangco in '82 her daughter, Teresita Tanjangco Quazon, took over the administration of all the Tanjangco properties, and dismissed Dagui. Is Honorio Dagui a regular employee (Ee)? A: Yes. The jobs assigned to Dagui as maintenance man, carpenter, plumber,
electrician and mason were directly related to the business of the Tanjangco's as lessors of residential and apartment bldgs. Moreover, such a continuing need for his services by the Tanjangcos is sufficient evidence of the necessity and indispensability of his services to their business or trade. Dagui should likewise be considered a regular Ee by the mere fact that he rendered service for the Tanjangcos for more than one year, that is, beginning '53 until '82, under Dona Aurora; and then from 1982 up to June 8, '91 under the daughter, for a total of 29 and 9 years respectively. Owing to Dagui's length of service, he became a regular Ee, by operation of law, one year after he was employed in '53 and subsequently in '82. (Aurora Land Projects Corp. Jan. 2, 1997)
v. NLRC,
G.R. No. 114733,
Q: A total of 43 Ees who are deaf-mutes were hired and re-hired on various periods by Far East Bank and Trust Co. as money sorters and counters through a uniformly worded agreement called "Employment Contract for Handicapped Workers." The company disclaimed that these Ees were regular Ees and maintained among others that they are a special class of workers, who were hired temporarily under a special employment arrangement which was a result of overtures made by some civiC and political personalities to the Bank. Should the deaf-mute Ees be constdered as regular Ees? A: Yes. The renewal of the contracts of the handicapped workers and the hiring of others leads to the conclusion that their tasks were beneficial and necessary to the bank. It also shows that they were qualified to perform the responsibilities of their positions; their disability did not render them unqualified or unfit for the tasks assigned to them. The Magna Carta for Disabled Persons mandates that a qualified disabled Ee should be given the same terms and conditions of employment as a qualified able-bodied person. The fact that the Ees were qualified disabled persons necessarily removes the employment contracts from the ambit of Art. 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Art. 280 of the Le. (Bernardo v. NLRC, G.R. No. 122917, July 12, 1999)
Q: Coca-Cola Bottlers Phils, Inc., (CCBPI) engaged the services of the workers as "sales route helpers" for a period of 5 months. After 5 months, the workers were employed by the company on fJ day-to-day
UN i V E R SIT Y 0 F SAN ToT fFacu(tad
0 MAS de cJ)erecfzo CiviC
~.! Ui..•
149
LABOR RELATIONS: POST-EMPLOYMENT basis. According to the company, the workers were hired to substitute for regular route helpers whenever the latter would be unavailable or when there would be an unexpected shortage of manpower in any of its work places or an unusually high volume of work. The practice was for the workers to wait every morning outside the gates of the sales office of the company, if thus hired, the workers would then be paid their wages at the end of the day. Should the workers be considered as regular employees (Ees) of CCBPI? A: Yes, the repeated rehiring of the workers and the continuing need for their services clearly attest to the necessity or desirability of their services in the regular conduct of the business or trade of the company. The fact that the workers have agreed to be employed on such basis and to forego the protection given to them on their security of tenure, demonstrate nothing more than the serious problem of impoverishment of so many of our people and the resulting unevenness between labor and capital. (Magsalin & Coca-Cola v. N. O. w.M., G.R. No. 148492, May 9, 2003) Q: Metromedia Times Corp. entered, for the fifth time, into an agreement with Efren Paguio, appointing him to be an account executive of the firm. He was to solicit advertisements for "The Manila TImes,". The written contract between the parties provided that, "You are not an Ee of the Metromedia Times Corp. nor does the company have any obligations towards anyone you may employ, nor any responsibility for your operating expenses or for any liability you may incur. The only rights and obligations between us are those set forth in this agreement. This agreement cannot be amended or modified in any way except with the duly authorized consent in writing of both parties." Is Efren Paguio a regular employee of Metromedia Times Corporation? A: Yes, he performed activities which were necessary and desirable to the business of the Er, and that the same went on for more than a year. He was an account executive in soliciting advertisements, clearly necessary and desirable, for the survival and continued operation of the business of the corp. The corporation cannot seek refuge under the terms of the agreement it has entered into with Efren Paguio. The law, in defining their contractual relationship, does so, not necessarily or exclusively upon the terms of their written or oral contract, but also on the
150
basis of the nature of the work of Efren has been called upon to perform. A stipulation in an agreement can be ignored as and when it is utilized to deprive the Ee of his security of tenure. (Paguio v. NLRC, G.R. No. 147816, May 9,2003) Q: What are the requisites before a private school teacher can attain permanent status?
A: 1. 2.
3.
The teacher is a full-time teacher; The teacher must have rendered three consecutive years of service; and Such service must have been satisfactory. (St. Mary's University v. CA, G.R. No. 157788, Mar. 8, 2005)
Q: Who are full-time
academic
personnel?
A: Those who: 1. Possess at least the minimum academic qualifications prescribed by the Department of Education under this Manual for all academic personnel; 2. Are paid monthly or hourly, based on the regular teaching loads as provided for in the policies, rules and standards of the Department of Education and the school; 3. Whose total working day of not more than 8 hours a day is devoted to the school; 4. Have no other remunerative occupation elsewhere requiring regular hours of work that will conflict with the working hours in the school; and 5. Are not teaching full-time in any other educational institution. (Sec. 45 of the 1992 Manual of Regulations for Private Schools) Note: All teaching personnel who do not meet the foregoing qualifications are considered part-time. Q: Oonelo taught at the St. Mary's University on a contractual basis. Sometime later, he was issued an appointment as Asst. Professor I, and later Asst. Prof. III. He taught until the first semester of S.Y. '99-'00 when the school did not give him any teaching aSSignments. Oonelo thus filed a complaint for illegal dismissal. 5t. Mary's however claim that Oonelo was never a regular Ee of the school, as he was only a part-time instructor, carrying a load of less than 18 units. It was also claimed that the twin-
UST GOLDEN NOTES 2010 notice req't does not apply in the case of part-time teachers. Is Oonelo a full-time teacher and has he attained permanent status? A: No, a part-time Ee does not attain permanent status no matter how long he has served the school. After the end of each term or semester, the school does not have any obligation to give teaching load to each and every part-time teacher. Since there is no showing that Donelo worked on full-,¥me basts for at least 3 years, he could not have acquired a permanent status. (St. Mary's University v. CA, G.R. No. 157788, Mar. 8, 2005)
[
PROJECT Q: What is project
EMPLOYEES
employment?
A: Employment that has been fixed for a specific project or undertaking the completion for which has been determined at the time of engagement of the employee (Ee). (Sec. 5 [aJ, Rule I, Book VI, IRR). The period is not the determining factor, so that even ifthe period is more than 1 year, the Ee does not necessarily become regular. Notes: Where the employment of a project Ee is extended long after the supposed project has been finished, the Ees are removed from the scope of project Ees and considered as regular Ees. . Repeated hiring on a project-to-project basis is considered necessary and desirable to the business of the Er. The Ee is regular (Maraguinot v. NLRC, G.R. No. 120969, Jan. 22, 1998 ). However, repeated hiring does not necessarily mean regular employment. (Filipinas PreFabricated Building Systems (FILSYSTEMS), Inc. v. Puente, GR. No. 153832,. March 18, 2005)
Q: What are the requisites whether
an employee
in detennining (Ee) is a project Ee?
2.
3.
4.
A: A "project" has reference to a particular job or undertaking that mayor may not be within the regular or usual business of the Er. In either case, the project must be distinct, separate and identifiable from the main business of the Er, and its duration must be determined or determinable (PAL v. NLRC, G.R. No. 125792, Nov. 9, 1998). Q: Can a project employee (Ee) or a member of a work pool acquire the status of a regular Ee? A: Yes, when the following concur: 1. There is a continuous rehiring of project Ee's even after cessation of a project; and 2. The tasks performed by the alleged "project Ee" are vital, necessary and indispensable to the usual business or trade of the employer (Er). Note: The length of time during which the Ee was continuously re-hired is not controlling, but merely serves as a badge of regular employment. Enero and Maraguinot have been employed for a period of not less than 2 years and have been involved in at least 18 projects. These facts are the basis in coosiderlnq them as regular Ees of the company. (Maraguinot v. NLRC, G.R. No. 120969,Jan.2Z 1998) Members of a work pool from which a construction company draws its project Ees, if considered Ees of the construction company while in the work pool, are non-project Ees or Ees for an indefinite period. If they are employed in a particular project, the completion of the project or any phase thereof will not mean severance of ErEe relationship. Unless the workers in the work pool are free to leave any time and offer their services to other Ers. (L. T. Datu & Co., Inc. v. NLRC, GR. No. 113162, Feb. 9, 1996) Q: What is the "day certain"
A: 1.
Q: What is a project?
The project Ee was assigned to carry out a specific project or undertaking, and The duration and scope of which were specified at the time the Ee was engaged for that project. (Imbuido v. NLRC, G.R. No. 114734, Mar. 31, 2000) The Ee must have been dismissed every after completion of his project or phase Report to the DOLE of Ee's dismissal on account of completion of contract (Policy Inst. No. 20; D.O. 19 [1997])
rule?
A: It states that a project employment that ends on a certain date does not end on an exact date but upon the completion of the project.
Q: Are project
Ees entitled
to separation
pay?
A:
UNiVERSITY
GR: Project Ees are not entitled to separation pay if they are terminated as a result of the completion project. XPN: If the projects they are working on have not yet been completed, when their OF SANTO
Pacu(taa
TOMAS
ae Derech o CiviC
.~
151
LABOR RELATIONS: POST-EMPLOYMENT services are terminated; project Ees also enjoy security of tenure during the limited time of their employment. (De Ocampo v. NLRC, G.R. No. 81077, June 6, 1990)
on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. (Brent School, Inc. v. Zamora, G.R. No. 48494, Feb. 5, 1990)
Q: Roger Puente was hired by Filsystems, Inc., initially as an installer and eventually promoted to mobile crane operator, and was stationed at the company's premises. Puente claimed in his complaint for illegal dismissal, that his work was continuous and without interruption for 10 years, and that he was dismissed from his employment without any cause. Filsystems on its part averred that Puente was a project Ee in the company's various projects, and that after the completion of each project, his employment was terminated, and such was reported to the DOLE. Is Roger Puente a regular Ee? A: No, Puente is a project Ee. The contracts of employment of Puente attest to the fact that he was hired for specific projects. His employment was coterminous with the completion of the projects for which he had been hired. Those contracts expressly provided that his tenure of employment depended on the duration of any phase of ~he project or on the completion of the construction projects. Furthermore, the company regularly submitted to the labor dep't reports of the termination of services of project workers. Such compliance with the reportorial req't confirms that Puente was a project Ee. The mere rehiring of Puente on a project-toproject basis did not confer upon him regular employment status. "The practice was dictated by the practical consideration that experienced construction workers are more preferred." It did not change ~is status .a~ a project Ee. (Filipinas Pre-Fabrtcated Bulldmg Systems (FILSYSTEMS), Inc. v. Puente, G.R. No. 153832, Mar. 18, 2005)
,
TERM EMPLOYEES Q: What is a fixed-term
employment?
A: It is an employment where a fixed period of employment was agreed upon: 1. Knowingly and voluntarily by the parties, 2. Without any force, duress or improper pressure being brought to bear upon the employee (Ee) and 3. Absent any other circumstances vitiating his consent, or 4. Where it satisfactorily appears that the Er and Ee dealt with each other
152
Note: A fixed-period Ee does not become a regular Ee because his employment is coterminus with a specific period of time. Ee hired on a fixed-term is regular if job is necessary and desirable to the business of Er. (Philips Semiconductor v. Fadriquela, G.R. No. 141717, April 2004) Q: Is "term employment" a circumvention of the law on security of tenure? A: No, it is not a circumvention of the law if it follows the requisites laid down by the Brent ruling: (Romares v, NLRC, G.R. No. 122327, Aug. 19, 1998)
Q: Dean Jose
and other employees are holding administrative positions as dean, dep't heads and institute secretaries. In the implementation of the Reorganization, Retrenchment and Restructuring program effective Jan. 1, 1984, Dean Jose and other employees were retired but subsequently rehired. Their appointrnent to their administrative positions as dean, dep't heads and institute secretaries had been extended by the company from time to time until the expiration of their last appointment on May 31, 1988. Were Dean Jose and other employees illegally dismissed? A: No. Petitioners were dismissed by reason of the expiration of their contracts of employment. Petitioners' appointments .as dean, dep't heads and institute secretaries were for fixed terms of definite periods as shown by their respective contracts of employment, which all expired on the same date, May 31, 1988. The validity of employment for a fixed period has been acknowledged and affirmed by the. SC. (Blancaflor v. NLRC, G.R. No. 101013, Feb. 2, 1993) Q: How is the project worker different from a casual or contractual worker? Briefly explain your answers. A: A "contractual worker" is a generic term used to designate any worker covered by a written contract to perform a specific undertaking for a fixed period. On the other hand, a "project worker" is used to designate workers in the construction industry, hired to perform a specific undertaking for a fixed period, co-terminus with a project or phase
UST
GOLDEN NOTES
thereof determined at the time of the engagement of the Ee. (Policy Instruction No. 19, DOLE) In addition, to be considered a true project worker, it is required that a termination report be submitted to the nearest public employment office upon the completion of the construction project. (Aurora Land Projects Corp. v. NLRC, G.R. No. 114733, Jan. 2, 1997) In contrast, there is no such requirement for an ordinary contractual worker. (2005 Bar Question)
Q: What is seasonal
employment?
A: Employment where the job, work or service to be performed is seasonal in nature and the employment is for the duration of the season. (Sec.5 (aJ, Rule I, Book VI, IRR) An employment arrangement where an employee (Ee) is engaged to work during a particular season on an activity that is usually necessary or desirable in the usual business or trade of the employer (Er). Note: For seasonal Ees, their employment legally ends upon completion of the project or the season. The termination of their employment cannot and should not constitute an illegal dismissal. (Mercado v. NLRC, G.R. No. 79869, Sept. 5, 1991) One year duration on the job is pertinent in deciding whether a casual Ee has become regular or not, but it is not pertinent to a seasonal or project Ee. Passage of time does not make a seasonal worker regular or permanent. (Mercado v. NLRC, G.R. No. 78969, Sep. 5, 1991) During off-season, the relationship of Er-Ee is not severed; the seasonal Ee is merely considered on LOA without pay. Seasonal workers who are repeatedly engaged from season to season performing the same tasks are deemed to have acquired regular employment. (Hacienda Fatima v. National Federation of Sugarcane WorkersFood and General Trade, G. R. No. 149440, Jan. 28,2003) Q: Are seasonal pay?
Ees entitled
to separation
2010
Q: Can seasonal employees considered as regular Ees?
(Ees)
be
A: Yes. The fact that seasonal Ees do not work continuously for one whoie year but only for the duration of the season does not detract from considering them in regular employment. Seasonal workers who are cailed to work from time to time and are temporarily laid off during off-season are not separated from service in that period, but merely considered on leave until re-employed. If the Ee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity and while such activity exists. (Ben ares v. Pancho, G.R. No. 151827, April 29,2005)
Q: Carli to Codilan and Maximo Docena had been working for the rice mill for 25 years, while Eugenio Go, Teotilo Trangria and Reynaldo Tutin have been working for 22, 15, and 6 years respectively. The operations of the rice mill continue to operate and do business throughout the year even if there are only two or three harvest seasons within the year. This seasonal harvesting is the reason why the company considers the workers as seasonal Ees. Is the company correct in conslderlnq the Ees as seasonal Ees? A: No, the fact is that big rice mills such as the one owned by the company continue to operate and do business throughout the year even if there are only two or three harvest seasons within the year. It is a common practice among farmers and rice dealers to store their palay and to have the same milled as the need arises. Thus, the milling operations are not seasonal. Finally, considering the number of years that they have worked, the lowest being 6 years, the workers have long attained the status of regular Ees as defined under Art. 280. (Tacloban Sagkahan Rice Mill v. NLRC, G.R. No. 73806, Mar. 21, 1990)
A: When the business establishment is sold which effectively terminates the employment of the seasonal Ees, the latter would be entitled to separation pay.
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PROBATIONARY Q: What is probationary
EMPLOYEES
c. d.
employment?
A: Employment where the employee (Ee), upon his engagement: 1. Is made to undergo a trial period 2. During which the Er determines his fitness to qualify for regular employment, 3. Based on reasonable standards made known to the Ee at the time of engagement. (Sec 6, Rule I, Book VI, IRR) Note: The services of an Ee who has been engaged on probationary basis may be terminated only for just cause, when he fails to qualify as a regular Ee in accordance with reasonable standards prescribed by the Er.
Q: Michelle
Miclat was employed on a probationary basis as marketing assistant by Clarion Printing House but during her employment she was not informed of the standards that would qualify her as a regular employee (Ee). 30 days after, Clarion informed Miclat that her employment contract hac'! been terminated without any reason. Miclat was informed that her termination was part of Clarion's cost-cutting measures. Is Miclat considered as a regular Ee and hence entitled to its benefits? A: Yes. Probationary employment shall be governed by the following rules: xxx (d) In all cases of probationary employment, the Er shall make known to the Ee the standards under which he will qualify as a regular Ee at the time of his engagement. Where no standards are made known to the Ee at that time, he shall be deemed a regular Ee". In the case at bar, she was deemed to have been hired from day one as a regular Ee. (Clarion Printing House Inc., VS. NRLC, G.R. No. 148372, June 27, 2005, J. Carpio-Morales) Q: What are the characteristics probationary employment?
of
A: 1. 2. 3.
154
It is an employment for a trial period; It is a temporary employment status prior to regular employment; It arises through a contract with the following elements: a. The employee (Ee) must learn and work at a particular type of work b. Such work calls for certain qualifications
e.
The probation is fixed The Er reserves the power to terminate during or at the end of the trial period And if the Ee has learned the job to the satisfaction of the Er, he becomes a regular Ee.
Q: What is the employment?
period
of
probationary
A: GR: It shall not exceed 6 months. XPNs: 1. Covered by an apprenticeship or learnership agreement stipulating a different period 2. Voluntary agreement of parties (especially when the nature of work requires a longer period) 3. The Er gives the(Ee a second chance to pass the standards set. (Mariwasa Manufacturing, Inc. v. Leogardo, Jr.,G.R. No. 74246, Jan. 26, 1989) 4. When the same is required by the nature of the work, e.g. the probationary period set for professors, instructors and teachers is 3 consecutive years of satisfactory service pursuant to DOLE Manual of Regulations for Private Schools. 5. When the same is established by company policy. Note: Period of probation shall be reckoned from the date the Ee actually started working. (Sec.6 [b), Rule I, Book VI, IRR) After the lapse of the probationary months), Ee becomes regular.
period (6
Probationary Ees may be dismissed before end of the probationary period. Q: May the Er and Ee validly agree to extend the probationary period beyond 6 months? A: Yes. Such an extension may be lawfully agreed upon, despite the restrictive language of Art. 281. A voluntary agreement extending the original probationary period to give the Ee a second chance to pass the probation standards constitutes a lawful exception to the statutory limit. (Mariwasa Manufacturing, Inc. v. Leogardo, Jr., G.R. No. 74246, Jan. 26,
1989) Note: By voluntarily agreeing to such an extension, the Ee waived any benefit attaching to the completion of the period if he still failed to make the grade during the period of extension. (Mariwasa Mfg. Inc. v. Hon. Leogardo, G.R. No. 74246,
Jan.
26, 1989)
UST GOLDEN NOTES 2010 Q: Is double allowed?
or
successive
granting the subject Ee regular employment status (based on Constitutional and statutory provisions for the liberal interpretation of labor laws)
probation
A: No. The evil sought to be prevented is to discourage scheming employers from using the system of double or successive probation to circumvent the mandate of the law on regularization and make it easier for them to dismiss their employees. (Holiday Inn Manila v. NLRC, G.R. No. 109114, Sep. 14,2003) Q: Middleby Phils. Corp. hire~ Alcica as eng'g support services supervisor on a probationary basis for 6 months. Apparently unhappy with Alcira's performance, Middleby terminated his services. Alcira contends that he was already a regular employee (Ee) when he was tenninated. According to Alcira's computation, since Art. 13 of the Civil Code provides that 1 month is composed of 30 days, 6 months totaling 180 days, then his 180th day would fall on Nov. 16, '96 making him a regular Ee before his termination. Is the contention of the petitioner in the computation of 6 months correct? A: No, the computation of the 6-month probationary period is reckoned from the date of appointment up to the same calendar date of the month following. In short, since the number of days in each particular month was irrelevant, Alcira was still a probationary Ee when Middleby opted not to "regularize" him on Nov. 20, 1996. (Alcira v. NLRC, G.R. No. 149859, June 9, 2004)
Q: What is the purpose
A; To afford the employer an opportunity to observe the fitness of a probationary employee at work.
Q: In what
"Applying Art. 13 of the Civil Code, the probationary period of 6-months consists of the 180 days. This is in conformity with par.1, Art. 13 of the Civil Code. The number of months in the probationary period, 6, should then be multiplied by the number of days within a month, 30; hence, the period of 180 days. As clearly provided for the in last par. of Art. 13, in computing a period, the first day shall be excluded and the last day included. Thus, the 180 days commenced on May 27,1996, and ended on Nov. 23,1996. The termination letter dated Nov. 25, 1996 was served on Paras only on Nov. 26, 1996. He was, by then already a regular Ee of the company under Art. 281 of the LC."
instances is a probationary (Ee) deemed a regular Ee?
employee
A:
1. 2.
If he is allowed to work after a probationary period. (Art. 281) If no standards, under which he will qualify as a regular Ee, are made known to him at the time of his engagement. (Sec. 6 [d), Rule I, Book VI, IRR)
Q: What are the grounds probationary employment?
A:
s"
Note: In Mitsubishi Motors v. Chrysler Phils. Labor Union, GR. No. 148738, June 29, 2004, the SC ruled in this wise:
of the period?
1. 2.
for terminating
JusUauthorized causes When he fails to qualify as a regular Ee in. accordance with reasonable standards made known by the employer (Er) to the Ee at the time of his engagement (ICMC v. NLRC, G.R. No. 7222~Jan. 30, 198~
Notes: The probationary Ee is entitled to procedural due process prior to dismissal from service. While probationary Ees do not enjoy permanent status, they are afforded the security of tenure protection of the Constitution. Consequently, they cannot be removed from their positions unless for cause. Such constitutional protection, however, ends upon the expiration of the period stated in their probationary contract of employment. Thereafter, the parties are free to renew the contract or not. (CSA v. NLRC, GR. No. 87333, Sep. 6, 1991) Q; What are the limitations on the employer's (Er's) power to tenninate a probationary employment contract?
A:
How to resolve the conflict between the Alcira and Mitsubishi Motors case? 1. Statutory Construction - The latter case prevails (Mitsubishi Motors); or 2. Rule more favorable to the Ee - use the computation which would amount to UNIVERSITY
1.
2.
The power must be exercised in accordance with the specific req'ts of the contract If a particular time is prescribed, the termination must be within such time and if formal notice is required, then that form must be used, OF SANTO
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LABOR RELATIONS: POST-EMPLOYMENT 3.
The Er's dissatisfaction must be real and in good faith, not feigned so as to circumvent the contract or the law There must be no unlawful discrimination in the dismissal
tenure. Hence, the Gela cannot claim any vested nght to a permanent appointment since she had not yet achieved the prerequisite 3-year period under the Manual of Regulation for Private Schools and the Faculty Manual of CSA.
Note: The probationary employee is entitled to procedural due process prior to dismissal from service.
In the instant case where the CSA did not wish to renew the contract of employment for the next school year, the Gela has no ground to protest. She was not illegally dismissed. Her contract merely expired. (CSA v. NLRC, G.R No. 87333, Sep. 6, 1991)
4.
Q: R.L. Cruz was employed as gardener by Manila Hotel on "probation status" effective Sep. 22, '76. The appointment signed by Cruz provided for a 6 month probationary period. On Mar. 20, '77, or a day before the expiration of the probationary period, Cruz's was promoted to lead gardener position. On the same day Cruz' position was "abolished" by Manila Hotel allegedly due to economic reverses or business recession, and to salvage the enterprise from imminent danger of collapse. Was Cruz illegally dismissed? A: Yes, there is no dispute that as a probationary employee (Ee), Cruz had but limited tenure. Although on probationary basis, however, Cruz still enjoys the constitutional protection on security of tenure. During his tenure of employment, therefore, or before his contract expires, Cruz cannot be removed except for cause as provided for by law.
Q: During their probationary employment, S Ees were berated and insulted by their supervisor. In protest, they walked out. The supervisor shouted at them to go home and never to report back to work. Later, the personnel manager required them to explain why ,they should not be dismissed from employment for abandonment and failure to ~ualify for the positions applied for. They flled a complaint for illegal dismissal against their Er. As a LA, how will you resolve the case? A: As a LA I will resolve the case in favor of the 8 probationary Ees due to the ff:: 1.
What makes Cruz' dismissal highly suspicious is that it took place at a time when he needs only but a day to be eligible as a regular Ee. That he is competent finds support in his being promoted to a lead gardener in so short span of less than 6 months. By terminating his employment or abolishing his position with but only one day remaining in his probationary appointment, the hotel deprived Cruz of qualifying as a regular Ee with its concomitant rights and privileges. (Manila Hotel Corp. v. NLRC, G.R. No. L-53453, Jan. 22, 1986)
2.
Q: Coleglo San Agustin (CSA) hired the Gela Jose as a grade school classroom teacher on a probationary basis for SY 'S4 - 'S5. Her contract was renewed for SY's 'S5·'S6 and 'S6'S7. On Mar. 24, 'S7, the CSA wrote the Gela that "it would be in the best interest of the students and their families that she seek employment in another school or business concern for next school year". Notwithstanding the said notice, the CSA still paid Gela her salary for April 15 to May 15, 1987. On April 6, 'S7, Gela wrote the eSA and sought reconsideration but she received no reply. Thereafter, she filed a complaint for illegal dismissal. Was Gela illegally dismissed?
5.
A: No. The Faculty Manual of CSA underscores the completion of 3 years of continuous service at CSA before a probationary teacher acquires
156
3.
4.
Probationary Ees also enjoy security of tenure. (Biboso v. Victoria Milling, G.R. No. L-44360, Mar. 31, 1977) In all cases involving Ees on probationary status, the Er shall make known to the Ee at the time he is hired, the standards by which he will qualify for the positions applied for. The filing of the complaint for illegal dismissal effectively negates the Ers theory of abandonment. (Rizada v. NLRC, G.R. No. 96982, Sep. 21, 1999) The order to go home and not to return to work constitutes dismissal from employment. The 8 probationary Ees were terminated without just cause and without due process
In view of the foregoing, I will order reinstatement to their former positions without loss of seniority rights with full backwages, plus damages and atty's fees. (2006 Bar Question)
UST GOLDEN NOTES 2010 ~" '
.
CASUAL
EMPLOYEES
Q: What is casual employment?
A: 1.
An Ee is engaged to perform a job, work or service which is merely incidental to the business of the Er, and such job, work or service is for a definite period made known to the Ee at the time of engagement (Sec. 5 {b}, Rule I, Book VI, IRR) ~) ~
The workers are casual Ees. Nevertheless, they may be considered regular Ees if they have rendered services for at least 1 year. When, as in this case, they were dismissed from their employment before the expiration of the 1-year period they cannot lawfully claim that their dismissal was illegal. (Capule, et al. v. NLRC, G.R. No. 90653, Nov. 12, 1990)
Note: If he has rendered at least 1 year of service, whether such service is continuous or broken, he is considered as regular Ee with respect to the activity in which he is employed and his employment shall continue while such activity exists. A Casual Ee is only casual for 1 year, and it is the passage of time that gives him a regular status. (KASAMMA-CCO v. CA, G.R. No. 159828, April 19, 2006) The purpose is to give meaning to the constitutional guarantee of security of tenure and right to self-organization. (Mercado v. NLRC, G.R. No. 79868, Sep. 5, 1991) 2.
It is an employment where the Ee is engaged in an activity which is not usually necessary or desirable in the usual business or trade of the Er, provided: such employment is not project nor seasonal (Art. 281).
Note: But despite the distinction between regular and casual employment, every Ee shall be entitled to the same rights and privileges, and shall be subject to the same duties as may be granted by law to regular Ees during the period of their actual employment.
Academics Committee Chairperson: .Abraham D. Genuino II Vice-Chair jor Academics: Jeannie A. Laurentino Vice-Chair jar Admin & Finance: Aissa Celine H. Luna Vice-Cbair jar Lyout & Design: Loise Rae G. Naval
Labor Law Committee SubJect Head' Lester Jay Alan E. Flores II Assistant SubJect Head' Domingo B. Diviva V
Q: Yakult Phils. is engaged in the manufacture of cultured milk. The workers were hired to cut cogon grass and weeds at the back of the factory building used by Yakult. They were not required to work on fixed schedule and they worked on any day of the week on their own discretion and convenience. The services of the workers were terminated by Yakult on less than 1year after. May casual or temporary Ees be dismissed by the Er before the expiration of the 1-year period of employment?
Members: Rene Francis P. Batal1a Diane Camilla R. Borja Maria Kristina 1. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanel1eC. Lee J emuel Paolo M. Lobo Andrew \'\1. Montesa Maria Maica Angelika Roman
A: Yes, the usual business or trade of private respondents is the manufacture of cultured milk. The cutting of the cogon grasses in the premises of its factory is hardly necessary or desirable in the usual business of the Yakult. UNIVERSITY
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LABOR RELATIONS: r
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TERMINATION OF EMPLOYMENT: JUST CAUSES
ART. 279. SECURITY OF TENURE.'
'.
2.
Q: What is security of tenure?
3.
A: In cases of regular employment, the Er shall not terminate the services of an Ee except for just or authorized causes as provided by law, and subject to the req'ts of due process. (Sec. 2 (aJ, Rule I, Book VI, IRR)
4.
5.
It is the constitutional right granted to Ee, that an Er shall not terminate the services of an Ee except for just cause or when authorized by law. It extends to regular (permanent) as well as non-regular (temporary) employment. (Kiamco v. NLRC, G.R. No. 129449, June 29, 1999)
Note: The burden of proving that the termination was for a valid or authorized cause shall rest on the Er. (Art. 277{bJ) Q: What doctrine?
Note: Security of tenure is not confined to cases of termination of Er-Ee relationship alone. It is also intended to shield workers from unwarranted and unconsented demotion and transfer.
is
the
totality
of
infractions
of
A: It is the totality. not the compartmentalization of company infractions that the Ee has committed, which justifies the penalty of dismissal. (MERALCO v. NLRC, G.R. No. 114129, Oct. 24, 1996)
A: It does not exclusively apply to regular employment only. It also applies to probationary, seasonal, project and other forms of employment during the effectivity thereof. Managerial employees also enjoy security of tenure.
Where the Ee has been found to have repeatedly incurred several suspensions or warnings on account of violations of company rules and regulations, the law warrants their dismissal as it is akin to "habitual delinquency". (Villeno v. NLRC, G.R. No. 108153, Dec. 26, 1995)
Q: What is the extent of the application security of tenure?
Q: Which takes precedence in conflicts arlsmg between Ers' management prerogatives and the Ees' right to security of tenure?
Q: What are the guidelines validity of termination?
ART. 282: TERMINATION Q: What are termination?
the
BY EMPLOYER
just
causes
.
for
A: 1.
15f.f
to determine the
A:
A: The Ees' right to security of tenure. An Ers' management prerogative includes the right to terminate the services of the Ee but this management prerogative is limited by the LC which provides that the Er can terminate an Ee only for just cause or when authorized by law. This limitation is because no less than the Constitution recognizes and guarantees Ees' right to security of tenure. (Art. 279, LC, Art. XIII, Sec. 3, 1987 Constffution)
l
Gross and habitual neglect by the Ee of his duties Fraud or willful breach by the Ee of the trust reposed in him by his Er or duly organized representative Commission of a crime or Qffense by the Ee against the person of his Er or any immediate member of his family or his duly authorized representative. Other causes analogous to the foreqoinq
Serious misconduct or willful disobedience by the employee (Ee) of the lawful orders of his employer (Er) or representative in connection with his work
1. 2. 3. 4. 5.
.
Gravity of the offense Position occupied by the employee Degree of damage to the employer Previous infractions of the same offense Length of Service
I.
SERIOUS MISCONDUCT
Q: What is serious misconduct? A: It is an improper or wrong conduct; the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty. willful in character, and implies wrongful intent and not mere error in judgment. To be serious within the meaning and intendment of the law, the misconduct must be of such grave and aggravated character and not merely trivial or unimportant. (Vil/amor Golf Club v. Pehid, G.R. No. 166152, Oct. 4, 2005)
UST GOLDEN NOTES 2010 Q: What are misconduct?
the
elements
of
serious
Q: Give some misconduct.
A: 1.
2. 3.
to the "gago to his of the harm
A: Yes. The repeated utterances by Escando of obscene, insulting or offensive words against a superior were not only destructive of the morals of his co-employees (Ees) and a violation of the company rules and regulations, but also constitute gross misconduct which is one of the grounds provided by law to terminate the services of an Ee. (Autobus Workers Union v. NLRC, G.R. No. 11753, June 26, 1998) Q: Samson made Insulting and obscene utterances towards the General Manager saying "Si EDT bullshit yan, sabihin mo kay EDT yan" among others during the Christmas party, Are the utterances towards the General Manager gross misconduct? A: The alleged misconduct of Samson when viewed in its context is not of such serious and grave character as to warrant his dismissal. The Samson made the utterances and obscene gestures at an informal Christmas gathering and its is to be expected during this kind of gatherings, where tongues are more often than not loosened by liquor of other alcoholic beverages, that employees (Ees) freely express their grievances· and gripes against their employers (Ers). Ees should be allowed wider latitude to feely express heir grievances and gripes against their Er. Ees should be allowed wider latitude to freely express their sentiments during these kinds of occasions which are beyond the disciplinary authority of the Er. (Samson v. NLRC, G.R. No. 121035, April 12, 2000)
of
serious
A:
It must be serious or of such a grave and aggravated character; Must relate to the performance of the employees (Ee) duties; Ee has become unfit to continue working for the employer. (Philippine Aeolus Automotive United Corp. v. NLRC, G.R. No. 1246~l, Aprjl 28, 2000)'
Q: Escando, upset at his transfer washer section, repeatedly uttered ka" and threatened bodily hann superior Mr. Andres, Is the utterance obscene words and threats of bodily gross and willful misconduct?
examples
1.
Sexual harassment Fighting within the company premises Uttering obscene, insulting or offensive words against a superior Falsification of time records Gross immorality
2. 3. 4. 5.
II.
WILLFUL
DISOBEDIENCE
o.
Q: When is willful disobedience of the Er's lawful orders a just cause for termination? A: 2 requisites must concur: 1. The employees (Ees) assailed conduct must have been willful or intentional, the willfulness being characterized by a wrongful and perverse attitude. 2. The disobeyed orders, regulations or instructions of the Er must be: a. Reasonable and lawful b. Sufficiently made known to the Ee c. Must pertain to or be in connection with the duties which the Ee has been engaged to discharge. (Cosep V. NLRC, G.R. No. 124966 June 16, 1998) Note: There is no law that compels an Ee to accept a promotion for the reason that a promotion is in the nature of a gift or reward. which a person has the right to refuse. The exercise of the Ee of the right to refuse a promotion cannot be considered in law as insubordination or willful disobedience. (PT& T Corp. v. CA. GR. No. 152057, Sep. 29, 2003)
Q: Aquote
brought out of the company premises the company vehicle without authorization twice and meeting an accident in Espana Blvd. in the latter instance. Is Aquote guilty of willful disobedience even though he was not the one who personally brought the company vehicle out of the company premises? A: Yes. A rule prohibiting Ees from using company vehicles for private purpose without authority from management is a reasonable one. When Aquote rode the company vehicle he was undoubtedly aware of the possible consequences of his act and taking into consideration his moral ascendancy over the security guards it was incumbent upon him not
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LABOR RELATIONS:
TERMINATION OF EMPLOYMENT: JUST CAUSES
only to admonish them but also to refrain from using the company car himself. (Family Planning Org. of the Phil. v. NLRC, G.R. No. 75907, Mar. 23, 1992) Q: Escobin et al. were security guards based in Basilan were placed in floating status and were asked to report for reassignment in Metro Manila by PIS! and upon failure to report or respond to such directives were ordered dismissed from employment by PISI for willful disobedience. Did the failure to report to Manila amount to willful disobedience? A: The reasonableness of the rule pertains to . the kind of character of directives and commands and to the manner in which they are made. In this case, the order to report to the Manila office fails to meet this standard. The order to report to Manila was inconvenient, unreasonable, and prejudicial to Escobin et a/. since they are heads of families residing in Basilan and they were not given transportation money or assurance of availability of work in Manila. (Escobin v. NLRC, G.R. No. 118159. Apri/15, 1998)
III.
A. NEGLIGENCE
Q: When is negligence termination?
a just
cause
for
A: When it is gross and habitual. Gross negligence implies a want or absence of or failure to exercise slight care of diligence of the entire absence of care it evinces thoughtless disregard of consequences without exerting any effort to avoid them. However, such neglect must not only be gross but habitual in character. (Judy Phils. v. NLRC, G.R. No. 111934, April 29, 1998) Habitual Neglect implies repeated failure to perform one's duties over a period of time, depending upon the circumstance. (JGB and Associates v. NLRC, GR No. 10939, Mar. 7, 1996) Q: Antiola, as assorter of baby infant dress as for Judy Phils. erroneously assorted and packaged 2,680 dozens of infant wear. Antiola was dismissed from employment for this infraction. Does the single act of misassortment constitute gross negligence? A: No. Such neglect must not only be gross but also habitual in character. Hence, the penalty of dismissal is quite severe
160
considering that Antiola committed the infraction for the first time. (Judy Phi/so V. NLRC, G.R. No. 111934. April 29, 1998)
Q: Does the failure in evaluations amount to gross neglect of duties?
performance and habitual
A: As a general concept "poor performance" is equivalent to inefficiency and incompetence in the performance of official duties. The fact that an employee's (Ee's) performance is found to be poor or unsatisfactory does not necessarily mean that the Ee
a
just
cause
for
A: Yes, failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. (Buiser V. Leogardo, GR. No. L-63316, July 31, 1984) This ground is considered analogous to those enumerated under Art. 282. (Skippers United Pacific v. Magud, G.R. No. 166363, Aug. 15, 2006) Q: Gamido was a quality control inspector of VH Manufacturing. Gamido was allegedly caught by the company Pres. Dy Juanco of sleeping and was dismissed from employment Did Gamido's act of sleeping on the job constitute a valid cause of dismissal? A: Sleeping on the job as a valid ground for dismissal only applies to security guards whose duty necessitates that they be awake and watchful at all times. Gambido's single act of sleeping further shows that the alleged negligence or neglect of duty was neither groS$ nor habitual. (VH Manufacturing V. NLRC, G.R. No. 130957, Jan. 19,2000)
UST GOLDEN NOTES 2010 Q: Give some forms of neglect
A:
1. 2.
reinstatement abandonment?
of duty.
Habitual tardiness and absenteeism Abandonment: a. Failure to report for work or absence without justifiable reason b. Clear intention to sever Er-Ee relationship manifested by some overt acts. (Labor et. al v. NLRC, GR No. 110388, Seg.14, 1~95)
I
III..
Q: What is abandonment termination?
as a relief. Did Mejila commit
A: Mejila's acts such as surrendering the shop's keys, not reporting to the shop anymore without any justifiable reason, his employment in another barber shop, and the filing of a complaint for illegal dismissal without praying for reinstatement clearly show that there was a concurrence of the intention to abandon and some overt acts from which it may be inferred that the Ee concerned has no more interest in working. (Jo v. NLRC, G.R. No. 121605, Feb. 2,2000)
B. ABANDONMENT as a just cause for
A: It means the deliberate, unjustified refusal of an employee to resume his employment. Q: What are the requirements for a valid finding of abandonment? A: For a valid finding of abandonment, 2 factors must be present: 1. The failure to report for work, or absence without valid 'Or justifiable reason; and 2. A clear intention to sever Er-Ee relationship, with the 2nd element as the more determinative factor, being manifested by some overt acts. (Sta. Catalina College and Oranza, vs. NLRC and Tercera, G. R. No. 144483, Nov. 19, 2003, J. CarpioMorales)
IV. FRAUD; BREACH OF TRUSTILOSS CONFIDENCE . Q: When confidence
A:
1.
Q: How to prove abandonment? A: To prove abandonment, the Er must show that the Ee deliberately and unjustifiably refused to resume his employment without any intention of returning. There must be a concurrence of the intention to abandon and some overt acts from which an Ee may be deduced as having no more intention to work. The law, however, does not enumerate what specific overt acts can be considered as strong evidence of the intention to sever the Ee-Er relationship. (Sta. Catalina College and Sr. Loreta Oranza, VS. NLRC and Tercera, G.R. No. 144483. Nov. 19, 2003, J. CarpioMorales)
is breach of trust/loss a just cause for termination?
OF
of
It applies only to cases involving: a. Employees (Ees) occupying positions of trust and confidence (confidential and managerial Ee's) - to this class belong managerial Ees, i.e., those vested with the powers or prerogatives to lay down management policies andlor to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline Ees or effectively recommend such managerial actions b. Ees routinely charged with the care and custody of the employer's (Er's) money Dr property - to this class belong cashiers, auditors, property custodians, etc., or those who, in the normal and routine exercise of their functions, regularly handle significant amounts of money or property. (Mabeza v. NLRC, G. R. No. 118506 April 18,
1997) 2.
The loss of trust and confidence must be based on willful breach. A breach is willful if it is done intentionally, knowingly, and purposely without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently (De te Cruz v. NLRC, G.R. No. 119536, Feb. 1~ 199~.
3.
The act constituting the breach must be "work-related" suchas would show
Q: Mejila
a barber at Windfield Barber Shop, had an altercation with a fellow barber which resulted in his subsequent turning over the duplicate keys of the shop to the cashier and took away all his belongings there from and worked at different barbershop. Mejila then filed an illegal dismissal case but did not seek UNIVERSITY
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LABOR RELATIONS: TERMINATION OF EMPLOYMENT: JUST CAUSES the Ee concerned to be unfit to continue working for the Er. (Gonzales V. NLRC, G.R. No. 131653, Mar. 26, 2001) 4.
It must be substantial and founded on clearly established facts sufficient to warrant the Ee's separation from employment. (Sulpicio Lines Inc. V. Guide, G. R. No. 149930, Feb. 22, 2002)
5.
Fraud must be committed against the Er or his representatives, e.g.: a. Falsification of time cards b. Theft of company property c. Unauthorized use of company vehicle
Note: The treatment of rank and file personnel and managerial Ees in so far as the application of the doctrine of loss of trust and confidence is concerned is different. As regards managerial Ees, such as Caoile, mere existence of a basis for believing that such Ee has breached the trust of his Er would suffice for his dismissal. (Caoile v. NLRC, GR. No. 115491, Nov. 24, 1998) A criminal case need not be actually filed. Commission of acts constituting a crime itself is sufficient. Q: What are the guidelines for the doctrine of loss of confidence to apply?
A: 1.
2.
3.
4.
5.
Loss' of confidence should not be simulated (reasonable basis for loss of trust and confidence) Not used for subterfuge for causes which are improper and/or illegal and unjustified . Not arbitrarily asserted in the face of overwhelming evidence to the contrary; Must be genuine, not a mere afterthought to justify earlier action taken in bad faith and The Ee involved holds a position of trust and confidence.
Q: Mabeza a chambermaid at Hotel Supreme was terminated from employment because of her refusal to sign an affidavit attesting to their employer's (Er's) compliance with minimum wage and other labor standards. Mabeza filed a complaint for illegal dismissal against Hotel Supreme. As a defense, Hotel Supreme claimed that she abandoned her work and belatedly claimed loss of confidence as the ground for the dismissal of Mabeza because she stole some of the properties of her Er. Is
1.62
loss of dismissal
confidence a valid ground of a hotel chambermaid?
for
A: No. Loss of confidence as a just cause for dismissal was never intended to provide Ers with a blank check for terminating their Ees. Evidently, an ordinary chambermaid who has to sign out for linen and other hotel property from the property custodian each day and who has to account for each and every towel or bed sheet utilized by the hotel's guests at the end of her shift would not fall under any of these two classes of Ees for which loss of confidence, if ably supported by evidence, would nonmally apply. (Mabeza v. NLRC, G.R. No. 118506, April 18, 1997) Note: The breach of trust must rest on substantial grounds and not on the Er's arbitrariness, whims, caprices, or suspicion: otherwise, the Ee would eternally remain at the mercy of the Er. It should be genuine and not simulated, nor should it appear as a mere afterthought to justify earlier action taken in bad faith of a subterfuge for causes which are improper, illegal, or unjustified. It has never been intended to afford and occasion for abuse because of its subjective nature. There must, therefore, be an actual breach of dully committed by the employee which must be established by substantial evidence. (Oela Cruz v. NLRC, GR. No. 119536, Feb. 17, 1997) Q: Abelardo Abel was first hired by Philex Mining Corp. in Jan. '88. He was later assigned to the company's Legal Dep't as a Contract Claims Asst., and held the position for 5 yrs prior to his transfer to the Mine Eng'g and Draw Control Dep't wherein he was appointed Unit Head. In '02, he was implicated in an irregularity occurring in the subsidence area of the company's mine site at Benguet. His co-worker Danilo, executed an affidavit known as the "Subsidence Area Anomaly". The incidents in Lupega's affidavit supposedly took place when Abel was still a Contract Claims Asst. at the company's legal dep't. An investigation was promptly launched by the company's officers. Abel attended the meetings but claimed that he was neither asked if he needed the assistance of counsel nor allowed to properly present his side. By memo, the company found Abel guilty of (1) fraud resulting in loss of trust and confidence and (2) gross neglect of duty, and was meted out the penalty of dismissal from employment. Was Abel validly dismissed for any of the causes provided for in Art. 282 of the LC? A: No. The 1st requisite for dismissal on the ground of loss of trust and confidence is that
UST GOLDEN NOTES 2010 the Ee concerned must be holding a position of trust and confidence, Abel was a contract claims assistant at the time he allegedly committed the acts which led to its loss of trust and confidence. It is not the job title but the actual work that the Ee performs. It was part of Abel's responsibilities to monitor the performance of the company's contractors in relation to the scope of work contracted out to them. The 2nd requisite is that there most be 61nact that would justify the loss of trust' and confidence. Loss of trust and confidence, to be a valid cause for dismissal, must be based on a willful breach of trust and founded on clearly established facts. The basis for the dismissal must be clearly and convincingly established but proof beyond reasonable doubt is not necessary. The company's evidence against Abel fails to meet this standard. Its lone witness, Lupega, did not support his affidavit and testimony during the company investigation with any piece of evidence at all. It could hardly be considered substantial evidence. (Abel v. F?hilex Mining Corp., G.R. No. 178976, July 31, 2009, J. Carpio-Morales)
:
V. COMMISSION
OF A CRIME
Q: What do you mean by "commission of a crime or offense" as a just cause for termination of an Ee? . A: It refers to an offense by the Ee against the person of his employer or any immediate member of his family or his duly authorized representative and thus, conviction of a crime involving moral turpitude is not analogous thereto as the element of relation to his work or to his employer is lacking.
4." 5.
6.
Q: What is the doctrine
VI. ANALOGOUS
Q: What
is required included in analogous of termination?
CASES
for an act to be cases of just causes
A: Must be due to the voluntary and/or willful act or omission of the employee (Nadura v. Benguet Consolidated, G.R. No. L-17780, Aug. 24, 1962), e.g.: . 1. Violation of company rules and regulations 2. Drunkenness 3. Gross inefficiency
of incompatibility?
A: Where the employee has done something that is contrary or incompatible with the faithful performance of his duties, his employer has a just cause for terminating his employment. (Manila Chauffeur's League v. Bachrach Motor Co., G.R. No. L-47071, June 17, 1940)
VII. IMMORALITY Q: Santos, a married man and a teacher was dismissed from employment for having an extra-marital affair with a coteacher as confirmed by the investigating committee of the school. Is immorality a just and valid ground for dismissal of employment? A: To constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws. Consequently, it is but stating the obvious to assert that teachers must adhere to the exacting standards of morality and decency. The personal behaviors of teacher, in and outside of the classroom must be beyond reproach. Teachers must observe a high standard of integrity and honesty. When a teacher engages in extra-marital relationship. especially when the parties are both married, such behavior amounts to immorality, justifying his termination from employment. (Santos v. NLRC, G.R. No. 115795, Mar. 6, 1998)
Note: A criminal case need not be actually filed. Commission of acts constituting a crime itself is sufficient.
.
Illegally diverting employer's products Failure to heed an order not to join an illegal picket Violation of safety rules and code of discipline
VIII. UNION SECURITY CLAUSE Q:, MSMG was a local union affiliated with ULGWP a national federation. MSMG had a dispute with ULGWP over an imposition of a fine prompting MSMG to declare independence from ULGWP. Because of the dispute, ULGWP asked for the dismissal from employment of the officers of MDMG from the company by virtue of a union security clause iii the CBA. The company dismissed the officers. Does a union security clause absolve the company form observing the requirement of due process? A: Although union security clauses embodied in the CBA may be validly, enforced and
UNIVERSITY
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LABOR RELATIONS: TERMINATION OF EMPLOYMENT: JUST CAUSES dismissals pursuant thereto may likewise be valid, this does not erase the fundamental requirement of due process. An employer cannot merely rely upon a labor federation's allegations in terminating union officers expelled by the federation for allegedly committing acts of disloyalty and/or inimical to the interest of the federation and in violation of its constitution and by laws. The right of an Ee to be informed of the charges against him and to be given a reasonable opportunity to present his side in a controversy with 'either the company or his own union is not wiped away by a union security clause in a CBA. Even assuming that a federation had valid grounds to expel union , officers, due process requires that these union officers be accorded a separate hearing by the company. (MSMG v. Ramos, G.R. No, 113907, Feb. 28, 2000)
_
IX. MARRIAGE
to constitute the act of Tecson as willful disobedience? A: The prohibition against personal or marital relationships with Ees of competitors companies upon Glaxo's Ees is reasonable under the circumstances because relationships of that nature might compromise the interest of the company. Glaxo does not impose an absolute prohibition against relationships between its employees and those of competitor companies. Its employees are free to cultivate relationships with and marry persons of their own choosing. What the company merely seeks to avoid is a conflict of interest between the Ee and the company that . may arise out of such relationships. Furthermore, the prohibition forms part of the employment contract and Tecson was aware of such restrictions when he entered into a relationship with Bettsy. (Duncan Asso. Of Detailman-PTGWO v Glaxo WeI/come Phil. lnc., G.R. No. 162994, Sep. 17, 2004)
Q: Is a company policy prohibiting marriage betweenco-workers valid? A: There must be a finding of a bona fide occupational qualification (BFOQ) to justify an employer's (Er's) no spouse rule, There must be a compelling business necessity for which no alternative exists other than the discriminating practice. (Star Paper v, Simbol, G.R. No. 164774, April 12, 2006)
.'.
""~'~'
~:"';".
"
...""--,, .
.
Academics Committee Q: What are the factors that the Er must
prove inorder to justify BFOQ? A: The Er must prove 2 factors: 3.
4.
That the employment qualification is reasonably related to the essential operation of the job involved; and That there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job, (Star Paper v. Simbol, G.R. No. 164774, April 12, 2006)
Q: Tecson was employed by Glaxo as medical representative who has a policy against employees having relationships against competitor's employees (Ees). Tecson married Bettsy, a Branch coordinator of Astra, Glaxo's competitor. Tecson was transferred to another area. Tecson did not accept such transfer. Is the policy of Glaxo valid and reasonable so as
164
Chairperson: Abraham D. Genuine II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Lqyout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head: Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S, Diokno Genesis R. Fulgencio Jeanelle C. Lee Jemuel Paolo M. Lobo Andrew W, Montesa Maria Maica Angelika Roman
UST GOLDEN NOTES 2010 :' .
PROCEDURE
IN TERMINATION
Q: What are the 2-fold requirements valid dismissal for a just cause?
A:
1.
2.
--- -
2.
of a
Substantive - it must be for a just cause Procedural - there must be notice and hearing
Q: What is the process to be ~serv~d by the employer (Er) for termination of the employment based on any of the just causes for termination?
A:
1.
A written notice should be served to the Ee specifying the ground/s for termination and giving the said Ee reasonable opportunity to explain. Note: This first written notice must apprise the Ee that his termination is being considered due to the acts stated in the notice. (Phil. Pizza Inc. v. Bungabong, GR. No. 15"4315, May 9, 2005)
2.
3.
A hearing or conference should be held during which the Ee concerned, with the assistance of counsel, if the Ee so desires, is given the opportunity to respond to the charge, present his evidence and present the evidence presented against him. A written notice of termination - If termination is the decision of the Er, it should be served on the Ee indicating that upon due considerations of all the Circumstance, grounds have been established to justify his termination, at least one month prior to his termination. Note: Single notice of termination does not comply with the requirements of the law. (Aldeguer & Co., Inc.lLoalde Boutique, VS. Honeyline Tomboc, GR. No. 147633, July 28, 2008, J. CarpioMorales)
Q: What hearing?
is
the
purpose
of
notice
and
A: 1.
The req't of notice is intended to inform the Ee concerned of the Er's intent to dismiss him and the reason for the proposed dismissal; on the other hand,
The req't of hearing affords the Ee the opportunity to answer his Er's charges against him and accordingly to defend himself there from before dismissal is effected. (Salaw v. NLRC G.R. No. 90786 Sep. 27, 1991) Note: Failure to comply with the req't of the 2 notices makes the dismissal illegal. The procedure is mandatory. (Loadstar Shipping Co. Inc. v. Mesano, G.R. No. 138956, Aug. 7, 2003)
Q: While it may be true that the Er enjoys wider latitude of discretion in terminating employees (Ees) should there exists valid and just cause, would this be sufficient for the Er to depart from giving the Ee the right to be heard? A: Art. 277(b) of the LC mandates that an Er who seeks to dismiss an Ee must "afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires." Expounding on this provision, the SC held that "ample opportunity" connotes every kind of assistance that management must accord the Ee to enable him to prepare adequately for his defense including legal representation. (U-BIX Corp. vs. Valeria Anne Bravo, G.R. No. 177647, Oct. 31, 2008, J. Carpio-Morales) Q: Who has the burden
of proof?
A: The burden of proof rests upon the employer to show that the dismissal of the employee is for a just cause, and failure to do so would necessarily mean that the dismissal is not justified, consonant with the constitutional guarantee of security of tenure. Note: Due process refers to the process to be followed; burden of proof refers to the amount of proof to be adduced. In money claims, the burden of proof as to the amount to be paid the Ees rests upon the Er since he is in custody of documents that would be able to prove the amount 'due, such as the payroll. Q: What is the degree of proof? A: In administrative or quasi-judicial proceedings, substantial evidence is considered sufficient in determining the legality of an employer's dismissal of an employee. (Pangasinan 11/ Electric Cooperative, Inc. v. NLRC, G.R. No. 89878, Nov. 13, 1992) Q: Perez and Doria were employed by PT& T. After investigation, Perez and Doria
UNIVERSITY
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LABOR RELATIONS: TERMINATION OF EMPLOYMENT: PROCEDURE were placed on preventive suspension for 30 days for their alleged Involvement in anomalous transactions in the shipping section. PT&T dismissed Perez and Doria from service for falsifying documents. They filed a complaint for illegal suspension and illegal dismissal. The LA found that the 30day extension of suspension and the subsequent dismissal were both illegal. The NLRC reversed the LA's decision, it ruled that Perez and Doria were dismissed for just cause, that they were accorded due process and that they were illegally suspended for only 15 days (without stating the reason for the reduction of the period of petitioners' illegal suspension). On appeal, CA held that they were dismissed without due process. Whether petitioners were illegally dismissed? A: Yes. The Er must establish that the dismissal is for cause in view of the security of tenure that Ees enjoy under the Constitution and the LC. PT&T failed to discharge this burden. PT&T's illegal act of dismissing Perez and Doria was aggravated by their failure to observe due process. To meet the req'ts of due process in the dismissal of an Ee, an Er must furnish the worker with 2 written notices: (1) a written notice specifying the grounds for termination and giving to said Ee a reasonable opportunity to explain his side and (2) another written notice indicating that, upon due consideration of all circumstances, grounds have been established to justify the Er's decision to dismiss the Ee. There is however, no need for a hearing or conference. "To be heard" does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or pleadings. In other words, the existence of an actual, formal "trial-type" hearing, although preferred, is not absolutely necessary to satisfy the employee's right to be heard. (Perez. v. Phil. Telegraph and Telephone Company, G.R. No. 152048, April 7, 2009)
~
DISPROPORTIONATE
PENALTY
Q: What are the guidelines in determining whether penalty imposed on Ee is proper?
A:
1. 2. 3. 4.
166
Gravity of the offense Position occupied by the Ee Degree of damage to the employer (Er) Previous infractions of the same offense
5.
Length of service (ALU- TUCP v. NLRC, G.R. No. 120450, Feb. 10, 1999; PAL v. PALEA, G.R. No.L24626, June 28,1974)
Q: Felizardo was dismissed from Republic Flour Mills-Selecta ice cream Corporation for dishonesty and theft of company property for bringing out a pair of boots, 1 piece aluminum container and 15 pieces of hamburger patties. Is the penalty of dismissal commensurate with the offense committed? A: There is no question that the employer has the inherent right to discipline its Ees which includes the right to dismiss. However this right is subject to the police power of the State. In this case the Court finds that the penalty imposed upon Felizardo was not commensurate with the offense committed considering the value of the articles he pilfered and the fact that he had no previous derogatory record during his 2 years of employment in the company. Moreover, it should also be taken into account that Felizardo was not a managerial or confidential Ee in whom greater trust is reposed by management and from whom greater fidelity to duty is correspondingly expected. (ALU- TUCP v. NLRC, G.R. No. 120450, Feb. 10, 1999)
,
. CONSTRUCTIVE Q: What is constructive
DISMISSAL dismissal?
A: An involuntary resignation resorted to when continued employment becomes impossible, unreasonable, or unlikely: when there is a demotion in rank or diminution in pay: or when a clear discrimination, insensibility or disdain by an Er becomes unbearable to the Ee. (Leonardo v. NLRC, G.R. No. 125303, June 16, 2000) Note: There is no formal dismissal. The Ee is placed in a situation by the Er such that his continued employment has become unbearable. Abandonment is incompatible with constructive dismissal. Q: Reynaldo was hired by Geminilou Trucking Service (GTS) as a truck driver to haul and deliver products of San Miguel Pure Foods Company, Inc. He was paid P400 per trip and made 4 trips a day. He claimed that he was requested by GTS to sign a contract entitled "Kasunduan Sa Pag-Upa ng Serbisyo" which he refused as he found it to alter his status as a regular Ee to merely contractual. He averred that
UST GOLDEN NOTES 2010 on account of his refusal to sign the Kasunduan, his services were terminated prompting him to file a complaint before the NLRC for constructive dismissal against the GTS. Would Reynaldo's refusal to sign the Kasunduan adequately support his allegation of constructively dismissal? A: No. The test of constructive dismissal is whether a reasonable person in the employee's (Ee's) position would have felt compelled to give up his job ~t;lnder, the circumstances. In the present case, -the records show that the lone piece of evidence submitted by Reynaldo to substantiate his claim of constructive dismissal is an unsigned copy of the Kasunduan. This falls way short of the required quantum of proof which is substantial evidence, or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Reynaldo was not dismissed, but that he simply failed to report for work after an altercation with a fellow driver. (Madrigalejos vs. Geminilou Trucking Service, G.R. No. 179174, Dec. 24, 2008, J. Carpio-M_orales) Q: Flores, a conductor of JAM Transportation Co., Inc., had an accident where he had to be hospitalized for a number of days. Upon reporting back to the company he was told to wait. For several days this continued and he was promised a route assignment which did not materialize. . Upon speaking to Personnel Manager Medrano, he was told that he will be accepted back to work but as a new employee. Flores rejected the offer because it would mean forfeiture of his 18 years of service to the company. Is the offer for reinstatement as a new employee (Ee) a constructive dismissal? A: Yes. Flores' re-employment as a new Ee would be very prejudicial to him as it would mean a demotion in rank and privileges, retirement benefits as his previous 18 years of service with the company would simply be considered as non-existent. It amounts to constructive dismissal. (JAM Transportation Co., Inc. v. Flores, G.R. No. 82829, Mar. 19, 1993) Q: Quinanola was transferred from the position of Executive Secretary to the Executive Vice President and General Manager to the Production Dep't as Production Secretary. Quinanola rejected the assignment and filed a complaint for illegal dismissal due to constructive dismissal. Did the transfer of Quinanola amount to constructive dismissal?
A: No. Quinanola's transfer was not unreasonable since it did not involve a demotion in rank nor a change in her place of work nor a diminution in pay, benefits and privileges. It did not constitute a constructive dismissal. Furthermore, an employee's security of tenure does not give him a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where he will be most useful. (Philippine Japan Active Carbon Corp. v. NLRC, G.R. No. 83239, Mar. 8, 1989) Q: Sangil was a utility man/assistant steward of the passenger cruise vessel Crown odyssey under a one-year contract. Sangil suffered head injuries after an altercation with a Greek member of the crew. He informed the captain that he no longer intends to return aboard the vessel for fear that further trouble may erupt between him and the other Greek crewmembers of the ship. Was Sangil constructively dismissed? A: Yes. There is constructive dismissal where the act of a seaman in leaving ship was not voluntary but was impelled by a legitimate desire for self-preservation or because of fear for his life Constructive dismissal does not always involve diminution in payor rank but may be inferred from an act of clear discrimination, insensibility or disdain by an Er may become unbearable on the part of the Ee that it could foreclose any choice by him except to forego his continued employment.. (Sunga Ship Management Phils., Inc. v. NLRC, G.R. No. 119080, April 14, 1998)
PREVENTIVE
Q: What is preventive
SUSPENSION suspension?
A: During the pendency of the investigation, the Er may place the Ee under preventive suspension leading to termination when there is an imminent threat or a reasonable possibility of a threat to the lives and properties of the Er, his family and representatives as well as the offender's coworkers by the continued service of the Ee. Q: What is suspension?
the
duration
of
preventive
A: It should not last for more than 30 days. The Ee should be made to resume his work after 30 days. It can be extended provided the Ee's wages are paid after the 30-day period.
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LABOR RELATIONS:
TERMINATION OF EMPLOYMENT: PROCEDURE
This period is intended only for the purpose of investigating the offense to determine whether he is to be dismissed or not. It is not a penalty. Note: The Er may continue the period of preventive suspension provided that he pays the salary of the Ee. If more than 1 month, the Ee must actually be reinstated or reinstated in the payroll. Officers are liable only if done with malice.
Q: Cantor and Pepito were preventively suspended pending application for their dismissal by Manila Doctor's Hospital after being implicated by one Macatubal when they refused to help him when he was caught stealing x-ray films from the hospital. Was the preventive suspension of Cantor and Pepito proper? A: Where the continued employment of an Ee poses a serious and imminent threat to the life and property of the employer or on his co-Ees, the Ees' preventive suspension is proper. In this case, no such threat to the life and· property of the Er or of their co-Ee's is present and they were merely implicated by the Macatubal. (Manila Doctors Hospftal v. NLRC, G.R. No 64897, Feb. 28, 1985)
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin &Finance: Aissa Celine H. Luna Vice-Chair for Lqyout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Suo/eel Head: Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Krishna L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
168
UST GOLDEN NOTES 2010 r-
ARTS. 283-284. AUTHORIZED
CAUSES
Q: What are the authorized causes termination by the employer (Er)?
6:
of
A: 1.
Installation of labor-saving (a utomationlrobotics)
devices
2.
Redundancy (superfluity in the performance of a particular work) exists where the servises ot an employee (Ee) are in excess of what is reasonably demanded by the actual req'ts of the enterprise. (Wiltshire File Co., Inc. v. NLRC, G.R. No. 82249, Feb. 7, 1991)
Disease - must be incurable within 6 months and the continued employment is prohibited by law or prejudicial to his health as well as to the health of his co-Ees with a certification from the public health officer that the disease is incurable within 6 months despite due to medication and treatment Q: What are other authorized causes?
A: 1. 2.
Total and permanent disability of Ee Valid application of union security clause 3. Expiration of period in term of employment 4. Completion of project in project employment 5. Failure in probation 6. Relocation of business to a distant place 7. Defiance of return-to work-order 8. Commission of Illegal acts in strike 9. Violation of contractual agreement 10. Retirement
Note: The redundancy should not have been created by the Er.
3.
Reorganization Note: An Er is not precluded from adopting a new policy conducive to a more economical and effective management, and the law does not require that the Er should be suffering financial losses before he can terminate the services of the employee on the ground of redundancy (DOLE Phil., Inc. v. NLRC, GR. No. L-55413, July 25,
1983)
4.
in termination of authorized causes?
Retrenchment - cutting of expenses and includes the reduction of personnel; It is a management prerogative, a means to protect and preserve the Er's viability and ensure his survival. To be an authorized cause it must be affected in good faith (GF) and for the retrenchment, which is after all a drastic recourse with serious consequences for the livelihood of the Ee's or otherwise laid-off.
an
steps required employee for
A: 1.
Note: The phrase "to prevent losses" means that retrenchment or termination from the service of some Ees is authorized to be undertaken by the Er sometime before the anticipated losses are actually sustained or realized. Evidently, actual losses need not set in prior to retrenchment. (Cajucom VII v. TP Phils Cement Corp., et el, G.R. No. 149090, Feb. 11, 2005) 5.
Q: What are the procedural
Written Notice to DOLE 30 days prior to the intended day of termination. Purpose: To enable it to ascertain the verity of the cause of termination.
2.
Written notice to Ee concerned 30 days prior the intended date of termination.
3.
Payment of separation pay - Serious business losses do not excuse the Er from complying with the clearance or report required in Art. 283 of the LC and its IRR before terminating the employment of its workers. In the absence of justifying Circumstances, the failure of the Er to observe the procedural req'ts under Art. 284 taints their actuations with bad faith if the lay-off was temporary but then serious business losses prevented the reinstatement of respondents, the Er's should have complied with the req'ts of written notice.
ClOSing or cessation of operation of the establishment or undertaking must be done in good faith and not for the purpose of circumventing pertinent labor laws. UN!VERSITY
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LABOR RELATIONS: TERMINATION OF EMPLOYMENT: AUTHORIZED CAUSES
REDUNDANCY-
i
Q: What
are redundancy?
A:
the
requisites
RETRENCHMENT of
a valid
Q: What are the circumstances that must be present for a valid retrenchment? A:
1.
2.
3. 4.
Written notice served on both the employees (Ees) and the DOLE at least 1 month prior to separation from work Payment of separation pay equivalent to at least 1 month payor at least 1 month pay for every year of service, whichever is higher Good faith in abolishing redundant position Fair and reasonable criteria in ascertaining what positions are to be declared redundant: 1. Less preferred status, e.g. temporary Ee 2. Efficiency and 3. Seniority
Q: Ong, a Sales Manager
of Wiltshire File Co., Inc., was informed of the termination of his employment due to redundancy upon returning from a trip abroad. Ong maintains that there can be no redundancy since he was the only person occupying his position in the company. Is there redundancy even though Ong was the only one occupying his position.
A: Redundancy in an employer's (Er's) personnel does not necessarily or even ordinarily refer to duplication of work. The characterization ofOng's services as no longer necessary or sustainable and therefore properly terminable, was an exercise of business judgment on the part of Wiltshire. Furthermore, a position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors, such as over hiring of workers, decreased volume of business, or dropping of a particular' product line or service activity previously manufactured or undertaken by the enterprise. The Er has no legal obligation to keep in its payroll more employees that are necessary for the operation of its business. (Wiltshire File Co., Inc. v. NLRC, GR No. 82249, Feb. 7, 1991)
1.
The losses expected should be substantial and not merely de minimis in extent - If the loss purportedly
sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character, the bona fide nature of the retrenchment would appear to be seriously in question. 2.
The substantial loss apprehended must be reasonably imminent - as
such imminence can be perceived objectively and in good faith by the employer (Er). There should be a certain degree of urgency for the retrenchment. 3.
It must be reasonably necessary and likely to prevent the expected losse -
The Er should have taken' other measures prior or parallel to retrenchment to forestall losses such as cutting other costs than labor costs. 4.
The alleged losses if already realized, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence - The reason for requiring
this quantum of proof is readily apparent: any less exacting standard of proof would render too easy the abuse of this ground for termination of services of employees. (Lopez Sugar Corp. v. Federation of Free Workers, GR No. 75700-01, Aug. 30, 1990)
Note: The losses which the company may suffer or is suffering may be proved by financial statements audited by independent auditors (Asian Alcohol Corporation v. NLRC, GR. No. 131108, Mar. 25, 1999)
UST GOLDEN NOTES 2010 Q: What are retrenchment?
the
requisites
of
a valid
A: 1.
2.
3. 4. 5.
Written notice served on both the Ee and the DOLE at least 1 month prior to the intended date of retrenchment Payment of separation pay equivalent to at least one month payor at least 1/2 month pay for every year of service, whichever is higher Good faith ~ ~ Proof of expected or actual losses' The employer used fair and reasonable criteria in ascertaining who would be retained among the Ees, such as status, efficiency, seniority, physical fitness, age, and financial hardship of certain workers (Asian Alcohol Corp. v. NLRC, GR. No. 131108, Mar. 25, 1999).
Q: What employees
are the criteria in selecting (Ees) to be retrenched?
A: There must be fair and reasonable criteria to be used in selecting Ees to be' dismissed such as: 1. Less preferred status; 2. Efficiency rating; 3. Seniority. (Phil. Tuberculosis Society, Inc. v. National Labor Union, GR. No. 115414, Aug. 25, 1998) Q: What is the "last rule?
in first
out (LIFO)"
A: It applies in the termination of employment in the line of work. What is contemplated in the LIFO rule is that when there are two or more Ees occupying the same position in the company affected by the retrenchment program, the last one employed will necessarily be the first one to go. (Maya Farms Ees' Organization v. NLRC, G.R. No. 106256, Dec. 28, 1994) Q: Is the seniority rule or "last in first out" policy to be strictly followed in effecting a retrenchment or redundancy program? A: Again, in Asian Alcohol Corp., the SC stated that with regard the policy of "first in, last out" in choosing which positions to declare as redundant or whom to retrench to prevent further business losses, there is no law that mandates such a policy. The reason is simple enough. A host of relevant factors come into play in determining cost efficient measures and in choosing the Ees who will be retained or separated to save the company
from closing shop. In determining these issues, management plays a preeminent role. The characterization of positions as redundant is an exercise of business judgment on the part of the Er. It will be upheld as long as it passes the test of arbitrariness. (2001 Bar Question) Q: What redundancy
is the difference and retrenchment?
between
A: In redundancy, company has no financial problems, unlike in retrenchment where the company will suffer financial losses. Q: Philippine Tuberculosis Society, Inc. retrenched one hundred 116 Ees after incurring deficits amounting to 9.1 million pesos. Aside for retrenching some of its Ees, the company also implemented cost cutting measures to prevent such losses for increasing and minimizing it. The NLRC ruled that the retrenchment was not valid on the ground that the Society did not take seniority into account in their selection. Was the retrenchment done by the Society not valid for its failure to follow the criteria laid down by law? A: No. The Society terminated the employment of several workers who have worked with the Society for great number of years without consideration for the number of years of service and their seniority indicates that they had been retained for such a long time because of loyal and efficient service. The burden of proving the contrary rest on the Society. (Phil. Tuberculosis Society, Inc. v. National Labor Union, G.R. No. 115414, Aug.
25, 1998) Q: Due to mounting losses the former owners of Asian Alcohol Corporation sold its stake in the company to Prior Holdings. Upon taking control of the company and to prevent losses, Prior Holdings implemented a reorganization plan and other cost-saving measures and one of them is the retrenchment of 117 employees (Ees) of which some are members of the union and the majority held by non-union members. Some retrenched workers filed a complaint for illegal dismissal alleging that the retrenchment was a subterfuge for union busting activities. Was the retrenchment made Alcohol valid and justified?
by
Asian
A: Yes. Even though the bulk of the losses were suffered under the old management and continued only under the new jnanaqernent
UilllVERSITY
OF SANTO
Pacu[taa
T OMAS
ae i])erecno CiviC
•..••...
~. ,.•
.•.
171
LABOR RELATIONS: TERMINATION OF EMPLOYMENT: AUTHORIZED CAUSES ultimately the new management of Prior Holdings will absorb such losses. The law gives the new management every right to undertake measures to save the company from bankruptcy. (ASian Alcohol Corp. v. NLRC, G.R. No. 131108, Mar. 25, 1999)
:c. '
•
Q: What closure?
A:
Cl.OSURE
<:':
1.
2.
3. 4. 5.
are
the
requisites
. of
. . a valid
Written notice served on both the employees (Ees) and the DOLE at least 1 month prior to the intended date of closure Payment of separation pay equivalent to at least one month payor at least 1/2 month pay for every year of service, whichever is higher, except when closure is due to serious business losses Good faith No circumvention of the law No other option available to the Er
Q: What
grant of separation benefits "in case of closures or cessation of operation" of business establishments "not due to serious business losses or financial reverses." Where, the closure then is due to serious business losses, the LC does not impose any obligation upon the employer to pay separation benefits. (Galaxie Steel Workers Union, et al. VS.NLRC, Galaxie Steel Corp., G.R. No. 165757, Oct. 17, 2006, J. Carpio-Morales)
is the test for the validity closure or cessation of establishment undertaking?
of or
Q: Does the written notice posted by Galaxie on the bulletin board sufficiently comply with the notice req't under Art. 283 of the LC? A: No. In order to meet the purpose, service of the written notice must be made individually upon each and every Ee of the company. However, the Court held that where the dismissal is for an authorized cause, noncompliance with statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. Still, the employer should indemnify the Ee, in the form of nominal damages, for the violation of his right to statutory due process. (Galaxie Steel Workers Union, et al. VS. NLRC, Galaxie Steel Corp., G.R. No. 165757, Oct. 17, 2006, J. CarpioMorales)
Q: Rank-and-flle
A: The ultimate test of the validity of closure or cessation of establishment or undertaking is that it must be bona fide in character. And the burden of proving such falls upon the Er. (Capitol Medical Center, Inc. vs. Dr. Meris, G.R. No. 155098, Sep. 16, 2005, J. CarpioMorales) Q: When is separation of closure?
pay required
in case
A: Only where closure is not due to serious business losses nor due to an act of gov't. (North Davao Mining Corp v. NLRC, G.R. No. 112546, Mar. 13, 1996; NFL v. NLRC, G.R. No. 127718, Mar. 2, 2000) Q: Galaxie Steel Corp. decided to close down because of serious business loses. It filed a written notice with the DOLE informing its intended closure and the termination of its employees (Ees). It posted the notice of closure on the corporate bulletin board. Are Ees entitled
to separation
pay?
A: No. Galaxie had been experiencing serious financial losses at the time it closed business operations. Art. 283 of the LC governs the
172
workers of SIMEX filed a petition for direct certification and affiliated with Union of Filipino Workers (UFW). Subsequently, 36 workers of the company's "Iumpia" dep't and 16 other workers from other dep'ts were effectively locked out when their working areas were cleaned out. The workers through UFW filed a complaint for unfair labor practices against the company. SIMEX then filed a notice of permanent shutdownltotal cosure of all units of operation in the establishment with the DOLE allegedly due to business reverses brought about by the enormous rejection of their products for export to the United States. Was the closure warranted business reverses?
by the alleged
A: The closure of a business establishment is a ground for the termination of the services of any employee unless the closing is for the purpose of circumventing the provisions of the law. But, while business reverses can be a just cause for terminating employees, they must be sufficiently proved. In this case, the audited financial statement of SIMEX clearly indicates that they actually derived earnings. Although the rejections may have reduced their earnings they were not suffering losses. There is no
UST GOLDEN NOTES 2010 question that an employer may reduce its work force to prevent losses but it must be serious, actual and real otherwise this ground for termination would be susceptible to abuse by scheming employers who might be merely feigning business losses or reverses in their business ventures to ease out employees. (Union of Filipino Workers v. NLRC, G.R. No. 90519, Mar. 23, 1992) Q: Carmel craft Corporation closed it business operations allegedty due to losses of P1, 603.88 after the Carmeicraft Ees Union filed a petition for certification election. Carmel craft Union filed a complaint for illegal lockout and ULP with damages and claim for employment benefits. Were the losses incurred by the company enough to justify closure of its operations? A: The determination to cease operations is a prerogative of management that is usually not interfered with by the State as no business can be required to continue operating at a loss simply to maintain the workers in employment. That would be a taking of property without due process of law which the employer has a right to resist. But where it is manifest that the closure is motivated not by a desire to avoid further losses but to discourage the workers from organizing themselves into a union for more effective negotiations with management, the State is bound to intervene. The losses of less than P2,OOO for a corporation capitalized at P3 million cannot be considered serious enough to call for the closure of the company. (Carmelcraft Corp. v. NLRC, G.R. No. 9063435, June 6, 1990)
2.
Where the transferee voluntarily agrees to do so. (Marina Port Services, Inc. v. Iniego, GR. No. 77853, Jan. 22, 1990)
Q: Marikina Dairy Industries, Inc. decided to sell its assets and close operations on the ground of heavy losses. The unions alleged that the financial losses were imaginary and the dissolution was a scheme maliciously designed to evade its legal and social obligations to its employees (Ees). The unions want the buyers of the corporations assets restrained to operate unless the members of the unions were the ones hired to operate the plant under the terms and conditions specified in the collective bargaining agreements. Is the required
buyer of a company's assets to absorb the Ees of the seller?
A: There is no law requiring that the purchaser of a company's assets should absorb its Ees and the most that can be done for reasons of public policy and social justice was to direct that buyers of such assets to give preference to the qualified separated Ees in the filling up of vacancies in the facilities of the buyer. (MOil Supervisors & Confidential Ees Ass'n (FFW) v. Presidential Assistant on Legal Affairs, GR. Nos. L-45421-23, Sep. 9, 1977)
Q: Is the transferee of the closed corporation required to absorb the employees (Ees) of the old corporation?
A:
GR: There is no law requiring a bona fide purchaser of assets of an on-going concern to absorb in its employ the Ee's of the latter except when the transaction between the parties is colored or clothed with bad faith (BF). In this case there is no BF since in fact the assets were sold by Mabuhay to pay for its obligations to its workers. (Sundowner Dev't Corp. v. Orilon, G. R. No. 82341, Dec. 6, 1989) XPNs: 1. Where the transferee was found to be merely an alter ego of the different merging firms. (Filipinas Port Services, Inc. v. NLRC, G.R. No. 97237, A'Jg. 16, 1991) UNIVERSITY
OF
PacuCtaa
SANTO
TOMAS
ae Dereclio
CiviC
~.
.\.,. 173
LABOR RELATIONS: TERMINATION OF EMPLOYMENT: AUTHORIZED CAUSES Q: What is the difference between closure and retrenchment?
determination by extent of the Ee's public policy on (Manly Express v Oct.25, 2005)
A:
CLOSURE Is the reversal of fortune of the Er whereby there is a complete cessation of business operations to prevent further financial drain upon an Er who cannot pay anymore his Ees since business has already stopped.
One of the prerogatives of management is the decision to close the entire establishment or to close or abolish a department or section thereof for economic reasons, such as to minimize expenses and reduce capitalization.
Does not obligate the Er for the payment of separation package if there is closure of business due to serious losses.
.
RETRENCHMENT Is the reduction of personnel for the purpose of cutting down on costs of operations in terms of salaries and wages resorted to by an Er because of losses in operation of a business occasioned by lack of work and considerable reduction in the volume of business. As in the case of retrenchment, however, for the closure of a business or a department due to serious business losses to be regarded as an authorized cause for terminating Ees, it must be proven that the losses incurred are substantial and actual or reasonably imminent; that the same increased through a period of time; and that the condition of the company is not likely to improve in the near future. LC provides for the payment of separation package in case of retrenchment to prevent losses.
DISEASE
Termination of services for health reasons must be effected only upon compliance with the above requisites. The req't for a medical certificate under Art. 284 of the LC cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the Er of the gravity or extent of the Ee's illness and thus defeat the public policy on the protection of tabor. (Syet. al v. CA, G.R. No. 142293, Feb. 27, 2003) Q: What is the procedure in terminating an employee (Ee) on the ground of disease? A: 1.
The employer (Er) shall not terminate his employment unless: a. There is a certification by a competent public health authority that b. The disease is of such nature or at such a stage that it cannot be cured within a period of 6 months even with proper medical treatment.
2.
If the disease or ailment can be cured within the period, the Er shall not terminate the Ee but shall ask the Ee to take a leave. The Er shall reinstate such Ee to his former position immediately upon the restoration of his normal health. (Sec. 8, Rule I, Book VI, IRR)
Q: Is an employee suffering from a disease entitled to reinstatement?
.
Q: When is disease a ground for dismissal? A: Where the Ee suffers from a disease, and: 1. His continued employment is prohibited by law or prejudicial to his health or to the health of his co-Ees. (Sec.8, Rule I, Book VI, IRR) 2. With a certification by competent public health authority that the disease is incurable within 6 months despite due medication and treatment. (Solis v. NLRC, GR No. 116175, Oct. 28,1996)
Note: The req't for a medical certification cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary
174
the Er of the gravity or illness and thus defeat the the protection of labor. Payong, GR. No. 167462,
A: Yes, provided he presents a certification by a competent public health authority that he is fit to retum to work. (Cebu Royal Plant v. Deputy Minister, G.R. No. L-58639,' Aug. 12,
1987) Q: Is the req't of a medical certificate mandatory? A: Yes, it is only where there is a prior certification from a competent public authority that the disease afflicting the employee sought to be dismissed is of such nature or at such stage that it cannot be cured within 6 months even with proper medical treatment that the latter could be validly terminated from his job. (Tan v. NLRC, G. R. No. 116807, April 14, 1997)
UST GOLDEN NOTES 2010 Note: Termination from work on the sole basis of actual perceived or suspected HIV status is deemed unlawful. (Sec. 35, R.A. 8504 HIV/AIDS Law)
Q: Discuss the rules on separation pay with regard to each cause of termination.
A:
CAUSE OF TERMINATION
Q: Anna Ferrer has been working as bookkeeper at Great Foods, Inc., which operates a chain of high-end restaurants throughout the country, since 1970 when it was still a small eatery at Binondo. In the early part of the year 2003, Anna, who was already 50 years old, reported $or w.prk after a week-long vacation in her province. It was the height of the SARS scare, and management learned that the first confirmed SARS death case in the Phils, a "balikbayan" nurse from Canada, is a townmate of Anna. Immediately, a memorandum was issued by management terminating the services of Anna on the ground that she is a probable carrier of SARS virus and that her continued employment is prejudicial to the health of her co-Ees. Is the action taken by the employer (Er) justified? A: The Er's act of terminating the employment of Anna is not justified. There is no showing that said employee is sick with SARS, or that she associated or had contact with the deceased nurse. They are merely town mates. Furthermore, there is no certification by a competent public health authority that the disease is of such a nature or such a stage that it cannot be cured within a period of 6 months even with proper medical treatment. (Implementing Rules, Book VI, Rule 1, Sec. 8, LC) (2004 Bar Question)
Automation
Redundancy
Retrenchment Closures or cessation of operation not due to serious business losses/financial reverses
Disease
SEPARATION PAY Equivalent to at least 1 month payor at least 1 month pay for every year of service, whichever is higher Equivalent to at least 1 month payor at least 1 month pay for every year of service, whichever is higher Equivalent to 1 month pay or at least Y, month pay for every year or service Equivalent to at least 1 month payor at least 1 month pay for every year of service (if due to severe financial losses, no separation pay Equivalent to at least 1 month payor at least Y, month pay for every year of service, whichever is higher
Note: A fraction of at least 6 months shall be considered 1 whole year. There is no separation pay when the closure is due to an act of the gov'!. Q: What is the purpose of the 2 notices served to the Ee and DOLE 1 month prior to termination?
A: 1.
2.
To give the Ees some time to prepare for the eventual loss of their jobs and their corresponding income, look for other employment and ease the impact of the loss of their jobs. To give DOLE the opportunity to ascertain the verity of the alleged cause of termination. (Phil. Telegraph & Telephone Corp. v. NLRC, G.R. No. 147002, April 15, 2005)
Note: Notice to both the Ees concerned and the DOLE are mandatory and must be written and given at least 1 month before the intended date of retrenchment - and the fact that the Ees were already on temporary lay-off at the time notice should have been given to them is not an excuse to forego the 1-month written notice. (Sebuguero V. NLRC, G.R. No. 115394, Sep. 27, 1995)
UNIVERSITY
OF SANTO
Pacu{tati
TOMAS
tie ([)ereclio Ci'f)i{
.~
175
LABOR RELATIONS: TERMINATION OF EMPLOYMENT: AUTHORIZED CAUSES Q: DAP Corp. ceased its operation due to the termination of its distribution agreement with Int'I Distributors Corp. which resulted in its need to cease its business operations and to terminate the employmentof its Ees. Marcial et al. filed a complaint for illegal dismissal and for failure to give the Ees written notices regarding the -termination of their employment. On the other hand, DAP claims that their Ees actually knew of the termination therefore the written notices were no longer required. Are written notices dispensed with when the Ees have actual knowledgeof the redundancy? A: The Ees' actual knowledge of the termination of a company's distributorship agreement with another company is not sufficient to replace the formal and written notice required by law. In the written notice, the Ees are informed of the specific date of the termination, at least a month prior to the date of effectivity, to give them sufficient time to make necessary arrangements. In this case, notwithstanding the Ees knowledge of the cancellation of the distributorship agreement, they remained uncertain about the status of their employment when DAP failed to formally inform them about the redundancy. (DAP Corp. v. CA, G.R. No. 165811, Dec. 14,2005)
Academics
Committee
Chairperson: Abraham D. Genuine II Vice-Chair jor Academics: Jeannie A. Laurentino Vice-Chair jor Admin & Finance: .AissaCeline H. Luna Vice-Chair for Layout & Design: Loise Rae G. Naval
Labor Law Committee SlIbject Head: Lester] ay Alan E. Flores II Assistant SlIbject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman .·~.~.~7
176
''':'Ar'
UST GOLDEN NOTES 2010 ,
CONSEQUENCES
"
DISMISSAL
OF DISMISSAL
.
WITH CAUSE
Q: When is a dismissal
Yes No No
With Due Process Yes Yes No
Yes
No
With Cause
Status of Dismissal Valid lIIeaal lileoal Valid, but with payment of nominal darnaqes
Q: What is the amount of nominal damages that an Ee dismissed with cause without due process is entitled to?
but
A: 1.
2.
Authorized causes - P50, 000 Just causes - P30, 000
Note: In Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004, it was held that when dismissal is for just or authorized cause but due process was not observed, the dismissal should be upheld. However, the employer (Er) should be held liable for non-compliance with the procedural req'ts of due process (e.g. damages). The Agabon ruling was modified by JAKA Food Processing v, Pacot (G.R. No. 515378, Mar. 28, 2005) where it was held that: 1.
2.
. to a
deemed valid?
Q: Distinguish the status of dismissals visa-vis the presence of a valid cau\Se and: due process.
A:
WITHOUT CAUSE
Q: What are the remedies available illegally dismissed employee (Ee)?
A:. If the same was effected: 1. For a just or authorized cause; and 2. With due process
!
DISMISSAL
If based on just cause (Art. 282) but the Er failed to comply with the notice req't, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the Ee; and If based on authorized causes (Art. 283) but the Er failed to comply with the notice req't, the sanction should be stiffer because the dismissal process was initiated by Er's exercise of his management prerogative.
A: An Ee who is unjustly dismissed from wo shall by entitled to: 1. Reinstatement without loss seniority rights and 2. Full backwages. (Sec. 3, Rule I, Book VI,IRR) 3. Separation pay in lieu f reinstatement, if the latter is no longe feasible Q: What is reinstatement? A: It is the restoration of the employee to the state from which he has been unjustly removed or separated without loss of senior' y rights and other privileges. Q: What are the forms of reinstatement? A: 1.
2.
Actual or physical - the em plo _ee (Ee) is admitted back to work Payrollthe Ee is merely reinstateo in the payroll
Note: An order of reinstatement by the LA is or the same as actual reinstatement of a dismisseo or separated Ee. Thus, until the Er continuousl fails to actually implement the reinstateme aspect of the decision of the LA, their obligati to the illegally dismissed Ee, insofar as accrueo backwages and other benefits are concerned, continues to accumulate. It is only when the illegally dismissed Ee receives the separation pa (in case of strained relations) that it could be claimed with certainty that the Er-Ee realtions hi has formally ceased thereby precluding t e possibility of reinstatement. In the meantime, t e iII~ally dismissed Ees entitlement to backwages, 13 month pay, and other benefits subsists. U Itl the payment of separation pay is carried out, t e Er should not be allowed to remain unpunished for the delay, if not outright refusal, t immediately execute the reinstatement aspect the LA's decision. Further, the Er cannot refuse to reinstate the illegally dismissed Ee by claiming that the latter had already found a job elsewhere. Minimum wage earners are left with no choice after they are illegally dismissed from their employment, but to seek new employment in order to earn a decent living. Surely, we could not fault them for their perseverance in looking for and eventuall securing new employment opportunities instead of remaining idle and waiting the outcome of the case. (Triad Security & Allied Services, Inc. et al v. Ortega, G.R. No. 160871, Feb. 6, 2006).
LABOR RELATIONS: CONSEQUENCES Q: What are Arts. 223 from 279 of the LC?
:
A:
Art. 279
_
Presupposes that the judgment has already become final and executory. Consequently, there is nothing left to be done except the execution thereof.
Art. 223 May be availed of as soon as the labor arbiter renders a judgment declaring that the dismissal of the Ee is illegal and ordering said reinstatement. It may be availed of even pending appeal
Note: An award or order for reinstatement is selfexecutory. It does not require the issuance of a .writ of execution. (Pioneer Texturizing Corp. v. NLRC, G.R. No. 118651, Oct. 16, 1997) Q: PAL dismissed Garcia, et al. for violating PAL's Code of Discipline for allegedly sniffing shabu in PAL's Technical Center Toolroom Section. Garcia, et al. then filed for illegal dismissal and damages where the Labor Arbiter (LA) ordered PAL to Immediately reinstate the Garcia, et al. On appeal, the NLRC reversed the decision and dismissed Garcia's et al. complaint for lack of merit Garcia's et al. motion for reconsideration was denied by the NLRC. It affirmed the validity of the writ and the notice Issued by the LA but suspended and referred the action to the Rehabilitation Receiver for appropriate action. Whether Garcia, et al. may collect their wages during the period between the LA's order of reinstatement pending appeal and the NLRC decision overturning that of the LA? A: Par. 3 of Art. 223 of the LC provides that the decision of the LA reinstating a dismissed or separated Ee, insofar as the reinstatement aspect is concerned, shall immediately be executory, pending appeal. Even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on the part of the Er to reinstate and pay the wages of the dismissed Ee during the period of appeal until reversal by the higher court. On the other hand, if the Ee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the Ee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. In other words, a dismissed Ee whose case was favorably decided by the LA is entitled to receive wages pending appeal upon reinstatement, which is immediately executory. Unless there is a restraining order, it is ministerial upon the LA to implement the
liB
OF DISMISSAL
order of reinstatement and it is mandatory on the Er to comply therewith. (Gercis vs. PAL, G.R. No. 164856, Jan20, 2009)
Q: What is the effect of the reversal of LA's decision to the reinstated employee (Ee)? A: If the decision of the LA is later reversed on appeal upon the finding that the ground for dismissal is valid, then the Er has the right to require the dismissed Ee on payroll reinstatement to refund the salaries he/she rec~ived while the case was pending appeal, or It can be deducted from the accrued benefits that the dismissed Ee was entitled to receive from the employer under existing laws, CSA provisions, and company practices . However, if the Ee was reinstated to work during the pendency of the appeal, then the Ee is entitled to receive the compensation received for actual services rendered without need of refund (Cffibank v. NLRC, G.R. No. 142732-33, Dec. 4, 2007). Q: Maya court order the reinstatement of a dismissed employee (Ee) even if the prayer of the complaint did not include such relief? A: Yes. So long as there is a finding that the Ee was illegally dismissed, the court can order the reinstatement of an Ee even if the complaint does not include a prayer for reinstatement, unless, of course the Ee has waived his right to reinstatement. By law, an Ee who is unjustly dismissed is entitled to reinstatement among others. The mere fact that the complaint did not pray for reinstatement will not prejudice the Ee, because technicalities of law and procedure are frowned upon in labor proceedings (Pheschem Industrial Corp. v. Moldez, G.R. No. 1161158, May 9,2005). Q: What happens if there is an Order of Reinstatement but the position is no longer available? A: The employee (Ee) should be given a substantially equivalent position. If no substantially equivalent position is available, reinstatement should not be ordered because that would in effect compel the employer to do the impossible. In such a situation, the Ee should merely be given a separation pay consisting of 1-month salary for every year of service (GroJier Int'l Inc. v. ELA, G.R. No. 83523, Aug. 31, 1989).
UST GOLDEN NOTES 2010 Q: What are the instances pay in lieu of reinstatement
when separation proper?
2.
A: Proceeds from an illegal dismissal wherein reinstatement is ordered but cannot be carried out as in the following cases:
1.
2. 3.
4. 5. 6. 7.
8.
Reinstatement cannot be effected in view of the long passage of time or because of the realities of the situation. It would be inimical to the~emplo¥ers' interest. When reinstatement is no longer feasible. When it will not serve the best interest of the parties involved. Company will be prejudiced by reinstatement. When it will not serve a prudent purpose. When there is resultant strained relation (applies to both confidential and managerial employees (Ees) only). When the position has been abolished (applies • to both managerial, supervisory and rankand-file Ees).
Q: How can separation
pay be viewed?
A: Under present laws and jurisprudence, separation pay may be viewed in 4 ways: 1. In lieu of reinstatement in illegal dismissal cases, where Ee is ordered reinstated but reinstatement is not feasible. 2. As Er's statutory obligation in cases of legal termination due to authorized causes under Art. 283 and 284 of the LC. 3. As financial assistance, as an act of social justice and even in case of legal dismissal under Art. 282 of the LC. 4. As employment benefit granted in CSA or company policy. (Po quiz, 2005) Q: What is the difference between a dismissal without cause and dismissal for a non-existent cause?
A:
1.
Dismissal wfthout cause - It intention of the Er to dismiss for no cause whatsoever, in case the termination pay law apply.
Dismissal for a non-existent cause the Er does not intend to dismiss t e Ee but for a specific.zcause whic turns out to be false or non-existen:. (Pedroso v. Castro, G.R. No. 7036 . Jan. 30, 1986)
Q: What is the remedy in case the dismissal was for a non-existent cause? A: An employee who is separated from wor' without just cause shall be reinstated to his former position, unless such position no longe exists at the time of his reinstatement, in whic case he shall be given a substantially equivalent position in the same establishme without loss of seniority rights. (Sec. 4[a), Rule I, Book VI, IRR) Q: Javier, an Ee for Standard Electric Manufacturing Corporation, was charged with rape and was detained. Standard Electric moved to dismiss him for being absent without leave and for committing rape. Upon acquittal, Javier reported for work but standard Electric refused to accept him back. Was Standard Electric's act valid? A: No. The trial court dismissed the case 0 insufficiency of evidence and such ruling is tantamount to an acquittal of the cri e charged and proof that Javier's arrest a detention was without factual and legal basis in the first place. Standard Electric's ac . dismissing Javier on committing rape wit 0 trial shows that the company prejudged i and preempted the ruling of the RTC ara adjudged Javier guilty without due process ' law. While it may be true that after preliminary investigation of the complai probable cause, for rape was found a respondent Javier to be detained, ese cannot be made as legal bases for immedia e termination of his employment. (Standa Electric Manufacturing Corp. v. Standa c: Electric Ees Union, G.R. No. 166111 Aug. 25 2005) Q: Is an illegally reinstatement as
A:
is the his Ee which would
UNIVERSITY
dismissed Ee entitled matter of right?
t
a
GR: Yes. XPN: 1. Where reinstatement is not feasi c expedient or practical, as w eOB reinstatement would only exacer a e the tension and strained relatio s between the parties, or
OF
Pacu{taa
SANTO
TOMAS
de iDerecho CiviC
LABOR RELATIONS: CONSEQUENCES 2.
Where the relationship between the Er and Ee has been unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed Ee held a managerial or key position in the company Note: In such cases, it would be more prudent to order payment of separation pay instead of reinstatement. (Quijano v. Mercury Drug Corporation, G.R. No. 126561, July 8, 1998)
Q: What relations?
is
the
doctrine
of
strained
. A: When the Er can no longer trust the Ee and vice versa, or there were imputations of bad faith to each other, reinstatement could not effectively serve as a remedy. This doctrine applies only to positions which require trust and confidence (Globe Mackay v. NLRC, G.R. No. 82511, March 3, 1992). Under the circumstances where the employment relationship has become so strained to preclude a harmonious working relationship and that all hopes at reconciliation are naught after reinstatement, it would be more beneficial to accord the Ee backwages and separation pay.
Q: What
must be proven before the principle of strained relations can be applied to a particular case?
A: 1.
2.
The Ee concerned occupies a position where he enjoys the trust and confidence of his Er; and That it is likely that if reinstated, an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the Ee concerned. (Globe Mackay Cable & Wire Corp. v. NLRC G.R. No. 82511, Mar. 3, 1992)
Q: Does relationship cases?
the doctrine of strained always bar reinstatement in all
A: No. The doctrine should be applied on a case to case basis, based on each case's peculiar conditions and not universally. Otherwise, reinstatement can never be possible simply because some hostility is invariably engendered between the parties as a result of litigation. That is human nature. (Anseor Transport v. NLRC, G.R. No. 85894, Sept. 28, 1990)
OF DISMISSAL
Besides, no strained relations should arise from a valid and legal act of asserting one's right; otherwise an Ee who shall assert his right could be easily separated from the service, by merely paying his separation pay on the pretext that his relationship with his employer (Er) had already become _strained. (Globe Mackay Cable 8, Wire Corp. v. NLRC, G.R. No. 82511, Mar. 3, 1992) Q: Respondents are licensed drivers of public utility jeepneys owned by Moises Capili. When Capili assumed ownership and operation of the jeepneys, the drivers were required to sign individual contracts of lease of the jeepneys. The drivers' gathered the impression that signing the contract was a condition precedent before they could continue driving. The drivers stopped plying their assigned routes and a week later filed with the Labor Arbiter a complaint for illegal dismissal praying not for reinstatement but for separation pay. Are the respondents entitled to separation pay? A: No. When drivers voluntarily chose not to return to work anymore, they must be considered as having resigned from their employment. The common denominator of those instances where payment of separation pay is warranted is that the employee was dismissed by the employer. (Capili v. NLRC, G.R. 117378, Mar. 26, 1997)
Q:
Two groups of seasonal workers claimed separation benefits after the closure of Phil. Tobacco processing plant in Balintawak and the transfer of its tobacco operations to Candon, tlocos Sur. Phil. Tobacco refused to grant separation pay to the workers belonging to the first batch (Lubat group), because they had not been given work during the preceding year and, hence, were no longer in its employ at the time it closed its Balintawak plant. Likewise, it claims exemption from awarding separation pay to the second batch (Luris group), because the closure of its plant was due to "serious business losses," as defined in Art. 283 of the LC. Both labor agencies held that the Luris and Lubat groups were entitled to separation pay equivalent to 1/2 month salary for every of service, provided that the Ee worked at least 1 month in a given year. Is the separation pay granted to an illegally dismissed Ee the same as that provided under Art. 283 of the LC in case of retrenchment to prevent losses?
UST GOLDEN NOTES 2010 A: No. The separation pay awarded to employees due to illegal dismissal is different from the amount of separation pay provided for in Art. 283 of the LC. Prescinding from the above, Phil. Tobacco is liable for illegal dismissal and should be responsible for the reinstatement of the Lubat group and the payment of their backwages. However, since reinstatement is no longer possible as Phil. Tobacco have already closed its Balintawak plant, members of the said group should instead be awarded normal sep'\'jation pay (in lieu of reinstatement) equivalent to at least one month pay, or one month pay for every year of service, whichever is higher. It must be stressed that the separation pay being awarded to the Lubat group is due to illegal dismissal; hence, it is different from the amount of separation pay provided for in Article 283 in case of retrenchment to prevent losses or in case of closure or cessation of the Er's business, in either of which the separation pay is equivalent to at least one (1) month or one-half (1/2) month pay for every year of service, whichever is higher. (Phil. Tobacco Flue-Curing & Redrying Corp. v. NLRC, G.R. No. 127395, Dec. 10, 1998)
Q: Differentiate Art. 279 of the LC from Sec. 7 of R.A. 10022.
A: I
!
Art. 279, lC (local Workers) Reinstatement
Full backwages from the time of his compensation was withheld from him up to the time of his actual reinstatement.
l
.
Sec. 7, RA 10022 (Migrant Workers)
Full Reimbursement of his placement fee with interest of 12% per annum.
BACKWAGES
What is the basis of awarding backwages to an illegally dismissed employee (Ee)? Q:
A: The payment of backwages is generally granted on the ground of equity. It is a form of relief that restores the income that was lost by reason of the unlawful dismissal; the grant thereof is intended to restore the earnings that would have accrued to the dismissed Ee during the period of dismissal until it is determined that the termination of employment is for a just cause. It is not private compensation or damages but is awarded in furtherance and effectuation of the public objective of the LC. Nor is it a redress of a private right but rather in the nature of a command to the employer to make public reparation for dismissing an Ee either due to the former's unlawful act or bad faith. (Tomas Claudio Memorial College Inc., v. GA, G.R. No. 152568, Feb. 16,2004) What is the period covered by the payment of backwages?
Q:
A: The backwages shall cover the period from the date of dismissal of the employee up to the date of: if reinstatement, or 1. Actual reinstatement is no longer feasible of judgment awarding 2. Finality backwages (Buhain v. CA, G.R. 143709, July 2, 2002)
Note: The backwages to be awarded should not be diminished or reduced by earnings elsewhere during the period of his illegal dismissal. The reason is that the Ee while litigating the illegality of his dismissal must earn a living to support himself and his family. (Bustamante v. NLRC, GR. No. 111651, Mar. 15, 1996; Buenviaje v. CA G.R. No. 147806, Nov. 2002)
Q: What is included in the computation of backwages? A: They cover the following: 1. Transportation and emergency
Q: What are backwages? A: It is the relief given to an employee (Ee) to
2.
compensate him for the lost earnings during the period of his dismissal. It presupposes illegal termination.
Note: Entitlement to backwages of the illegally dismissed Ee flows from law. Even if he does not ask for it, it may be given. The failure to claim backwages in the complaint for illegal dismissal is a mere procedural lapse which cannot defeat a right granted under substantive law. (St. Michael's Institute v. Santos, G.R. No. 145280, Dec. 4, 2001)
3.
allowances Vacation or service and sick leave month pay
incentive
leave
ia"
Note: Facilities such as uniforms, shoes, helmets and ponchos should not be included in the computation of back wages because said items are given for free, to be use only during official tour of duty not for private or personal use. The award of backwages is computed on the basis of 30-day month. (JAM Trans Co. v. Flores, G.R. No. L-63555, Mar. 19, 1993)
UNIVERSITY
OF SANTO
Pacu{taa
TOMAS
ae
LABOR RELATIONS: CONSEQUENCES Q: What does the tenn "full backwages"
malevolent manner. (Phil. Aeolus G.R. No. 124617, April 28, 2000)
mean?
A: R.A. 6715 points to "full backwages"
as meaning exactly that, i.e., without deducting from backwages the earnings derived elsewhere by the concerned Ee during the period of his illegal dismissal. (Buenviaje v. CA, G.R. 147806, Nov. 12,2002) The underlying reason for this ruling is that the employee, while litigating the legality (illegality) of his dismissal, must still earn a living to support himself and family, while full backwages have to be paid by the employer as part of the price he has to pay for illegally dismissing his Ee. (Bustamante v. NLRC, G.R. No. 111651, Mar. 15, 1996) Q: Is an Ee entitled to backwages even
after the closure of the business? A: Yes. The closure of the business rendered the reinstatement of complainant to her previous position impossible but she is still entitled to the payment of backwages up to the date of dissolution or closure. An employer found guilty of unfair labor practice in dismissing his Ee may not be ordered to pay backwages beyond the date of closure of business where. such closure was due to legitimate business reasons and not merely an attempt to defeat the order of reinstatement. (Pizza Inn v. NLRC, G.R. No. 74531, June 28, 1988)
Q: What are the circumstances that prevent award of backwages?
A:
1. 2. 3. 4.
:
Dismissal for cause Death, physical or mental incapacity of the em ployee Business reverses Detention in prison
DAMAGES Q: What is the basis for awarding moral
and exemplary damages to an illegally dismissed employee (Ee)? A: In moral damages, it suffices to prove that the claimant has suffered anxiety, sleepless nights, besmirched reputation and social humiliation by reason of the act complained of. Exemplary damages, on the other hand, are granted in addition to, inter alia, moral damages "by way of example or correction for the public good "if the employer" acted in a wanton, fraudulent, reckless, oppressive or
182
OF DISMISSAL v. NLRC,
As a rule, moral damages are recoverable only where the dismissal of the Ee was attended by bad faith or fraud or constituted an act oppressive to labor, or were done in a manner contrary to morals, good customs or public policy. On the other hand, exemplary damages may be awarded only if the dismissal was effected in a wanton, oppressive or malevolent manner. (Estiva v. NLRC, G.R. No. 95145, Aug. 5, 1993)
,
LIABILITY
FOR MONETARY
CLAIMS
Q: What must first be proven before an officer' of a corporation can be held solidarily liable with the corporation for the payment of separation pay and other labor standard benefits to its employees (Ees)?
A: GR: Corporation is vested by law with a personality separate and distinct from the persons composing it, including its officers as well as from that of any other legal entity to which it may be related. (Pabalan v. NLRC, G.R. No. 89879, April 20, 1990) XPN: To justify solidary liability: 1. There must be an allegation or showing that the officers of the corporation deliberately or maliciously designed to evade the financial obligation of the corporation to its Ees, or 2.
A showing that the officers indiscriminately stopped its business to perpetrate an illegal act, as a vehicle for the evasion of existing obligations, in circumvention of statutes, and to confuse legitimate issues. (Reah's Corp.n v. NLRC G.R. No. 117473, Apr. 15, 1997)
UST GOLDEN NOTES 2010 t"
: .
ART. 285. TERMINATION EMPLOYEE
Q: How can an employee service with his employer
A:
1.
2.
1.
2.
(Ee) terminate (Er)?
__ his
Without just cause - by serving written notice on the Er at least 1 month in advance. The Er upon whom no such notice was served may hold the Ee liable for pam ages. With just cause - an Ee may put an end to employment without serving any notice on the Er for any of the following just causes: a. Serious insult by the Er or his representative on the hour and person of the Ee b. Inhuman and unbearable treatment accorded the Ee by the ·Er or his representative c. Commission of a crime or offense by the Er or his representative against the person of the Ee or any of the immediate members of his family d. Other causes analogous to any of the foregoing
Q: When terminated?
A:
BY THE _
is
employment
not
deemed
Bona fide suspension of the operation of a business or undertaking for a period not exceeding 6 months, or The fulfillment by the Ee of a military or civic duty shall not terminate employment.
Note: In all such cases, the Er shall reinstate the Ee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than 1 month from the resumption of operations of his Er or from his relief from the military or civic duty. (Art. 286)
Q: What is the term of "floating an employee
status"
of
(Ee)?
A: The "flo.ating" status of an Ee should last only for a legally prescribed period of time. When the floating status of an Ee lasts for more than 6 months, he may be considered to have constructively dismissed from service. Thus, he is entitled to corresponding benefits for separation pay. (Agro Commercial Security Services Agency Inc. v. NLRC, GR. Nos. 82823-24" July 31, 1989)
Note: It is legal, such as in the case of security guards who have no assignment. In security agency parlance, being placed "offduty" or on "floating status" means "waiting to be posted." In case of temporary lay-off Ees, there is no specific provision of law which treats of a temporary retrenchment or lay-off and provides for the requisites in effecting it or a period of duration therefore. These Ees, cannot however be forever "temporarily laid-off'. To remedy the situation, Art. 286 may be applied by analogy to set a specific period that Ees may remain temporarily laid-off or in floating status. There fore It must not exceed 6 months (Art. 286 of the LC).
Q: Ernelson
Trojillo was a driver for Nelbusco, Inc. The air-conditioning unit of the bus he drives broke down and he was placed in floating status until repair was made. Trojillo reported to the bus company but the air-conditioning unit for the bus has not been repaired. Several months elapsed without the company giving him another bus to drive or having the bus repaired. Trojillo then filed an illegal dismissal case when he learned that the bus he drove was used as an ordinary bus by a newly-hired driver. Was there a constructive dismissal despite the fact that the bus was unserviceable? A: Under Art. 286 of LC, if an Ee is forced to remain without work or assignment for a period exceeding 6 months, then he is in effect constructively dismissed. When the reason for the stoppage of operation of the bus assigned to Trojillo was the breakdown of the airconditioning unit such suspension should only last for a reasonable period of time. The defect could have been easily remedied by the bus company. The period of 6 months is more than enough and beyond that period the stoppage was already legally unreasonable and economically prejudicial to Trojillo who was not give a substitute vehicle to drive. (Valdez v. NLRC, G.R. No. 125028, Feb. 9, 1998)
RETIREMENT
.
Q: What is retirement? A: .It is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employees whereby the latter after reaching a certain age agrees and/or consents to sever his employment with the former. (Soberano v. Sec. of Labor, GR. Nos. L-43753-56 and L-50991, Aug. 29, 1980) ,
UNIVERSITY
OF
PacuCtaa
SANTO
TOMAS
d« (])ereclio CidC
..••...
4-; ~ 183 .~.
LABOR RELATIONS:
TERMINATION
Q: What are the kinds of retirement schemes? A: 1. Compulsory and contributory in nature; 2. One set up by the agreement between the employer (Er) and employees (Ees) in the CSA or other agreements between them (other applicable employment contract); 3. One that is voluntarily given by the Er, expressly as announced company policy or impliedly as in the failure to contest the Ee's claim for retirement benefits. (Marilyn Odchimar Geriech v. Reuters Limited, Phils., G.R. No. 148542, Jan. 17, 2005) Q: Who are covered by the LC provisions on retirement? A:
GR: All employees (Ees) in the private sector: 1. Regardless of their position, designation or status; and 2. Irrespective of the method by which their wages are paid. (Sec. 1, Rule II, Book VI, IRR) XPN: 1. Ees of the National Gov't and its political subdivisions, including GOCCs (if they are covered by the Civil Service Law) 2. Domestic helpers and persons in the personal service of another 3. Ees of retail, service, and agricultural establishments or operations employing not more than 10 Ees (Sec.2, Rule II, Book VI, IRR) Q: What is the retirement age?
A: It is the age of retirement that is specified in the: 1. 2. 3. 4.
CSA; or Employment contract; or Retirement plan (Sec. 3, Rule II, Book VI, IRR). Optional retirement age for underground mining employees: 5060 years provided they have at least served for a period of 5 years. (Art. 285 as amended by R.A. 8558)
OF EMPLOYMENT:
By EMPLOYEE
Q: What is the retirement age in the absence of a retirement plan or other applicable agreement?
A: 1.
Optional - 60 years old / 5 years in service (includes authorized absences, vacations, regular holidays, mandatory military or civic service) Note: The option to retire upon reaching the age of 60 years or more but not beyond 65 is the exclusive prerogative, of the employee (Ee) if there is no provision on retirement in a CSA or any other agreement or if the employer (Er) has no retirement plan. (R.A. 7641; Capili v. NLRC, G.R. No. 117378, Mar. 26, 1997)
2.
Compulsory 65 years old, regardless of years of service (company is not bound to dismiss Ee; it is automatic). (Sec. 4, Rule II, Book VI,IRR) Note: Retirement benefits, where not mandated by law, may be granted by agreement of the Ees and their Er or as a voluntary act on the part of the Er. Retirement benefits are intended to help the Ee enjoy the remaining years of his life, lessening the burden of worrying for his financial support, and are a form of reward for his loyalty and service to the Er (Aquino v, NLRC, G.R. No. 87653, Feb. 11, 1992).
Q: Is compulsory allowed?
retirement
age below 60
A: Yes. Art. 287 permits Er and Ee to fix the applicable retirement age at below 60. The same is legal and enforceable so long as the parties agree to be governed by such CBA. (Pantranco North Express v. NLRC, G.R. No. 95940, July 24, 1996) Q: What is the rule for extension of service of retiree upon his reaching the compulsory retirement age?
A: Upon the compulsory
retirement of an employee (Ee) or official in the public or private service, his employment is deemed terminated. The matter of extension of service of such Ee or official is addressed to the sound discretion of the Er. (UST Faculty Union v. NLRC, G.R. No. 89885, Aug. 6,1990)
UST GOLDEN NOTES 2010 Q: What are retirement
benefits?
A: In the absence of an applicable agreement or retirement plan - A retiree is entitled to a retirement pay equivalent to at least % month salary for every year of service, a fraction of at least 6 months being considered as 1 whole year. (Sec. 5. 1, Rule II, Book VI, IRR)
Q: What comprises
% month salary?
A: Unless parties provide fqr broader inclusions: 1. 15 days salary based on latest salary rate; 2. Cash equivalent of not more than 5 days of service incentive leaves (22.5/year of service) 3. 1/12 of the 13th month pay 4. All other benefits as may be agreed upon by the employer and employee (Ee). (Sec. 5. 2, Rule II, Book VI, IRR) Note: Under Sec. 26 of R.A. No. 4670,otherwise known as Magna Carta for Public School Teachers, public school teachers having fulfilled the age and service req'ts of the applicable retirement laws shall be given one range salary raise upon the retirement, which shall be the basis of the computation of the lump sum of the retirement pay and monthly benefit thereafter. Q: Can Art. 287 of the LC (on retirement) as amended by R.A. 7641 be applied retroacti.vely? A: Yes, provided: 1. The claimant for retirement benefits was still the employee of the employer at the time the statute took effect; and 2. The claimant was in compliance with the req'ts for eligibility under the statute for such retirement benefits. (PSVSIA v. NLRC, G.R. No. 115019, April 14, 1997) Q: Are the proviSions of the retirement plan binding as part of the employment contract? A: Yes. The retirement plan forms part of the employment contract since it is made known to the Ees and accepted by them, and such plan has an express provision that the company has the choice to retire an Ee regardless of age, with 20 years of service, said policy is within the bounds contemplated by the LC. Moreover, the manner of computation of retirement benefits depends on the stipulation provided in the company retirement plan. (Progressive Dev't Corporation v. NLRC, G.R. No. 138826, Oct.30, 2000)
Q: Rivera was employed as senior manufacturing pharmacist by UNILAB. She later became Director of UNILAB's Manufacturing Division. UNILAB adopted a comprehensive retirement plan (the plan or retirement plan) supported by a retirement fund. A member is compulsorily retired upon reaching age 60 or has completed 30 years of service, whichever comes first. Rivera completed 30 years of service and UNILAB retired her pursuant to the terms of the plan, she received the benefits in '88. At Rivera's request, UNILAB allowed her to continue working for the company. She continued working beyond the compulsory separation from service that resulted from her retirement. From 1993 to 1994, Rivera served as a personal consultant under contract for UNILAB's sister companies which assigned Rivera to render service involving UNILAB. In 1992, the company amended its retirement plan, providing, among others, for an increase in retirement benefits. Rivera asked that her retirement benefits be increased in accordance with the amended retirement program. Whether Rivera is entitled to the additional retirement benefits of the amended retirement plan? A: No. Whether these terms included renewed coverage in the retirement plan is an evidentiary gap that could have been conclusively shown by evidence of deductions of contributions to the plan after 1988. Two indicators, however, tell us that no such coverage took place. The first is that the terms of the retirement plan, before and after its 1992 amendment, continued to exclude those who have rendered 30 years of service or have reached 60 years of age. Therefore, the plan could not have covered her. The second is the absence of evidence of, or of any demand for, any reimbursement of what Rivera would have paid as contributions to the plan had her coverage and deductions continued after 1988. Thus, the Court concludes that her renewed service did not have the benefit of any retirement plan coverage. (Rivera v. United Laboratories, Inc., G.R. No. 155639, April 22, 2009) Q: Is a special retirement plan different from those contemplated under the LC as agreed upon by the parties valid? A: Yes. A pilot who retires after 20 years of service or after flying 20,000 hours would still be in the prime of his life and at the peak of his career, compared to one who retires at the age of 60 years old. Based on this peculiar circumstance that PAL pilots are ip, the parties
UNIVERSITY
OF SANTO
lFacuftaa
TOM.A~
ae (])ereclio Cun(
.!.
185
LABOR RELATIONS: TERMINATION provided for a special scheme of retirement different from that contemplated in the LC. Conversely, the provisions of Art. 287 of the LC could not have contemplated the situation of PAL's pilots. Rather, it was intended for those who have no more plans of employment after retirement, and are thus in need of financial assistance and reward for the years that they have rendered service. (PAL v. Airline Pilots Ass'n of the Pnils., G.R. No. 143686, Jan. 15, 2002)
Q: In '55, Hilaria was hired as a grade school teacher at the Sta. Catalina College. In '70, she applied for and was granted a 1 yr LOA without pay due to the illness of her mother. After the expiration in '71 of her LOA, she had not been heard from by Sta. Catalina. In the meantime, she was employed as a teacher at the San Pedro Parochial School during SY '80-'81 and at the Liceo de San Pedro, during SY '81-'82. In '82, she applied anew at Sta. Catalina which hired her. On Mar 22, '97, during the 51st Commencement Exercises of Sta. Catalina, Hilaria was awarded a Plaque of Appreciation for 30 yrs of service and P12,OOO as gratuity pay. On May 31, '97, Hilaria reached the compulsory retirement age of 65. Sta. Catalina pegged her retirement benefits at P59,038.35. Deducted was the amount of P12,OOO representing the gratuity pay which was given to her. Should the gratuity pay be deducted from the retirement benefits? A: No. As for the ruling of the CA affirming that of the NLRC that the P12,OOO gratuity pay earlier awarded to Hilaria should not be deducted from the retirement benefits due her, the same is in order. Gratuity pay is separate and distinct from retirement benefits. It is paid purely out of generosity.
OF EMPLOYMENT:
By EMPLOYEE
Q: What is the difference between gratuity
pay and retirement benefits?
A: :' _ -GRATUITY PAY
t-
_
"
It is paid to the beneficiary for the past services or favor rendered purely out of the generosity of the giver or grantor. It is not intended to pay a worker for actual services rendered or for actual performance. It is a money benefit or bounty given to the worker, the purpose of which is to reward Ee's who have rendered satisfactory service to the com an .
,
,,>
RETIREMENT
- __ :.,BENEFITS,
"
Are intended to help the Ee enjoy the remaining years of his life, releasing him from the burden of worrying for his financial support, and are a form of reward for his loyalty to the Er. (Ste. Catalina College and Sr. Loreta Oranza, vs. NLRC and Hilaria Tercera, G.R. No. 144483. November 19, 2003, J. Carpio-Morales)
RESIGNATION Q: What is resignation? A: It is the voluntary act of an Ee who finds himself in a situation where he believes that personal relations can be sacrificed in favor of the exigency of the service, and he has no other choice but to dissociate himself from his employment.
Note: The Ee must serve a written notice on the employer (Er) at least 1month in advance. Once accepted, it cannot be withdrawn without the consent of the Er. (lntertrod Maritime Inc. v. NLRC, G.R. No. 81037, June 19, 1991) Q: What is the effect if resignation is not voluntary? A: It is deemed to be a constructive dismissal. Q: Noel was hired as a "sales eng'r" at Avesco Marketing Corp. to supervise and install sound and communications systems for its clientele. Hetendered his resignation letter after he was asked by the Avesco Vice-President to resign which he immediately revoked. A copy of revocation was received by the company. He was placed under preventive suspension and asked to explain why no disciplinary action should be taken against him. The latter eventually terminated him due to breach of trust and confidence arising from selling competitive products which was inimical to the interest of the company resulting to
186
UST GOLDEN NOTES 2010 sales loss of the same. Noel filed a complaint for illegal dismissal. AVESCO interposed a defense that Noel voluntarily resigned. Was Noel voluntarily resigned? A: No. Voluntary resignations being unconditional in nature, both the intent and the ovett act of relinquishment should concur. If the employer (Er) introduces evidence purportedly executed by an employee (Ee) as proof of voluntary resignation yet the Ee specifically denies such evidence, as in Noel's case, the Er is burdened to prove the due execution and genuineness of such evidence. In)he case at bar, the notice of asking Noel to explain why no administrative action should be taken against him negates Avesco's assertion of voluntary resignation or separation. For a resignation tendered by an Ee to take effect, it should first be accepted or approved by the Er. AVESCO's receipt of Noel's resignation letter is not equivalent to approval. (Mora v. AVESCO Marketing Corp., G.R. No. 177414, Nov. 14, 2008, J. Carpio-Morales)
A: Yes. Notwithstanding the fact that the memo submitted by Ian to the Bernadette did not mention the words "resign", Ian's incendiary words and sarcastic remarks, negate any desire to improve work relations with Bernadette and other PTI executives. Such strongly worded letter constituted an act of "burning his bridges" with the officers of the company. Common sense dictates that Ian meant to resign when he wrote the said memorandum. (Phils Today, Inc. v. NLRC, G.R. No. 112965,Jan. 30, 199~
Q: Is a resigned employee (Ee) jmtltled to separation pay?
A:
GR: No. XPN: Unless otherwise stipulated in the employment contract or CBA, or the company policy provides for it. Note: Generally, an Ee who voluntarily resigns from employment is not entitled to separationpay. In the presentcase, however, upon the request of Ee, Er agreed to a scheme whereby the former would receive separation pay despite having resigned voluntarily. Thus, the terms and conditions they both agreed upon constituteda contract freely entered into, which should be performed in good faith, as it constitutedthe law between the parties. (Alfaro v. CA, GR.
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A Laurentino Vice-Chair jor Admin & Finance: Aissa Celine H. Luna Vice-Chair jor Layout & Design: Loise Rae G. Naval
No. 140812, Aug. 28, 2001)
Q: Ian was employed by PTI as a chief Investigative writer and then assistant to the publisher. Ian filed a 30-day leave of absence effective on the same date, citing the advice of his personal physician for him to undergo further medical consultations abroad. On Oct. 24, 1988, Ian wrote a "Memorandum for File" addressed to Bernadette. Construing said memo as a letter of resignation, Bernadette accepted said resignation letter of private respondent. Maya "Memorandum for File" which did not mention the words "resign" andlor "resignation" nonetheless juridically constitutes voluntary resignation? UNIVERSITY
-
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head: Domingo B. Diviva V Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanel1eC. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
•. ~
:~.,!,!,,~~
OF SANTO
Pacu[taa
.•
TOMAS
ae CDerecfio Civif
187
DISPUTE SETTLEMENT AND REMEDIES DISPUTE SETTLEMENT
and REMEDIES
Q: What is the concept
Q: What are the alternative modes of settlement of labor dispute under Art. 211 of the Labor Code?
A: It is the representation of 3 sectors. These are: 1. The public or the government 2. The employers 3. The workers - in policy-making bodies of the gov'!. Q: Can workers insist that they be represented in the policy making in the company?
A: 1. 2. 3.
Voluntary Arbitration Conciliation Mediation
Q: What is arbitration? A: It is the submission of a dispute to an impartial person for determination on the basis of evidence and arguments of the parties. The arbiter's decision or award is enforceable upon the disputants. It may be voluntary (by agreement) or compulsory (required by statutory provision). (Luzon Dev't Bank v. Ass'n of Luzon Dev't Bank Employees, G.R. No. 120319, Oct. 6, 1995)
Q: What is conciliation? A: It is the process where a disinterested 3rd party meets with management and labor, at their request or otherwise, during a labor dispute or in collective bargaining conferences, and by cooling tempers, aids in reaching an agreement.
A: It is when a 3'd party studies each side of the dispute then makes proposals for the disputants to consider. The mediator cannot make an award nor render a decision.
Q: Can the court arbitration
fix
A: No. Such kind of representation in the policy-making bodies of private enterprises is not ordained, not even by the Constitution. What is provided for is workers participation inpolicy and decision-making process directly affecting their rights, benefits, and welfare.
ART. 128. VISITORIAL AND ENFORCEMENT POWER
;
Q: What are the 3 kinds of powers of the Secretary of Labor and Employment (SLE)?
A: 1. 2. 3.
resort
to voluntary
(VA)?
to labor
1.
2. 3.
relations
cases?
A: 1. 2. 3.
Employees organization Management The public
Note: Employer and Ees are active parties while the public and the State are passive parties. (Poquiz, 2006, p.3)
188
visitorial
power?
A:
A: Resort to VA dispute, should not be fixed by the court but by the parties relying on their strengths and resources.
Q: Who are the parties
Visitorial powers Enforcement powers Appellate or power to review
Q: What constitute
Q: What is mediation?
of tripartism?
Access to employer's records and premises at any time of the day or night, whenever work is being undertaken To copy from said records Question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Labor Code and of any labor law, wage order, or rules and regulation issued pursuant thereto.
Q: Give 4 instances where the visitorial power of the SLE may be exercised under the Labor Code. A: Power to: 1.
Inspect books of accounts and records of any person or entity engaged in recruitment and placement, require it to submit reports regularly on prescribed forms and act in violations of any provisions of the LC on recruitment and placement. (Art. 37)
UST GOLDEN NOTES 2010 2.
3. 4.
Q: What is enforcement A:
1. 2.
2.
the
limitations
to
other
Issue temporary or permanent injunction or restraining order or Assume jurisdiction over any case
Q: What enforcement
A:
1. 2.
It is the power of the SLE to: 1. Issue compliance orders 2. Issue writs of execution for the enforcement of their orders, except in cases where the employer (Er) contests the findings of the labor officer and raise issues supported by documentary proof which were not considered in the courseof inspection 3. Order stoppage of work or suspension of operation when non· compliance with the law or implementing rules and regulations poses grave and imminent danger to health and safety of workers in the workplace 4. Require Ers to keep and maintain such employment records as may be necessary in aid to the visitorial and enforcement powers 5. Conduct hearings within 24 hours to determine whether: a. An order for stoppage of work or suspension of operations shall be lifted or not; and b. Er shall pay employees concerned their salaries in case the violation is attributable to his fault. (As amended by RA 7730; Guico v. Secretary, G.R. No. 131750, Nov. 16, 1998)
1.
are
A: In relation to enforcement orders issued under Art. 128, no inferior court or entity shall:
power?
Q: What are the violations
A:
Q: What courts?
Have access to employer's records and premises to determine violations of any provisions of the LC on recruitment and placement. (Arl. 128) Conduct industrial safety inspections of establishments. (Arl. 165) Inquire into the financial activities of legitimate labor organizations (LLO) and examine their books of accounts upon the filing of the complaint under oath and duly supported by the written consent of at leas~20% of the total membership of theLO concerned.
3.
are the instances when power may not be used?
Case does not arise from the exercise of visitorial power When Er-Ee relationship ceased to exist at the time of the inspection If employer contests the finding of the Labor Regulation Officer and such contestable issue is not verifiable in the normal course of inspection
Art. 129. RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS Q: What is the rule simple money claims?
A:
1.
2.
3. 4.
on the
recovery
of
The aggregate money claim of each employee (Ee) or househelper (HH) does not exceed P5,OOO. The claim is presented by an Ee or person employed in the domestic or household service or HH. The claim arises from Er-Ee relationship. The claimant does not seek reinstatement.
Note: In the absence of any of the ft. requisites, it is the labor arbiter (LA) who shall have the jurisdiction over the claims arising from Er-Ee relations, except claims for Ees compensation, SSS, Philhealth, and maternity benefits, pursuant to Art.217 of the Labor Code. The proceedings before the Regional Office shall be summary and non-litigious in nature.
under Art. 128?
Obstruct, impede, delay or otherwise render ineffective the orders of the SLE or his authorized representatives Any government employee found guilty of, or abuse of authority, shall be subject to administrative investigation and summary dismissal from service.
Q: What is the adjudicatory Regional
Director
power
of the
(RD)?
A: The RD or any of his duly authorized hearing officer is empowered through summary proceeding and after due notice, to hear and decide cases involving recovery of wages and other monetary claims and benefits, including legal interests.
UNIVERSITY
OF SANTO
Pacu{taa
TOMAS
ae CDereclio CiviC
DISPUTE SETTLEMENT
A: Yes. Art.132 (d) of the Labor Code provides that the SLE shall establish standards that will ensure the safety and health of women employees including the authority to determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. (1998 Bar Question)
Q: An airline which flies both the international and domestic routes requested the SLE to approve the policy that all female flight attendants upon reaching age 40 with at least 15 years of service shall be compulsorily retired; however, flight attendants who have reached age 40 but have not worked for 15 years will be allowed to continue working in order to qualify for retirement benefits, but in no case will the extension exceed 4 years. Does the SLE have the authority to approve the policy?
Q: What is the difference between the power Regional Director (RD) and Labor Arbiter (LA)?
A: ~
Art. 128 VP and EP of SLE
AND REMEDIES
of Secretary
of Labor
Art. 129
RD
and Employment
(SLE),
Art. 217(a)(6) LA
Inspection of establishments and issuance of orders to compel compliance with labor standards, wage orders and other labor laws
Adjudication of Ees claims for wages and benefits
Enforcement of labor legislation in general
Limited to monetary claims
All other claims arising from ErEe relations
Proceeding is an offshoot of routine inspections
Initiated by sworn complaints filed by any interested party
LA decides case within 30 calendar days after submission of the case by the parties for decision
Jurisdictional req'ts: 1) Complaint arises from Er-Ee relationship
1) All other claims arising from Er-Ee relations
No jurisdictional req'ts
2) Claimant is an Ee or person employed in domestic or household service or a HH 3) Complaint does NOT include a claim for reinstatement 4) Aggregate money claim of EACH claimant does not exceed P5,000
Appealable to SLE (In case compliance order is issued by Regional Office)
190
Appealable to NLRC
LA exercises original and
exclusive jurisdiction
2) Including those of persons in domestic or household service 3) Involving an amount exceeding P5,000 4) Whether or not accompanied with a claim for reinstatement
Appealable to NLRC
UST GOLDEN NOTES 2010 ;. ,
NATIONAL LABOR RELATIONS'COMMISSION
i
ART. 213·216. NATIONAL LABOR RELATIONS COMMISSION (NLRC)
('
Q: What are the two kinds of jurisdiction the NLRC? A: 1.
Exclusive Original Jurisdiction a. Certified labor disputes causing or likely to cause a strike or lockout in an industry indispensable to national interest, certified to it by the Secretary of Labor or the President for compulsory arbitratiqn b. Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party c. Injunction in strikes or lockouts under Art. 264 of the Labor Code (LC) d. Contempt cases
2.
Exclusive Appellate Jurisdiction a. All cases decided by the Labor Arbiters under Art. 217(b) of the LC and Sec. 10 of R.A.8042 (Migrant Worker's Act); and b. Cases decided by the Regional Offices of DOLE in the exercise of its adjudicatory function under Art.129 of the LC over monetary claims of workers amounting to not more than P5000 and not accompanied by claim for reinstatement.
Q: What is the NLRC? A: It is an administrative body with quasijudicial functions and the principal government agency that hears and decides labormanagement disputes; attachedte the QOLE solely for program and policy coordination only. Q: How is the powers NLRC allocated?
A:
1.
2.
and functions
of the
En Banc a. Promulgating rules and regulations and governing the hearings and disposition of cases before any of its divisions and regional branches. b. Formulating policies affecting its administration and operations. c. On temporary or emergency basis, to allow cases within the jurisdiction of any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense. Division (8 Divisions with 3 members) a. Adjudicatory; b. All other powers, functions and duties; c. Exclusive appellate jurisdiction over cases within their respective territorial jurisdiction.
Q: Does an individual adjudicatory power?
Commissioner
of
have
Q: What is the composition
of the NLRC?
A:
A: No. The law lodges the adjudicatory power on each of the eight divisions, not on the individual commissioners nor on the whole commission. The "division" is a legal entity, not the person who sits in it. Hence, an individual commissioner has no adjudicatory power, although of course, he can concur or dissent in deciding a case.
UNIVERSITY
1. 2.
Chairman 23 Members a. 8 members each, shall be chosen only from among the nominees of the workers and employers (Er) organization respectively. b. The Chairman and the 7 remaining members shall come from the public sector, with the latter to be chosen preferably from among the incumbent Labor Arbiters. c. Upon assumption into office, the members nominated by the workers and Ers organization shall divest themselves of any affiliation with or .interest in the OF SANTO
Pacu{taa
TOMAS
ae
.~ ."
191 r
•
DISPUTE SETTLEMENT AND REMEDIES: THE NLRC federation or association to which they belong. Note: There is no need for the Commission on Appointments to confirm the positions in the NLRC. Such requirement has no constitutional basis. (Calderon v. Carale, GR. No. 91636, April 23, 1992) Q: How does the NLRC adjudicate cases?
A:
1.
The NLRC adjudicates cases by division. A concurrence of 2 votes is needed for a valid judgment. Note: Whenever the required membershipin a division is not complete and the concurrence of the Commissionersto arrive at judgment or resolution cannot be obtained, the Chairman shall desiqnate such number of additional Commissioners from the otherdivisionsas may be necessary.
2.
It shall be mandatory for the division to meet for purposes of consultation. Note: The conclusion of a division on any case submitted to it for decision shouldbe reachedin consultationbefore the case is assignedto a memberfor the writingof the opinion.
3.
A certification that a consultation has been conducted, signed by the presiding commissioner of the division, shall be issued (copy attached to the record of case and served upon the parties).
Q: What are the qualifications Chairman and the Commissioners?
A:
1. 2. 3. 4.
of the
Member of the Philippine Bar Engaged in the practice of law in the Philippines for at least 15 years At least 5 years experience or exposure in handling labor management relations Preferably a resident of the region where he is to hold office
Q: What are the qualifications Executive Labor Arbiter?
of
an
A: 1. 2. 3.
192
Member of the Philippine Bar Engaged in the practice of law in the Philippines for at least 10 years At least 5 years experience or exposure in handling labor
management relations Q: What is the term of office of the Chairman, Commissioners and Labor Arbiters (LAs)? A: They shall hold office during good behavior until they reach the age of 65 unless removed for causes as provided by law or become incapacltated to discharge the function of his office. however, that the President of the Philippines may extend the services of the Commissioners and LAs up to the maximum age of 70 years upon the recommendation of the Commission en bane. Provided,
Q: Some disgruntled members of Bantay Labor Union filed with the Regional Office of the DOLE a written complaint against their union officers for mismanagement of union funds. The Regional Director (RD) did not rule in the complainants" favor. Not satisfied, the complainants elevated the RD's decision to the NLRC. The union officers moved to dismiss on the ground of lack of jurisdiction. Are the union officers correct? Why? A: Yes, the union officers are correct in claiming that the NLRC has no jurisdiction over the appealed ruling of the. RD. in Barles v. Baonio, G.R. No. 120220, June 16, 1999, the SC ruled: "Appellate authority over decisions of the RD involving examination of union accounts is expressly conferred on the Bureau of Labor Relations (BLR) under the Rule of Procedure on Mediation- Arbitration." Sec. 4. Jurisdiction of the BLR - (b) The BLR shall exercise appellate jurisdiction over all cases originating from the RD involving complaints for examination of union books of accounts.
The language of the law is categorical. Any additional explanation on the matter is superfluous." (2001 Bar Question) Q: Company "A" and Union "B" could not resolve their negotiations for a new CBA. After conciliation proceedings before the NCMB proved futile, B went on strike. Violence during the strike prompted A to file charges against striker-members of B for their illegal acts. The SLE assumed jurisdiction, referred the strike to the NLRC and issued a return-to-work order. The NLRC directed the parties to
UST GOLDEN NOTES 2010 submit their respective position papers and documentary evidence. At the initial hearing before the NLRC, the parties agreed to submit the case for resolution after the submission of the position papers and evidence. SLibsequently, the NLRC issued an arbitral award resolving the disputed provisions of the CBA and ordered the dismissal of certain strikers for having knowingly committed illegal acts during $the strike. The dismissed employees elevated "their dismissal to the CA claiming that they were deprived of their right to due process and that the affidavits submitted by A were 'self-serving and of no probative value. Should the appeal prosper? State the reason(s) for your answer clearly. A: The appeal should not prosper. The SC, in many cases, has ruled that decisions made by the NLRC may be based on position papers. In the question, it is stated that the parties agreed to submit the case for resolution after the submission of position papers and evidence. Given this fact, the striker-members of B cannot now complain that they were denied due process. They are in estoppel. After voluntarily submitting a case and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court. A party cannot adopt a posture of double dealing. (Marquez vs. Secretary of Labor, G.R. No. 80685, March 16, 1989). (2001 Bar Question) Q: Is judicial review of the NLRC's decision available? A: Yes, through petitions for certiorari (Rule 65) which should be initially filed with the CA in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. The CA is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of its component divisions. (Sf. Martin Funeral Home v. NLRC, G.R. No. 130866, Sep. 16, 1998) Q: Is barangay conctllatlon available in labor cases? A:
No. Labor cases are not subject to Conciliation since ordinary rules of procedure are merely suppletory in character vis-a-vis labor disputes which are primarily governed by labor laws. (Montoya v. Escayo, G.R. No. 82211-12, Mar. 21, 1989) barangay
ART. 217. JURISDICTION OF LABOR ARBITERS AND THE NATIONAL LABOR RELATIONS-COMMISSION Q: What is the distinction between the jurisdiction of the labor arbiter (LA) and the National Labor Relations Commission (NLRC)? A:
1. 2.
3.
The NLRC has exclusive appellate jurisdiction on all cases decided by the LA. The NLRC does not have original jurisdiction on the cases over which the LA have original and exclusive jurisdiction. The NLRC cannot have appellate jurisdiction if a claim does not fall within the exclusive original jurisdiction of the LA.
Q: What is the nature of jurisdiction labor arbiters (LAs)?
of
A: It is original and exclusive. LAs have no appellate jurisdiction. Q: What are the cases falling under the jurisdiction of labor arbiters (LAs)? A: Exclusive and original jurisdiction to hear and decide the following cases involving all workers: 1. ULP cases 2. Termination disputes 3. If accompanied with a claim for reinstatement, those that workers file involving wages, rates of pay, hours of work and other terms and conditions of employment 4. Claims for actual, moral, exemplary and other forms of damages arising from Er-Ee relations 5. Cases arising from any violation of Art. 264, including questions involving the legality of strikes and lockouts; 6. Except claims for Employment Compensation, Social Security, Philhealth and maternity benefits, all other claims arislnq from Er-Ee relations, including those of persons in domestic or household service, involving an amount exceeding P5000 regardless of whether accompanied with a claim for reinstatement 7. Monetary claims of overseas contract workers arising from Er-Ee relations under the Migrant Worker's Act of 1995 as amended by RA 10022
UNIVERSITY
OF SANTO
PacuCtaa
TOMAS
de
~,~-:l 193 -."
DISPUTE SETTLEMENT AND REMEDIES: THE 8.
Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to RA 6727 9. Enforcement of compromise agreements when there is noncompliance by any of the parties pursuant to Art. 227 of the Labor Code (LC); as amended; and 10. Other cases as may be provided by law
Note: Althoughthe provisionspeaks of exclusive and original jurisdiction of LAs, the cases enumerated may instead be submitted to a voluntary arbitrator by agreement of the parties under Art. 262 of the LC. The law prefers voluntaryovercompulsoryarbitration. Q: What is the nature of the cases which the labor arbiter (LA) may resolve? A: The cases that a LA can hear and decide are employment related. Where no Er-Ee relationship exists between the parties and no issue is involved which may be resolved by reference to the LC, other labor statutes, or any collective bargaining agreement, it is the RTC that has jurisdiction. (Lapanday Agncuftural Dev't. Corp v. CA, G.R. No. 112139, Jan.31, 2000)
The LA has jurisdiction over controversies involving Ers and Ees only if there is a "reasonable causal connection" between the claim asserted and the Er-Ee relations. Absent such link, the complaint is cognizable by the regular court. (Eviota v. CA, G.R. No. 152121, July 29, 2003)
Q: Do labor arbiters exercise concurrent jurisdiction with the NLRC? A: Yes, with respect to contempt cases. Q: What are the cases referred to grievance machinery and voluntary arbitration? A: Disputes arising from the: 1. Interpretation or implementation of the CSA 2. Interpretation or enforcement of company personnel policies Q: What is the extent of the jurisdiction of the labor arbiter (LA) If there are unresolved matters arising from the interpretation of the CBA? .
A:
GR: LAs have no jurisdiction over unresolved or unsettled grievances arising
194
NLRC
from the interpretation or implementation of the CSA and those arising from the interpretation or enforcement of company personnel policies. XPN: Actual termination disputes Note: Where the dispute is just in the interpretation, implementation or enforcement stage of the termination,it may be referredto the grievance machinery set up by the CSA or by voluntary arbitration. Where there was already actual termination, i.e., violation of rights, it is already cognizableby the LA. (Maneja v. NLRC, G.R. No. 124013, June 5, 1998) Q: Does the use of the word "may" in the' .provisions of the Grievance Procedure allow the alternative of submitting the case before the labor arbiter (LA)? A: Yes. The use of the word "may" shows the intention of the parties to reserve the right to submit the illegal termination dispute to the jurisdiction of the LA, rather than to a voluntary arbitrator. Petitioner validly exercised his option to submit his case to a LA when he filed his complaint before the proper government agency. In other words, the CA is correct in holding that voluntary abitration is mandatory in character if there is a specific agreement between the parties to that effect. It must be stressed however that, in the case at bar, the use of the word "may" shows the intention of the parties to reserve the right of recourse to LAs. (Vivero v. CA, G.R. No. 138938, Oct. 24, 2000) Q: What are the cases which do not fall
under the jurisdiction of the labor arbiters (LA)? A: LAs have no jurisdiction over the ff: 1. Foreign governments (JUSMAGPhils. v. NLRC, G.R. No. 108813, Dec. 15, 1994) 2.
Int'l agencies (Lasco v. NLRC, G.R. Nos. 109095-109107, Feb. 23, 1995)
3.
Intra-corporate disputes which fall under P.O. 902-A and now falls under the jurisdiction of the regular courts pursuant to the new Securities Regulation Code (Nacpi/ v. IBC, G.R. No. 144767, Mar. 21, 2002)
4.
Executing money claims against government (Dept of Agriculture v. NLRC, G.R. No. 104269, Nov. 11, 1993)
UST GOLDEN NOTES 2010 5.
Cases involving GOCCs with original . charters which are governed by civil service law, rules or regulations (Arl. IX-B, Sec.2, No.1, 1987 Constitution)
6.
Local water district (Tanjay Water District v. Gabaton, April 17, 1989) except where NLRC jurisdiction is invoked (Zamboanga City Water District v. Buat, G.R. No. 104389, May 27, 1994) ,:1 , The aggregate money claim does not exceed P5000 and without claim for reinstatement (Rajah Humabon Hotel, Inc. v. Trajano, G.R. Nos. 100222-23, Sep.14, 1993)
7.
129, 13S amended. Being an ordinary civil action, the same is beyond the jurisdiction of labor tribunals. Not every controversy or money claim by an employee (Ee) against the employer (Er) or vice-versa is within the exclusive jurisdiction of the LA. Actions between Ees and Er where the Er-Ee relationship is merely incidental and the cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court. Here, the ErEe relationship between the parties is merely incidental and the cause of action ultimately arose from different sources of obligation, i.e., the Constitution and CEDAW. (Halaguena vs, PAL Incorporated, G.R. No. 172013, Oct. 2, 2009)
Claim of employee (Ee) for cash prize under the Innovation Program of the company, although arising from Er-Ee relationship, is one requiring application of general civil law on contracts which is within the jurisdiction of the regular courts (SMC v. NLRC, G.R. No. 80774, May 31, 1988)
Q: Who has the exclusive appellate jurisdiction over all cases decided by Labor Arbiters?
Cause of action based on or tort which has no connection with any of enumerated in Art.217 (Ocheda v. CA, G.R. No. 16, 1992)
quasi-delict reasonable the claims of the LC 85517, Oct.
A: Yes. A MR is required to enable NLRC to correct its mistakes. If no MR is filed, NLRC's decision becomes final and executory.
10. Complaint arising from violation of training agreement (Singapore Airlines v. Pano, G.R. No. L-47739, June 22, 1983)
A: If the motion is denied, the aggrieved party may file a petition for cerliorari not later than 60 days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the 60 day period shall be counted from notice of the denial of said motion. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. (Sec. 4, Rule 65, Rules of Court.)
8.
9.
Q: FASAP, the sole and exclusive bargaining representative of the flight attendants, flight stewards and pursers of PAL, and respondent PAL entered into a CSA incorporating the terms and conditions of their agreement for the years '01-'05. Sec. 144, Part A of the CSA provides that compulsory retirement shall be 55 for females and 60 for males. They filed an action with the RTC claiming that the CSA provision is discriminatory and hence unconstitutional. The RTC issued a TRO.The appellate court ruled that the RTC has no jurisdiction over the case at bar. Whether RTC has jurisdiction over the petitioners' action challenging the legality of the provisions on the compulsory retirement age contained in the CSA? A: Yes. The subject of litigation is incapable of pecuniary estimation, exclusively cognizable by the RTC, pursuant to Sec. 19 (1) of BP Big.
A: The NLRC. Q: Is a motion for reconsideration (MR) of
the
NLRC
decision
required
certiorari may be availed of?
before
Q: What is the remedy in case of denial of the MR?
What is the effect if no service of summons was made?
Q:
A: In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the labor arbiter is null and void. Q: What is compulsory arbitration? A: The process of settlement of labor disputes by a government agency which has the authority to investigate and make an award binding on all the parties.
UNIVERSITY
OF
Pacu[taa
SANTO
TOMAS
de iDerecfio Civif
DISPUTE SETTLEMENT AND REMEDIES: THE NLRC Q: Can the compulsory
Labor Arbiter arbitration?
(LA)
conduct
A: Yes. Under the Labor Code, it is the LA who is clothed with the authority to conduct compulsory arbitration on cases involving termination disputes [Art. 217, P.O. 442, as amended). (PAL v. NLRC, G.R. No. 55159, Dec. 22, 1989) Q: What are the rules on venue of filing cases?
ART. 218. POWERS OF THE NATIONAL LABOR RELATIONS COMMISSION (NLRC) _ Q: What are the powers
A: 1.
A: 1.
All cases which the Labor Arbiters (LAs) have authority to decide may be filed in the Regional Arbitration Branch (RAB) having jurisdiction over the workplace of the complainant /petitioner.
2.
3:
Note: Workplace is understood to be the place or locality where the employee (Ee) is regularly assigned when the cause of action arose. It shall include the place where the Ee is supposed to report back after a temporary detail, assignment or travel. In case of field Ees, as well as ambulant or itinerant workers, their workplace is where they are" a. Regularly assigned b. Supposed to regularly receive their salaries and wages c. Receive their work instructions from d. Reporting the results of their assignment to their employers (Er) 2.
3.
4.
5.
Where 2 or more RABs have jurisdiction over the workplace, the first to acquire jurisdiction shall exclude others. Improper venue when not objected to before filing of position papers shall be deemed waived. Venue may be changed by written agreement of the parties or when the NLRC or the LA so orders,upon motion by the proper party in meritorious cases. For Overseas Contract Workers where the complainant resides or where the principal office of the respondent Er is located, at the option of the complainant. Note: The Rules of Procedure on Venue is merely permissive, allowing a different venue when the interest of substantial justice demands a different one. (Dayag v. Canizares, GR. No. 124193, Mar. 6, 1998)
196
of the NLRC?
4. 5. 6.
Rule making power - promulgation of rules and regulations: a. Governing disposition of cases before any of its diviSion/regional offices. b. Pertaining to its internal functions c. As may be necessary to carry out the purposes of the Labor Code. Power to issue compulsory processes' (administer oaths, summon parties, issue subpoenas) Power to investigate matters and hear disputes within its jurisdiction (adjudicatory power - original and appellate jurisdiction over cases) Contem pt power Ocular Inspection Power to issue injunctions and restraining orders
Q: What is an injunction restraining order (TRO)?
or a temporary
A: Orders which may require, forbid, or stop the doing of an act. The power of the NLRC to enloin or restrain the commission of any or all prohibited or unlawful acts under Art. 218 of Labor Code can only be exercised in a labor disputes. Note: A restraining order is generally regarded as an order to maintain the subject of controversy in status quo until the hearing of an application for a temporary injunction. (BF Homes v. Reyes, G.R. No. L-30690 November 19, 1982)
Q: Who may issue a TRO? A: 1. 2. 3.
President (Art.263[g]) Secretary of Labor (Art. 263[g]) NLRC (Art.218)
Note: Art. 218 of the Labor Code limits the grant of injunctive power to the "NLRC". The LA is excluded statutorily. Hence, no NLRC Rules can grant him that power.
UST GOLDEN NOTES 2010 d.
Q: What is the procedure for the issuance of restraining orderlinjunction?
A:
1.
Filing of a verified petition
2.
Hearing after due and personal notice has been served in such manner as the Commission shall direct to: a. All known persons against whom relief is sought b. Also the Chief E~cutiv~ or other public officials of' the province or city within which the unlawful acts have been threatened or commercial charged with the duty to protect the complainant's property.
3.
4.
a.
b.
e.
5.
to
Prohibited or unlawful acts have been threatened and will be committed, or have been and will be continued unless restrained, but no injunction or TRO shall be issued on account of any threat, prohibited or unlawful act, except against the persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof. The substantial and irreparable injury to the complainant's property. Note: Irreparable Injury -an injury which cannot be adequately compensated in damages due to the nature of the injury itself or the nature of the right or property injured or when there exist no pecuniary standard for the measurement of damages.
c.
no
Note: Adequate remedy - one that affords relief with reference to the matter in controversy and which is appropriate to the particular circumstances of the case if the remedy is specitlcally provided by law. (PAL v. NLRC, GR. No. 120567, Mar. 20, 1998)
Reception at the hearing of the testimonies of the witnesses with opportunity for cross-examination, in support of the allegations of the complaint made under oath as well as testimony in opposition thereto. Finding of fact of the Commission the effect that:
That complainant has adequate remedy at law
That as to each item of relief to be granted, greater injury will be inflicted upon the complainant by the denial of the relief than will be inflicted upon the defendants by the granting of the relief.
Posting of a bond.
ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT Q: Are technical rules strictly followed in proceedings before the NLRC and the Labor Arbiter (LA)? A: No. Administrative and quasi-judicial bodies like the NLRC, are not bound by the technical rules of procedure in the adjudication of cases. (Ford Phils. Salaried Employees Ass'n v. NLRC, G.R. No. 75347, Dec. 11, 1987)
Q: Is evidence
NLRC precluded from receiving for the 1st time on appeal?
A: No. It is well-settled that the NLRC is not precluded from receiving evidence, even for the first time on appeal, because technical rules of procedure are not binding in labor cases.ln fact, labor officials are mandated by the Labor Code to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. Thus, in Lawin Security Services v. NLRC and Bristol Laboratories Ees' Association-DFA v. NLRC, G.R. No. 118536, June 9, 1997, we held that even if the evidence was not submitted to the labor arbiter, the fact that it was duly introduced on appeal to the NLRC is enough basis for the latter to be more judicious in admitting the same, instead of falling back on the mere technicality that said evidence can no longer be considered on appeal. Certainly, the first course of action would be more consistent with equity and the basic notions of fairness. (Clarion Printing House, Inc. vs. NLRC, G.R. No. 148372, June 27, 2005, J. CarpioMorales)
UNIVERSITY
...
That public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection.
OF SANTO
TOM.A~
. Pdcu(t'ati- tie (])eredio CivtC
\ij,!
197
DISPUTE SETTLEMENT AND REMEDIES: THE NLRC Q: How is this rule reconciled with the requirement of procedural due process? A: While the rules of evidence prevailing in the courts of law or equity are not controlling in proceedings before the NLRC, the evidence presented before it must at least have a modicum of admissibility for it to be given some probative value (Uichico et al. v NLRC, G.R. No. 121434, June 2, 1997). Not only must there be some evidence to support a finding or conclusion, but evidence must be substantial. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. (Gelmart industries Inc. v. Leogardo Jr., G.R. No. 70544, Nov. 5, 1987) Q: Should there always be a formal or trial type hearing to satisfy the requirements of due process? A: No. Formal or trial-type hearing is not at all times and in all instances essential to due process, the requirements of which are satisfied where parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. (Llora Motors Inc. v. Drilon, GR. No. 82895, Nov. 7, 1989) Note: Res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of administrative powers. Q: What is the nature of the proceedings before the Labor Arbiter (LA)? A: It shall be non-litigious in nature. Subject to the requirements of due process, the technicalities of law and procedure and the rules obtaining in the courts of law shall not strictly apply thereto. The LA may avail himself of all reasonable means to ascertain the facts of the controversy speedily, including ocular inspection and examination of well-informed persons. (Sec. 2, Rule V, NLRC 2005 Rules of Procedure) Q: What conciliation
is the effect and mediation?
of
failure
of
A: Should the parties fail to agree upon an amicable settlement, either in whole or in part, during the mandatory conciliation and mediation conference: 1. The LA shall terminate the conciliation and mediation stage and proceed to pursue the other purposes of the said conference as enumerated in Sec. 3; thereafter,
2.
The LA shall direct the parties to simultaneously file their respective position papers on the issues agreed upon by the parties and as reflected in the minutes of the proceedings. (Sec. 4, Rule V, NLRC 2005 Rules of Procedure)
Q: What is the effect of non-appearance of parties in a conciliation or mediation proceeding?
A:
1.
Complainant/Petitioner - His nonappearance during the 2 settings for mandatory conciliation and mediation conference scheduled in the summons, despite due notice thereof, shall be a ground for the dismissal of the case without prejudice.
2.
Respondent a. His non-appearance during the first scheduled conference shall not preclude the second conference from proceeding as scheduled in the summons. b. If he still fails to appear at the second conference despite being duly served with summons, the Labor Arbiter (LA) shall immediately terminate the mandatory conciliation and mediation conference. c. The LA shall thereafter allow the complainant or petitioner to file his verified position paper and submit evidence in support of his causes of action, and thereupon render his declsion on the basis of the evidence on record. (Sec. 5, Rule V, NLRC 2005 Rules of Procedure)
Q: What is settlement?
the
concept
of
amicable
A: It is where the Labor Arbiter shall exert all efforts to arrive at an amicable settlement of a labor dispute within its jurisdiction on or before its first hearing or during the mandatory conferences set for the purpose. Q: When may the approve a compromise
Labor Arbiter agreement?
(LA)
A: It shall be approved by the LA, if: 4. After explaining to the partieparticularly to the complainants terms and conditions consequences thereof
UST GOLDEN NOTES 2010 5. 6.
7.
He is satisfied that they understand the agreement That the same was entered into freely and voluntarily by them That it is not contrary to law, morals, and public policy.
h"~ ·;'ART. 222::APPEARANCES Q: Can a non-lawyer NlRC or labor Arbiter?
appear
before ;)
A: 1.
2.
of attorney's
Q: What are the grounds NlRC?
the
2.
3. 4.
Q: When is prohibited?
payment
of
attorney's
fees
A: Only where the same is effected through forced contributions from the workers from their own funds as distinguished from union funds. Neither the lawyer nor the union may require the individual workers to assume the obligation to pay the attorney's fees from their own pockets. Any agreement to the contrary shall be null and void.
Prima facie evidence of abuse of discretion on the part of the Labor Arbiter The decision, order or award was secured through fraud or coercion, including graft and corruption Purely questions of law Serious errors in the findings of facts which would cause grave or irreparable damage or injury to the appellant.
Q: Is a motion for reconsideration of labor Arbiter's decision a precondition to an appeal to the NLRC?
A: No. Q: Within what period should the appeal from Labor Arbiter (LA) be made?
A: 1.
For simple monetary claims - 10% of the total monetary award adjudged the employees excluding the award for moral and exemplary damages. (Art. 111) and conclusion amount agreed taken from the from individual
for appeal to the
A: 1.
fees
Arbiter's
A: NLRC.
.
For CBA negotiations - It shall be in the upon by the parties union funds and not union members.
ART. 223. APPEAL
Q: Where do you appeal the labor decision?
AND FEES'
A: Yes. Provided, the non-lawyer: 1. Represents himself as party to the case; 2. Represents a legitimate labor organization (LLO) which is a party to the case provided that he shall be made to present a verified certification that he is authorized to represent the LLO in the said case 3. Represents a member or members of a LLO that is existing within the employers establishment 4. Is a duly-accredited member of any legal aid office recognized by the DOJ or IBP 5. Is the owner or president of a corporation or establishment which is a party to the case. (2005 NLRC Rules) Q: What is the amount that may be granted?
:. .
2.
Decisions, resolutions or orders of the LA shall be final and executory unless appealed to the NLRC by any or bot parties within 10 calendar days fro receipt thereof In case of decisions, resolutions orders of the Regional Director of e DOLE pursuant to Art. 129 of t e Labor Code, within 5 calendar da s from receipt thereof. (2005 Revised Rules of the NLRC)
Q: The affected members of the rank and file elevated a Labor Arbiter's decision to the NlRC via a petition for review filed after the lapse of the ten-day reglementary period for perfecting an appeal. Should the NLRC dismiss the petition outright or may the NlRC take cognizance thereof? A: The NLRC should dismiss the appea outright because the same was filed beyo d the reglementary period of appeal. Art. 223 the Labor Code reads: "Decisions, awards, orders of the LA are final and executor unless appealed to the Commission by any or both parties within 10 calendar days from receipt 0 such decisions, awards, or orders. P (2001 Bar
UNIVERSITY
OF
SANTO
Pacu{taat{e
TOMAS
CDerecfto CiviC
DISPUTE SETTLEMENT AND REMEDIES: THE e.
Question) Q: What does the "10 days" refer to? A: The shortened period of 10 days fixed by Art. 223 contemplates calendar days and not working days. It is precisely in the interest of labor law that the law has commanded that labor cases be promptly, if not peremptorily, disposed of. (Vir-jen Shipping and Marine Services Inc. v. NLRC, GR. No. L-58011-12,
Q: May the period for filing an appeal be extended? A: No. The perfection of an appeal within the statutory or reglementary period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory as to deprive the appellate court of jurisdiction to alter the final judgment of the Regional Directors and Labor Arbiters. (Aboitiz Shipping Ees Ass'n v. Trajano,. GR. No. 112955, Sep. 1, 1997) Q: Where is the appeal filed? A: The appeal shall be filed with the Regional Arbitration Branch or Regional Office where the case was heard and decided. (Sec. 3, Rule VI, NLRC 2005 Rules of Procedure) Q: How is an appeal from LA to NLRC perfected?
A:
1.
. Q; Is the posting of an appeal bond required for the perfection of an appeal from a Labor Arbiter's (LA's) decision involving monetary award? A; Yes. In case the decision of the LA or the Regional Director involves a monetary award, an appeal by the employer may be perfected only upon the posting of a bond. (Sec.6, Rule VI, NLRC 2005 Rules of Procedure) Q; What are the forms of the appeal bond?
A: It shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary award, exclusive of damages and attorney's fees. (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure) Q: Who may issue a surety bond? A: It shall be issued by a reputable bonding company duly accredited by the Commission or the SC, and shall be accompanied by original or certified true copies of: 1.
The appeal is perfected:
a.
b.
Filed within the reglementary period provided in Sec. 1 of this
Rules
Verified by the appellant himself
in accordance with Sec. 4, Rule 7 of the Rules of Court, as amended c. 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 the appellant received the appealed decision, resolution or order d. In 3 legibly typewritten or printed copies
by (i) proof of payment of the required appeal fee; (ii) posting of a cash or surety bond as provided in Sec. 6 of this Rule; (iii) a certificate of non-forum shopping; and (iv) proof of service upon the other parties.
Accompanied
Mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal.
2.
July 20, 1982)
Note: If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday or holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday or holiday.
NLRC
2. 3.
4. 5. 6. 7.
A joint declaration under oath by the Er, his counsel, and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case. An indemnity agreement between the Er-appellant and bonding company; Proof of security deposit or collateral securing the bond: provided, that a check shall not be considered as an acceptable security; A certificate of authority from the Insurance Commission; Certificate of registration from the SEC; Certificate of authority to transact surety business from the Office of the President; Certificate of accreditation and authority from the SC; and
UST GOLDEN NOTES 2010 8.
A notarized board resolution or secretary's certificate from the bonding company showing its authorized signatories and their specimen signatures. (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure)
Note: The appellant shall furnish the appellee with a certified true copy of the said surety bond with all the above-mentioned supporting documents. Q: What is the period within which a l:ash or surety bond shall be valid and effective? A: From the date of deposit or posting, until the case is finally decided, resolved or terminated, or the award satisfied. This condition shall be deemed incorporated in the terms and conditions of the surety bond, and shall be binding on the appellants and the bonding company. (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure) Q: What is the effect if the bond is verified by the NLRC to be irregular or not genuine? A: The Commission shall cause the immediate dismissal of the appeal, and censure or cite in contempt the responsible parties and their counsels, or subject them to reasonable fine or penalty. (Sec.6, Rule VI, NLRC 2005 Rules of Procedure) Note: The appellee shall verify the regularity and genuineness of the bond and immediately report any irregularity to the NLRC. Q: May the bond be reduced?
A:
GR: No. XPN: On meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award.
Note: The mere filing of a motion to 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, NLRC 2005 Rules of Procedure). Q: Company "A", within the reglementary period, appealed the decision of a Labor Arbiter directing the reinstatement of an Ee and awarding backwages. However, A's cash bond was filed beyond the ten day period. Should the NLRC entertain the appeal? Why? A:
No, the NLRC
should
not entertain
appeal, as the same was not perfected for failure to file a bond. In ABA vs. NLRC, GR No. 122627, July 18, 1999, the SC ruled: "A appeal bond is necessary ...the appeal may be perfected only upon the posting of cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from." (2001 Bar Question) Q: What is the effect appeal on execution?
of perfection
of an
A: The perfection of an appeal shall stay the execution of the decision of the Labor Arbiter on appeal, except execution for reinstatement pending appeal. Note: The provision of Art. 223 is clear that an award by the LA for reinstatement shall be immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement. (Pioneer Texturizing Corp. VS. NLRC, G.R. No. 118651, Oct.16,
1997)
Q: May dismissed employees (Ees) collect their wages during the period between the Labor Arbiter's (LA's) order of reinstatement pending appeal and the NLRC decision overturning that of the LA? A: Yes. Par. 3 of Art. 223 of the Labor Code provides that the decision of the LA reinstating a dismissed or separated Ee, insofar as the reinstatement aspect is concerned, shall immediately be executory, pending appeal. Even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on ,the part of the employer (Er) to reinstate and pay the wages of the dismissed Ee during the period of appeal until reversal by the higher court. On the other hand, if the Ee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the Ee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. Unless there is a restraining order, it is ministerial upon the LA to implement the order of reinstatement and it is mandatory on the Er to comply therewith. (Garcia vs. PAL, GR No. 164856, Jan. 20, 2009) Q: Is a petition appellant?
for relief
available
to the
A: Yes.
the UNIVERSITY
OF PacuCtatf
SANTO
de
TOMAS
CJ)erecfio
Cicit
~>U.U.
.",.
201
DISPUTE SETTLEMENT AND REMEDIES: THE NLRC Q: Within what period may a petition for relief may be filed? A: It must be filed WITHIN: 1. 60 days from knowledge of judgment and 2. 6 months from entry of such judgment
Q: Who are the officials who may issue a writ of execution?
A:
Q: What are the applicable rules on judicial review?
5. 6. 7.
A: 1. 2.
3.
4.
5.
No law allows an appeal from a decision of the Secretary of Labor or the NLRC or of a voluntary arbitrator. The way to review NLRC decisions is by special civil action for certiorari, prohibition or mandamus under Rule 65 of the Rules of Court. Jurisdiction belongs to SC and CA, but in line with the doctrine on hierarchy of courts, the petition should be initially presented to the CA. (St. Martin's Funeral Home v. NLRC, Sep. 16, 1988). No motion for reconsideration (MR) is allowed for any order, decision or award of a LA. However, a MR of a Labor Arbiter's decision, award or order which has all the elements of an appeal may be treated as appeal. Only one MR of the decision, award or order of the NLRC in cases appealed before it is allowed.
Q: Will a petition for certiorari stay the execution of the assailed decision of the NLRC? A: No. Unless a TRO is issued by the CA or SC. ,
1. 2. 3. 4.
ART. 224. EXECUTION OF DECISIONS, ORDERS OR AWARDS Q: What is a writ of execution? A: It is an order to carry out or to implement a final judgment. Q: When does a decision of the (~LRC, LA, BLR or Regional Director (RD), Med-arbiter, Voluntary Arbitrator and SLE) become final and executory? A: After 10 calendar days from receipt of the decision by the parties and shall be executory within 10 years.
202
SLE Regional Director NLRC LA Med-Arbiter Voluntary Arbitrator Panel of Arbitrators
Q: When may a writ of execution be issued? A: It may be issued motu proprio or on motion' of any interested party within 5 years from the date it becomes final and executory. An independent action is required for the execution of the final judgment within the next 5 years. (PNR v. NLRC, G.R. No. 81231, Sep. 19,1989) Q: May the manner of appealedfrom?
execution
be
A: GR: Once a judgment becomes final and executory, it can no longer be disturbed, altered or modified. XPN: In cases where, because of supervening events, it becomes imperative, in the higher interest of justice, to direct its modification in order to harmonize the disposition with the prevailing circumstances or whenever it is necessary to accomplish the aims of justice. (Galindez, et al. v. Rural Bank of Lianera, Inc., G.R. No. 84975, July 5, 1989) The NLRC is vested with authority to look into the correctness of the execution of the decision and to consider supervening events that may affect such execution. Where the execution is not in harmony with the judgment which gives it life and exceeds it, it has pro tanto no validity. To maintain otherwise would be to ignore the constitutional provision against depriving a person of his property without due process of law. (SGS Far East Ltd. v. NLRC, G.R. No. 123948, Feb. 12, 1998) Note: Although the decision of the Labor Arbiter has become final, the correctness of the executionof the decisionmay be appealedto and reviewedby the NLRC.
UST GOLDEN NOTES 2010 Q: What are the remedies available to a third party whose property is being levied upon in enforcing a decision in a labor case? A: The third party may avail himself of alternative remedies cumulatively, and one will not preclude the third party from availing himself of the other alternative remedies in the event he failed in the remedy first availed of: 1. File a third party claim with the sheriff of the Labor Arbiter, and 2. If the third party claim ildeniei1, the third party may appeal the denial to the NLRC. . Even if a third party claim was denied, a third party may still file a proper action with a competent court to recover ownership of the property illegally seized by the sheriff. (Yupangco Cotton Mills v. NLRC, G.R. No. 126322, Jan. 16, 2002) Q: Can the RTCissue an injunction against the NLRC? A: Generally, no court has the power to interfere by injunction with judgments of another court with concurrent/coordinate jurisdiction. However, the general rule applies only when no third-party complaint is involved. Therefore, if a property under levy does not belong to the judgment debtor in the NLRC case, it could not be validly levied upon by the sheriff for the satisfaction of the judgment therein. If the third-party claimant does not involve nor grows out of a labor dispute, a separate action for injunctive relief against such levy may be maintained in court. (Co Tuan et al. v. NLRC, G.R. No. 117232, April
Academics Committee Chairperson: Abraham D, Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for .Admin & Finance: .AissaCeline H. Luna Vice-Chair for Layout & Design: Loise Rae G. Naval
22, 1998) Labor Law Committee SlIl?JectHead' Lester Jay Alan E. Flores II Assistant SlIl?JectHead' Domingo B. Diviva V Members:
Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee J emuel Paolo M. Lobo Andrew W, Montesa Maria Maica Angelika Roman
Ur~IVERS!TY
OF SANTO
Pacu[tad
TOMAS
de rDerecfio Civil
A..4l ••••
~.
'\(\iJV
203
DISPUTE SETTLEMENT AND REMEDIES: BUREAU OF LABOR RELATIONS ,
BUREAU OF l.ABOR
RELATIONS
7.
: ART. 226. BUREAU OF LABOR RELATIONS : . (BLR). " Q: What jurisdiction
is covered and functions?
by
the
8. c ••
BLR's 9.
.
A: The BLR no longer handles "all labor management disputes"; rather its functions and jurisdiction are largely confined to: 1. Union matters 2. Collective bargaining registry and 3. Labor education.
10. 11. 12.
Note: Jurisdiction over labor management problems or disputes is also exercised by other offices: 1. DOLE Regional Offices 2. Office of the Secretary of Labor 3. NLRC 4. POEA 5. OWWA 6. SSS-ECC 7. RTWPB B. NWPC Regular courts over intra-corporate 9. disputes.
13.
Q: Who is a mediator-arbiter? A: An officer in the Regional Office or Bureau authorized to hear, conciliate and decide representation cases or assist in the disposition of intra or inter-union disputes.
Q: What kinds
of cases
fall within
BLR's
jurisdiction?
Q: What is covered by the phrase related labor relations disputes"?
A:
of inter/intra-union
disputes?
Any conflict between: a. A labor union and the employer (Er); or b. A labor union and a group that is not a labor organization (LO); or c. A labor union and an individual who is not a member of such union
2.
Cancellation of registration of unions and worker's associations filed by individual/s other than its members, or group that is not a LO.
3.
A petition for Interpleader involving labor relations. (Sec. 2, Rule XI, Book V, IRR as amended by D.O. 40-F-03)
A: They shall include: 1. Conduct or nullification of election of 2. 3. 4. 5. 6.
union and workers' association officers Audit!accounts examination of union or workers' association funds Deregistration of collective bargaining agreements (CBAs) Validitylinvalidity of union affiliation or disaffiliation Validity/invalidity of acceptance/ nonacceptance for union membership Validity/invalidity of voluntary recognition .
"other
1.
A: The BLR has original and exclusive jurisdiction over: 1. Inter-union disputes 2. Intra-union disputes 3. Other related labor relations disputes
Q: What is the coverage
Opposition to application for union or eBA registration Violations of or disagreements over any provision of the constitution and by-laws of union or workers' association Disagreements' over chartering or registration of labor organizations or the registration of CBAs; Violations of the rights and conditions of membership in a union or workers' association; Violations of the rights of legitimate labor organizations (LLO), except interpretation of CBAs; Validity/invalidity of impeachment! expulSion/suspension or any disciplinary action meted against any officer and member, including those arising from non-compliance with the reportorial requirements under Rule V; Such other disputes or conflicts involving the rights to selforganization, union membership and CBa. Between and among LLO and b. Between and among members of a union or workers' association. (Sec. 1, Rule XI, Book V, IRR as amended by D.O. 40-F-03)
Q: Who involving
may file a complaint or petition intrafinter-unlon disputes?
A: A legitimate
labor organization or members. (Sec. 5, Rule XI, D.O. 40-03)
its
UST GOLDEN NOTES 2010 Q: What if the membership?
issue
involves
Q: What is the extent of the Bureau Labor Relations (BLRs) authority?
the entire
A: The complaint must be signed by at least 30% of the entire membership of the union.
Q: What if the issue
involves
A:
1.
It may hold a referendum election among the members of a union for the purpose of determining whether or not they desire to be affiliated with a federation.
2.
But the BLR has no authority to:
a member
only? A: Only the affected member may file the complaint. (Sec. 5, Rule XI, D.O. 40-03)
a. Note: GR: Redress must first be sought within the union itself in accordance with its constitution and by-laws XPN: 1. Futility of intra-union remedies; 2. Improper expulsion procedure; 3. Undue delay in appeal as to constitute substantial injustice; 4. The action is for damages; 5. Lack of jurisdiction of the investigating body; action for the administrative agency is patently illegal, arbitrary and oppressive; 6. Issue is purely a question of law; 7. Where the administrative agency had already prejudged the case; and 8. Where the administrative agency was practically given the opportunity to act on the case but it did not.
Q: May a decision dispute
in an inter/intra-union be appealed from? .
b.
Order a referendum among union members to decide whether to expel or suspend union officers. Forward a case to the Trade Union Congress of the Philippines for arbitration and decision.
Q: Is Katarungang to labor disputes?
Pambarangay
applicable
A: No. Art. 226 of the LC grants original and exclusive jurisdiction over the conciliation and mediation of disputes grievances or problems in the regional offices of the DOLE. It is the Bureau and its divisions (now the NCMB) and not the Barangay Lupong Tagapamayapa which are vested by law with original and exclusive authority to conduct conciliation and mediation proceedings on labor controversies before endorsement to the appropriate labor arbiter for adjudication. Note: ConCiliation-Mediation is now done by the NCMB, not Bureau Labor Relations.
A: Yes. Q: Within what period mayan decision of the med-arbiter director in an inter/intra-union filed?
appeal to a or regional dispute be
Q: What are the administrative functions the Bureau Labor Relations (BLR)?
of
A:
A: The decision may be appealed by any of the parties within 10 days from receipt thereof. (Sec. 16, Rule XI, D.O. 40-03) Q: To whom is the decision
of
1.
Regulation of the labor unions
2.
Keeping the registry of labor unions
3.
Maintenance
4.
Maintenance of a file of all settlements or final decisions of the SC, CA, NLRC and other agencies on labor disputes
of a file of the CBA
appealable?
A: The decision is appealable to the: 1. Bureau of Labor Relations (BLR): if the case originated from the MedArbiter or Regional Director; 2. SLE: if the case originated from the BLR.
UNIVERSITY
OF SANTO TOMAS IJ'acu{taa de lDerecfio CiviC
~.!
205
DISPUTE SETTLEMENT AND REMEDIES: BUREAU OF LABOR RELATIONS Q: What
are the effects of filing or pendency of inter/intra-union dispute and other labor relations disputes?
A:
1.
The rights relationships and obligations of the party-litigants against each other and other partiesin-interest prior to the institution of the petition shall continue to remain during the pendency of the petition and until the date of the decision rendered therein. Thereafter, the rights, relationships and obligations of the party-litigants against each other and other parties-in-interest shall be governed by the decision ordered.
2.
The filing or pendency of any inter/intra union disputes is not a prejudicial question to any petition for certification election, hence it shall not be a ground for the dismissal of a petition for certification of election or suspension of the proceedings for the certification of election. (Sec. 3, Rule XI, DO 40-03)
Q: State the rules on appeal in intra/interunion disputes.
A:
1.
Formal Requirements
a. b.
2. 3.
Under oath Consist of a memorandum of appeal. c. Based on either' of the following grounds: i. Grave abuse of discretion ii. Gross violation of the rules iii. With supporting arguments and evidence Period - within 10 days from receipt of decision. To whom appealable
a.
4.
206
BLR - if the case originated from the Med-Arbiter/Regional Director. b. SLE - if the case originated from the BLR. Where Filed - Regional Office or to the BLR, where the complaint originated (records are transmitted to the BLR or Sec. within 24 hours from the receipt of the memorandum of appeal). (Rule XI, D. O. 40-03)
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: J eannie A. Laurentino Vice-Chair for .Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layout & Destgn: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
UST GOLDEN NOTES 2010
r
ART. 227. COMPROMISE
Q: What is a compromise
DOLE can be repudiated by the parties by going to the Commission.
AGREEMENT agreement? b.
A: It is a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced. Q: May labor standards settled by compromise?
violations
GR: a compromise agreement entered into with the assistance. of DOLE can no longer be repudiated, it becomes final and binding upon the parties upon execution.
be
XPN: i.
A: Yes. Q: What are the substantial a compromise agreement?
requirements
of ii.
A: The compromise agreement must: 1. Be freely entered into 2. Not be contrary to law, morals or public. policy 3. Be reasonable 4. Be approved by the authority before whom the case is pending Q: What are the formal compromise agreements standards cases?
requirements of involving labor -
A: It must be: 1. Reduced into writing 2. Signed in the presence of the RD or his duly authorized representative. Note: Although generally, a compromise, once approved by final .orders of the court' has the force of res judicata between the parties and should not be disturbed except for vices of consent or forgery. A compromise is basically a contract perfected by mere consent. Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. However, a compromise agreement is not valid when a party in the case has not signed the same or when someone signs for and in behalf of such party without authority to do so. (Golden Donuts v. NLRC, G.R. No. 113666-68, Jan. 19,2000)
Q: What
is
the distinction between a compromise agreement with assistance of DOLE and that entered into without assistance of the same?
A: 1.
As to validity and binding effect - the compromise agreement is valid and binding upon the parties on both instances.
2. a.
As to repudiation: A compromise agreement entered into without the assistance of
In case of non-compliance with the compromise agreement If there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion.
Q: May ULP compromise?
cases
be
subject
to
A: No. Note: Dire necessity is not an acceptable ground for annulling a compromise agreement, especially since it has not been shown that the employees had been forced to execute them (Ve/oso v. DOLE, GR. No. 87297, Aug.S, 1991). Q: When maya
compromise
be effected?
A: At any stage of the proceedings and even when there is already a final and executory judgment. (Art. 2040, Nee) .Q: Can the parties enter into a compromise when the final judgment is already in the process of execution? A: No. It cannot be entered into when the final judgment is already in the process of execution. (Jesalva, et al. v. Bautista, G.R. Nos. L-11928-11930, Mar. 24,1959)
Q:
What compromise
are the agreement
options when is violated?
a
A: Two options: 1. Enforce compromise by writ of execution; or 2. Regard it as rescinded and insist upon original demand. Q: Can there be waiver of reinstatement? A: Yes. waiver for personal personally
UNIVERSiTY
OF
PacuCtad
Like waivers of money claims, a reinstatement may be regarded as a right which must be exercised by the workers themselves. SANTO
TOMAS
de
207
(~"':~.
.•
-
DISPUTE
SETTLEMENT
AND REMEDIES:
Note: Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and represents a reasonablesettlement,it is bindingon the parties and may not later be disownedsimply becauseof a change of mind. It is only where there is clear proof that the waiver was wangled from an unsuspectingor gullible person, or the terms of settlement are unconscionableon its face, that the law will step in to annul the questionable transaction.But where it is shownthat the person making the waiver did so voluntarily, with full understandingof what he was doing, and the consideration for the quitclaim is credible and reasonable,the transaction must be recognized as a valid and binding undertaking, as in this case. (Periquet v. NLRC, GR No. 91298, June
COMPROMISE
'-.
hardly expected from someone who voluntarily consented to his dismissal, thus, completely negating the conclusion that petitioner's consent was given freely and bolstering the claim that the same was obtained through force and intimidation. (Agoy v. NLRC, G.R. No. 112096, Jan. 30, 1996)
Q: What are the requirements quitclaim?
A:
1. 2.
22, 1990)
3. Q: Agoy alleged that he applied for overseas employment as civil engineer with private respondent. Agoy was deployed by Eureka Management to Jubail, SaUdi, mistakenly under the category of "Foreman". Agoy, having been accepted by the Royal Commission to work only as a "Road Foreman", was later asked by respondent AI-Khodari to sign a new contract at a reduced salary rate or suffer tennination and repatriation. Agoy's refusal to sign the new contract eventually resulted in his dismissal from employment. After being paid the remaining balance of his salary, Agoy executed a Final Settlement releasing AI-Khodari from all claims and liabilities. Agoy was finally repatriated to Manila. Thereafter, he filed a complaint for illegal dismissal with claims for payment of salary for the unexpired portion of his contract, salary differential and damages against respondents. Is Agoy's action barred by the Final Settlement executed by him? A: No. In our jurisprudence, quitclaims, waivers or releases are looked upon with disfavor, particularly those executed by employees who are inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities. The fact that petitioner signed his notice of termination and failed to make any outright objection thereto did not altogether mean voluntariness on his part. Neither did the execution of a final settlement and receipt of the amounts agreed upon foreclose his right to pursue a legitimate claim for illegal dismissal. Moreover, it is noteworthy that petitioner lost no time in immediately pursuing his claim against private respondents by filing his complaint for illegal dismissal a month after being repatriated on April 2, 1990. This is
203
AGREEMENTS
of a valid
The quitclaim must be voluntarily arrived at by the parties It must be:with the assistance of the BLR or any representative of the. DOLE The consideration must be reasonable (required only when entered without the assistance of DOLE)
Q: Warlito was a cook aboard the vessel plying overseas. He filed a complaint for unpaid money claims and damages against the manning agency. During the pendency of the case, Warlito, against the advice of his counsel, entered into a compromise agreement with petitioners. He sig'ned a Quitclaim and Release subscribed and sworn to before the Labor Arbiter. What is the effect of the compromise agreement entered into without the assistance of the counsel? A: Art. 227 of the Labor Code provides: Any compromise settlement, including those' involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Dep't of Labor, shall be final and binding upon the parties. The NLRC or any court shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation or coercion. In the case at bar, that Warlito. was not assisted by his counsel when he entered into the compromise does not render it null and void. All that is required for the compromise to be deemed volu.ntarilyentered into is personal and specific individual consent. Contrary to Warlito's contention, the employees counsel need not be present at the time of the signing of the compromise agreement. (J-PHIL Marine, Inc. VS. NLRC, G.R. Aug. 11, 2008, J. Carpio-Morales)
No.
175366,
UST GOLDEN NOTES 2010 Q: Complainants
were members of the KMDD-CFW, a union in the petitioner company, whose CSA with the corporation expired. During the freedom period, the parties were able to agree on the rules regarding the negotiation. On the date of the negotiation, petitioner was late, thus prompting the union panel to walkout. Petitioner company sent a letter of apology but the union answered that it was declaring the negotiation deadlock. Hence, the union struck. As a result;;) petitipner company filed a complaint for injunction and for the dismissal the union officers and members who participated. In the process, a compromise agreement was entered into by the KMDD-CFW and petitioner which provides that execution of the said Agreement constitutes a general waiver or release/quitclaim by them and for payment of separation pay to the strikers. Is the compromise agreement entered into by the union binding to its members? A: No. Even if a clear majority of the union members agreed to a settlement with the employer, the union has no authority to compromise the individual claims of members who did not consent to such settlement. In the case at bar, minority union members did not authorize the union to compromise their individual claims. Absent a showing of the union's special authority to compromise the individual claims of private respondents for reinstatement and back wages, there is no valid waiver of the aforesaid rights. Thus, money claims due to laborers cannot be the object of settlement or compromise effected by a union or counsel without the specific individual consent of each laborer concerned. The beneficiaries are the individual complainants themselves. The union to which they belong can only assist them but cannot decide for them. (Go/den Donuts v. NLRC, G.R. No. 113666-68, Jan. 19,2000)
ART. 254 NO INJUNCTION
!
RULE
Q: Can temporary or permanent injunction or restraining order be issued in any case involving the growing labor dispute?
A:
XPN: Those provided under Art. 218 (Powers of the NLRC) and Art. 264 (Prohibited Activities) of the Labor Code. Note: Regular courts have no jurisdiction to hear and decide questions which arise and are incidental to the enforcement of decisions, orders or awards rendered in labor cases by appropriate officers and tribunals of the DOLE. Corollary, any controversy in the execution of the judgment shall be referred to the tribunal which issued the writ of execution since it has the inherent power to control its own processes in order to enforce its judgments and orders. (Nova v. Judge Dames, AM. No. RTJ-00-1S74, Mar. 28, 2001)
Q: What is the rationale
for the prohibition
on Injunction? A: Injunction contradicts preference for voluntary settlement.
the constitutional modes of dispute
Q: Who are those entities authorized to issue injunction orders or restraining orders?
A:
1.
2. 3.
NLRC SLE The President
Q: Can the NLRC entertain an action for injunction even without a complaint for illegal dismissal filed before the Labor Arbiter (LA)? A: No. It is an essential requirement that there must first be a labor dispute between the contending parties before the LA. The power of the NLRC to issue an injunctive writ originates from "any labor dispute" upon application by a party thereof, which application if not granted "may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party." (PAL v. NLRC, GR No. 120567, Mar.20, 1998) Note: Labor dispute includes controversy or matter concerning terms and conditions of employment, or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment regardless of whether the disputants stand in the proximate relation of Er and Ee. (Art. 212[1])
GR: No temporary or permanent injunction Orrestraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity.
UNIVERSITY
OF
Pacu(taa
SANTO
TOMAS
ae Derecho
CiviC
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''1'
DISPUTE SETTLEMENT AND REMEDIES: COMPROMISE AGREEMENTS Q: Can regular courts
issue injunctions?
A: GR: Regular courts are without authority to issue injunction orders in cases involving or originating from labor disputes even if the complaint was filed by non-striking employees and the employer was made a respondent. XPN: In cases of strikes/picketing, third parties or innocent bystanders may secure a court (regular court) injunction to protect their rights. (PAFLU v. Claribel, GR. No. L25171, Aug. 17, 1967) Note: The "by-stander" establishment which is entitled to enjoin a labor strike or picket must be entirely different from, without any connection whatsoever to, either party to the dispute.
Academics Committee Chairperson: Abraham D. Genuine II Vice-Chair for Academics: Jeannie i1.. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head: Lester Jay Alan E. Flores II Assistant SlIo/ect Head: Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee J emuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
210
UST GOLDEN NOTES 2010
r
ART. 260. GRIEVANCE MACHINERY VOLUNTARY ARBITRATION
:
Q: How are cases arising Interpretation or implementation handled and disposed?
AND
Note: Although Art. 260 of the Labor Code mentions "parties to a CSA", it does not mean that a grievance machinery cannot be set up in a CBA-Iess enterprise. In any workplace where grievance can arise, a grievance machinery can be established.
from the of CBAs
A: They are disposed through the grievance machinery and if not resolved by the grievance machinery, through voluntary arbitration. (1995 Bar Question)
Q: What is grievance
A: It refers to the internal rules of procedure established by the parties in their CSA which usually consists of successive steps starting at the level of the complainant and his immediate supervisor and ending, when necessary, at the level of the top union and company officials and with voluntary arbitration as the terminal step.
Q: What is grievance? .:\
A: It is any question by either the ~~PIOy~r or the union regarding the interpretation or implementation of any provision of the CSA or interpretation or enforcement of company personnel policies. (Sec. 1 lui, Rule I, Book V, IRR) Q: What provrsrons include in a CBA?
must
the
Q: What will happen to grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of their submission?
parties
A: They shall automatically be referred to voluntary arbitration prescribed in the CSA. (Art. 260, par. 2, Labor Code)
A: 1. 2.
Provisions that will ensure the mutual observance of its terms and conditions. A machinery for adjustment and resolution of grievances arisinq from the: a. Interpretation/implementation of the CSA and b. Interpretation! enforcement of company personnel policies. (Art. 260, par. 1).
Q: What is grievance
Either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration (VA): 1. If the party upon whom such notice is served fails/refuses to respond within 7 days from receipt, VA/panel designated in the CSA shall commence arbitration proceedings 2. If the CSA does not designate or if the parties failed to name the VA/panel, the regional branch of NCMS appoints VA/panel
machinery?
A: It refers to the mechanism for the adjustment and resolution of grievances arising from the interpretation or enforcement of company personnel policies. It is part of the continuing process of collective bargaining (CS).
Q: What is voluntary
is
grievance
machinery
Q: What compulsory
A: 1. 2.
Agreement by the parties A grievance committee - composed of at least 2 representatives each from the members of the bargaining unit and the employer, unless otherwise agreed upon by the parties - shall be created within 10 days from the signing of CSA
arbitration?
A: It refers to the mode of settling labor management disputes by which the parties select a competent, trained and impartial third person who shall decide on the merits of the case and whose decision is final and executory. (Sec. 1 {d}, Rule II, NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings, Oct. 15, 2004)
Note: It is a must provision in any CBA and no collective agreement can be registered in the absence of such procedure. Q: How established?
procedure?
is the difference between and voluntary arbitration?
A: Compulsory arbitration is a system whereby the parties to a dispute are compelled by the government to forego their right to strike and are compelled to accept the resolution of their dispute through arbitration by a 3'd party. The essence of arbitration remains since a resolution of a dispute is arrived at by resort to
UNIVERSiTY
OF
SANTO
TOMAS
fF"acu{taa de Vereclio
Civi]
t!" .•.•..••
~.
211
DISPUTE SETTLEMENT AND REMEDIES: 'GRIEVANCE MACHINERY & VOLUNTARY ARBITRATION a disinterested third party whose decision is final and binding on the parties, but in compulsory arbitration, such a third party is normally appointed by the government. Under voluntary arbitration, on the other hand, referral of a dispute by the parties is made, pursuant to a voluntary arbitration clause in .their collective agreement, to an impartial third person for a final and binding resolution. Ideally, arbitration awards are supposed to be complied with by both parties without delay, such that once an award has been rendered by an arbitrator, nothing is left to be done by both parties but to comply with the same. After all, they are presumed to have freely chosen arbitration as the mode of settlement for that particular dispute. Pursuant thereto, they have chosen a mutually acceptable arbitrator who shall hear and decide their case. Above all, they have mutually agreed to be bound by said arbitrator's decision (Luzon Dev't Bank v. Ass'n of Luzon Dev't Bank Ees, GR. No. 120319, Oct. 6, 1995)
Q:
What is the basis for voluntary arbitration and its rationale? A: 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 (Sec. 3, Art. XIII, 1987 Constitution).
Q: Who Is a voluntary
arbitrator
(VA)?
A: 1. 2.
3.
4.
Any person accredited by the NCMB as such Any person named or designated in the CSA by the parties to act as their VA One chosen with or without the assistance of the NCMS, pursuant to a selection procedure agreed upon in the CBA Any official that may be authorized by the SLE to act as VA upon the written request and agreement of the parties to a labor dispute. (Art. 212 (nJ)
Q: What
are the
powers
of a voluntary
arbitrator?
A: 1. 2. 3.
212
Hold hearings Receive evidence Take whatever action necessary to resolve the dispute including efforts to
effect a voluntary settlement between parties. (Art. 262-A) Q: How is arbitration
initiated?
A: 1.
2.
Submission agreement - Where the parties define the disputes to be resolved Demand notice - Invoking collective agreement arbitration clause
Q: How is a voluntary chosen?
arbitrator
(VA)fpanel
A: 1.
2.
The parties in a CBA shall desiqnate in advance a VA/panel, preferably from the listing of qualified VAs duly accredited by the NCMB, or Include in the agreement a procedure for the selection of such VA or panel of VAs, preferably from the listing of qualified VAs duly accredited by the NCMB. (Art. 260, par.3)
Q: Who will deSignate the voluntary arbitrator (VA)/panel in case the parties fail to select one? A: It is the NCMB that shall deslqnate the VA/panel based on the selection procedure provided by the CBA. (Manila Central Line Free Workers Union v. Manila Central Line Corp., G.R. No. 109383, June 15, 1998) Q: May Labor Arbiters (LA) be deSignated as voluntary arbitrators (VA)? A: Yes. There is nothing in the law that prohibits LAs from also acting as VAs as long as the parties agree to have him hear and decide their dispute. (Manila Central Line Free Workers Union v. Manila Central Line Corp., G.R. No. 109383, June 15, 1998)
UST GOLDEN NOTES 2010 r i
of the courts. Such matters on fact and law a e conclusive.
ART.261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORS ART.262. JURISDICTION OVER OTHER . '. LABOR DISPUTES Q: What cases are within VA?
the jurisdiction
of
A: Original and exclusive jurisdiction over: 1. All unresolved grievances arisinq from the: a. Implementation or ~terpr~tation of the CSA b. Interpretation or enforcement of company personnel policies
2.
Wage distortion issues arising from the application of any wage orders in organized establishments
3.
Those arising from interpretation and implementation of productivity incentive programs under RA 6971
4.
Violations of CBA provisions which are not gross in character are no longer treated as ULp'and shall be resolved as grievances under the CBA Note: Gross violation of CSA provisions shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement.
5.
Any other labor disputes upon agreement by -the parties including ULP and bargaining deadlock. (Art.
Q: Are both the employer and the bargaining representative of the employees required to go through the grievance machinery in case a grievance arises? A: Yes, because it is but logical, just and equitable that whoever is aggrieved should initiate settlement of grievance through the grievance machinery. To impose compulsory procedure on employers alone would be oppressive of capital.
Q: Who has jurisdiction over actual termination disputes and complaints for illegal dismissal filed by workers pursuant to the union security clause? A: The Labor Arbiter and not the grievance machinery. Q: What voluntary
Q: Are decisions
A:
GR: after copy (Art.
NLRC and DOLE entertain disputes/grievances/matters under the exclusive and original jurisdiction of the voluntary arbitrator?
of voluntary
arbitrators
Decisions of VA are final and execut 10 calendar days from receipt of e of the award or decision by the parties. 262-A)
XPN:
1.
Appeal to the CA via Rule 43 of e Rules of Court within 15 days fro the date of receipt of VA's decisi (Luzon Dev't Bank v. Ass'n of Luz n Dev't Bank Ee's, G.R. No. 120319.
A: No. They must immediately dispose and refer the same to the grievance machinery or voluntary arbitration provided in the CSA
is the effect of the award of voluntary arbitrator (VA)? A: The decision or award of the VA acting within the scope of its authority shall determine the rights of the parties and their decisions shall have the same legal effects as judgment
of a
(VAs) appealable?
Q: May the
Q: What
of the power
A: Arbitrators by the nature of their functio s, act in a quasi-judicial capacity (BP 129, as amended by R.A. 9702); where a question ' law is involved or there is abuse of discretio courts will not hesitate to pass upon review their acts.
262)
The parties may choose to submit the dispute to voluntary arbitration proceedings before or at the stage of compulsory arbitration proceedings.
is the nature arbitrator?
Oct. 6, 1995) 2.
If decision of CA is adverse to a party, appeal to the SC via Rule 45 on pure questions of law.
Note: A VA by the nature of her functions acts i quasi-judicial capacity. There is no reason .' the VA's decisions involving interpretation of lav, should be beyond the SC's review. Administrati e officials are presumed to act in accordance w . law and yet the SC will not hesitate to pass up their work where a question of law is involved o' where a showing of abuse of authority discretion in their official acts is properly raised in petitions for certiorari. (Continental Marble
UNIVERSITY
OF
Pacu{tad
SANTO
TOMAS
de C])erecfzo Civil
~;;')
.~.
213
DISPUTE SETTLEMENT AND REMEDIES: GRIEVANCE MACHINERY & VOLUNTARY ARBITRATION Corporation v. NLRC, G.R. No. L-43825, May 9, 1988)
Does the case?
Q: PSSLU had an existing CBA with Sanyo Phils., Inc. which contains a union security clause which provides that: "all members of the union covered by this agreement must retain their membership in good standing in the union as condition of his I her continued employment with the company." On account of anti-union activities, disloyalty and for joining another union, PSSLU expelled 12 employees (Ees) from the Union. As a result, PSSLU recommended the dismissal of said Ees pursuant to the union security clause. Sanyo approved the recommendation and considered the said Ees dismissed. Thereafter, the dismissed Ees filed with the Arbitration Branch of the NLRC a complaint for illegal dismissal.
A: Yes, the LA has jurisdiction. The dismissal of X does not call for the interpretation or enforcement of company personnel policies but is a termination dispute which comes under the jurisdiction of the LA. The dismissal of X is not an unresolved grievance. Neither does it pertain to interpretation of company personnel policy. (Maneja v. NLRC, G.R. No. 124013, June 5, 1998)
Does the jurisdiction
voluntary arbitrator over the case?
(VA)
have
A: No, the VA has no jurisdiction over the case. Although the dismissal of the Ees concerned was made pursuant to the union security clause provided in the CBA, there was no dispute whatsoever between PSSLU and Sanyo as regards the interpretation or implementation of the said union security clause. Both PSSLU and Sanyo are united and have come to an agreement regarding the dismissal of the Ees concerned. Thus there is no grievance between the union and management which could be brought to the grievance machinery. The dispute is between PSSLU and Sanyo, on the one hand, and the dismissed union members, on the other hand. The dispute therefore, does not involve the interpretation or implementation of a CBA. (Sanyo Philippines Workers Union-PSSLU v. Canizares, G.R. No. 101619, July 8, 1992) Q: X was employed as telephone operator of Manila Midtown Hotel. She was dismissed from her employment for committing the following violations of offenses subject to disciplinary actions, namely: falsifying official documents and culpable carelessness-negligence or failure to follow specific instructions or established procedures. X then filed a complaint for illegal dismissal with the Arbitration branch of the NLRC. The Hotel challenged the jurisdiction of the Labor Arbitrator (LA) on the ground that the case falls within the jurisdictional ambit of the grievance procedure and voluntary arbitration under the CBA.
214
LA have
jurisdiction
over
the
Q: Sime Darby Salaried Employees (Ees) Association-ALU (SDSEA-ALU) wrote petitioner Sime Darby Pilipinas (SOP) demanding the implementation of a performance bonus provision identical to the one contained in their own CBA with SOP. Subsequently, SOP called both respondent SOEA and SOEA-ALU to a meeting wherein the former explained that it was unable to grant the performance bonus. In a conciliation meeting, both parties agreed to submit their dispute to voluntary arbitration. Their agreement to arbitrate stated, among other things, that they were "submitting the issue of performance bonus to voluntary arbitration .•• Does the voluntary arbitrator (VA) have the power to pass upon not only the question of whether to grant the performance bonus or not but also to determine the amount thereof? A: Yes, in their agreement to arbitrate, the parties submitted to the VA "the issue of performance bonus." The language of the agreement to arbitrate may be seen to be quite cryptic. There is no indication at all that the parties to the arbitration agreement regarded "the issue of performance bonus" as a twotiered issue, only one tier of which was being submitted to arbitration. Possibly, Sime Darby's counsel considered that issue as having dual aspects and intended in his own mind to submit only one of those aspects to the VA, if he did, however, he failed to reflect his thinking and intent in the arbitration agreement. (Sime Darby Phils. v. Magsalin, G.R. No. 90426, Dec. 15, 1989)
UST GOLDEN NOTES 2010 Q: Apalisok, production chief for RPN Station, was dismissed due to her al/eged hostile, arrogant, disrespectful, and defiant behavior towards the Station Manager. She informed RPN that she is waiving her right to resolve her case through the grievance machinery as provided in the CBA. The voluntary arbitrator (VA) resolved the case in the employees (Ees) favor. On appeal, the CA ruled in favor of RPN because it considered the.1waiver of petitioner to file her complaint"before the grievance machinery as a relinquishment of her right to avail herself of the aid of the VA. The CA said that the waiver had the effect of resolving an otherwise unresolved grievance, thus the decision of the VA should be set aside for lack of jurisdiction. Is the ruling of the CA correct? A: No. Art. 262 of the Labor Code provides that upon agreement of the parties, the VA can hear and decide all other labor disputes. Contrary to the finding of the CA, voluntary arbitration as a mode of settling- the dispute was not forced upon respondents. Both parties indeed agreed to submit the issue of validity of the dismissal of petitioner to the jurisdiction of the VA by the Submission Agreement duly signed by their respective counsels. The VA had jurisdiction over the parties' controversy. The Ees waiver of her option to submit her case to grievance machinery did not amount to relinquishing her right to avail herself of voluntary arbitration. (Apa/isok v. RPN, G.R. No. 138094, May 29, 2003, J. Carpio-Morales)
Academics Committee Chairperson: Abraham D. Genuine I. Vice-Chair far Academics: Jeannie A. Laurentino Via-Char far Admin & Finance: Aissa Celine H. LUrl2 Vice-Chair far Layout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II .Assistant SlIo/ect Head' Domingo B. Diviva \-
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee J emuel Paolo M. Lobo Andrew \'1;'.Montesa Maria Maica Angelika Roman
UNIVERSITY
OF SANTO
'Facu[tad
TOMAS
de CDerecfio Civil
\;;;:/
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215
TRANSITORY AND FINAL PROVISIONS ,
TRANSITORY
AND FINAL PROVISIONS
Q: What are the penalties provided Art. 288 of the Labor Code?
A:
for in
GR: Any violation of the provisions of the LC declared to be unlawful or penal in nature shall be punished with: 1. Fine - Not less than P1, 000.00 nor more than P10, 000.00; or 2. Imprisonment - Not less 3 months or more than 3 years, or 3.
Both fine and imprisonment discretion of the court.
4.
In addition to such penalty, any alien found guilty shall be summarily deported upon the completion of service of sentence.
5.
Workmen's compensation claims accruing prior to the effectivity of the LC and between Nov. 1, 1974 - Dec. 31, 1974 shall be filed not later than Mar. 31, 1975 before the appropriate regional offices of the Department of Labor. (Art. 291)
6.
Illegal dismissal cases - 4 years. It commences to run from the date of formal dismissal. (Mendoza v. NLRC, G.R. No. 122481, Mar.5, 1998)
at the
XPN: As otherwise provided in the LC, or the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing CBA. Q: Which court criminal offense Code?
from the date of effectivity, in accordance with IRR; otherwise, they shall be forever barred.
has jurisdiction over any punished under the Labor
Q: What is the rule on institution claims? A: Money appropriate action that courts. (Art.
of money
claims shall be filed before the entity independent of the criminal may be instituted in the proper 292)
Pending the final determination of money claims cases filed, no civil action ariSing from the same cause of action shall be filed with any court. This provision shall not apply to employees compensation cases.
A: It shall be under the concurrent jurisdiction of the Municipal or City Court and the RTC. Q: Who are liable when the offenses are committed by persons other than natural persons? A: If the offense is committed by a corporation, trust, firm, partnership, association, or any other entity - the penalty is imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity. Q: Give the rules as regards prescriptive period provided for in Labor Code (LC).
A:
the the
1.
Offenses penalized under the LC - 3 years
2.
ULP - one (1) year from accrual of such ULP; otherwise, forever barred. (Art. 290);
3.
Money claims - 3 years from the time the cause of action accrued; otherwise forever barred.
4.
All money claims accruing prior to the effectivity of the LC - within 1 year
216
&
. ......,.~.~:.
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: ] eannie A. Laurentino Vice-Cbair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layo«: & Design: Loise Rae G. Naval
Labor Law Committee Subject Head: Lester] ay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
UST GOLDEN NOTES 2010 SOCIAL LEGISLATION Q: What is Social Legislation? A: It consists of statutes, regulations and jurisprudence that afford protection to labor, especially to working women and minors, and is in full accord with the constitutional provisions on the promotion of social justice to insure the well being and economic security of all the people.
The SC ruled in Jackson BuildingCondominium Corp. v. NLRC, GR. No. 112546, March 13,1996, interpreting P.D.851, as follows: Ees are entitled to the 13th month pay benefits regardless of their designation and irrespective of the method by which their wages are paid. (1998 Bar Question) Note: An Er, may give to his Ees % of the required ia" Month pay before the opening of the regular school yr. and the other half on or before the Dec. 24. th
Q: Is 13 Month
Q: What equivalent?
is
13th
month
payor
its
A: Additional income based on wage required by P.O. 851 which is equivalent to 1/12 of the total basic salary earned by an employee (Ee) within a calendar year.
A: Yes. It is a statutory obligation, granted to covered Ees, hence, demandable as a matter of right. (Sec 1, P.O. 851) Q: In what form is the 13th month or given?
3. 4.
A:
Note: It must always be in the form of a legal tender. Q: What are not proper Month pay?
A:
1.
substitutes
for 13th
Free rice Electricity Cash and stock dividends COLA (Sec. 3)
2.
Provided, that they have worked for at least 1 month, during a calendar year. (Revised Guidelines on the Implementation of the 13th Month Pay Law) XPN: 1. 2. 3. 4.
Christmas Bonus Midyear Bonus Profit Sharing Scheme Other Cash bonuses amounting to not less than 1/12 of its basic salary
2.
by P.O. 851?
GR: All rank-and-file Ees regardless of the amount of basic salary that they receive in a month, if their employers (Er) are not otherwise exempted from paying the 13th month pay. Such Ees are entitled to the th 13 month pay regardless of said designation of employment status, and irrespective of the method by which their wages are paid.
pay paid
A: It is given in the form of: 1.
Q: Who are covered
Pay legally demandable?
3.
4.
Q: Concepcion
Government Ees Household helpers Ees paid purely on commission basis Ees already receiving 13th month pay
Q: What would be your advice to your client, a manufacturing company, who asks for your legal opinion on whether or not the 13th Month Pay Law covers a 'casual Ee who is paid a daily wage? A: I will advise the manufacturing company to pay the casual Ee 13th Month Pay if such casual Ee has worked for at least 1 month during a calendar year. The law on the 13th Month Pay provides that Ees are entitled to the benefit of said law regardless of their designation or employment status.
Textile Co. included the OT pay, night-shift differential pay, and the like in the computation of its Ees' 13th-month pay. Subsequently, with the promulgation of the decision of the SC in the case of SMC vs. Inciong (103 SCRA 139) holding that these other monetary claims should not be included in the computation of the 13th month pay, Concepcion Textile Co. sought to recover under the principle of solutio indebiti the overpayment of the Ees' 13th-month pay, by debiting against future 13th-month payments whatever excess amounts it had previously made. (1) Is the Company's action tenable? (2) With respect to the payment of the 13thmonth pay after the SMC ruling, what arrangement, if any, must the Company make in order to exclude from the 13thmonth pay all earnings and remunerations other than the basic pay?
UNIVERSiTY
OF SANTO
Pacu{tad
TOMAS
de CDerecfio Civil
'(~.
.•.
217
SOCIAL LEGISLATION: A: The Company's action is not tenable. The principle of solutio indebiti which is a civil law concept is not applicable in labor law. (Davao Fruits Corp. vs. NLRC, et el., G.R. No. 85073 August 24, 1993). After the 1981 SMC ruling, the High Court decided the case of Philippine Duplicators Inc. VS. NLRC, GR 110068, Nov. 11, 1993. Accordingly, management may undertake to exclude sick leave, vacation leave, maternity leave, premium pay for regular holiday, night differential pay and cost of living allowance. Sales commissions, however, should be included based on the settled rule as earlier enunciated in Songco VS. NLRC, G.R. No. L-50999, March 23, 1990. (1994 Bar Question)
13TH MONTH
Q: What is commission month pay?
3.
Note: However, these salary related benefits (i.e. cash equivalent of unused vacation and sick leave credits, OT, premium, night differential and holiday pay) should be included in the computation of the 13th month pay if by individual or collective agreement, company practice, or policy, the same are treated as part of the basic salary of the Ees. Salesmen's cornrmssion, comprising a predetermined percent of the selling price of the goods by each salesman are not included in the term "basic salary" for purposes of computing the 13th month pay (Philippine Duplicators, Inc. v. NLRC,[1995]) However, commissions of medical representatives are not salesmen because they did not effect any sale of article at all; additional payments partook of the nature of profit-sharing bonuses (80ie- Takeda Chemicals, Inc. v. Dela Serna, G.R. No. 92174, Dec. 10, 1993)
to 13th
1.
The salesman's commissions, comprising a pre-determined percent of the selling price of the goods sold by each salesman, were properly included in the term basic salary for purposes of computing their 13th month pay.
2.
The so called commission paid to or received by medical representatives of BoieTakeda Chemicals or by the rank and file Ees of Phil. Fuji Xerox were excluded from the term basic salary because these were paid as productivity bonuses. Such bonuses closely resemble profit sharing, payments and have no clear, direct, necessary relation to the amount of work actually done by each individual employee.
A: Basic salary shall include all remunerations or earnings paid by an Er to an Ee for services rendered but may not include: Cost-of-living allowances (COLA) Profit-sharing payments All allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary of the employee at the time of the promulgation of P.O. 851 on Dec. 16, 1975. (SMC v. Inciong, G.R. No. 80774, May 2, 1981) Commissions, if it is not an integral part of the basic salary (Phlippine Duplicators, Inc. v. NLRC, GR. No. 109455. November 11, 1993)
in relation
A:
Q: What is basic salary?
1. 2.
PAY LAw
Q: Are all Ers required Pay under P.O. 851?
A:
to pay 13th Month
GR: Yes. It applies to all Ers, XPN: 1. Distressed Ers: a. Currently incurring substantial losses or b. In the case of non-profit institutions and organizations, where their income, whether from donations, contributions, grants and other earnings from any source, has consistently declined by more than 40% of their normal income for the last 2 years, subject to the provision of Sec. 7 of P.O. 851; 2.
The Government and any of its political subdivisions, including GOCCs, except those corporations operating essentially as private subsidiaries of the Government;
3.
Ers already paying their Ees 13month payor more in a calendar year of its equivalent at the time of this issuance: 4.
Its equivalent shall include: a. Christmas bonus b. Mid-year bonus c. Profit-sharing payments and
UST GOLDEN NOTES 2010 d.
5.
It shall a. b. c.
Other cash bonuses amounting to not less than 1/12th of the basic salary but not include: cash and stock dividends, COLA all other allowances regularly enjoyed by the Ee, as well as nonmonetary benefits. ~)
Note: Ees paid a fixed or guaranteed wage plus commission are also entitleo to the mandated 13th month pay, based on their total earnings during the calendar year, i.e. on both their fixed 0 guaranteed wage and commission 2.
Those with Multiple Ers Government Ees working part time i a private enterprise, including private educational institutions, as well as Ees working in 2 or more private firms, whether full or part time basis, are entitled to the required month pay from all their private Ers regardless of their total earnings from each or all their Ers.
::
4.
Ers of household helpers and persons in the personal service of another in relation to such workers; and
5.
Ers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned.(Sec 3, P.O. 851)
ia"
3.
Private School Teachers, including faculty members of universities and colleges - entitled regardless of the number of months they teach or are paid within a year, if they have rendered service for at least 1 mont within a year.
4.
Resigned or Separated Ees - I resigned or separated from wo before the time of payment of 13c' month pay, entitled to monetary benefit in proportion to the lengt c' time he started working during r e calendar year up to the time ' resignation or termination of service (Pro-rated 13th month pay)
Q: What are the options of covered Ers?
A: 1.
2.
Pay one-half of the 13th-month pay required before the opening of the regular school year and the other half on or before the 24th day of December of every year. In any establishment where a union has been recognized or certified as the collective bargaining agent of the Ee, the periodicity or frequency of payment of the 13th month pay may be the subject of agreement.
Q: When does pro-ration of 13th Month Pay
apply?
A: GR: Pro-ration of this benefit applies 0 I in cases of resignation or separation fro work; computation should be based 0 length of service and not on the actual wage earned by the worker (Honda Phi/s. v. Samahan ng Manggagawa sa Honda, G.R. No. 145561, June 15, 2005) XPN: Ees who are paid a guaranteed minimum wage or commissions earned are entitled to 13th month pay based on total earnings. (Philippine Agricultural Commercial and Industrial Workers Union v. N~RC, G.R. No. 107994, Aug. 14, 1995)
Q: How are claims adjudicated? A: Non-payment of the 13th month pay provided by P.O. 851 and the rules of NLRC shall be treated as money claims cases. Q: Are the following Ees entitled to
month pay? a. b. c. d.
ia"
Q: Is 14 Month Pay legally demandable?
Ees who are paid by results Ees with multiple Ers Private school teachers Resigned or separated Ees
A: 1.
Ee paid by results - entitled to 13th month pay.
A: No. The granting of 14th month pay is a management prerogative and is not legally demandable. It is basically a bonus and is gratuitous in nature. (Kamaya Point Hotel v. NLRC, G.R. No. 75289, Aug. 31, 1989)
UNIVERSITY
OF SANTO
Pacu{taa
TOMAS'
ae (])erecno
(~)
ciou .~.
219
SOCIAL LEGISLATION: ANTI-SEXUAL HARRASMENT LAw
r-'~.'~1#31'i.jll!~!3~"If;Wj Q: What is the policy of the State in enacting the Anti-Sexual Harassment law? A: The State shall: 1. Value the dignity of every individual 2. Enhance the development of it human resources 3. Guarantee full respect for human rights and 4. Uphold the dignity of workers, Ee, applicants for employment, students or those undergoing training, instruction or education. (Sec. 2) Q: Who may harassment?
be
held
liable
for
sexual
A: In a work, education or training-related environment sexual harassment may be committed by an: 1. Ee 2. Manager 3. Supervisor, 4. Agent of the (Er), 5. Teacher, instructor, professor 6. Coach, trainer, or 7. Any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment: a. Demands b. Requests or c. Requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of R.A. 7877. (Sec. 3) Q: How is sexual harassment
committed?
A: Generally, a person liable demands, requests, or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the latter. Q: Under the Sexual Harassment Act, does the definition of sexual harassment require a categorical demand or request for sexual favor? A: No. It is true that the provision calls for a "demand, request or requirement of a sexual favor." But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical manner. It may be discerned, with equal certitude, from the acts of the offender.
220
Likewise, it is not essential that the demand, request or requirement be made as a condition for continued employment or for promotion to a higher position. It is enough that the respondent's acts result in creating an intimidating, hostile or offensive environment for the employee. (Domingo v. Rayala, G.R. No. 155831, Feb. 18,2008) Q: When is sexual harassment
committed?
A: Specifically: 1. In a work-related or employment environment: a. The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the Ee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said Ee; b. The above acts would impair the Ees' rights or privileges under existing labor laws; or c. The above acts would result in an intimidating, hostile, or offensive environment for the Ee. 2.
In an education or training environment: a. Against one who is under the care, custody or supervision of the offender; b. Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; c. Sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or considerations; or d. Sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.
UST GOLDEN NOTES 2010 Q; What are the duties of the Er or head of office in a work-related, education or training environment?
for damages and other affirmative relief. (Sec. 6) Q; What Is the three-fold sexual harassment cases?
A; 1.
Prevent or deter the commission of acts of sexual harassment and Provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment.
2.
Towards this end, the Er or head of office shall:
liability
rule in
A: An act of sexual harassment may give rise to civil, criminal and administrative liability on the part of the offender, each proceeding independently of the others. Q: When does the action prescribe? A: Any action shall prescribe in 3 years.
1.
Promulgate appropriate rules and regulations in consultation with the jointly approved by the Ees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation or sexual harassment cases and the administrative sanctions therefore. (Sec. 4) Note; Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.
2.
Create a committee on decorum and investigation of cases on. sexual harassment.
3.
The Er or head of office, education or training institution shall disseminate or post a copy of this R.A. 7877 for the information of all concerned
Q; What is the liability of the Er, head of office, educational or training institution? A; Ee shall be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment provided: 1. The Er or head of office,educational or training institution is informed of such acts by the offended party; and 2. No immediate action is taken thereon. (Sec. 5)
Q: Can an independent
action for damages
be filed?
Q: A Personnel Manager, while interviewing an attractive female applicant for employment, stared directly at her for prolonged periods, albeit in a friendly manner. After the interview, the manager accompanied the applicant to the door, shook her hand and patted her on the shoulder. He also asked the applicant if he could invite her for dinner and dancing at some future time. Did the Personnel Manager, by the above acts, commit sexual harassment? Reason. A: Yes, because the Personnel Manager, is in a position to grant or not to grant a favor (a job) to the applicant. Under the Circumstances, inviting the applicant for dinner or dancing creates a situation hostile or unfriendly to the applicant's chances for a job if she turns down the invitation. [Sec. 3(a)(3), R.A. No. 7877, Anti-Sexual Harassment Act]. (2000 Bar Question) Q: In the course of an interview, another female applicant inquired from the same Personnel Manager if she had the physical attributes required for the position she applied for. The Personnel Manager replied: "You will be more attractive if you will wear micro-mini dresses without the undergarments that ladies normally wear." Did the Personnel Manager, by the above reply, commit an act of sexual harassment? Reason. A: Yes. The remarks would result in an offensive or hostile environment for the Ee. Moreover, the remarks did not give due regard to the applicant's feelings and it is a chauvinistic disdain of her honor, justifying the finding of sexual harassment (Villarama v. NLRC, GR. No. 106341, Sep. 2, 1994)
A: Yes. Nothing under R.A. 7877 shall preclude the victim of work, education or training-related sexual harassment from instituting a separate and independent action UNIVERSITY
OF SANTO
Pacu{tad
TOMAS'
de Verecfzo
Civif
SOCIAL LEGISLATION: ANTI-SEXUAL HARRASMENT LAw Q: Pedrito Masculado, a college graduate from the province, tried his luck in the city and landed a job as utility/maintenance man at the warehouse of a big shopping mall. After working as a casual Ee for 6 months, he signed a contract for probationary employment for 6 months. Being well-built and physically attractive, his supervisor, ML Hercules Barak, took special interest to befriend him. When his probationary period was about to expire, he was surprised when one afternoon after working hours, Mr. Barak followed him to the men's comfort room. After seeing that no one else was around, Mr. Barak placed his arm over Pedrito's shoulder and softly said: "You have great potential to become a regular Ee and I think I can give you a favorable recommendation. Can you come over to my condo unit on Saturday evening so we can have a little drink? I'm alone, and I'm sure you want to stay longer with the company." Is Mr. Barak liable for sexual harassment committed in a work-related or employment environment? A: Yes, the elements of sexual harassment are all present. The act of Mr. Barak was committed in a workplace. Mr. Barak, as supervisor of Pedrito Masculado, has authority, influence and moral ascendancy over Masculado. Giventhe specific circumstancesmentionedin the question like Mr. Barak following Masculadoto the comfort room, etc. Mr. Barak was requestinga sexualfavor from Masculado for a favorablerecommendatipnregardingthe latter's employment.It is not impossiblefor a male,who is a homosexual,to ask for a sexual favorfrom anothermale. (2000 Bar Question)
Academics Committee Chairperson: Abraham D. Genuino II Vice· Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Via-Chair for IqOllt & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
222
i
UST GOLDEN NOTES 2010 Q: How are disputes A: Q: What enactment
is the policy of (SSS) Law?
objective
in
~
the
A:
It is the policy of the State to establish, develop, promote and perfect a sound and viable tax-exempt SSS suitable to the needs of the people throughout the Phils., which shall promote social justice and provid~~meaningful protection to members and their beneficiaries against the hazards of disability, sickness, maternity, old age, death, and other contingencies resulting in loss of income or financial burden. (Sec. 2)
Social Security Commission (SSC)
The enactment of SSS law is a legitimate exercise of the police power. It affords protection to labor and is in full accord with the constitutional mandate on the promotion of social justice. (Roman Catholic Archbishop of Manila v. SSS, G.R. No. 15045 Jan. 20, 1961) Q: Are the premiums
considered
CA/SC
as taxes?
A: No. The funds contributed to the System belong to the members who will receive benefits, as a matter of right, whenever the hazards provided by the law occur. (CMS Estate, lnc., v. SSS, G.R. No. 26298 Sep.28, 1984) Q: Are benefits received under SSS Law part of the estate of a member? A: No. Benefits receivable under the SSS Law are in the nature of a special privilege or an arrangement secured by the law pursuant to the policy of the State to provide social security to the workingman. The benefits are specifically declared not transferable and exempt from tax, legal processes and liens. (SSS v. Davae, et. st., GR. No.21642, July 30, 1966)
Execution of decision
settled?
DISPUTE SETTtEMENT Disputes involving: 1. Coverage 2. Benefits Contributions 3. Penalties 4. 5. Any other matter related thereto. Note: Disputes within the mandatory period of 20 days after the submission of evidence. (See.5a) Decision, in the absence of appeal, shall be final and executory 15 days after date of notification. (Sec. 5b) Decisions of SSC shall be appealable to: 1. CA - questions of law and fact (See.5e) 2. SC - questions of law. (See.5e) SSC may, motu propria or on motion of any interested party, issue a writ of execution to enforce any of its decisions or awards, after it has become final and executory. (Sec. 5d)
Q: Can the SSC validly re-evaluate the findings of the RTC, and on its own, declare the latter's decision to be bereft of any basis? A: No. It cannot review, much less reverse, decisions rendered by courts of law as it did in the case at bar when it declared that the CFI Order was obtained through fraud and subsequently disregarded the same, making its own findings with respect to the validity of Bailon and Alice's marriage on the one hand .and the invalidity of Bailon and Teresita's marriage on the other. In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate court. The law does not give the SSC unfettered discretion to trifle with orders of regular courts in the exercise of its authority to determine the beneficiaries of the SSS. (SSS vs. Teresita Jarque Vda. De Bailon, G.R. No. 165545, Mar. 24, 2006, J. Carpio-Morales)
UNIVERSITY OF SANTO TOMAS PacuCtaa de (])erecfio CiviC
"4.A)
223
SOCIAL LEGISLATION: Q: Who Is an employer
(Er)?
Q: Who are covered
A: Any person, natural or juridical, domestic or foreign, who carries into the Phils. any trade, business, industry, undertaking or activity of any kind and uses the services of another person who is under his orders as regards the employment, except the Government and. any of its political subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government: Provided, That a selfemployed person shall be both Ee and Er at the same time. (Sec 81e)) Q: Who is an employee
SOCIAL SECURITY LAw
A: 1.
Compulsory Coverage a. All Ees not over 60 years of age and their Ers; b. Domestic helpers whose income is not less than P 1000/month and not over 60 years of age and their Ers; Limitations: a. Any benefit earned by the Ees under private benefit plans existing at the time of the approval of the Act shall not be. discontinued, reduced or otherwise impaired;
(Ee)?
A: Any person who performs services for an Er in which either or both mental and physical efforts are used and who receives compensation for such services, where there is an Er-Ee relationship: Provided, That a selfemployed person shall be both Ee and Er at the same time. (Sec. 8[d))
,
b.
Existing private plans shall be integrated with the SSS but if the Er under such plan is contributing more than what is required by this Act, he shall pay to the SSS the amount required to him, and he shall continue with his contributions less the amount paid to SSS;
c.
Any changes, adjustments, modifications, eliminations or improvements in the benefits of the remaining private plan after the integration shall be subject to agreements between the Ers and the Ees concerned; and
d.
The private benefit plan which the Er shall continue for his Ees shall remain under the Ers management and control unless there is an exlstinq agreement to the contrary
c,
All self-employed both an Er and Ee
d.
Professionals;
e.
Partners and single proprietors of business;
f.
Actors and actresses, directors, scriptwriters and news correspondents who do not fall within the definition of the term
Q: What is employment?
A: GR: Any service performed his Er.
by an Ee for
XPN: 1. Employment purely casual and not for the purpose of occupation or business of the Er; 2. Service performed on or in connection with an alien vessel by an Ee if he is employed when such vessel is outside the Phi Is; 3. Service performed in the employ of the Phil. Government or instrumentality or agency thereof; 4. Service performed in the employ of a foreign government or international organization, or their wholly-owned instrumentality: 5. Such other services performed by temporary and other Ees which may be excluded by regulation of the SSC. Ees of bona fide independent contractors shall not be deemed Ees of the Er engaging the services of said contractors. (Sec. 80)) Q: What is a contingency?
considered
"Ee";
A: The retirement, death, disability, injury or sickness and maternity of the member, g.
224
by SSS?
Professional athletes, coaches, trainers and jockeys; AND
UST GOLDEN NOTES 2010 h.
2.
3.
2. The legitimate, legitimated, or legally adopted, and illegitimate child who:
Individual farmers and fisherman. (Sec. 9)
Voluntary a. Spouses who devote full time to managing the household and family affairs, unless they are also engaged in other vocation or employment which is subject to mandatory coverage; (Sec. 9[b]) b. Filipinos recruited by foreignbased Ers for ~mploy,ment abroad may be covered by the SSS on a voluntary basis; (Sec. 9[c)) c. Ee separated from employment to maintain his right to full benefits d. Self-employed who realizes no income for a certain month
By Agreement Any foreign government, international organization, or their wholly-owned instrumentality employing workers in the Phils., may enter into an agreement with the Phil. -government for the inclusion of such Ees in the SSS except those already covered by their respective civil service retirement systems.
Q: Who are primary beneficiaries?
A:
1.
2.
The dependent spouse until he or she remarries The dependent legitimate, legitimated or legally adopted, and illegitimate children,: Provided, That the dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated or legally adopted children.
Q: Who are secondary beneficiaries? A: In the absence of primary beneficiaries, the dependent parents. In the absence of all the foregoing, any other person designated by the member as his or her secondary beneficiary. (Sec. 8[k])
Q: Who are considered dependents?
A: 1. The legal spouse entitled by law to receive support from the member;
a. b. c.
3.
Is unmarried, Not gainfully employed, and Has not reached 21 years of age, or if over 21 years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally.
The parent who is receiving regular support from the member.
What is meant by "dependent for support"?
Q:
A: The entitlement to benefits as a primary beneficiary requires not only legitimacy but also dependence upon the member Ee. (Gil v. SSC et. al. CA- GR SP. 37150 May 8, 1996) If a wife who is already separated de facto from her husband cannot be said to be "dependent for support" upon the husband, absent any showing to the contrary. Conversely, if it is proved that the husband and wife were still living together at the time of his death, it would be safe to presume that she was dependent on the husband for support, unless it is shown that she is capable of providing for herself. (SSS v. Aguas, G.R. No. 165546, Feb. 27, 2006) Q: Who is entitled to the benefits of an SSS
member who was survived not only by his legal wife, who is not dependent upon the member, but also by two common-law wives with whom he had illegitimate minor children? A: The illegitimate minor children shall be entitled to the death benefits as primary beneficiaries because the legal wife is not dependent upon the member. The SSS Law is clear that for a minor child to qualify as a "dependent" the only requirements are that he/she must be below 21 yrs. of age, not married nor gainfully employed. (Signey v. SSS, GR. No. 173582, Jan. 28, 2008)
Q: What is compensation? A: All actual remuneration for employment, including the mandated cost of living allowance, as well as the cash value of any remuneration paid in any medium other than cash except that part of the remuneration received during the month in excess of the maximum salary.
UNIVERSITY
OF
Pacu{taa
SANTO
TOMAS
de
~. .•.
225
SOCIAL LEGISLATION: Q: The owners of FALCON Factory, a company engaged in the assembling of automotive components, decided to have their building renovated. (50) persons, composed of engineers, architects and other construction workers, were hired by the company for this purpose. The work was estimated to be completed in 3 years. The Ees contended that since the work would be completed after more than 1 year, they should be subject to compulsory coverage under the Social Security Law. Do you agree with their contention? Explain your answer fully.
m
SOCIAL SECURITY LAw entitled to benefits according to the provisions of R.A. 9282. 3.
Note: The above provision recognizes the "once a member, always a member" rule. Q: What is the effect of interruption of business or professional income? A: If the self-employed member realizes no income in any given month:
A: No. Under Sec. 8 of R.A. 1161, as amended, employment of purely casual and not for the purpose of the occupation or business of the employer are excepted from compulsory coverage. An employment is purely casual if it is not for the purpose of occupation or business of the Er. In the problem given, Falcon Factory is a company engaged in the assembly of automotive components. The 50 persons (engineers, architects and construction workers) were hired by Falcon Factory to renovate its building. The work to be performed by these 50 people is not in connection with the purpose of the business of the factory. Hence, the employment of these 50 persons is purely casual. They are, therefore, excepted from the compulsory coverage of the SSS law. (2000Bar Question) Q: When is the compulsory coverage deemedeffective?
A:
1.
Employer
-
on the first day of
operation 2.
Employee
-
on the day of his
employment 3.
Compulsory employed -
coverage
of
self-
upon his registration
with the SSS Q: What is the effect of separation of an employee from his employment under compulsory coverage?
A:
1.
His Ers obligation to contribute arising from that employment shall cease at the end of the month of separation,
2.
But said Ee shall be credited with all contributions paid on his behalf and
226
He may, however, continue to pay the total contributions to maintain his right to full benefit. (Sec. 11)
1.
He shall not be required to pay contributions for that month.
2'. He may, however, be allowed to continue paying contributions under the same rules and regulations applicable to a separated Ee member: 3.
Provided, that no retroactive payment of contributions shall be allowed other than as prescribed under Sec.22-A. (Sec. 11-A)
Q: What are the benefits under the SSS Act?
A:
1. 2. 3. 4. 5. 6. 7.
Monthly Pension Retirement Benefits Death Benefits Disability Benefits Funeral Benefits Sickness Benefits Maternity Benefits
UST GOLDEN NOTES 2010 Q: What is the difference of compensability under the Labor Law and the Social Security Law?
iii.
b.
A: The claims are different as to their nature and purpose. (Ortega vs. Social Security Commission, GR. No. 176150, June 25,2008, J. Carpio-Morales)
Governs compensability of : 1. work-related disabilities 2. when there is loss of income due to workconnected or work-
A disability is total and permanent if as a result of the injury or sickness the Ee is unable to perform any gainful occupation for a continuous period exceeding 120 days regardless of whether he loses the use of any of his
2. to provide insurance or protection against the hazards or risks of disability, sickness, old age or death, inter alia, irrespective of whether they arose from or in the course of the employment.
Dis may permanent total permanent partial.
or
requirements
Q: What is a retirement
benefit?
are
the
types
of
retirement
1.
Monthly Pension - Lifetime cash benefit paid to a retiree who has paid at least 120 monthly contributions to the SSS prior to the semester of retirement
2.
Lump Sum Amount - Granted to a retiree who has not paid the required 120 monthly contributions.
of
Q: Who are entitled for retirement
benefits?
A:
2. Self-employed - Report to SSS within 30 days from the first day of his operation, his name, age, civil status, occupation, average monthly net income and his dependents
1.
A member who a. has paid at least 120 monthly contributions prior to the semester of retirement; b. at least 60 years old; and c. already separated from employment or has ceased to be self-employed, OR
2.
At least 65 years old, shall be entitled for as long as he lives to the monthly pension; (Sec 12-8 (aJ)
3.
A member a. At least 60 years old at retirement; and b. Does not qualify for pension benefits under paragraph (a) above - entitled to a lump sum
Pension
Q: How much is the monthly
pension?
A: 1.
Benefit
A: It is a cash benefit paid to a member who can no longer work due to old age. Q: What benefits?
1. Er - Report immediately to SSS the names, ages, civil status, occupations, salaries and dependents of all his covered Ees
Monthly
Minimum Pension a. P1,200.00 - members with at least 10 credited years of service b. P2,400.00 for those with 20 credited years of service. (Sec. (bJ) Retirement
A:
Q: What are the reportorial the Er and self-employed?
A:
c.
2% of the average monthly salary credit for each credited year of service in excess of 10 years; or 40% of the average monthly salary credit; or P1,000.00, provided that the monthly pension shall in no case be paid for an aggregate amount of less than sixty (60) months (Sec. 12 (al)
The monthly pension shall be the highest of the following amounts: a. The sum of the following: i. P300.00; plus ii. 20% of the average monthly salary credit; plus UNIVERSITY
OF
Pacu(taa
SANTO
TOMAS
de lDerecfzo CiviC
.
227
SOCIAL LEGISLATION:
c.
SOCIAL SECURITY LAw
benefit equal to the total contributions paid by him and on his behalf; Must be separated from employment and is not continuing payment of contributions to the SSS on his own. (Sec. 12-8 [bJ)
Q; What happens when the retirement pensioner is re-employed or resumes selfemployment?
A;
The monthly pension of a retirement pensioner who resumes employment and is less than 65 years old will be suspended. He and his Er will again be subject to compulsory coverage. (Sec. 12-8 [c]) Q; Are the children of a retiree member entitled to the dependent's pension?
A:
Yes (Sec. 12[AJ). However, only 5 minor children, beginning from the youngest, are entitled to the dependents' pension. No substitution is allowed. Where there are more than 5 legitimate and illegitimate children, the legitimate ones will be preferred. Q: For how long will the dependent receive the pension?
child
A:
Until the child reaches 21 years of age, gets married, gets employed and earns P300 a month or more, or dies.
However, the dependent's pension is granted for life to children who are over 21 years old, provided they are incapacitated and incapable of self-support due to physical or mental defect which is congenital or acquired during minority.
primary beneficiaries, his secondary beneficiaries will receive a lump sum benefit equivalent to the difference of 60 multiplied by the monthly pension and the total monthly pensions paid by the SSS excluding the dependent's pension. (Sec. 12-8 [dJ) Q: Bonifacio and Elena are living together as husband and wife without the benefit of marriage. Bonifacio declared Elena and their children as his primary beneficiaries in his self-employed data record in SSS. A few months prior to his death, Bonifacio married Elena.ls: Elena entitled to the survivor's pension? A: Yes, she is considered primary beneficiary of Bonifacio. The phrase "Upon the death of the retired member, his primary beneficiaries as of the date of his retirement will get 100 per cent of his monthly pension xxX:' of Sec. 12-B d of RA 8282 is unconstitutional because it violates the: (1) equal protection clause because it impermissibly discriminates against dependent spouses whose respective marriages to the SSS members' were contracted after the latter's retirement; (2) due process clause because it outrightly deprives spouses who married the SSS members after their retirement of the survivor's pension, a property interest, without giving them opportunity to be heard; and (3) social justice. Further, the survivorship pension was classified as death benefits. contingency that gives rise to the of Elena is the death of Bonifacio retirement. (Oycaico V. SSS, G. R. June 6, 2006)
Q: What will happen to the monthly pension of a retiree in case of death?
A: 1.
Upon the death of the retired member, his primary beneficiaries as of the date of his retirement will get 100% of his monthly pension plus the dependent's pension for each child.
- Death Benefit Q: When is a beneficiary benefits?
A:
to death
Upon death of a member, if he has paid at least 36 monthly contributions prior to the semester of death: a. primary beneficiaries shall be entitled to the monthly pension; or b. If there are no primary beneficiaries, secondary beneficiaries shall be entitled to a lump sum benefit equivalent to 36 times the monthly pension.
2.
Upon death of a member If he has not paid the required 36 monthly
sse
If he dies within 60 months from the start of his pension and he has no
entitled
1.
Note: The above phrase "primary beneficiaries (as of the date of his retirement )was declared unconstitutional by the SC in Oycaico v. SSS and (G.R. No. 16137, June 6, 2006) because it is in violation of the equal protection, due process and social justice. 2.
applied for Hence, the entitlement and not his No. 16137,
UST GOLDEN NOTES 2010 contributions prior to the semester of death: a. primary or secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the monthly pension multiplied by the number of monthly contributions paid to the SSS: or b. 12 times the monthly pension, whichever is higher. (Sec. 13)
guaranteed period excluding the dependents' pension. (Sec. 13-A [cl) Q: What is the effect of retirement to partial disability pension?
A: Disability pension shall cease upon his retirement or death. (Sec 13-A OJ) "
b
Permanent
Disability
Q: What is a disability
Benefit
.
Funeral' Benefit Q: What is the funeral
benefit?
A: It is a cash benefit paid to a member who becomes permanently disabled, either partially or totally.
A:
1. 2. 3.
between
Q: What is sickness
A:
death
1.
2.
Member
4.
Benefitsshall be in lumpsum equivalentto the monthlypensiontimes the numberof monthly contributionspaidto SSS or 12 times the monthly pension,whicheveris higher. Q: What is the effect of the death of ,the PTO pensioner?
1. 2.
beneficiaries are entitled to receive monthly pension as of the date of disability. No primary beneficiaries and he dies within 60 months from the start of his monthly pension secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the 5-year
Primary
Benefit benefit?
Q: What are the requirements for sickness benefit?
3.
A:
benefit?
A: It is a daily cash allowance paid for the number of days a member is unable to work due to sickness or injury.
A:
PrimaryBeneficiaries
'.'
and
Upon the reemployment or resumption of self-employment Recovery of the disabled member from his permanent total disability Failure to present himself for examination at least once a year upon notice by the SSS. (Sec. 13-A
[bJ) Q: What is the difference benefits and PTO benefits?
.
A: A funeral grant equivalent to P12, 000.00 shall be paid, in cash or in kind, to help defray the cost of expenses upon the death of a member or retiree. (Sec. 13-8)
Sickness Q: When is the monthly pension dependent's pension suspended?
or death
to be entitled
The member paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of sickness or injury; Confined for more than 3 days in a hospital or elsewhere with the approval of the SSS; He has used all current company sick leaves with pay for the current year, and Notified his Er or the SSS, if he is a separated, voluntary or self-employed member.
Q: Who will pay sickness how much is the benefit?
benefits?
and
A: The Er shall pay the: 1. Ee for each compensable confinement or fraction thereof or 2. SSS if member is self-employed 6. daily sickness benefit equivalent to 90% of his average daily salary credit, subject to the following conditions: a. In no case shall the daily sickness benefit be paid longer than 120 days in 1 calendar year, nor shall any unused portion of the 120 days of sickness benefit granted be carried forward and added to the total number of
UNIVERSITY
OF
Pacu(taa
SANTO
TOMAS
ae CDerecfio CiviC
(~~
.•.
229
SOCIAL LEGISLATION: compensable days allowable the subsequent year; b.
c.
d.
e.
Not paid for more than 240 days on account of the same confinement; and Ee member shall notify his Er of the fact of his sickness or injury within 5 calendar days after the start of his confinement unless such confinement: i. is in a hospital ii. the Ee became sick or was injured while working or within the premises of the Er (notification to the Er not necessary);
Where notification is necessary, confinement shall be deemed to have started not earlier than the 5th day immediately preceding the date of notification. (Sec. 14 [bJ)
Note: The law does not require that sickness must be related to the duties of the beneficiaries. will
compensable
confinement
commence?
A:
1. 2.
Begins on the 1st day of sickness Payment of such allowances shall be promptly made by the Er: a. every regular payday or on the and last day of each month, b. in case of direct payment by the SSS as long as such allowances are due and payable. (Sec. 14[bJ)
is"
Q: What are the requirements Er may claim sickness benefit?
A:
1.
230
b.
in
If the member is unemployed or selfemployed, he shall directly notify the SSS of his confinement within 5 calendar days after the start thereof unless such confinement is in a hospital in which case notification is also not necessary;
Q: When
SOCIAL SECURITY LAw
in order that reimbursement of the
100% of daily benefits shall be reimbursed by SSS if the following requirements are satisfied: a. Receipt of SSS of satisfactory proof of such payment and legality thereof:
2.
The Er has notified the SSS of the confinement within 5 calendar days after receipt of the notification from the Ee member:
Er shall be reimbursed only for each da~ of confinement starting from the 10 calendar day immediately preceding the date of notification to the SSS if the notification to the SSS is made beyond 5 calendar days after receipt of the notification from the Ee member. (Sec. 14 [cl)
Q: When will
reimbursement
be made
by
SSS? A: GR: SSS shall reimburse the Er or pay the unemployed member only for confinement within 1 year immediately preceding the date the claim for benefit or reimbursement is received by the SSS XPN: Confinement in a hospital in which case the claim for benefit or reimbursement must be filed within 1 year from the last day of confinement. (Sec. 14[c))
., ~ ....••••••.•••
".~iiI.'~
•
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layo«: & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A•. Diaz Angelo S, Diokno Genesis R. Fulgencio Jeanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
UST GOLDEN NOTES 2010
Q: What is maternity
previously notified by the Er of the time of the pregnancy, the Er shall pay to the SSS damages equivalent to the benefits which said Ee would otherwise have been entitled to, and the SSS shall in turn pay such amount to the Ee concerned.
leave benefit?
A: A covered female employee (Ee) is entitled to a daily maternity benefit equivalent to 100% of her present basic salary, allowances and other benefits or the cash equivalent of such benefits for 60 days or 78 days in case of caesarian delivery.
Q: What loans can be granted?
Q: What are the requirements in(;Order .that maternity benefits may be claimed? '.
A: Salary loans, educational loans, housing loan and community hospital loan.
A:
Q: Are the benefits
1. 2.
There is childbirth, abortion or miscarriage; and She has paid at least 3 monthly contributions
Q: What are the conditions?
A: 1.
2.
The Ee shall have notified her employer (Er) of her pregnancy and the probable date of her childbirth which notice shall be tra-nsmitted to the SSS The payment shall be advanced by the Er in 2 equal installments within 30 days from the filing of the maternity leave application
3.
In case of caesarian delivery; the Ee shall be paid the daily maternity benefit for 78 days
4.
Payment of daily maternity benefits shall be a bar to the recovery of sickness benefits for the same compensable period of 60 days for the same childbirth, abortion, or miscarriage
5.
The maternity benefits provided under Section 14-A shall be paid only for the first four deliveries
6.
The SSS shall immediately reimburse the Er of 100% of the amount of maternity benefits advanced to the Ee by the Er upon receipt of satisfactory proof of such payment and legality thereof; and
7.
If an Ee should give birth or suffer abortion or miscarriage without the required contributions having been remitted for her by her Er to the SSS, or without the latter having been
.
Loan Grant
',;.c'
,
transferable?
A: No. Such benefits are not transferrable and no power of attorney or other document executed by those entitled thereto, in favor of any agent, attorney or any other person for the collection thereof on their behalf shall be recognized, except when they are physically unable to collect personally such benefits. Q: What is a reserve fund? A: All revenues of SSS accumulated in a fund not needed to meet the current administrative and operations expenses incidental to the carrying out of R.A. 1161. Q: What is an investment
reserve fund?
A: Such portions of the Reserve Fund as are not needed to meet the current benefit obligations thereof. The Commission through such funds may: 1. Finance housing loans of members; 2. Long-term direct individual or group housing loans giving priority to the low-income groups, up to a maximum of 90% of the appraised value of the properties to be mortgaged by the borrowers; and 3. In short and medium-term loans to members such as salary, educational, livelihood, marital, calamity and emergency loans
UNIVERSITY
OF SANTO
Pacu[taa
TOMAS
de
SOCIAL LEGISLATION:
GOVERNMENT
SERVICE INSURANCE SYSTEM Q: Who are the considered
A: Q: What enactment
are the purposes of the GSIS Act?
behind
Q:
Who are considered under the GSIS Act?
A:
1. 2. 3. 4.
employers
1.
Primary beneficiaries a. The legal dependent spouse until he/she remarries and b. The dependent children. (Sec. 2[gJ)
2.
Secondary beneficiaries a. The dependent parents and b. Subject to the restrictions on dependent children, the legitimate descendants. (Sec. 2[h]) ,
the
A: To provide and administer the following social security benefits for government employees (Ee): 1. Compulsory life insurance 2. Optional life insurance 3. Retirement benefits 4. Disability benefits to work-related contingencies; and 5. Death benefits (Er)
National Government, Its political subdivisions, branches, agencies, instrumentalities, GOCCs, and financial institutions with original charters, Constitutional Commissions and the Judiciary. (Sec. 2[c])
beneficiaries?
Q: What is disability?
.
A: Any loss or impairment of the normal functions of the physical and/or mental faculty of a member, which reduces or eliminates his/her capacity to continue with his/her current gainful occupation or engage in any other gainful occupation.
Q: What is total disability?
A: Yes.
A: Complete incapacity to continue with present employment or engage in any gainful occupation due to the loss or impairment of the normal functions of the physical and/or mental faculties of the member.
Q: Who is an Ee or member?
Q: What
A: Any person, receiving compensation while in the service of an Er, whether by election or appointment, irrespective of status of appointment, including barangay and sanggunian officials. (Sec. 2{dJ)
A: Accrues or arises when recovery from impairment mentioned in Sec.2(q) (defining disability) is medically remote.
Q: Can SSS Ees be covered by GSIS?
Q: Who are considered
A:
1.
dependents?
Legitimate spouse dependent for support upon the member or pensioner; 2. Legitimate, legitimated, legally adopted child, including the illegitimate child, a. who is unmarried, b. not gainfully employed, c. not over the age of majority, or if over the age of majority, incapacitated and incapable of self-support due to a mental or physical defect acquired prior to age of majority; and 3. Parents dependent upon the member for support. (Sec. 2{f])
232
is
permanent
total
disability
(PTD)?
Q: What is temporary
total disability
(TID)?
A: Accrues or arises when impaired physical and/or mental faculties can be rehabilitated and/or restored to their normal functions
Q: What
is
permanent
partial
disability
(PPD)? A: Accrues or arises upon the irrevocable loss or impairment of certain portions of ,the physical faculties, despite which the member is able to pursue a gainful occupation. Q: What is compensation? A: The basic payor salary received by an Ee, pursuant to his or her election or appointment, excluding per diems, bonuses, OT pay, honoraria, allowances and any other emoluments received in addition to the basic
UST GOLDEN NOTES 2010 pay which are not integrated into the basic pay under existing laws. (Sec. 2[ij)
Q: Who are covered by life insurance, retirement and other social security protection?
Q: Baradero is a member of the Sangguniang Bayan of the Municipality of La Castellana, Negros Occ. and is paid on a per diem basis. On the other hand, Belo a Vice-Governor of Capiz is in a hold over capaclty and is paid on a per diem basis. Are the services rendered by Baradero and Belo on a per diem basis creditable in computing the length of service for retirement purposes? " A: Yes. The traditional meaning of per diem is a reimbursement for extra expenses incurred by the public official in the performance of his duties. Under this definition the per diem is intended to cover the cost of lodging and subsistence of officers and employees when the latter are on a duty outside of their permanent station. On the other hand, a per diem could rightfully be considered a compensation or remuneration attached to an office.
A: GR: All members of the GSIS shall have life insurance, retirement, and all other social security protections such as disability, survivorship, separation, and unemployment benefits. (Sec. 3) XPN: Members of: 1. the judiciary and 2. Constitutional commissions have life insurance only,
Q: Who under the GSIS are excluded the coverage?
esc
1.
2. 3. 4.
Ees who have separate retirement schemes (members of the Judiciary, Constitutional Commissions and others similarly situated); Contractual Ees who have no Er-Ee with the agencies they serve; Uniformed members of the AFP, BJMP, whose coverage by the GSIS has ceased effective June 24,1997; Uniformed members of the PNP whose coverage by the GSIS has ceased effective February 1, 1996. (Sec. 2.4, Rule II, IRR)
Q: For the purpose of benefit entitlement, how are the members classified?
esc
Q: What government Ees are subject coverage under the GSIS?
from
A:
The per diems paid to Baradero and Belo were in the nature of compensation or remuneration for their services as Sangguniang Bayan and Vice-Governor, respectively, rather than a reimbursement for incidental expenses incurred while away from their home base. If the remuneration received by a public offlclal in the performance of his duties does not constitute a mere "allowance for expenses" but appears to be his actual base pay, then no amount of categorizing the salary as a "per diem" would take the allowances received from the term service with compensation for the purpose of computing the number of years of service in government. (GS/S v and Dr. Baradero and GSIS v. and Belo, G. R. Nos. 98395 and 102449, June 19, 1995)
who shall
to
A: GR: All Ees receiving compensation who have not reached the ,.compulsory retirement age, irrespective of employment status. XPN: 1. Uniformed members of the: a. AFP; and b. PNP. , 2. Contractuals who have no Er and Ee relationship with the agencies they serve.
UNIVERSITY
A: 1.
Active members a. still in the service and are paying integrated premiums. b. covered for the entire package benefits and privileges being extended by GSIS. 2. Policyholders a. covered for life insurance only b. can avail of policy loan privilege only c. may also apply for housing loans d. Judiciary and Constitutional Commissions 3. Retired Members a. former active members who have retired from the service and are already enjoying the corresponding retirement benefits applied for b. not entitled to any loan privilege, except stock purchase loan (Sec. 2.2, Rules II, IRR) OF
PacuCtaa
SANTO
TOMAS'
ae Verecfio
CiviC
('U~233 '.-
.
SOCIAL LEGISLATION: Q: What are the sources GSIS?
GOVERNMENT
of funds
Mindanao, she suffered a stroke and since then had been confined to a wheelchair. At the time she stopped working because of her illness in line of duty, Atty. Guzman was only 60 years old but she had been an active member of the GSIS for 30 years without any break in her service record. What benefits could she claim from the GSIS? Cite at least five benefits.
of the
A: It comes from the monthly contributions the covered Ees and Ers. (Sec. 5)
of
The contributions of the Ees are deducted and withheld by the Er each month from the monthly salary of theJormer and are remitted by the latter, together with its own share, to the System within the first 10 days of each calendar month following the month to which the contributions apply. (Sec. 6)
A: The benefits Atty. Guzman could claim from the GSIS are: 1. Ees 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 Question)
Q: What is the penalty in case of delayed remittance or non-remittance of contributions? A: The unremitted contributions shall be charged interests as prescribed by the GSIS Board of Trustees but shall not be less than 2% simple interest per month from due date to the date of payment by the employers concerned. Q: What are the benefits GSIS Act?
A:
1.
2. 3. 4. 5. 6. 7. 8.
9.
provided
Separation Unemployment or involuntary separation Retirement Permanent disability Temporary disability Survivorship Funeral Life Insurance Such other benefits and protection as may be extended to them by the GSIS such as loans.
GR: 1. Old-age benefit 2. Permanent disability benefit 3. Survivorship benefit 4. Funeral benefit 5. Retirement benefit XPN: Judiciary exempt)
(Life insurance
only - tax
Q: Atty. Lianne Guzman, a dedicated and efficient public official, was the top executive of a GOCC. While inspecting an ongoing project in a remote village in
234
Q: What are the reportorial the Er?
requirements
of
by the
Q: What are the benefits under P.O. 1146 (Revised GSIS Act of 1977) that may be granted to the separated members of the PNP, BJMP and BFP?
A:
SERVICE INSURANCE SYSTEM
A: Er must report to GSIS the names, employment status, positions, salaries of the employee and such other matter as determined by the GSIS.
,
Separation
Benefits
Q: When will a member be separation benefits and what these separation benefits?
entitled to comprises
A: A member who has rendered a minimum of 3 years creditable service shall be entitled to separation benefit upon resignation or separation under the following terms: 1.
A member wfth at least 3 years but less than 15 years: Cash payment equivalent to 100% of the AMC for every year of service the member has paid contributions: a. not less than P12,000.00 b. Payable upon reaching 60 years of age or upon separation', whichever comes later.
2.
A member wfth less than 15 years of service and less than 60 years of age at the time of resignation or separation: a. Cash payment equivalent to 18 times the basic monthly pension (BMP), payable at the time of resignation or separation
UST GOLDEN NOTES 2010 b.
An old-age pension benefit equal to the basic monthly pension, payable monthly for life upon reaching the age of 60.
Q: What are the effects of separation service
from
with regard to membership?
A: A member separated from the service shall continue to be a member and shall be entitled to whatever benefits he has qualified to. Note: A member separated for a (Valid cause shall automatically forfeit his benefits, unless the terms of resignation or separation provide otherwise. In the case of forfeiture, the separated employee shall be entitled to receive only Y, of the cash surrender value of his insurance.
Q: What is the rule in case of extension of service in order to be entitled for retirement benefit? A: The doctrine in Cena v CSC, (G.R. No. 97419, July 3, 1992), was modified in Rabor v CSC, (G.R. No. 111812, May 31, 1995), where the SC held that: The head of the government agency concerned is vested with discretionary authority to allow or disallow extension of the service of an official or Ee who has reached 65 years old without completing the 15 years of government service. However, this discretion is to be exercise conformably with the provisions of Civil Service Memorandum Circular No. 27, series of 1990 which provides that the extension shall not exceed 1 year.
Q: What
is
the
reason
for
compulsory
retirement? Unemployment or Involuntary Separation Benefits
,
Q: What are the conditions to unemployment benefits?
for entitlement
A: 1. 2.
3.
The recipient must be a permanent employee at the time of separation; His separation was involuntary due to the abolition of his office or position resulting from reorganization; and He has been paying the contribution for at least 1 year prior to separation.
Q: What will consist
of an unemployment
benefit? A: It will consists of cash payment equivalent to 50% of the average monthly compensation Note: A member who has rendered at least 15 years of service will be entitled to separation benefits instead of unemployment benefits. Retirement
Benefits
Q: What are the conditions entitled
to retirement
in order to be
benefits?
2. 3.
Q: What are the options of the retiree with regard to his or her retirement benefits? A: The retiree may get either of the following: 1. Lump sum equivalent to 6 months of the basic monthly pension (BMP) payable at the time of retirement and an old-age pension benefit equal to BMP payable for life, starting upon the expiration of the 5 years covered by the lump sum; or 2.
A: 1.
A: The compulsory retirement of government officials and Ees upon their reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and at the same time give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompense, for their long service and devotion to the government, in the form of a comparatively easier life, freed from the rigors of civil service discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose upon them. (Beronilla v. GSIS, G.R. No. 21723, Nov. 26, 1970)
A member has rendered at least 15 years of service; He is at least 60 years of age at the time of retirement; and He is not receiving a monthly pension benefit from permanent total disability. (Sec. 13-A)
Cash payment equivalent to 18 times his BMP and monthly pension for life payable immediately. (Sec. 13[a]) Permanent
Disability
Benefits
Q: What are the conditions in order to be entitled for permanent disability benefits? A: The permanent disability was not due to any of the ff: 1. Grave misconduct 2. Notorious negligence 3. Habitual intoxication , .•..•.•.... U N I V E R 5 I T Y 0 F SAN ToT 0 MAS ~.
235
Pacu(tatl
tie
CiviC
'.-
SOCIAL LEGISLATION:
GOVERNMENT
SERVICE INSURANCE SYSTEM
4. Willful intention to kill himself or another
continue with his current gainful occupation or engage in any other gainful occupation is medically remote. {Section 2 (q) and (s)}
Q: What are the two types of permanent
disability?
A:
2. 3. 4. 5.
2. 1.
Permanent total disability (PTO) accrues or arises when recovery from any loss or impairment of the normal functions of the physical and/or mental faculty of a member which reduces or eliminates his capacity to
of sight of both eyes loss of 2 limbs at or above the ankle or wrist permanent complete paralysis of 2 limbs brain injury resulting in incurable imbecility or insanity such other cases as may be determined by the GSIS
1. 2. 3. 4. 5. 6. 7. 8. 9.
Permanent partial disability (PPD) accrues or arises upon the irrevocable loss or impairment of certain portion/s of the physical faculties, despite which the member is able to pursue a gainful occupation. (Sec.2{uJ)
any finger any toe one arm one hand one foot one leg one or both ears hearing of one or both ears sight of one eye
.B!lI.lWilfiflIII]jBliiliililiiil~~.~s~uc~h
other caus
1. A member is entitled to the monthly income benefit for life equivalent to the BMP when: a. he is in the service at the time of the disability or b. if separated from service c. he has paid at least 36 monthly contributions within 5 years immediately preceding his disability d. he has paid a total of at least 180 monthly contribution prior his disability e. he is not receiving old-age retirement pension benefits
as determined
GSIS
member is entitled to cash payment in accordance with the schedule of disabilities to be prescribed by GSIS, if he satisfies the given conditions of either (1) or (2) of Sec. 16(a).
2. If the member does not satisfy the conditions above but has rendered at least 3 years service, he shall be advanced the cash payment equivalent average monthly compensation for service he has pad contributions but P12,OOO.OO which should have been benefit shall no
to 100% of his each year of not less than his separation ion benefits
Q: When will the payment of these benefits
be suspended?
A:
1.
2.
3.
236
In case a member is re-employed; or Member recovers from disability as determined by the GSIS; or Fails to present himself for medical examination when required by the GSIS. (Sec. 16 (c})
Manioso was suffering from several diseases from 1959 to 1994 when he worked as Accounting Clerk I at the Budget CommiSSion up to the time he was transferred and promoted to the DENR as Senior Bookkeeper. On Jan. 11-20, '95, he was hospitalized. The results of his examinations showed that he was suffering from Acute Myocardial Infarction and Hypertensive Vascular Disease. From Jan 11- May 5, '95 when he compulsory retired from government service and after serving for 36 yrs, he no longer reported for work. His sick leave covering said period Q:
UST GOLDEN NOTES 2010 was duly approved. In the meantime, Manioso filed a claim for income benefits with the GSIS which found his ailments work-related. He was granted Temporary Total Disability benefits for 2 months. He was later granted Permanent Partial Disability benefits for 8 months. It appears that he appealed for more disability benefits with the GSIS which subjected him to a series of medical tests, In '97, he was brought to the PGH several times due to Chronic Renal Infection 2' to Obstructive Uropathy 2' to Staghorn Calctlli (L).•and Benign Prostatic Hypertrophy; Diabetes Mellitus Neprophaty, Stage IV, and Hypertensive Nephrosclerosis. He then filed a request with the GSIS for additional disability benefits, claiming that the ailments for which he was hospitalized several times in '97 developed from his work-related illnesses. The GSIS disapproved Manioso's request
Permanent Total Disability. (Bemandin Manioso, vs. GSIS, G.R. No. 148323, Apr. 2 , 2005, J Carpio-Morales) ~
Temporary-Disability'Benefits,' Q: When does temporary arises?
A: It accrues or arises when the impaired physical and/or mental faculties can be rehabilitated and/or restored to their normal functions. (Sec 2ft)) Q:What benefits are given for temporary disability?
A:
1.
Do Manioso's ailments which later developed fall under the category of permanent total disability?
Member is entitled to 75% of his current daily compensation for eac day or fraction thereof of total disability benefit, to start at the 4thday but not exceeding 120 days in one calendar year when: a.
A: Yes. Under Art. 192 (c) of =.o. No. 442, as amended (the LC), the following disabilities are deemed total and permanent: (1) Temporary
b.
vs. GSIS, G.R. No. 148323, Apr. 29, 2005, Carpio-Morales)
J.
he has exhausted all leaves CBA sick leave benefits
sic
Provided, that:
total disability lasting continuously for more than 120 days. Under Section 2(b), Rule VII of
the Amended Rules on Ee's Compensation, "[a] disability is total and permanent if as a result of the injury or sickness the Ee is unable to perform any' gainful occupation for a continuous period exceeding 120 days, except as otherwise provided under Rule X of these RUles." In the case at bar, Manioso was on sick leave from Jan 11, '95 up to his date of retirement on May 15, '95 or for a period of more than 120 days. Surely, the DENR. in approving his more than 120 days leave must have passed upon his Medical Certificate relative to his ailments. Manioso's disability having lasted for more than 120 days, he is entitled to PTD benefits. (Bernandino Manioso,
total disability
i.
he was in the service a' time of disability; or ii. if separated, he has rende ed at least 3 years of service a has paid at least 6 mont contributions in the yea preceding his disability 2,
The temporary total disability benefits shall in no case be less than P70 a day.
Note: A membercannotenjoythe temporarytota disability benefit and sick leave pa simultaneously, An applicationfor disability must be filed with the GSIS within 4 years from the date of the occurrenceof the contingency.
Q: Does Manioso's retirement from service prevent him from entitlement to PTD benefits? A: No. Benefits due an Ee due to work-related sickness shall be provided until he becomes gainfully employed, or until his recovery or death. None of these are present in Manioso's case, It would be an affront to justice if Manioso, a government Ee who had served for 36 years, is deprived of the benefits due him for work-related ailments that resulted in his UNiVERSITY
OF
Pacu[taa
SANTO
TOMAS'
de
~~
',.
237
SOCIAL LEGISLATION: .
Survivorship Q: Who benefits?
are
entitled
GOVERNMENT
Benefits to
survivorship
A: Upon the death of a member or pensioner, his beneficiaries shall be entitled to survivorship benefits. Such benefit shall consist of: 1. the basic survivorship pension which is 50% of the basic monthly pension; and 2. the dependent children's pension not exceeding 50% of the basic monthly pension
SERVICE INSURANCE SYSTEM Q: After the end of the guaranteed 30 months, are the beneficiaries still ·entitled to any survivorship benefits? A: Yes. The survivorship pension shall be paid as follows: 1.
When the dependent spouse is the only survivor, he/she shall receive the basic survivorship pension for life or until he or she remarries;
2.
When only dependent children are the survivors, they shall be entitled to the basic survivorship pension for as long as they are qualified, plus the dependent children's pension equivalent to 10% of the basic monthly pension for every dependent child not exceeding 5, counted from the youngest and without substitution:
3.
When the survivors are the dependent spouse and the dependent children, the dependent spouse shall receive the basic survivorship pension for life or until he/she remarries, and the dependent children shall receive the dependent children's pension.(Sec. 21[bJ)
Q: Under what conditions are the primary beneficiaries entitled to the basic monthly pension? A: Upon the death of a member, the primary beneficiaries shall be entitled to: 1.
Survivorship pension: the deceased: a. b.
Provided, That
was in the service at the time of his death; or if separated from the service, has rendered at least 3 years of service at the time of his death and has paid 36 monthly contributions within the five-year period immediately preceding his death; or has paid a total of at least 180 monthly contributions prior to his death; or
2. The sutvivorshlp
pension plus a cash payment equivalent to 100% of his average monthly compensation for every year of service: Provided, That the deceased was in the service at the time of his death with at least 3 years of service; OR
3. A cash payment equivalent to 100% of his average monthly compensation for each year of service he paid contributions, but not less than P12,000.OO: Provided, That the deceased has rendered at least 3 years of service prior to his death but does not qualify for the benefits under item (1) or (2) of this paragraph. [Sec. 21 (a)J
238
Note: The dependent children shall be entitled to the survivorship pension as long as there are dependent children and, thereafter, the surviving spouse shall receive the basic survivorship pension for life or until he or she remarries. Q: When are secondary beneficiaries entitled to survivorship benefits? A: In the absence of primary benefiCiaries, the secondary beneficiaries shall be entitled to: 1.
The cash payment equivalent to 100% of his average monthly compensation for each year of service he paid contributions, but not less than P12,OOO.00: Provided, That the member is in the service at the time of his death and has at least 3 years of service; or
2.
In the absence of secondary beneficiaries, the benefits under this par. shall be paid to his legal heirs. (Sec. 21[c])
UST GOLDEN NOTES 2010 Q: What are the benefits that the beneficiaries are entitled to upon the death of the pensioner?
Q: Is the cause of death of Gary (cardiac arrest due to accidental electrocution in his house) compensable? Why?
A:
A: Yes. To be compensable under the GSIS Law, the death need not be work connected.
1.
2.
Upon the death of an old-age pensioner or a member receivingthe monthly income benefitfor permanent disability, the qualified beneficiaries shall be entitled to the survivorship pension defined in Sec. 20 of this Act, subject to the provisionsof par. (b) of Sec.21. ~) ~ When the pensioner dies within the period covered by the lump sum, the survivorship pension shall be paid only after the expiration of the said period.
Q: Gary Leseng was employed as a public school teacher at the Marinduque High. On April 27, 1997, a memorandum was issued by the school principal designating Gary to prepare the model dam project, which will be the official entry of the school in the search for Outstanding _ Improvised Secondary Science Equipment for Teachers. Gary complied with his superior's instruction and took home the project to enable him to finish before the deadline. While working on the model dam project, he came to contact with a live wire and was electrocuted. The death certificate showed that he died of cardiac arrest due to accidental electrocution. . Bella (Gary's common-law wife) and Jobo (his only son) filed a claim for death benefits with the GSIS which was denied on the ground that Gary's death did not arise out of and in the course of employment and therefore not compensable because the accident occurred in his house and not in the school premises. Is Bella entitled to file a claim for death benefits with the GSIS? Why? A: The beneficiariesof a memberof the GSIS are entitled to the benefits arising from the death of said member. Death benefits are called survivorship benefits under the GSIS Law. Not being a beneficiary, Bella is not entitled to receive survivorship benefits. She is not a beneficiary because she is a common-law wife and not a legal dependent spouse.(1991 Bar Question)
Q: Abraham, a policeman, was on leave for a month. While resting in their house, he heard two of his neighbors fighting with each other. Abraham rushed to the scene intending to pacify the protagonists. However, he was shot to death by one of the protagonists. Eva Joy, a housemaid, was Abraham's surviving spouse whom he had abandoned for another woman years back. When she learned of Abraham's death, Eva Joy filed a claim with the GSIS for death benefits. However, her claim was denied because: (a) when Abraham was killed, he was on leave; and (b) she was not the dependent spouse of Abraham when he died. Resolve with reasons whether GSIS is correct· in denying the claim. A: Yes, because under the law, a dependentis one who is a legitimate spouse living with the Ee. (Art 167 [iJ, LG) In the problem given, Eva Joy had been abandoned by Abraham who was then living already with anotherwoman at the time of his death. Moreover,Abrahamwas on leavewhen he was killed. The 24-hour duty rule does not apply when the policeman is on vacation leave. (EGG v. Court of Appeals, G.R. No. 121545,Nov. 14, 1996) Taking together jurisprudence and the pertinent guidelinesof the EGGwith respect to claimsfor death benefits,namely: 1. That the Ee must be at the place where his work requireshim to be; 2. That the Ee must have' been performinghis officialfunctions;and 3. That if the injury is sustained elsewhere, the Ee must have been executing an order for the Er, it is not difficult to understand then why Eva Joy's claim was denied by the GSIS. (Tancinco v. GSIS, G.R. No. 132916, Nov. 16, 2001) In the present case, Abraham was resting at his house when the incident happened; thus, he was not at the place where his work required him to be. Although at the time of his death Abraham was performing a police function, it cannot be said that his death occurred elsewhere other than the place where he was supposed to be because he was executing an order for his Er. (2005 Bar Question)
UNIVERSITY
OF SANTO
Pacu[tad
TOMAS
de (])erecho Civil
.~
"'"
239
SOCIAL LEGISLATION: :
GOVERNMENT
Funeral Benefits Q: What comprises
.
the funeral
SERVICE INSURANCE SYSTEM
.
3.
For those without any life insurance as of the effectivity of this Act, their insurance shall take effect following said effectivity.
benefit?
A: Cash not less than P12,OOO to be increased to at least P18,OOO after 5 years (specifically year 2002). The amount shall be determined and specified by the GSIS through an information circular distributed to all Ers for posting at their premises. (Sec. 23, par. 1)
Q: When maya member life insurance coverage?
obtain
optional
A: 1.
A member may at any time apply for himself and/or his dependents an insurance and/or pre-need coverage embracing: a. Life b. Memorlal plans c. Health d. Education e. Hospitalization f. Other plans as maybe designed by GSIS
2.
Any employer may apply for group insurance coverage for its employees.
Q: When will it be paid? A: Upon the death of: 1. An active member 2. A member who has been separated from the service but is entitled to future separation or retirement benefits 3. A member who is a pensioner (excluding survivorship pensioners) 4. A retiree who is at the time of his retirement was of pensionable age, at least 60 years old, who opted to retire under RA 1616.
Loan Grant ,
Life Insurance
Benefits Q: Where can GSIS loans be invested
Q: What are the classes coverage?
A: 1.
A: 1. 2.
Compulsory life insurance Optional life insurance . 2.
Note: The plans may be endowment or ordinary life.
Q: When does compulsory coverage
life insurance
2.
In direct housing loans to members and group housing projects secured by first mortgage giving priority to the low income groups In short and medium term loans to members such as salary, policy, educational, emergency stock purchase plan, and other similar loans
take effect?
A: All Ees including the members of the Judiciary and the Constitutional Commissioners except for Members of the AFP, the PNP, BFP and BJMP, shall, under such terms and conditions as may be promulgated by the GSIS, be compulsorily covered with life insurance, which shall automatically take effect as follows: 1.
in?
of life insurance
Those employed after the effectivity of this Act, their insurance shall take effect on the date of their employment; For those whose insurance will mature after the effectivity of this Act, their insurance shall be deemed renewed on the day following the maturity or expiry date of their insurance;
Q: What is the prescriptive the benefits?
period
to claim
A: GR: 4 Years from the date of contingency XPN: Life insurance 28)
Q: What is the process of claims benefits?
and disputes
and retirement
(Sec.
for the adjudication regarding the GSIS
A: The quasi-judicial functions of the GSIS shall be vested in its Board of Trustees. 1.
The GSIS, in appropriate cases, or any person whose rights are or may be prejudiced by the operations or enforcement of R.A. 8291 and other
UST GOLDEN NOTES 2010 laws administered by the GSIS, may file a petition before the GSIS either personally or through counsel.
2.
Within 15 days from receipt of the notice of decision or award, the aggrieved party may appeal the decision of the GSIS Board of Trustees to the CA. Appeal shall be taken by filling a verified petition for review with the CA. (Sec 1 to 5, Rule 43, Rules of Court)
,
3.
When no appeal is perfected and there is no order to stay by the Board, by the CA or by the SC, any decision or award of the Board shall be enforced and executed in the same manner as decisions of the RTC. Note: The social security benefits shall be exempt from attachment,
Q: State the 1. The 2. The 3. The
A:
respective coverage of: Social Security Law Revised Government Service Insurance Ees Compensation Act.
Social Security Law
Compulsory upon all E e s not over 60 years of age and their Ers. 1.Filipinos recruited in the Phils. by foreign - based Ers for employment abroad may be covered by the SSS on a voluntary basis.
garnishment, execution, levy or other processes issued by the courts, quasijudicial bodies or administrative agencies including the Commission on Audit, disallowances, and from all financial obligations of the members. Q: May a member enjoy the benefits provided for in the Revised GSIS Act simultaneous with similar benefits provided under other laws for the same contingency? A: Whenever other laws provide similar benefits for the same contingencies covered by this Act, the member who qualifies to the benefits shall have the option to choose which benefits will be paid to him. However, if the benefits provided by the law chosen are less than the benefits provided under this Act, the GSIS shall pay only the difference. (Sec. 55)
Act and
Revised Government Service Insurance Act Compulsory for all permanent Ees below 60 years of age upon appointment to permanent status, and for all elective officials for the duration of their tenure.
Employees Compensation Act Compulsory upon all Ers and their Ees not over 60 years of age; Provided, that an Ee who is over 60 years of age and paying contributions to qualify for the retirement or life insurance benefit 1. Any person, whether elected administered by the System shall or appointed, in the service of an be subject to compulsory coverage. Er is a covered Ee if he receives compensation for such service.
2. Compulsory upon all selfemployed persons earning P1 ,800 or more per annum. Note: The Ees Compensation Commission shall ensure adequate coverage of Filipino Ees employed abroad, subject to regulations as it may prescribe. (Art. 170) Any person compulsorily covered by the GSIS including the members of the AFP, and any person employed as casual, emergency, temporary, substitute or contractual, or any person compulsorily covered by the SSS are covered by the Ee's Compensation Program. (1997 Bar Question)
U N I V E R 5 I T Y 0 F SAN ToT 0 M A '5 Pacu(taa ae !J)erecno CiviC
241
SOCIAL LEGISLATION:
PORTABILITY LAw
Q: What is the limited portability rule? A: A covered worker who transfers employment from one sector to another or is employed on both sectors, shall have creditable services. or contributions on 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 in either or both Systems. (Sec. 3) All contributions paid by such member personally, and those that were paid by his employers to both Systems shall be considered in the processing of benefits which he can claim from either or both Systems. (Sec. 4) Q: How are the "portability" provisrons of R.A. No. 7699 beneficial or advantageous to SSS and GSIS members in terms of their creditable employment services in the private sector or the government, as the case may be, for purposes of death, disability or retirement? A: Portability provisions of R.A. No. 7699 shall benefit a covered worker whose creditable services or contributions in both systems credited to his service or contribution record in each of the system and shall be totalized for purposes of old-age, disability, survivorship and other benefits. (Sec. 3) The "portability" provisions of R.A. 7699 allow the transfer of funds for the account and benefit of the worker who transfers from one system to another. This is advantageous to the SSS and GSIS members for purposes of death, disability or retirement benefits. In the event the employees transfer from the private sector to the public sector, or vice-versa, their creditable employment services and contributions are carried over and transferred as well. (2005 Bar Question)
242
Academics Committee Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Lqyout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
UST GOLDEN NOTES 2010
Q: What is the concept benefits?
of paternity
leave
A: Notwithstanding any law, rules and regulations to the contrary, every married male employee in the private and public sectors shall be entitled to a paternity leave of 7 days with full pay for the first 4 deliveries of the legitimate spouse with whom he is cohabiting. Q: What is paternity
leave?
A: It refers to the benefits granted to a married male employee allowing him not to report for work for 7 days but continues to earn the compensation therefore, on the condition that his spouse has delivered a child or suffered a miscarriage for purposes of enabling him to effectively lend support to his wife in her period of recovery and/or in the nursing of the newly-born child. Q: What are the requirements avail paternity leave?
in order to
A: The male employee (Ee) applying for paternity leave shall: 1. Notify his employer (Er) of the pregnancy of his legitimate spouse and 2. The expected date of such delivery. 4
Q: What are the conditions to paternity leave?
2. 3.
4.
•••.
,r~•.,
"fIIY.'
for entitlement
•
Academics Committee
A: The male Ee is; 1.
.~
Legally married to, and is cohabiting with the woman who delivers the baby Ee of private or public sector; Only for the first 4 deliveries of legitimate spouse with whom he is cohabiting; and Notify his Er of the pregnancy of his legitimate spouse and the expected date of such delivery
Chairperson: Abraham D. Genuino II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Lqyout & Design: Loise Rae G. Naval
Labor Law Committee Subject Head' Lester Jay .AlanE. Flores II Assistant Subject Head: Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angelika Roman
Note: For purposes of this Act, delivery shall include childbirth or any miscarriage.
UN I V E R SIT Y 0 F SAN ToT
Pacu{taa
ae Verecno
0 MAS'
Civif
243
SOCIAL LEGISLATION:
SOLO PARENTS WELFARE ACT OF Q; Who shall be eligible
Q Who is a "solo parent"? A: Any individual who falls under any of the ft. categories:
Provided, however, That any solo parent whose income is above the poverty threshold shall enjoy the benefits mentioned in Sec. 6, 7 and 8 of this Act. Q: What are the benefits parent?
2. Parent
A:
with the due to:
a. Death of spouse; b. Detention or service of sentence of spouse for a criminal conviction for at least 1 yr; c. Physical and/or mental incapacity of spouse d. Legal separation or de facto separation from spouse for at least 1 yr as long as he/she is entrusted with the custody of the children; e. Nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children; f. Abandonment of spouse for at least 1 yr;
3.
Unmarried mother/father who has preferred to keep and rear his or her child/children instead ot. a. having others care for them or b. give them up to a welfare institution;
Q: What is a flexible
work schedule?
Provided: That any Er may request exemption from the above requirements from the DOLE on certain meritorious grounds, (Sec 6) Q: What is parental leave? A: Leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities - where physical presence is required. In addition to leave privileges under existing laws, parental leave of not more than 7 working days every year shall be granted to any solo parent Ee who has rendered service of at least 1 year. (Sec. 8)
5. Any family member who assumes the
244
to a solo
A: The right granted to a solo parent Ee to vary his/her arrival and departure time without affecting the core work hours as defined by the Er.
a. parental care and b. support to a child or children;
Note: A change in the status or circumstance of the parent claiming benefits under this Act, such that helshe is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these benefits. (Sec.3)
available
1. Flexible work schedule (Sec. 6) 2. No work discrimination (Sec. 7) 3. Parental Leave (Sec. 8) 4. . Educational Benefits (Sec. 9) 5. Housing Benefits (Sec, 10) 6. Medical Assistance (Sec 11)
4. Any other person who solely provides:
responsibility of head of family as a result of the: a. death, b. abandonment, c. disappearance or , d. prolonged absence of the parents or solo parent.
for assistance?
A; Any solo parent whose income in the place of domicile falls below the poverty threshold as set by the NEDA and subject to the assessment of the DSWD worker in the area,
1. A woman who gives birth as a result of rape and' other crimes against chastity even without a final conviction of the offender, provided, That the mother keeps and raises the child; left solo or alone responsibility of parenthood
2000
Q: What benefits? A:
is
The DECS, provide the privileges:
the
rule
on
educational
CHED and TESDA following benefits
shall and
1. Scholarship programs for qualified solo parents and their children in institutions of basic, tertiary and technical/skills education; and
UST GOLDEN NOTES 2010 2.
Nonformal education programs appropriate for solo parents and their children. (Sec. 9)
Q: What is the rule on housing benefits? A: Solo parents shall be given allocation in housing projects and shall be provided with liberal terms of payment on said government low-cost housing projects in accordance with housing law provisions prioritizing applicants below the poverty line as declared by the NEDA. (Sec. ~10) ~
Academics Committee
Chairperson: Abraham D. Genuino n Vice-Chair for Academics: Jeannie A Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layout & Design: Loise Rae G. -aval
Labor Law Committee SII€ject Head' Lester Jay Alan E. Flores Assistant Subject Head' Domingo B. Diviva \-
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A Diaz Angelo S. Diokno Genesis R. Fulgencio J eanelle C. Lee J emuel Paolo M. Lobo Andrew W. Montcsa Maria Maica Angelika Roman
UNIVERSITY
OF SANTO
PacuCtaa
TOMAS
de Verecno
Civi]
245
SOCIAL LEGISLATION: PERA 2.
Q: What Retirement
is the Account
Personal (PERA)?
Equity
A: Any person with the capacity to contract and possesses a tax identification number who establishes and makes contributions to a PERA. establish
more than 1
A: Yes. A Contributor may create and maintain a maximum of 5 PERAs, at anyone time, provided that the contributor shall designate and maintain only one administrator for all his PERA. to the Ers if they
A: If a private Er decides to Ees PERA, the amount shall deduction from the Ers However, the Er must also mandatory SSS contribution pay.
Q: How much mayan
contribute to its be allowed as a gross income. comply with the and retirement
Er contribute?
A: The Er can only contribute up to the extent of the amount allowable to the contributor/Ee. Q: When can a distribution
A:
1.
246
Upon the death of the contributor, irrespective of the age of the contributor at the time of his death a complete distribution shall be made.
Q: What is early withdrawal?
A:
be made?
Upon reaching the age of 55 years: Provided, That the contributor has made contributions to the PERA for at least 5 years. The distribution shall be made in either lump sum or pension for a definite period or lifetime pension, at the option of the contributor. The contributor, however, has the option to continue the PERA; or
GR: 1. Any withdrawal of PERA assets before reaching the age of 55 or the death of the contributor;
2.
Any withdrawal of PERA assets before the contributor has made contributions to his PERA for at least 5 years; or
XPN: When the entire proceeds from such withdrawal are immediately transferred to another PERA Investment Product andlor another administrator.
Q: What is a contributor?
Q: What is the benefit contribute?
2008
and
A: It is a voluntary retirement account established by and for the exclusive use and benefit of a contributor for the purpose of being invested solely in PERA investment products in the Philippines. The contributor shall retain the ownership, whether legal or beneficial, of funds placed therein, including all earnings of such funds. He makes all investment decisions pertaining to his PERA, with an option to appoint an Investment Manager.
Q: Can a contributor PERA?
ACT OF
Q: What is the penalty on early withdrawal? A: The penalty would be equal to the tax incentives enjoyed by the Contributor during the entire period of the PERA (lRR, Rule 15) Q: When can there without a penalty?
be an early withdrawal
A:
No early withdrawal penalty shall be imposed on any withdrawal of any funds for the following purposes:
1.
For payment of accident or iIInessrelated hospitalization in excess of 30 days attested by a notarized doctor's certificate; and
2.
For payment to a contributor who has been subsequently rendered permanently totally disabled as defined under the Ee's Compensation Law, Social Security Law and Government Service Insurance System Law together with a certification from the pertinent government agency.
UST GOLDEN NOTES 2010 COMPREHENSIVE
AGR.A.R.IA.N.REFORM
L.A.W.O.F.1988
• R.A.66S7. 'Asameridedby R.A. 9700
Q: What are the Constitutional Provisions governing Comprehensive Agrarian Reform Law (CARL)?
A: 1.
2. 3. 4. . 5.
6.
Sec. 9, Art. II, Declaration of Principles and State Policies; Sec. 9, Art. III, Bill of Rights; ~ Sec. 7, Art. X: Local Government; Sec. 1 - 3, Art XII, National Economy and Patrimony; Sec. 4- 6 and 8, Art. XIII, Social Justice and Human Rights; Sec. 22, Art. XVIII, Transitory Provisions
Q: What are the principle the State in the enactment
and policies of of CARP Law of
1988? A: The welfare of the landless farmers and farm workers will receive t~e highest consideration to promote social justice and to move the nation towards sound rural development and industrialization, and the establishment of owner cultivatorship of economic-sized farms as the basis of Philippine agriculture. The State shall promote industrialization and full employment based on sound ag'ricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets, taking into account tillers' rights and national food security. The agrarian reform program is founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a share of the fruits thereof. The State shall recognize and enforce the rights of rural women to own and control land, to receive a just share of the fruits thereof, and to be represented in advisory or appropriate decision-making bodies. These rights shall be independent of their male relatives and of their civil status.
The State shall protect the rights of subsistence fishermen to the preferential use of communal marine and fishing resources. It shall provide support through appropriate technology and research, adequate financial, production and marketing assistance and other services. The State shall provide incentives to landowners to invest the proceeds of the " agrarian reform program to promote industrialization, employment and privatization of public sector enterprises. Note: R.A. 6657 has not been superseded by the CARPER Law or R.A. 9700 but strengthens or improves the CARL. Q: Upon what right is the agrarian reform program to be undertaken by the State founded? A: It is founded on the right of the farmers and regular farmworkers, who are landless, to own directly or collectively, the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. (Sec. 4, Art. XII, 1987 Constitution) Q: What is agrarian
reform?
A: Agrarian reform means the redistribution of lands, regardless of crops or fruits produced, to farmers and regular farm workers who are landless, irrespective of tenurial arrangement, to include the totality of factors and support services designed to lift the economic status of the beneficiaries and all other arrangements alternative to the physical redistribution of lands, such as production or profit-sharing, labor administration, and the distribution of shares of stock which will allow beneficiaries to receive a just share of the fruits of the lands they work. [Section 3 [a]) Q: What is agriculture, agricultural enterprise or agricultural activity? A: It means the cultivation of the soil, planting of crops, growing of fruit trees, including the harvesting of such farm products, and other farm activities and practices performed by a farmer in conjunction with such farming operations done by persons whether natural of juridical. (Section 3 [bJ, as amended by R. A.
7881)
This land-sharing shall be subject to prior rights, homestead rights of small settlers and the rights of indigenous communities to their ancestral lands. UNIVERSITY
OF SANTO
PacuCtaa
de
TOMAS'
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SOCIAL LEGISLATION: AGRARIAN REFORM Q: What is an agricultural land? A: It refers to land devoted to agricultural activity as defined in this Act and not classified as mineral, forest, residential, commercial or industrial land. (Sec. 3 [cl) To make the land agriculture, it is not enough that crops are grown or animals are raised thereon; the land must be by destination devoted to agricultural production; if the raising of crops or animals are simply incidental to the principal purpose, the land is not agricultural. (PNR v. Han. Del Valle, et. aI., G.R. No. L29381, Sep. 30, 1969) . Q: Is the conversion of agricultural land to non-agricultural land allowed? A: No. Under the CARPER Law, irrigated and irrigable lands, shall not be subject to conversion. (Sec. 22, R.A. 9700) Any conversion to avoid CARP coverage is a prohibited act.(Sec. 24, R.A. 9700) Q: What is an agrarian dispute?
A: It refers to any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise, over lands devoted to agriculture, including disputes concerning the fannworkers' association or representation of person in negotiating, fixing, . maintaining, changing, or seeking to arrange terms or conditions of such tenurial arrangements. It includes controversy relating to compensation of lands acquired under this Act and other terms and conditions of transfer of ownership from landowners to fannworkers, tenants and other agrarian reform beneficiaries, whether the disputants stand in the proximate relation of farm operator and beneficiary, landowner and tenant, or lessor and lessee (Sec. 3 (d), RA 6657) Q: The guardians over properties owned by one Almendras initially soid, with the approval of the guardianship court the lots comprlsmg the subject plantation to petitioners. Thereafter, the respondents filed an ejectment case against petitioners and also filed a Complaint, before the DAR, alleging that, Almendras installed them in the late 40's and early 50's as share tenants, tenant-tillers, and farmworkers in the plantation. Provincial Adjudicator decided in favor of respondents. Petitioners appealed the decision to the DARAB.
243
Are the essential elements of agricultural tenancy are supported by the evidence, therefore considering respondents as legitimate share tenants? A: No. It is settled that the existence of a tenancy relationship cannot be presumed. There must be evidence to prove it. For a tenancy relationship to exist, the following essential elements must concur: The 1. 2. 3. 4. 5. 6.
The parties are the landowner and the tenant or agricultural lessee; The subject matter of the relationship is an agricultural land; There is consent between the parties to the relationship; The purpose of the relationship is to bring about agricultural production; There is personal cultivation on the part of the tenant or agricultural lessee; and The harvest is shared between landowner and the tenant or agricultural lessee.
Of the essential elements of a tenancy relationship, the records do not show that the first, third, and fourth proved by substantial
elements had been evidence. No written
tenancy contract or proof of acts implying a mutual agreement to enter into a tenancy contract between Almendras and respondents was proffered. Respondents not being tenants, the case is not an agrarian dispute, hence, beyond the DARAB's jurisotction. It was,
therefore, error for the Court of Appeals to reverse the DARAB finding that, among other things, respondents failed to prove their status as bona fide tenantsllessees of the plantation. (Dalwampo, et al. G.R. No. 160614, Morales)
V.
Quinocol Farmers, et al., Apr. 25, 2006, J. Carpio-
UST GOLDEN NOTES 2010 Q: Distinguish
A: I., ~ ,
a farmer from a farmworker.
,farmer
:
0
Farmworker A. natural person who renders service for value as an employee or laborer in an agricultural enterprise or farm regardless of whether his compensation is paid on a datly, weekly, monthly or "pafyaw" basis, The term includes an individual whose work has ceased as a consequence of, or in connection with, a pending agrarian dispute who has not obtained a substantially equivalent and regular farm employment, (Sec. 3 -
Refers to a natural person whose primary livelihood is cultivation of land or the production of agricultural crops either by himself, or primarily with the assistance of his immediate farm household, whether the land is owned by him, or by another person under a leasehold or share tenancy agreement or arrangement with the owner thereof. (Sec, 3 (f])
9 Q: What are farmworkers?
A: Regular Farmworker Natural person who is employed on a permanent basis by an agricultural enterprise or farm. (Sec. 3 (hJ)
I
the
classifications
Seasonal Farmworker Natural person who is employed on a recurrent, periodic or interm ittent basis by an agricultural enterprise or farm, whether as a permanent or a nonpermanent laborer, such as "dumaan", "sacada", and the like. (Sec. 3 [iJ)
(BARC) to first certify that the potential beneficiaries are Farmers or Regular Farmworkers actually tilling the lands and the list should by attested under oath by the Landowner and lastly will state under oath before a judge that he/she is willing to work on the land and make it productive and assume the obligation of paying the amortization. Q: Under the CARPER Law in what form should land be awarded to the beneficiaries? A: As a matter of policy in the CARPER law, land awarded should be in the form of individual title. Note: Award of the land must be in actual and physical possession of the land in contrast with non-distributed schemes like Leaseback agreements and Stock distribution open. (R.A. 9700) Q: What are the conditions CARPER law for the issuance titles?
under the of collective
A: The conditions for the issuance of collective titles are as follows:
of
I farmworker Other Farmworker who does not fall under paragraphs (g), (h) and (i), (Sec. 3 {jJ)
1.
The current farm management system of the land covered by carp will not be appropriate for individual farming of farm parcels;
2,
The farm labor system is specialized, where the farmworkers are organized by functions and not by specific parcels such as spraying, weeding, packing and other similar functions;
3,
The potential beneficiaries are currently not farming individual parcels but collectively work on large contiguous areas; and
4.
The farm consists of multiple crops being farmed in an integrated manner or includes non-crop production areas that are necessary for the viability of farm operations, such as packing plants, storage areas, dikes, and other similar facilities that cannot be subdivided or assigned to individual farmers. (Sec. 10, R.A. 9700)
Note: Tenants and Regular Farmworkers Are First Priority Beneficiaries. (Sec. 8, R.A. 9700) Under the CARPER law a new procedure for the identification of agrarian reform beneficiaries requires the Barangay Agrarian Reform Council UNIVERSITY
OF
Pacu(taa
SANTO
TOMAS
d«
c· .• " 249
SOCIAL LEGISLATION: AGRARIAN REFORM Q: A Certificate of Land Ownership Award (CLOA) was issued to the owner, Cristobal Olar covering the subject lot. Respondents, OIar's legal heirs, allowed Spouses Capitle to occupy the lot. Subsequently, Spouses Capltle did not pay rentals despite demand, and neither did they heed the demand to return the possession of the lot, claiming that they have been in possession of the lot since 1960 and even presented a "Waiver of Rights" executed by Olar wherein he renounced in their favor his rights and participation over the lot. Spouses Capitle then filed before the Municipal Agrarian Reform Officer a petition for cancellation of the CLOA issued to Olar, claiming that they are the new farmer-beneficiaries as shown by the "Waiver of Rights" executed by Olar In the presence of the Brgy. Chairman. Can the Spouses Capitle can. be considered as farmer-beneficiaries of the subject lot?
A: No. Spouses Capitle's argument that "it would be absurd for Olar to bequeath his property to his estranged wife not to a relative who had indeed helped him in tilling the property and took good care of his needs," is a virtual admission that their possession was not in the concept of owners, they having merely "helped" in tilling the lot, thereby acknowledging that Olar was the actual possessor and tiller. CA is correct in saying that no amount of possession under whatever claim (actual tilling and actual possession) can clothe petitioner-appellants with any lawful right over the questioned property. It simply established the fact that petitioners-appellants' claim could in no way legally stand against Cristobal Olar, whose title under the CLOA cannot be overthrown or supplanted by some organizational resolution and/or barangay attestations/certifications. (Spouses Capitle v. Elbambuena Olar, G.R. No. 169193, Nov. 30,
1.
All alienable and disposable lands of the public domain devoted to or suitable for agriculture. Note: No reclassification of forest or mineral lands to agricultural lands shall be undertakenafter the approvalof this Act until Congress, taking into account ecological, developmental and equity considerations, shall have determined by law, the specific limits of the public domain
2.
All lands of the public domain in !!xcess to the specific limits as determined by Congress in the preceding paragraph;
3.
All other lands owned by the government devoted to or suitable for ,agriculture;
4.
All private lands devoted to or suitable for agriculture regardless of the agricultural products raised or that can be raised thereon.
Note: A comprehensiveinventory system in consonancewith the national land use plan shall be institutedby the DAR in accordance with the Local Government Code, for the purposeof properlyidentifyingand classifying farmlandswithin 1 year from effectivityof this Act, without prejudice to the implementation of the land acquisition and distribution. (As amended by R.A. 9700)
Q: What are the exempted
and excluded
lands?
A:
1.
Parks, wildlife, forest reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves.
2.
Private lands used for prawn farms and fishponds.
3.
Lands used and found to be necessary for national defense, school sites and campuses, including experimental farm stations operated educational purposes, seeds and seedlings research and pilot production center, church sites and convents, mosque sites and Islamic centers, communal burial grounds and cemeteries, penal colonies and penal farms, government and private research and quarantine centers and all lands with 18% slope and over.
2006, J. Carpio-Morales)
Q: What are the lands covered by CARP? A: All public and private agricultural lands as provided in Proclamation No. 131 and EO No. 229 (regardless of tenurial arrangement and commodity produced), incluaing other lands of the public domain suitable for agriculture: Provided, that landholdings of landowners with a total area of 5 hectares and below shall not be covered for acquisition and distribution to qualified beneficiaries.(As amended by R.A. 9700)
More specifically,
250
UST GOLDEN NOTES 2010 Q: What are the retention
A:
limits?
leaseholder. The tenant must exercise this option within a period of 1 year from the time the landowner manifests his choice of the area for retention. (Sec. 6)
GR: 5 hectares for the landowner XPN: Provincial, government units agricultural lands by modes of acquisition direct and exclusive as: 1. 2. 3. 4. 5. 6.
city and municipal acquiring private expropriation or other to be used for actual, public purposes, such
Q: What is the retention LGUs?
Note: There are two limitations to this exemption: 1. The use of the land must be actual, direct and exclusive; and 2. The use must be consistent with the approved comprehensive land use plan17. Moreover, if the land is covered under CARP and the LGU wants to use it for one of the public purpose mentioned earlier then it must be expropriated first and the farmers therein must be justly compensated.
Provided, that lands subject to CARP shall first undergo the land acquisition and distribution process of the program:
7.
3 hectares may be awarded to each child of the landowner, provided: a. at least 15 years of age b. actually tilling or managing the farm Provided, that original homestead grantees or direct compulsory heirs -who still own the original homestead - shall retain the same areas as long as they continue to cultivate said homestead.
Q: Who has the right to choose
area to be
retained? A: It shall pertain to the landowner. Provided, that in case the area selected for retention by the landowner is tenanted, the tenant shall have the option: 1. To remain or 2. Be a beneficiary in the same or another agricultural land with similar or comparable features. Note: If tenant chooses to remain, he shall be considered a leaseholder and shall lose his right to be a beneficiary under this Act. In case the tenant chooses to be a beneficiary in another agricultural land, he loses his right as a
of
A: LGUs except the 8arangays can own agricultural lands beyond the 5-hectare limit set by CARL. This privilege is only applicable to lands that will be used for public purposes such as roads, bridges, public markets, school, resettlement, LGU facilities, public parks and barangay plazas.
roads and bridges public markets school sites resettlement sites local government facilities public parks and barangay plazas or squares, consistent with the approved local comprehensive land use plan
Provided, further, That when these lands have been subjected to expropriation, the agrarian reform beneficiaries therein shall be paid just compensation. (As amended by R.A. 9700)
limit exemption
Q: Constructed on respondent's parcel of land are houses occupied by its workers. Spouses Pasco used to work for respondent until '87 when they ceased to be Ee's of the respondent They were asked to vacate the house they were occupying but they refused, hence, respondent filed a complaint for unlawful detainer against them before the MTCC. Spouses Pasco claimed that they built the house occupied by them at their own expense and their stay on the land was upon the tolerance of respondent. MTCC ordered petitioners to vacate the premises. After the promulgation of the decision, the Municipal Agrarian Reform Office sent a Notice of Coverage and Field Investigation adviSing respondent that its parcel of land is now covered under RA. 6657 or CARL, and inviting the presence of a representative to a field lnvestlqation. Can a person who has been identified by the DAR as potential agrarian reform benefiCiary may be ejected from the land where he is identified as such, by the landowner, who has already been notified by the DAR of the coverage of his land by the CARP? A: Yes. A Notice of Coverage does not ipso facto render the land a land reform area. The owner retains its right to eject unlawful
UNIVERSITY
OF SANTO
PacuCtad
TOMAS
de
~••
.
.'
251
SOCIAL LEGISLATION: possessors of his land, as what respondent did in the present case. As for the registration of petitioners as potential CARP beneficiaries, the same does not help their cause. As "potential" CARP beneficiaries, they are included in the list of those who may be awarded land under the CARP. Nothing in the records of the case shows that the DAR has made an award in favor of petitioners. (Spouses Pasco vs. PisonArceo Agricultural and Dev't Corp., G. R. No. 165501, Mar.2B, 2006, J. Carpio-Morales) Q: Who are landless
AGRARIAN REFORM Q: What are the modes of payment compensation to the land owner? A: At the option of the landowner paid in any of the following mode: 1.
beneficiaries? b.
agricultural land. Q:What
are the modes of land acquisition?
A: 1. 2.
c.
Voluntary offer to sell (VaS) Compulsory acquisition;
Note: No more Voluntary Land Transfer (VLT) after June 30, 2009. (R.A. 9700). VLT has been abused by the landowners to put people who are not qualified or people who are loyal to them as beneficiaries. Q: What are the considered in the compensation?
A:
1. 2. 3.
4. 5. 6. 7. 8. 9.
circumstances determination
As additional factors: 1. Social and economic benefits contributed by the farmers and the farm workers and by government to the property 2. Non-payment of taxes or loans secured from any government financing institution on the said land
252
For lands above 50 hectares, insofar as the excess hectarage is concerned - 25% cash, the balance to be paid in government financial instruments negotiable at any time. For lands above 24 hectares and up to 50 hectares - 30% cash, the balance to be paid in government financial instruments negotiable at any time. For lands 24 hectares and below - 35% cash, the balance to be paid in government financial instruments negotiable at any time.
2.
Shares of stock in government-owned or controlled corporations, LBP preferred shares, physical assets or other qualified investments in accordance with guidelines set by the PARC;
3.
Tax credits which can be used against any tax liability;
4.
LBP bonds, which shall have the following features: a. Market interest rates aligned with 9 1-day treasury bill rates - 10% of the face value of the bonds shall mature every year from the date of issuance until the 10th year: Provided, That should the landowner choose to forego the cash portion, whether in full or in part, he shall be paid correspondingly in LBP bonds; b. Transferability and negotiability.
to be of just
The cost of acquisition of the land the value of the standing crop The current value of like properties Its nature Actual use and income Sworn valuation by the owner Tax declarations Assessment made by government assessors 70% of the zonal valuation of BIR, translated into a basic formula by the DAR subject to the final decision of the proper court.
he shall be
Cash payment, under the following terms and conditions:
a.
A: One who owns less than 3 hectares of
of
UST GOLDEN NOTES 2010 Q: May lands acquired under the CARL be sold, transferred or conveyed?
A: GR: Lands acquired by beneficiaries under this Act may not be sold, transferred or conveyed. XPN:
1. 2. 3.
Through hereditary succession, or To the government, or To the LBP, or 4. To other qualified benefieiaries .iot a period of 10 years: ~ Provided, however, that the children or the spouse of the transferor shall have a right to repurchase the land from the government or LBP within a period of 2 years. Q: Is the executory?
decision
of
DAR
cases involving irrespective of the relationship?
agricultural lands presence of tenancy
A: No. The allegations in petitioners' com pia, show that the action is one for recovery f possession, not one which involves a agrarian dispute. It is the RTC which has jurisdiction over it and not DARAB. T e respondents' only basis in assailing the jurisdiction of the trial court is that the subj : matter of the case is an agricultural land and that they do not deny at all the allegation of e complaint of petitioners that there is tenancy or leasehold agreement betwee them; it unmistakably shows that there is n agrarian dispute to speak of. (Sindico, vs Gerardo Diaz;, G.R. No. 147444, Oct. 1, 2004, J. Carpio-Morales)
immediately
A: Yes, Notwithstanding an appeal to the Court of Appeals, the decision of the DAR shall be immediately executory, except a decision or a portion thereof involving solely the issue of just compensation. Q: When will controversy?
DAR
decide
the
case
or
A: Any case or controversy before it shall be decided within 30 days after it is submitted for resolution. Only 1 motion allowed.
for
consideration
shall
be
Any order, ruling or decision shall become final after the lapse of 15 days from receipt of a copy thereof.
Academics Committee Chairperson: Abraham D. Genuino _: Vice-Chair Jar Academics: eanrue A. Laurenuno Vice-Chair jor Admin & Finance: Aissa Celine H. LulJ2. Vice-Chair Jar Layout & Design: Loise Rae G. ~ ava,
J
Q: Virgilio
Sindico, joined by his wife, filed a civil case before the RTC of Iloilo City against his first cousin Felipe Sombrea, along with the latter'S wife, for Accion Reinvindicatoria. After the defendants received the summons, they filed a Motion to Dismiss (MD) the complaint, alleging that the RTC has no jurisdiction over their person and that as the subject matter of the case is an agricultural land which is covered by the CARP of the government, the case is within the exclusive original jurisdiction of the DARAB in accord with Sec. 50 of the CARL of 1988. To the MD, the plaintiffs filed an Opposition alleging that the case does not involve an agrarian dispute, there being no tenancy relationship or leasehold agreement with the defendants. Does the DARAB have original and exclusive jurisdiction over
Labor Law Committee Subject Head' Lester Jay Alan E. Flores Assistant Subject Head' Domingo B. Diviva -
Members: Rene Francis P. Bar a Diane Camilla R. Bo '2 Maria Kristina L. Dacayo-Garm Christian Nino /\. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee ] emuel Paolo M. Lobo Andrew W. Monte sa Maria Maica Angelika Roman
UNIVERSITY
OF SANTO
PacuCtaa
TOMAS'
ae (])ereclio CiviC
(.
SOCIAL LEGISLATION:
ACT AGAINST CHILD LABOR 2.
Q: What is child labor? A: Any work or economic activity performed-by a child that subjects him or her to any form of exploitation or is harmful to his or her health and safety or physical, mental or psychosocial development. Q: Who is a working
child?
A: Any child engaged as follows: 1. When the child is below 18 years of age in a work or economic activity that is not child labor; or 2. When the child is below 15 years of age: a. In work where he/she is directly under the responsibility of his/her parents or legal guardian and where only members of the child's family are employed; or b. In public entertainment or information Q: When may the State intervene of the child?
A:
in behalf
1.
The parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination; or
2.
When such acts are committed against the child by the said parent, guardian, teacher or person having care and custody over the child
Q: Can children employed?
below
15 years of age be
A: GR: No.
XPN: 1. When a child works directly under the sale responsibility of his/her parents or legal guardian and where only members of his/her family are employed, Provided that: a. His employment neither endangers his life, safety, health and morals, nor impairs his normal development; and b. The parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education
254
Where
the
child's employment or in public entertainment or information through cinema, theater, radio, television or other forms or media is essential, Provided: a. The employment contract is concluded by the child's parents or legal guardian with the express agreement or the child concerned, if possible, and the approval of DOLE b. The following requirements are complied with: i. The Er shall ensure protection, health, safety, morals and normal development of the child ii. The Er shall institute measure to prevent the child's exploitation or discrimination taking into account the system and level of remuneration and the duration and arrangement of working time iii. The Er shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child iv. The child is provided with at least mandatory elementary or secondary education
petticipetion
Q: What is the limitation work of a working child?
on the hours
of
A: If the child is: 1. Below 15 years of age - not more than 20 hours a week and not more than 4 hours a day Not allowed to work between 8:00 pm - 6:00 am 2.
At least 15 years of age but below 18 years of age - will not exceed 8 hours a day or 40 hours a week Not allowed to work between 10:00 pm - 6:00 am
UST GOLDEN NOTES 2010 Q: What are the worst forms of labor?
A: 1.
All forms of slavery (Anti-Trafficking of Persons Act of 2003) or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict;
2.
The use, procuring, Qffering. or exposing of a child pornography or for pornographic performances;
3.
The use, procuring, offering or exposing of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws;
4.
Work which, by its nature or circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children ..
Q: Who can file a complaint for unlawful acts committed against children?
A:
1. 2. 3. 4. 5. 6.
7.
Offended party Parents or guardians Ascendants or collateral relatives within the 3'd degree of consanguinity Officer, social worker or representative of a licensed childcaring institution Officer or social worker of DSWD Barangay chairman of the place where the violation occurred, where the child is residing or employed At least 3 concerned, responsible citizens where the violation occurred
Academics Commi ee Chairpmon: Abraham D. Gen Vice-Chair for Academics:] eannie A. Laurenc.o; Vice-Chair for Admin & Finance: Aissa Celine H. u= Vice-Chair for LayOlit & Design: Loise Rae G. _.:;:,'"-
Labor Law Committee Subject Head' Lester] ay Alan E. Flores ::-= .Assistaat Subject Head' Domingo B. Diviva --
Which courts have jurisdiction over offenses punishable under R.A. 9231? Q:
Members. Rene Francis P. B:e.~ Diane Camilla R. Bc r i Maria Kristina L. Dacavo-Garcu Christian Nino _\. .l2" Angelo . Dicker Genesis R. Fulgenc.c ]eanelle C ~ lemuel Paolo -!. :......~<
A: The Family Courts shall have original jurisdiction over all cases involving offenses punishable under this Act
Andrew \'C _ 1or::e;~ Maria Maica Angelika Rorruz
UNIVERSITY
OF SANTO
PacuCtaa
TOMAS'
ae ([)erecfw CiViC
255
~•...•.•...•.•
-~-
SOCIAL LEGISLATION:
Q: What is the policy enacting the MeW?
of
the
State
MAGNA CARTA OF WOMEN
in
A: The State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address discrimination and inequality in the economic, political, social, and cultural life of women and men. Q: What is discrimination
against
women?
A: Any gender-based distinction, exclusion, or restriction which has the effect or purpose of impamng or nUllifying the recognition, enjoyment, or exercise by women, irrespective of their marital status on a basis of equality of men and women, of human rights. It includes any act or omission, including by law; policy, administrative measure, or practice, that directly or indirectly excludes or restricts women in the recognition and promotion of their rights and their access to and enjoyment of opportunities, benefits, or privileges.
Q: When is a measure or practice general application considered discrimination against women?
of as
A:
A measure or practice of general application is discrimination against women if it fails to provide for mechanisms to offset or address sex or gender-based disadvantages or limitations of women, as a result of which women are denied or restricted in the recognition and protection of their rights and in their access to and enjoyment of opportunities, benefits, or privileges; or women, more than men, are shown to have suffered the greater adverse effects of those measures or practices. Note: Discrimination compounded by or intersecting with other grounds, status, or condition, such as ethnicity, age, poverty, or religion shall be considered discrimination against women under this Act.
Q: What are special women?
leave benefits
for
A: A woman Ee having rendered continuous aggregate employment service of at least 6 months for the last 12 months shall be entitled to a specialleave benefit of 2 months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders. (Sec. 18)
256
Academics Committee Chairperson: Abraham D. Genuine II Vice-Chair for Academics: Jeannie A. Laurentino Vice-Chair for Admin & Finance: Aissa Celine H. Luna Vice-Chair for Layout & Design: Loise Rae G. Naval
Labor Law Committee . Subject Head' Lester Jay Alan E. Flores II Assistant Subject Head' Domingo B. Diviva V
Members: Rene Francis P. Batalla Diane Camilla R. Borja Maria Kristina L. Dacayo-Garcia Christian Nino A. Diaz Angelo S. Diokno Genesis R. Fulgencio Jeanelle C. Lee Jemuel Paolo M. Lobo Andrew W. Montesa Maria Maica Angel.ika Roman
OVERVIEW OF THE PHILIPPINE
LABOR DISPUTE SETTLEMENT
ARTICLE 217 of the Labor Code
NLRC
.
: :
: :
;
MONEY CLAIMS under Section 10 RA 8042 as amended
(Commission Level)
• :
~
•
~)
Labor Stds Art. 129 of
L
LC
:
Injunction
~
................ . . : :
PROCEDURE
~
r:I ~
J.
-"TI
• •
Inter-Intra Union Disputes
.. -------I Representation I Issues
..•
ri -I
~------L2J Labor Stds. Art. 128 (b) LC
Notices of Strike or Lockout, other disputes for preventive mediation
••
I!I ••••••••
r----I I UNIVERSITY
tb
Unresolved GrievanceS other disputes by Parties' agreement
L
___
OF
SANTO
Pacu{tati
TOMAS
tie lDerecno CiviC
3
M •...• ~
._
257
PHILIPPINE
LABOR DISPUTE SETTLEMENT PROCEDURE
LABOR ARBITER
ARTICLE 217 of the Labor Code
(RAB)
Under Article 217 of the Labor Code as amended, Labor Arbiters shall have original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural: 1.Unfair Labor Practices; 2.Tenrnination Disputes; 3.lf accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4.Claims for actual, moral and exemplary and other forms of damages arising out of ER-EE relations; 5.Cases arising from any violation Art. 264 of the Labor Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, and all other claims arising from EE-ER relations, including those of persons in the domestic or household service, involving an amount exceeding P5,OOO regardless of whether accompanied with a claim for reinstatement. This Article enumerates the cases falling under "original and exclusive" jurisdiction of labor arbiters. This gives the impression that none but a labor arbiter can hear and decide the six categories of cases listed. But this is not really so. Any or all of these cases can, by agreement of the parties, be presented to and decided with finality by a voluntary arbitrator or a panel of voluntary arbitrators (see Articles 261-262). (AZUCENA, Everyone's Labor Code 2001) NOTE: RAB-Regional
Arbitration Branches
National Conciliation and Mediation Board
258
1 SUPREME COURT
UST GOLDEN NOTES 2010
MONEY CLAIMS under Section 10 RA 8042 as amended
----+
R.A. 8042 Migrant Workers and Overseas Filipinos Act of 1995 as amended by R.A. 10022. Section 10 of RA 8042 added to the exclusive jurisdiction of the labor arbiters money claims of Overseas Filipino workers arising from violations of their employment contract against foreign employers through their local recruitment aqency. Section 7 (R.A. 10022). Section 10 of Republic Act No. 8042, as amended, is hereby amended to read as follows: "SEC. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage. Consistent with this mandate, the NLRC shall endeavor to update and keep abreast with the developments in the global services industry ... n NOTE: RAB-Regional
1 SUPREME COURT
Arbitration Branches
UNIVERSITY
OF
PacuCtaa
SANTO
TOMAS
ae ([)erecfio Civi!
'C~·~.259 .~.
PHILIPPINE
LABOR DISPUTE SETTLEMENT PROCEDURE
Unresolved Grievances, Other disputes by parties' agreements
Arbitrator Voluntary
Arbitratioll
Machinery
The voluntary arbitration machinery has authority over unresolved grievances arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies (Art. 261, p.o. 442 as amended). Unresolved grievances involving distortion of wages (Art. 124, P.O. 442) and the productivity and incentives program under Section 4 (b) R.A. 6971. Other labor disputes, including those involving strikes may be referred to voluntary arbitration by agreement of the parties. ARTICLE 262. JURISDICTION OVER OTHER LABOR DISPUTES. The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties. shall hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. Art. 262 of the Labor Code provides that upon agreement of the parties, the Voluntary Arbitrator can hear and decide all other labor disputes, including termination disputes which ordinarily fall under the jurisdiction of the Labor Arbiters under Art. 217 of the Labor Code. (Apalisok v. RPN, GR No. 138094, May 29,2003, J. Carpio-Morales).
COURT OF APPEALS
Article 217 (c) should be read in conjunction with Article 261 of the Labor Code which grants to voluntary arbitrators original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies. It can thus be deduced that only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators. (Maneja v. NLRC, G.R. No. 124013 June 5,
199B).
San Miguel Corp. v. NLRC, G.R. No. 108001, March 15, 1996, Termination disputes do not necessarily involve enforcement or
In
interpretation of personnel policies because they are broad and longterm statements. As a rule, therefore termination disputes should be lodged with a Labor arbiter. But the case may be brought to voluntary arbitration if the parties, by virtue of Art. 262, state in unequivocal language that they agree to submit the termination dispute to voluntary arbitration. Even a ULP case can, by agreement of the parties, be brought before voluntary arbitration. (Azucena, Everyone's Labor Code, 2001) A Voluntary Arbitrator is a quasi-judicial instrumentality; hence, a petition for certiorari under Rule 65 of the Rules of Court will lie where a grave abuse of discretion or an act without or in excess of jurisdiction of the voluntary arbitrator is shown. The petition may be filed with the Court of Appeals.
Conciliation and
NCMB The NCMB cannot adjudicate but the it can recommend to the parties that the dispute be submitted to voluntary arbitration because the policy statement of the law is voluntary means of dispute settlement
260
~eam:_
UST GOLDEN NOTES 2010
Labor Standards Art. 128 (b) LC
Regional Office
1 Article 128 (b): Enforcement of Labor Standards Laws Art, 128 (b) of the Labor Code allows the Secretary of Labor and employment, usually through an authorized representative, to inspect places of employment and, if necessary, issue compliance orders and writs of execution to enforce "labor standards provisions" of the "labor laws". Orders issued under Art. 128 (b) by representatives of the Secretary of Labor and Employment may be appealed to the Secretary of Labor and Employment himself. Decisions of the Secretary of Labor and Employment may then be brought before the CA and thereafter, to the SC.
SUPREME COURT
The authority of the DOLE Secretary under Art. 128 may be exercised regardless of the monetary value involved. The Secretary of Labor and employment may even order the stoppage of work or suspension of operations of the inspected establishment or parts of it. If the employer is at fault, he may be ordered to pay the employees' wages during the work stoppage or suspension of operations. The requirement of due process must be observed. In Aboitiz Shipping Corp. v. De la Serna (GR No. 88538, April 25, 1990), it was held that a Regional Director of Dole has the power to order rectification of Labor Standards violation even if such violation is not mentioned in the employee's complaint.
UNIVERSITY
OF SANTO
Pacu{taa
TOMAS'
ae (/)erecFio CiviC
~~
'.
261
PHILIPPINE
LABOR DISPUTE SETTLEMENT PROCEDURE
Labor Standards Art. 129 of LC
Article 129 of the LC: Recovery of Wages, Simple Money claims and Benefits The Regional Director's authority under Art. 129 is subject to four requisites namely: 1.The claim is presented by an employee or by person employed in domestic or household service or a house helper. 2.The claim arises from ER-EE relations. 3. The claimant does not seek reinstatement. 4.The aggregate money claim of each employee or house helper does not exceed P5000. If there is a claim for reinstatement or if the claimant's demand exceeds 'P5,OOO, the labor arbiter has jurisdiction over the case pursuant to Art. 217 (6), except claims for employees' compensation, social security, Medicare, Phil health and maternity benefits. Even as regards labor arbiter, however, Er-Ee relation is a pre-requisite as basis of the claim. A decision rendered under this article, being adjudicatory, is appealable to the NLRC. (AZUCENA) Note: Under Art. 129 of the LC, the Regional Director or a hearing officer of the DOLE hear and decide disputes involving the recovery of wages for as long the aggregate claim does not exceed P5000 and reinstatement is not sought. Designed to expedite enforcement of "simple money claims", hearings are summary in nature and decisions may be appealed to the Commission -level of the NLRC.
262
SUPREME COURT
UST
Section Inter-Intra
Union Disputes
5 (Rule XI, DO 40-03)
Where to file:
Generally, Intra-Inter Union disputes are heard in administrative proceedings by the regional offices or the BLR, depending on the labor organization concerned. DO No. 40-03 provides that inter-intra union disputes are resolve by Med-Arbiters in the regional offices with the exception of petitions for cancellation of registration of labor organizati~ns and petitions for deregistration of CBA's which are resolved by the appropriate Regional Director or her appointed hearing officer. The decisions of the Med-Arbiter and the Regional Director may be appealed to the BLR. The decisions of the Bureau Director in the exercise of her original jurisdiction may be appealed to the Office of the Secretary. Note: The rules allow one motion for reconsideration and thereafter, the decision of the Bureau Director or the Secretary of Labor and Employment will be final and executory, but this is without prejudice to a petition for certiorari (Rule 65) witb the CA. Decisions of the CA may thereafter be brought to the SC by petition for review on certiorari (Rule 45).
Inter-Intra Union Disputes
2010
GOLDEN NOTES
Complaints or petitions involving: 1. Labor unions with independent registrations, chartered locals workers associations, its officers or members shall be filed with the Regional Office that issued its certificate of registration or certificate of creation of chartered local. 2. Federations, national unions, industry unions, its officers or member organizations shall be filed with the Bureau. Petitions for cancellation of registration of labor unions with independent registrations, chartered locals, worker's associations and petitions for deregistration of collective bargaining agreements shall be resolved by the Regional Director. He/she may appoint a Hearing Officer from the Labor Relations Division. Other Inter-Intra union and related labor relations disputes shall be heard and resolved by the Med-Arbiter in the Regional Office. Complaints or petitions involving federations, national unions, industry unions, trade union centers and their chartered local, affiliates or member organizations shall be filed with the Regional Office or the Bureau. The complaint or petition shall be heard and resolved by the Bureau. When two or more petitions involving the same parties and the same causes of action are filed, the same shall be automatically consolidated.
SUPREME COURT
BLR Director
Office of the Secretary
UNiVERSITY
OF SANTO
Pacu{taa,ae
TOMAS
c])ereclio Ci'Vi{
PHILIPPINE
Settlement Code
LABOR DISPUTE SETTLEMENT PROCEDURE
of Representation
Issues Under Art. 256 of the Labor
Representation Issues are heard and resolved by Med-Arbiter of the appropriate regional office. The decisions of the Med-Arbiters may be appealed to the Secretary of labor and employment (see Art. 259) whose decisions in turn may be questioned before CA (Rule 65) and thereafter the dispute may be brought by any party to the SC (Rule 45). Note: An instance which cannot be appealed is Section 17, Rule VIII of Dept. Order No. 4003 (2003) on certification elections which provides that the order granting the conduct of a certification election in an unorganized establishments shall not be subject to appeal. Any issue arising therefrom may be raised by means of protest on the conduct and results of the certification election. .
Representati on Issues
SUPREME COURT
UST GOLDEN NOTES 2010 National Conciliation and Mediation Board (NCMB) involving notices of strike or lockout arising from collective bargaining deadlocks or allegations of unfair labor practices.
SUPREME
COURT
The NCMB is a dispute-resolution arm under the administrative supervision of the Secretary of Labor and Employment. Its main task is to help settle labor disputes to prevent actual work stoppages (Azucena, Everyone's Labor Code, 2001). After the receipt of Notice of strike/lockout, the NCMB conciliatormediators call the parties to conciliation conferences. They are not judges and therefore th~y cannot re",~er ver~icts. They can also urge submission of the dispute to preventive mediation or arbitration. Under either proceedings a strike or lockout is withheld. If there is no agreement, the Secretary of Labor and Employment may intervene at any stage. The Secretary of Labor and Employment may exercise his authority under Article 263 (g) of the Labor Code to assume jurisdiction over the labor dispute or to certify the same to the Commission for compulsory arbitration when in his opinion, there exist a labor dispute causing or likely to cause a strike/lockout in an industry indispensable to national interest. (See Art. 263 (g) of the Labor Code) A notice of strike or lockout, upon agreement of parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration. (See Section 9, Rule XXII, DO 40-03).
•
• • Art. 263 (g)
Not all notices of strikes or lockouts are assumed / certified by the Secretary of Labor and Employment. There are cases which are initially subject of Notice of strike or lockout but are referred to NLRC for compulsory arbitration, like for instance ULP complaints.
• •
•
Disputes initially subject of a notice of strike or lockout may be brought under Art. 217 of the Labor Code. Note: Under Art. 263 (g), disputes certified by the Secretary of Labor and Employment under her authority to assume jurisdiction are brought directly to the NLRC (Commission-Level).
Secretary
Notices of Strike or Lockout, other dispute for preventive mediation
UNIVERSITY
OF SANTO
tf'acu{taa
TOMAS
de CDereclio CiviC
~i~ 265
PHILIPPINE
LABOR DISPUTE SETTLEMENT PROCEDURE
Article 218(e) of the Labor Code INJUNCTION INJUNCTION Petitions for injunction are initially brought to and decided at the commission level. Rule X, Sections 1 and 2 of the 2005 Revised Rules of the NLRC, providesthat: Injunction in Ordinary Labor Disputes. - A preliminary injunction or restraining order may be granted by the Commission through its Divisions pursuant to the provisions of paragraph (e) of Article 218 of the Labor Code, as amended, when it is established on the basis of the sworn allegations in the petition that the acts complained of involving or arising from any labor dispute before the Commission, which, If not restrained or performed forthwith, may cause grave or irreparable damage to any . party or render ineffectual any decision in favor of such party.
i
NLRC
Injunction in Strikes or Lockouts. - A preliminary or permanent injunction may be granted by the Commission only after hearing the testimony of witnesses and with opportunity for crossexamination in support of the allegations of the complaint or petition made under oath, and testimony by way of opposition thereto if offered. and only after a finding of fact by the Commission: a) That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof. b) That SUbstantial and irreparable petitioner's property will follow;
injury
to
c) That as tc. each item of relief to be granted, greater injury will be inflicted upon the petitioner by the denial of relief than will be inflicted upon respondents by the granting of relief; d) That petitioner has no adequate remedy at law; and e) That the public officers charged with the duty to protect petitioner's property are unable or unwilling to furnish adequate protection.
266
SUPREME COURT
UST GOLDEN NOTES 2010 Criminal Action for Illegal Recruitment (Section 5, R.A. No. 10022)
Filing of ComplaintAffidavit with Prosecutor's Office (To Conduct Preliminary Investigation)
Any Adverse decision of the Prosecutor may be appealed to the Secretary
of
(DOJ), ,)
Adverse decision of the _Secretary of Justice may be appealed to the CA by petition for certiorari under Rule 65.
Justice ,
Regional Trial Court
Finding of conviction by the RTC may be elevated to the CA by Ordinary Appeal or by writ of error under Rule
Finding of conviction by the RTC may be elevated to the SC by petition for review on certiorari under Rule 45,
The case may also be elevated to the CA by petition for certiorari under Rule 65 if proper grounds for it exists.
The case may also be
41.
elevated petition
for trial.
Section
Decision of the CA may be appealed to the Supreme Court by petition for revi ew on certi orari under Rule 45.
sc
CA If the Resolution of the Prosecutor finding probable cause for prosecution of illegal recruitment is not elevated for review with the Secretary of Justice, the Prosecutor will file the information with the
SC
CA
Prosecutor's Office
to the SC by for certiorari
under
Rule
proper
grounds
65 for
if it
exists
Section 9 ofR.A. No. 8042
5 of R.A. No. 10022
VENUE: A criminal action arising from illegal recruitment as defined herein shall be filed with the Regional Trial Court of:
Who can file an action for Illegal Recruitment? In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POE A Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office.
1.The province or city where the offense was committed ;or
2. Where
the offended party actually resides at the same time of the commission of the offense.
For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused.
Provided: The court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts.
In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator.
Provided further, that the aforestated provisions shall also apply to those criminal actions that have already been filed in court at the time of the effectivity of this Act.
The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations."
UNIVERSITY
OF SANTO
Pacu{taa
TOMAS
de CDereclio Cioi!
