Poquiz Labor Law Reviewer

This Reviewer is an Intellectual Property of Rofylyn Laureano Lagundino. PUP Law. CAVEAT: This is originally meant to be a personal reviewer, but due to insistent public demand, the author is sharing this to anyone who may benefit from it. For any typo errors and possible mistakes, please feel free to refer to your own notes. Or contact the author @ [email protected]/09225543123

LABOR STANDARDS -Minimum terms and conditions of employment relating to 1. Wages 2. Hours of Work 3. Cost-of-Living allowance 4. Other monetary and welfare benefit LABOR RELATIONS Defines and regulates: 1. Status 2. Rights 3. Duties 4. Institutional Mechanism

Labor Standards Labor Relations Social Legislation

SOURCES OF LABOR LAWS 1. Labor Code and other related special legislation 2. Contract 3. Collective Bargaining Agreement 4. Past practices 5. Company policies RIGHT OF AN EMPLOYER 1. 2. 3. 4. 5.

Conduct Business Prescribe Rules Select and Hire employees Transfer and Discharge employees Return of Investment and expansion of business

Rofylyn L. Lagundino

LIMITATION OF MANAGEMENT PREROGATIVES 1. 2. 3.

Law Contract or CBA General Principles of Fair Play and Justice

EXCEPTIONS TO THE APPLICABILITY OF THE LABOR CODE 1. 2. 3. 4.

CLASSIFICATION OF LABOR LAW 1. 2. 3.

For I know the plans I have for you,” declares the LORD, “plans to prosper you and not to harm you, plans to give you hope and a future. – Jeremiah 29:11

5. 6.

Government EEs EEs of govt corporations w/ original charter Foreign Governments International Agencies/ EEs of inter-governmental or international organizations Corporate officers EEs of local water districts

KINDS OF LABOR DISPUTES 1.

Labor standard disputes a. Compensation b. Benefits c. Working Conditions 2. Labor relations disputes a. Organizational right disputes/ULP b. Representation disputes c. Bargaining disputes d. Contract administration or personnel policy disputes. e. Employment tenure disputes 3. Inter-union dispute 4. Intra-union dispute 5. Rights disputes 6. Interest disputes 7. Contract–negotiation disputes

GROUNDS FOR REVOCATION OF LICENSE 1. Incurring an accumulated 3 counts of suspension by an agency(F&E ORDERS) 2. Violations of the conditions of license 3. Engaging in acts of misrepresentation for the purpose of securing a license or renewal 4. 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)

GROUNDS FOR SUSPENSION/CANCELLATION OF LICENSE 1. Prohibited acts under Art. 34 2. Publishing job announcements w/o POEA’s approval 3. Charging a fee which may be in excess of the authorized amount before a worker is employed 4. Deploying workers w/o processing through POEA 5. Recruitment in places outside its authorized area. (Sec. 4, Rule II, Book IV, POEA Rules)

PERSONS PROHIBITED IN THE BUSINESS OF RECRUITING MIGRANT WORKERS 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) ELEMENTS OF ILLEGAL RECRUITMENT 1. Offender is a non‐licensee or non‐holder of authority to lawfully engage in the recruitment/placement 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[b]); or b. Any of prohibited practices under Art. 34

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PROHIBITED PRACTICES IN RECRUITMENT/PLACEMENT (Art. 34.) 1.Furnishing or publishing any false notice/information/document related to recruitment/employment 2. Failure to file reports required by SLE 3. 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 4. Recruitment/placement of workers in jobs harmful to public health or morality or to the dignity of the country 5. Engaging directly or indirectly in the management of a travel agency 6. Substituting or altering employment contracts without approval of DOLE 7. Charging or accepting any amount greater than that specified by DOLE or make a worker pay any amount greater than actually received by him 8. Committing any act of misrepresentation to secure a license or authority 9. Influencing or attempting to influence any person/entity not to employ any worker who has not applied of employment through his agency 10. Obstructing or attempting to obstruct inspection by SLE or by his representatives 11. Withholding or denying travel documents from applicant workers before departure for monetary considerations other than authorized bylaw 12. Granting a loan to an OFW which will be used for payment of legal and allowable placement fees 13. Refusing to condone or renegotiate a loan incurred by an OFW after his employment contract has been prematurely terminated through no fault of his or her own 14. For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and 15. For a recruitment/operating agency or a foreign principal/ Er to pass on the OFW 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 16. Imposing a compulsory and exclusive arrangement whereby an OFW 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) PRINCIPAL FUNCTIONS OF THE POEA 1. Protection of the right of Filipino workers to fair and equitable employment 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) MINIMUM CONDITIONS/PROVISIONS OF OVERSEAS EMPLOYMENT CONTRACTS 1. 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 Phils. c. The Phils. 2. Free transportation to and from the worksite or offsetting benefit 3. Free food and accommodation or offsetting benefit 4. Just/authorized causes of termination of the contract or services of the worker 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.

REGULATORY AND ADJUDICATORY FUNCTIONS OF POEA 1. Regulatory – It regulates the private sector participation in the recruitment and overseas placement of workers through its licensing and registration 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

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GROUNDS FOR DISCIPLINARY ACTION OF OFWs Under R.A. 8042, these are: 1. Prostitution 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Unjust refusal to depart for the worksite Gunrunning or possession of deadly weapons Vandalism or destroying company property Violation of the laws and sacred practices of the host country and unjustified breach of employment contract Embezzlement of funds of the company or fellow worker entrusted for delivery to relatives in the Phils. 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 Phils. laws or by the host country Theft or robbery Drunkenness Drug addiction or possession or trafficking of prohibited drugs Desertion or abandonment

MATTERS OUTSIDE JURISDICTION OF THE POEA 1. Foreign judgments – such claim must be brought before regular courts. POEA is not a court; it is an administrative agency, exercising adjudicatory or quasi-judicial functions. 2. Torts – falls under the provisions of the Civil Code. FIELD PERSONNEL A: They are: 1. Non-agricultural employees 2. Who regularly perform their duties 3. Away from the principal place of business or branch office of the employer; and 4. whose actual hours of work in the field cannot be determined with reasonable certainty. 3 GROUPS OF EEs UNDER THE LC 1. Managerial EE 2. Supervisory Ee 3. Rank‐and‐File Ee (Art. 212*m+) STANDARDS/CRITERIA FOR MINIMUM WAGE SETTING a) The demand for living wages b) Wage adjustment vis-a-vis the consumer price index c) The cost of living and changes or increases therein d) The needs of workers and their families e) The need to induce industries to invest in the countryside f) Improvements in standards of living g) The prevailing wage levels h) Fair return of the capital invested and capacity to pay of employers i) Effects on employment generation and family income j) The equitable distribution of income and wealth along the imperatives of economic and social development CONDITIONS FOR ENTITLEMENT OF PATERNITY LEAVE The male Ee is; 1. Legally married to, and is cohabiting with the woman who delivers the baby 2. Ee of private or public sector; 3. Only for the first 4 deliveries of legitimate spouse with whom he is cohabiting; and 4. Notify his Er of the pregnancy of his legitimate spouse and the expected date of such delivery CONDITIONS FOR ENTITLEMENT OF PARENTAL LEAVE 1. He or she must fall among those referred to as solo parent 2. Must have the actual and physical custody of the child or children 3. Must have at least rendered service of one year to his or her employer 4. He or she must remain a solo parent SOLO PARENT ENTITLED TO PARENTAL LEAVE - Any individual who falls under any of the ff. categories: 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; 2. Parent left solo or alone with the responsibility of parenthood due to: a. Death of spouse;

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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 has preferred to keep and rear his or her child/children instead of: 4. Any family member who assumes the 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. FORM OF 13TH MONTH PAY - It is given in the form of: 1. Christmas Bonus 2. Midyear Bonus 3. Profit Sharing Scheme 4. Other C a s h bonuses amounting to not less than 1/12 of its basic salary Note: It must always be in the form of a legal tender.

POLICY OF THE STATE IN ENACTING ANTI-SEXUAL HARASSMENT LAW 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. PERSONS LIABLE FOR SEXUAL HARASSMENT In a work, education or training‐related (WET) 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) KINDS OF SEXUAL HARASSMENT 1. In a work‐related or employment environment: A. The sexual favor is made as a condition in  hiring  employment  re‐employment  continued employment  in granting said individual favorable compensation  terms, conditions, promotions, or privileges or the refusal to grant the sexual favor results in  limiting  segregating  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

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 giving of a passing grade  granting of honors and scholarships  payment of a stipend,allowance or other benefits, privileges, or considerations; d. Sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. WHO MAY COMMIT SEXUAL HARASSMENT (SAME2- TIP-C-TAIM –D) 1. Supervisor 2. Agent of the ER 3. Manager 4. Employer 5. Employee 6. Teacher 7. Instructor 8. Professor 9. Coach 10. Trainor 11. Any other person having AIM over another  Authority  Influence  Moral Ascendancy 12. Any person who directs/induces another to commit any act of sexual harassment WHEN SEXUAL HARASSMENT PUNISHABLE 1. Work –related 2. Educated Related 3. Training –related REGULATORY POWERS OF SLE 1. Restrict and regulate the recruitment and placement activities of all agencies 2. Issue orders and promulgate rules and regulations VISITORIAL POWER - this includes: 1. Access to employer’s records and premises at any time of the day or night, whenever work is being undertaken 2. To copy from said records 3. 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. WORKERS PAID BY RESULTS - 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 piecework, “takay”, “pakiaw”, or task basis if their output rates are in accordance with the standards prescribed. HAZARDOUS WORKPLACES 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 WORST FORMS OF CHILD LABOR 1. All forms of slavery (Anti-Trafficking of Persons Act of 2003) 2. Child Pornography 3. Drug trafficking 4. Child models in all commercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts and violence; and 5. Work which, by its nature is hazardous or likely to be harmful to the health, safety or morals of children. PERSONS WHO CAN FILE A COMPLAINT FOR UNLAWFUL ACTS COMMITTED AGAINST CHILDREN 1. Offended party 2. Parents or guardians 3. Ascendants or collateral relatives within the 3rd degree of consanguinity 4. Officer, social worker or representative of a licensed child-caring institution 5. Officer or social worker of DSWD 6. Barangay chairman of the place where the violation occurred, where the child is residing or employed

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7. At least 3 concerned, responsible citizens where the violation occurred DOMESTIC/HOUSEHOLD SERVICE 1. Services in the Ers home 2. Usually necessary or desirable 3. 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 RIGHTS OF HOUSEHELPERS - 1. Original contract of domestic service shall not last for more than 2 years but it may be renewed by the parties. (Art. 142) 2. Entitled to minimum wage in addition to lodging, food, and medical attendance. (Art. 144) 3. Employment contract should be reviewed every 3 years with the end view of improving the terms and conditions of employment. (Art. 143) 4. SSS benefits for those who are receiving at least P1,000 per month. (Art. 143) 5. Non-assignment to a work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non‐ agricultural 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 and humane manner. (Art. 147) 8. Not to be treated with physical violence (Art. 147) 9. 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) 11. Indemnity for unjust termination of service 12. Employment certification as to nature and duration of service and efficiency and conduct of househelper. MINIMUM WAGE FOR HOUSEHELPERS 1. Metro Manila - P 800 / month 2. Other Chartered Cities or First Class Municipalities - P 650 / month 3. In other Municipalities - P 550 / month Note: The minimum cash wage rates shall be paid to the househelpers in addition to lodging, food and medical attendance. PARTIES TO APPRENNTICESHIP AGREEMENT 1. The employer or his agent, or 2. An authorized representative of any of the recognized organizations, associations or groups, and 3. The apprentice. PERSONS WHO MAY TERMINATE APPRENTICESHIP AGREEMENT 1. Either party may terminate an agreement after the probationary period but only for a valid cause. 2. It may be initiated by either party upon filing a complaint or upon DOLE’s own initiative. PROCEDURE FOR THE TERMINATION OF APPRENTICESHIP The party terminating shall: 1. Serve a written notice on the other at least 5 days before actual termination, 2. Stating the reason for such decision; and 3. A copy of said notice shall be furnished the Apprenticeship Division concerned. LEARNERS 1. They are persons hired as trainees in semi-skilled and other industrial occupations 2. Which are non‐apprenticeable and 3. Which may be learned through practical training on the job in a relatively short period of time 4. Which shall not exceed 3 months 5. Whether or not such practical training is supplemented by theoretical instructions. (Sec. 1a, Rule VII, Book II, IRR) HANDICAPPED WORKERS (HW) A: Those whose earning capacity is impaired by: 1. Physical deficiency 2. Age 3. Injury 4. Disease 5. Mental deficiency 6. Illness RIGHTS AND PRIVILEGES OF DISABLED WORKERS A: 1. Equal opportunity for employment 2. Sheltered employment (the gov’t shall endeavour to provide them work if suitable employment for disabled persons cannot be found through open employment) 3. Apprenticeship

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4. Vocational rehabilitation (means to develop the skills and potentials of disabled workers and enable them to compete in the labor market) 5. Vocational guidance and counseling FACTORS TO DETERMINE THE EXISTENCE OF AN EE-ER RELATIONSHIP/FOUR FOLD TEST/ER-EE RELATIONSHIP The “four–fold test”: 1. Selection and engagement of the employee; 2. Payment of wages; 3. Power of dismissal; and 4. Power of control CHARACTERISTICS OF PROBATIONARY EMPLOYMENT 1. It is an employment for a trial period; 2. It is a temporary employment status prior to regular employment; 3. 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 c. The probation is fixed d. The Er reserves the power to terminate during or at the end of the trial period e. And if the Ee has learned the job to the satisfaction of the Er, he becomes a regular Ee. GROUNDS FOR TERMINATION OF PROBATIONARY EMPLOYMENT 1. Just/authorized causes 2. 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. 72222, Jan. 30, 1989) REQS FOR DETERMINING WHETHER AN EE IS A PROJECT EE 1. The project Ee was assigned to carry out a specific project or undertaking, and 2. 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) 3. The Ee must have been dismissed every after completion of his project or phase 4. Report to the DOLE of Ee’s dismissal on account of completion of contract (Policy Inst. No. 20; D.O. 19 *1997+) INDICIA OF “JOB CONTRACTING Specifically, there is “job contracting” where: 1. The contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and 2. The contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of his business. PARTIES IN CONTRACTING AND SUBCONTRACTING 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 to an arrangement between the latter and a principal. (D.O. 18‐02) 3. Principal – Any Er who puts out or farms out a job, service, or work to a contractor RIGHTS OF CONTRACTUAL EE - They shall be entitled to all the rights and privileges due to a regular Ee as provided in the LC, as amended to include the ff: 1. Safe and healthful working conditions 2. Service Incentive Leave, rest days, OT pay, holiday pay, 13th month pay and separation pay 3. Social security and welfare benefits; 4. Self‐organization, CBA and peaceful concerted actions 5. Security of tenure (Sec. 8, DO 18‐02) CONDITIONS FOR JOB CONTRACTING 1. The labor contractor must be duly licensed by Regional Office of the DOLE 2. 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. GROUNDS FOR DELISTING CONTRACTORS 1. Non‐submission of contracts between the principal and the contractor or subcontractor when required to do so; 2. Non‐submission of annual report; 3. Findings through arbitration that the contractor or subcontractor has engaged in labor‐only contracting and other prohibited activities; 4. Non‐compliance with labor standards and working conditions. (Sec. 16, D.O. 18‐02) JUST CAUSES FOR TERMINATION (Art. 282, LC) 1. Serious misconduct or willful disobedience by the (Ee)

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2. Gross and habitual neglect by the Ee of his duties 3. Fraud or willful breach by the Ee of the trust reposed in him by his Er or duly organized representative 4. Commission of a crime or offense by the Ee against the person of his Er or any immediate member of his family or his duly authorized representative. 5. Other causes analogous to the foregoing Note: The burden of proving that the termination was for a valid or authorized cause shall rest on the Er. (Art.277[b])

EXAMPLES OF SERIOUS MISCONDUCT 1. Sexual harassment 2. Fighting within the company premises 3. Uttering obscene, insulting or offensive words against a superior 4. Falsification of time records and 5. Gross immorality GUIDELINES TO DETERMINE THE VALIDITY OF TERMINATION 1.Gravity of the offense 2. Position occupied by the employee 3. Degree of damage to the employer 4. Previous infractions of the same offense 5. Length of Service REQUIREMENTS FOR AN ACT TO BE INCLUDED IN ANALOGOUS CASES Must be due to the voluntary and/or willful act or willful omission of the EE. 1. 2. 3. 4. 5. 6.

Violation of company rules and regulations Drunkenness Gross inefficiency Illegally diverting employer’s products Failure to heed an order not to join an illegal picket Violation of safety rules and code of discipline

AUTHORIZED CAUSES FOR TERMINATION BY THE ER 1. Installation of labor‐saving devices (automation/robotics) 2. Redundancy (superfluity in the performance of a particular work) – exists where the services of 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) 3. Reorganization 4. 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. 5. Closing or cessation of operation of the establishment – must be done in good faith and not for the purpose of circumventing pertinent labor laws. 6. 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 CIRCUMSTANCES PRESENT IN A VALID RETRENCHMENT 1. The losses expected should be substantial and not merely de minimis in extent 2. The substantial loss apprehended must be reasonably imminent 3. It must be reasonably necessary and likely to prevent the expected losses 4. The alleged losses if already realized, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence REQUISITES OF A VALID RETRENCHMENT 1.Written notice served on both the Ee and the DOLE at least 1 month prior to the intended date of retrenchment 2. Payment of separation pay equivalent to at least one month pay or at least 1/2 month pay for every year of service, whichever is higher 3. Good faith 4. Proof of expected or actual losses 5. 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, G.R. No. 131108, Mar. 25, 1999). REQUISITES OF A VALID CLOSURE 1. Written notice served on both the employees (Ees) and the DOLE at least 1 month prior to the intended date of closure 2. Payment of separation pay equivalent to at least one- m o n t h pay or at least 1/2 month pay for every year of service, whichever is higher, except when closure is due to serious business losses 3. Good faith

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4. No circumvention of the law 5. No other option available to the Er PROCESS TO BE OBSERVED BY ER FOR TERMINATION BASED ON ANY OF THE JUST CAUSES 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, G.R. No. 154315, May 9, 2005) 2. 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. 3. 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. vs. Honeyline Tomboc, G.R. No. 147633, July 28, 2008) REMEDIES OF AN ILLEGALLY DISMISSSED EE An Ee who is unjustly dismissed from work shall by entitled to: 1 Reinstatement without loss of seniority rights and 2. Full backwages. (Sec. 3, Rule I, Book VI, IRR) 3. Separation pay in lieu of reinstatement, if the latter is no longer feasible RULES ON REINSTATEMENT Order of Reinstatement+ strained relations =separation pay th Order of Reinstatement+ delay/unjust refusal to reinstate = Backwages,13 month plus other benefits subsists until reinstatement or separation pay is paid Order of Reinstatement+ EE found a new job= Er cannot refuse to reinstate the illegally dismissed Ee Order of Reinstatement+ position no longer available = substantially equivalent position Order of Reinstatement+ position no longer available + no substantially equivalent position available= Separation pay 1 month/year of service (Grolier Int’l Inc. v. ELA, G.R. No. 83523, Aug. 31, 1989) CIRCUMSTANCES THAT PREVENT AWARD OF BACKWAGES 1. 2. 3. 4.

Dismissal for cause Death, physical or mental incapacity of the employee Business reverses Detention in prison

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ELEMENTS OF A VALID QUITCLAIM 1.Voluntarily entered into with full understanding of what the employee is doing 2. Represents a reasonable settlement TERMINATION OF HIS SERVICE WITH HIS ER 1.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 damages. 2. 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 PERSONS WHO ARE COVERED BY SSS 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; 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 existing agreement to the contrary c. All self‐employed – considered 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 “Ee”; g. Professional athletes, coaches, trainers and jockeys; AND h. Individual farmers and fisherman. (Sec. 9) 2. 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 foreign‐based Ers for employment 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 3. 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. EFFECT OF INTERRUPTION OF BUSINESS OR PROFESSIONAL INCOME If the self‐employed member realizes no income in any given month: 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) KINDS OF EMPLOYMENT EXCEPTED FROM COVERAGE OF SSS LAW Under Section 8(j) of R.A. 1161, as amended, the following services or employments are excepted from coverage: 1. Employment purely casual and not for the purpose of occupation or business of the employer; 2. Service performed on or in connection with an alien vessel by an employee if he is employed when such vessel is outside the Phils.; 3. Service performed in the employ of the Phils. Government or instrumentality or agency thereof; 4. Service performed in the employ of a foreign government or international organization, or their wholly‐owned instrumentality: Provided, however, That this exemption notwithstanding, any foreign government, international organization or their wholly‐ owned instrumentality employing workers in the Phils.s or employing Filipinos outside of the Phils., may enter into an agreement with the Phils. Government for the inclusion of such employees in the SSS except those already covered by their respective civil service retirement systems:Provided, further, That the terms of such agreement shall conform with the provisions of this Act on coverage and amount of payment of contributions and benefits: Provided, finally, That the provisions of this Act shall be supplementary to any such agreement; and

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5.



Such other services performed by temporary and other employees which may be excluded by regulation of the Commission. Employees of bona fide independent contractors shall not be deemed employees of the employer engaging the service of said contractors.

BENEFITS UNDER THE SSS ACT 1. Monthly Pension 2. Retirement Benefits 3. Death Benefits 4. Disability Benefits 5. Funeral Benefits 6. Sickness Benefits 7. Maternity Benefits SUSPENSION OF MONTLY PENSION & DEPENDENTS PENSION 1. Upon the reemployment or resumption of self‐employment 2. Recovery of the disabled member from his permanent total disability 3. Failure to present himself for examination at least once a year upon notice by the SSS. (Sec. 13‐A [b]) TYPES OF RETIREMENT BENEFITS 1. Monthly Pension ‐. 2. Lump Sum Amount REQUIREMENT FOR AVAILMENT OF SICKNESS BENEFIT 1. At least 3 monthly contributions in the 12‐month period immediately preceding the semester of sickness or injury 2. Confined for more than 3 days in a hospital or elsewhere with the approval of the SSS 3. He has used all current company sick leaves with pay for the current year 4. Notified his Er or the SSS, if he is a separated, voluntary or self‐employed member QUALIFICATIONS FOR ENTITLEMENT TO MATERNITY BENEFIT 1. Payment of at least 3 monthly contributions w/in 12‐month period immediately before childbirth or miscarriage. 2. Required notification of her pregnancy through her employer if employed, or to the SSS if separated, voluntary or self‐employed member. DEPENDENTS 1. The legal spouse entitled by law to receive support from the member; 2. The legitimate, legitimated, or legally adopted, and illegitimate child who: a. Is unmarried, b. Not gainfully employed, and c. 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. 3. The parent who is receiving regular support from the member. PRIMARY BENEFICIARIES 1. The dependent spouse until he or she remarries 2. 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. PURPOSES OF THE GSIS ACT 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 UNDER THE GSIS ACT 1. National Government 2. Its political subdivisions, branches, agencies, instrumentalities 3. GOCCs,and financial institutions with original charters 4. Constitutional Commissions and the Judiciary (Sec. 2[c]) BENEFITS PROVIDED BY THE GSIS ACT 1. Separation 2. Unemployment or involuntary separation 3. Retirement 4. Permanent disability 5. Temporary disability 6. Survivorship 7. Funeral 8. Life Insurance 9. Such other benefits and protection as may be extended to them by the GSIS such as loans.

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CONDITIONS FOR AVAILMENT OF RETIREMENT BENEFITS 1. A member has rendered at least 15 years of service; 2. He is at least 60 years of age at the time of retirement; and 3. He is not receiving a monthly pension benefit frompermanent total disability (Sec. 13‐A) RETIREMENT BENEFIT OPTIONS 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. Cash payment equivalent to 18 times his BMP and monthly pension for life payable immediately. (Sec. 13[a]) TWO TYPES OF PERMANENT DISABILITY 1. Permanent total disability (PTD) ‐ 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 continue with his current gainful occupation or engage in any other gainful occupation is medically remote. [Section 2 (q) and (s)] 2. 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[u]) TOTAL AND PERMANENT DISABILITIES The following disabilities shall be deemed total and permanent: 1. Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided for in the Rules; 2. Complete loss of sight of both eyes; 3. Loss of two limbs at or above the ankle or wrist; 4. Permanent complete paralysis of two limbs; 5. Brain injury resulting in incurable imbecility or insanity; and 6. Such cases as determined by the Medical Director of the System and approved by the Commission. (Art.192(c), LC) CONDITIONS FOR ENTITLEMENT TO DEATH BENEFITS The beneficiaries of a deceased Ee shall be entitled to an income benefit if all of the following conditions are satisfied: 1. The Ee has been duly reported to the System; 2. He died as a result of an injury or sickness; and 3. The System has been duly notified of his death, as well as the injury or sickness, which caused his death. EEs ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR PURPOSES OF CB The entities covered are all persons employed in: 1. Commercial industrial, and agricultural enterprises; and 2 In religious, charitable, medical or educational institutions whether operating for profit or not. (Art. 243) EEs ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR MUTUAL AID AND PROTECTION The following enjoy the right to self‐organization for mutual aid and protection: 1. Ambulant workers 2. Intermittent workers 3. Itinerant workers 4. Self‐employed people 5. Rural workers 6. Those without and definite Er’s. (Art. 243) EEs NOT GRANTED THE RIGHT TO SELF-ORGANIZATION 1. High level or Managerial Government Ee’s. (Sec. 3, E.O. 180) 2. Ee’s of International organizations with immunities. (ICMC v. Calleja, G.R. No. 85750, Sep. 28, 1990) 3. Managerial Employees. (Art. 212 of LC) 4. Members of the AFP including the police officers, policemen, firemen, and jail guards. (Sec. 4, E.O. 180) 5. Confidential Employees. (Metrolab Industries Inc. v. Confesor, G.R. No. 108855, Feb. 28, 1996) 6. Employees 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 Ee’s Assoc. v. NLRC, G.R. No. 16066, Jan. 24, 2000) 7. Non‐Ee’s. (Rosario Bros. v. Ople, G.R. No L‐5390, July 31, 1984) 8. Gov’t Ee’s, including GOCC’s with original charters. (Arizala v. CA, G.R. Nos. 43633‐ 34, Sep. 14, 1990) 9. Aliens without a valid working permit or aliens with working permits but are nationals of a country which do not allow Filipinos to exercise their right of self‐ organization and to join or assist labor organizations. (Art. 269 of LC; D.O. No. 9 [1997], Rule II, Sec. 2) REQUIREMENTS FOR VR - 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

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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. PURPOSE OF A CERTIFICATION ELECTION 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 sole and exclusive bargaining representative of the employees in the appropriate bargaining unit. GROUNDS FOR DENYING THE PCE 1. 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 2. Failure of a local chapter or national union/federation to submit a duly issued charter certificate upon filing of the petition 3. The petition was filed before or after the FREEDOM PERIOD of a duly registered CBA; provided that the 60‐day period based on the original CBA shall not be affected by any amendment, extension or renewal of the CBA; (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) 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) 6. 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 bargaining 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) REQUIREMENTS OF CONTRACT BR RULE 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 BLR; and 7. The violation of the contract bar rule or the existence of a duly registered CBA must be specially pleaded as a defense. INDICATIONS OF A GENUINE DEADLOCK 1. The submission of the deadlock to a third party conciliator or arbitrator; 2. The deadlock is the subject of a valid notice strike or lockout. GROUNDS FOR CANCELLATION OF UNION REGISTRATION 1. 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) 2. Voluntary dissolution by the members. (as amended by R.A. 9481) JURISDICTIONAL PRECONDITIONS IN COLLECTIVE BARGAINING 1. Possession of the status of majority representation of the employees representative in accordance with any of the means of selection or designation provided for the Labor Code 2. Proof of majority representation 3. A demand to bargain under Art. 250 (a) of the LC. (Kiok Loy v. NLRC, G.R. No. L‐ 54334, Jan.22, 1986) . POWERS OF A VOLUNTARY ARBITRATOR 1. Hold hearings 2. Receive evidence 3. Take whatever action necessary to resolve the dispute including efforts to effect a voluntary settlement between parties. (Art. 262‐A) ARBITRATION INITIATION 1. Submission agreement 2. Demand notice

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ENFORCEMENT POWER - 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 course of 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) 3 KINDS OF POWERS OF THE SECRETARY OF LABOR AND EMPLOYMENT (SLE)

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1. Visitorial powers 2. Enforcement powers 3. Appellate or power to review RULE ON THE RECOVERY OF SIMPLE MONEY CLAIMS 1. The aggregate money claim of each employee (Ee) or househelper (HH) does not exceed P5,000. 2. The claim is presented by an Ee or person employed in the domestic or household service or HH. 3. The claim arises from Er‐Ee relationship. 4. The claimant does not seek reinstatement. PARTIES TO LABOR RELATIONS CASES 1. Employees organization 2. Management 3. The public Note: Employer and Ees are active parties while the public and the State are passive parties. (Poquiz, 2006, p.3) POWERS OF THE NLRC 1. Rule making power 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. 2. Power to issue compulsory processes (administer oaths, summon parties, issue subpoenas) 3. Power to investigate matters and hear dispute within its jurisdiction 4. Contempt power 5. Ocular Inspection 6. Power to issue injunctions and restraining orders LABOR –ONLY CONTRACTING - It refers to an arrangement where the following 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 actually or directly used by the Ees contracted out; 3. The workers recruited and placed by such person are performing activities which are directly related to the principal business of such Er. CHARACTERISTICS OF A STRIKE 1. Existence of an Er‐Ee relationship 2. Existence of a labor dispute 3. Employment relation is deemed to continue although in a state of belligerent suspension 4. Temporary work stoppage 5. Work stoppage is done through concerted action 6. The striking group is a legitimate labor organization; in case of a bargaining deadlock, it must be the employees’ sole bargaining representative TYPES OF STRIKE 1.Economic strike – used to secure the economic demands such as higher wages and better working conditions for the workers 2. ULP strike – protest against ULP of management FORMS OF STRIKE 1. Legal Strike 2. Illegal Strike 3. Economic Strike 4. ULP Strike 5. Slow Down Strike 6. Wild‐Cat Strike 7. Sit Down Strike TESTS IN DETERMINING THE LEGALITY OF THE STRIKE The following must concur: 1. Purpose test 2. Compliance TEST 3. Means employed T E S T

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CONTENTS OF NOTICE OF STRIKE/LOCKOUT 1. Name and addresses of Er 2. Union involved 3. Nature of the industry to which the Er belongs 4. Number of union members 5. Workers in the bargaining unit 6. Other relevant date 7. 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 8. In case of ULP: The acts complained of, and the efforts taken to resolve the dispute POWER OF THE PRESIDENT DURING STRIKES/LOCKOUTS 1. May determine the industries, which are in his opinion indispensableto national interest 2. ASSUMPTION POWER May intervene at any time and assume jurisdiction over any such labor dispute in order to settle or terminate the same. (Art. 263[g]) Note: The decision of the President/SLE is final and executory after receipt thereof by the parties. ILLEGAL STRIKE 1. Contrary to specific prohibition of law, such as strike by employees (Ees) performing governmental functions; 2. Violates a specific req’t of law; 3. Declared for an unlawful purpose, such as inducing the employer (Er) to commit ULP against non‐union Ees; 4. Employs unlawful means in the pursuit of its objective, such as widespread terrorism of non‐strikers; 5. Declared in violation of an existing injunction; 6. Contrary to an existing agreement, such as a no strike clause or conclusive arbitration clause DISTINCTION BETWEEN JURISDICTION OF THE LA AND NLRC 1. The NLRC has exclusive appellate jurisdiction on all cases decided by the LA. 2. The NLRC does not have original jurisdiction on the cases over which the LA have original and exclusive jurisdiction. 3. The NLRC cannot have appellate jurisdiction if a claim does not fall within the exclusive original jurisdiction of the LA.



establishments not voluntarily settled by the parties pursuant to RA 6727 9. Enforcement of compromise agreements when there is non‐compliance 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 FORMS OF APPEAL BOND It shall either be in the form of 1. cash deposit 2. 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) SURETY BOND ISSUER - 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. 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. 2. An indemnity agreement between the Er‐appellant and bonding company; 3. Proof of security deposit or collateral securing the bond: provided, that a check shall not be considered as an acceptable security; 4. A certificate of authority from the Insurance Commission; 5. Certificate of registration from the SEC; 6. Certificate of authority to transact surety business from the Office of the President; 7. Certificate of accreditation and authority from the SC; and 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)

CASES UNDER LABOR ARBITERS (LAs) 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 arising 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 8. Wage distortion disputes in unorganized

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Poquiz Labor Law Reviewer

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