TABLE OF CONTENTS
LABOR STANDARDS I. FUNDAMENTAL PRINCIPLE AND POLICIES .................................................... 2 A. LEGAL BASIS................................. BASIS............................................... ................ .. 2 A.1 1987 CONSTITUTION CONSTITUTION .....................................2 .....................................2 A.2 CIVIL CODE CODE ................................................... ................................................... 5
C.4. PARENTAL LEAVE FOR SOLO PARENTS [RA 8972 (SOLO PARENTS’ WELFARE ACT OF 2000)] ......................................................... ............................................................................. .................... 70 C.5. SPECIAL LEAVE FOR WOMEN WORKERS [RA 9710 (THE MAGNA CARTA OF WOMEN), DOLE DO NO. 112, SERIES OF 2011 AS AMENDED BY DO NO. 112-A SERIES OF 2012] ..................... 71 71
D. SPECIAL GROUPS OF EMPLOYEES ...........73
II. RECRUITMENT AND PLACEMENT......... 8
D.1. WOMEN........................................................ ........................................................ 73 D.2. MINORS................................................... ........................................................ .....77 D.3. KASAMBAHAY.................... KASAMBAHAY............................................. ......................... 79 D.4. HOMEWORKERS HOMEWORKERS ........................................ ........................................ 82 D.5. NIGHT WORKERS ....................................... ....................................... 83
A. ILLEGAL RECRUITMENT .............................. .............................. 9
IV. POST-EMPLOYMENT POST-EMPLOYMENT .......................... 86
A.1 ESSENTIAL ELEMENTS OF ILLEGAL RECRUITMENT.................................................... .................................................... 10 A.2. PROHIBITED ACTIVITIES ............................. ............................. 10 A.3. TYPES OF ILLEGAL RECRUITMENT............ 12 A.4 ILLEGAL RECRUITMENT VS. ESTAFA......... 19 A.5. LIABILITYOF LOCAL RECRUITMENT AGENCY AND FOREIGN EMPLOYER ................ 20 A.6. TERMINATION OF CONTRACT OF MIGRANT WORKER WITHOUT JUST CAUSE ..................... 22 A.7. DIRECT HIRING ........................................... ........................................... 22
A. EMPLOYER-EMPLOYEE RELATIONSHIP .. 86
B. CONSTRUCTION IN FAVOR OF LABOR ...... 5 C. SOCIAL JUSTICE .......................... ......................................... ................. .. 7
B. REGULATIONS OF RECRUITMENT AND PLACEMENT ACTIVITIES ................................ ................................ 23 B.1. SUSPENSION OR CANCELLATION OF LICENSE OR AUTHORITY .................................. 24 B.2. REGULATORY AND VISITORIAL POWERS OF THE DOLE SECRETARY ..................................... ..................................... 24 B.3. REMITTANCE OF FOREIGN EXCHANGE EARNINGS .......................................................... .......................................................... 25
A.1. TESTS TO DETERMINE EMPLOYEREMPLOYEE (ER-EE) RELATIONSHIP RELATIONSHIP ................. 86 A.2. KINDS OF EMPLOYMENT ........................... ........................... 88 A.3. SUB-CONTRACTING VS LABOR-ONLY CONTRACTING CONTRACTING ................................................... ...................................................95
B. TERMINATION FROM EMPLOYMENT ..... 100 B.1. TERMINATION OF EMPLOYMENT BY EMPLOYEE.........................................................102 .........................................................102 B.2. TERMINATION BY EMPLOYER ................. 104 B.3 RELIEFS FOR ILLEGAL DISMISSAL DISMISSAL ............120 B.4. PREVENTIVE SUSPENSION SUSPENSION ....................... ....................... 126
C. RETIREMENT .................................... ............................................. ......... 127 C.1. ELIGIBILITY .......................................... .................................................. ........ 127 C.2. AMOUNT OF RETIREMENT PAY................128 C.3. RETIREMENT BENEFITS OF WORKERS WHO ARE PAID BY RESULTS .....................................129 C.4. RETIREMENT BENEFIT OF PART-TIME
C.1 COVERAGE [SEC. 3] ..................................... 146 C.2. PROCESS....................................................146
D. EMPLOYEE’S COMPENSATION – COVERAGE AND WHEN COMPENSABLE .... 146 D.1 COVERAGE [SEC. 2, RULE I] ....................... 146 D.2. EFFECTIVITY [SEC. 6, RULE I] ................... 147 D.3. WHEN COMPENSABLE ............................. 147
E.1. RECOVERY/ADJUDICATORY POWER ...... 225
F. DOLE SECRETARY .................................... 226 F.1 VISITORIAL AND ENFORCEMENT POWERS ........................................................................... 226 F.2 POWER TO SUSPEND/EFFECTS OF TERMINATION.................................................. 226
G. VOLUNTARY ARBITRATOR ..................... 227 G.1. JURISDICTION............................................ 227 G.2. REMEDIES ................................................. 228
LABOR RELATIONS VII. LABOR RELATIONS ......................... 149 A. RIGHT TO SELF-ORGANIZATION ............ 149 A.1. WHO MAY UNIONIZE FOR PURPOSES OF COLLECTIVE BARGAINING? ............................. 150 A.2. COMMINGLING/MIXTURE OF MEMBERSHIP ........................................................................... 154 A.3. RIGHTS AND CONDITIONS OF MEMBERSHIP.................................................... 154
B. BARGAINING UNIT ....................................157 C. BARGAINING REPRESENTATIVE ............ 160 C.1. DETERMINATION OF REPRESENTATION STATUS..............................................................160 C.2. UNION SECURITY ...................................... 196
D.UNFAIR LABOR PRACTICE (ULP) ............. 201 D.1. NATURE, ASPECTS .................................... 201 D.2. ULP BY EMPLOYERS ................................ 202 D.3. ULP OF LABOR ORGANIZATIONS .......... 204
E. RIGHT TO PEACEFUL CONCERTED ACTIVITIES.................................................... 204 E.1. BY LABOR ORGANIZATION ...................... 205 E.2 WHO MAY DECLARE A STRIKE OR
H. COURT OF APPEALS................................ 228 H.1 APPEAL VIA RULE 65, RULES OF COURT. 228
I. SUPREME COURT ...................................... 229 I.1. RULE 45, RULES OF COURT ...................... 229
J. PRESCRIPTION OF ACTIONS ................... 230 J.1. MONEY CLAIMS ..........................................230 J.2. ILLEGAL DISMISSAL .................................. 230 J.3. UNFAIR LABOR PRACTICE........................230 J.4. OFFENSES PENALIZED BY THE LABOR CODE AND IRR ISSUED PURSUANT THERETO ............................................................................231 J.5. ILLEGAL RECRUITMENT............................. 231
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LABOR STANDARDS
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I. Fundamental Principle and Policies A. LEGAL BASIS A.1 1987 CONSTITUTION
Section 9.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. Section 10. The State shall promote social justice in all phases of national development.
is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. [Calalang vs. Williams, G.R. No. 47800 (1940)]
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patriotism and nationalism, and encourage their involvement in public and civic affairs. Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.
Social justice should be used only to correct an injustice. It must be founded on the recognition of the necessity of interdependence among diverse units of a society, and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life. As partners in nation-building, labor and management need each other to foster productivity and economic growth; hence, the need to weigh and balance the rights and welfare of both the employee and employer.
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The Constitution is primarily a document of social justice, and although it has recognized the importance of the private sector, it has not embraced fully the concept of laissez-faire or relied on pure market forces to govern the economy. [Employees Confederation of the Philippines vs. NWPC , G.R. No. 96169 (1991)]
It is high time that employer and employee cease to view each other as adversaries and instead recognize that theirs is a symbiotic relationship, wherein they must rely on each other to ensure the success of the business. When they consider only their own selfinterests, and when they act only with their own benefit in mind, both parties suffer from short-sightedness, failing to realize that they both have a stake in the business. The employer wants the business to succeed, considering the investment that has been made. The employee in turn, also wants the business to succeed, as continued employment means a living, and the chance to better one’s lot in life. It is clear then that they both have the same goal, even if the benefit that results may be greater for one party than
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Under the Labor Code, as amended, the requirements for the lawful dismissal of an employee by his employer are : the and the . Not only must the dismissal be for a valid or authorized cause as provided by law, but the , basic to which are that an opportunity to be heard and to defend oneself must be observed before an employee may be dismissed [Metro Eye Security v. Salsona, G.R. No. 167367 (2007)] To constitute valid dismissal from employment, two requisites must concur: (1) the dismissal must be for a just or authorized cause; and (2) the employee must be afforded an opportunity to be heard and to defend himself. [ Jeffrey Nacague vs. Sulpicio Lines, Inc., G.R. No. 172589 (2010)] 6
One’s employment is a property right, and the wrongful interference therewith is an actionable wrong. The right is considered to be property within the protection of the constitutional guarantee of due process of law. [Texon Manufacturing v. Millena, G.R. No.
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Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Section 8. 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.
The right to form associations shall not be impaired except through a valid exercise of police power. [Bernas, The 1987 Philippine Constitution: a Comprehensive Reviewer]
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Transportation Co. vs. Leyte Farmers & Workers Union, G.R. No. L-1377 (1948)]
Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Section 18 (2). No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
Section 10. No law impairing the obligation of contracts shall be passed.
Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom
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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.
Verily, a line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of the employees. In treating the latter, management should see to it that its employees are at least properly informed of its decisions or modes action. Indeed, industrial peace cannot be achieved if the employees are denied their just participation in the discussion of matters affecting their rights. [Phil. Airlines Inc. vs. NLRC , G.R. No. 85985 (1993)]
Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage
Article 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.
Under the Civil Code, contracts of labor are explicitly subject to the police power of the state because they are not ordinary contracts but are impressed with public interest. Inasmuch as in this particular instance the contract in question would have been deemed in violation of pertinent labor laws, the provisions of said laws would prevail over the terms of the contract, and private respondent would still be entitled to overtime pay. [PAL Employees Savings and Loan Assn., Inc. vs. NLRC, G.R. No. 105963 (1996)] Indeed, a contract of employment is impressed with public interest. For this reason, provisions of applicable statutes are deemed written into the contract. Hence, the parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other. Moreover, in case of doubt,
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Construction in favor of labor . All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.
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consideration to the context in which it is negotiated and purpose which it is intended to serve. [Cirtek Employees Labor Union-FFW v Cirtek Electronics, G.R. No. 190515 (2010)]
In general See Art 1702, Civil Code, Supra at p.
Of the laws Article 4 of the Labor Code mandates that all doubts in the implementation and interpretation of the provisions thereof shall be resolved . Consistent with the State’s avowed policy to afford protection to labor, as Article 3 of the Labor Code and Section 3, Article XIII of the 1987 Constitution have enunciated, particularly in relation to the worker’s security of tenure, the Court held that “[t]o be lawful, the cause for termination must be a serious and grave malfeasance to justify the deprivation of a means of livelihood. This is merely in keeping with the spirit of our Constitution and laws which lean over backwards in favor of the working class, and mandate that every doubt must be resolved in their favor.” Moreover, the penalty imposed on
When there is doubt between the evidence submitted by the employer and that submitted by the employee, the scales of justice must be tilted in favor of the employee. This is consistent with the rule that an employer’s cause could only succeed on the strength of its own evidence and not on the weakness of the employee’s evidence. [Misamis Oriental II Electric Service Cooperative vs. Virgilio Cagalawan, G.R. No. 175170 (2012)]
The right of an employer to dismiss an employee differs from and should not be confused with the manner in which such right is exercised. It must not be oppressive and abusive since it affects one's person and property. [FASAP v. PAL, G.R. No. 178083 (2008)]
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he performed his assigned task efficiently and according to the usual standards, then he may not be held personally liable for any damage arising therefrom. Failing in this, the employee must suffer the consequences of his negligence if not lack of due care in the performance of his duties. [PCIB v. Jacinto, G.R. No. 92742 (1991)]
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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.
C. SOCIAL JUSTICE
Section 10. The State shall promote social justice in all phases of national development.
Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. Section 2. The promotion of social justice shall include the commitment to create economic
Absent any other supporting evidence, the error in a single ticket issued by petitioner can hardly be used to justify the inference that he has committed serious misconduct or has acted in a manner that runs afoul of his employer's trust. More so, petitioner cannot be taken to have engaged in a series of acts evincing a pattern or a design to defraud his employer. Terminating his employment on these unfounded reasons is manifestly unjust [Rivera vs. Genesis Transport Service, Inc ., G.R. 215568 (2015)]. Separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those
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if their hands are clean and their motives blameless and not simply because they happen to be poor. This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy of it, like the workers who have tainted the cause of labor with the blemishes of their own character. [Tirazona vs. Phil EDS TechnoService, Inc., G.R. 169712 (2009)].
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II. Recruitment Placement
and
refers to any act of: (a)
anvassing,
(b)
nlisting,
(c)
ontracting,
(d)
ransporting,
(e)
tilizing, or
(f)
iring procuring workers,
And also includes (a)
eferrals,
(b)
ontract services,
(c)
romising, or
(d)
dvertising for employment, locally or abroad, whether for profit or not
Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and
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engaged in the act of recruitment and placement. [People v. Panis]
without charging, directly or indirectly, any fee from the workers or employees [Sec 13 (e), LC]
The act of referral, which is included in recruitment, is "the act of passing along or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau." [Rodolfo vs. People, G.R. No. 146964 (2006)]
RA 9422 or the Act to Strengthen the Regulatory Functions of the Philippine Overseas Employment Administration of 2007 expressly repealed Sections 29 and 30 of RA 8042 which provided for the deregulation of recruitment activities.
Promising employment as factory workers and receiving money allegedly for processing papers without authorization or license is engaging into unlawful recruitment and placement activities. The absence of the necessary license or authority renders all of accused-appellant’s recruitment activities criminal. [People vs. Saulo, G.R. No. 125903 (2000)] refers to any member of the labor force, whether employed or unemployed [Art.13 (a), LC]
The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers: (a) It has existing labor and social laws protecting the rights of workers, including migrant workers; (b) It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers;
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Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. [Sec. 5, R.A. No. 10022]
(e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;
A.1 ESSENTIAL ELEMENTS OF ILLEGAL RECRUITMENT
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives;
1.
The offender is a licensee/non-licensee or holder/non-holder of authority engaged in the recruitment and placement of workers; and
2. The offender undertakes wither any recruitment activities defined under Article 13(b), or any prohibited practices enumerated under Article 34 [People vs. Sadiosa, GR No. 107084 (1998); Sec. 10, RA 8042] A.2. PROHIBITED ACTIVITIES
It shall be unlawful for any individual, entity, licensee, or holder of authority: (a) To charge or accept, directly or indirectly,
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;
(h) To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor. (i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; (j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly
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that actually received by him as a loan or advance;
without the approval of the Department of Labor and Employment;
(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;
(i) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency;
(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA; (d) To include or attempt 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 of employment; (e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has
(j) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations; (k) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; (l) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and
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(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own; (4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; (5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; (6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and
: (1) The person charged with the crime must have undertaken recruitment activities defined under Art. 13 (b) or prohibited activities defined under Art. 34; and (2) The said person does not have a license or authority to do so. [Art. 38, LC]
The act of recruitment may be "for profit or not." Notably , it is the lack of the necessary license or authority, not the fact of payment that renders the recruitment activity of LCL unlawful. [C.F. Sharp vs. Espanol, G.R. No. 155903 (2007)]
It is well-settled that to prove illegal recruitment, it must be shown that [the accused] gave complainants the distinct impression that she had the power or ability to
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act of misrepresentation for the purpose of securing a license or authority under this Code. (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; (e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; (h) To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor.
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The reduced salaries and employment period in the new employment contract contradicted the POEA-approved employment contract. By this act of contract substitution, respondents committed a prohibited practice and engaged in illegal recruitment as defined in Art. 34(i), LC. [PERT/CPM Manpower Exponent Co. v. Vinuya, G.R. No. 197528 (2012)]
(1) Person charged undertakes any recruitment activity as defined in Art.13 (b) of the Labor Code; and (2) Said person does not have a license or authority to do so.
(1) Person charged commits any of the enumerated acts under Sec. 6 of R.A. 8042, as amended by, R.A. 10022.
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It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority: (a) To any in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a by him as a loan or advance;
may be required by the Secretary of Labor and Employment; (h) To or to the of the , approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; (i) For an
(b) To furnish or publish any or or in relation to recruitment or employment;
or member of the Board of any corporation engaged in or to be engaged or in the management of travel agency;
(c) To give any or commit any act of for the purpose of under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA; (d) To
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or
to induce a worker
(j) To from applicant workers before departure for monetary or , or for any other reasons, under the Labor Code and its implementing rules and regulations; (k)
to
a contracted worker as determined by the Department of Labor and Employment;
(l)
incurred
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worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;
recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;
(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;
(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and
(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own;
(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker 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. [Sec. 6, RA 8042 as amended]
(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; (5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions,
The amendments to the Labor Code introduced by Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, broadened the concept of illegal recruitment and provided stiffer penalties, especially for those that constitute economic sabotage. [People v. Ocden, G.R. No. 173198 (2011)]
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(3) The illegal recruitment is committed by a conspiring or confederating with one another. [People v. Gallo, G.R. No. 187730 (2010)]
The acts committed by the accused constituted illegal recruitment in large scale, whose essential elements are the following: (1) The accused engages in acts of recruitment and placement of workers defined under Article 13(b) of the Labor Code or in any prohibited activities under Article 43 of the Labor Code; (2) The accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of license or an authority to recruit and deploy workers, either locally or overseas; and (3) The accused commits the unlawful acts against three or more persons individually or as a group.
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Illegal recruitment is considered economic sabotage when the commission thereof is attended by the ff. qualifying circumstances: (1)
- if carried out by a group of 3 or more persons conspiring and confederating with one another;
(2)
- if committed against 3 or more persons individually or as a group. [Art. 38(b), LC]
See iv. Illegal recruitment in large scale for requisites and discussion A.4 ILLEGAL RECRUITMENT VS. ESTAFA
Illegal Recruitment
Estafa
Malum prohibitum
Malum in se
Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other laws.
Conviction for estafa does not bar a conviction for illegal recruitment under the Labor Code.
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Act A.5. LIABILITYOF LOCAL RECRUITMENT AGENCY AND FOREIGN EMPLOYER
Prohibited Act/s
Penalty Imprisonment: 6 yrs. and 1 day – 12 yrs. AND Fine: P500k – P1M
Act Licensee or holder of authority violating or causing another to violate Title I, Book I, LC
Penalty Imprisonment: 2 - 5 yrs.
AND
OR
Fine: P20k – P100k OR Both
Illegal recruitment constituting economic sabotage
Life imprisonment
Fine: P10k – P50k
Imprisonment: 4 - 8 yrs. OR
Life imprisonment
AND Fine: P1M – P2M
OR
Both Violating or causing another to violate Title I, Book I, LC
Illegal recruitment
Imprisonment: 12 yrs. and 1 day – 20 yrs.
Fine: P2M – P5M Illegal recruitment constituting economic sabotage
1. Illegally recruited person below 18 years old OR 2. Offense committed without license/authority
AND Fine: P100k
If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be .
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employers is meant to assure aggrieved worker of immediate sufficient payment of what is due [Becmen Service Exporter vs. Cuaresma, G.R. 182978-79, (2009]
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the and him Sps.
(3)
with the corporation or partnership for the aforesaid claims and damages. [Becmen Service Exporter vs. Sps. Cuaresma, G.R. 182978-79, (2009]
The written application for a license to operate a private employment or manning agency shall be submitted with, among others, a stating that the applicant: (1)
Shall ▪
all claims and liabilities which may arise in connection with the use of license;
▪
all acts of its officials, employees and representatives done in connection with recruitment and placement ;
(4) for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, death and disability compensation and repatriation
A criminal action arising from illegal recruitment shall be filed with the RTC of the province or city: (1)
the offense was
or
assume for:
(2) Shall assume with the employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, death and disability compensation and repatriation; (3) Shall with the existing labor and social legislations of the Philippines and of the country of employment of recruited workers [POEA (f) (2-5)]
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This is a doctrine in agency which states that the principal is chargeable with and bound by the knowledge of or notice to his agent received while the agent was acting as such. Simply put, notice to the agent is notice to the principal. Since the local employment agency is considered the agent of the foreign employer, the principal, knowledge of the former of existing labor and social legislation in the Philippines is binding on the latter. Consequently, notice to the former of any violation thereof is notice to the latter. However, notice to the principal is not notice to the agent. The SC held in Sunace International Management Services, Inc. vs. NLRC [G.R. 161757 (2006)] that “the theory of imputed knowledge ascribes the knowledge of the agent to the principal, not the other way around. The knowledge of the principalforeign employer cannot, therefore, be imputed to its agent.” A.6. TERMINATION OF CONTRACT OF MIGRANT WORKER WITHOUT JUST CAUSE
In case of termination of overseas employment, as
▪
defined by law or contract, or
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The employment contract involved in the instant case covers a two-year period but the overseas contract worker actually worked for only 26 days prior to his illegal dismissal. Thus, the three months’ salary rule applies [Flourish Maritime Shipping v. Almanzor, G.R. No. 177948 (2008)]
The SC there held that “said clause is unconstitutional for being an invalid classification, in violation of the equal protection clause”. [Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614 (2009)] In the case of Yap vs. Thenamaris Ship’s Management and Intermare Maritime Agencies, Inc. [G.R. No. 179532 (May 30, 2011)], the SC affirmed the Serrano ruling, but did not apply the Operative Fact doctrine: “As an exception to the general rule, the doctrine applies only as a matter of equity and fair play.” : In 2010, a year after Serrano, RA 10022, in amending RA 8042, reincorporated the nullified 3-month salary cap clause. , the SC did not allow this and again struck the revived clause as unconstitutional in the
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(1) Members of the diplomatic corps;
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Definition
(2) International organizations; (3) Such other employees as may be allowed by the Sec. of Labor; (4) Name hirees – those individuals who are able to secure contracts for overseas employment on their own efforts and representation without the assistance or participation of any agency. Their hiring, nonetheless, has to be processed through the POEA. [Part III, Rule III of the POEA Rules Governing Overseas Employment as amended in 2002]
B. REGULATIONS OF RECRUITMENT AND PLACEMENT ACTIVITIES – is a document issued by the Department of Labor and Employment (DOLE) authorizing a person or entity to operate a private employment agency, while an is a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment agency. [Art. 13(d) and (f), LC]
Any person or entity engaged in recruitment and placement of workers for , directly or indirectly, from the workers or employers or both
Requiremen t
License
Any person or association engaged in the recruitment and placement of workers, locally or overseas,
Authority
(1) Travel agencies and sales agencies of airline companies. [Art. 26] (2) Officers or members of the Board of any corporation or members in partnership engaged in the business of a travel agency. (3) Corporations and partnerships, when any of its officers, members of the board
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(2) Nor may such license or authority be transferred, conveyed, or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor. [Art. 29, LC] See: POEA Rules Part II, Rule II, Sec. 7, 8, 9
Licensed agencies are prohibited from conducting any recruitment activities of any form outside of the address stated in the license, acknowledged branch or extension office, without securing prior authority from the POEA. [People vs. Buli-e, G.R. No. 123146 (2003)]
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(2) Corporations with minimum paid-up capital of P2,000,000. B.1. SUSPENSION OR CANCELLATION OF LICENSE OR AUTHORITY
The Secretary of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for: ▪
violation of rules and regulations issued by the Department of Labor, the Overseas Employment Development Board, and the National Seamen Board
▪
violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions. [Art. 35, LC]
Acts prohibited under Article 34 are grounds for suspension or cancellation of license. Note that these acts likewise constitute illegal recruitment under R.A. 8042 as amended by R.A. 10022.
4 years [POEA Rules of 2002] (1) DOLE Secretary (2) POEA Administrator
(1) Only Filipino citizens or (2) Corporations, partnership
entities at
The power to suspend or cancel any license or
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any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violations of any provisions of this Title. : In the old case of Salazar vs. Achacoso [G.R. No. 81510 (1990)], it was declared that Art. 38 of the LC is unconstitutional and that the Secretary of Labor and Employment cannot issue a warrant of arrest.
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(1) The immediate family members, dependents or beneficiaries of migrant workers residing with the latter abroad; (2) Filipino servicemen working within US military installations; (3) Immigrants and Filipino professionals working with the United Nations and its agencies or other specialized bodies.
B.3. REMITTANCE OF FOREIGN EXCHANGE EARNINGS
C. EMPLOYMENT RESIDENT ALIENS
It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign earnings to their families, dependents, and/or beneficiaries in the country. [Art. 22, LC]
Art. 12 Statement of objectives – It is the policy of the State:
[Executive
OF
NON-
(e) To regulate the employment of aliens, including the establishment of a registration and/or work permit system;
Order No. 857] The amount of one’s salary required to be remitted by the employee. The following are the percentages of foreign exchange remittance required from various kinds of migrant workers: (1) Seaman or mariner – 80% of basic salary
Art. 43 (formerly 40) Statement of objective – It is the objective of this Title to develop human resources, establish training institutions, and formulate such plans and
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Government, the Secretary of Science and Technology, the Secretary of Trade and Industry and the Director-General of the Council. The Director General shall have no vote.
C.1. COVERAGE
Coverage – All foreign nationals who intend to engage in gainful employment in the Philippines shall apply for Alien Employment Permit (AEP)
: All aliens employed or seeking employment in the Philippines, and their present or prospective employers [Sec. 1, Rule XIV, Book I, Omnibus Rules]. : 1.
All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine government.
2. Officers and staff of international organizations of which the Philippine
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adjunct professors under formal agreements between the Philippine government and foreign government ; provided that the exemption is on a reciprocal basis; and 7. Permanent resident foreign nationals, probationary or temporary resident visa holders [Sec. 2, D.O. 97-09]. C.2 CONDITIONS FOR GRANT OF PERMIT
The application for an employment permit shall be accompanied by the following: (a) Curriculum vitae duly signed by the applicant indicating his educational background, his work experience and other data showing that he possesses high technical skills in his trade or profession; (b) Contract of employment between the employer and the principal which shall embody the following, among others: (1) That the non-resident alien worker shall comply with all applicable laws and rules and regulations of the Philippines;
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applicant based on: a) Compliance by the applicant and his employer with the requirements of Section 2 hereof (submission of list of foreign nationals by employer to the Bureau); b) Report of the Bureau Director as to the availability or nonavailability of any person in the Philippines who is competent, able, and willing to do the job for which the services of the applicant are desired; c)
His assessment as to whether or not the employment of the applicant will redound to the national interest;
d) Admissibility of the alien as certified by the Commission on Immigration and Deportation; e) The recommendation of the Board of Investments or other appropriate government agencies if the applicant will be employed in preferred areas of investments or in accordance with imperatives of economic developments; and f)
Payments of a P100.00 fee [Sec. 6, Rule XIV, Book I, Omnibus Rules].
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from the date of its issuance unless sooner revoked by the Secretary of Labor and Employment for violation of any provisions of the Code or of these Rules [Sec 7, Rule XIV, Book I, Omnibus Rules]. The AEP shall be valid for the position and the company for which it was issued for a period of one (1) year, unless the employment contract, consultancy services, or other modes of engagement provides otherwise, which in no case shall exceed five (5) years [DO 97-09, Sec. 11]. C.4
1.
DENIAL OF APPLICATION
Misrepresentation application;
of
facts
in
the
2. Submission of falsified documents 3. The foreign national has a derogatory record; and, 4. Availability of a Filipino who is competent, able and willing to do the job intended for the foreign national [Sec. 10, D.O. 97-09]
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Coverage
Aliens employed or seeking employment
Exceptions
Officers and their spouses of int’l orgs where Phils. is a member
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Members of governing board with voting rights Those granted exemption Owners of companies accredited with POEA with purpose of interviewing Filipinos for employment abroad Academic purposes (to teach and conduct research) Resident foreign nationals Temporary resident visa holders Conditions for grant of permit
Requirements CV (educational background, work experience, and high technical skills) Contract of employment— employment—must include: 1. Compliance with laws, rules and regulations 2. Undertaking of alien and employer (ER) to train at least 2 understudies > must be the most ranking regular employee 3. Purpose: Ensure the actual transfer of technology 4. Undertaking to not engage in other employment not in permit Issuance of AEP Compliance with the requirements requirements Documents from Bureau Director: 1. Report of the availability and non-availability of Filipinos
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D. TRAINING AND EMPLOYMENT OF SPECIAL WORKERS D.1 APPRENTICES AND LEARNERS RA 7796 (TECHNICAL EDUCATION AND SKILLS DEVELOPMENT ACT OF 1994 OR TESDA ACT OF 1994)
1.
instantaneously give rise to an employerapprentice relationship. It must be duly approved by the Minister of Labor and Employment. Hence, since the t he apprenticeship agreement between petitioner and respondent has no force and effect, respondent's assertion that he was hired not as an apprentice but as a delivery boy deserves credence. [Nitto [Nitto Enterprises vs. NLRC, G.R. No. 114337, (1995)]
To help meet the demand of the economy for trained manpower;
2. To establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies; and 3. To establish apprenticeship standards for the protection of apprentices.
1.
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“Apprenticeship" - training within employment with compulsory related theoretical instruction involving a contract between an apprentice and an employer on an approved apprenticeable occupation [Sec 4(j), RA 7794]
Children below fifteen (15) years of age shall not be employed : (1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed: Provided, however, That his employment neither endangers his life, safety, health and morals, nor impairs his normal development: Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary primary and/or secondary education; or (2) Where a child's employment or participation in public entertainment or
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implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child. In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. requirements. The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this Section. [RA 7160, Sec. 12 as amended by RA 7658, Sec. 1]
(a) Be at least 14 years of age; (b) Possess vocational aptitude and capacity for appropriate tests; and (c) Possess the ability to comprehend and follow oral and written instructions. Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations. [Art. 59, LC]
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enterprise, which utilizes application of advanced technology) 2. Job should be classified apprenticeable apprenticeable occupation.
as
an
: 15 years-old and above [RA 7658]
– is an occupation officially endorsed by a tripartite body and approved to be apprenticeable by the authority. [Sec. 4, RA 7796]
(1) Only employers in highly technical industries may employ apprentices; and (2) Only in apprenticeable occupations approved by the Secretary of Labor. [Art. 60, Labor Code]
Apprenticeship agreements, including the wage rates of apprentices, shall conform to
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[Sec. 7, Wage Order No. NCR-19]
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b. Deduction shall NOT exceed 10% of direct labor wage; c. Employer must pay his apprentices the minimum wage.
Investigation of violation of apprenticeship agreement. - Upon complaint of any interested person or upon its own initiative, the appropriate agency of the Department of Labor and Employment or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment. [Art. 65, LC] Appeal to the Secretary of Labor and Employment. - The decision of the authorized agency of the Department of Labor and Employment may be appealed by any aggrieved person to the Secretary of Labor and Employment within five (5) days from receipt of the decision. The decision of the Secretary of Labor and Employment shall be final and executory. [Art.66, LC] Exhaustion of administrative remedies. 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. [Art. 67, LC]
(1) The apprentice must be paid not less than 75% of the prescribed minimum salary [Art. 61, LC]; HOWEVER, the employer MAY NOT pay any wage if the apprenticeship apprenticeship training is: a. part of the school curriculum, b. a requirement for graduation, or c. a requirement for examination [Art. 72]
board
(2) The apprenticeship agreement must be approved by the DOLE Secretary (without such one shall be deemed a regular employee) [Nitto Enterprises v. NLRC, Sept. 29, 1995]; 1995]; (3) The employer is not compelled to continue one’s employment upon termination of apprenticeship; apprenticeship; (4) One-half (1/2) of the value of labor training expenses incurred for developing the productivity and
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learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months [Art 73, Labor Code, Sec 4(n), RA 7796]
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employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners.
(1) No experienced workers are available;
The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. [Art. 75, LC]
(2) The employment of learners being necessary to prevent the curtailment of employment opportunities; and
Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. [Art. 76, LC]
(3) The employment will neither create unfair competition in terms of labor costs nor impair working standards. [Art. 74, Labor Code]
Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include: (1) The duration of the learnership period, which shall not exceed three (3) months; (2) The wages or salary rates of the learners which shall begin at not less than seventy-five percent (75%) of the applicable minimum wage; and (3) A commitment to employ the learners if
(1) The duration of learnership shall not exceed 3 months [Art. 73, LC]; (2) If the learnership of 3 months is completed, the employer may be compelled to continue with the services of the learner as a regular employee; There is a commitment from the employer to employ the learners if they so desire, as regular employees upon completion of the learnership; (3) If the learner is dismissed from service without just and valid cause and without due process after 2 months of service, he will be deemed as regular employee; [Art. 75(d)] and
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Apprenticeship
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Learnership
Highly technical industries
Semi-skilled industrial occupations
Practical training supplemented by related theoretical instruction
Practical training whether or not such practical training is supplemented by theoretical instructions
Apprenticeable occupations approved by the SOLE
Non-apprenticeable occupations
Written apprentice agreement ratified by the appropriate committees
Learnership agreement
More than 3 months, shall not exceed 6 months
Shall not exceed 3 months
1. The person is at least 15 years of age, provided those who are at least 15 years of age but less than 18 may be eligible for apprenticeship only in non-hazardous occupation;
1. When no experienced workers are available;
2.The person is physically fit for the occupation in which he desires to be trained;
2. The employment of learners is necessary to prevent curtailment of employment opportunities; and
3.The person possesses vocational aptitude and capacity for the particular occupation as established through appropriate tests; and
3. The employment does not create unfair competition in terms of labor costs or impair or lower working standards.
4.The person is able to comprehend and follow oral and written instructions. Wage rate shall begin at not less than 75% of the minimum wage
Wage rate shall begin at not less than 75% of the minimum wage
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D.2. HANDICAPPED WORKERS DIFFERENTLY-ABLED WORKERS
LABOR STANDARDS
–
[RA 7277 - Magna Carta for Disabled Persons, as amended by RA 9442]
1.
Disabled persons are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being [Sec 4(a), RA 7277 ]
2. Impairment is any loss, diminution or aberration of psychological, physiological, or anatomical structure or function [Sec 4(b)] 3. Disability shall mean (1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; (2) a record of such an impairment; (3) being regarded as having such an impairment [Sec 4(c)] 4. Handicap refers to a disadvantage for a given individual, resulting from an impairment or a disability, that limits or
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b. Disabled persons have the same rights as other people to take their proper place in society. They should be able to live freely and as independently as possible. This must be the concern of everyone — the family, community and all government and nongovernment organizations. Disabled persons' rights must never be perceived as welfare services by the Government. c. The rehabilitation of the disabled persons shall be the concern of the Government in order to foster their capacity to attain a more meaningful, productive and satisfying life. To reach out to a greater number of disabled persons, the rehabilitation services and benefits shall be expanded beyond the traditional urbanbase centers to community based programs that will ensure full participation of different sectors as supported by national and local government agencies. d. The State also recognizes the role of the private sector in promoting the welfare of disabled persons and shall encourage partnership in programs that address their needs and concerns. e. To facilitate integration of disabled persons into the mainstream of society, the State shall advocate for and encourage
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qualified disabled EE shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. [Sec. 5 (par. 1), RA 7277]
5% of all casual, emergency and contractual positions in the DSWD; DOH, DepEd; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons. [Sec 5 (par. 2), RA 7277]
refers to the provision of productive work for disabled persons through workshop providing special facilities, income producing projects or homework schemes with a view to given them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry. [Sec 4(i), RA 7277] If suitable employment for disabled persons cannot be found through open employment, the State shall endeavor to provide it by means of sheltered employment.
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All qualified handicapped workers shall receive the full amount of the minimum wage rate prescribed herein. [Sec 7, Wage Order No. NCR-19] In this light, 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 ablebodied person. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article 280 of the Labor Code. In the present case, the handicap of petitioners (deaf-mutes) is NOT a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. [Bernardo v. NLRC, G.R. No. 122917 (1999) ]
Persons with disability shall be entitled to the following: (a) At least 20% discount from all establishments relative to the utilization of all services in hotels and similar lodging establishments; restaurants and recreation centers for the exclusive use or enjoyment of persons with disability;
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attending doctors in all private hospitals and medical facilities, in accordance with the rules and regulations to be issued by the DOH, in coordination with PHILHEALTH; (f) At least 20% discount on fare for domestic air and sea travel for the exclusive use or enjoyment of persons with disability; (g) At least 20% discount in public railways, skyways, and bus fare for the exclusive use and enjoyment of persons with disability. (h) Educational assistance to persons with disability, for them to pursue primary, secondary, tertiary, post tertiary, as well as vocational or technical education, in both public and private schools, through the provision of scholarships, grants, financial aids, subsidies and other incentives to qualified persons with disability, including support for books, learning materials and uniform allowance to the extent feasible; Provided, That persons with disability shall meet minimum admission requirements; (i) To the extent practicable and feasible, the continuance of the same benefits
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(a) An identification card issued by the city or municipal mayor or the barangay captain of the place where the persons with disability reside; (b) The passport of the persons with disability concerned; or (c) Transportation discount fare ID issued by the National Council for the Welfare of Disabled Persons (NCWDP). (2) The privileges may not be claimed if the persons with disability claim a higher discount as may be granted by the commercial establishment and/or under other existing laws or in combination with other discount program/s. [ Sec 32, RA 7277, as amended by RA 9442]
Equal Opportunity for Employment — No disable person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives
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(a) Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities; (b) Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be job-related for the position in question and are consistent with business necessity; (c) Utilizing standards, criteria, or methods of administration that: (1) have the effect of discrimination on the basis of disability; or (2) perpetuate the discrimination of others who are subject to common administrative control. (d) Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified disabled employee, by reason of his disability, than the amount to which a non-disabled person performing the same work is entitled; (e) Favoring a non-disabled employee over a qualified disabled employee with
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impaired sensory, manual or speaking skills of such applicant or employee, if any; and (i) Excluding disabled persons from membership in labor unions or similar organizations [Sec. 32, RA 7277 ]
(a) All entering employees are subjected to such an examination regardless of disability; (b) Information obtained during the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record; Provided, however, That: (1) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations; (2) First aid and safety personnel may be informed, when appropriate, if the disability may require emergency treatment;
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on separate forms and in separate medical files and is treated as a confidential medical record; Provided, however, That: (i)
supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations:
(ii)
first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment;
(iii)
(iv)
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(1) The utterance of slanderous and abusive statements against a person with disability; and/or, (2) An activity in public which incites hatred towards, serious contempt for, or severe ridicule of persons with disability. [Sec. 41, RA 7277, as amended by RA 9442]
(1)
government officials investigating compliance with this Act shall be provided relevant information on request; and
additional deduction, from their gross income, equivalent to 25% of the total amount paid as salaries and wages to disabled persons (a) Private entities (b) Employ disabled persons either as regular EEs, apprentice or learner
the results of such examination are used only in accordance with this Act. [Sec. 35, RA 7277 as amended by RA 9442]
(c) Provided such entities present proof as certified by the DOLE and the DOH [Sec. 8[b], RA 7277] (2)
(a) No individual, group or community shall execute any of these acts of ridicule against persons with disability in any
- additional deduction from their net taxable income, equivalent to 50% of the direct costs of the improvements or modifications (a)
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be subject to proper documentation and to the provisions of the National Internal Revenue Code, as amended. [Sec. 32, RA 7277, as amended by RA 9442]
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(a) Any person who violates any provision of this Act shall suffer the following penalties: (i)
for the first violation, a fine of not less than Fifty thousand pesos (P 50,000.00) but not exceeding One hundred thousand pesos (P100,000.00) or imprisonment of not less than six (6) months but not more than two (2) years, or both at the discretion of the court; and
(ii)
for any subsequent violation, a fine of not less than One hundred thousand pesos (P100,000.00) but not exceeding Two hundred thousand pesos (P 200,000.00) or imprisonment for less than two (2) years but not more than six (6) years, or both at the discretion of the court.
Enforcement by the Secretary of Justice (a) Denial of Right . The Secretary of Justice shall investigate alleged violations of this Act, and shall undertake periodic reviews of compliance of covered entities under this Act. (b) Potential Violations The Secretary of Justice may commence a legal action in any appropriate court if the Secretary has reasonable cause to believe that (1) any person or group of persons is engaged in a pattern of practice of discrimination under this Act; or (2) any person or group of persons has been discriminated against under
(b) Any person who abuses the privileges granted herein shall be punished with imprisonment of not less than six (6) months or a fine of not less than Five thousand pesos (P 5,000.00) but not more than Fifty thousand pesos (P 50,000.00), or both, at the discretion of the court. (c) If
the
violator
is
a
corporation,
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III.LABOR STANDARDS
original charter are governed by the Civil Service rules:
refers to the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance and other monetary and welfare benefits, including occupational, safety and health standards.
“Following Sec. 2(i) Art. IX-B of 1987 Phil. Constitution, the test in determining whether a government owned corporation is subject to the Labor Code or the Civil Service law is finding out what created it – if its created by a special charter , then, Civil Service Law applies, if it is created by the General Corporation Law , then the Labor Code applies.” [PNOC Energy Development Corp. v. NLRC (1991)]
A. CONDITIONS OF EMPLOYMENT A.1 SCOPE [ART. 82, LABOR CODE]
Shall apply to employees in all establishments and undertakings whether for profit or not. [Art. 82, LC]
(1) Government employees [Art. 82; Art. 76] (EXCEPTION TO THE EXCEPTION: Employees of GOCCs created under the Corporation Code) (2) Managerial Employees including members of the managerial staff [Art. 82] (3) Field Personnel [Art. 82] (4) Members of the family of the employer who are dependent on him for support
[Art. 82, LC] Those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof and to other officers or members of the managerial staff.
[Art. 212 (m), LC] 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 employees. Supervisory employees are those who, in
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[Book 3, Rule 1, Sec. 2(b), IRR] Managerial employees are exempted from the coverage of Book III Articles 83 through 96 if they meet all of the following conditions: (1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof. (2) They customarily and regularly direct the work of two or more employees therein. (3) They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight.
[Book 3, Rule 1, Sec. 2(c), IRR] Officers or members of a managerial staff are also exempted if they perform the following duties and responsibilities: (1)
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the work described in paragraphs (1), (2) and (3) above.
Non-agricultural employees: (1) Who regularly perform their duties away from the principal or place of business or branch office of the employer, AND; (2) Whose actual hours of work in the field cannot be determined with reasonable certainty. [Art. 82, LC]
Although the fishermen perform nonagricultural work away from petitioner’s business offices, the fact remains that throughout the duration of their work they are under the effective control and supervision of petitioner through the vessel’s patron or master. Hence, the fishermen are not “field personnel”. [Mercidar Fishing Corporation v. NLRC (1998)] In order to determine whether an employee is a field employee, it is also necessary to ascertain if actual hours of work in the field
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Domestic worker or “Kasambahay” refers to any person engaged in domestic work within an employment relationship such as but not limited to the following: general househelp, nursemaid or “yaya”, cook, gardener or laundry person but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis.
Note that the definition contemplates a domestic helper who is employed in the employer’s home to minister exclusively to the personal comfort and enjoyment of the employer’s family. [ Azucena] Thus, it has been held that the following personnel are domestic employees: (1) House personnel hired by a ranking company official but paid by the company itself to maintain a staff house provided for the official. [Cadiz v. Philippine Sinter Corp, NLRC Case No. 71729, cited by Azucena] (2) A family cook, who is later assigned to work as a watcher and cleaner of the employer’s business establishment, becomes an industrial worker entitled
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Workers who are paid by results, including those who are paid on piece work, “takay,” “pakiao” or task basis, and other nontime work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section.
Workers under piece-rate employment have no fixed salaries and their compensation is computed on the basis of accomplished tasks. That their work output might have been affected by the change in their specific work assignments does not necessarily imply that any resulting reduction in pay is tantamount to constructive dismissal. It is the prerogative of the management to change their assignments or to transfer them. [Best Wear Garments v. De Lemos and Ocubillo (2012)] workers who are paid by results including those who are paid on piece-work, takay, pakiao, or task basis, if their output rates are in accordance with the standards prescribed under Sec. 8, Rule VII, Book III, of these regulations, or where such rates have been fixed by the Secretary of Labor in accordance with the aforesaid section, are not entitled to receive
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regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. (2) An employee need not leave the premises of the work place in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his work place to go elsewhere, whether within or outside the premises of his work place. (3) If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked, if the work was with the knowledge of his employer or immediate supervisor. (4) The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either: (a) If the imminence of the resumption of work requires the employee’s presence at the place of work, or (b) If the interval is too brief to be utilized effectively and gainfully in the employee’s own interest.
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(2) Hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, "health personnel" shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. [Art. 83, LC] Medical secretaries are also considered clinic personnel. [Azucena]
Rest periods of short duration during working hours shall be counted as hours worked. [Art. 84, par. 2, LC] Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered
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An employee who is not required to leave word at his home or with company officials where he may be reached is NOT working while on call.
The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either: (1) If the imminence of the resumption of work requires the employee's presence at the place of work OR (2) If the interval is too brief to be utilized effectively and gainfully in the employee's own interest. [Book III, Rule 1, Sec. 4(d), IRR]
If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all the time spent for such work shall be
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(1) Attendance in lectures, meetings, and training periods sanctioned or required by the employer are considered hours worked. (2) Attendance in CBA negotiations or grievance meeting is compensable hours worked. (3) Attendance in hearings in cases filed by the employee is NOT compensable hours worked. (4) Participation in strikes compensable working time.
is
NOT
The idle time that an employee may spend for resting and dining which he may leave the spot or place of work though not the premises of his employer, is not counted as working time only where the work is broken or is not continuous. [National Development Co. v. CIR (1962) ] A laborer need not leave the premises of the factory, shop or boat in order that his period of rest shall not be counted, it being enough that he "cease to work", may rest completely and leave or may leave at his will the spot where he actually stays while working, to go somewhere else, whether within or outside the premises of
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(d) Travel is done under the supervision and control of the employer. (2) Travel that is all in the day’s work – Time spent by an employee in travel from jobsite to jobsite during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, the travel from the designated place to the workplace is part of the day’s work. (3) Travel away from home - Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is worktime when it cuts across the employee’s workday. The time is hours worked not only on regular working hours but also during the corresponding hours on nonworking days.
Regular full-time teachers are entitled to salary during semestral breaks. These semestral breaks are in the nature of work interruptions beyond the employees’ control. As such, these breaks cannot be considered as absences within the meaning of the law for which deductions may be made from monthly
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therefore, whether they are on board and cannot leave ship beyond the regular eight working number of hours, but whether they actually rendered service in excess of said number of hours.”
Entitlement to overtime pay must first be established by proof that said overtime work was actually performed, before an employee may avail of said benefit. [Lagatic v. NLRC, G.R. 121004 (1998)]
When an employer alleges that his employee works less than the normal hours of employment as provided for in the law, he bears the burden of proving his allegation with clear and satisfactory evidence. [Prangan v. NLRC, et. al., G.R. No. 126529, (1998)] [DOLE Advisory No. 02, Series of 2004] These are alternative arrangements or schedules other than the standard work hours, workdays, and workweek. Their effectivity and implementation shall be temporary in
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The employees are rotated or alternately provided work within the workweek
Employees are required to go on leave for several days or weeks utilizing their leave credits of there are any.
The works schedule is not continuous but the work hours within the day or week remain.
The employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.
[DOLE Advisory No. 02, Series of 2004] Under the CWW scheme, the normal workday goes beyond eight hours without the corresponding overtime premium. The total hours of work, however, shall not
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safety, there must be a certification from an accredited health and safety organization or practitioner from the firm’s safety committee that work beyond eight hours is within threshold limits or tolerable levels of exposure, as set in the OSHS. (3) The employer shall notify DOLE, through the Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice shall be in DOLE CWW Report Form attached to this Advisory. [DOLE Advisory No. 02-04]
(1) Unless there is a more favorable practice existing in the firm, work beyond eight hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. In any case, any work performed beyond 12 hours a day or 48 hours a week shall be subject to overtime premium. (2) Consistent with Art. 85 of the LC, employees under a CWW scheme are entitled to meal periods of not less than 60 minutes. There shall be no
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wishing to save on energy costs, promote greater work efficiency and lower the rate of employee absenteeism, among others. Workers favor the scheme considering that it would mean savings on the increasing cost of transportation fares for at least one (1) day a week; savings on meal and snack expenses; longer weekends, or an additional 52 off-days a year, that can be devoted to rest, leisure, family responsibilities, studies and other personal matters, and that it will spare them for at least another day in a week from certain inconveniences that are the normal incidents of employment, such as commuting to and from the workplace, travel time spent, exposure to dust and motor vehicle fumes, dressing up for work, etc. Thus, under this scheme, the generally observed workweek of six (6) days is shortened to five (5) days but prolonging the working hours from Monday to Friday without the employer being obliged for pay overtime premium compensation for work performed in excess of eight (8) hours on weekdays, in exchange for the benefits above cited that will accrue to the employees. [Bisig Manggagawa sa Tryco v. NLRC, et al. (2008)]
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The time during which an employee is inactive by reason of work interruptions beyond his control is considered working time, either if the imminence of the resumption of work requires the employee’s presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee’s own interest. [Book III, Rule 1 Sec. 4 (d), IRR]
Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals (Art. 85, LC)
Employees may be given a meal period of not less than twenty (20) minutes provided that such shorter meal period is credited as compensable hours worked of the employee: (1) Where the work is non-manual work in nature or does not involve strenuous physical exertion; (2) Where the establishment regularly operates not less than sixteen (16) hours
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:
Meal
periods
are
NOT
compensable.
It becomes compensable: (1) Where the lunch period or meal time is predominantly spent for the employer’s benefit. [Azucena citing 31 Am. Jur. 881; Duka, Labor Laws and Social Legislation] (2) Meal periods of 1 hour are deemed compensable when the employee is on continuous shift. [National Development Co. v. CIR, G.R. No. L-15422, (1962)] (3) Shortened meal period of less than 1 hour (say, 30 minutes) must be compensable. (Sec. 7, Rule I, Book III, IRR) Note: To shorten meal time to less than 20 minutes is not allowed. If the so-called meal time is less than 20 minutes, it becomes only a REST PERIOD and is considered working time. Shortened meal breaks upon the employees’ request – NOT
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they are provided with adequate “coffee breaks” in the morning and afternoon. (4) The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned; (5) The overtime pay of the employees will become due and demandable if ever they are permitted or made beyond 4:30pm; and (6) The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary of Labor.
Waiting time spent by an employee shall be considered as working time if waiting is an integral part of his work or the employee is required or engaged by the employer to wait.
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Overtime compensation is additional pay for service or work rendered or performed in excess of eight hours a day by employees or laborers covered by the Eight-hour Labor Law. [National Shipyard and Steel Corp. v. CIR (1961)]
There can be no other reason than that he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntary agreed hours of labor he is supposed to do. [PNB v. PEMA (1982)]
Art. 87, LC. Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty five percent (25%) thereof.
Art. 87, LC. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday
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or regular holidays (Art. 93 and 94), the premium pay, must be included in the computation of the overtime pay. [See: p. 19 of Handbook on Workers’ Statutory Monetary Benefits, issued by the Bureau of Working Conditions, 2006] [Art. 89, LC] Any employee may be required by the employer to perform overtime work in any of the following cases: (1) When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; (2) When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; (3) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; (4)
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(1) An employer cannot compel an employee to work overtime Emergency overtime work as provided for in Art. 89 (2) Additional compensation is demandable only if the employer had knowledge and consented to the overtime work rendered by the employee. Express approval by a superior NOT a requisite to make overtime compensable: (a) If the work performed is necessary, or that it benefited the company; or (b) That the employee could not abandon his work at the end of his eight-hour work because there was no substitute ready to take his place. [Manila Railroad Co. v. CIR, G.R. L4614 (1952)]
: However, the Court has also ruled that a claim for overtime pay is NOT justified in the absence of a written authority to render overtime after office hours during Sundays and holidays. [Global Incorporated v. Atienza, G.R. L51612-13 (1986)]
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The right to overtime pay cannot be waived. The Labor Code (Art. 87) requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. Consequently, such an agreement or "waiver" will not prevent an employee from recovering the difference between the wages paid the employee and the overtime compensation he or she is entitled to receive. [Cruz v. Yee Sing, G.R. L-12046 (1959)] When the waiver of overtime pay is in consideration of benefits and privileges which may be more than what will accrue to them in overtime pay, the waiver MAY be permitted. [Meralco Workers Union v. MERALCO, G.R. L-11876 (1959)]
Composite or “package pay” or “all-inclusive salary” is an arrangement where the employee’s salary includes the overtime pay. In other words, the overtime pay is “built-in”. Two conditions arrangement:
for
validity
of
such
(1) There is a clear written agreement
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[Book 3, Rule 2, Sec. 1, IRR] All employees, except: (1) Those of the government and any of its political subdivisions, including government-owned and/or controlled corporations; (2) Those of retail and service establishments regularly employing not more than five (5) workers; (3) Domestic helpers and persons in the personal service of another; (4) Managerial employees as defined in Book Three of this Code; (5) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.
Night shift employees are entitled to a weekly night-off (usually Saturday evening) or a weekly rest period of 24 hours beginning at the start of the night shift.
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six (6) consecutive normal work days. [Art. 91 (a)]
The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. [Art. 94 (b)]
The employer may require his employees to work on any day: (1) In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety; (2) In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which
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(3) If an employee works on his designated rest day, he is entitled to a premium pay. (4) Premium pay is additional 30% of the basic pay. (5) Employer selects the rest day of his employees (6) However, employer must consider the religious reasons for the choice of a rest day. When the choice of the employee as to his rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations and the employer cannot normally be expected to resort to other measures, the employer may so schedule the weekly rest day of his choice for at least two days in a month
Premium pay refers to the additional compensation for work performed within 8 hours on non-work days, such as rest days and special days.
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business of the ER and whose actual hours of work in the filed cannot be determined with reasonable certainty. [DOLE Memorandum Circular 1, Series of 2004] When Work Performed On scheduled rest day
Premium Pay 30% of wage
regular
On Sunday ONLY IF this 30% of is the ESTABLISHED rest wage day
regular
On Sunday and holidays, 30% of when no regular work wage and rest days
regular
On any special 30% of holiday/special day wage
regular
On any special holiday 50% of /special day falling on wage scheduled rest day
regular
On a regular holiday 230% of regular falling on a rest day wage [Book 3, Rule 3, Sec. 7, IRR] All employees
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on a Sunday only when it is his established rest day. (b) Where the nature of the work of the employee is such that he has no regular work days and no regular rest days can be scheduled, he shall be paid an additional compensation of at least 30% of his regular wage for work performed on Sundays and holidays.
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All employees (1) Those of the government and any of the political subdivision, including government-owned and controlled corporation; (2) Those of retail and service establishments regularly employing less than 10 workers; (3) Domestic helpers and persons in the personal service of another;
Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate. [ Art. 93 (d), LC.] The employer and his employees or their representatives are not prevented from entering into any agreement with terms more favorable to the employees. [Book III, Rule II, Sec. 9, IRR.] The laws and regulations should not be used to diminish any benefit granted to the employees under existing laws agreements and voluntary employer practices. [Ibid] Nothing in this rule shall justify an employer in reducing the compensation of his employees for the unworked Sundays, holidays, or other
(4) Managerial employees and officers or members of the managerial staff as defined in Book III (5) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. [Sec. 1, Rule IV of the IRR] is one principally engaged in the sale of goods to end-users for personal or household use;
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(7) National Heroes Day – Aug. 28 (8) Bonifacio Day – Nov. 30 (9) Christmas Day – Dec. 25
Id-ul-Fitr (Eid’l Fitr) and Id -ul-Adha (Eid’l Adha) have been added to the list of national legal holidays.
(10)Rizal Day – Dec. 30
(1) Jan. 2 (based on Proclamation No. 117) (2) Chinese New Year – Jan. 28 (3) EDSA Revolution Anniv – Feb. 25 (4) Black Saturday – Apr. 15 (5) Ninoy Aquino Day – Aug. 21
There should be no distinction between Muslims & non-Muslims as regards to the payment of benefits for Muslim holidays. Wages & other emoluments granted bylaw to the workingman are determined on the basis of the criteria laid down by laws & not on worker’s faith. Art. 3(3), PD 1083 states that nothing herein shall be construed to operate to the prejudice of a non-Muslim. [San Miguel Corp vs. CA (2002)]
(6) All Saints Day – Nov. 1 (7) Dec. 31 (last day of the year) The dates for Eid’l Fitr and Eid’l Adha (special holidays) shall follow after approximate dates of the Islamic holidays have been determined. (Code of Muslim Personal Laws) SEE Arts. 169-173 Specifically for the Muslim Areas, P.D. 1083, in its Book V, Title, recognizes five (5) Muslim Holidays, namely:
(Art. 94 Labor Code, Book III, Rule IV of IRR, RA 9424 and DOLE Memorandum Circular 1 Series of 2004)
An employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate. [ Art. 94(b)]
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Work on special holiday not exceeding 8 hours
Regular daily wage + 30% thereof
Work on special holiday
Regular daily wage + 50% thereof
, a “special holiday”/”special day” includes the National Special Days, and declared special days such as Special Non-working Holiday, Special Public Holiday and Special National Holiday. Such days are entitled to the rates prescribed above. These days are not the same as a special working holiday. A is considered an ordinary working day, so there is no premium pay.
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(2) He works on first holiday, which entitles him to pay on second holiday.
The divisor assumes an important role in determining whether or not holiday pay is already computed. (1) Monthly paid employees are not entitled to the holiday pay if their total annual income is divided by 365 days resulting in a wage which is beyond the minimum wage per day because they are considered paid everyday of the year including holidays, rest days, and other non-working days. The 365 days are as follows: (a) 296 days – ordinary days (b) 52 days – rest days (c) 10 days – regular holidays (d) 7 days – special holidays
According to “DOLE Explanatory Bulletin on Worker’s Entitlement to Holiday Pay on 9 April 1993,” if two holidays fall on the same day: (1) If unworked, 200% of basic wage. (2) If
worked,
300%
of
basic
wage.
Note: For 2017, there are 10 regular holidays and 9 special holidays. (See previous enumeration of holidays ) (2) As a general rule, for a company with a 6-day working schedule, the divisor 313 already means that the legal holidays
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employees (i.e., overtime pay, holiday pay and leave conversions).[Trans Asia Phils. v. NLRC (1999)]
(See “Work on a Sunday or holiday which is also a scheduled rest day”) onp. (1) When a holiday falls on a Sunday, the following Monday will not be considered a holiday unless a proclamation says so. (2) Furthermore as stated in the Wellington case (see below), a legal holiday falling on a Sunday does not create a legal obligation to pay extra, aside from the usual holiday pay, to monthly-paid employees. [Azucena citing Letter of Instruction No. 1087] No provision of law requires any employer to make adjustments in the monthly salary rate set by him to take account of legal holidays falling on Sundays in a given year, otherwise to reckon a year at more than 365 days. [Wellington Investment and Manufacturing Corporation vs. Trajano (1995)]
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All covered employees shall be entitled to the benefit provided herein when they are on leave of absence with pay. Employees who are on leave of absence without pay on the day immediately preceding a regular holiday may not be paid the required holiday pay if he has not worked on such regular holiday. [Book III, Rule IV, Sec 6(a), IRR]
(1) If an employee is on leave of absence on the day immediately preceding a regular holiday, he is entitled to holiday pay. (2) If an employee is on leave of absence on the day immediately preceding a regular holiday, he is not entitled to holiday pay unless he works on such regular holiday.
(1) In cases of temporary or periodic shutdown and temporary cessation of work of an establishment, as when a yearly inventory or when the repair or cleaning of machineries and equipment
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business reverses, and is authorized by the Secretary of Labor.
(1) Private school teachers, including faculty members of colleges and universities, may not be paid for the regular holidays during semestral vacations. They shall, however, be paid for the regular holidays during Christmas vacation; (2) Where a covered employee, is paid by results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday; Provided, However, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate. (3) Seasonal workers may not be paid the required holiday pay during off-season when they are not at work (4) Workers who have no regular working days shall be entitled to the benefits provided in this Rule. [Book III, Rule IV, Sec. 8, IRR]
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certainly the latter do not expect payment for said unworked holidays. (2) They are to their hourly rate on days declared as . 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. (3) 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 College v. NLRC, (1987)]
Philosophy underlying the exclusion of piece workers from the 8-hour law is that said workers are paid depending upon the work they do irrespective of the amount of time employed in doing said work. [Red v. Coconut Products Ltd., v. CIR (1966)]
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paid on regular holidays falling in that duration.
Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof [Art 87] = × 1.25 × = 100 × 1.25 × 4 = 500
Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof [Art 87] = × 1.3 = 800 × 1.3 = 1,040
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= × 1.3 = 800 × 1.3 = 1,040
Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage. = × 1.5 = 800 × 1.5 = 1,200
= × 1.95 × = 100 × 1.95 × 4 = 780
a. 1.95 was derived by adding 45% (which is 30% of 1.5 or 1.5x0.3) to 150% b. The worker’s total take-home pay for the day is P1,980 (P780+P1,200)
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a. 2.6 was derived by adding 60% (which is 30% of 2 or 2x0.3) to 200% b. The worker’s total take-home pay for the day is P2,640 (P1,600+P1,040)
If the holiday work falls on the scheduled rest day of the employee, he shall be entitled to an additional premium pay of at least 30% of his regular wage holiday rate of 200% based on his regular wage rate [2nd sentence, Sec. 4, Rule IV, Book III, IRR]. = × 2.6 = 800 × 2.6 = 2,080
a. 2.6 was derived by adding 60% (which is 30% of 2 or 2x0.3) to 200%
Where the regular holiday work exceeding 8 hours falls on the scheduled rest day of the employee, he shall be paid an additional compensation for the overtime work equivalent to his regular holiday-rest day for the first 8 hours plus 30% thereof. The regular holiday rest day rate of an employee shall consist of 200% of his regular daily wage rate + 30% thereof [par. 2, Sec. 5, Rule IV, Book III, IRR]. = × 3.38 × = 100 × 3.38 × 4 = 1,352
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“ [PD 851 (The 13th-Month Pay Law) and the Revised Guidelines on the Implementation of the 13th Month Pay Law]
•
•
To further protect the level of real wages from the ravage of world-wide inflation; There had been no increase in the legal minimum wage rates since 1970;
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” includes:
(1) Christmas bonus, mid-year bonus, cash bonuses (2) and other payments amounting to not less than 1/12 of the basic salary but shall NOT INCLUDE cash and stock dividends, cost of living allowances and all other allowances regularly enjoyed by the employee as well a non-monetary benefits.
The Christmas season is an opportune time for society to show its concern for the plight of the working masses so they may properly celebrate Christmas and New Year.
- paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.
ALL EMPLOYERS are hereby required to pay all their rank and file employees a 13th month pay not later than Dec 24 of every year, Provided that they have worked for at least one (1) month during a calendar year .
1/12 of the total basic salary earned by an employee within a calendar year
•
, shall include: (1) Cost of living allowances (COLA) integrated into the basic salary of a covered employee pursuant to EO 178.
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vacation and maternity leaves, premiums for work done on rest days and special holidays, and pay for regular holidays. The considerable length of time the questioned items had been included by [the employer] indicates a unilateral and voluntary act on its part, sufficient in itself to negate any claim of mistake. A company practice favorable to the employees had indeed been established and the payments made pursuant thereto, ripened into benefits enjoyed by them. And any benefit and supplement being enjoyed by the employees cannot be reduced, diminished, discontinued or eliminated by the employer. [Davao Fruits Corp. v. ALU, G.R. No. 85073 (1993)]
paid not later than . ER may give to his employees of the required 13th Month Pay before the opening of the regular school year and the other half on or before the 24th of December every year. The frequency of payment of this monetary
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as Employees working in two or more private firms, whether on full or part time bases, are entitled to the required 13th Month Pay from all their private Employers regardless of their total earnings from each or all their employers. (Revised Guidelines) (4)
Private school teachers, including faculty members of universities and colleges, are entitled to the required 13th month pay, regardless of the number of months they teach or are paid within a year, if they have rendered service for at least one (1) month within a year. (Revised Guidelines)
Overload pay is NOT included in the computation for 13th month pay; overload is not overtime as it is additional work done within the normal shift [Letran Calamba Faculty vs NLRC, G.R. No. 156225 (2008)] An Employee who has resigned or whose services were terminated at any time before the time for payment of the 13th month pay is entitled to this monetary benefit in proportion to the length of
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EXCLUDED. [Phil. Duplicators Inc. vs NLRC, G.R. No. 110068 (1995)] (2) Benefits in the form of food or free electricity, assuming they were given, were not a proper substitute for the 13th month pay required by law. Neither may year-end rewards for loyalty and service be considered in lieu of 13th month pay. [Framanlis Farms, Inc. vs MOLE, G.R. No. 72616-17 (1989)] (3)
The difference between the minimum wage and the actual salary received by the Employee cannot be deemed as his 13th month pay as such difference is not equivalent to or of the same import as the said benefit contemplated by law. [JPL Marketing Promotions vs CA, 2005]
(4) Employers already paying their employees a 13th month pay or its equivalent are not covered by this Decree.[Kamaya Point Hotel vs NLRC, G.R. No. 75289 (1989)] (5) N The mandated 13th month pay need not be credited as part of regular wage of employees for purposes of determining
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given, should not be deemed to fall within the “basic salary” of employees when the time comes to compute their 13th month pay [BoieTakeda vs de la Serna, G.R. No. 92174 and G.R. No. L-102552 (1993)] The decision in Boie-Takeda and the doctrine enunciated in this case in fact co-exist with the other. The two cases present quite different factual situations (although the same word “commissions” was used or invoked) the legal characterizations of which must accordingly differ. In the instant case, there is no question that the sales commission earned by the salesmen who make or close a sale of duplicating machines constitute part of the compensation or remuneration paid to salesmen for serving as salesmen, and hence as part of the “wage” or salary of petitioner’s salesmen. It appears that petitioner pays its salesmen a small fixed or guaranteed wage; the greater part of the salesmen’s wages or salaries being composed of the sales or incentive commissions earned on actual sales closed by them. The sale commissions were an integral part of the basic salary structure. They are not overtime payments, or profit sharing payments or any other fringe benefit. [Phil. Duplicators vs NLRC (1995)]
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An employer who pays less than 1/12th of the employees basic salary as their 13th month pay is only required to pay the difference. [Revised Rules]
[Sec 1, Rule VI, Book 3, IRR]
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Fifteen percent (15%) for the disposition of management to answer for losses and breakages and, at the discretion of the management for distribution to managerial employees. [Sec 3, Rule VI, Book 3, IRR]
The shares shall be distributed to employees not less than once every 2 weeks or twice a month at intervals not exceeding 16 days. [Sec 4, Rule VI, Book 3, IRR]
This rule shall apply only to establishments which collect service charges such as: (1) Hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses; (2) Similar enterprises including those entities operating primarily as private subsidiaries of the Government [Sec 2, Rule VI, Book 3, IRR] Shall apply to (1) Regardless of their positions, designations, or employment status, and
•
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The P2,000.00 salary ceiling for entitlement thereto is no longer applicable. [The employees’] right to their shares in the service charges collected by [the employer] is distinct and separate from their right to ECOLA; gratification by the [employer] of one does not result in the satisfaction of the other. [Philippine Hoteliers, Inc., Dusit Hotel-Nikko v. NUWHRAIN-APL-IUF-Dusit Hotel Nikko Chapter, G.R. No. 181972 (2009)]
In case service charge is abolished, the shares
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The rule is without prejudice to existing, future collective bargaining agreements. [Sec. 7, Rule VI, Book 3, IRR]
Fair and reasonable value - shall not include any profit to the employer, or to any person affiliated with the employer. [Art. 97(f), LC]
Service charges must be pooled;
: the age old rule governing the relation between labor and capital or management and employee is that a "fair day's wage for a fair day's labor." [Sugue v. Triumph International (2009)]
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 to its employees, the pooled tips should be monitored, accounted for and distributed in the same manner as the services charges. [DOLE Handbook on Workers’ Statutory Monetary Benefits, 2014ed.] The amount collected is divided between the company (15%) and employees (85%); It shall be given twice a month with intervals of not more than 16 days; If discontinued, removed, or stopped, the average share of the employees of their service charge or tips shall be integrated with their basic wage.
: When the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed, or otherwise illegally prevented from working. [Sugue v Triumph International, supra]
Employees working in the Philippines, if they are performing similar functions and responsibilities under similar working conditions should be paid equally. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. [International School Alliance of Educators v. Hon. Quisumbing (2000)]
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(4) Workers in registered cottage industries who actually work at home; (5) Workers in registered cooperatives when so recommended by the Bureau of Cooperative Development upon approval of the Secretary of Labor;
6. Any object other than legal tender, even when expressly requested by the employee
1. Workers in registered barangay micro business enterprise are only exempted from the Minimum Wage Law, not from the Title on Wages [RA 9178].
Wages and salary are in essence synonymous. [Songco v. NLRC (1990)] There are slight differences: Wage
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Bank/Facility for encashment is within 1km radius from the workplace
2. ER did not receive any pecuniary benefit because of said arrangement 3. EEs are given reasonable time during banking hours to withdraw their wages (compensable hours, if during working hours) 4. The payment by check is with the written consent of the EEs concerned, in the absence of a CBA
Salary
Paid for skilled or Paid to white collar unskilled manual labor workers and denote a higher grade of employment Not subject to execution, Not exempt from garnishment or execution, attachment except for garnishment or [Gaa
[Secs. 3, Rule VIII, Book III, Omnibus Rules]
Frequency
At least once every 2 weeks or 2x per month
Intervals
Must not be more than 16 days
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: Directly to EE 1.
Deterioration of peace and order conditions, or by reason of actual or impending emergencies (fire, flood, epidemic)
2. Free transportation to the employees back and forth 3. Under any other analogous circumstances provided, that the time spent by the employees in collecting their wages shall be considered as compensable hours worked. NO PAYMENT in any bar, night or day club, drinking establishment, massage clinic, dance hall, or other similar places or in places where games are played with stakes of money or things representing money except in the case of persons employees in such places
: 1.
Member of EE’s family if ER is authorized in writing by the EE
2. A 3rd person if authorized by law (e.g. insurance companies for premiums, union dues where the right to check-off has been recognized by ER in accordance with a CBA or authorized in writing by EE concerned) 3. Heirs in case of death of EE, without necessity of intestate proceedings •
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[Labor Advisory on Payment of Salaries thru ATM (1996)]: 1.
ATM system of payment is with the written consent of the EEs
2. EEs are given reasonable time to withdraw their wages from the banking facility (compensable hours, if during
If heirs are of age they shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs to the exclusion of others If any of the heirs is a minor such affidavit shall be executed in his behalf by his natural guardian or next of kin.
The distinction between facilities and supplement is relevant because the former is wage-deductible while the latter is not. Simply put, a wage includes facilities. [Art. 97, LC)
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subsistence. [States Marine Corp. v. Cebu Seamen's Assoc., Inc., 1963]
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(2) The provision of deductible facilities must be voluntarily accepted in writing by the employee; and (3) Facilities must be charged at reasonable value.
Facilities
Articles or services/items of expense; EXCLUDES tools of the trade or articles or service primarily for the benefit of ER
Supplements
Extra remuneration or special benefits / articles or services / tools of the trade given to or received by laborers over and above their ordinary earning or wages
[SLL International Cable Specialists v. NLRC, 2011] Value of Facilties = Cost of Operation and maintenance + Adequate depreciation + reasonable allowance (not more than 5.5% interest) If the fair rental value is lower than the computed value, fair rental value will be used.
There is a prohibition against elimination or diminution of benefits [Art. 100] For the benefit of the employee and his family; for their existence and subsistence
Yes
For the benefit or convenience of the employer
No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. [Art. 127, as amended by Republic Act No. 6727, June 9, 1989]
No
If the following are met, then the employer cannot remove or reduce benefits [Vergara Jr. v Coca-Cola Bottlers Phils]:
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(4) Contingent or Conditional Benefits – the rule does not apply to a benefit whose grant depends on the existence of certain conditions, so that the benefit is not demandable if those preconditions are absent. Benefits initiated through negotiation between Employee and Employer, e.g. CBA, can only be eliminated or diminished bilaterally.
1.
Interference in disposal of wages [Art 112, LC]
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3. Other deductions authorized law/Secretary of Labor
by
[Art 110, LC] Workers shall enjoy first preference as regards their wages and other monetary claims, any provision of law to the contrary nowithstanding. Such unpaid wages and monetary claims shall be paid in full before the claims of the Government and other creditors may be paid [NOTE : Art 110, LC amended Art 2244 of the Civil Code (ordinary preferred credits) by elevating #2 of Art. 2244 to 1st priority]
2. Wage deduction [Art 113, LC] 3. Requirement to make deposits for loss or damage [Art 114-115, LC] 4. Withholding of wages [Art 116, LC] 5. Deduction to ensure employment [Art 117, LC] 6. Retaliatory measures [Art 118, LC] 7. False reporting [Art 119, LC]
[Art. 114, LC] No ER shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer. : ER is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labor and
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Withholding of wages and kickbacks prohibited. It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent.
1.
Deduction is for insurance premiums
2. For union dues 3. Authorized by law/ DOLE Sec 4. Due & demandable debt to ER
Deduction to ensure employment . It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment.
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of this Code knowing such statement, report or record to be false in any material respect. Covers all offenses under the Labor Code
– an order issued by the Regional Tripartite Wages and Productivity Boards (“Regional Boards”) whenever the conditions in the region so warrant after investigating and studying all pertinent facts and based on the standards and criteria prescribed by the Labor Code. The Regional Board proceeds to determine whether to issue the same or not [ Art, 123, LC, as amended by RA 6727 ]. WO establishes the minimum wage rates to be paid by ERs in the region, which shall in no case be lower than the applicable statutory minimum wage rates [NWPC Rules of Procedure on Minimum Wage Fixing].
It is hereby declared the policy of the State to rationalize the fixing of minimum wages and to promote productivity-improvement and gain-sharing measures to ensure a decent
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"The Regional Boards shall have the following powers and functions in their respective territorial jurisdiction: xxx (b) To determine and fix minimum wage rates applicable in their region, provinces or industries therein and to issue the corresponding wage orders, subject to guidelines issued by the Commission xxx
1.
The demand for living wages;
2. Wage adjustment consumer price index;
vis-a-vis
the
3. The cost of living and changes or increases therein; 4. The needs of workers and their families; 5. The need to induce industries to invest in the countryside;
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Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within ten (10) calendar days from the publication of such order. It shall be mandatory for the Commission to decide such appeal within sixty (60) calendar days from the filing thereof. The filing of the appeal does not stay the order unless the person appealing such order shall file with the Commission an undertaking with a surety or sureties satisfactory to the Commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed." After 15 days from its complete publication in at least one newspaper of general circulation NOTE: Public hearing and publication are mandatory[Cagayan Sugar Milling Co. vs. Sec. of Labor, GR No. 128399 (1998)].
6. Improvements in standards of living; 7. The prevailing wage levels; 8. Fair return of the capital invested and capacity to pay of employers; 9. Effects on employment generation and family income; and 10. The equitable distribution of income and
: A WO issued by the Board may not be disturbed for a period of 12 months from its effectivity and no petition for wage increase shall be entertained during said period.
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the Commission for payment to employees affected by the order of the corresponding increase in the event such order is affirmed [Sec 5, Rule V, IRR of RA 6727].
1.
Adds to previous minimum wage
All wages under a certain wage increases to that wage
P456+P100=P556
All wages under P556 must be increased to P556
Non-conformity with prescribed guidelines and/or procedure
2. Questions of law 3. Grave abuse of discretion [Rule IV, Revised Rules of Procedure on Minimum Wage Fixing]
Double Indemnity is the payment to a concerned EE of the prescribed increase or adjustments in the wage rate which was not paid by an ER in an amount equivalent to 2x the benefits owing to such employee.
A situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation [Art. 124, LC]
The prescribed wage rates which the ER failed to pay upon the effectivity of a WO, exclusive of other wage-related benefits Unpaid benefits serve as the principal basis for computing the double indemnity [Sec. 2, DO
(a) Existing hierarchy of positions with corresponding salary rates;
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Grievance Procedure (under the CBA) unresolved, VOLUNTARY arbitration
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if :
(1) ERs and Employees shall endeavor to correct such distortions. (2) Disputes shall be settled through the National Conciliation and Mediation Board. (3) If still unresolved after 10 calendar days of conciliation, it shall be referred to the appropriate branch of the NLRC – compulsory arbitration ▪
Both the employer and employee cannot use economic weapons.
(4) Employer cannot declare a lock-out; Employee cannot declare a strike because the law has provided for a procedure for settling (5) The salary or wage differential does not need to be maintained. [National Federation of Labor v. NLRC, 1994] National Conciliation and Mediation Board if unresolved, COMPULSORY arbitration by the NLRC
(1) Those of the government and any of its political subdivisions, including GOCCs; (2) Domestic helpers and persons in the personal service of another; (3) Managerial employees as defined in Book 3 of this Code; (4) Field personnel and other employees whose performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof; (5) Those who are already enjoying the benefit herein provided; (6) Those enjoying vacation leave with pay of at least 5 days; (7) Those employed in establishments regularly employing less than 10 employees. [Book 3, Rule 5, Sec. 1, IRR] Piece-rate employees are entitled to service
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or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year. [Book III, Rule V, Sec. 3, IRR.]
(1) Employment A female employee employed at the time of delivery, miscarriage or abortion
The grant of benefit IN EXCESS of that provided herein shall not be made a subject of arbitration or any court or administrative action. [Art. 95 (c), LC]
(3) Notice: employee notified employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide.
The cause of action of an entitled employee to claim his service incentive leave pay accrues from the moment the employer refuses to remunerate its monetary equivalent if the employee did not make use of said leave credits but instead chose to avail of its commutation (into money). Accordingly, if the employee wishes to accumulate his leave credits and opts for its commutation upon his resignation or separation from employment, his cause of action to claim the whole amount of his accumulated service incentive leave shall arise when the employer fails to pay such amount at the time of his resignation or separation from employment. [Auto Bus Transport vs. NLRC (2005)]
(2) Contribution: who has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth, or miscarriage.
A daily maternity benefit equivalent to 100% of her average daily salary credit for: (1) 60 days for normal delivery (2) 78 days for caesarean delivery This benefit shall NOT be included in t he computation of 13th month pay as it is granted to an employee in lieu of wages which is the basis for computing 13th month.
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(2) Availment shall be a bar to the recovery of sickness benefits provided by this Act for the same period for which daily maternity benefits have been received. (3) Employee may only avail of benefit for the first four (4) deliveries or miscarriages. (4) Sanction: That if an employee should give birth or suffer miscarriage (a) Without the required contributions having been remitted for her by her ER to the SSS, or (b) Without the latter having been previously notified by the ER of time of the pregnancy, then the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to.
C.3. PATERNITY LEAVE [RA (PATERNITY LEAVE ACT OF 1996)]
8187
Paternity leave is granted to all married male employees in the private and public sectors, regardless of their employment status (e.g. probationary, regular, contractual, project basis). The purpose of this benefit is to allow
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Usage of the leave shall be after the delivery, without prejudice to an employer’s policy of allowing the employee to avail of the benefit before or during the delivery, provided that the total number of days shall not be more than 7 days for each covered delivery. [Sec. 5, IRR, RA 8187 ] [Sec. 3, IRR, RA 8187] (1) He is married; (2) He is an employee at the time of the delivery of his child; (3) He is cohabiting with his spouse at the time that she gives birth or suffers a miscarriage; (4) He has applied for paternity leave with his ER within a reasonable period of time from the expected date of delivery by his pregnant spouse, or within such period as may be provided by company rules and regulations, or by CBA; and, (5) His wife has given birth or suffered a miscarriage.
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(2) If the existing paternity leave benefit is less than that provided in RA 8187, the ER shall adjust the existing benefit to cover the difference. [Sec. 9, IRR, RA 8187]
(8) Unmarried father/mother who has preferred to keep and rear his/her child/children, instead of having others care for them or give them up to a welfare institution;
Where a company policy, contract, or CBA provides for an emergency or contingency leave without specific provisions on paternity leave, the ER shall grant to the employee 7 calendar days of paternity leave. [Sec. 9, IRR, RA 8187]
(9) Any other person who solely provides parental care and support to a child or children: Provided, that he/she is duly licensed as a foster parent by the Department of Social Welfare and Development (DSWD) or duly appointed legal guardian by the court; and
C.4. PARENTAL LEAVE FOR SOLO PARENTS [RA 8972 (SOLO PAREN TS’ WELFARE ACT OF 2000)]
Leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required. [Sec. 3 (d), RA 8972]
(10)Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance, or prolonged absence of the parents or solo parent for at least one (1) year. [Sec. 3 (a), RA 8972]
A solo parent employee shall be entitled to the parental leave under the following conditions: Any solo parent or individual who is left alone with the responsibility of parenthood due to: (1) Giving birth as a result of rape or and other crimes against chastity even without a final conviction of the offender: Provided, That the mother
(1) He/she has rendered at least one (1) year of service, whether continuous or broken; (2) He/she has notified his/her employer that he/she will avail himself/herself of it, within a reasonable period of time;
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any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. [Sec. 6, RA 8972]
No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. [Sec. 7, RA 8972]
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The monthly basic pay plus mandatory allowances fixed by the regional wage boards. [Sec. 7, Rule II, IRR, RA 9710] The woman employee should have been with the company for 12 months prior to surgery. An aggregate service of at least six (6) months within the said 12-month period is sufficient to entitle her to avail of the special leave benefit. Employment service includes absences with pay such as use of other mandated leaves, company-granted leaves and maternity leaves
A change in the status or circumstance of the parent claiming the benefit under the law, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these benefits. [Sec. 3 (a), RA 8972] C.5. SPECIAL LEAVE FOR WOMEN WORKERS [RA 9710 (THE MAGNA CARTA OF WOMEN), DOLE DO NO. 112, SERIES OF 2011 AS AMENDED BY DO NO. 112-A SERIES OF 2012]
A female employee’s leave entitlement of two
A medical doctor preferably specializing in gynecological disorders or is in the position to determine the period of recuperation of the woman employee. [Sec. 1, DO 112, as amended]
Any female employee, regardless of age and civil status, shall be entitled to a special leave benefit, provided she has complied with the following conditions: (1) She has rendered at least 6 months
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Prior application for leave shall not be necessary in cases requiring emergency surgical procedure, provided that the employer shall be notified verbally or in written form within a reasonable period of time and provided further that after the surgery or appropriate recuperating period, the female employee shall immediately file her application using the prescribed form. [Sec. 3, DO 112]
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victims of VAWC, Parental leave for solo parents). The grant of SLB under the law is in recognition of the fact that patients with gynecological disorder needing surgery require a longer period of recovery. The benefit is considered an addition to the leave benefits granted under existing laws and should be added on top of said statutory leave entitlements. If the SLB has already been exhausted, the company leave and other mandated leave benefits may be availed of by the woman employee. [Sec. 8, DO 112, as amended]
The 2 months special leave is the maximum period of leave with pay that a woman employee may avail of under RA 9710. For purposes of determining the period of leave with pay that will be allowed to a female employee, the certification of a competent physician as to the required period of recuperation shall be controlling. [Sec. 4, DO 112, as amended]
The special leave shall be granted to the qualified employee after she has undergone surgery. [Sec. 5, DO 112, as amended] A woman employee can avail of the SLB for
Where the woman employee had undergone surgery due to gynecological disorder during her maternity leave, she is entitled only to the difference between the SLB and maternity leave benefit. [Sec. 9, DO 112, as amended]
If there are existing or similar benefits under a company policy, practice or CBA providing similar or equal benefits to what is mandated by law, the same shall be considered as compliance, unless the company policy,
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on her prevailing salary at the time of the surgery. [Sec. 11, DO 112, as amended]
The SLB shall be non-cumulative and nonconvertible to cash unless otherwise provided by a CBA. [Sec. 12, DO 112, as amended]
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remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and (2) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. [Art.133, Labor Code]
D. SPECIAL GROUPS OF EMPLOYEES D.1. WOMEN
The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
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 enhance their welfare and enable them to realize their full potential in the service of the nation.
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.
Equal Treatment Before the Law . - 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.
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With particular regard to women, Republic Act No. 9710 or the Magna Carta of Women protects women against discrimination in all matters relating to marriage and family relations, including the right to choose freely a spouse and to enter into marriage only with their free and full consent. Weighed against these safeguards, it becomes apparent that Brent's (employer) condition is coercive, oppressive and discriminatory. There is no rhyme or reason for it. It forces Cadiz to marry for economic reasons and deprives her of the freedom to choose her status, which is a privilege that inheres in her as an intangible and inalienable right. While a marriage or nomarriage qualification may be justified as a "bona fide occupational qualification," Brent must prove two factors necessitating its imposition, viz: (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. Brent has not shown the presence of neither of these factors. Perforce, the Court cannot uphold the validity of said condition [Capin-Cadiz vs. Brent Hospital and Colleges, Inc ., G.R. No. 187417 (2016)].
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[Art. 135 (previously Article 137)] – No more nightwork prohibition under R.A. 10151 (An Act Allowing the Employment of Night Workers, thereby Repealing Articles 130 and 131 of PD 442, as amended, otherwise known as the Labor Code of the Philippines)
Art. 154. RA 10151. . - This chapter shall apply to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o'clock in the morning, to be determined by the Secretary of Labor and Employment, after consulting the workers' representatives/labor organizations and employers. Night worker means any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers' representatives/labor organizations and
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which shall be determined by the DOLE after consulting the labor organizations and employers.
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preventing her from enjoying any of the benefits provided under this Code. [Art. 135 (1)]
During the periods referred to in this article: (i) A woman worker shall not be dismissed or given notice of dismissal, except for just or authorized causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities. (ii) A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position. Pregnant women and nursing mothers may be allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the case of pregnant employees, the period of the pregnancy that they can safely work. The measures referred to in this article may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave.
The measures referred to in this article may include transfer to day work where this is
To discharge such woman on account of her pregnancy, while on leave or in confinement due to her pregnancy. [Art. 135 (2)] To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant. [Art. 137 (3)] It shall be unlawful for any employer: …to discharge any woman or child or any other employee for having filed a complaint or having testified or being about to testify under the Code [Book III, Rule XII, Sec 13(d), IRR]
Expulsion and non-readmission of women faculty due to pregnancy outside of marriage shall be outlawed. No school shall turn out or refuse admission to a female student solely on the account of her having contracted pregnancy outside of marriage during her term in school. [Sec. 13(c), RA 9710]
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otherwise adversely affect said employee;
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also be held liable under this Act [Sec. 3, RA 7877]
(b) The above acts would either: (i) impair the employee’s rights or privileges under existing labor laws; or (ii) result in an intimidating, hostile, or offensive environment for the employee. In an education or training environment, sexual harassment is committed: (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) When the 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) When the sexual advances result in an intimidating, hostile or offensive environment for the result, trainee or
Sec. 4, RA 7877. The Employer or Head of Office shall have the duty : (1) to prevent the commission of such acts and (2) to lay down the procedure for the resolution, settlement or prosecution of committed acts. Sec. 5, RA 7877. He shall be solidarily liable for damages: (1) if he is informed of such acts by the offended party and (2) no immediate action is taken thereon.
Sec. 6, RA 7877. The victim of work, education or training-related sexual harassment can institute a separate and independent action for damages and other affirmative relief.
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there is no time period within which he or she is expected to complain through the proper channels. The time to do so may vary depending upon the needs, circumstances, and more importantly, the emotional threshold of the employee. Not many women are made of the stuff that can endure the agony and trauma of a public, even corporate, scandal. If petitionercorporation had not issued the third memorandum that terminated the services of private respondent, we could only speculate how much longer she would keep her silence. Perhaps, to private respondent's mind, for as long as she could outwit her employer's ploys she would continue on her job and consider them as mere occupational hazards. [Phil. Aelous Automotive United Corp. vs NLRC, 2000] D.2. MINORS
: RA 7610 (Special Protection of Children Against Abuse, Exploitation and Discrimination Act), RA 9231 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), Art. 137(a)
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his/her family are employed: Provided, however , That his/her employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development: Provided, further , That the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or (2)
Where a child's employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: Provided, That the employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: Provided, further, That the following requirements in all instances are strictly complied with: (a) The employer shall ensure the protection, health, safety, morals and normal development of the child; (b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of
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care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. [Sec. 2, RA 7610]
- refers to any work or economic activity performed by a child that subjects him/her to any form of exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development. - refers to any child engaged as follows: (1) when the child is below eighteen (18) years of age, in work or economic activity that is not child labor as defined in the immediately preceding subparagraph; and (2) when the child is below fifteen (15) years of age, 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 in public entertainment or information. [Sec. 3, DO 65-04]
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(a) employment does NOT involve ads or commercials promoting alcohol, tobacco and its by-products or violence [Sec. 14, RA 7610] (b) the employment contract is concluded by the child’s parents or guardian, and approved by DOLE (c) The ER shall ensure the protection, health, safety and morals of the child (d) 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 (e) 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. [Sec. 12 of RA 7610 as amended by RA 7658]
Employment is allowed even without permit but restricted to non-hazardous work.
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(3) manufacture or handling of explosives and other pyrotechnic products; (4) exposure to or use of heavy powerdriven machinery or equipment;
physical strength or contortion, or which requires the manual transport of heavy loads; or (f)
(5) exposure to or use of power-driven tools
(1) All forms of slavery, as defined under the "Anti-trafficking in 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; or (2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or (3) The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or (4) Work which, by its nature or the circumstances in which it is carried out,
Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or
(g) Is performed under particularly difficult conditions; or (h) Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or (i)
Involves the manufacture or handling of explosives and other pyrotechnic products.
Age Bracket
Daily Max
Weekly Max
Below 15 y
4 hrs
20 hrs
15 to below
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- This refers to work performed in or for a household or households. [Sec 4(C). RA 10361] Refers to any person engaged in domestic work within an employment relationship such as, but not limited to, the following: general househelp, nursemaid or “yaya”, cook, gardener, or laundry person. [Sec 4(D). RA 10361] The term domestic worker or “kasambahay” excludes any person who performs domestic work only occasionally or sporadically and not on an occupational basis. [Sec.4(D), RA 10361]
The minimum wage of domestic workers shall not be less than the following: i.
P2,500 a month for those employed in NCR
ii.
P2,000 a month for those employed in chartered cities and first class municipalities
iii.
P1,500 a month for those employed in other municipalities
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Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities; (6)Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first class municipalities; and (7) Five hundred fifty pesos (P550.00) a month for those in other municipalities; Provided, that the employees shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. Provided, further, that those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder."
The employer or any member of the household shall not subject a domestic worker or “kasambahay” to any kind of abuse nor inflict
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such as voter’s identification card, baptismal record or passport. The employer shall grant the domestic worker access to outside communication during free time: Provided, That in case of emergency, access to communication shall be granted even during work time. [Sec. 8, RA 10361]
The employer shall afford the domestic worker the opportunity to finish basic education and may allow access to alternative learning systems and, as far as practicable, higher education or technical and vocational training. [Sec. 9, RA 10361]
A domestic worker who has rendered at least one (1) month of service shall be covered by the Social Security System (SSS), the Philippine Health Insurance Corporation (PhilHealth), and the Home Development Mutual Fund or Pag-IBIG, and shall be entitled to all the benefits in accordance with the pertinent provisions provided by law.
However, Section 12(a), (b), (c) and (d) shall be standard requirements when the employment of the domestic worker is facilitated through the PEA. The cost of the foregoing shall be borne by the prospective employer or agency, as the case may be. [Sec. 12, RA 10361] : Payment of wages shall be made on time directly to the domestic worker in cash at least once a month and unless allowed by the domestic worker through a written consent, employer shall make no deductions from the wages other than that which is mandated by law. [Sec. 25, RA 10361]
at a wage rate lower than that mandated for agricultural or non-agricultural enterprises depending on the case. [Sec. 22, RA 10361] : Unlawful to employ any person below fifteen (15) years of age as a domestic worker [Sec. 16, RA 10361]
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(a) Verbal or emotional abuse of the domestic worker by the employer or any member of the household; (b) Inhuman treatment including physical abuse of the domestic worker by the employer or any member of the household; (c) Commission of a crime or offense against the domestic worker by the employer or any member of the household; (d) Violation by the employer of the terms and conditions of the employment contract and other standards set forth under this law; (e) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and (f) Other causes analogous to foregoing. [Sec. 33, RA 10361]
the
An employer may terminate the services of the domestic worker at any time before the expiration of the contract, for any of the following causes: (a) Misconduct or willful disobedience by
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(g) Other causes analogous to foregoing. [Sec. 34, RA 10361]
the
Neither the domestic worker nor the employer may terminate the contract before the expiration of the term except for grounds provided in Sec. 33 and 34 of RA 10361. If the domestic worker is unjustly dismissed, the domestic worker shall be paid the compensation already earned plus the equivalent of 15 days work by way of indemnity.
(a) any unpaid salary due not exceeding the equivalent 15 days work shall be forfeited AND (b) the employer may recover from the domestic worker the costs incurred related to the deployment expenses, if any: Provided, that the service has been terminated within 6 months from the domestic worker’s employment.
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home. Materials may or may not be furnished by the employer or contractor. (2) Decentralized form of production, where there is ordinarily very little supervision or regulation of methods of work. [Sec. 2(a), Rule XIV, Book III, IRR] a worker who is engaged in industrial homework means any natural or artificial person who (1) Acts as a contractor or subcontractor – 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 employer’s direction; OR (2) Sells any goods, articles, or materials to be processed or fabricated in or about a home and then rebuys them after. [Art. 153, LC] Note: Sec 2(d), Rule XIV, Book III is substantially similar to the above.
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redo work improperly executed without additional pay [Sec 9a, Rule XIV, Book III, IRR] (2) Employer need not pay homeworker for any work done on goods or articles not returned due to homeworker’s fault [Sec 9b, Rule XIV, Book III, IRR] (3) If subcontractor/contractor fails to pay homeworker, employer is jointly and severally liable with the former to the homeworker for his/her wage [Sec 11, Rule XIV, Book III, IRR] (4) Employer shall assist the homeworkers in the maintenance of basic safe and healthful working conditions at the homeworkers’ place of work. [Sec 11, Rule XIV, Book III, IRR of LC] Regional Office shall provide to registered homeworkers’ organizations [Sec 14, Rule XIV, Book III, IRR of LC]
(1) explosives, fireworks and articles of like character; (2) drugs and poisons; and
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Any employed person whose work requires performance of a substantial number of hours of night work which exceed a specified limit. This limit shall be fixed by the Sec of Labor after consulting the workers’ representatives/labor organizations and employers. [Art. 154, LC as amended by RA 10151] Any employed person whose work covers the period from 10 o’clock in the evening to 6 o’clock the following morning, provided that the worker performs no less than 7 consecutive hours of work. [Book III, Rule XV, Sec. 2, IRR, through DO 119-12]
At the worker’s request, they shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work: (a) Before taking up an assignment as a night worker;
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(d) Facility for eating w/ potable drinking water; AND (e) Facilities for transportation and/or properly ventilated temporary sleeping or resting quarters, separate for male and female workers, shall be provided except where any of the ff. circumstances is present: i.
There is an existing company guideline, practice or policy, CBA, or any similar agreement providing for an equivalent or superior benefit; or
ii.
Start or end of the night work does NOT fall within 12 mn - 5 am; or
iii.
Workplace is located in an area that is accessible 24 hours to public transportation; or
iv.
Number of employees does NOT exceed a specified number as may be provided for by the SOLE in subsequent issuances [Art. 156, LC as amended by RA 10151; Book III, Rule XV, Sec. 4, IRR, through DO 11912]
(b) At regular intervals during such an assignment; (c) If they experience health problems
If night worker is unfit for night work due to
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10151; Book III, Rule XV, Sec. 5, IRR, through DO 119-12]
Employers shall ensure that measures shall be taken to ensure that an alternative to night work for pregnant and nursing employees who would otherwise be called upon to perform such work. Such measures may include: (1) Transfer to day work – As far as practicable, pregnant or nursing employees shall be assigned to day work, before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth; Medical certificate issued by competent physician (OB/Gyne/Pedia) is necessary for the grant of: (a) additional periods of assignment to day work during pregnancy or after childbirth, provided that such shall not be more than 4 weeks or for a longer period as may be agreed upon by employer and worker; (b) extension of maternity leave; and (c) clearance to render night work.
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A woman employee shall NOT be dismissed for reasons of pregnancy, childbirth and childcare responsibilities as defined under this Rule. She shall NOT lose the benefits regarding her employment status, seniority, and access to promotion which may attach to her regular night work position. [Book III, Rule XV, Sec. 8, IRR, through DO 119-12] See Night Shift Differential under p.71
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IV. EMPLOYMENT
LABOR STANDARDS
POST-
A. EMPLOYER-EMPLOYEE RELATIONSHIP
As used in this Title: (a) "Person" means an individual, partnership, association, corporation, business trust, legal representatives, or any organized group of persons. (b) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as nonprofit private institutions, or organizations. (c) "Employee" includes any individual employed by an employer.
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(e) "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. (f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include 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.
The existence or absence of ER-EE relationship is a question of law and a question of fact, each in its defined sense. The existence of an employer-employee relation is a question of law and being such, it cannot be made the subject of agreement [Tabas et.al. v. California Manufacturing Co., et. al., G.R. No. 80680 , (1989) ]. The characterization of the law prevails over that in the contract. In this sense, the existence of an EE-ER relationship is a matter of law.
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The most important element is the employer’s control of the employee’s conduct, not only as to the result of the work to be done, but also as to the means and methods to accomplish it. [Lirio v. Genovia, G.R. No. 169757, (2011) ]. The control test calls merely for the “existence” of the right to control and not the “actual exercise” of the right. [Zanotte Shoes v. NLRC, G.R. No. 100665, (1995) ]. Not every form of control will have the effect of establishing ER-EE relationship. The line should be drawn between: (1) Rules that merely serve as guidelines towards the achievement of mutually desired results without dictating the means or methods to be employed in attaining it. These aim only to promote the result. In such case, NO EE-ER relationship exists. (2) Rules that control or fix the methodology and bind or restrict the party hired to the use of such means. These address both the result and the means used to achieve it and hence, EEER relationship exists. [Insular Life Assurance Co, LTD v. NLRC, G.R. No. 84484, (1989 )].
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The standard of “economic dependence” is whether the worker is dependent on the alleged employer for his continued employment in that line of business. [Orozco v. CA, G.R. No. 155207, (2008) ].
No particular form of evidence is required to prove the existence of an employer-employee relationship. Any competent and relevant evidence to prove the relationship may be admitted. For, if only documentary evidence would be required to show that relationship, no scheming employer would ever be brought before the bar of justice, as no employer would wish to come out with any trace of the illegality he has authored considering that it should take much weightier proof to invalidate a written instrument. [Tenazas, et al., v. R. Villegas Taxi Transport, G.R. No. 192998, (2014) ]. The onus probandi rests on the employer to prove that its dismissal was for a valid cause. However, before a case for illegal dismissal can prosper, an employer-employee relationship must first be established. It is incumbent upon the employee to prove the employer-employee relationship by substantial evidence. [Javier v. Fly Ace
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corporate entity is used to justify a wrong, protect fraud, or defend a crime; or 3) alter ego cases, where a corporation is merely a farce since it is a mere alter ego or business conduit of a person, or where the corporation is so organized and controlled and its affairs are so conducted as to make it merely an instrumentality, agency, conduit or adjunct of another corporation. Because the circumstances indicated that Spectre and Royale were one and the same (same office, same officers, same person exercising control and supervision over EEs of both companies), and that Sarona’s transfer to Royale was done in bad faith, the SC pierced the corporate veil and ruled in his favor. A.2. KINDS OF EMPLOYMENT
Probationary employment shall not exceed 6 months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable
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to him at the time of engagement.[Robinson’s Galleria et al. v. Ranchez, G.R. No. 177937, (2011) ]
Probationary employment shall not exceed six (6) months from the date the employee started working. (1) When it is covered by an apprenticeship agreement stipulating a longer period (Art. 296[281], LC); (2) When the parties to the employment contract agree otherwise, such as when established by company policy or required by the nature of the work performed by the employee [San Miguel Corp, v. del Rosario, G.R. Nos. 168194 & 168603, (2005) , citing Buiser v. Leogardo, G.R. No. L-63316, (1984)] ; or (3) When it involves the 3 year probationary period of teachers [Mercado v. AMA Computer College, G.R. No. 183572, (2010)]
(1)
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Requirements: (a) The employer must communicate the regularization standards to the probationary employee; and (b) The employer must make such communication at the time of the probationary employee’s engagement. If the employer fails to comply with either, the employee is deemed as a regular and not a probationary employee. An employer is deemed to have made known the standards that would qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to apprise the employee of what he is expected to do or accomplish during the trial period of probation. This goes without saying that the employee is sufficiently made aware of his probationary status as well as the length of time of the probation. The exception to the foregoing is when the job is self-descriptive in nature, for instance, in the case of maids, cooks, drivers, or messengers. [Abbott Laboratories Phil. et al. v. Alcaraz, G.R. No. 192571, (2013) ] In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a
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There is no basis for subjecting an employee to a new probationary or temporary employment where he had already become a regular employee when he was absorbed by a sister company. [A Prime Security Services, Inc. v. NLRC, G.R. No. 107023, (2000) ]
The private respondents could not be considered probationary employees because they were already well-trained in their respective functions. As stressed by the Solicitor General, while private respondents were still with the CCAS they were already clerks. Respondent Gelig had been a clerk for CCAS for more than ten (10) years, while respondent Quijano had slightly less than ten (10) years of service. They were, therefore, not novices in their jobs but experienced workers. [Cebu Stevedoring Co., Inc. v. Regional Director, G.R. No. L-54285, (1988) ]
Questions respecting a private school teacher’s entitlement to security of tenure are governed by the Manual of Regulations for Private Schools and not the Labor Code. [Aklan College v. Guarino, G.R. No. 152949,
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These standards should be made known to the teachers on probationary status at the start of their probationary period, or at the very least under the circumstances of the present case, at the start of the semester or the trimester during which the probationary standards are to be applied. Of critical importance in invoking a failure to meet the probationary standards, is that the school should show – as a matter of due process – how these standards have been applied. [Colegio del Santisimo Rosario v. Rojo, G.R. No. 170388, (2013) ]
A probationary employee enjoys only a temporary employment status. This means that he is terminable at any time, permanent employment not having been attained in the meantime. The employer could well decide he no longer needed the probationary employee’s services or his performance fell short of expectations, etc. As long as the termination was made before the termination of the six-month probationary period, the employer was well within his rights to sever the employer-employee relationship. A contrary interpretation would defect the clear meaning of the term “probationary.” [De la Cruz, Jr. v. NLRC, G.R. No. 145417. (2003) ]
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(1) It must be exercised in accordance with the specific requirements of the contract (2) 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; (3) The employer’s dissatisfaction must be real and in good faith, not feigned so as to circumvent the contract or the law; (4) There must be no unlawful discrimination in the dismissal. [Manila Hotel Corporation v. NLRC, G.R. No. 53453, (1986) ] In order to invoke “failure to meet the probationary standards” as a justification for dismissal, the employer must show how these standards have been applied to the subject employee. [Univac Development, Inc. v. Soriano, G.R. No. 182072, (2013)].
The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular
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Art. 296 [281], Last sentence, LC: An employee who is allowed to work after a probationary period shall be considered a regular employee.
Regular employment is not synonymous with permanent employment, because there is no such thing as a permanent employment. Any employee may be terminated for just cause. A is one who is engaged to perform activities which are necessary and desirable in the usual business or trade of the employer as against those which are undertaken for a specific project or are seasonal. Art 295 provides two kinds of regular employees: (1) Those engaged to or desirable in the usual business or trade of the employer; and (2)
who have rendered at least 1 year of service, whether continuous or broken, with respect to the activity in which they are employed. [Romares v. NLRC, G.R. No. 122327. (1998) ]
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Art. 295 is not the yardstick for determining the existence of an employment relationship because it merely distinguishes between two kinds of employees, i.e., regular employees and casual employees, for purposes of determining the right of an employee to certain benefits, to join or form a union, or to security of tenure; it does not apply where the existence of an employment relationship is in dispute. [Atok Big Wedge Co., Inc. v. Gison, G.R. No. 169510, (2011) ]
Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and considered regular employees. [Audion Electric Co., Inc. v. NLRC, G.R. No. 106648, (1999) ] While length of time may not be a controlling test for project employment, it can be a strong factor in determining whether the employee was hired for a specific undertaking or in fact tasked to perform functions which are vital, necessary and indispensable to the usual
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Art. 295 (previously Art 280), 1st par, LC: The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.
A is one who is hired for carrying out a separate job, distinct from the other undertakings of the company, the scope and duration of which has been determined and made known to the employees at the time of employment. [Hanjin Heavy Industries & Const. Co. v. Ibañez, G.R. No. 170181, (2008) ] Whether or not the project has a direct relation to the business of the employer is not important, BUT: (1) Employee must be informed of the
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(1) For a particular job or undertaking that is WITHIN the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company (i.e. construction) (2) For a particular job or undertaking that is NOT within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer [Villa v. NLRC, G.R. No. 117043, (1988) ]
The litmus test to determine whether an individual is a project employee lies in setting a fixed period of employment involving a specific undertaking the completion or termination of which has been determined at the time of the particular employee's engagement. The decisive factor in the term employment is the day certain agreed upon by the parties for the commencement and termination of their employment relationship, a day certain being understood to be that which must necessarily come, although it may not be known when. [Caasi v. Kanlungan Centre Foundation, Inc.,
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(2) Such duration, as well as the specific work/service to be performed, is defined in an employment;
(1) There is a continuous rehiring of project employees even after cessation of a project; and
(3) agreement and is made clear to the employee at the time of the hiring;
(2) The tasks performed by the alleged “project employee” are vital, necessary, and indispensable to the usual business or trade of the employer. However, the length of time during which the employee was continuously rehired is not controlling, but merely serves as a badge of regular employment.
(4) The work/service to be performed by the employee is in connection with the particular project/undertaking for which he is engaged; (5) The employee, while not employed and awaiting engagement, is free to offer his services to any other employer; (6) The termination of his employment in the particular project/undertaking is reported to the DOLE Regional Office having jurisdiction over the workplace following the date of his separation from work, using the prescribed form on employees’ terminations /dismissals/suspensions; (7) An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies. [Samson v. NLRC, G.R. No. 11366, (1996)].
A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the business, provided, that the worker shall be available when called to report for a project. Although primarily applicable to regular seasonal workers, this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. [Maraguinot v. NLRC, G.R. No. 120969. (1998 )] Members of a work pool from which a construction company draws its project employees, if considered employees of the construction company while in the work pool, are non-project employees or employees for an indefinite period. If they are employed in a particular project, the completion of the project or any phase thereof will not mean
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allowed to determine indefinitely the fitness of its employees. [Malicdem v. Marulas Industrial Corp., G.R. No. 204406, (2014)]
are those whose work or services to be performed are seasonal in nature, employment is for the duration of the season.
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merely incidental to the business of the employer, and such job, work or service is for a definite period made known to the employee at the time of engagement: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or not, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.
There is no continuing need for the worker.
Seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period, but are merely considered on leave until reemployed The nature of their relationship . . . is such that during off season they are temporarily laid off but during summer season they are reemployed, or when their services may be needed. They are not strictly speaking separated from the service but are merely considered as on leave of absence without pay until they are re-employed. [Philippine Tobacco Flue-Curing &Redrying Corp. v. NLRC, G.R. No. 127395, (1998) ]
A is engaged to perform a job, work or service which is merely incidental to the business of the employer, and such job, work or service is for a definite period made known to the employee at the time of engagement. Someone who is not a regular, project or seasonal employee.
(1) One (1) year service, continuous or broken with respect to activity employed (2) Employment shall continue while such activity exists
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Art. 295 [280] has no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. [Brent School v. Zamora, G.R. No. L-48494, (1990)]
(1) Fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure or any other circumstances vitiating his consent; or (2) The employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter.
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terminated when the contract expires. Their employment is contractually fixed for a certain period of time. Thus, when a contract ends, the employment is deemed automatically terminated, there being no mutually-agreed renewal or extension of the expired contract. [Unica v. Anscor Swire Ship Management Corp., G.R. No. 184318, (2014) ] As long as the Brent School v. Zamora guidelines are satisfied, the court will recognize the validity of the fixed-term contract, especially if they were informed of that their engagement was for a specific period. The Brent doctrine is only applicable in a few special cases wherein the employer and employee are on more or less in equal footing in entering into the contract [Fuji Television Network Inc v. Espiritu, G.R. No. 204944-45, (2014)]. A.3. SUB-CONTRACTING VS LABOR-ONLY CONTRACTING
Art. 106, LC: Contractor or subcontractor. Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid
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employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code. There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. Art. 107, LC: Indirect employer. The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project.
Art. 108, LC: Posting of bond. An employer or indirect employer may require the
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This shall apply to: (1) all parties of contracting and subcontracting arrangements where ER-EE relationships exist (2) cooperatives engaging in contracting or subcontracting arrangements Contractors and subcontractors referred to in these rules are prohibited from engaging in recruitment and placement activities as defined in Art. 13(b) of the LC whether for local or overseas employment. [Sec. 2]
refers to an arrangement whereby a principal agrees to put out or farm out with a contractor the performance or completion 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. refers to the contract between the principal and contractor containing the terms and conditions governing the performance or completion of a specific job, work or service being farmed out for a definite or predetermined period.
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manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; (3) The contractor has substantial capital and/or investment; and (4) The Service Agreement ensures compliance with all the rights and benefits under Labor laws.
All contractor’s employees, whether deployed or assigned as reliever, seasonal, week-ender, temporary, or promo jobbers, shall be entitled to all the rights and privileges as provided for in the LC, as amended.
It is understood that all contractor’s employees enjoy security of tenure regardless of whether the contract of employment is coterminus with the service agreement, or for a specific job, work, or service, or phase thereof.
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Service benefits as may be Agreement, or provided by law or the from the Service Agreement, completion of without prejudice to the phase of the his/her entitlement to the job, work or completion bonuses or service for which other emoluments, the employee is including retirement engaged benefits whenever applicable
, a prohibited act, is an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal. [Polyfoam-RGC International Corp. v. Concepcion, G.R. No. 172349, (2012 )] : (1) The contractor does not have substantial capital or investments in the form of tools, equipment, machineries, work premises, among others, (2) The employees recruited and places are performing activities which are usually necessary or desirable to the operation
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not justified by the exigencies of the business such as the following: (a) Contracting out of jobs, works or services when the same results in the termination or reduction of regular EEs and reduction of work hours or reduction or splitting of the bargaining unit. (b) Contracting out of work with a Cabo (c) Taking undue advantage of the economic situation or lack of bargaining strength of the contractor’s EEs, or undermining their security of tenure or basic rights, or circumventing the provisions of regular employment in any of the following instances: (i) Requiring them to perform functions which are currently being performed by the regular employees of the principal; and (ii) requiring them to sign, as a precondition to employment or continued employment, an antedated resignation letter; a blank payroll; a waiver of labor standards including minimum wages and social or welfare benefits; or a quitclaim
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Agreement of short duration with the same or different contractors, which circumvents the LC provisions on Security of Tenure. (h) Requiring EEs under a subcontracting arrangement to sign a contract fixing the period of employment to a term shorter than the term of the Service Agreement, unless the contract is divisible into phases for which substantially different skills are required and this is made known to the EE at the time of the engagements. (i) Refusal to provide a copy of the Service Agreement and the employment contracts between the contractor and the EEs deployed to work in the bargaining unit of the principal’s certified bargaining agent to the sole and exclusive bargaining agents. (j) Engaging or maintaining principal of subcontracted excess of those provided applicable CBA or as set Industry Tripartite Council.
by the EEs in in the by the
(2) Contracting out of jobs, works, or services analogous to the above when
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(2) A contractual relationship between the principal and the contractor as governed by the provisions of the Civil Code. [Sec. 5, par. 1, D.O. 18-A-11]
Principal
Contractor
er-ee
The law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer. In fact, the employee who is constructively dismissed may be allowed to keep on coming to work. [McMer Corp., Inc. v. NLRC, G.R. No. 193421, (2014)]
Contractor's Employee
There are three parties involved: (1)
(2)
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refers to any employer, whether a person or entity, including government agencies and GOCCs, who/which puts out or farms out a job, service or work to a contractor. refers to any person or entity, including a cooperative, engaged in a legitimate contracting or subcontracting arrangement providing either services, skilled worker, temporary workers or a combination of services to a principal under a Service
There exists a solidary liability on the part of the principal and the contractor for purposes of enforcing the provisions of the LC and other social legislation to the extent of the work performed under employment contract. The principal shall be deemed a direct employer of the contractor’s employee in cases where there is a finding by a competent authority of labor-only contracting, or commission of prohibited activities provided in Section 7 or a violation of either Sections 8 or 9.
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vendee relationship for entire business processes covered by the applicable provisions of the Civil Code on Contracts is excluded.
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had been afforded due process. [Norkis Trading v. Buenavista, G.R. No. 182018. (2012)]
B. TERMINATION FROM EMPLOYMENT DO 18-A contemplates generic or focused singular activity in one contract between the principal and the contractor (for example, janitorial, security, merchandising, specific production work) and does not contemplate information technology-enabled services involving an entire process (for example, BPO, KPO, legal process outsourcing, hardware and/or software support, medical transcription, animation services, back office operations/support). These companies engaged in BPOs may hire employees in accordance with applicable laws, and maintain these EEs based on business requirements, which may or may not be for different clients of the BPOs at different periods of the EE’s employment.
Licensing and the exercise of regulatory powers over the construction industry is lodged with PCAB which is under the Construction Industry Authority of the
All establishments [Art. 293, LC] [previously Art 278] Government, and its political subdivisions, including GOCCs without original charter. [Book VI, Rule 1, Sec. 1. IRR]
Security of Tenure. Tenure. In case of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Tile. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
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inimical to its interests. [Baguio Central University v. Gallente, G.R. No. 188267 (2013) ] (2013) ] In dismissal cases, the Court must consider a balancing between the employees’ tenurial rights and the employer’s management prerogative. [Imasen Phil. Manufacturing Corp. v. Alcon & Papa, GR 194884 (2014) ] (2014) ] Management prerogative must be exercised in good faith and with due regard to the rights of the workers in the spirit of fairness and with justice in mind. [Philbag Industrial Manufacturing Manufacturing Corp. v. Philbag Workers UnionLakas at Gabay ng Manggagawang Nagkakaisa, G.R. No. 182486 (2012) ]
(a) Exercised in good faith for the advancement of the Employer's Employer's interest, and (b) Not for the purpose of defeating or circumventing the rights of the Employees under special laws or under valid agreements. [San Miguel Brewery Sales Force Union v. Ople, G.R. No. 53515 (1989) ]
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infirmities. infirmities. [Ang v. San Joaquin, Jr., G.R. No. 185549 (2013)]
The burden of proving the termination was for a valid or authorized cause shall rest on the employer.
It is the employer’s burden to prove that the t he dismissal was for a just or authorized cause. [Temic Automotive (Phils.), Inc. v. Cantos, G.R. No. 200729 (2014)] Unsubstantiated accusations or baseless conclusions of the employer are insufficient legal justifications to dismiss an employee. The unflinching rule in illegal dismissal cases is that the employer bears the burden of proof. [Garza proof. [Garza v. Coca-Cola Bottlers Philippines, Inc., G.R. No. 180972 (2014) ] (2014) ] In illegal dismissal cases, the burden of proof is upon the employer to show that the employee's termination from service is for a just and valid cause. The employer's case succeeds or fails on the strength of its evidence and not the weakness of that
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relationship must first be established by the employee [Javier v. Fly Ace Corp., G.R. No. 192558 (2012) ] ]
Not every case of insubordination or willful disobedience by an employee reasonably deserves the penalty of dismissal. The penalty to be imposed on an erring employee must be commensurate with the gravity of his offense. [Joel Montallana v. La Consolacion College Manila, G.R. No. 208890 (2014) ] While an employer enjoys a wide latitude of discretion in the promulgation of policies, rules and regulations on work-related activities of the employees, those directives, however, must always be fair and reasonable, and the corresponding penalties, when prescribed, must be commensurate to the offense involved and to the degree of the infraction. [Moreno v. San Sebastian CollegeRecoletos, G.R. No. 175283 (2008) ] (2008) ] B.1. TERMINATION OF EMPLOYMENT BY EMPLOYEE
1.
Resignation
2. Bona
fide
Suspension
of
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Termination by Employee. (a) An employee may terminate without just cause the employeremployee relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages (b) An employee may put an end to the relationship without serving any notice on the employer for any of the following requirements: 1.
Serious insult by the employer or his representative on the honor and person of the employee;
2. Inhuman and unbearable treatment accorded the employee by the employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and 4. Other causes analogous to any of the foregoing.
General Rule: Written notice to resign submitted one (1) month in advance Exception: No notice required for any of the following:
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To constitute a resignation, it must be unconditional and with the intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. [Azcor Manufacturing Inc. v. NLRC, G.R. No. 117963, (1999)] “Well-entrenched “Well-entrenched is the rule that resignation is inconsistent with the filing of a complaint for illegal dismissal.” [Blue Angel Manpower and Security Services Inc. v Court of Appeals, G.R. No. 161196 (2008)] The rule requiring an employee to stay or complete the 30-day period prior to the effectivity of his resignation becomes discretionary on the part of management as an employee who intends to resign may be allowed a shorter period before his resignation becomes effective. [Hechanova Bugay Vilchez Lawyers v. Matorre, G.R. No. 198261 (2013)]
Constructive dismissal is cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or diminution in pay or both; or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee.
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When Employment Not Deemed Terminated: The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.
Omnibus Rules, Book VI, Rule 1, Sec. 12. Suspension of relationship. — The employeremployee relationship shall be deemed suspended in case of suspension of operation of the business or undertaking of the employer for a period not exceeding six (6) months, unless the suspension is for the purpose of defeating the rights of the employees under the Code, and in case of mandatory fulfillment fulfillment by the employee of a military or civic duty. The payment of wages of the employee as well as the grant of other benefits and privileges while he is on a military or civic duty shall be subject to special laws and decrees and to the applicable individual or collective bargaining
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[Ma. Socorro Mandapat v. Add Force Personnel, G.R. No. 180285 (2010)] B.2. TERMINATION BY EMPLOYER
1.
Serious Misconduct or Willful Disboedience (Insubordination)
2. Gross & Habitual Neglect Of Duties 3. Loss Of Trust & Confidence 4. Commission Of A Crime 5. Analogous Cases
Termination by Employer. An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his
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Employer’s right to dismiss vis-à-vis employee’s right to security of tenure The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which that right is exercised. Thus, it cannot be used as a subterfuge by the employer to rid himself of an undesirable worker. In particular, the employer must be able to show that the transfer is not unreasonable, inconvenient or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Nowhere in the law providing for the just and authorized causes of termination of employment is there any direct or indirect reference to filing a legitimate complaint for money claims against the employer as a valid ground for termination The right of employers to shape their own work force is recognize; however, this management prerogative must not curtail the basic right of employees to security of tenure. There must be a valid and lawful reason for terminating the employment of a worker. Otherwise, it is illegal and would be dealt with by the courts accordingly. [Alert Security and Investigation Agency, Inc. v. Pasawilan G.R. No. 182397
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behavior, to be a just cause for termination of employment, must: (a) be serious; (b) relate to the performance of the employee’s duties; and (c) show that the employee has become unfit to continue working for the employer. [Northwest Airlines, Inc, v. Del Rosario, G.R. No. 157633 (2014)] Accusatory and inflammatory language used by an employee to the employer or superior can be a ground for dismissal or termination. [Nissan Motors Phils. Inc. v. Angelo, G.R. No. 164181 (2011)]
Elements: a) There must be insubordination;
disobedience
or
b) The disobedience or insubordination must be willful or intentional characterized by a wrongful and perverse attitude; c) The order violated must be reasonable, lawful, and made known to the employee [Mirant Philippines Corp v. Sario, G.R. No. 197598 (2012)]; and e) The order must pertain to the duties which he has been engaged to discharge. [Sec. 5.2. (b), DO 147-15]
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(b) The negligence must be both gross and habitual in character. [Sec. 5.2. (c), DO 147-15] Gross negligence has been defined as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. In order to constitute just cause for an EE’s dismissal due to negligence, it must not only be gross, but also habitual. A single or an isolated act that cannot be categorized as habitual, hence, not a just cause for their dismissal. [National Bookstore v. CA, G.R. No. 146741 (2002)] Gross negligence connotes want of care in the performance of one’s duties, while habitual neglect implies repeated failure to perform one’s duties for a period of time, depending on the circumstances. Estoppel by toleration of management: breach of rules and regulations which are tolerated by management cannot serve basis as termination. The rule only applies when the violation is not tantamount to fraud or commission of illegal activities. One cannot evade liability based on obedience to the corporate chain of command. [PNB v. Padao, G.R. No. 180849, 187143 (2011)]
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the employee by his employer. Such 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. And, in order to constitute a just cause for dismissal, the act complained of must be work-related and shows that the employee concerned is unfit to continue working for the employer. In addition, loss of confidence as a just cause for termination of employment is premised on the fact that the employee concerned holds a position of responsibility, trust and confidence or that the employee concerned is entrusted with confidence with respect to delicate matters, such as handling or case and protection of the property and assets of the employer. The betrayal of this trust is the essence of the offense for which an employee is penalized. [Villanueva, Jr. v. NLRC, G.R. No. 176893 (2012) ] The loss of trust and confidence must be based not on ordinary breach by the employee of the trust reposed in him by the employer, but, in the language of Article 282 (c) of the Labor Code, 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. It must rest on substantial grounds and not on
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(a) There must be an act, omission or concealment; (b) The act, omission or concealment justifies the loss of trust and confidence of the employer to the employee; (c) The employee concerned must be holding a position of trust and confidence; (d) The loss of trust and confidence should not be simulated; (e) It should not be used as a subterfuge for causes which are improper, illegal or unqualified; and (f) It must be genuine and not a mere afterthought to justify an earlier action taken in bad faith. [Sec. 5.2. (e), DO 14715]
(1) Loss of confidence should not be simulated; (2) It should not be used as a subterfuge for causes which are improper, illegal or unjustified; (3) It may not be arbitrarily asserted in the
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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. [Prudential Guarantee and Assurance Employee Labor Union v. NLRC, G.R. No. 185335 (2012) ]
(1) Managerial employees - those vested with the powers or prerogatives to lay down management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. (2) Fiduciary Rank and file - those who in the normal and routine exercise of their functions, regularly handle significant amounts of money or property. Examples are cashiers, auditors, property custodians, etc. [Prudential Guarantee and Assurance Employee Labor Union v. NLRC, G.R. No. 185335 (2012) ]
Managerial
Fiduciary rank-and-file
Mere existence of a Proof of involvement basis for the belief of in the alleged events employee’s guilt in question required;
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those occupying ordinary ranks. While plain accusations are not sufficient to justify the dismissal of rank and file employees, the mere existence of a basis for believing that managerial employees have breached the trust reposed on them by their employer would suffice to justify their dismissal. [Grand Asian Shipping Lines, Inc. v. Galvez, G.R. No. 178184 (2014) ]
Notwithstanding petitioner’s acquittal in the criminal case for qualified theft, the company had adequately established the basis for the company’s loss of confidence as a just cause to terminate. As opposed to the "proof beyond reasonable doubt" standard of evidence required in criminal cases, labor suits require only substantial evidence to prove the validity of the dismissal [Paulino v. NLRC, G.R. No. 176184 (2012) ] Betrayal by a long-time employee Length of service is not a bargaining chip that can simply be stacked against the employer. After all, an employer-employee relationship is symbiotic where both parties benefit from
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Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives [Art. 297(d), LC] The employer may validly dismiss for loss of trust and confidence an employee who commits an act of fraud prejudicial to the interest of the employer. Neither a criminal prosecution nor a conviction beyond reasonable doubt for the crime is a requisite for the validity of the dismissal. [Concepcion v Minex Import Corporation/Minerama Corporation, G.R. No. 153569 (2012) ]
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(11) Conviction/Commission of a Crime (12) Temporary “Off-detail” or “floating status”
Abandonment is a just cause for dismissal under Art. 297(b), LC. It is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty. Two factors should be present: (1) Failure to report for work or absence without valid or justifiable reason, (2) Clear intention to sever ER-EE relationship. The burden to prove whether the employee abandoned his or her work rests on the employer. [Protective Maximum Security, Inc vs. Celso E. Fuentes, G.R. No. 169303 (2015) ]
(a) There must be an act or omission similar to those specified just causes; and (b) The act or omission must be voluntary and/or willful on the part of the employees No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies. [Sec. 5.2. (g), DO 147-15]
(a) Failure to report for work or absence without valid or justifiable reason, and (b) A clear intention to sever the employeremployee relationship, with the second element as the more determinative factor and being manifested by some overt acts. Absence must be accompanied by overt acts
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of the corporation's employees en masse. [SME Bank, Inc. v. De Guzman, G.R. No. 184517, 186641 (2013) ]
Habitual tardiness is a form of neglect of duty. Lack of initiative, diligence, and discipline to come to work on time everyday exhibit the employee's deportment towards work. Habitual and excessive tardiness is inimical to the general productivity and business of the employer. This is especially true when the tardiness and/or absenteeism occurred frequently and repeatedly within an extensive period of time. [R.B. Michael Press v. Galit, G.R. No. 153510 (2008) ] However, there are cases when absenteeism is not sufficient to justify termination. In the case of, Cavite Apparel v Michelle Marquez, GR No. 172044, (2013), the SC held: “Michelle might have been guilty of violating company rules on leaves of absence and employee discipline, still we find the penalty of dismissal imposed on her unjustified under the circumstances. As earlier mentioned, Michelle had been in Cavite Apparel’s employ for six years, with no derogatory record other than the four absences without official leave in question, not to mention that she had already been
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Previous offense may be used as valid justification for dismissal from work only if the infractions are related to the subsequent offense upon which the basis of termination is decreed. [Century Canning Corporation v. Ramil, G.R. No. 171630 (2010) ]
A series of irregularities when put together may constitute serious misconduct, which under Article 297 of the Labor Code, as amended, is a just cause for dismissal [Gustilo v. Wyeth Phil. Inc., G.R. No. 149629 (2004) ]
DECS Order No. 92 provides that disgraceful or immoral conduct can be used as a basis for termination of employment [Santos, Jr. v. NLRC, G.R. No. 115795 (1998) ] The act of engaging in extramarital affairs was specifically provided for by the cooperative’s Personnel Policy as one of the grounds for termination of employment and said act raised concerns to the cooperative as the Board received numerous complaints and petitions from the cooperative members themselves asking for the removal of Bandiola because of his immoral conduct, hence,
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determining the penalty that should be meted out since an employee's past misconduct and present behavior must be taken together in determining the proper imposable penalty. [Merin v. NLRC, G.R. No. 171790 (2008) ]
Accordingly, when the law speaks of immoral or, necessarily, disgraceful conduct, it pertains to public and secular morality; it refers to those conducts which are proscribed because they are detrimental to conditions upon which depend the existence and progress of human society. To stress, pre-marital sexual relations between two consenting adults who have no impediment to marry each other, and, consequently, conceiving a child out of wedlock, gauged from a purely public and secular view of morality, does not amount to a disgraceful or immoral conduct under Section 94(e) of the 1992 MRPS. [Cheryl Leus v. St. Scholastica College Westgrove, G.R. No. 187226 (2015) ]
The charge of drug abuse within the company’s premises and during work hours constitutes serious misconduct which is one of
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security services stipulate that the client may request the agency for the replacement of the guards assigned to it even for want of cause, such that the replaced security guard may be placed on temporary "off-detail" if there are no available posts under the agency's existing contracts. During such time, the security guard does not receive any salary or any financial assistance provided by law. It does not constitute a dismissal, as the assignments primarily depend on the contracts entered into by the security agencies with third parties, so long as such status does not continue beyond a reasonable time. When such a "floating status" lasts for more than six (6) months, the employee may be considered to have been constructively dismissed [Salvaloza vs. NLRC , GR No. 182086 (2010)].
Concerning the transfer of employees, these are the following jurisprudential guidelines: (a) a transfer is a movement from one position to another of equivalent rank, level or salary without break in the service or a lateral movement from one position to another of equivalent rank or salary; (b) the employer has the inherent right to transfer or reassign an employee for legitimate business purposes; (c) a transfer becomes unlawful where it is
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(2) Retrenchment to prevent losses
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(b) The introduction must be done in good faith;
(3) Redundancy (4) Closure of Business
Due to labor-saving devices or redundancy
Due to retrenchment, closure, or suspension of operations
1-month pay, or at least 1 month pay for every year of service, whichever is higher.
1 month pay, or at least ½ month pay for every year of service, whichever is higher.
A fraction of at least six months shall be considered as one year.
Employment is the lifeblood upon which the worker and his family owe their survival. [Flight Attendants and Stewards Ass'n of the Philippines v. PAL, Inc., G.R. No. 178083 (2009) ] ]
:
(c) The purpose for such introduction must be valid such as to save on cost, enhance efficiency and other justifiable economic reasons; (d) There is no other option available to the employer than the introduction of machinery, equipment or device and the consequent termination of employment of those affected thereby; and (e) There must be fair and reasonable criteria in selecting employees to be terminated. [Sec. 5.4. (a), DO 147-15] Requirements for termination installation of labor-saving device
due
to
(1) The employer exercises its prerogative to install the labor-saving device in good faith for the advancement of its interest and not to defeat or circumvent the employee’s right employee’s right to security of tenure; (2) The employer served a written notice both to the employees and to the DOLE at least 30 days prior to the intended date of termination; and (3) The employer pays the employees
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(4) The retrenchment must be in good faith for the advancement of its interest and not to defeat or circumvent the employees’ employees’ right to security of tenure; and
enterprise. [Morales v. Metrobank, G.R. No. 182475 (2012) ]
(5) There must be fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers. [Sec. 5.2. (c), DO 147-15]
(a) There must be superfluous positions or services of employees;
(6) That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (7) That the employer pays the retrenched employees separation pay equivalent to 1 ⁄ 2 month pay for 1 month pay or at least ⁄ every year of service, whichever is higher; The employer bears the burden of proving the existence of the imminence of substantial losses with clear and satisfactory evidence that there are legitimate business reasons justifying a retrenchment. [Mount Carmel College Employees Union (MCCEU), et al vs. Mount Carmel College, Inc. G.R. No. 187621,
(b) The positions or services are in excess of what is reasonably demanded by the actual requirements of the enterprise to operate in an economical and efficient manner; (c) There must be good faith in abolishing redundant positions; (d) There must be fair and reasonable criteria in selecting the employees to be terminated; and (e) There must be an adequate proof of redundancy such as but not limited to the new staffing patter, feasibility studies/proposal, on the viability of the newly created positions, job description and the approval by the management of the restructuring. [Sec. 5.4. (c), DO 14715] For the implementation of a redundancy program to be valid, however, the employer must comply with the following requisites:
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created positions, job description and the approval by the management of the restructuring. [General Milling Corporation v Violeta L. Viajar, G.R. No. 181738 (2013) (2013) ] ]
(a) There must be a decision to close or cease operation of the enterprise by the management; (b) The decision was made in good faith; and (c) There is no other option available to the employer except to close or cease operations. [Sec. 5.4. (d), DO 147-15] Guidelines in Closure (1) Closure or cessation of operations of establishment or undertaking may either be partial or total (2) Closure or cessation of operations of establishment or undertaking may or may not be due to serious business losses or financial service reverses. However, in both instances, proof must
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reverses, the employer must prove such allegation in order to avoid the payment of separation pay. Otherwise, the affected employees are entitled to separation pay. (5) The burden of proving compliance with all the above-stated falls upon the employer. [Manila Polo Club Employees' Union v. Manila Polo Club, Inc., G.R. No. 172846 (2013) ] Closure of Department The closure of a department or division of a company constitutes retrenchment by, and not closure of, the company itself. [Waterfront Cebu City Hotel v. Jimenez, G.R. No. 174214, June 13, 2012]
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Seller in good faith is authorized to dismiss the affected employees, but is liable for the payment of separation pay under the law.
A shift in the composition of its shareholders will not affect its existence and continuity. Notwithstanding the stock sale, the corporation continues to be the employer of its people and continues to be liable for the payment of their just claims.
Obligation of Buyer The buyer in good faith, on the other hand, is not obliged to absorb the employees affected by the sale, nor is it liable for the payment of their claims. The most that it may do, for reasons of public policy and social justice, is to give give preference to the qualified separated personnel of the
The corporation or its new majority shareholders are not entitled to lawfully dismiss corporate employees absent a just or authorized authorized cause. [SME Bank, Inc. v. De Guzman, G.R. No. 184517, 186641, (2013) ] ]
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(2) Efficiency, (3) Physical fitness, (4) Age, (5) Financial hardship, or (6) Seniority. [Asian Alcohol Corp. v. NLRC, G.R. No. 131108 (1999)]
Retrenchment Redundancy
Reduction of personnel usually due to poor financial returns so as to cut down on costs of operations in terms of salaries and wages
Resorted to primarily to avoid or minimize
Closure
The reversal of the fortune of the employer The service whereby there of an is a complete Employee is cessation of in excess of business what is operations required by and/or actual an locking-up of enterprise the doors of the establishment, usually due to financial losses
To save production
Aims to prevent further financial drain
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(1) Disease incurable in 6 months [Art. 299, LC] Art. 301, LC: When Employment Not Deemed Terminated: The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty Under Art. 301 of the Labor Code, a bona fide suspension of business operations for not more than six (6) months does not terminate employment. After six (6) months, the employee may be recalled to work or be permanently laid off. In this case, more than six (6) months have elapsed from the time the Club ceased to operate. Hence, respondents' termination became permanent. [SKM Art Craft Corp. v. Bauca, G.R. Nos. 171282, 183484 (2013) ] An employer may validly suspend operations for at most 6 months. Not accepting the workers back to work after the 6-month period
(2) Enforcement of union security clause in the CBA (3) Dismissal of union officers for the conduct of an illegal strike [Art. 279 (a), LC] (4) Dismissal of union members for participating in the commission of illegal acts [Art. 279 (a), LC] (5) Termination in conformity with existing statute/ qualification requirements
Art. 299, LC: Disease as Ground for Termination: An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.
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Requisites (1) The employee must be suffering from a disease which cannot be cured within six months, even with proper medical treatment; (2) His continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees; and (3) A certification to that effect must be issued by a competent public health authority. [Crayons Processing, Inc. v. Pula, G.R. No. 167727 (2007), Sec. 5.2. (f), DO 147-15 ] The burden falls upon the employer to establish these requisites, and in the absence of such certification, the dismissal must necessarily be declared illegal. 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 six (6) months even with proper medical treatment that the latter could be validly terminated from his job [Crayons Processing, Inc. v. Pula, G.R. No. 167727 (2007) ] (2007) ] Union security is a generic term, which is
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provisions of the Labor Code or in accordance with the prevailing jurisprudence; jurisprudence; In terminating the employment of an employee by enforcing the Union Security Clause, the employer needs only to determine and prove that: (a) The union applicable;
security
clause
is
(b) The union is requesting for the enforcement of the union security provision in the CBA; and (c) There is sufficient evidence to support the union's decision to expel the employee from the union or company. (2) Procedural – the manner in which the dismissal was effected. (a) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. (b) The requirement of a hearing is complied with as long as there was
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Art. 279, a, 3rd par., 2 nd sen., LC: 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 a strike may be declared to have lost his employment status.
While the right of workers to security of tenure is guaranteed by the Constitution, its exercise may be reasonably regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and the general welfare of the people. Consequently, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. [St. careers. [St. Lukes’s Medical Center Employees Ass'n-AFW v. NLRC, G.R. No. 162053 (2007) ]
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Art. 292 (b), LC: Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer.
Requisites for Valid Dismissal (1) Substantive due process: The dismissal
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any person under investigation, be the proceeding administrative, civil, or criminal. [Salaw v. NLRC, G.R. No. 90786 (1991) ] (1991) ]
(1) Contain the specific causes or grounds for termination against them, and
In illegal dismissal cases, the onus the onus of proving that the employee was not dismissed or, if dismissed, that the dismissal was not illegal, rests on the employer, failure to discharge which would mean that the dismissal is not justified and, therefore, illegal. illegal. [Macasero v. Southern Industrial Gases Philippines, Philippines, G.R. No. 178524 (2009) ] ]
(2) Contain a directive that the employees are given the opportunity to submit their written explanation within a “reasonable period” or period” or every kind of assistance that management management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice
In labor cases, as in other administrative proceedings, substantial evidence is required and it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [Andrada v. Agemar Manning Agency, Inc., G.R. No. 194758 (2012) ] Substantial evidence is necessary for an employer to effectuate any dismissal. Uncorroborated assertions and accusations by the employer do not suffice; otherwise the constitutional guaranty of security of tenure of the employee would be jeopardized. [Kulas Ideas & Creations, et. al. v. Alcoseba & Arao
First Notice
(3) Contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. (4) Specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 288 is being charged against the employees. [United Tourist Promotions v. Kemplin, G.R. No. 205453 (2014) ] ]
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constitutes violation of due process of law. [Technol Eight Philippines Corporation v. NLRC, G.R. No. 187605 (2010) ] While a formal hearing or conference is ideal, it is not an absolute, mandatory or exclusive avenue of due process. process. [Perez v. PT&T, G.R. No. 152048 (2009) ] ]
(1) "Ample opportunity to be heard" means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way. (2) A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it. (3) The "ample opportunity to be heard" standard in the Labor Code prevails over the "hearing or conference" requirement in the implementing rules and regulations. [Perez v. PT&T, G.R. No.
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It is a requirement of due process that the parties to a litigation be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court. The court cannot simply say that judgment is rendered in in favor of of X and against Y and just leave it at that without any justification whatsoever for its action. The losing party is entitled to know why he lost, so he may appeal to a higher court, if permitted, should he believe that the decision should be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is especially prejudicial prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal. [ABD Overseas Manpower Corporation vs. NLRC, G .R. .R. No. 117056 (1998) ] ]
Notice specifying dismissal is sought
the
grounds
Hearing or opportunity to be heard
for
which
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(3) Voluntary arbitration satisfies notice requirement for authorized causes [Revidad v. NLRC, G.R. No. 111105 (1995
Situation
Validity of Dismissal
Liability of ER
Just or Authorized Cause + Due Process
Valid
No liability. Separation pay only in authorized cause
No Just or Authorized Cause + Due Process
Invalid
Reinstatement or separation pay. If reinstatement not possible, + full backwages
No Just or Authorized Cause + No Due Process
Invalid
Reinstatement or separation pay. If reinstatement not possible, + full backwages
Just or Authorized Cause + No Due Process
Valid
Liable for damages due to procedural infirmity. Separation pay if for authorized cause
B.3 RELIEFS FOR ILLEGAL DISMISSAL
5. Indemnity
The reliefs are cumulative, not alternative
6. Interest at 6% p.a. on the total monetary awards (from finality of decision until full payment) 7. Solidary liability of corporate officers
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(4) Employee’s unsuitability [Divine Word High School v. NLRC, G.R. No. 72207 (1986) ]
Either way, this must be done immediately upon the filing of their appeal, without need of any executory writ.
(5) Employee’s retirement/ overage [New Philippine Skylanders, Inc. v. Dakila, G.R. No. 199547 (2012) ]
If the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. The Labor Arbiter's order of reinstatement is immediately executory and the employer has to either re-admit them to work under the same terms and conditions prevailing prior to their dismissal, or to reinstate them in the payroll, and that failing to exercise the options in the alternative, employer must pay the employee's salaries [Magana v. Medicard Philippines, Inc., G.R. No. 174833 (2010) ]
(6) Antipathy and antagonism [Wensha Spa Center v. Yung, G.R. No. 185122 (2010) ] (7) Job with a totally different nature [DUP Sound Phils. v. CA, G.R. No. 168317 (2011) ] (8) Long passage of time (9) Inimical to the employer's interest (10)When supervening facts have transpired which make execution on that score unjust or inequitable or, to an increasing extent [Emeritus Security & Maintenance Systems, Inc. v. Dailig, G.R. No. 204761 (2014) ]
An action for reinstatement by reason of illegal dismissal is one based on an injury, which may be brought within 4 years from the time of dismissal. [Art. 1146, CC]
An employee cannot be compelled to reimburse the salaries and wages he received during the pendency of his appeal, notwithstanding the reversal by the NLRC of the LA's order of reinstatement. [College of the Immaculate Conception v. NLRC, G.R. No. 167563 (2010) ] Note, however: Rule XI, Sec. 14 of the 2011 NLRC Rules of Procedure provide for restitution
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(2) SP as financial assistance found in the next section
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reinstatement. [Quijano v. Mercury Drug Corp., G.R. No. 126561 (1998) ]
(3) SP in lieu of reinstatement where reinstatement is not feasible; and (4) SP as a benefit in the CBA or company policy Instances when the award of separation pay, in lieu of reinstatement to an illegally dismissed employee, is proper: (1) When reinstatement is no longer possible, in cases where the dismissed employee's position is no longer available; (2) The continued relationship between the employer and the employee is no longer viable due to the strained relations between them; and (3) When the dismissed employee opted not to be reinstated, or the payment of separation benefits would be for the best interest of the parties involved. [Book VI, Rule 1, Section 4 (b), Rule I, IRR]
SP as a statutory requirement is computed by integrating the basic salary with regular allowances employee has been receiving [Planters Products, Inc. v. NLRC, G.R. No. 78524, 78739 (1989) ]; allowances include transportation and emergency living allowances [Santos v. NLRC, G.R. No. 76721 (1987) ] Inasmuch as the words "wages", "pay" and "salary" have the same meaning, and commission is included in the definition of "wage", the logical conclusion, therefore, is, in the computation of the separation pay of petitioners, their salary base should include also their earned sales commissions. [Songco v. NLRC, G.R. Nos. 50999-51000 (1990) ] A dismissed employee who has accepted separation pay is not necessarily estopped from challenging the validity of his or her dismissal. Neither does it relieve the employer of legal obligations. [Anino v. NLRC , G.R. No. 123226 (1998) ]
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A “plain error” which may be rectified, even if employee did not bring an appeal regarding the matter [Aurora Land Projects Corp. v. NLRC, supra]
Full backwages means exactly that, i.e., without deducting from backwages the earnings derived elsewhere by the concerned employee during the period of his illegal dismissal. [Bustamante v. NLRC, G.R. No. 111651 (1996) ] Awards including salary differentials are not allowed [Insular Life Assurance Co. v. NLRC, 1987 ] The period of delay in instituting this ULP charge with claim for reinstatement and backwages, although within the prescriptive period, should be deducted from the liability of the employer to him for back wages. [Mercury Drug Co. Inc. v. CIR, G.R. No. L-23357 (1974)] The salary base properly used should be the basic salary rate at the time of dismissal plus the regular allowances; allowances include: Emergency cost of living allowances (ECOLA), transportation allowances, 13th month pay. [Paramount Vinyl Product Corp. v. NLRC
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Corporation v. Javate, Jr., G.R. No. L54244 (1992) ] (2) Delay of the EE in filing the case for illegal dismissal [Mercury Drug Co., Inc. v. CIR, supra]
Feati University Club vs. Feati University (1974) adopted a consensus policy of pegging the amount of backwages to their total equivalent for three years (depending on the circumstances) without deduction or qualification. The rationale for the policy was stated in the following words: As has been noted, this formula of awarding reasonable net backwages without deduction or qualification relieves the employees from proving or disproving their earnings during their lay-off and the employers from submitting counterproofs, and obviates the twin evils of Idleness on the part of the employee who would "with folded arms, remain inactive in the expectation that a windfall would come to him" [Itogon Suyoc Mines, Inc. vs. Sangilo-Itogon Workers Union (1968), as cited in Diwa ng Pagkakaisa vs. Filtex International Corp. (1972)] and attrition and protracted delay in satisfying such award on the part of unscrupulous employers who have
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Period
Doctrine in effect
Validity of Dismissal
Liability of ER
Prior 1989
Pre-Wenphil
Illegal
Reinstatement + Backwages
Feb. 1989 – 1999
Wenphil
Valid
Dismiss now, indemnity pay later
Jan. 2000 – Oct. 2004
Serrano
Ineffectual
Full backwages up to reinstatement/finality of decision
Nov. 2004 – present
Agabon
Valid
Nominal damages
Attorney’s fees.-- In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered.
The employee is entitled to moral damages when the employer acted a) in bad faith or fraud; b) in a manner oppressive to labor; or c) in a manner contrary to morals, good customs, or public policy [Montinola vs. PAL, GR No. 198656 (2014). In labor cases, the court may award exemplary damages "if the dismissal was effected in a wanton, oppressive or malevolent manner." [Garcia vs. NLRC, GR. No. 110518 (1994)]
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Art. 288 Termination by Employer (b) Serious misconduct or willful disobedience of lawful orders (c) Gross and habitual neglect of duties (d) Fraud or willful breach of trust (e) Commission of a crime against employer or immediate member of his family or representative (f) Analogous causes Art. 289 Installation of labor saving devices or redundancy Art. 289 Retrenchment to prevent losses or closure or cessations of operations of establishments or undertaking not due to serious business losses or financial reverses Art. 290 Disease when continued employment is prohibited by law or is prejudicial to his health or health of co-employees Art. 291 Termination by employee whether with or without just cause
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None
Equivalent to at least 1 month pay or 1 month pay for every year of service, whichever is higher Equivalent to at least 1 month pay or 1/2 month pay for every year of service*, whichever is higher Equivalent to at least 1 month pay or 1/2 month pay for every year of service*, whichever is higher None
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Considerations of equity as in the cases of Filipro, Inc. v. NLRC, Metro Drug Corp. v. NLRC, Engineering Equipment, Inc. v. NLRC, San Miguel Corp v. NLRC. [PLDT vs NLRC (1988)] An employee who voluntarily resigns is not entitled to separation pay unless
. [Phimco Industries vs NLRC (1997); Hinatuan Mining Corp vs NLRC (1997) cited in JPL Marketing Promotions v. CA (2005)]
An employee is entitled to receive separation pay equivalent to ½ month pay for every year of service, a fraction of at least six (6) months being considered as one whole year, if his/her separation from the service is due to any of the following authorized causes: (1) Retrenchment to prevent losses (i.e. reduction of personnel effected by management to prevent losses); (2) Closure or cessation of operation of an establishment not due to serious losses or financial reverses; and,
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(1) Installation by employer of labor-saving devices; (2) Redundancy, as when the position of the employee has been found to be excessive or unnecessary in the operation of the enterprise; (3) Impossible reinstatement of the employee to his/her former position or to a substantially equivalent position for reasons not attributable to the fault of the employer, as when the reinstatement ordered by a competent authority cannot be implemented due to closure of cessation of operations of the establishment/employer, or the position to which he/she is to be reinstated no longer exists and there is no substantially equivalent position in the establishment to which he/she can be assigned. [Gaco vs NLRC (1994)]
The employer may terminate the employment of any employee due to the above-mentioned authorized causes by serving a written notice on the employee and the DOLE through its regional office having jurisdiction over the place of business at least 1 month before the intended date thereof.
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Preventive suspension is a disciplinary measure for the protection of the company's property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his coworkers. However, when it is determined that there is no sufficient basis to justify an employee's preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension. [Gatbonton v. NLRC, G.R. No. 146779 (2006)] Preventive suspension is justified where the employee's continued employment poses a serious and imminent threat to the life or property of the employer or of the employee's co-workers. Without this kind of threat, preventive suspension is not proper. [ Artificio v. NLRC, G.R. No. 172988 (2010)]
No preventive suspension shall last longer than thirty (30) days. Upon the expiry of such period, the employer shall thereafter
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C. RETIREMENT [RA 7641 - The Retirement Pay Law] - the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter, after reaching a certain age agrees to sever his or her employment with the former ... an employer is free to impose a retirement age less than 65 for as long as it has the employees’ consent… having terminated petitioner solely on the basis of a provision of a retirement plan which was not freely assented to by her, respondent was guilty of illegal dismissal [Jaculbe vs Silliman University, G.R. No. 156934 (2007)]
The Court imposed two (2) essential requisites in order that R.A. 7641 may be given retroactive effect: (1) the claimant for retirement benefits was still in the employ of the employer at the time the statute took effect; and (2) the claimant had complied with the requirements for eligibility for such
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R.A. No. 7641, otherwise known as "The Retirement Pay Law," only applies in a situation where: (1) there is no collective bargaining agreement or other applicable employment contract providing for retirement benefits for an employee; OR (2) there is a collective bargaining agreement or other applicable employment contract providing for retirement benefits for an employee, but it is below the requirements set for by law. The reason for the first situation is to prevent the absurd situation where an employee, who is otherwise deserving, is denied retirement benefits by the nefarious scheme of employers in not providing for retirement benefits for their employees. The reason for the second situation is expressed in the Latin maxim pacta private juri public derogare non possunt . Private contracts cannot derogate from the public law. [Oxales vs Unilab, G.R. No. 152991 2008]
In the absence of a retirement plan or
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, the optional retirement age is 50, while the mandatory retirement age is now 60. [Sec. 2, RA 10757 ]
C.2. AMOUNT OF RETIREMENT PAY
The minimum retirement pay shall be equivalent to one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. For the purpose of computing retirement pay, “one-half month salary” shall include all of the following: (1) Fifteen (15) days salary based on the latest salary rate; (2) Cash equivalent of five (5) days of service incentive leave; (3) One-twelfth (1/12) of the 13th month pay. (1/12 x 365/12 = .083 x 30.41 = 2.52) Thus, “one-half month salary” is equivalent to 22.5 days. [Capitol Wireless, Inc. vs Sec. Confessor, 1996; Reyes v NLRC, 2007] Other benefits may be included in the computation of the retirement pay upon agreement of the ER and the EE or if provided
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Any EE may retire or be retired by his/her ER upon reaching the age established in the CBA or other applicable agreement/contract and shall receive the retirement benefits granted therein; provided, however, that such retirement benefits shall not be less than the retirement pay required under RA 7641, and provided further that if such retirement benefits under the agreement are less, the ER shall pay the difference. Where both the ER and the EE contribute to a retirement fund pursuant to the applicable agreement, the ER’s total contributions and the accrued interest thereof should not be less than the total retirement benefits to which the EE would have been entitled had there been no such retirement benefits’ fund. If such total portion from the ER is less, the ER shall pay the deficiency. C.3. RETIREMENT BENEFITS OF WORKERS WHO ARE PAID BY RESULTS
For covered workers who are paid by result and do not have a fixed monthly salary rate, the basis for the determination of the salary for 15 days shall be their average daily salary (ADS). The ADS is derived by dividing the total
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Applying the foregoing principle, the components of retirement benefit of part-time workers may likewise be computed at least in proportion to the salary and related benefits due them. [DOLE Handbook on Workers’ Statutory Monetary Benefits, 2014 ed.] C.5. TAXABILITY
Any provision of law to the contrary notwithstanding, the retirement benefits received by officials and employees of private firms, whether individual or corporate , in accordance with a reasonable private benefit plan maintained by the employer shall be exempt from all taxes and shall not be liable to attachment, garnishment, levy or seizure by or under any legal or equitable process whatsoever except to pay a debt of the official or employee concerned to the private benefit plan or that arising from liability imposed in a criminal action: Provided, That the retiring official or employee has been in the service for at least ten (10) years and is not less than fifty years of age at the time of his retirement: Provided, further, That the benefits granted under this Act shall be availed of by an official or employee only once; Provided, finally, That in case of separation of an official or employee from
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benefit of the said officials employees.[Sec. 1, RA 4917]
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and
Any provision of law to the contrary notwithstanding, the retirement benefits received by officials and employees of private firms, whether individual or corporate, in accordance with a reasonable private benefit plan maintained by the employer (1) shall be exempt from all taxes and (2) shall not be liable to attachment, garnishment, levy or seizure by or under any legal or equitable process whatsoever [Intercontinental Broadcasting Corp. v Amorilla, 2006]
Except to pay a debt of the official or employee concerned to the private benefit plan or that arising from liability imposed in a criminal action:
(a) That the retiring official or employee has been in the service of the same employer for at least ten (10) years and is not less
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than fifty years of age at the time of his retirement; (b) That the retirement benefits shall be availed of by an official or employee only once; and, (c) That in case of separation of an official or employee from the service of the employer due to death, sickness or other physical disability or for any cause beyond the control of the said official or employee, any amount received by him or by his heirs from the employer as a consequence of such separation shall likewise be exempt as hereinabove provided. - means a pension, gratuity, stock bonus or profit sharing plan maintained by an employer for the benefit of some or all of his officials and employees, wherein contributions are made by such employer or officials and employees, or both, for the purpose of distributing to such officials and employees the earnings and principal of the fund thus accumulated, and wherein it is provided in said plan that at no time shall any part of the corpus or income of the fund be used for, or be diverted to, any purpose other than for the exclusive benefit of
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V. Management Prerogative
disobedience thereto, as a general rule, justifies termination of the contract of service and the dismissal of the employee [St. Luke’s Medical Center, Inc. vs Sanchez, G.R. 212054 (2015)].
Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments
The employer’s right to conduct the affairs of his business, according to its own discretion and judgment, is well-recognized. An employer has a free reign and enjoys wide latitude of discretion to regulate all aspects of employment. This is a management prerogative, where the free will of management to conduct its own affairs to achieve its purpose takes form. [Torreda vs. Toshiba, G.R. No. 165960 (2007)]
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.cralaw 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.
The right of an employer to regulate all aspects of employment, aptly called
So long as a company’s management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold them… Even as the law is solicitous of the welfare of the employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied. [Ernesto G. Ymbong vs. ABS-CBN Broadcasting Corp., G.R. No. 184885 (2012)]
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justice. [Peckson v Robinson’s Supermarket Corporation, G.R. No. 198534, (2013)] The exercise of management prerogative is valid provided it is not performed in a malicious, harsh, oppressive, vindictive or wanton manner or out of malice or spite. [Magdadaro v. PNB, G.R. No. 166198 (2009)]
So long as a company’s management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold them…Even as the law is solicitous of the welfare of the employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied. [Ernesto G. Ymbong vs. ABS-CBN Broadcasting Corp., G.R. No. 184885 (2012)] But, like other rights, there are limits thereto. The managerial prerogative to transfer
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resolve labor disputes involving industries indispensable to national interest. The company’s management prerogatives are not being unjustly curtailed but duly tempered by the limitations set by law, taking into account its special character and the particular circumstances in the case at bench. [Metrolab Industries, Inc. v. Roldan-Confesor , G.R. No. 108855 (2013)] – The CBA provisions agreed upon by the Company and the Union delimit the free exercise of management prerogative. The parties in a CBA may establish such stipulations, clauses, terms and conditions as they may deem convenient provided these are not contrary to law, morals, good customs, public order or public policy. Where the CBA is clear and unambiguous, it becomes the law between the parties and compliance therewith is mandated by the express policy of the law. [Goya v. Goya, Inc., Employees Union-FFW , G.R. No. 170054 (2013)] – The Court recognized the inherent right of
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not absolute, but subject to exceptions. One of these exceptions is when the Secretary of Labor assumes jurisdiction over labor disputes involving industries indispensable to the national interest under Article 263(g) of the Labor Code. [University of Immaculate Concepcion Inc. vs. Sec. of Labor, G.R. No. 151379 (2005)]
A. DISCIPLINE Management has the prerogative to discipline its employees and to impose appropriate penalties on erring workers pursuant to company rules and regulations. [ Jose P. Artificio vs. NLRC, G.R. No. 172988 (2010)] The employer’s right to conduct the affairs of his business, according to its own discretion and judgment, includes the prerogative to instill discipline in its employees and to impose penalties, including dismissal, upon erring employees. The only criterion to guide the exercise of its management prerogative is that the policies, rules and regulations on work-related activities of the employees must always be fair and reasonable and the corresponding penalties, when prescribed, commensurate to the offense involved and to the degree of the infraction. [Consolidated Food Corporation vs. NRLC, G.R. No. 118647
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as would deprive the company of its prerogative to change his assignment or transfer him where he will be most useful. The Employer has the right to transfer or assign Employees from one area of operation to another, or one office to another or in pursuit of its legitimate business interest, Provided there is no demotion in rank or diminution of salary, benefits and other privileges and not motivated by discrimination or made in bad faith, or effected as a form of punishment or demotion without sufficient cause. [Westin Phil. Plaza Hotel vs. NLRC , G.R. No. 121621 (1999)] When the transfer is not unreasonable, or inconvenient, or prejudicial to the employee, and it does not involve a demotion in rank or diminution of salaries, benefits, and other privileges, the employee may not complain that it amounts to a constructive dismissal. [Bisig ng Manggagawa sa TRYCO v. NLRC, G.R. No. 151309 (2008)] It is management prerogative for employers to transfer employees on just and valid grounds such as genuine business necessity. [William Barroga vs. Data Center College of the Philippines, G.R. No. 174158 (2011)] Re-assignments made pending investigation
by of
management irregularities
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C. PRODUCTIVITY STANDARD The employer has the right to demote and transfer an employee who has failed to observe proper diligence in his work and incurred habitual tardiness and absences and indolence in his assigned work. [Petrophil Corporation vs. NLRC, G.R. No. L-64048 (1986)] In the consolidated cases of Leonardo vs. NLRC [G. R. No. 125303 (2000)] and Fuerte vs. Aquino [G. R. No. 126937 (2000)], the employer claimed that the employee was demoted pursuant to a company policy intended to foster competition among its employees. Under this scheme, its employees are required to comply with a monthly sales quota. Should a supervisor such as the employee fail to meet his quota for several consecutive months, he will be demoted, whereupon his supervisor’s allowance will be withdrawn and be given to the individual who takes his place. When the employee concerned succeeds in meeting the quota again, he is re-appointed supervisor and his allowance is restored. The Supreme Court held that this arrangement is an allowable exercise of company rights since an employer is entitled to impose productivity standards for its workers. In fact, non-compliance may be
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The matter of giving a bonus over and above the worker’s lawful salaries and allowances is entirely dependent on the financial capability of the employer to give it. [Kimberly-Clark Philippines, Inc. vs. Dimayuga, G.R. No. 177705 (2009)]
E. CHANGE OF WORKING HOURS Management retains the prerogative, whenever exigencies of the service so require, to change the working hours of its employees. So long as such prerogative is exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold such exercise. [Sime Darby Pilipinas Inc. v. NLRC, G.R. No. 119205 (1998)]
F. RULES ON MARRIAGE BETWEEN EMPLOYEES OF COMPETITOREMPLOYERS In the recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome Philippines, Inc ., we passed on the validity of the policy of a pharmaceutical company prohibiting its employees from
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In cases where an employee assails a contract containing a provision prohibiting him or her from accepting competitive employment as against public policy, the employer has to adduce evidence to prove that the restriction is reasonable and not greater than necessary to protect the employer’s legitimate business interests. The restraint may not be unduly harsh or oppressive in curtailing the employee’s legitimate efforts to earn a livelihood and must be reasonable in light of sound public policy. [Rivera vs. Solidbank, G.R. No. 163269 (2006)]
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VI. Social Legislation
Welfare
A. SSS LAW [RA 8282] A.1. COVERAGE & EXCLUSIONS
[1997, 2000, 2008, 2009 Bar Question] (1) Employees not over 60 years of age and their employers, including domestic helpers with at least P1,000 monthly pay; and (2) Self-employed as may be determined by the Commission, but not limited to: a) Self-employed professionals b) Partners and single proprietors of businesses c) Actors and actresses, directors, scriptwriters, and news correspondents who do not fall within the definition of the term “employee” under Section 8 [d] d) Professional athletes, trainers and jockeys
coaches,
e) Individual farmers and fishermen
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A.2. DEPENDENTS, BENEFICIARIES
(1) Spouses who devote full time to managing household and family affairs, unless they are also engaged in other vocation or employment [which is subject of compulsory coverage]; (2) OFWs recruited employers;
by
foreign-based
(3) Employees [previously under compulsory coverage] already separated from employment or those self-employed [also under compulsory coverage] with no realized income for a given month, who chose to continue with contributions to maintain right to full benefit. Note: Foreign governments, international organizations or their wholly owned instrumentality employing workers in the Philippines may enter into an agreement with the Philippine government to include their employees in the SSS except those already covered by their civil service retirement system.
(1) Dependent spouse remarriage [see above];
until
(2) Dependent children [legitimate, legitimated, legally adopted, and illegitimate] [see above]; illegitimate children are entitled only to 50% of the share of legitimate children unless there are no legitimate children, in which case, they get 100%.
Shall only receive when beneficiaries are absent
the
primary
(1) Dependent parents – shall only receive when the primary and secondary beneficiaries are absent (1) Any other person designated by member as his/her secondary beneficiary. A.3. BENEFITS
(1) Employment purely casual and not for the purpose of occupation or business of
–
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(1) Paid on account of members’ I.
death,
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Member may opt to receive his first 18 monthly pensions in lump sum but such is discounted at a preferential rate of interest.
II. retiring, or III. permanent total disability; (2) Paid to each child conceived on or prior to contingency, but not exceeding 5, beginning with the youngest and preferring the legitimate; (3) Amount is either P250 or 10% of the monthly pension as computed above, whichever is higher.
(1) 120 monthly contributions; (2) Age I.
65 years old; or
II. a member who has reached 60 years may also avail if he is already separated from employment or has ceased to be self-employed. t – entitlement to monthly pension from retirement until death. The monthly pension shall be suspended upon the reemployment or resumption of self-
A 60 year old member with less than 120 monthly contributions who is no longer employed or self-employed, and who is not continuing contributions independently, he is entitled to a lump sum equal to his total contributions paid.
(1) 36 monthly contributions prior to the semester of disability; same as death benefit; the only difference is that the pension is paid directly to the member. (2) In case the permanently disabled member dies, it would be given the same treatment as a retiree dying. (3) For permanent partial disability, the pension is not lifetime. [e.g. loss of thumb entitles member to only 10 months of pension, while loss of arm 50 months]. It shall be paid in lump sum if the period is less than 12 months.
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A member who has not paid at least 36 monthly contributions Note: A member who [1] has received a lump sum benefit; and [2] is reemployed or has resumed self-employment not earlier than one [1] year from the date of his disability shall again be subject to compulsory coverage and shall be considered a new member.
(1) His primary beneficiaries as of the date of disability shall be entitled to receive the monthly pension; OR (2) If he has no primary beneficiaries and he dies within sixty [60] months from the start of his monthly pension, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the five-year guaranteed period excluding the dependents’ pension.
36 monthly contributions prior to the semester of death.
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Social Security Commission Resolution No. 669. Moreover, several SSS-issued circulars such as Circular No. 21-P and No. 52 pertain to the treatment of salary loans, sometimes providing for more flexible payment terms or condonation for delinquent payers; Santiago v. CA and SSS, GR # L-39949 [1984] resolved an issue involving the treatment of salary loan repayments; SSS website also shows loans
(1) Inability to work due to sickness or injury (2) Confined for at least 4 days either in a hospital or elsewhere with SSS approval; (3) At least 3 months of contributions in the 12 month period immediately before the semester of sickness or injury has been paid; (4) All company sick leaves with pay for the current year have been used up; (5) Maximum of 120 days per 1 calendar year [i.e maximum permissible for the same sickness and confinement is 240 days for 2 consecutive years]; (6) The employer has been notified, or, if a
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(1) The employer notified the SSS of the confinement within five calendar days after receipt of the notification from the employee member (2) If the notification to the SSS is made by the employer beyond five calendar days after receipt of the notification from the employee member, he shall be reimbursed only for each day of confinement starting from the tenth calendar day immediately preceding the date of notification to the SSS. (3) SSS shall reimburse the employer or pay the unemployed member only for confinement within the one-year period immediately preceding the date the claim for benefit or reimbursement is received by the SSS, except confinement in a hospital in which case the claim for benefit or reimbursement must be filed within one [1] year from the last day of confinement.
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That the SSS shall immediately reimburse the employer of one hundred percent [100%] of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof. Note: All of these benefits are tax-exempt.
B. GSIS [RA 8291] B.1. COVERAGE & EXCLUSIONS
All public sector employees below the compulsory retirement age of 65, irrespective of employment status. [Sec. 3]
(1) AFP and PNP;
Eligibility Requirements [2000, 2005, 2007, 2010 Bar Question] (1) A female member (2) Paid
at
least
three
[3]
monthly
(2) Members of the Judiciary and Constitutional Commissions who are covered ONLY by life insurance as they have separate retirement schemes; (3) Contractual employees with no employer-employee relationship with
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(1) Dependent parents
(2) At least 60 years of age; and
(2) Legitimate descendants, subject to the restrictions on dependent children.
(3) Not receiving pension benefit from permanent total disability.
B.3. BENEFITS
From date of original appointment/election, including periods of service at different times under one or more employers, those performed overseas under the authority of the Republic of the Philippines, and those that may be prescribed by the GSIS in coordination with the Civil Service Commission. In case of reinstatement in the service of an employer and subsequent retirement or separation which is compensable under this Act, all service credited for retirement, resignation or separation for which corresponding benefits have been awarded under this Act or other laws shall be excluded in the computation of service
Note: Retirement is compulsory for employees 65 years of age who have rendered at least 15 years of service; if employee has less than 15 years of service, he may be allowed to continue in accordance with civil service laws. [Sec. 13] [Sec. 13]: Choice between (a) 60 x [basic monthly pension] lump sum payment [Sec. 2] at the time of retirement plus basic monthly pension payable monthly for life after expiry of the 5-year guaranteed period which is already covered by the lump sum; or (b) Cash payment equivalent to 18 x [basic monthly pension] plus monthly pension for life immediately but with no 5-year guarantee Note: Subject to periodic adjustment [Sec. 14]
Note: The GSIS may prescribe rules for the inclusion of part time and other services with compensation. [Sec. 16] (a) Complete loss of sight of both eyes;
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(v) One foot (vi) One leg
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amount of contributions made] or P12,000 whichever is higher. [Sec. 16]
(vii) One or both ears (viii)
Hearing of one or both ears
(ix) Sight of one eye (b) Such other cases as may be determined by the GSIS
(1) Disability not due to employee’s own grave misconduct, notorious negligence, habitual intoxication, or willful intention to kill himself or another; [Sec. 15] (2) Employee is: (a) in service at the time of disability; or (b) even if separated, he has paid at least 36 monthly contributions within the 5-year period immediately prior to disability or has paid a total of at least 180 monthly contributions prior to disability; and (c) Member is not enjoying old-age retirement benefit. [Sec. 16]
Paid according to GSIS prescribed schedule (this is similar to the scheme used by SSS); member availing of permanent partial disability must satisfy condition regarding the disability not being due to his own fault and either regarding employment status and services rendered. (See Eligibility requirements for Permanent Total Disability)
When member dies, the primary beneficiaries are entitled to only one of the following: (1) Survivorship pension (a) If he was in the service when he died; or (b) Even if separated from the service, he has at least 3 years of service and has paid 36 monthly contributions within the 5 years immediately preceding death; or (c) Even if separated from the service, he has paid 180 monthly
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Who are entitled: (1) Active member; (2) Member separated from service but still entitled to funeral benefit; (3) Pensioner; (4) Retiree who at the time of retirement was of pensionable age but opted to retire under RA 1616.
GSIS website provides for this. The following are the loans provided online: (1) Consolidated Loan (2) Policy Loan (3) Emergency Loan (4) Pension Loan
(1) 60 years of age, or separation from service with at least 3 years but not over 15 years served (2) Below 60 years of age, but at least 15 years of service rendered.
(1) For 60 years of age or separated from service with 3 to 15 years of service: cash payment of 100% of ave. monthly compensation for each year of service (total amount of all contributions paid) or P12,000 whichever is higher. (2) Below 60 years of age and at least 15 years of service: cash payment equivalent to 18 x [monthly pension] at the time of resignation or separation plus an old-age pension benefit equal to basic monthly pension.
Similar to sickness.
(1) Employee must be: (a) in service at the time of disability; or
(1) Employee separated from service due to abolition of his office or position; and
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(2) Dependent children’s pension not exceeding 50% of the basic monthly pension.
Note: Judiciary and Constitutional Commissions are entitled to life insurance only. SSS RA 1161 as amended by RA 8282: Enabling law
Social Security Act of 1997 – any person, natural or juridical, domestic or foreign, who carries on in the Philippines any trade business, industry, undertaking, and uses the services of another person who is under his orders as regards the employment, . A self-employed person shall be both employer and employee at the same time.
GSIS RA 8291 amending PD 1146
– National government, its political subdivisions, branches, agencies or instrumentalities, including government-owned or controlled corporations and financial institutions with original charters [GOCCs]; constitutional commissions; and judiciary
– any person who performs services – any person receiving for an employer in which either or both mental compensation while in service of an and physical efforts are used and who receives employer whether by election or compensation for such services, where there is
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SSS
•
•
•
•
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GSIS
Legal spouse entitled by law to receive support; Child – unmarried, not employed, and below 21 or
gainfully
Child over 21 if he or she became Same, except that a child here is below permanently incapacitated and incapable 18 of self-support, physically or mentally,; child may be legitimate, legitimated, legally adopted, or illegitimate; Parent who is receiving regular support.
Primary •
Dependent spouse – until remarriage [see above];
Dependent children [see above]; illegitimate children are entitled only to 50% of the share of legitimate children unless there are no legitimate children, in which case, they get 100%. Secondary •
•
Shall only receive when the primary
Same except that RA 8291 does not distinguish share of legitimate and illegitimate children
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SSS
• •
•
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GSIS
Employers as defined above; Employees not over 60 years including household helpers with at least P1,000 monthly pay; and Self-employed. Public sector employees below the compulsory retirement age of 65.
•
(1) AFP and PNP; (2) Members of the Judiciary and Constitutional Commissions who Employees already separated from are covered only by life insurance employment or those self-employed with as they have separate retirement no realized income for a given month, schemes; who chose to continue with contributions to maintain right to full benefit. (3) Contractual employees with no employee-employer relationship with the agency they serve. Foreign governments, international organizations or their wholly owned instrumentality employing workers in the Philippines may enter into an agreement with the Philippine government to include their employees in the SSS except those already covered by their civil service retirement system. •
Coverage
Spouses who devote full time to managing household and family affairs;
•
OFWs recruited employers;
by
foreign-based
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SSS
GSIS
treatment of salary loan repayments; SSS website also shows loans (8) Sickness benefits (9) Maternity leave benefits
Judiciary and Constitutional Commissions are entitled to life insurance only.
Effects of separation from employment
(1) Employer’s contribution, and (2) Employee’s obligation to pay contribution both cease at the end of the month of separation; (3) Employee shall be credited with all contributions paid on his behalf and entitled to all benefits set forth by law.
Continued membership for the unemployed member; and entitlement to whatever benefits he has qualified to in the event of any compensable contingency.
Dispute Settlement
Social Security Commission CA [Rule 43; questions of law and fact] SC [Rule 45; questions of law only]
GSIS CA [Rule 43] SC [Rule 45]; appeal does not stay execution.
Prescriptive Period
20 years
4 years
C. LIMITED PORTABILITY LAW [RA 7699] C.1 COVERAGE [SEC. 3]
(1) Workers who transfer employment from one sector to another; or (2) Those employed in both sectors (public
be counted only ONCE for purposes of totalization to be able to satisfy eligibility requirements of benefits provided for by either SSS or GSIS. [Sec. 3]
D. EMPLOYEE’S COMPENSATION – COVERAGE AND WHEN COMPENSABLE
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(3) An employee over sixty (60) years of age shall be covered if he had been paying contributions to the System prior to age sixty (60) and has not been compulsorily retired. (4) An employee who is coverable by both the GSIS and SSS shall be compulsorily covered by both Systems. (5) Filipinos working abroad in the service of an employer as defined in Section 3 hereof shall be covered by the System, and entitled to the same benefits as are provided for employees working in the Philippines. [Sec. 5, Rule I] D.2. EFFECTIVITY [SEC. 6, RULE I]
Coverage of employees shall take effect on the first day of employment. D.3. WHEN COMPENSABLE
Grounds [Sec. 1, Rule III] (1) For the injury and the resulting disability or death to be compensable, the injury must be the result of accident arising
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out of and in the course of the employment. (2) For the sickness and the resulting disability or death to be compensable, the sickness must be the result of an occupational disease listed under Annex “A” of these Rules with the conditions set therein satisfied, otherwise, proof must be shown that the risk of contracting the disease is increased by the working conditions.
No compensation shall be allowed to the employee or his dependents when the injury, sickness, disability, or death was occasioned by any of the following: (1) his intoxication; (2) his willful intention to injure or kill himself or another; or (3) his notorious negligence
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contrary to law.
VII. Labor Relations A. RIGHT TO SELF-ORGANIZATION
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. Sec.3, Art. XIII. The state shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of 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. [...]
Art.
253.
All
persons
employed
in
Self-organization is a fundamental right guaranteed by the Philippine Constitution and the Labor Code. Employees have the right to form, join or assist labor organizations for the purpose of collective bargaining or for their mutual aid and protection. [UST Faculty Union v. Bitonio, G.R. No. 131235 (1999)]
It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization (Art. 257)
(1) Right to form, join or assist labor organizations of their own choosing for the purpose of collective bargaining through representatives of their own choosing (Art. 257); (2)
Right to engage in lawful concerted
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withdrawal from the cooperative must be allowed. As pointed out by the union, the resignation of the member-employees is an expression of their preference for union membership over that of membership in the cooperative. [Central Negros Electric Cooperative v. SOLE , G.R. No. 94045 (1991)] (6) Their freedom to form organizations would be rendered nugatory if they could not choose their own leaders to speak on their behalf and to bargain for them. [Pan American World Airways, Inc v. Pan-American Employees Association, G.R. No. L-25094 (1969)] (7) Recognition of the tenets of the sect ... should not infringe on the basic right of selforganization granted by the [C]onstitution to workers, regardless of religious affiliation. [Kapatiran sa Meat and Canning Division v. Calleja, G.R. No. 82914 (1988)] A.1. WHO MAY UNIONIZE FOR PURPOSES OF COLLECTIVE BARGAINING?
(1)
All employees
(2) Government employees of corporations created under the Corporation Code (3) (4)
Supervisory Employees
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for purposes of membership in any labor union. [Art. 292(c)] Employee […] shall include 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. [Art. 219(f)] Employees of non-profit organizations are now permitted to form, organize or join labor unions of their choice for purposes of collective bargaining [FEU-Dr. Nicanor Reyes Medical Foundation Inc. v. Trajano, G.R. No. 76273 (1987)]
The right to self-organization shall not be denied to government employees. [§2(5), Art. IX-B, Constitution] Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers All other employees in the civil service shall have the right to form associations for purposes not contrary to law. [Art. 254]
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units and/or labor organizations of their own. The rank and file union and the supervisors' union operating within the same establishment may join the same federation or national union.[Art. 255] Supervisory employees, while in the performance of supervisory functions, become the alter ego of the management in the making and the implementing of key decisions at the sub-managerial level. Certainly, it would be difficult to find unity or mutuality of interests in a bargaining unit consisting of a mixture of rank-and-file and supervisory employees. [Toyota Motor Phil. Corp. v. Toyota Motor Phil. Corp. Labor Union, G.R. No. 121084 (1997)] The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. (Art. 256)
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The security guards and other personnel employed by the security service contractor shall have the right: (1) To form, join, or assist in the formation of a labor organization of their own choosing for purposes of collective bargaining and (2) To engage in concerted activities which are not contrary to law including the right to strike. [D.O. No. 14 Series of 2001 Guidelines Governing the Employment and Working Conditions of Security Guards and Similar Personnel in the Private Security Industry) On Dec. 24, 1986, President C. Aquino issued EO No. 111 which eliminated the provision which made security guards ineligible to join any labor organization. In 1989, Congress passed RA 6715 which also did not impose limitations on the ability of security guards to join labor organizations. Thus, security guards “may now freely join a labor organization of the rank-and-file or that of the supervisory union, depending on their rank.” [Manila Electric Co. v. SOLE , G.R. No. 91902 (1991)]
Note: The rank and file union and the supervisors’ union operating within the same establishment may join the same federation or national union. [Art. 255] (1)
Managerial employees
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Managerial functions refer “to powers and prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, layoff, recall, discharge or dismiss employees”. [San Miguel Corporation Supervisors and Exempt Union v. Laguesma, G.R. No. 110399 (1997)]
Confidential employees, by the nature of their functions, assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations. The employee must: (1) Assist or act in a confidential capacity, AND (2) To persons who formulate, determine, and effectuate management policies in the field of labor relations (1) the confidential relationship must exist between the employees and his supervisor, and (2) the supervisor must handle the prescribed responsibilities relating to labor relations. [
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jeopardize that interest which they are duty bound to protect. [Metrolab Industries Inc. v. Roldan-Confessor , G.R. No. 108855 (1996)] Employees should not be placed in a position involving a potential conflict of interests. Management should not be required to handle labor relations matters through employees who are represented by the union with which the company is required to deal and who in the normal performance of their duties may obtain advance information of the company’s position with regard to contract negotiations, the disposition of grievances, or other labor relations matters. [San Miguel Supervisors and Exempt Union v. Laguesma, G.R. No. 110399 (1997)] The disqualification of managerial and confidential employees from joining a bargaining unit for rank and file employees is already well-entrenched in jurisprudence. While Article 245 [now 255] of the Labor Code limits the ineligibility to join, form and assist any labor organization to managerial employees, jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records. [Standard Chartered
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Bottlers v. IPTEU, G.R. No. 193798 (2015)]
[Persons who] are not employees of [a company] are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining. […]The question of whether employer-employee relationship exists is a primordial consideration before extending labor benefits under the workmen's compensation, social security, Medicare, termination pay and labor relations law. [Singer Sewing Machine Co. v. Drilon, G.R. No. 91307, 1991] But they can still form labor union provided that they are employees of the contractor. A labor union can be established to bargain with the contractor but not the principal employer. [Professor Battad]
An employee of a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his co-owners. [Batangas-I Electric Cooperative
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some degree of international legal personality. They are granted jurisdictional immunity, as provided in their organization’s constitutions, to safeguard them from the disruption of their functions. Immunity […] is granted to avoid interference by the host country in their internal workings. The determination [by the executive branch] has been held to be a political question conclusive upon the Courts in order not to embarrass a political department of Government. [Hence], a certification election cannot be conducted in an international organization to which the Philippine Government has granted immunity from local jurisdiction. [International Catholic Migration Commission v. Calleja, G.R. No. 85750 (1990)]
High-level employees of the government whose functions are normally considered as policy-making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank-andfile government employees. [§3, E.O. 180]
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A.2. COMMINGLING/MIXTURE MEMBERSHIP
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OF
make the decision in behalf of the general membership.
The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union [Art. 256].
e. No labor organization shall knowingly admit as member or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity;
A.3. RIGHTS MEMBERSHIP
AND
CONDITIONS
OF
a. No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed; b. The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions as provided for in the constitution and by-laws of the organization; and c. The members shall directly elect their officers in the local union, as well as their
f. No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union; g. No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its moneys or funds unless he is duly authorized pursuant to its constitution and by-laws; h. Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose. i. The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its constitution and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general
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periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor organization. l. The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and by-laws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization. m. The treasurer of any labor organization and every officer thereof who is responsible for the accounts of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed
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hours. p. No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president. q. No special assessments, attorney's fees, negotiation fees or any other extraordinary fees may be checked off from any amounts due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction; and r. It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. s.
For this purpose, registered labor
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Inciong, No. L-50283-84 (1983)] No arbitrary or excessive initiation fees or fines No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed. [Article 250(e)]
No labor organization shall knowingly admit as members or continue in membership any individual who: (a)
belongs to a subversive organization; or
(b) who is engaged directly or indirectly in any subversive activity;
Unions are not entitled to arbitrarily exclude qualified applicants for membership, and a closed-shop provision would not justify the employer in discharging, or a union in insisting upon the discharge of, an employee whom the union thus refuses to admit to membership, without any reasonable ground therefor.
Members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. [Art. 250(c)]
No requirements other than membership in good standing. [Art. 250(c)] No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union. [Art. 250(f)]
The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with
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officers. [...] The question of eligibility to vote may be determined through the use of the applicable payroll period and employee’s status. [Tancinco v. Ferrer-Calleja, G.R. No. L78131 (1988)]
Disqualification of winning candidates will not result in the declaration of those who garnered the second highest number of votes as winners. The mere fact that they obtained the second highest number of votes does not mean that they will thereby be considered as the elected officers if the true winners are disqualified. [Manalad v. Trajano, G.R. Nos. 72772-73 (1989)]
The nature of the relationship between the union and its members is fiduciary in nature, which arises from the dependence of the employee on the union, and from the
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A local union has the right to disaffiliate from its mother union or declare its autonomy. A local union, being a separate and voluntary association, is free to serve the interests of all its members including the freedom to disaffiliate or declare its autonomy from the federation to which it belongs when circumstances warrant, in accordance with the constitutional guarantee of freedom of association. [Malayang Samahan ng mga Manggagawa sa M. Greenfield, Inc. v. Ramos, G.R. No. 113907 (2000)] [The federation] is entitled to receive the dues from [the employer] as long as the [local] union is affiliated with it and [the employer is] authorized by their employees (members of [the local] union) to deduct union dues. Without said affiliation, the employer has no link to the [federation]. [...] A contract between an employer and the [federation] as bargaining agent for the employees is terminated by the disaffiliation of the local [union] of which the employees are members. [Volkschel Labor Union v. BLR, G.R. No. L45824 (1985)]
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unit. [§1(e), Rule I, Book V] It is “a group of employees of a given employer, comprised of all or less than all of the entire body of employees, which the collective interests of all the employees indicate to be best suited to serve reciprocal rights and duties of the parties consistent with equity to the employer. [Belyca Corp. v. Calleja, G.R. No. 77395 (1988) citing Rothenberg]
(1) An . – It marks the boundaries of those who may participate in a certification election. (2) An . – They are a group of employees with community of interests. (3) . – It selects the sole and exclusive bargaining agent.
The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. [Art. 267]
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in the bargaining unit. During the freedom period, the parties may not only renew the existing collective bargaining agreement but may also propose and discuss modifications or amendments thereto. [De La Salle University v. DLSU Employees Association EA, G.R. No. 109002, (2000)]
[A prior agreement] as to the exclusion [of monthly-paid rank-and-file employees] from the bargaining union of the [daily-paid] rankand-file or from forming their own union […] can never bind subsequent federations and unions as [employees were not privy to that agreement]. And even if [they were privy], it can never bind subsequent federations and unions because it is a curtailment of the right to self-organization guaranteed by the labor laws [General Rubber & Footwear Corp. v. BLR, G.R. No. 74262 (1987)]
General Rule: It shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said
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should be lifted for the purpose of allowing the employees of the three agencies to form a single labor union. [Philippine Scouts Veterans v. Torres, G.R. No. 92357 (1993)] A settled formulation of the doctrine of piercing the corporate veil is that when two business enterprises are owned, conducted, and controlled by the same parties, both law and equity will, when necessary to protect the rights of third parties, disregard the legal fiction that these two entities are distinct and treat them as identical or as one and the same. [ Ang Lee v. Samahang Manggagawa ng Super Lamination, G.R. No. 193816 (2016)]
(3)
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Prior collective bargaining history
(4) Employment status [Democratic Labor Association v. Cebu Stevedoring Co. Inc , G.R. No. L-10321 (1958); University of the Philippines v. Ferrer-Calleja, G.R. No. 96189 (1992)] : Where the employment status was not at issue but the nature of work of the employees concerned; the Court stressed the importance of the 2nd factor. [Belyca Corp. v. Calleja, G.R. No. 77395 (1988)] Other factors:
(5)
Geography and Location
(6) Policy of avoiding fragmentation of the bargaining unit The fact that the businesses are related, that some of the employees are the same persons working in the other company and the physical plants, offices and facilities are in the same compound are NOT sufficient to justify piercing the corporate veil. [Indophil Textile Mills Workers Union v. Calica, G.R. No. 96490 (1992)] )
The transformation of the companies is a
A practice designated as the "Globe doctrine," sanctions the holding of a series of elections, not for the purpose of allowing the group receiving an overall majority of votes to represent all employees, but for the specific purpose of permitting the employees in each of the several categories to select the group which each chooses as a bargaining unit. [Kapisanan ng mga Manggagawa sa Manila
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unit is designed to maintain the mutuality of interest among the employees in such unit. When the interest between groups has changed over time, there is reason to dissolve, change or expand a certain bargaining unit.
The existence of a prior collective bargaining history is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. [Sta. Lucia East Commercial Corporation v. SOLE , G.R. No. 162355 (2009)]
Among the factors to be considered [is the] employment status of the employees to be affected [regular, casual, seasonal, probationary, etc.], that is the positions and categories of work to which they belong [....] [Belyca Corp. v. Calleja, G.R. No. 77395 (1988)]
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employees’ bargaining power with the management. To veer away from such goal would be contrary, inimical and repugnant to the objectives of a strong and dynamic unionism. [Phil. Diamond Hotel and Resort Inc v Manila Diamond Hotel and Employees Union, GR No. 158075 (2006)]
Since the confidential employees are very few in number and are by practice and tradition identified with the supervisors in their role as representatives of management vis-a-vis the rank and file employees, such identity of interest has allowed their inclusion in the bargaining unit of supervisors-managers for purposes of collective bargaining in turn as employees in relation to the company as their employer. [Filoil Refinery Corp. v. Filoil Supervisory and Confidential Employees Union, G.R. No. L26736 (1972)]
C. BARGAINING REPRESENTATIVE
(1)
The separation between the camps [...]
C.1. DETERMINATION REPRESENTATION STATUS
OF
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: Regional Office which issued its certificate of registration or certificate of creation of chartered local (2)
Indicate in the request (§2):
(a) Name and address of the requesting legitimate labor organization; (b) Name and address of the company where it operates; (c) Bargaining represented;
unit
sought
to
be
within five (5) SUBMISSION of:
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working
days
for
the
(a) Names of employees in the covered bargaining unit who signify support for certification; [and these] employees comprise at least majority of the number of employees in the covered bargaining unit; and (b) Certification under oath by the president of the requesting union or local that all documents submitted are true and correct based on personal knowledge
(d) Approximate number of employees in the bargaining unit; and
(B) With more than 1 legitimate labor organization
(e) Statement of the existence/nonexistence of other labor organization/CBA.
Regional Director shall refer it to the Election Officer for conduct of certification election.
Certificate of
Duly certified by
Registration
President of requesting union
Creation of chartered local
President of the federation of the local
certificates should be attached to the request
(3) Regional Director shall act on the request (§3)
Regional Director shall refer it to the mediator-arbitrator for determination and propriety of conducting a certification election. (4) Regional Director shall act on the submission (§4.1) Incomplete requirements
The request shall be referred to Election Officer for the
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The certification shall bar the filing of a [PCE] by any labor organization for a period of one (1) year from the date of its issuance. Upon expiration of this one-year period, any legitimate labor organization may file a [PCE] in the same bargaining unit represented by the certified labor organization, unless a [CBA] between the employer and the certified labor organization was executed and registered with the Regional Office in accordance with Rule XVII.
: D.O. 40-I-15 replaced Voluntary Recognition with SEBA certification. This section is ONLY FOR COMPARISON with SEBA certification. refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office in accordance to Rule VII, Sec 2 of these Rules. (Book V, Rule I, §1 [bbb])
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in the bargaining unit, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit; and (4) A statement that the labor union is the only legitimate labor organization operating within the bargaining unit. All accompanying documents of the notice for voluntary recognition shall be certified under oath by the employer representative and president of the recognized labor union. The employer may voluntarily recognize the representation status of a union in unorganized establishments. However, in cases where an establishment is already organized, as when a petition for certification election has already been filed by a union, if the company voluntarily recognizes a different union during such time, then the company’s voluntary recognition is void. (SLECC v Sec. of Labor , 2009)
"Consent Election" means the election voluntarily agreed upon by the parties with or without the intervention by DOLE (Book V, Rule I, §1(i)) Procedure (Book V, Rule VIII, §11) (1)
1.
The parties may agree to hold a consent
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as the winner [§2, Rule X, Book V]. A "Run-Off election" refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election when the following requisites have been complied with: 1.
: Please note the difference between valid votes cast versus votes cast – valid votes excludes spoiled votes.
Valid election;
2. The certification or consent election provides for three (3) or more choices (“No Union” is considered one choice – Professor Battad); 3. None of the contending UNIONS received a majority of the VALID VOTES cast;
“Certification Election" is the process of determining, through secret ballot, the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. [§1(i), Rule I, Book V]
4. No objections or challenges which if sustained can materially alter the results; and 5. The total number of votes for all contending UNIONS is at least fifty (50%) of the number of VOTES cast [Art. 268; §1(uu), Rule I, Book V; §1, Rule X]
The CBU has 100 members and 80 of which voted. Union “A”= 30; Union “B”= 15; Union “C”=15 and No Union= 20. There were no invalid votes. Since none got the majority of the 80 valid votes (40) and the contending unions obtained 60 votes (which is at least
The purpose of a certification election is precisely the ascertainment of the wishes of the majority of the employees in the appropriate bargaining unit: to be or not to be represented by a labor organization, and in the affirmative case, by which particular labor organization. [Reyes v. Trajano, G.R. No. 84433 (1992)]
Certification election is the most effective and the most democratic way of determining
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Technical rules and objections should not hamper the correct ascertainment of the labor union that has the support or confidence of the majority of the workers and is thus entitled to represent them in their dealings with management. [Port Workers Union v. Laguesma, G.R. Nos. 94929-30, (1992)]
Certification Election
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"Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. [Art. 219 (h)]
Union Election
To determine the Exclusive Bargaining Agent
To elect union officers
All members of the appropriate bargaining unit may vote.
Only union members may vote.
A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. [Art. 241]
[§6, Rule IX, Book V] All employees who are members of the appropriate bargaining unit three (3) months prior to the filing of the petition/request shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was
A group of legitimate labor unions in a private establishment organized for collective bargaining or for dealing with employers 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 Rule III §2-B. [Book V Rule 1 §1 (ll)]
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online. [§2, Rule VIII, Book V] (1) being notified or informed of petitions of such nature (2) submitting the list of employees during the pre-election conference should the MedArbiter act favorably on the petition [Art. 271] The principle of the employer as by-stander shall be strictly observed throughout the conduct of certification election. The employer shall not harass, intimidate, threat[en], or coerce employees before, during and after elections. [§1, Rule IX, Book V] However, manifestation of facts that would aid the [Med-Arbiter] in expeditiously resolving the petition such as existence of a contract-bar, one year bar or deadlock bar may be considered. [§1, Rule VIII, Book V] The employer is not a party to a certification election, which is the sole or exclusive concern of the workers. [...] The only instance when the employer may be involved in that process is when it is obliged to file a petition for certification election on its workers’ request to bargain collectively pursuant to Art. 258 [now Art. 270]. [Hercules Industries, Inc. v Sec. of Labor , G.R. No. 96255 (1992)] [The employer] did not possess the legal personality to file a motion to dismiss the
Two or more petitions involving same bargaining unit [§2, Rule VIII, Book V]
Filed in one Regional Office
Automatically consolidated with [MedArbiter] who first acquired jurisdiction
Filed in different Regional Offices
The Regional Office in which the petition was first filed shall exclude all others; [...] The latter shall indorse the petition to the former for consolidation
Unorganized Establishment [It is an] establishment where there is no certified bargaining agent. [Art. 269] Procedure [Art. 269] (1)
File a petition for certification election.
(2) Upon filing of the petition, the MedArbiter shall automatically conduct a certification election.
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before expiration of CBA (freedom period) (3) Supported by written consent of at least 25% of ALL employees in the bargaining unit (substantial support) (4) Med-Arbiter shall automatically order an election.
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[The] requisite written consent of at least 20% (now 25%) of the workers in the bargaining unit applies to certification election only, and not to motions for intervention. Nowhere in the legal provisions [and in the Omnibus Rules] does it appear that a motion for intervention in a certification election must be accompanied by a similar written consent. [PAFLU v. Calleja, G.R. No. 79347 (1989)]
1. Incumbent bargaining agent as forced intervenor; To ensure industrial peace between the employer and its employees during the existence of the CBA. [Republic Planters Bank Union v. Laguesma, G.R. No. 119675 (1996)]
What is prohibited is the filing of the petition for certification election outside the 60-day freedom period. [...] The signing of the authorization to file was merely preparatory to the filing of the Petition for Certification Election, or an exercise of [the] right to selforganization. [PICOP Resources Inc. v. Ricardo Dequita, G.R. No. 172666 (2011)]
2. Legitimate labor union other than the incumbent bargaining agent operating within the bargaining unit.
The incumbent bargaining agent shall automatically be one of the choices in the certification election as forced intervenor. [§8, Rule VIII, Book V]
When a petition for certification election was
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(1) Before the filing of the petition for certification election is presumed voluntary, (2) After the filing of such petition is considered to be involuntary and does not
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affect the [petition]. [S.S. Ventures International vs. S.S. Ventures Labor Union, G.R. No. 161690 (2008)]
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Art. 268: Organized
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Art. 269: Unorganized
Sole and exclusive Bargaining agent
Existing, has one
None
Petition filed
Must be VERIFIED
No need to be verified
No petition for Certification election EXCEPT within 60 days before the expiration of the collective bargaining agreement (See Art. 264 & 265)
Not applicable.
Freedom Period
No freedom period. Can file petition anytime.
Take note how SC interpreted the term “WITHIN”. What is the rationale of freedom period in Organized establishments, why is there none in unorganized establishments? It has something to do with industrial peace Must be duly supported by 25% of ALL THE MEMBERS OF THE APPROPRIATE BARGAINING UNIT.
Substantial support rule
Rationale
NO substantial support rule. Rationale
Intention of law is to bring in Law wants to know the intention of the the union, to implement policy employees – If they really want a Certification behind Art. 218A. election, since they already have a bargaining agent.
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for the final disposition of the case [§10, Rule VIII, Book V]
1.
Raffling of case to Med-Arbiter
2.
Preliminary Conference and hearing
3.
Conduct of hearings
Note: If contending unions agree to holding of an election, [...]it shall be called a consent election. [§11, Rule VIII, Book V]
4. Determine if petition should be dismissed on grounds stated in Section 15 5.
Order/Decision on the petition
6. Appealing the order/decision on the petition 7. Raffling of the case to an Election Officer 8.
Pre-Election Conference
9.
Conduct of election
10. Challenging of votes and on the spot questions 11.
Protesting
12.
Canvassing of votes
13.
Nullification of Election Results
If contending unions fail to agree to a consent election during the preliminary conference, the Med-Arbiter may conduct as many hearings as he/she may deem necessary, but in no case shall the conduct thereof exceed fifteen (15) days from date of scheduled preliminary conference/hearing, after which the petition shall be considered submitted for decision. [...] Within the same 15-day period [...], the contending labor unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions of time shall not be entertained. [§12, Rule VIII, Book V]
14. Proclamation and Certification of the result of the election 15. Appeal Orders
from
Certification
Election The grounds to dismiss the petition are:
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before the [Med-Arbiter] despite due notice; and (h) Absence of employer-employee relationship between all the members of the petitioning unit and the establishment where the proposed bargaining unit is sought to be represented. : See page 164 for the 4 Bars to Certification Election (One-year bar rule, Negotiation bar rule, Deadlock bar rule, Contract bar rule)
The inclusion as union members of employees outside the bargaining unit [is] not a ground for cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership. [§16, Rule VIII, Book V] Posting of notice of Petition for Certificate Election The Regional Director or his/her authorized DOLE personnel, and/or the petitioner shall be responsible for the posting of the notice of petition for certification election. . [§7, Rule VIII, Book V]
(b)
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Description of the bargaining unit;
(c) Statement that none of the grounds for dismissal [...] in Section 14 exists; (d) Names of the contending labor unions [...] in the following order: (i) Petitioner unions in the order of the date of filing of their respective petitions (ii)
The forced intervenor
(iii)
“No union”
(e) [If] the local/chapter is one the contending unions, a directive to an unregistered local/chapter or a federation/national union representing all unregistered local/chapter to personally submit to the Election Officer its certificate of creation at least five (5) working days before the actual conduct of the certification election. [This is to afford an individual employee-voter an informed choice.] Non-submission of this requirement as certified by Election Officer shall disqualify the local/ chapter from participating in the certification election (f) Directive to the employer and the contending unions to submit within ten (10) days from receipt of order:
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Within ten (10) days from receipt of the order [of the Med-Arbiter].
Regional Office where the petition originated
●
Verified under oath
[Consists of] a memorandum of appeal ● specifically stating the grounds relied upon by appellant with the supporting arguments and evidence
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: Restrained by appropriate court [§24, Rule VIII, Book V]
Regional Director shall cause the raffle of the case to an Election Officer who shall have control of: (a)
Pre-election conference; and
(b)
Election proceedings
: Within twenty-four (24) hours from receipt of notice of entry of final judgment granting the conduct of a certification election [§2, Rule IX, Book V]
[§3, Rule IX, Stays the holding of any certification election. [§23, Rule VIII, Book V]
Reply by any party to the petition shall be filed within ten (10) days from receipt of the memorandum of appeal [...] and filed directly with the office of the Secretary. [§22, Rule VIII, Book V]
Book V] The Election Officer shall cause the issuance of notice of pre-election conference upon the contending unions : Within twenty-four (24) hours from the [Election Officer’s] receipt of assignment for the conduct of a certification election
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conference
(a)
Be furnished notices; and
(b) To attend conferences
subsequent pre-election
Minutes of pre-election conference [§5, Rule IX, Book V] Election Officer shall keep the minutes of matters raised and agreed upon. Parties shall acknowledge the completeness and correctness of entries in the minutes by affixing their signatures. When parties refuse to sign the minutes, the Election Officer shall note such fact in the minutes, including the reason for refusal to sign the same. In all cases, parties shall be furnished a copy of the minutes.
Collective bargaining covers all aspects of the employment relation and the resultant CBA binds all employees in the bargaining unit. All rank and file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. [Airtime Specialists, Inc. v Ferrer-Calleja, G.R. No. 80612-16 (1990)] [§6, Rule IX, Book V] : [Dismissed] employees [who] contested legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for conduct of a certification election : Dismissal was declared valid in a final judgment at the time of the conduct of the certification election. Disagreement over voters’ list over eligibility of voters [§6, Rule IX, Book V] All contested voters shall be allowed to vote [but] their votes shall be segregated and sealed in individual envelopes.
Eligible voter refers to a voter belonging to the appropriate bargaining unit that is the subject
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: 2 most conspicuous places in the company premises : At least ten (10) days before the actual [election date]
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●
Polling place;
●
Ballot boxes; and
●
Polling booths
[§7, Rule IX, Book V] (1)
Date and time of the election;
(2)
Names of all contending unions;
(3)
Description of the bargaining unit;
(4)
List of eligible and challenged voters.
Posting of the list of employees comprising the bargaining unit shall be done by the DOLE personnel.
(1)
General Rule: No device that could record or identify the voter or otherwise undermine the secrecy and sanctity of the ballot shall be allowed within the premises : Devices brought in by the Election Officer : Any other device found within the premises shall be confiscated by the Election Officer and returned to its owner after conduct of the certification election. [§9, Rule IX, Book V]
Posting of the notice of election
(2) Information required to be included therein
(a)
English; and
(3)
(b)
Filipino or the local dialect
Duration of the posting
The parties agreed to conduct the election on [...] a regular business day [but a strike was held on that day.] The alleged strike and/or picketing of some employees at the company’s premises which coincided with the actual
Number of ballots should correspond to the number of voters in the bargaining unit plus a reasonable number of extra ballots for contingencies
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A ballot that is torn, defaced, or contains marking which can lead another to clearly identify the voter who casts such vote [§1(ww), Rule I, Book V]
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Shall be passed upon by the Med-Arbiter only if the number of segregated votes will materially alter the results of the election.
If the voter inadvertently spoils a ballot, he shall return it to the Election Officer who shall destroy it and give him/her another ballot. [§10, Rule IX, Book V] Member unintentionally omitted the in master list of voters may either be:
Any question relating to and raised during the conduct of election
(a) May be allowed to vote if both parties agree; [OR] (b) Allowed to vote but the ballot is segregated
Question of eligibility which shall be decided by the Mediator-Arbiter Failure of representative/s of the contending unions to appear [§15, Rule IX, Book V]
[§11-12, Rule IX, Book V] Ballot of the voter who has been properly challenged during the pre-election conferences shall be: (a) Placed in an envelope sealed by Election Officer in the presence of: (i)
the voter; and
(ii)
representativ
of
the
Considered a waiver of the right to be present and to question the conduct thereof [§13, Rule IX, Book V] : Any party-in-interest : On the conduct or mechanics of the election
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[The petitioner union misrepresented that they were independent which caused the members to disaffiliate and form a new union and their protest was not filed within the 5-day period. The] failure to follow strictly the procedural technicalities regarding the period for filing their protest should not be taken against them. Mere technicalities should not be allowed to prevail over the welfare of the workers. What is essential is that they be accorded an opportunity to determine freely and intelligently which labor organization shall act on their behalf. [DHL-URFA-FFW v. BMP, G.R. No. 152094 (2004)]
Election Proceedings refer to the period during a certification, consent or run-off election, and election of union officers Included: (a) Starting from the opening to the closing of the polls (b) Counting, tabulation and consolidation of votes Excluded: (1) Period for the final determination of the challenged votes
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Ballots and tally sheets shall be sealed ● in an envelope and signed by the Election Officer and the representatives of the contending unions and transmitted to the Med-Arbiter together with the minutes and results of the election within twenty-four (24) hours from the completion of the canvass. Election conducted in more than one region Consolidation of results shall be made within fifteen (15) days from the conduct thereof.
1. There must be a valid certification or consent election; and : At least majority of the number of eligible voters have cast their votes (VOTES CAST) [§17, Rule IX, Book V] 2. The winning union must garner majority of the VALID VOTES CAST [§16, Rule IX, Book V] Winning union certifies as SEBA if there is no protest [§16, Rule IX, Book V] The [winning union] shall be certified as the [SEBA] in the appropriate bargaining unit within five (5) days from date of election,
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[§17, Rule IX, Book V] The Election Officer shall declare a failure of election in the minutes of the election proceedings when: (1) Number of VOTES CAST is less than the majority of the number of eligible voters; AND (2)
There are no material challenged votes [§19, Rule IX, Book
V] Shall not bar the filing of a motion for the immediate holding of another certification or consent election within six (6) months from date of declaration of failure of election. Motion for another election after failure of election [§20, Rule IX, Book V]
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Arbiter] shall issue an order proclaiming the results of the election and certifying the union as the [SEBA] under any of the following conditions: (a) No protests were filed, or even if one was filed, [it] was not perfected within the five-day period (b) No challenge or eligibility issue was raised, or even if one was raised, [its] resolution will not materially change the results of the elections. Winning union shall have the rights, privileges, and obligations of a duly certified collective bargaining agent from the time the certification is issued. Majority of valid votes cast results in “no Union” obtaining majority Med-Arbiter shall declare such fact in the order
Within twenty-four (24) hours from receipt of the motion, the Election Officer shall: Immediately schedule another election ● within fifteen (15) days from receipt of motion ●
: Any party to an election
Cause posting of the notice of election
o At least ten (10) days prior to the scheduled date of election o
[Art. 272]
In two (2) most conspicuous places in
: Order or results of the election : Directly to SOLE
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year from the time a valid certification, consent or run-off election has been conducted within the bargaining unit. [If the order of the Med-Arbiter certifying the results of the election has been appealed], the running of the one-year period shall be suspended until the decision on the appeal becomes final and executory. [§3(a), Rule VIII, Book V : This bar also applies to a SEBA Certification under Rule VII. “The certification shall bar the filing of a petition for certification election by any labor organization for a period of one (1) year from the date of its issuance.” [§4.2, Rule VII, Book V]
No certification of election may be filed when: (1) Within 1 year after the valid certification election (2) The DULY CERTIFIED union has COMMENCED AND SUSTAINED negotiations in good faith with the employer (3) In accordance with Art. 261 of the Labor Code §3(b), Rule VIII, Book V
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University v. SOLE, G.R. No. 91915 (1992)]
BLR shall not entertain any petition for certification election or any other action which may disturb the administration of DULY REGISTERED existing collective bargaining agreements affecting the parties. except under Arts. 264, 265, and 268 [(60-day freedom period)]. [Art. 238] No petition for certification election may be filed when a [CBA] between the employer and a SEBA has been registered in accordance with Art. 237. Where such [CBA] is registered, the petition may be filed only within sixty (60) days prior to its expiry. [§3(d), Rule VIII, Book V]. The five-year representation status acquired by an incumbent bargaining agent either through single enterprise collective bargaining or multi-employer bargaining shall not be affected by a subsequent [CBA] executed between the same bargaining agent and the employer during the same five-year period. [§7, Rule XVII, Book V] Despite an agreement for a CBA with a life of more than five years, either as an original provision or by amendment, the bargaining
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certification election; nor (b) prevent the filing of a petition for certification election. [Art. 246] A certification election can be conducted despite pendency of a petition to cancel the union registration certificate. For the fact is that at the time the [union], whose registration certificate is sought to be cancelled, filed its petition for certification, it still had the legal personality to perform such act absent an order directing its cancellation. [Association of Court of Appeals Employees vs. Calleja, G.R. No. 94716, (1991)] PREJUDICIAL QUESTION Prejudicial Question Rule Labor claims cannot proceed independently of: ● A bankruptcy liquidation proceeding; and
Suspension order in a rehabilitation ● case. The law is clear, upon the creation of a management committee or the appointment of a rehabilitation receiver, all claims for actions “shall be suspended accordingly.” No exception in favor of labor claims is mentioned in the law. Since the law makes no
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Commencement Order which includes a Stay or Suspension Order [suspending] all actions or proceedings, in court or otherwise, for the enforcement of claims against the debtor [§16(q)(1)]. In liquidation proceedings, upon the issuance of a Liquidation Order, no separate action for the collection of an unsecured claim shall be allowed [§113]. Under a Liquidation Plan, credits for services rendered by employees or laborers to the debtor shall enjoy first preference under Article 2244 of the Civil Code, unless the claims constitute legal liens under Articles 2241 and 2242 thereof [§133]. Claim shall refer to all claims or demands of whatever nature or character against the debtor or its property [§4(c)]. Rationale These claims would spawn needless controversy, delays, and confusion. [Lingkod Manggagawa sa Rubberworld, Adidas-Anglo vs. Rubberworld (Phils.), Inc., G.R. No. 153882 (2007)] Allegation of company union a prejudicial question to a petition for certification election A complaint for unfair labor practice may be considered a prejudicial question in a proceeding for certification election when it is
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Situation Contemplated
days from said election.
A certification, consent or run-off election results to a tie between two (2) choices.
When will re-run be conducted
Duty of Election Officer
Within ten (10) days after the posting of the notice
(a)
Notify parties of a re-run election
Declared as winner and certified
(b)
Cause posting of notice within five (5)
Choice receiving the HIGHEST VOTES CAST.
Purpose
Certification election Aimed at determining the sole and exclusive bargaining agent of all employees in an appropriate bargaining unit for the purpose of collective bargaining 1st Level of Choice: Yes Union or No Union 2nd Level of Choice: If “Yes Union” wins, WHICH union. [UST Faculty Union v. Bitonio, G.R. No. 131235 (1999)] Ordered by the DOLE
Conduct
Nature of Relationship The nature of the relationship between the union and its members is fiduciary in nature which arises from the dependence of the employee on the union, and from the
Consent Election Merely to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit
Voluntarily agreed upon by the parties, with or without intervention from DOLE
(b) who is engaged directly or indirectly in any subversive activity;
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self-preservation. When members of a labor union, therefore, sow the seeds of dissension and strife within the union; when they seek the disintegration and destruction of the very union to which they belong, they thereby forfeit their rights to remain as members of the union which they seek to destroy. [Villar v. Inciong, No. L-50283-84 (1983)]
Members shall directly elect their officers, including those of the national union or federation, to which they or their union is affiliated, by secret ballot at intervals of five (5) years. [Art. 250(c)] Qualifications of officers No requirements other than membership in good standing. [Art. 250(c)] No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union. [Art. 250(f)]
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allow members to vote Submission of the employees’ names with the BLR as qualified members of the union is not a condition sine qua non to enable said members to vote in the election of union’s officers. [...] The question of eligibility to vote may be determined through the use of the applicable payroll period and employee’s status. [Tancinco v. Ferrer-Calleja, G.R. No. L78131 (1988)] Disqualification does not render those who garner the 2nd highest number of votes as the winners Disqualification of winning candidates will not result in the declaration of those who garnered the second highest number of votes as winners. The mere fact that they obtained the second highest number of votes does not mean that they will thereby be considered as the elected officers if the true winners are disqualified. [Manalad v. Trajano, G.R. Nos. 72772-73 (1989)] Major Policy Matters Procedure of determining question of major policy affecting the entire membership of the organization [Art. 250(d)]
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Union dues are payments to meet the union’s general and current obligations. The payment must be regular, periodic, and uniform. [Azucena] Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose. [Art. 250 (h)]
Payment of Attorney’s fees cannot be imposed in individual member No attorney’s fees, negotiation fees, or similar charges of any kind arising from any collective bargaining agreement or conclusion of the collective agreement shall be imposed on any individual member. [Art. 228(b)] Proper charging of attorney’s fees (1)
Charges against union funds; AND
(2)
In an amount agreed upon by the parties
Any contract, agreement, or arrangement of any sort to the contrary shall be void. [Art. 228(b)]
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extraordinary concept, attorney's fees may be awarded by the court as indemnity for damages to be paid by the losing party to the prevailing party, such that, in any of the cases provided by law where such award can be made, e.g., those authorized in Article 2208 of the Civil Code, the amount is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof. [Masmud v NLRC, G.R. No. 183385 ( 2009)] In Masmud, the contingency agreement between lawyer and client consisting of 39% of the monetary award was deemed not unconscionable by the SC. D. Rights of labor organization D. 1. CHECK-OFF, ASSESSMENT, AGENCY FEES Special assessments are payments for a special purpose, especially if required only for a limited time. [Azucena] No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting
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b.
Purpose
(1)
Non-member of SEBA
c.
Beneficiary of deduction
(2)
Member of Collective Bargaining Unit
[Gabriel v. SOLE, G.R. No. 115949 (2000)] Strict compliance for special assessment There must be strict and full compliance with the requisites. Substantial compliance is not enough. [Palacol v. Ferrer-Calleja, G.R. No. 85333 (1990)]
(3) Reasonable fee equivalent to the dues and other fees paid by members (4)
Acceptance of CBA benefits
A.2.I. UNION CHARTERING/ AFFILIATION DEFINITIONS
Mandatory Activity Definition A judicial process of settling dispute laid down by the law. [Vengco v. Trajano, G.R. No. 74453 (1989)] Placement of renegotiations for a CBA under compulsory arbitration does not make it a “mandatory activity”. [Galvadores v. Trajano, No. 70067 (1986)] It dispenses with the requirement of the individual written authorization duly signed by the employee [Art. 250(o)] AGENCY FEES 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. [Azucena]
Affiliate An independent union affiliated with a federated, national union or a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation, reported to the Regional Office and the Bureau in accordance with Rule III, Secs. 6 and 7 [§1(b), Rule I, Book V] Independent Union A labor organization operating at the enterprise level that acquired legal personality through independent registration under Art. 234 of the Labor Code and Rule III, §2-A [§1(x), Rule I, Book V National Union or Federation A group of legitimate labor unions in a private establishment organized for collective bargaining or for dealing with employers
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election from the date it was issued a charter certificate.
Composed of a group of registered national unions or federations
The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate:
Can directly create local or chapter [Art. 241] Cannot [SMCEU-PTGWO v. SMPEUPDMP, G.R. No. 171153 (2007)]
a. The names of the chapter's officers, their addresses, and the principal office of the chapter; and b. The chapter's constitution and by-laws: Provided, That 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. The additional supporting requirements shall be ●
Certified under oath by:
o
Secretary; or
o
Treasurer
●
Attested by: Its president [Art. 241]
Lesser requirements for Chartered locals The intent of the law in imposing less requirements in the case of a branch or local of a registered federation or national union is to encourage the affiliation of a local union
PURPOSE OF AFFILIATION To foster the free and voluntary organization of a strong and united labor movement [Art. 218-A(c)] The sole essence of affiliation is to increase, by collective action, the common bargaining power of local unions for the effective enhancement and protection of their interests. Admittedly, there are times when without succor and support local unions may find it hard, unaided by other support groups, to secure justice for themselves. [Philippine Skylanders, Inc. v. NLRC, G.R. No. 127374 (2002)] NATURE OF RELATIONSHIP: AGENCY The mother union, acting for and in behalf of its affiliate, had the status of an agent while the local union remained the basic unit of the association, free to serve the common interest of all its members subject only to the restraints
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Waterfront Insular Hotel, GR No. 174040-41 (2010)] SUPERVISOR AND RANK AND FILE UNION AFFILIATION General Rule: The rank and file union and the supervisors' union operating within the same establishment MAY JOIN the SAME federation or national union. [Art. 255] DISAFFILIATION Nature of Right and Legality Such a phenomenon is nothing new in the Philippine labor movement. Nor is it open to any legal objection. It is implicit in the freedom of association explicitly ordained by the Constitution. There is then the incontrovertible right of any individual to join an organization of his choice. That option belongs to him.. [Philippine Labor Alliance Council (PLAC) v. BLR, No. L-41288 (1977)] We upheld the right of local unions to separate from their mother federation on the ground that as separate and voluntary associations, local unions do not owe their creation and existence to the national federation to which
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independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. However, even before the onset of the freedom period, disaffiliation may be carried out when there is a shift of allegiance on the part of the majority of the members of the union. [ANGLO v. Samana Bay, G.R. No. 118562 (1996)] Effect of disaffiliation On legal personality A registered independent union retains its legal personality while a chartered local loses its legal personality unless it registers itself. No effect on CBA A disaffiliation does not disturb the enforceability and administration of a collective agreement; it does not occasion a change of administrators of the contract nor even an amendment of the provisions thereof. [Volkschel Labor Union v. BLR, No. L45824 (1985)] Obligation to pay union dues is coterminous with membership The obligation of an employee to pay union dues is coterminous with his affiliation or membership. “The employees’ check-off authorization, even if declared irrevocable, is good only as long as they remain members of
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executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. And it is in the light of this that the phrase “said new agent would have to respect said contract” must be understood. It only means that the employees, thru their new bargaining agent, cannot renege on their collective bargaining contract, except of course to negotiate with management for the shortening thereof. [Benguet Consolidated v. BCI Employees and Workers Union-PAFLU, G.R. No. L-24711 (1968)] Conditions to apply the doctrine (1) change of bargaining agent (through affiliation, disaffiliation, or other means); and (2) existing CBA with the previous bargaining agent [Benguet Consolidated v. BCI Employees and Workers Union-PAFLU, G.R. No. L-24711 (1998)] Effects: (1) new bargaining agent cannot revoke and must respect the existing CBA; and (2) it may negotiate with management to shorten the existing CBA’s lifetime
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(1) To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes. [Art. 218-A(a)] (2) It is the policy of the State to promote and emphasize the primacy of free and responsible exercise of the right to selforganization and collective bargaining, either through single enterprise level negotiations or through the creation of a mechanism by which different employers and recognized certified labor unions in their establishments bargain collectively. [Book V, Rule XVI, §1] (3) To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaining, 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 this Code [Art. 218-B] Definition, Nature, and Purpose Collective bargaining which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the
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employer, with the peculiar and unique intention of not merely promoting industrial peace at PAL, but preventing the latter’s closure. [...] It was PALEA, as the exclusive bargaining agent of PALs ground employees, that voluntarily entered into the CBA with PAL. It was also PALEA that voluntarily opted for the 10-year suspension of the CBA. Either case was the union’s exercise of its right to collective bargaining. The right to free collective bargaining, after all, includes the right to suspend it. [Rivera v. Espiritu, 2000] D.2.A. DUTY TO BARGAIN COLLECTIVELY I. IN GENERAL Definition Art. 263. Meaning of duty to bargain collectively. — The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if
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the majority of the employees [...], hence, it could not demand from [the employer] the right to bargain collectively in their behalf. [Phil. Diamond Hotel and Resort Inc v Manila Diamond Hotel and Employees Union, GR No. 158075 (2006)] Meaning of Bargaining in Good Faith [T]here is no per se test of good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts. [Union of Filipro Employees v. Nestle Philippines, Inc., G.R. Nos. 158930-31 (2008)][T]he failure to reach an agreement after negotiations continued for a reasonable period does not establish a lack of good faith. The laws invite and contemplate a collective bargaining contract, but they do not compel one. [Tabangao Shell Refinery Employees Association vs. Pilipinas Shell Petroleum Corporation, G.R. No. 170007 (2014)] Duty to Bargain does not include: (1) Any legal duty [on the employer] to initiate contract negotiation [Kiok Loy v NLRC, G.R. No. L-54334 (1986)] (2) The obligation to reach an agreement: While the law makes it an obligation for the
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III. WHEN THERE IS A CBA
218-A(a)]
General Rule
Exception
The duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. [Art. 264]
Labor Code Procedure – In absence of a private agreement, the collective bargaining procedure under Art. 261 shall be followed.
● Substitutionary doctrine - Even during the effectivity of a collective bargaining agreement executed between employer and employees [through] their agent, the employees can change said agent but the contract continues to bind then up to its expiration date. They may bargain however for the shortening of said expiration date.[EliscoElirol Labor Union v Noriel, G.R. No. L-41955 (1977)].
Exception At least sixty (60) days prior to the expiration of the collective bargaining agreement, either party can serve a written notice to terminate or modify the agreement [Art. 264]. ‘Note: During this 60-day period, a verified petition questioning the majority status of the incumbent bargaining agent may also be filed [Art. 268].
i. Written notice and statement of proposals. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. ii. Reply. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. iii. Conference. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. iv. Board intervention and conciliation. If the dispute is not settled, the [NCMB] shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The [NCMB] shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may
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deemed to be an act of unfair labor practice. [National Union of Restaurant Workers vs. CIR, G.R. No. L-20044 (1964)] Failure to Reply as Indicia of Bad Faith [The employer’s] refusal to make a counterproposal [...] is an indication of its bad faith. Where the employer did not even bother to submit an answer to the bargaining proposals of the union, there is a clear evasion of the duty to bargain collectively, [...] making it liable for unfair labor practice. [General Milling Corp. v. CA, G.R. No. 146728 (2004)]
Bargainable Issues (1)
Mandatory Bargainable Issues
a.
Wages
b.
Hours of work
c. All other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement [Art. 263] Examples: i.
Vacations and holidays
ii.
Bonuses
iii.
Seniority, Transfer, and Layoffs
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v. NLRC, G.R. No. 117878 (1996)] Test for Mandatory Bargainable Issues The NEXUS Between the Nature of Employment and the Nature of the Demand: For “other terms and conditions of employment” to become a mandatory bargainable issue, they must have a connection between the proposal and the nature of the work. In order for a matter to be subject to mandatory collective bargaining, it must materially or significantly affect the terms and conditions of employment. Whether the agreement concerns a mandatory subject of bargaining depends not on its form, but on its practical effect. [Azucena] Importance of Determining the character of the Bargaining Issue The question as to what are mandatory and what are merely permissive subjects of collective bargaining is of significance on the right of a party to insist on his position to the point of stalemate. A party may refuse to enter into a collective bargaining contract unless it includes a desired provision as to a matter which is a mandatory subject of
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thereof and the proponent has no claim whatsoever to its implementation. [...] The Minutes [only] reflects the proceedings and discussions undertaken in the process of bargaining for worker benefits in the same way that the minutes of court proceedings show what transpired therein. At the negotiations, it is but natural for both management and labor to adopt positions or make demands and offer proposals and counter-proposals. However, nothing is considered final until the parties have reached an agreement. [Samahang Manggagawa sa Top Form v. NLRC, G.R. No. 113856 (1998)]] Suspension of Bargaining Negotiations In order to allow the employer to validly suspend the bargaining process there must be a valid petition for certification election raising a legitimate representation issue. Hence, the[Colegio de San Juan de Letran v. Association of Employees, 2000]
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privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them. [Art. 233] Rationale i. a person is entitled to ‘buy his or her peace’ without danger of being prejudiced in case his or her efforts fail ii. offers for compromise are irrelevant because they are not intended as admissions by the parties making them [Pentagon Steel v. CA, 2009] D.2.B. COLLECTIVE AGREEMENT (CBA)
BARGAINING
GENERAL CONCEPTS Definition
Bargaining Deadlock A “deadlock” is defined as the “counteraction of things producing entire stoppage: a state of inaction or of neutralization caused by the opposition of persons or of factions: a
Collective Bargaining Agreement or “CBA” refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit. [§1(k), Rule
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and workers' participation in policy and decision-making, [1st par.] — The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. . When a collective bargaining contract is entered into by the union representing the employees and the employer, even the nonmember employees are entitled to the benefits of the contract. To accord its benefits only to members of the union without any valid reason would constitute undue discrimination against non-members. [New Pacific Timber and Supply v. NLRC, G.R. No. 124224 (2000)] Contract Interpretation Art. 1702, Civil Code. 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. A CBA, as a labor contract within the contemplation of Article 1700 of the Civil Code of the Philippines which governs the relations
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D.2.b.1.MANDATORY PROVISIONS OF CBA (1)
Grievance Procedure[Art. 273]
The parties to a Collective Bargaining Agreement shall: 1) Include provisions that will ensure the mutual observance of its terms and conditions. 2) Establish a machinery for the adjustment and resolution of grievances arising from: a) The interpretation or implementation of their CBA; and b) those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall be automatically referred to voluntary arbitration prescribed in the CBA. [Art. 273] [A] grievance procedure is part of the continuous process of collective bargaining. It is intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace. [Master Iron Labor Union v. NLRC, G.R. No. 92009 (1993)]
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A “voluntary arbitrator” is any person accredited by the [National Conciliation and Mediation Board] as such, or any person named or designated in the Collective Bargaining Agreement by the parties to act as their Voluntary Arbitrator, or one chosen, with or without the assistance of the National Conciliation and Mediation Board, pursuant to a selection procedure agreed upon in the Collective Bargaining Agreement, or any official that may be authorized by the Secretary of Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement of the parties to a labor dispute [Art. 219n)] Automatic Referral If Grievance Machinery Fails All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the CBA. [Art. 273] Provision for Voluntary Arbitration in the CBA (1)
Parties to a CBA shall:
a. Name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, OR b.
Include in the agreement a procedure
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their intention to refer their differences to arbitration first before taking court action, this constitutes a condition precedent, such that where a suit has been instituted prematurely, the court shall suspend the same and the parties shall be directed forthwith to proceed to arbitration. [...] A court action may likewise be proper where the arbitrator has not been selected by the parties. [Chung Fu Industries v. CA, G.R. No. 96283 (1992)] Arbitrable Issues 1. interpretation or implementation of the CBA [Art. 274] 2. interpretation or enforcement company personnel policies [Art. 274]
of
3. violations of a CBAwhich are not gross in character (gross being flagrant and/or malicious refusal to comply with the economic provisions of [the CBA]) [Art. 274] 4. all other labor disputes including ULP and bargaining deadlock, if the parties agree [Art. 275] 5. Wage distortions arising from application of any wage orders in organized establishments [Art. 124] 6. Unresolved grievances arising from the interpretation and implementation of the productivity incentives program under RA
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upon agreement by the parties. (3) Unless the parties agree otherwise, it shall be mandatory for voluntary arbitrator or panel of voluntary arbitrators to render an award or decision within twenty (20) calendar days from the date of submission for resolution [Art. 276] Powers of voluntary arbitration proceeding (1)
hold hearings
(2)
receive evidence
arbitrators
during
(3) take whatever action is necessary to resolve the issue or issues subject of dispute, including efforts to effect a voluntary settlement between parties (4) determine attendance of any third parties (5)
determine exclusion of any witness
(6) issue writ of execution for sheriff of NLRC or regular courts to execute the final decision, order, or award [Art. 276] Finality of the final decision, Order, or Award after ten (10) calendar days from receipt of the copy of the award or decision by the parties [Art. 276]
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[PIDLTRANCO Service Enterprises Inc v PWU – AGLO, GR No. 180962 (2014)] The rule, therefore, is that a Voluntary Arbitrator’s award or decision shall be appealed before the Court of Appeals within 10 days from receipt of the award or decision. Should the aggrieved party choose to file a motion for reconsideration with the Voluntary Arbitrator, the motion must be filed within the same 10-day period since a motion for reconsideration is filed "within the period for taking an appeal." [PHILEC v Court of Appeals, GR No. 168612 (2014)] Appeal While there is an express mode of appeal from the decision of a labor arbiter, Republic Act No. 6715 is silent with respect to an appeal from the decision of a voluntary arbitrator. [...] Assuming arguendo that the voluntary arbitrator or the panel of voluntary arbitrators may not strictly be considered as a quasi judicial agency, board or commission, still both he and the panel are comprehended within the concept of a "quasi-judicial instrumentality." A fortiori, the decision or award of the voluntary arbitrator or panel of arbitrators should likewise be appealable to the Court of Appeals. [Luzon Development Bank v. Assoc. of Luzon Dev’t Employees, G.R.
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(1)
nature of the case;
OF CBA
(2)
time consumed in hearing the case;
Substandard CBA
(3) professional standing of the voluntary arbitrator; (4)
capacity to pay of the parties;
(5) fees provided for in the [...] Rules of Court[Art. 277] (3)
No Strike-No Lockout Clause
A "no strike, no lock-out" provision in the [CBA] is a valid stipulation although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on unfair labor practice. [Panay Electric Co. v. NLRC, G.R. No. 102672 (1995); Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos, G.R. No. 113907 (2000)]
(4)
Labor Management Council
Any provision of law to the contrary
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A CBA that falls below the minimum standards required by law is prohibited. Nonetheless, RA 9481 removed substandard CBAs as a ground for the cancellation of registration of union registration. Note: A substandard CBA cannot bar a petition for certification election under the contract-bar rule. [Prof. Battad] Ratification Within thirty (30) days from the execution of a collective bargaining agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. [Art. 237; Book V, Rule XVII, §2 (c)] [T]he posting of copies of the collective bargaining agreement is the responsibility of the employer. The fact that there were "no impartial members of the unit" is immaterial. The purpose of the requirement is precisely to inform the employees in the bargaining unit of
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certain employees. [Planters Products Inc. v. National Labor Relations Commission, G.R. No. 78524 (1989)] Note: Ratification of the CBA by the employees in the bargaining unit is not needed when the CBA is a product of an arbitral award as a result of voluntary arbitration under Art. 275 or from the secretary’s assumption of jurisdiction or certification under Art. 278 (g). To require ratification of the CBA in case of arbitral awards will be inconsistent with the nature of arbitration, which entails submission to the judgment of an impartial third person. The settlement device would be circuitous and the very nature of arbitration would be contradicted if the arbitrator’s decision, would be dependent on the employees’ acceptance. Registration
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Exceptions: (1)
authorized by Secretary of Labor
(2) when it is at issue in any judicial litigation (3) public interest or national security requires [Art. 237] Effect of Unregistered CBA An unregistered CBA is binding upon the parties but cannot serve as a bar to a petition for certification election under the contractbar rule. §3, Rule VIII, Book V states: A petition for certification election may be filed anytime, except: [...] (d) when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 [renumbered 237] of the Labor Code.
Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration […]. [Art. 237] If it is the first ever CBA, the effectivity date is whatever date the parties agree on. Requirements for Registration
If it is renegotiated CBA, the retroactivity of the
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and effect the terms and conditions of the existing agreement during the 60-day period and/or
The last sentence of Article 264, which provides for automatic renewal [upon expiry], and does not include representational aspect of the CBA. A [CBA which continues to take effect beyond its expiration date] cannot constitute a bar to a filing of petition for certification election. When there is a representational issue, the status quo provision insofar as the need to await the creation of a new agreement Otherwise, it will create an absurd situation where the union members will be forced to maintain membership by virtue of the union security clause existing under the CBA and, thereafter, support another union when filing a petition for certification election. If we apply it, there will always be an issue of disloyalty whenever the employees exercise their right to self-organization. The holding of a certification election is a statutory policy that should not be circumvented, or compromised. [PICOP Resources, Inc. v. Taneca et al., G.R. No. 160828 (2010)]
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Court should help labor authorities in providing workers immediate benefits, without being hampered by arbitration or litigation processes that prove to be not only nerve-wracking but financially burdensome in the long run. [LMG Chemicals v. Secretary of Labor, G.R. No. 127422 (2001)]
Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. [...] All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. [...] [Art. 265]
3 years.
5 years for representational or political issues; cannot be renegotiated to extend beyond 5 years. [FVC Labor Union-PTGWO v. SANAMAFVC-SIGLO, G.R. No. 176249 (2009)]
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employ the employees of the seller of such assets or enterprise, the parties are liable to the employees if the transaction between the parties is colored or clothed with bad faith. [Sundowner Development Corporation v. Drilon, G.R. No. 82341 (1989)] Where the change of ownership is in bad faith or is used to defeat the rights of labor, the successor-employer is deemed to have absorbed the employees and is held liable for the transgressions of his or her predecessor [Philippine Airlines, Inc. v. NLRC, G.R. No. 125792, (1998)] An innocent transferee of a business establishment has no liability to the employees of the transferor to continue employing them. Nor is the transferee liable for past unfair labor practices of the previous owner. When the liability therefore is assumed by the new employer under the contract of sale, or when liability arises because of the new owner's participation in thwarting or defeating the rights of the employees. The most that the transferee may do, for reasons of public policy and social justice, is to give preference to the qualified separated employees in the filling of vacancies
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organization. It is a solemn pronouncement of a policy that while an employee is given the right to join a labor organization, such right should only be asserted in a manner that will not spell the destruction of the same organization. [Tanduay Distillery Labor Union v. NLRC , G.R. No. 75037 (1987)] [Employees], although entitled to disaffiliation from their union to form a new organization of their own, must, however, suffer the consequences of their separation from the union under the security clause of the CBA. [Villar v. Inciong, G.R. No. L-50283-84 (1983)].
- Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement.
The law has allowed stipulations for 'union shop' and 'closed shop' as means of
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Flour Mills Employees v. Liberty Flour Mills, G.R. No. 58768-70 (1989)] [BPI v. BPI Employees Union-Davao Chapter , G.R. No. 164301 (2010)] All employees in the bargaining unit covered by the union security clause are subject to its terms (1) Employees who are already members of another union at the time of the signing of the collective bargaining agreement may not be compelled by any union security clause to join any union. [Art. 254 (e)] (2) Employees already in service at the time the closed shop union security clause took effect ●
A closed shop provision in a CBA is not to be given a retroactive effect as to preclude its being applied to employees already in service. [Guijarno v. CIR, G.R. No. L-28791-93 (1973)]
(3) Any employee who at the time the union security clause took effect is a bona fide member of religious
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An agreement where only union members may be employed and, for the duration of the agreement, remains a member in good standing of a union. A closed shop may be defined as an enterprise in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part. [General Milling Corporation (GMC) v. Casio, G.R. No. 149552 (2010)] The closed shop provision is the most prized achievement of unionism. However it can also be a potent weapon wielded by the union against the workers whom the union is supposed to protect in the first place. Hence, any doubt as to the existence of a closed shop provision in the CBA will be resolved in favor of the nonexistence of the closed shop provision. [Azucena]
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There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment [General Milling Corporation (GMC) v. Casio, G.R. No. 149552 (2010)] Non-members may be hired, but to retain employment, they must become union members after a certain period. The requirement applies to present and future employees. [Azucena]
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against other unions which may want to claim majority representation. [ Alabang Country Club v. NLRC, G.R. No. 170287 (2008)]
In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: 1)
The union security clause is applicable
2) The union is requesting for the enforcement of the union security provision in the CBA Employees who are not union members at the time of signing the contract need not join the union, but all workers hired thereafter must join. [Azucena]
Employees belonging to an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union
3) There is sufficient evidence to support the union’s decision to expel the employee from the union. [ Alabang Country Club v. NLRC, G.R. No. 170287 (2008)]
While company may validly dismiss the employees expelled under the union security clause upon the recommendation by the union, this dismissal should not be done hastily and summarily thereby eroding the employees'
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Where the employer dismissed his employees in the belief in good faith that such dismissal was required by the [union security provision] of the collective bargaining agreement with the union, he may not be ordered to pay back compensations to such employees although their dismissal is found to be illegal. [Confederated Sons of Labor v. Anakan Lumber Co., G.R. No. L-12503 (1960)] As dictated by fairness, […] the union shall be liable to pay their backwages. This is because management would not have taken the action it did had it not been for the insistence of the labor union seeking to give effect to its interpretation of a closed shop provision. [Guijarno v. CIR, G.R. No. L-28791-93 (1973)]
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, Provided, such inquiry shall not be conducted during (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. [Art. 289]
Both employers and labor organizations can commit acts of unfair labor practices in collective bargaining. However, the labor organization must be the representative of the employees before any act it does may be considered as a violation of the duty to bargain collectively. [Art. 259 (g) and Art. 260 (c)]
(1) Failure or Refusal to meet and convene
A check-off is a process or device whereby the employer, on agreement with the Union, recognized as the proper bargaining representative, or on prior authorization from the employees, deducts union dues or agency fees from the latter’s wages and remits them directly to the Union. [Marino v. Gamilla, G.R. No. 149763 (2009)]
(2) Evading the mandatory subjects of bargaining (3) Bargaining in bad faith (4) Gross violation of the CBA
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and no ad interim significant change has taken place in the unit “That there is a pending cancellation proceedings against the union is not a bar to set in motion the mechanics of collective bargaining. […] Unless [the union’s] certificate of registration and status as the certified bargaining agent is revoked, [the employer], by express provision of the law, is duty bound to collectively bargain with the Union.” [Capitol Medical Center v. Trajano, G.R. No. 155690 (2005)]
By admitting that the closure [of the business] was due to irreconcilable differences between the Union and the school management, […] SJCI in effect admitted that it wanted to end the bargaining deadlock and eliminate the problem dealing with the demands of the union. [St. John Colleges Inc. v. St. John Academy Faculty and Employees Union, G.R. No. 167892 (2006)] The school is guilty of unfair labor practice when it failed to make a timely reply to the proposals of the union more than one month after the same were submitted by the union. In explaining its failure to reply, the school
(6) Refusal to bargain because the other party is making unlawful bargaining demands
The refusal to negotiate a mandatory subject of bargaining is an unfair labor practice although either party has every desire to reach agreement and earnestly and in all good faith bargains to that end. […] However, the duty to bargain does not obligate the parties to make concessions or yield a position fairly held. [Azucena] The duty to bargain is limited to mandatory bargaining subjects; as to other matters, he is free to bargain or not to bargain. Over mandatory subjects, a party may insist on bargaining, even to the point of deadlock, and his insistence will not be construed as bargaining in bad faith. Over a non-mandatory subject, on the other hand, a party may not insist on bargaining to the point of impasse, otherwise his insistence can be construed as bargaining in bad faith.
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Surface bargaining is defined as "going through the motions of negotiating," without any real intent to reach an agreement. [Roberts Dictionary of Industrial Relations as cited in Standard Bank Chartered Employees Union v. Confesor, G.R. No. 114974 (2004)] It violates the Act's requirement that parties negotiate in "good faith." It is prohibited because, as one commentator explained: The bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition […] As long as there are unions weak enough to be talked to death, there will be employers who are tempted to engage in the forms of collective bargaining without the substance. [K-MART Corporation v. NLRB, 1980 626 F.2d 704
It is an unfair labor practice for an employer operating under a CBA to negotiate with his employees individually. That constitutes interference because the company is still under obligation to bargain with the union as the bargaining representative.
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comply with the economic provisions of such agreement.
D.UNFAIR LABOR PRACTICE (ULP) D.1. NATURE, ASPECTS
Unfair labor practice refers to acts that violate the workers’ right to organize. The prohibited acts are . Without that element, the acts, no matter how unfair, are not unfair labor practices. The only exception is Art. 259 (f) [i.e. to dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code]. [Philcom Employees Union v. Phil. Global, G.R. No. 144315 (2006)]
(1) inimical to the legitimate interests 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 (2) disrupt industrial peace (3) hinder the promotion of healthy and
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- An unfair labor practice may be committed only within the context of an employer-employee relationship [ American President Lines v. Clave, G.R. No. L-51641 (1982)] : to require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs. [Art 259 (b)]
The eventual signing of the CBA does not operate to estop the parties from raising unfair labor practice charges against each other. [Standard Chartered Bank Union v. Confesor , G.R. No. 114974 (2004)]
The Labor Code does not undertake the impossible task of specifying in precise and unmistakable language each incident which constitutes an unfair labor practice. Rather, it leaves to the court the work of applying the law's general prohibitory language in light of
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Exception: when interrogation or restrains employees' right to selforganization. [Phil. Steam Navigation Co. v. Phil. Marine Officer’s Guild, G.R. Nos. L-20667 and 20669 (1965)]
The acts of a company which subjects a union to vilification and its participation in soliciting membership for a competing union are also acts constituting a ULP. [Phil. Steam Navigation Co. v. Phil. Marine Officer’s Guild, G.R. Nos. L-20667 and 20669 (1965)] An employer may not send letters containing promises or benefits, nor of threats of obtaining replacements to individual workers while the employees are on strike due to a bargaining deadlock. This is tantamount to interference and is not protected by the Constitution as free speech. [Insular Life Assurance Co. Employees Assn. v. Insular Life Assurance Co. Ltd, G.R. No. L-25291 (1971)]
Espionage and/or surveillance by the employer of union activities are instances of interference, restraint or coercion of employees in connection with their right to
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(3) a promise by the employee that upon joining a labor organization, he will quit his employment
: contracting out is not a ULP, but is covered by the employer’s management prerogative. : (1) contracted-out services or functions are performed by union members AND (2) contracting out will interfere with, restrain, or coerce employees in the exercise of their right to selforganization.
"Company union" means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. [Art. 219(i)] The employer commits ULP if it initiates, dominates, or otherwise interferes with the formation or administration of any labor organization
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Those employees who are already members of another union at the time of the signing of the collective bargaining agreement.
It is an act of ULP by an employer to dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code.
Note: This is broader than the prohibition under Art. 118 because Art. 259 (f) covers testimony under the whole Code, while Art. 118 only covers testimony under Book I: PreEmployment, Title II: Wages
Duty to bargain collectively is a continuous process, non-compliance of which constitutes ULP. Collective bargaining does not end with the execution of an agreement. Being a continuous process, the duty to bargain necessarily impose on the parties the obligation to live up to the terms of such a
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Note: Refer to previous topic B.6 on ULP in Collective Bargaining Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable. [IRR] The list in Art. 259 is not exhaustive. Other acts which are analogous to those enumerated can be ULPs.
The alleged violation of the CBA, even assuming it was malicious and flagrant, is , thus not an Unfair Labor Practice. [BPI Employees Union-Davao FUBU v. BPI, G.R. No. 174912 (2013)] An employer cannot be considered to have committed a gross and economic violation of the CBA when it, in good faith, withheld union dues and death benefits from the union upon written request of the union members in light of the conflict between the members and the union officers and instead deposited such amount to the DOLE. [ Arellano University Employees and Workers Union vs. Court of Appeals, G.R. 139940 (2006)]
The practice of the labor organization to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver money or other things of value from the employer in return for services which are not performed or are not to be performed, including the demand for a fee for union negotiations.
See counterpart in ULP (sweetheart contracts).
by
employers
Violations of collective bargaining agreements, except flagrant and/or malicious , shall not be considered unfair labor practice [Art. 274] and shall not be strikeable [§5, Rule XXII, Book V].
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picket and of employers to lockout, , shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.
A concerted activity is one undertaken by two or more employees to improve their terms and conditions of work.
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(a) Strike (b) Picketing (c) Boycott (d) Slow down
(e) Lockout
E.1. BY LABOR ORGANIZATION
— It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to selforganization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or
A strike is any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. [Art. 219(o)] includes any 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 or not the disputants stand in the proximate relation of employers and employees. [Solidbank Corp. v. EU Gamier
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Although during a strike the worker renders no work or service and receives no compensation, yet his relationship as an employee with his employer is not severed or dissolved [Elizalde Rope Factory, Inc. v. SSS, G.R. No. L-15163 (1962)]
Striking employees are not entitled to the payment of wages for unworked days during the period of the strike pursuant to the “no work-no pay” principle. If there is no work performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed or otherwise illegally prevented from working. For this exception to apply, it is required that the strike be legal. [Visayas Community Medical Center vs Yballe, G.R. No. 196156 (2014)]
When strikers abandon the strike and apply for
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recognized by law, or if for a valid purpose, conducted through means not sanctioned by law.
(1)
cannot be terminated for mere participation in an illegal strike; proof must be adduced showing that he or she committed illegal acts during the strike.
(2)
– may be terminated, not only when he actually commits an illegal act during a strike, but also if he knowingly participates in an illegal strike [Phimco Industries, Inc. v. PILA, G.R. No. 170830 (2010)]
(1)
– one staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant [Consolidated Labor Association of the Phil. v. Marsman and Company, G.R. No. L-17038 (1964)]
(2)
– called against a company's unfair labor practice to force the employer
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over possession of the property of such business to cease production and to refuse access to owners. IV.
V.
– one in which the striking workers have no demands of their own, but strike to make common cause with other strikers in other establishments. – one in which workers collectively abandon or boycott regular work causing temporary stoppage of work
It is possible for a strike to change its character from an economic to a ULP strike. In the instant case, initially, the strike staged by the Union was meant to compel the Company to grant it certain economic benefits set forth in its proposal for collective bargaining. However, the strike changed its character from the t ime the Company refused to reinstate complainants because of their union activities after it had offered to admit all the strikers and in fact did readmit the others. It was then converted into an unfair labor practice strike. [Consolidated Labor Association of the Phil. v. Marsman and Company , G.R. No. L-17038 (1964)]
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or more persons to observe and attempt to observe. The purpose of pickets is said to be a means of peaceable persuasion. [Sta. Rosa Coca-Cola Plant Employees Union v. CocaCola Bottlers Philippines, Inc., G.R. Nos. 164302-03 (2007)] Peaceful Picketing is the right of workers during strikes consisting of marching to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and display of signs, placards and banners intended to inform the public about the dispute. [Guidelines Governing Labor Relations, October 19, 1987] [NCMB Manual, §1]
Lockout is the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. [Art. 219 (p)]
When the employer engaged in illegal lockout and the employee engaged in illegal strike, both parties are in pari delicto and such situation warrants the restoration of the status quo ante and bringing the parties back to the respective positions before the illegal strike and illegal lockout. [Philippines Inter-Fashion
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A valid strike must have a lawful ground and must conform with the procedural requirements set by law.
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official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, 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. [Art. 279(d)]
A strike or lockout may be declared in cases of: (1) Bargaining deadlocks (2) ULP [Art. 278(c)]
[Art. 278] (1) Effort to bargain (for bargaining deadlock strikes) Only gross violations of the economic provisions of the CBA are treated as ULP. [BPI Employees Union-Davao FUBU v. BPI, G.R. No. 174912 (2013)]
(2) Filing and service of notice of strike (3) Observance of cooling-off period i. 15 days for ULP
(G)ross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. [ Art. 274]
(1) Ground is an inter-union or intra-union dispute (2) Non-compliance with the procedural requirements
1.
No cooling-off period when the ULP can be considered union busting (dismissal of duly elected union officers from employment) ii. 30 days for bargaining deadlock (4) Notice of strike vote meeting to NCMB within 24 hours before the strike vote [§ 10, Rule XXII, Book V] (5) Strike vote (6)
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The Implementing Rules use the words as far as practicable. In this case, attaching the counter-proposal of the company to the notice of strike of the union was not practicable. It was absurd to expect the union to produce the company’s counter-proposal which it did not have. One cannot give what one does not have. Indeed, compliance with the requirement was impossible because no counter-proposal existed at the time the union filed a notice of strike. [Club Filipino, Inc. vs. Bautista, 2009]
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employer belongs 3) Number of union members and of workers in the bargaining unit 4) Such other relevant data as may facilitate the settlement of the dispute.
1)
Statement of unresolved issues in the bargaining negotiations
2) Written proposals of the union 3) Counter-proposals of the employer Art. 278(c) [T]he duly certified or recognized bargaining agent may file a notice of strike […] with the Department
4) Proof of a request for conference to settle the differences. [§4, Rule XXII, Book V] 1)
. […]
Statement of acts complained of
2) Efforts taken to resolve the dispute amicably. [§4, Rule XXII, Book V]
Art. 278(c) [I]n cases of unfair labor practice, the period to file notice of strike shall be and in the
in behalf of its members.
1.
Upon receipt of a valid notice of strike or lockout, the NCMB, through its Conciliator-Mediators, shall call the parties to a conference the soonest possible time in order to actively assist
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During the cooling-off period, it shall be the duty of the Ministry [now DOLE] to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout.
The purpose of the cooling-off period is to provide an opportunity for mediation and conciliation. [National Federation of Sugar Workers v. Ovejera, G.R. No. L-59743 (1982)]
§10, Rule XXII, Book V - In every case, the union or the employer shall furnish the regional branch of the Board the notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings…
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- [T]he Department may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. […]
- [I]n every case, the union or the employer shall furnish the Department the results of the voting 1 or lockout, subject to the cooling-off period herein provided.
The waiting period, on the other hand, is intended to provide opportunity for the members of the union or the management to take the appropriate remedy in case the strike or lockout vote report is false or inaccurate. [National Federation of Sugar Workers v. Ovejera, G.R. No. L-59743 (1982)] The waiting period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. [Lapanday Workers Union v. NLRC , G.R. Nos. 95494-97 (1995)]
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the 7-day period are mutually exclusive. Thus, in the case of Capitol Medical Center v. NLRC [G.R. No. 147080 (2005)] , the Court held that when the strike vote is conducted within the cooling-off period, the 7-day requirement shall be counted from the day following the expiration of the cooling off period. (2)
The cooling-off period and the 7-day requirement may coexist. After all, the purpose of the 7-day requirement is to give time for the DOLE to verify if the projected strike is supported by the majority. There is no reason to add it to the cooling-off period.
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- No employer shall declare a […] lockout without first having bargained collectively in accordance with Title VII of this Book.
[T]he duly certified or recognized bargaining agent may file […] a notice of lockout with the Department at least 30 days before the intended date thereof. […]
E.4 REQUISITES FOR A VALID LOCKOUT
- [N]o employer may declare a lockout on grounds involving inter-union and intra-union disputes.
1)
bargaining deadlock
[I]n cases of unfair labor practice, the period to file notice of strike shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case […] of union busting (dismissal of duly elected union officers from employment), the cooling period shall not apply and the union may take action immediately.
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3) Counter-proposals of the employer 4) Proof of a request for conference to settle the differences.
1)
Statement of acts complained of
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or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken.
2) Efforts taken to resolve the dispute amicably. 1.
Upon receipt of a valid notice of strike or lockout, the NCMB, through its Conciliator-Mediators, shall call the parties to a conference the soonest possible time in order to actively assist them to explore all possibilities for amicable settlement.
2. The Conciliator-Mediator may suggest/offer proposals as an alternative avenue for the resolution of their disagreement/conflict which may not necessarily bind the parties. 3. If conciliation/mediation fails, the parties shall be encouraged to submit their dispute for voluntary arbitration. [§9, Rule XXII, Book V]
- In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided.
See notes under strike.
- Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages.
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legal orders. [Art. 279(d)] 3.
No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares. [Art. 279(e)]
: picketing enjoys constitutional protection as part of freedom of speech and/or expression.
1)
When picketing is coercive rather than persuasive [Security Bank Employees Union v. Security Bank , G.R. No. L28536 (1968)]
2) When picketing is achieved through illegal means [Mortera v. CIR, , G.R. No. L-1340 (1947)] 3) Courts may confine the communication/demonstration to the parties to the labor dispute [PCIB v. Philnabank Employees Association,
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Picketing, peacefully carried out, is not illegal even in the absence of employer-employee relationship, for peaceful picketing is a part of the freedom of speech guaranteed by the Constitution. [De Leon v. National Labor Union, G.R. No. L-7586 (1957)] E.6. ASSUMPTION OF JURISDICTION BY THE DOLE SECRETARY
[Art. 278]: (1) Labor dispute in an industry indispensable to the national interest; and (2) Such dispute is causing or is likely to cause a strike or lockout
1) Assumption of jurisdiction The Secretary of Labor will decide the labor dispute himself/herself. 2) Certification for compulsory arbitration. The Secretary of Labor will certify the labor dispute to the NLRC for
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water supply services such as bottling and refilling stations d. Air traffic control e. Other industries as may be recommended by the National Tripartite Industrial Peace Council (TIPC) [§16, Rule XXII, Book V, as amended by DO 40-H-13]
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of the right against involuntary servitude. [Kaisahan ng Mga Manggagawa sa Kahoy v. Gotamco Sawmills, GR No. L-1573 (1948)]
The assumption and certification orders are executory in character and must be strictly complied with by the parties. [ Allied Banking v. NLRC , G.R. No. 116128 (1996)]
(1) Automatic injunction (2) Return-to-work and admission (3) Immediately executory
- [S]uch assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. […]
It shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to 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.
- [I]f one has already taken place at the time of assumption or certification, all striking or locked out employees shall
In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. [Art.
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A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus, illegal, pursuant to Article 279(a) of the Labor Code. [ Allied Banking v. NLRC , G.R. No. 116128 (1996)] See notes on liabilities of employer, union officers, and ordinary workers under illegal strike.
1)
– workers terminated due to illegal lockout shall be entitled to reinstatement plus full backwages.
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requirements (4) Unlawful means and methods (5) Violation of injunction order (6) No strike/lockout provisions in the CBA [Citing Ludwig Teller in Toyota Motors v. NLRC, G.R. Nos. 158786 & 158787 (2007)]
While the Constitution guarantees the right of government employees to organize, they are not allowed to strike.
2) – deemed to have lost their employment 3) – deemed to have lost their employment. 4)
– deemed to have lost their employment only if they participated in illegal acts.
A legal strike must be based on a bargaining deadlock and/or a ULP act . Intra-union and inter-union disputes are not proper grounds to strike. Good faith may be used as a defense if the strike is held on the basis of an act of ULP by the employer even if it turned out that there was no act of ULP. However, the mandatory procedural requirements cannot be dispensed
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A strike which does not strictly comply with the procedural requirements set by law and the rules is an unlawful/illegal strike. [Sta. Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Philippines, Inc., G.R. Nos. 164302-03 (2007)]
Even if the union acted in good faith in the belief that the company was committing an unfair labor practice, if no notice of strike and a strike vote were conducted, the said strike is illegal. [Grand Boulevard Hotel v. GLOWHRAIN, G.R. No. 153664 (2003)] A strike based on a non-strikeable ground is an illegal strike; a strike grounded on ULP is illegal if no such acts actually exist. Even if no ULP acts are committed by the employer, if the employees believe in good faith that ULP acts exist so as to constitute a valid ground to strike, then the strike held pursuant to such belief may be legal. [NUWHRAIN v. NLRC , G.R. No. 125561 (1998)]
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lawful purposes or ●
obstruct public thoroughfares. [ Association of Independent Unions in the Philippines (AIUP), et. al. v. NLRC , G.R. No. 120505 (1999)]
Even if the strike is valid because its objective or purpose is lawful, the strike may still be declared invalid where the means employed are illegal. [Phil. Diamond Hotel and Resort, Inc. v. Manila Diamond Hotel Employees Union, G.R. No. 158075 (2006)] 1)
Acts of violence and terrorism
2) Destruction of property
(1) A strike otherwise valid, if violent in character, may be placed beyond the pale. (2) Care is to be taken especially where an unfair labor practice is involved, to avoid stamping it with illegality just because it is tainted by such acts. To avoid rendering illusory the recognition of the right to strike,
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unfair labor practices by management that could provoke a strike and its requirement that it be conducted peaceably, it would be, to repeat, unjustified, considering all the facts disclosed, to stamp the strike with illegality. It is enough that individual liability be incurred by those guilty of such acts of violence that call for loss of employee status. Such an approach is reflected in our recent decisions. [Shell Oil Workers Union v. Shell Co. of the Phils, G.R. No. L-28607 (1971)]
be declared to have lost his employment status. [Art. 279(a)]
The Labor Code regulates the exercise of said right by balancing the interests of labor and management in the light of the overarching public interest. Thus, paragraphs (c) and (f) of Article 278mandate the following procedural steps to be followed before a strike may be staged: filing of notice of strike, taking of strike vote, and reporting of the strike vote result to the DOLE. It bears stressing that these requirements are mandatory, meaning, non-compliance therewith makes the strike illegal. The evident intention of the law in requiring the strike notice and strike-vote report is to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy objectives embodied in the law. [Stamford Mark Corp. v. Julian, G.R. No. 145496 (2004)]
Participation by a worker in a lawful strike is not ground for termination of his employment. [Art. 279(a)]
Mere participation in an illegal strike by a union officer is sufficient ground to terminate his employment. In case of a lawful strike, the union officer must commit illegal acts during a strike for him to be terminated. [Article 279(a)]
When the worker participated in illegal acts during the strike. When the strike is or becomes illegal, the workers who participate in it are not deemed to have lost their employment status by express omission in the second sentence of the third paragraph of Art. 279. Only the union officers are deemed to have lost their employment status. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. [Art. 279(a)]
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intention to return to work and were accepted back. […] Truly, it is more logical and reasonable for condonation to apply only to strikers who signified their intention to return and did return to work. The reason is obvious. These strikers took the initiative in normalizing relations with their employer and thus helped promote industrial peace. , […]
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prohibited or unlawful act OR requirement of performance of a particular act in a labor dispute 2. if unrestrained or unperformed, the act will cause substantial and irreparable damage to any party OR render ineffectual any decision in favor of such party 3. complainant has no adequate remedy at law
, because they had not shown any willingness to normalize relations with it. [Philippine Inter-Fashion, Inc. v. NLRC , G.R. No. L-59847 (1982)]
4. public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection [Art. 225(e)]
However, the mere act of entering into a compromise agreement cannot be deemed to be a waiver of the illegality of the strike, unless it such a waiver is clearly shown in the agreement. The court has emphasized that “[for] a waiver to be valid and effective [it] must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him.” [Filcon Manufacturing Corp v. Lakas Manggagawa sa Filcon – Lakas Manggagawa Labor Center , G.R. No. 150166 (2004)]
[Art. 279] (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry [DOLE]. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute
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controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference. (c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. (d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, 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: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order. (e) No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares.
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appears that the inevitable result of its exercise is [1] to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union [2] constitute an invasion of their rights. [Liwayway Publishing v. Permanent Concrete Worker's Union, G.R. No. L-25003 (1981)]
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VIII. Jurisdiction Remedies
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and
A. LABOR ARBITER A.1 JURISDICTION
Except as otherwise provided under the Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide: (1) Unfair labor practices cases;
(1) Money claims arose from ER-EE relations, and (2) Money claims arose from law or contracts other than a CBA ●
Employer-employee relationship is a jurisdictional requisite, absent of which, the NLRC has no jurisdiction to hear and decide the case. [HawaiianPhilippine Company v. Gulmatico, G.R. No. 106231 (1994)]
(2) Termination disputes; (3) If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment;
Regular courts have jurisdiction
(4) Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; (5) Cases arising from any violation of Art. [279] of this Code, including questions involving the legality of strikes and lockouts; (6) Except claims for Employees Compensation, Social Security, Medicare
Voluntary Arbitrator has jurisdiction
The voluntary arbitrator or panel of voluntary
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not there is a claim for reinstatement.
upon motion by the proper party in meritorious cases. 4.
(1) the money claim is not accompanied by a claim for reinstatement (2) the claim does not exceed P5,000
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Cases involving overseas Filipino workers may be filed before the RAB having jurisdiction over the place where the complainant resides or where the principal office of any of the respondents is situated, at the option of the complainant.
PROCEDURE BEFORE LABOR ARBITER
All cases which Labor Arbiters have authority to hear and decide may be filed in the Regional Arbitration Branch (RAB) having jurisdiction over the workplace of the complainant or petitioner ●
●
Workplace - place or locality where the employee is regularly assigned at the time the cause of action arose. It shall include the place where the employee is supposed to report back after a temporary detail, assignment, or travel. In the case of field employees, ambulant or itinerant workers, their workplace is (a) where they are regularly assigned or (b) where they are supposed to regularly receive their
NATURE OF THE PROCEEDING Proceedings before the LA are non-litigious. The Labor Arbiter is not bound by the technical rules of procedure. The Labor Arbiter shall use all reasonable means to ascertain the facts in each speedily and objectively. [Art. 227]
B. NATIONAL LABOR COMMISSION (NLRC)
RELATIONS
B.1 JURISDICTION
(1) Original Jurisdiction: Over petitions for injunction or temporary restraining order under Art. 225(e).
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Labor Arbiter or Regional Director; 2) If the decision, resolution or order was secured through fraud or coercion, including graft and corruption; 3) If made purely on questions of law; and/or 4) If serious errors in the findings of fact are raised which, if not corrected, would cause grave or irreparable injury to the appellant It is clear from the NLRC Rules of Procedure that appeals must be verified and certified against forum-shopping by the parties-ininterest themselves. The purpose of verification is to secure an assurance that the allegations in the pleading are true and correct and have been filed in good faith. [Antonio B. Salenga, et al. v. CA, 2012]
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the
[Rule VI, 2011 NLRC Rules of Procedure] (1) The appeal shall be: ●
Filed within the reglementary period;
●
Verified by the appellant himself in accordance with §4, Rule 7 of the Rules of Court;
●
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;
●
In three (3) legibly typewritten or printed copies; and
●
Accompanied by (a) proof of payment of the required appeal fee; (b) posting of a cash or surety bond as provided in Section 6 of the NLRC Rules; and (c) proof of service upon the other parties.
(2) A mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal.
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Certified labor disputes are cases certified to the Commission for compulsory arbitration under Art. 278(g) of the Labor Code. [§2, The 2011 NLRC Rules and Procedures] Art. 278(g) - When, 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, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order.
Moreover, the Commission is further tasked to act within the earliest time possible and with the end in view
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or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. 3. All cases between the same parties, except where the certification order specifies otherwise the issues submitted for arbitration which are already filed or may be filed, and are relevant to or are proper incidents of the certified case, shall be considered subsumed or absorbed by the certified case, and shall be decided by the appropriate Division of the Commission. 4. The parties to a certified case, under pain of contempt, shall inform their counsels and the Division concerned of all cases pending with the Regional Arbitration Branches and the Voluntary Arbitrators relative or incident to the certified case before it. 5. When a certified labor dispute involves a business entity with several workplaces located in different regions, the Division having territorial jurisdiction over the principal office of the company shall acquire jurisdiction to decide such labor dispute; unless the certification order
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C.1. JURISDICTION
The Secretary's assumption and certification orders being executory in character are to be strictly complied with by the parties even during the pendency of a petition questioning their validity for this extraordinary authority given by law to the Secretary of Labor is "aimed at arriving at a peaceful and speedy solution to labor disputes, without jeopardizing national interests." [Union of Filipino Employees v. NLRC, G.R. No. 91025 (1990)]
(a) When there is no need to conduct a clarificatory hearing, the Commission shall resolve all certified cases within 30 calendar days from receipt by the assigned Commissioner of the complete records, which shall include the position papers of the parties and the order of the SOLE denying the motion for reconsideration of the certification order, if any. (b) Where a clarificatory hearing is needed, the Commission shall, within 5 calendar days from receipt of the records, issue a notice to be served on the parties through
- The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor and Employment shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all interunion and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces whether agricultural or nonagricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) calendar days to act on labor cases before it, subject to extension by agreement of the parties.
Decisions of the BLR through its original jurisdiction are appealable to the Secretary of Labor and Employment [§15, Rule XI, Book V].
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parties find it more expedient to fully ventilate their respective positions without running around with legal technicalities and, in the course thereof, afford them wider latitude of possible approaches to the problem. D.1. CONCILIATION VS. MEDIATION
A mild form of intervention by a neutral third party, the Conciliator-Mediator, relying on his persuasive expertise, takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tries to keep things calm and forward-looking in a tense situation.
A mild intervention by a neutral third party, the Conciliator-Mediator, wherein the CM advises the parties or offers solutions or alternatives to the problems with the end in view of assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute.
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E.1. RECOVERY/ADJUDICATORY POWER
—Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employeremployee relations: Provided, That such complaint does not include a claim for reinstatement: Provided, further, That the aggregate money claims of each employee or househelper do not exceed five thousand pesos (P5,000). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any
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including legal interest, found owing to any employee or househelper under this Code.
NOTE: See RA 10361 (Kasambahay Law) on settlement of disputes.
Sec. 37, RA 10361. Mechanism for Settlement of Disputes. – All labor-related disputes shall be elevated to the without prejudice to the filing of a civil or criminal action in appropriate cases. The DOLE Regional Office shall exhaust all conciliation and mediation efforts before a decision shall be rendered. Ordinary crimes or offenses committed under the Revised Penal Code and other special penal laws by either party shall be filed with the regular courts.
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standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection.
- The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title.
F. DOLE SECRETARY F.1 VISITORIAL POWERS
AND
ENFORCEMENT
The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor
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suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in the implementation of a mass lay-off.
When in his opinion, there exist a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the SOLE may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration.
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G. VOLUNTARY ARBITRATOR G.1. JURISDICTION
is any question by either the ER or the union regarding the interpretation or application of the CBA or company personnel policies or any claim by either party that the other party is violating any provisions of the CBA or company personnel policies. It is a complaint or dissatisfaction arising from the interpretation or implementation of the CBA and those arising from interpretation or enforcement of personnel policies. It refers to the mechanism for the adjustment and resolution of grievances. It is part of the continuing process of collective bargaining.
a. Orders issued by the duly authorized representative of the SOLE under Art. 128 may be appealed to the latter. b. Denial of application for union registration or cancellation of union registration originally rendered by the BLR may be appealed to the SOLE (if originally
The VA or panel of VAs shall have original and exclusive jurisdiction to hear and decide all unresolved grievances. Violations of a CBA, except those which are
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The VA or panel of VAs, upon agreement of the parties, shall also hear and decide all other labor disputes including ULP and bargaining deadlocks.
Even if the specific issue brought before the arbitrators merely mentioned the question of “whether an employee was discharged for just cause,” they could reasonably assume that their powers extended beyond the determination thereof to include the power to reinstate the employee or to grant back wages. In the same vein, if the specific issue brought before the arbitrators referred to the date of regularization of the employee, law and jurisprudence gave them enough leeway as well as adequate prerogative to determine the entitlement of the employees to higher benefits in accordance with the finding of regularization. [Manila Pavilion Hotel, etc. vs. Henry Delada, G.R. No. 189947 (2011)]
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It shall be final and executory after 10 calendar days from the receipt of the copy of the award or decision by the parties. NOTE: See Page 39 on availability of motion for reconsideration.
The VA or panel of VAs, upon agreement of the parties, shall also hear and decide all other labor disputes including ULP and bargaining deadlocks. Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the Voluntary Arbitrator or panel of Voluntary Arbitrators, for any reason, may issue a writ of execution requiring either the sheriff of the Commission or regular courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order or award. [Art. 276]
[Omnibus Rules, Book V, Rule XI] G.2. REMEDIES
All parties to the dispute shall be entitled to
The decision of a Voluntary Arbitrator or panel of Voluntary Arbitrators is appealable by ordinary appeal under Rule 43 of the Rules of
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proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.
When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
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enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.
I. SUPREME COURT [A]ll references in the amended Section 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should hence forth be initially filed in the Court of Appeals in as the appropriate forum for the relief desired. [St. Martin Funeral Home vs. NLRC, 1998]
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special civil action of certiorari. If the aggrieved party fails to do so within the reglementary period, and the decision accordingly becomes final and executory, he cannot avail himself of the writ of certiorari, his predicament being the effect of his deliberate inaction. [Tirazona v Phil EDS Techno-Service Inc, 2009]
J. PRESCRIPTION OF ACTIONS No claim for compensation shall be given due course unless said claim is filed with the System [SSS or GSIS, as the case may be] within three (3) years from the time the cause of action accrued. [As amended by Section 5, Presidential Decree No. 1921]
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the general law on prescription applies. Article 1150 of the Civil Code provides that: . The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought. The day the action may be brought is the day a claim started as a legal possibility. In the present case, the day came when petitioner learned of Asiakonstrukt’s deduction from his salary of the amount of advances he had received but had, by his claim, been settled, the same having been reflected in his payslips, hence, it is assumed that he learned of it at the time he received his monthly paychecks. [Anabe v. Asian Const, et al., 2009] J.2. ILLEGAL DISMISSAL
J.1. MONEY CLAIMS
. – All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred.
In illegal dismissal cases, the employee concerned is given a period of four years from the time of his dismissal within which to institute a complaint. This is based on Article 1146 of the New Civil Code which states that actions based upon an injury to the rights of the plaintiff must be brought within four years. [Victory Liner, Inc. v. Race, 2007]
All money claims accruing prior to the effectivity of this Code shall be filed with the
. The following actions must be instituted within four years:
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one (1) year from accrual of such unfair labor practice; otherwise, they shall be forever barred.
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Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years.
J.5. ILLEGAL RECRUITMENT
[…] No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. [As amended by Batas Pambansa Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21, 1989]
J.4. OFFENSES PENALIZED BY THE LABOR CODE AND IRR ISSUED PURSUANT
. Illegal recruitment cases under this Rule shall prescribe in five (5) years; Provided, however, that illegal recruitment cases involving economic sabotage shall prescribed in twenty (20) years.
§41 - All existing arrangements between a domestic worker and the employer shall be adjusted to conform to the minimum standards set by this Act within a period of sixty (60) days after the effectivity of this Act: Provided, That adjustments pertaining to wages shall take effect immediately after the determination and issuance of the appropriate wage order by the RTWPBs: Provided, further, That nothing in this Act shall be construed to cause the diminution or substitution of any benefits and privileges currently enjoyed by the domestic worker hired directly or through an agency.
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Filing of application
If independent union, chartered local or workers' association
If federation, national union or workers' association operating in more than one region
File with Regional Office
File with BLR
Act within 1 day from receipt
Act within 30 days
Approve application
issue certificate of registration
Completed Issue certificate of registration
Deny application for failure to comply with requirements Within the day, notify applicant of requirements and order completion within 30 days
Not completed Denial without prejudice Appeal within 10 days from receipt of notice to BLR/SOLE
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Requirements for application
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(1) Name of labor union and its principal address Name of its officers and their respective addresses (2) Approximate number of employees in the bargaining unit where it seeks to operate (3) Statement that it is not a chartered local of any federation or nat’l union (4) Minutes of organizational meetings and list of participating employees (5) Name of all its members comprising at least 20% of employees in BU
1) Name of federation and its principal addresses 2) Name of its officers and their respective addresses 3) Minutes of organizational meetings and list of participating employees 4) Annual financial reports (if it has been in existence for more than one year) or statement that no collection has been made 5) CBL, minutes of its adoption and ratification, and list of participating employees (list may be dispensed with if ratification was done during organizational
(1) Charter certificate issued by national union or federation Other requirements (to be entitled to all other rights and privileges of LLO) (a) Names of local/chapter’s officers and their addresses (b) Principal office of local/chapter (c) Chapter’s CBL, or statement that chapter has adopted the CBL of federation or national union (d) Certification under oath by secretary and attestation by President
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1) Name of association and its principal address Name of officers and their respective addresses 2) Minutes of organizational meetings and list of participating members 3) Annual financial reports (if it has been in existence for more than one year) or statement that no collection has been made 4) CBL, minutes its of adoption and ratification, list of participating members, and date of ratification (unless ratification was done during
Same as association
worker’s
+ 7) Resolution of membership of each member association, duly approved by its board of directors
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(6) Annual financial reports (if it has been in existence for more than 1 year) or statement that no collection has been made (7) CBL, minutes of its adoption and ratification, and list of participating EEs (which can be dispensed with if CBL adopted during organizational meeting) (8) Registration Fee (P50.00) (9) Certification under oath by secretary or treasurer and attestation by President of all the requirements
meeting) 6) Resolution of affiliation of at least 10 LLOs (independent or chartered locals) which are the SEBA in their BU 7) Names and addresses of companies where affiliates operate and list of all members of affiliates in each company involved 8) Registration fee (P50.00) 9) Certification under oath by secretary or treasurer and attestation by President of all the requirements
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organizational meeting) 5) Registration fee (P50.00) 6) Certification under oath by Secretary or treasurer and attestation by President
