NOV 23, 2019 Is A an employee of B or is A a regular employee of B?

What is book 1 of the labor code, what are discussions bar pitfall…
there? Which test to apply? (around Feb ma discuss- Post
Ans. Pre employment employment questions)
What are the important discussions there?
Essentially pertains to recruitment Labor law 2- 60-65% Bar Questions (lab rel & post
Overseas employment employment)
Important that we understand
It all starts w recruitment Main source of labor dispute- Terminations
2nd – Labor Standards
Book 2- Human resource 3rd- Inter intra union dispute, Strikes Lockouts, ULP, CB
Apprenticeship and learnership and employment of dispute.
handicap workers Many Bar questions sa Book 5

Discussions on labor standards per se is found only in DO 40-03 ---Implementing rules of book 5(labor
book 3 relations), on labor relations also cover post-
Old name sa book employment.

Book 1---Recruitment ojt, labor standards and Certification Election

enforcement thereof Strike (yearly BQ)- almost everyday occurrence

What is subject matter not covered in labor law1 30 min studs lab standards

Important: Run-through Labor 1

Labor relations--- the interactions between employer
and employees or their representatives, where Pre employment
_________________ the conditions terms of Recrirmnt
employment is negotiated, adjusted and fixed. Oversease emply
Jureisdi of overseas employ- LA
Terms encountered in labor 1, but not discussed: POEA- administrative matter, cancellation of registration
Strikes and Lockouts of recriuiment agencies, or discplinary action of OFW,
Picketing they can ban for acts inimical to the Ph as a sending
CBAs country.
Self-organization ban on direct hiring
Legitimate Labor Orgs COnsti-- guarantees full protection, hence there should
Settling labor disputes be someone in the ph who gauarantees the protection of
Doctrine of Co determination — Participation of Workers filipinos abroad, hence the agencies are made liable,
in Policy making involving policies that affect them. solidarily liable w foreing employer.
Unfair Labor Practices
Just and Authorized Cause Workers rights are violated usually money claims, goes
“Termination Matters” to LA; ofw can also file cases of estafa..

BQ: Serrano vs Galant Maritime- claim of workers is equal to

Difference between Strikes and Lockouts? the remainder of his contract, not limited to 3 mos.
Difference between Just and authorized cause? Yap vs Stena marines is affirmatory of Galant case

Who is a regular employee? Illegal recruitment in labor code which is considered to

Existence of Employer employee relationship? be crimes involving economic sabotage:
1. Large scale illegal recruitment- 3 victms
 2. Illegal recruitment committed by syndicate (3 128-129- Enforcement of labor standards thru visitorial
perps)\ power of dole secretary

Standard Employment contract is there to protect Home workers and house workers, superceded by the….
our workers, they cannot accept salaries lower than Ra10361- Kasambahay law
standard employment contract. Any contract lower
than standard is already considered an act of illegal Employemt of minirs suppersseeded by law on
recruitment—can be prosecuted at place of employment of minors, Ra 7610
recruitment or at the residence of the complaint at
the time of the recruitment, of course at the instance 82- most important sa last BQ
of complinant
Kasambahay, did not claim SIL for a year, auto forfeited..
Jul/Aug—OJT What if clerk in offc? Autobus v bautista--- SIL dies not
prescribe
1. Apprenticeship- highly technical/skilled jobs, Internalize the concept of at 82‼
6mos period, requires Dole approval tru TESDA if
the job is apprenticiable akin to probationary Makati Haberdashery ruling and Labor congress—there
employment, cno commitment to hire are 2 type of works paid by result:
2. Learnership- all other types of jobs, 3 mos 1. Supervised
period, semi-skilled job, there is already 2. Unsupervised- falls under the def of field
commitment to hire, the first 3 mos under ojt personnel
arrangement akin to probationary employment,
testing fitness for regular Travel time, when compensable? (@labor 1 past exam ni
Both--- law allows up to 75% of minimum wage, since sir), As. Only those that cuts across his ____________
lower productivity level.
Can you say no to a transfer order? NO
Book 6
281- probationary employment vs apprenticeship—not Art 82, LCODE in re to Title 1 book 3 of labor code.
the same sila
What is a work day?
Book 2 Manegerial Emplyees
Employment of handicap workers- considered ojt What is field personnel?
trainees, can be considered as regular employees.
What characterizes handicap employees?: Compensability is freuet tipic?
1. Physical limitation, 1. Waiting time
2. Age 2. Travel time
3. Mental deficiency Compensable and Non:
“Travel that is all in a days work”-- ex. Travel between
Handicap Employees—if handicap if not affect two sites. Compensable when it serves the benefit of
productivity, will not allow them to be paid below employer
minimum, they shall be considered regular employees 3. Meal period- shortened meal period- gen rule,
subject to the satisfaction of the Test of Necessity and its compensable, except if its upon the request
Desirability. of employees for their own benefit. art 85.
60mins.
Book 3 (4 sub divisions) Overtime- work performed in excess of 8hrs.
82-96—Title 1 of bbok 3, core labor standards Art 86- night shift differential
97-127 (less 106-109)—wages
106-109- law on contracting and sub contact
OT- the fact of overtime, not done in normal course of Basis for sweldo—time, task, piece, or commission.
work, its an extraordinary entitlement which means that Above can be broken into 2 categories, paid by time or
burden of proof is with the employee. paid by result.
OT proof Flow Principles of waiting does not apply to workers paid by
1. Employee declares he has not been paid OT result. No ating time to speak of
2. Employee proves first that OT has been rendered
(if not done, burden does not shift to Employer) 100- Non diminution of benefits principle (bar fav)- it
3. Employer prove that he has been paid. applies to supplements (non wage deductible)

Art 88, offsetting OT and under, NOT allowed! Supplements --Cant be withdrawn if it is given out of
Art 89- grounds ot is required by employer company policy or has ripened into a practice over a long
92 counterpart- work during rest day period of time, and the giving of wage is not a result of
Art 90- cash wage vs regular wage an interpretation of a difficult provision of the law and
Regular wage = cash wage + facilities provided the withdrawal of the employer is done unilaterally.
Art 91 rest day, physical rest day; rest day designated for
purposes designated for rest day premium (default is If given in contingency, not applicable, no oblig to give.
sunday) ex. Bonuses.
If correction of error—its not diminution of benefits, but
Art 94- Holiday pay the correction is dapat galing sa difficult provision of law.
Don’t confuse holiday pay w holiday premium!
holiday pay- need not be proved by employee, its 102-105—sweldo, isda, no kubra of asawa, etc. direct
statutory entitlement. payment, time form, place of payment.
Holidays- 12
holiday premium- needs to be proved, amount paid for 106-109- contracting and sub contracting
work rendered n a holiday, 100% of the minimum wage. Labor Only Contracting- how done?
Burden of proving in holiday work, rest with employee. I + 1 +3 = LOC
Holiday pay payment rest with employer. I + 2+ 3 =LOC

Art 95 -SIL- “less than 10 workers” 1. Substantial capital

Basta ma mention ang no. of workers its related to 2. No investment in the form of tools, machinery, and
holiday pay or SIL! work premises.
Workers paid by result on SIL, bar pattern 3. Workers performing work directly related to the main
business of the principal.
ART. 96 service charge- will not cover NON employees,
ex the security guards not included. Contractoor—does not exercise the right to control, LOC
sya.. wokers considered direct wmployees then
Non Employees cannot bargain with employers. mahinang na agent lang.
supervisors can bargain, managerial employees cannot Solidary liability sa unpaid wages if no LOC.
bargain.
110- preference of workers in bankruptcy, should pass
245 (old)- eligibility of managers and supervisors to form through judicial proceeding. Is defeated by state
unions -- supervisors can form Union (bargain), preference pag sa bankruptcy.
managerial employees cannot bargain.
111- attys fees. Ordinary and extra. Quantum meruit,
Book 6 iba napud definition sa managers and and extra ordinary concept of attys fees.
supervisors- for purpose of loss of trust and confidence
as termination ground. Wat can be deducted and what cant be deducted,

Art 97- where we define what is wages

Kickbacks and withholding of salaries are prohibited, Claim for reinstatement Art 217, item 3… automatic na
control as to how salary is spent, not allowed, non- post-employment scenario.
interreference on wage disposal. Item 6, basta lampas 5k, won there is claim for
reinstatement—LA has jurisdic.
Wage distortion - means a situation where an increase in
prescribed wage rates results in the elimination or severe State policy--- right to self-organization, collective
contraction of intentional quantitative differences in bargaining, co determination.
wage or salary rates between and among employee
groups in an establishment as to effectively obliterate 211-225- jurisdic of la and Comission
the distinctions embodied in such wage structure based
on skills, length of service, or other logical bases of Art ---Labor relations-
differentiation ALL Workers have the right to organize- yes! Consti
guaranteed! All employees enjoy the right security of
- arises only of the distortion results from compliance to tenure- even probi!
mandated wage increases, not out of company policy, Not all workers can organize for the purpose of collective
not in terms of promotion, not transfer, bargaining..
-but only if the “elimination of severe contraction of the Twin rights of labor- self organization and collective
wage differences results from compliance to mandated bargaining.
wage increases” Employees can’t collectively bargain unless they are
organized, organization is useless if no collective
Art 128-129, enforcement in re to 224, jurisdiction of bargaining goal.
labor arbiter. Main purpose of unionization is to improve terms and
conditions of employment—and this is done thru
LABOR RELATIONS PROPER‼ collective bargaining.
Note: Employer has no obligation to sit down with
Labstan substantive anyone who is not organized, and who has not
Lab rel- procedural established proof that he is representing majority of the
workers.
The mechanism by whc lab stan is reinforce din provided
in 128 Not all Organizing is for the purpose of collective
217 coverd in first sem, only lab stan jurisdic, item 3 and bargaining, there are only 2 reasons why Workers
6 of art 217(224) organize to form labor organizations: art 243
1. For their mutual aid and protection- have no
Does Employer- Employee relationship still exist? definite work, ambulant, itinerant workers,
If POST EMPLOYMENT NA SITUATION, in labor standards- intermittent workers, those with no formal EE
mahinang na money claims, lahat ng money claims relationships. ex. TODA, vendors, etc.
pertain to the LA. (no E-E relationship na) 2. For the purpose of Collective Bargaining- basta
employee ka pwde, kahit probi pwde.. ex.
Art is 128 for the purposes of enforcement, like payment Nagkahiusang Probi employees of XYZ corp.
of wage differential, payment of OT etc..
Art 234-242--First step is to organize to become LLO.
IMPORTANT: Dole may exercise visitorial power when Once organized, collective bargaining is next.. but first
Employer- Employee relationship still exists. naay Representation Election.

If no E-E relationship, diretso labor arbiter na or if Representation issues—employees decide if tey want to
small/simple money claims na 5k limit, sa regional be unionized or not..
director.
Holy child catholic school vs Secretary Patricia Sto tomas-
Rank and file and Supervisor employees cant belong to reinstatement, moral and exemplary damages frm
the same union, because they do not share the same employment relationship, questions on legality of strike.
interests. Those abve 5k, Overseas employment money claims,
enforcement of CBA, correction of wage distortion in
CBU- collective bargaining unit-- Aggrupation of workers unorganized establishments.
who share common interests.
The entire CBU benefits from the CBA even if not all CBU NLRC-the only labor court in the Ph, but under the
peps voted for unionization. administrative jurisdiction of DOLE, NLRC is independent
CBA- Defines other employment terms and conditions and are composed of judges, attached lang sya.
not covered under labor standards.
The Commission- has appellate jurisdiction sa decision ng
Before magka Collective bargaining dapat naa ma settle LA. Every region has Las, commission has 8 divisions.
na representation first. 5 NCR, 1 Baguio, 1 Cebu, 1 CDO. 3 Commissioners per
Certification Election- answers who will represent the division.
CBU, union A or B? Representation issue NLRC-- The 24 of them don’t decide En banc, they only
meet for rules promulgation, policy type meetings.
255-259- Representation- short part but bar favorite Art 217 very important—

Ideal Flow: ULP Jurisdic.

Organize-elect-represent the CBU- leads to CBA. 5 year 1. LA
industrial peace, new negotiate after 5 years. 2. Sec of DOLE
3. President
ULP- Art247-249— (247) “violation of the constitutional Notice of strike (due to ULP)--- assumption order [art 263
right to self-organization” (g)].

Union Busting- terminating if union officers, can be a Art. 223- Appeal—dami BQ.
ULP. Not at 263. Requirements and consequences of appeal, Familiarize!

Art 260-262,262A- Voluntary arbit and grievance Read jurisdiction of bureau of labor relations 226
machinery. onwards
Strike- Defined as temporary work stoppage; Art 263- prelim – Labor Organizations- Collective bargaining
264. Very limited grounds ang strike representation and strike- midterm
(Lab rel ends here): Post employment -finals
There is a labor dispute, which may mean violation of
constitutionally guaranteed right to self-organization, NOV 23, 2019
that situation is strikable.
Or sometimes bargaining will not proceed as planned,
there is sometimes a Bargaining Dead Lock – which
causes a strike (strikable), used to pressure other party
to give in to the demands.
278-287- post employment

13th month, underpayment of wages, not strikable…!

Enforcement of standards ang remedy.

 ¼ of the rest of our discussion is on Termination.

DOLE has no jurisdic on termnation /post-employment.
LA has jurisdiction on ULP and termination disputes,
labor standards if accompanied by claims for