Constitutional Provisions

Art. XIII, Sec. 3.

 
Collective Bargaining:
-difference between duty when organized and unorganized establishment
-application of hold-over principle; no new CBA and old CBA has already expired.
-Holdover period when the old CBA would apply.
-Union shop agreement/
-Would the union security clauses apply such that union members can join or sign
in a petition for certification election by a rival union?
-During the holdover period, it is the economic provisions which are
carried over.
-Respect the incumbent union but that should not prevent the members
from joining a petition for certification.
 
Must have majority status, prove, contained in demand, specific demands of union…
 
Section 3 Art. 13.
-Policy thrusts of the government
-Voluntary modes of conflict
-Equal partners between labor and management
-Labor as a primary social economic force.
 
Security of Tenure
Concept of Security of Tenure (Art. 279)

-It is the constitutional right granted to the employee to be secured, or to continue in

employment until the same is terminated by virtue of a just cause or on grounds authorized by
law.
-applies to actual and constructive dismissals
-extends to all types of employees
-Recognizing that management and labor are more often not situated on the same level
playing field, the state has seen it fit to adopt measures envisaged to give those who have less in
life more in law.
-When a person has no property, his job may be possibly his only possession or means of
livelihood and those of his dependents.

Security of Tenure of Probationary Employees

-Article 81 states that the services of an employee who has been engaged on a
probationary basis may not be terminated except for a just cause or when he fails to
qualify as a regular employee at the time of his engagement.

[Type text]
 -The probationary employee therefore enjoys security of tenure during the period of
probation.
-He cannot be terminated during such period without observing the due process
requirement of law.

Security of Tenure of Managerial Employees

-a managerial employee, as such, does not by itself exclude him from the protection of
the constitutional guarantee of security of tenure. An employer’s prerogative to dismiss must be
exercised without abuse of discretion.
-Generally, employers are allowed wider latitude of discretion in terminating the
employment of managerial personnel or those who, while not of similar rank, perform functions
which by their nature, require the employer’s trust and confidence.

Security of Tenure of House Helpers

-Under Art. 149 of the Labor Code, if the period of household service is fixed, neither the
employer nor the house helper may terminate the contract before the expiration of term, except
for a just cause. If the house helper is unjustly dismissed, he is entitled to be paid the
compensation already earned plus that for 15 days by way of indemnity.
-if the duration of the house hold service is not determined, either in stipulation or by the
nature of the service, the employer or the house helper under Art. 150 of the Labor Code, may
give notice to put an end to the relationship 5 days before the intended termination of the service.

 
Public Permanent Temporary
  Rank and Career Executive  
File Service
 
Private sector Public
Substantive due process Both substantive and
procedural due process
must be followed
Nonobservance of procedural due process does not affect None observance of
validity of dismissal, will only make the employer liable for PDP renders the
nominal damages dismissal illegal
 
CSE R&F Temp
Attaches to the rank and not the    
position

[Type text]
      
 
RP vs. Pacheo: reassigned from QC to Pampanga.

 
 

Separation Pay

-if reinstatement no longer possible, the employer has the alternative of paying the employees
separation pay in lieu of reinstatement
-clearly, the law intended reinstatement to be the general rule. It is only when reinstatement is no
longer feasible that payment of separation pay is awarded to an illegally dismissed employee
-incase of strained relations separation payin lieu of reinstatement should be awarded
-components of separation pay in lieu of reinstatement
a. the amount equivalent to atleast1 month salaray or to one month salaray for every year
of service, whichever is higher, a fraction of atleast 6 months being considered as 1 whole year
-there are instance where ½ month pay per year of service is valid such as when
the employee was dismissed for valid reason but his years of service was taken into
consideration or the fact that an employee did not raise objection to his termination
b. allowances that the employee has been receiving on a regular basis
-separation pay in lieu of reinstatement is computed from the commencement of employment up
to the time of termination, including imputed time for which the employee is entitled to
backwages, with the salary rate prevailing at the end of the period of putative service being the
basis for computation
-an award of separation pay in lieu of reinstatement and backwages are not inconsistent with
each other
 -the separation pay in lieu of reinstatement of employees who were constructively dismissed is
equivalent to one mongth salaray for every year of service

SEPARATION PAY AWARDED AS FINANCIAL ASSISTANCE

-no provision on financial assistance is found in the labor code or its IRR
-it is based on equity and social justice
-may be awarded despite lawful dismissal for cause
-not allowed when the employee has been dismissed for serious misconduct or some
other causes reflecting on his moral character or personal integrity
-where the cause for the termination of employment cannot be considered as one of mere
inefficiency orincompetence but an act that constitutes an utter disregard for the interest of the
employer or a palpable breach of trust reposed in the employee, the grant of separation benefits
is hardly justifiable
-San Miguel Test and Toyota Doctrine
-separation pay may “exceptionally” be awarded as a “measure of social justice”
only when the dismissal does not fall under:
a. Art. 282

[Type text]
 -serious misconduct
-willful disobedience
-gross and habitual neglect of duty
-fraud or willful breach of trust
-commission of a crime against the employer or his family
b. dismissal reflected the employee’s moral character

-Exception to Toyota Doctrine

-Toyota, however, makes a distinction when the grounds cited are the analogous
causes for termination under Art. 282 (e) like inefficiency, drug use and others. It declared that in
these cases, the NLRC or the courts may opt to grant separation pay anchored on social justice in
consideration of the length of service of the employee, themaount involved, whether the actis
first offense, the performance of the employee and the like.

-In case of resignation, financial assistance may be unilaterally given by the employer to
an employee as a matter of policy or practice or by virtue of and pursuant to a binding agreement
such as a CBA or an employment

Art. 283, 284.

-Validly dismissed employee shall be entitled to SP, the amount depending on ground. 1
month for every year of service, OR __ …
Retrenchment/__ 1/2 month pay for every year of service.
If only 1 year service, 1 month pay.
If only employed for 5 months, SP should be proportionate to the period of
employment.
 
Just causes of dismissal: no provision under the LC. Art. 282 does not provide for the payment of
SPOUSE. Whether or not justly dismissed employees are entitled to SP? Several SC decisions
where SP was allowed. While Art. 282 does not specifically grant SP, it does not prohibit the
payment of SPOUSE
1. Company practice established over a reasonable period of time. Sivilia vs. __ Case…
consistently practiced.
2. When it is a company policy. Specific regulation in the company.
3. Based on agreement, whether collective or individual.
4. As a measure of social justice.
 
Social Justice: in the resolution of labor cases, as applied on, should always be based on
established fact (as supported by evidence) applicable law and prevailing jurisprudence.
Dispensed to the deserving. Give everyone his due.
Law is vague on established facts in a case. Resolve in favor of labor.
Doubt if parties were able to submit the same quantum of evidence, thsus resolve in favor
of evidence.
 Utilized in determination of the proper penalties, premised on certani factors… such as:
a. The length of service… loyalty
b. Whether or not first offense. First offense < penalty
c. Good employment record

[Type text]
  Referred to as compassionate justice. An act of grace.
 Justice based on equity considerations.
 
SP = Financial assistance… if referred to as such, it is social justice.
 
Situations when an employee has not committed serious misconduct
Not morally depraved.
 
Toyota Motors vs. NLRC (Oct 19, 2007)
 SC held that there was an illegal strike. Union officers were terminated validly. Some
employees committed illegal acts. Were the employees who knowingly participated entitled
to SP? GR: No, employees who are justly dismissed. XCPT: application of social justice.
Must be shown that the employee terminated has not committed any serious misconduct
nor any act which reflects on the depravity of moral character. [old rule]
o The non-allowance of SP to justly dismissed employees because the grounds fo
dismissal under Art. 282 really amounts to serious misconduct and that they are
attended with willful intent of the employee who are dismissed based on this just
causes which reflect on their moral character
 Analogous circumstances. Including gross inefficiency; SC said that the courts may opt
to grant SP anchored on SJ in consideration of the following factors
o Length of service
o Amount involved
o Whether or not it is a first offense
o Performance of the employee
o And any other factor antendant in the case
 
Tirazona case.
 Managerial employee was admonished for her arrogant handling of a subordinate.
Considered to have committed serious misconduct.
 
Reno Foods March 15, 2010
 Theft of company properties. Canned goods
 
PAL vs. NLRC (October 20, 2010)
 Quijano manager of accounting division. Tasked to determine and release commissions to
certain agents. Overpayment to a certain agency. Was dismissed.at the very least, neglect of
duty. Enttieled to SP?
o Not really if dismissal is based on Art. 282, but whether ground relied upon is
shown to be serious misconduct or indicative or wilfullness or deliberateness or
intention of the employee. Maliciously, wrongfully, knowingly then not entitled.
o Not the kind of conduct, does not show wrongful or malicious intent… only
neglect of duty.
 Was granted SP as measure of SJ
 
Alcantara Sons vs. CA

[Type text]
  Union members and officers who committed illegal acts on occasion of a strike. Entitled
to SP and BW?
 LA did not find that they committed illegal acts. SC: were just dismissed.
 SP: they have committed illegal act knowingly therfore not entitled.
 BW: entitled…
 
Feb 29 2012 paduata vs. meralco
 Unexplained leave of absences of Mr Paduata (arthritis).
 Art. 284. must not be curable within a period of 6 months ___
 Financial assistance… special circumstances…
 
Solidbank vs. NLRC
 Prayer for the award of SP as a measure of SJ. Dismissal based on authorized cause when
there is cessation of business operations.
 Employees were given SP benefits better than what was provided for under the law. Still
complained because of short period.
o Art. 283-4 are already considerations of SJ.
 283: no fault on the part of the employees
 
 
DUE PROCESS
Serrano v. NLRC

 
 
Management Prerogatives
CONCEPT
-Inherent on the fact of ownership, but stated in the Constitution
  -Enumeration of management prerogatives.
-While Art. 279 guarantees security of tenure to the employees, it is a well recognized
principle that employers have the right and prerogative to regulate every aspect of their
business, generally without restraint in accordance with their own discretion and
judgment.
-Courts often decline to interfere in legitimate business decisions of employers. So long
as the exercise of prerogative is without grave abuse of discretion, the right of employers
to enforce it should be respected.

Employer’s wide latitude of discretion in formulation policies, rules and regulations

-on work-related activities of employees
-company policies and regulations, unless shown to be grossly oppressive or contrary to
law, are generally valid and binding on the parties and must be complied with until
finally revised or amended, unilaterally or preferably through negotiation

[Type text]
 -must be upheld so long as exercised in good faith for the advancement of its interest and
not for the purpose of defeating or circumventing the rights of employers

Limitations in the Exercise of Management Prerogative

-subject to limitations imposed by law or by the CBA, employment contract, employer
policy or practice and general principles of fair play and justice
-must be exercised in good faith and with due regard to rights of labor
-cannot be utilized to circumvent laws and oppress employees
-cannot be used as a subterfuge to rid the employer of an undesirable worker

Right of Management to expect adequate and diligent work from its employees
-employer may not be compelled to continue to employ such persons whose continuance
in the service will patently be inimical to its interests

PREROGATIVE TO PRESCRIBE WORKING METHODS, TIME, PLACE, MANNER

AND OTHER ASPECTS OF WORK
-Employers have the freedom and prerogative, according to their discretion and best
judgment, to regulate and control all aspects of employment in their business organizations
-such aspects of employment include hiring, work assignment, working methods, time,
place and manner of work, tool to be used, processes to be followed, supervision of workers,
working regulation, transfer of employees, lay off of workers and discipline, dismissal and recall
of workers.
-management retains the prerogative to change the working hours of its employees
whenever exigencies of the service so require

PREROGATIVE TO TRANSFER OR REASSIGN WORKERS 

Concept and Meaning of Transfer

a. A movement from one position to another equivalent rank, level of salary, without
a break in the service; 
b. A movement from one office to another within the same business establishment

Transfer of employees an inherent right of management

-employer’s right to control and manage its enterprise effectively
-based on employer’s assessment and perception of its employee’s qualifications,
aptitudes and competence
-an employee’s right to security of tenure does not give him a vested right to his position
as would deprive the employer of its prerogative to change his assignment or transfer him where
he will be most useful. Certainly an employee cannot substitute his judgment to that of his
employer in the operation and management of the latter’s business affairs.

When Transfer May Constitute Constructive Dismissal

-amounts to “an involuntary resignation resorted to when continued employment is
rendered impossible, unreasonable or unlikely; when there is a demotion in rank and/or

[Type text]
diminution of pay; or when a clear discrimination, insensibility or disdain by an employer
becomes unbearable to the employee”

-3 conditions:
1. when the transfer is unreasonable, inconvenient, or prejudicial to the employee
2. when the transfer involves a demotion in rank or diminution of salaries,
benefits and other privileges;
3. when the employer performs a clear act of discrimination, insensibility, or
disdain towards the employee, which forecloses any choice by the latter except to
forego his employment
-in constructive dismissal, the employer has the burden of proving the transfer and
demotion are for just and valid grounds
-Failure to overcome burden means the employee’s transfer is Constructive
Dismissal

Transfer Made In Compliance With a Government Order Does Not Amount To

Constructive Dismissal
-mere incidental inconvenience is not sufficient to warrant a claim of constructive
dismissal

When a transfer does not amount to demotion

-mere title or position held by an employee in a company does not determine whether a
transfer constitutes a demotion
-rather, it is the totality of the circumstances to wit: economic significance of the work;
the duties and responsibilities conferred, as well as the rank and salary of the employee, among
others

Refusal to Transfer; when justified

-if there is a showing that the transfer was directed by the employer under questionable
circumstances
-the refusal of the employee to be transferred was upheld because no law compels an
employee to accept a promotion and because the position he was to be promoted to did not even
exist at that time

Refusal to Transfer; when not justified

-if transfer is valid
-parental Obligations, additional expenses that may be incurred and anguish that may be
suffered is assigned away from the family are not valid grounds to refuse transfer of assignment
-transfer from one city to another within the country is valid as long as there is no bad
faith on the part of te employer\
-if transfer is due to a SOP such as night and day shifts

PNB vs. Padaw (November 16, 2011)

[Type text]
 -this time the employee was charged with gross and habitual neglect of duty (PAL vs.
NLRC, same charges, no willfulness, deliberateness, on the part of employee in the neglect
of duties thus SP was given)
- in this case, the SC cited the case of Toyota Motors.
-Padaw is not entitled to financial assistance consistent with toyota, which is the general
rule sp is allowed as a measure of social justice only in the instances when the employee is
validly dismissed for __ fraud or willful commission of a crime against the employer or the
family.
: if the act established by the courts amounts to ___,willful disobedience, no entitlement to
SP even as a measure of social justice.
 
 
What is the basis of MP?
Sec. 3 Art. 13, right of employer to reasonable return of investments and expansion and
growth. Manage their business in the most economical way… risk of the investment in the
business.
-inherent in the fact of ownership
-Owns the business which gives the right to conduct the said business in the manner they
see fit… to recognize their business purposes
-not exactly defined in labor laws nor in jurisprudence.
-The bulk of privileges and prerogatives that are accorded to owners of enterprises.
-Listing of specific acts which may be undertaken by the employer.
-Prescribe rules and regulations affecting the business, in connection with handling
and discipline of employees
-Adoption of methods and systems of production and operating the business
-Leeway to determine the competency/fitness of employees with respect to particular
functions and positions.
-To move the workforce form one position to another, in good faith for a legitimate
business purpose
-Determine work schedules and work assignments (including determination of
working hours)
-Including moving employee from day to night shift
-Determine the rest day of the employees with modification depending on the choice
of the workers in relation to the exercise of religious freedom
-Operation of the business
-The right to reorganize the operation of the business
-Existing system may be changed/altered which may result to retrenchment,
redundancy, installation of labor saving devices
-Grant of bonuses
-Contracting out any unit of operation
 
Prerogative to Grant Bonus
-This is also anchored in Sec.3 Art. 13.
-Entitlement of labor to receive its just share in the production, not just wages.
-Right compensation (right full wages) then cannot demand increase… but ≠ collectively
bargain.

[Type text]
 -Beyond payment of wages, the employee may demand just share in the fruits of
production by demanding just share in the profits when the profits are realized.
-Implementing law? NONE, that is why it remains management prerogative except to
statutory bonuses (13th month pay) that is why the employer must satisfy even if financial
distress
-act of gratitude, generosity on the employer. Usually initiated by the employer
- contractual bonus, that embodied in the CBA as negotiated by the parties
 
- GR, a bonus is not demandable as a matter of right XCPT if it has been consistently given
over a period of time. Full understanding that there is no statutory obligation to give such
bonus.
- may demanded when in a CBA or contract
- when given without any condition, demandable
- CBA was negotiated, management came up with signing bonuses (first time). Three years
after, renegotiate economic provisions. Can the union compel the management to give a
signing bonus? It is not demandable as a matter of right (SC) one time giving of bonus, not
amounting to company practice
Esp if the 2nd bonus was the product of an arbitral award
Even if the bonus has amounted to a vested right, it ceases to be a demandable right if
at that particular time the employer is no longer able to sustain that financial
obligation.
 
Contracting/Farming out certain units of the operation; certain functions.
: when those affected are union members or officers. ? Whether or not purposely done to
ease out the union members or officers? If yes, ID and ULP…
Question is always "good or bad faith?" If there is a reasonable ground, then it is a
proper goround. Good faith is always presumed
But if the question is ID then the employer has to justify.
: when contracting out, may result to redundant positions, management prerogative may
layoff, undertake a redundancy/retrenchment (substantial losses, actual or iminent) program
 
Installation of labor saving devices
: principally, it involves the technical operation of the business. Affects employees whose
position may be lost because of installation.
: participation in policy making? No.
 
Imbong vs. ABS-CBN.
-Whether or not abs-cbn validly issued subject policy which ordered the employees of
ABS-CBN who ran for office as deemed resigned. Two employees, one did not inform the
company. Applied for leave of absence. Ran and lost. Can they be accepted back into company?
 Is the policy valid and constitutional? Fair Election Code, sustained the validity of that
exercise of management prerogative. In particularly applicable to media corporations and
industries like ABS-CBN. Cited the need of a media organization to remain impartial and
apolitical in order to sustain its independence and integrity as a media organization.
 If they accept you back, then new employment.

[Type text]
  Subsequent memorandum referring to leave of absence, does not supersede the previous
memo… issued beyond authority
 
__ vs. montecillo, nov 28 2011.
-jewelry manufacturing company, requiring goldsmiths to post a cash bond/deposit, if not
certain amount shall be deducted from their wages. Questioned the validity of policy? RULING:
It may be valid but in this certain case, it wasn't.
Requirements
1. It must be shown that the making of such deduction is authorized by law or by rules and
regulations issued by the SOLE.
2. It must be shown that it is a regular practice in the jewelry manufacturing business or in
the alternative, the employer must seek a the determination from the SOLE to issue the
appropriate rules and regulations is necessary or desirable in the conduct of the business.
 in this case, it was unilaterally imposed.
 
Transfer of employees
Consistent of an employer to determine the competence aptitude qualifications skills fitness of an
employee with respect to particular situations to maximize benefit the business.
: transfer, reassignment… there is a difference in the public sector. Rules or principes
pertaining to lateral transfer, promotions or demotions.
Promotions: it can be refused if the employee does not desire to be promoted.
Demotion: whether or not the demotion is proper or constructive dismissal.
Laterl transfer: generally cannot be refused except if it is shown that it is grossly ___
or amounts to disdain on the part of the employer with the sole intention of removing
the employee or forcing the employee to resign = constructive dismissal
 
Dimagan vs. BAC works(Nov 28 2011)
- designated as an OIC for mechanical installation in 1997. In 2002 was relegated to the
position as a mere supervisor, year after designated as technician. CASE OF DEMOTION IN
RANK TANTAMOUNT TO CONSTRUCTIVE DISMISSAL, reinstatement with full
backwages
 
___ Oct 5, 2011. Glenda Menese,
-hired as payroll and billing clerk in security agency. PGH… monthly salary amounting
P11,100. according to management, there were complaints from clients but no proof. Shown that
the manager wanted someone else. Transferred to main office as lady guard. Not clear whether
there was demotion, but diminution in pay was clear.
 
__ Head waiter who was transferred from one station to another. Lateral transfer, same position,
prev position was in a fine dining resto. Transferred to Sison's Coffee Shop. Went through the
grievance proceedings, then VA. In the mean time he persistently refused to be transferred as
head waiter, did not go to work. Demotion? Constructive dismissal? SC: valid order of mgmt, no
demotion in rank no diminution in pay, no disdain/discrimination against eee, order was not
prejudicial to head waiter.
Pending grievance/arbitration proceedings protect him from being disciplined by the eer? Is
the submission of the dispute through grievance machinery, voluntary arbitration __

[Type text]
 management prerogative to discipline the employee? Essentially when it comes to an order
of management disobedience by the employee is the risk taken by the employee against
sanctions.
o Valid management prerogative, with legitimate reasons. Same company. No bad
faith. No discriminatory action. Therefor, essentially gambled and lost. Can be
sanctioned
o "he cannot hide under the cloak of the legal process of grievance machinery and
voluntary arbitration in order to evade possible sanctions from willful obedience of
valid order of management" becomes a ground for valid dismissal
 
Jan 2012. Morales was reassigned from division manager (managerial position) of accounting
department to operations cost accounting…. Monitor customer requests. N ot even in company
plantilla, (not permanent) whether or not the reassignment was a management prerogative validly
exercised?
 Will work under someone who his disagreement
 Was informed that he was being terminated as manager of accounting department
 Before 3 weeks expired, was transferred to non-plantilla position
SC: constructive dismissal. It was not shown that thre was a business reason. Act of bad
faith on the part of management on effecting that
 Can it be constructive dismissal when managerial to non-plantilla position when no
diminution in pay? Yes.
 
Specific limitation to the right to transfer:
1. No demotion in rank, diminution in pay, discrimination, hostilities/disdain by employer
to employee.
2. Not unreasonable, inconvenient, prejudicial to employee
 
Julies Bakeshop vs. Arnaiz. Chief baker to security. Not valid.
Description as to what is Demotion: movement from a position to a less significant
position, position of lesser duties and responsibilities. It also constitutes constructive
dismissal. In this case, no diminution in pay but reduction in status.
 
Alert security and investigation agency vs. pasawilan. Sept 14 2011. order to transfer
involving security agencies. Underpayment of wages, complaint for wage differentials before
DOLE. According to guards, they were removed from employment because of complaint. Not
given new assignments for a period longer than 6 months. Rule on floating status: maximum of 6
months, longer is considered constructive dismissal.
 Obligation of the employer is to give new assignment to one who has been asked to be
reassigned.
 While under floating status, employer-employee status remains but is merely suspended.
 Even if shorter than 6 months and there are available assignments but does not give it to
those under floating status.
 SC: it was illegal and unlawful.
o Management claimed that they were not really terminated, they were just loitering
in the DOST grounds. Job orders reassigning them to MRT, LRT.
o No showing that the orders were not received by the employees.

[Type text]
 o Abandoned their work? Not consistent with the action of filing case with prayer
for reinstatement.
 
RP vs. Pacheo. Jan 25, 2012. Assistant chief of the legal division of the BIR, lateral transfer to
the same position… except that the first position was in QC (Revenue Regulation 7) to San
Fernando Pampanga (RR 4). Lateral transfer…
Career Executive Civil Servants or rank and file employees.
 
R&F CES As to
Occupying a position of a division chief or Higher than division Position held
lower chief
 
 Pacheo said that did not give consent. If member of rank and file, required if the transfer
will result to financial disadvantage. But if CES, then consent is not required.
 Pacheo was holding a rank and file position and would be economically disadvantaged.
Would result to reduction in income.
 Requirements before can be transferred…
 Distinction between reassignment and detail.
o Detail: movement from one position to another, different agencies without
requiring a new appointment
: must only be for a temporary period, at least for employees who are __
scientific, technical professional positions
: pending protest contesting the detail, remains immediately executory
o Reassignment: movement from one position to another within the same agency.
: pending appeal, it is not immediately executory.
 
 In this case, it was a reassignment.
 
 Limitations to an order of assignment: allowed for as long as it does not involve a
reduction in rank, status and salaries… case: reduction of salaries because of additional
expenses required
 On the proprietary of awarding backwages. Rule is maximum of five (5) years.
 It must be shown that the order is being carried out for a legitimate reason, exigency of
the service that the order is being issued and implemented.
 
Samuel Ong vs. Office of the President. Rose from the ranks, employed with the NBI since
1978 until in 2001 was appointed as NBI director. Co-terminus with the appointing authority.
 Would that mean that his appointment is until 2010, or 2004.
 In 2004 memo issued by a department secretary.
 In 2004 another was appointed to the same position.
 When there was new appointment was made, Ong questioned the appointment through a
quo warranto. Ong was a none CESO eligible (thereof temporary appointment → one who
has all the requirements but does not have the appropriate CES eligibility exam)
 Can a non-CES eligible question that? Is the petition proper? No.

[Type text]
 o As a temporary appointee holding a co-terminus appointment with the appointing
authority, serves at the pleasure of the appointing authority, whether or not with
cause.
o Previously had security of tenure with regard to old position.
 Appointment specifically stated that "co-terminus"… interpreted until June 30, 2010.
Appointment may be until the term of the appointing authority or at the whim of the
appointing authority.
 
Aug 23, 2010. Transfer of a sales manager of the western Visayas area to northern mindanao
area. Reduction of salary pertains to the particular employee… advancements in modern travel,
few hours can attend to business.
 
Management prerogative vs. right of employees
 Government sector employees right to privacy in labor. Polio vs. David Oct 18 2011
 __ vs. biliran and CA oct 19 2011 → reorganization in public sector.
 
Polio vs. Former CSC chairman David. Affecting employees in the public sector. Issue:
legality of the search and retrieval on a computer issued to an employee of the CSC. In
connection with allegations of right to privacy. Polio was designated as head of public legal
service division. Division that handled Mamamayan Muna program of the CSC. Chair received
several messages regarding anomalous transactions. Undermines the integrity of the CSC which
is the central agency which takes care of administrative justice in the government. Team was
formed and went to the office, after memo was issued went to the office and began copying the
files. Based on the retreived files, there were 2 pleadings which were similar/same as the ones
pending in the CSC. → serious misconduct (undermined the credibility of the CSC. Similar to
"selling a case"). Affidavits from two (2) lawyers saying that they were the ones who used the
computer but the lawyers were never presented for authentication of affidavits.
As to right to privacy… was there a reasonable expectation to his right of privacy
considering the realities of the workplace? 1st determinewhether the person is in an
enclosed space.Where the agency has a policy stating that the employee cannot have an
expectation of privacy as to the computers issued to him. In the instant case, the CSC has a
policy that the employee does not have the expectation of right of privacy as to government
issued computers.
As to search and seizure…must be reasonable at its inception and in its scope. In the instant
case, was it valid in its inception? Yes, because it was triggered by an anonymous letter.
Did they violate the scope? No, it was a valid act made in aid of an investigation.
Search was valid. No right of privacy violated. Evidence was admissible.
Penalty imposed: dismissal from office together with accessory penalties.
 
Different case: what was examined was his personal computer… thus he had a reasonable right
to privacy.
 
 
Cochangco vs. Province of Biliran. October 19, 2011. Prerogative of management to
reorganize. Governor of Biliran who sought to reorganize the LGU, complaint-petitioners were
affected who worked in the public health sector of Biliran. Governor: found that from original

[Type text]
number of 200, ballooned into 400 → reorganization (governor ordered almost all positions
vacant) → some positions were abolished, some were no longer filled up. Memo that employees
may apply. LGU has liability? Whether or not reorganization was valid? Depends on good or bad
faith.
No bad faith if there is no creation in the reorganized setup of new position which performs
substantially the same as the abolished.
Reclassified positions do not perform the same functions as those abolished.
No bad faith if there is no significant increase in the number of positions in the reorganized
government.
No bad faith if those divested of their positions were not replaced by employees who were
less qualified by their status, etc.
IN THE INSTANT CASE, none of the above are applicable.
Is their requirement for them to reply? Only obligation of the governor is to inform them of the
application. Since the gov did that, LGU had no obligation.
Contention of the employees not considered because application is necessary. Otherwise
absurd situation where a person is not interested but is appointed. Show interest by
applying
 
 
EMPLOYER EMPLOYEE RELATIONS
Employee:
Employer:
Definition ofemployee under the different laws.
 
The establishment of employee-employer relationship is a question of fact.

No specific quantum of evidence is required.

Only requirement is four (4) test

1. Selection
2. __
3. __
4. Power of control over the means and methods as to the work performed.
 
Authority given expressly to the employees… by ratification.
 
3rd persons engaging workers → contracting
Labor only contracting Independent contracting
Contractor is treated as an agent of the employer  
Principal is the employer It is the contractor who is the employer
Contractor, even if just agent, still held solidarily Contractor is liable for payment of
liable with the principal wages

[Type text]
 note: indirect employer… principal
may be held liable
 
Elements of labor only contracting:
1. Contractor must be shown that doesn’t have sufficient capital. Does not undertake the job
under his own control and supervision
2. Employees are merely supplied to the principal, perform functions which are necessary
and desirable to the usual business of the principal.
 
In independent contractorship:
1. Substantial capitalization/investment → money, tools, equipment, premises… substantial
capital is defined money, tools, equipment, premises that are directly and actually used in
that particular used in the business of the contractor.
2. The fact that the independent contractor undertakes his business under his own
methods/means.
 
Consider the nature and extent of the work

Skill that is required (Bernarte case)

 
CASES
Tonco vs. manulife Original Nov June 29 2010, reversal
7 2008
Matling vs. coros Oct 13 2010 Employee vs. corporate officer
Real vs. Sangu Jan 19 2011  
Philippines
Professional Feb 2 2010 Physicians/consultants in
services inc vs. CA hospital
vs. Pahaga nov 17   Maestros in fishing expedition
2010
__ madios    
Smc v semillano July 5 2010  
Bernarde vs. pba Sept 14 2011 Whether or not a referee is an
independent contract
Lirio v. __ Nov 23 2011 Studio manager
Javier vs. fly ace Feb 15 2012  
Garden vs. NLRC Feb 8 2012  
Galang vs. malasuqui March 7 2012  

[Type text]
People's broadcasting March 6 2012  
service v, sole
Aro March 7 2012  
Agg Oct 12 2011  
Meralco vs. gala March 7 2012  
Canadian Feb 6 2012  
opportunites
 
 
Bernarte vs. PBA

Two (2) referees retired. Bernarde was extended a contract. Contracts called retainers which
were renewed on a yearly basis. Given notice that they would not renew his contract. ID? PBA
contended that they had no control over him, not employee. SC discussed the four fold test.
As to selection and employment, retainer's agreement
As to payment of wages, that was admitted likewise by the PBA. COMPENSATION
CALLED retainer's fees, per diem, allowances
As to power of dismissal, they effectively terminated him when they did not renew the
contract.
As to power of control… BERNARDE: several instruction that were issued by the PBA
which were followed.
a. The pba will classify/rate a referee.
b. Required to attend all games at least one hour before the game
c. Act as alternate referee/officiate ball games
d. To keep themselves physical, mental emotional condition during the life of the
agreement
e. Required to give best service and loyalty… so that they were disallowed to officiate
any other game outside of the PBA
f. Conduct themselves on and off the court integrity honesty
g. In case of violation, sanctions may be imposed upon them.
SC: not all rules and regulations will result to the establishment of an employee-employer
relations. Also, these rules merely serve as rules of conduct/guidelines in order to maintain
the integrity of the PBA and are geared to the result of the work performance. Do not
dictate upon the referee how to do his job.
Referee uses his independent judgment in making the calls pursuant to the standards
of the game.
Hired because of their skills
As to the times they are required to practice… 3 times a week, 2 hours per game. Not
enough to establish employee-employer relationship.
 
From the compensation received, there were no other deductions aside from withholding
tax such as sss etc. foreign case law: a referee is an independent contractor whose special
skills and independent judgment cannot be controlled by the hiring authority (PBA)

[Type text]
  
Tongko vs. Manulife.
Insurance agent… control vis-a-vis employee employer relations… agency.
2008 decision: relied mainly on the different codes of conduct issued by the company which
guided the agents. Basically sourced out from the different requirements, regulations of the
insurance commission and agency under the cc. there exists employee-employer relations
2010, on MR, SC distinguished between the rules that merely serve as guidelines in the
deportment of an employee and rules that would establish effective control and produce desired
results. Tongko was an indp. Contractor with the freedom to conduct his business (insurance
sales) in order to attain the imposed quotas by the company. Not controlled as to how he would
achieve the result. It was shown that he had his own office, spent for the operation of his own
office including his own personnel; sourced out from his sales. SC decided mainly on the lack of
control over the means and methods…
 
Control depends on each specific case. In this case, it was shown that he was conducting his
own business. At most, the insurance company merely issued guidelines on how he should
deprot himself… accounting guidelines were those issued by the Insurance Comm itself and not
how to be an insurance agent.
 
Matling Industrial Corporation vs. Coros and Real vs. Sangu. On whether a person is an
employee or a corporate officer.
In Matling Industrial vs. Coros, Coros was shown to be a stockholder and director of the
company. Eventually appointed as VP for Finance and Administration. In the course of the
performance of his duties, he was terminated as VP for Finance and Administration. Filed for
illegal dismissal. Will the LA have jurisdiction? Initial question is whether or not Coros is a
corporate officer. SC found that he was an employee therefore LA had jurisdiction.
A corporate officer is one that is in the Corporation code or in the Articles.

In Real vs. Sangu, Real was the manager of the corporation. Terminated due to loss of trust and
confidence. Case of illegal dismissal. Labor dispute or intra-corporate controversy?
Prior to Sangu, relationship test was used → enough to show:
a. When the controversy involves the corporation, partnership, association & public
b. Corporation, partnership or association & members, stockholders on the otherhand
c. CPA and the State when it comes to licensing, permits, franchises
d. Stockholders, members among themselves.

In Real vs. Sangu, use of the nature of controversy test → essentially, it is not just the
relationship that must be considered but also the incidents of the relationship to determine
whether the relationship is intracorporate; It must be shown that the controversy __ and the
internal/intra-corporate regulatory rules of the corporation; Whether or not the controversy
is intrinsically connected to the regulation of the corporation.

Real was a mere employee thus his case is proper for the NLRC's determination. His
position was not stated in the Articles nor in the corporation code.
 

[Type text]
Ramos vs. CA. wrongful administration of anesthesia, resulted to comatose. Initial decision,
there was employee-employer relations. On MR, court reversed itself. This is not a
generalization… not in all cases between hospitals and consultant-doctor there is no employee
employer relations.
 
PSI vs. CA. February 2, 2010
 January 2007, February 2008 on MR. May a hospital be held liable for the actions of
consultant-doctors allowed to practice within the hospital premises.
 In cases, where there is employee-employer relations, (four fold test)
 Respondeat superior → employer employee; Art. 2176 in relation to Art. 2180…
employer is liable vicariously for the acts of the employee.
 What if there is no relations? Possible through ostensible agency and apparent authority.
Ascribe upon the hospital if it is established that the hospital holds out to the public that the
doctors working within the premises of the hospital are doctors of the hospital.
 Hospital can be held directly liable for its own failure to ensure that no harm befalls the
patient. Established standard of conduct. Principle of Corporate Negligence.
 In the instant case, there was corporate negligence because management did not do
anything to find out where the missing gauzes were.
 No employee-employer relations because it was not shown that PSI __ means and
processes that the doctor did on the way they treated there patients.
 
Teng vs. Pahagac. November 17 2011,
 Master fisherman. Pahagac claimed that he was an employee hired by Teng. Teng
claimed that he entered into a joint venture with the master fisherman (maestro), it was the
maestro who hired them.
 Was the maestro a labor only contractor? Yes, because the maestro had no substantial
capital. Labor only contractor is only an agent. Based on the evidence established, they
worked for 13 years for Teng in the same vessel, given fixed annual salaries which grew
each year, Teng hired them, Teng controled their job by giving the instructions, Teng fired
them.
 Performed tasks desirable to the business of Teng.
 
SMC vs. Semilliano. July 5, 2010
 Employees in the bottling plant of SMC. SMC contracted out, but transferred the
employees to the contractor. Indp contractor or labor only contracting. AMPCO had a
capitalization of P1M. SC: the company only had about 22K as revolving fund for this…
main business is in trading and maintaining a store.
 Only a minimal protion was directed to the business. That does not satisfy the
requirements of independent contractorship.
 SMC remains the employer.
 Factors that establish independent contractorship:
o Whether or not the contractor is carrying out an independent business
o Nature and extent of the work
o Skill required
o Term and duration of the relationship
o Right to assign the performance of a specified pc of work

[Type text]
 o Control and supervision of the work to another
o Employers power with respect __
o Control of the premises
o Duty to supply the premises, tools appliances and labor
o Mode manner and terms of payment.
 
 
Lirio vs. Genovia. November 23 2011
 Studio manager (Lirio) engaged a composer/arranger (Genovia).
 7k per month was a mere advance and should be deducted from 20% share.
 Payroll summary, petty cash vouchers indicating the payment of monthly salary. Lirio
was not able to show proof of the "partnership"
 
Javier vs. Fly Ace Corporation
 Javier was an extra worker referred to as "pahinante". Contracted on a per trip basis and
paid on a per trip basis.
 Pakyaw basis is only a mehod of compensation…. Method determines employee-
employer relation? NO, such that pakyaw basis does not prove nor disprove the existence
of an employer-employee relation.
 If you claim a relationship then you have the burden to prove the relationship
 Testimony that Javier was in the premises of the employer is not enough to show
relations.
 
 
Kinds of Employment
Law favors regular employment.
 
Regular Employment:
Tests
1. Nature of Work Test: performance of functions desirable to the usual business of the
employer. Overall scheme of the business, not the separate activities of the employee.
a. Subject to exceptions provided for by law. e.g. teachers, 3 year period of
probation should be extended to teachers by virtue of the Magna Carta for Teachers.
b. Project employment: may cover activities which are or are not necessary to the
regular business of the employer.
i. Where an employee is engaged to undertake activities which is separate
and distinct from the other activities of the employer for a specific project or for
a duration thereof or for a phase thereof.
ii. 2 kinds: necessary or not necessary to the business of the employer
2. Length of Service/Duration of Employment: rule is that it should be for at least one
year, whether continuous or intermittent.
Permanent status under this test relates to particular functions or discharged. Thus if
the position has been abolished, permanent status is lost.
Not desirable to the usual business of the employer.
 Casual: does not last for more than a year, not necessary to the usual business of
the employer.

[Type text]
  Fixed term employment contract: range of time, for as long as the requirements
specified by the SC are complied with. Both employee and employer have
knowingly entered into without neither one of them employing…
3. Extended employment: distinction of project employee is important for this purpose.
a. Project ended but not terminated… permanent status if:
i. Necessary to the business
ii. Continuous rehiring for the project
 
Determine the specific circumstances around a case. If it is for a particular
project.
 
Probationary exceeds 6 months without prior termination becomes regular…
Commmences from the date of employment and ends 6 months later. Old rule.
Mitsubishi case. Compute according to civil code. 6 months = 180 days.
 
Seasonal employment. Legally terminates at the end of the season. Even without any notice of
termination to the employee.
In project employment, report to the public employment office (regional office of the
DOLE).
 
Possibility of regular seasonal employee. Will accrue to a regular seasonal employee but only
to those activities done regularly each season. Job A for employee X in Season 1, 2, 3, 4, 5 etc.
During off season there is only suspension of employee-employer relations. Employee may
offer his services to another. Obligation is that when the season arrives, the employee is
willing and able.
 
Fixed Term employment.
 
Mercado vs. AMA April 13 2010. under the magna carta for private school teachers. But can be
reduced by way of CBA, company practice, policy, agreement between employer and employee.
Possibility of a probationary employment and at the same time a contractual employment.
Practice is the probationary teachers were extended year to year contracts. Valid agreeemnt
and accepted practice in educational institutions.
Purpose: to determine if there was good performance in a year and to decide whether to
extend.
Part of management prerogative to determine the fitness of the employee.
At the end of the 3rd year and AMA determines that there was good performance, then the
4th year should be on regular
 
 
Canadian Services vs. __. Length of probationary period is immaterial (relatively) it is the
presence of substantial evidence proving that the employee was unfit.
Meralco, Gala case.
 
Agg tracking. CA: not reg employee because paid on a pakyaw basis, so at most seasonal. SC:
erroneous statement. Determination of regular status is not on mode of compensation.

[Type text]
 
Art. 282 is not a gauge of establishing employee-employer relationship but the four-fold test.
 
ARO. Prject employees entitled to full backwages until finality? Only until end of project.
If prior to end of project, and illegal dismissal… full backwages… if project is still ongoing
then reinstatement with full backwages until reinstatement… if project finished, then
entitled to separation pay and full backwages → from the time of ID until the completion
of the project or the phase of the project for whc he was engaged depending on
 
 
Cases on Pre-employment
Wednesday, June 27, 2012
8:14 PM
1. Relief of pretermination serrano vs. gallant maritime march 24 2009 5th par of
§10 of __ unconstitutional, equal protection clause of the Constitution
2. Yap vs. felomaris may 30 2011
3. Skippers united vs. doza feb 8 2012
4. Stolt-milsen transpo group vs. medikilo jan 18 2012 novation of a first
employmentn contract on eventual non-deployment
5. People vs. ochoa aug 31 2011 on illegal
6. People vs. taguinay feb 2012
7. Jones international manpower services vs. agcaolii-bart july 20 2011
8. Bright maritime vs. feb 8 2012 distinction of a perfection and commencement of
relations
9. Cf sharp vs. pioneer feb 15 2012
10. Aison v surf inc apr 16 2012 liability of an employer of an injured seaferer oand
who determines such liability
11. Disability: coastal safeway marine services v. esguerra aug 10 2011
12. Magsaysay vs. lobusta jan 25 2012
 
 
 
 
 
 
Pre-employment
Friday, June 29, 2012
7:43 PM
License Authority
  Limited in scope
  Must be specific to the places where __
refers to the document issued by the refers to a document issued by the Secretary of
Secretary of Labor and Employment Labor and Employment authorizing the
authorizing a person, partnership or officers, personnel, agents or representatives

[Type text]
corporation to operate a private of a licensed recruitment/manning agency to
recruitment/manning agency. conduct
To operate a recruitment agency Authority to conduct recruitment and
placement
 
Migrant Worker: refers to a person who is to be engaged, is engaged, or has been engaged in a
remunerated activity in a state of which he or she is not a citizen or on board a vessel navigating
the foreign seas other than a government ship used for military or non-commercial purposes, or
on an installation located offshore or on the high seas. A "person to be engaged in a remunerated
activity" refers to an applicant worker who has been promised or assured employment overseas.

Continuation (Block B class)

[Type text]
Declaration of Policies as provided in RA 10022 (expound on the points below to make it more
complete)

1. Independent foreign policy

2. Full protection to labor
3. Equality between men and women
4. Free access to courts and quasi judicial bodies
5. Rights of overseas workers to participate in Democratic decision making process
(ex. Right to suffrage)
6. Possession of skills by migrant workers (most effective measure of protection)
7. Recognition of non governmental organization

*since it is not the government policy to promote overseas employment, the government should
create more employment opportunities in the domestic or local level

*Migrant Worker
-before: OCW
-later: OFW
-8042: migrant worker
-10022: migrant worker or overseas Filipino worker
-take note of definition

* “person engaged in a remunerative activity”

-person who is promised or assured employment abroad

*recit ko

*authority must be specific as to where such authority may be operative, any recruitment beyond
that would be illegal recruitment activity

*Direct Hires
-worker is directly hired by foreign employer without participation of any recruitment
agency
-directly engaged by a foreign employer but with assistance with pertinent government
agencies
-includes: a) name hires: without assistance of private or government assistance agencies
b) hired by members of diplomatic corps
c) hired by the UN and other international organizations

*Qualifications or requirements before one can qualify to engage in recruitment and placement
activities

1. Citizenship requirement
a. single proprietorship: Filipino citizen
b. corporation: 75% Filipino
2. capital requirement

[Type text]
 a. Single proprietorship: 1 to 2 million
b. Corporation: 1 to 2 million
3. does not possess any of the disqualification (p. 13 beda notes)
a. travel agencies and sales agencies of airline companies
b. officers or members of the board of any corporation or members in a partnership
engaged in the business of a travel agency
c. corporations and partnerships, when any of

*penalty upon an agency who’s license is revoked or cancelled or suspended but continues
regular business operation
-perpetual disqualification (?)

*a license was issued in the name of a Filipina but a foreigner controls the business as in fact. If
a migrant worker was deployed and subsequently returns, does he have a cause of action against
the agency?
-violative of (n) under illegal recruitment definition
-possible cause of action: illegal recruitment
-may a licensed recruiter be held liable for illegal recruitment? Yes.

*heading or managing
a. control and supervision
b. hiring and firing

*when there is an overseas employment contract, where lies the eer?

-between the foreigner/employer and worker
-against whom may the migrant worker be claimed?
-foreigner/employer and local agency

*basis of liability of an agency with respect to valid money claims of migrant workers when in
fact there is no eer between the worker and the agency?
-liability of agent based on a contractual obligation not on eer
-there is a contractual obligation by recruitment agencies when they apply for
license. License is issued subject to commitment that they satisfy c claims of workers
based on breach of the employment contract. They serve as guarantors for the foreign
principal.

*may agent be held liable for injuries inflicted by the principal if the agent acted within his
authority? no

*joint and solidary liability

-for protection of migrant worker
-imposed on foreign principal and local agency
-coverage:
a. starts from point of receipt of application
b. agency
-if there is a substitution of agency:

[Type text]
 -the original and substitute agencies may be claimed against
-if the recruitment agency is a corporation: corporate officers, members of the BOD or
those person who have direction of the management of the corporation
-can these persons raise the defense of veil of corporate fiction?
-no.
-would the same apply outside overseas employment (recruitment and
placement)?
-no, unless the officers or members acted in bad faith

*documented v. undocumented migrant workers

Documented migrant workers Undocumented migrant workers

a. Have valid passports, visas or permits to stay a.

b. Contracts of employments have been

processed by the POEA

There are certain benefits accruing to documented migrant workers which the undocumented
migrant workers may not avail of.

*illegal recruitment
-period now specified: “from the signing of contract to its expiration”

*2 general classifications of illegal recruitment

1. economic sabotage
a. syndicate
b. large scale
2. ordinary

Simple Economic Sabotage

Victims or perpetrators do not exceed 2 Victims or perpetrators exceed 2 or more
persons
Not less than 12 years and not more than 20 Life imprisonment with a fine of 2 to 5 million
years (1 mill to 2 mill) unless acts fall under
the prohibited acts in which the penalty is 6
years to 12 years (500k to 1 mill)
Prescribes in 5 years Prescribes in 20 years

*suppose you own a licensed recruitment agency and you recruited a minor 16 years of age, may
you be held liable for illegal recruitment
- yes. IF ILLEGALLY RECRUITED. IF LEGALLY RECRUITED, NO LIABILITY.

*suppose you are not licensed and you recruited a minor and you failed to deploy without fault
of the minor, illegal recruitment may be filed.
-proper penalty: maximum penalty

[Type text]
*who has jurisdiction over illegal recruitment cases?
-penal provisions or criminal actions: regular courts (RTC)
-venue: where crime was committed or where the worker resides at the time of the
commission of the crime

*remedies and jurisdiction with respect of COA of migrant workers

*a migrant worker was required to pay a placement fee double the amount allowed by law. He
completed the 3 year contract and all benefits were paid and he came back to Philippines after
fulfillment of his contract. Does he have coa against the agency?
-yes.
-COA: a) Criminal
-illegal recruitment
-with RTC
-if brought to POEA, it should assist the migrant worker to file his case
with the prosecutor
b) civil
-money claim
-excess of the amount with 12% interest per annum
-with LA

c) administrative
-with POEA

*new rules specifically identify 2 administrative cases the POEA has jurisdiction of:
a) pre employment or recruitment violation cases
-pertains to violations of rules ad regulations in connection to license authority
and ___________
-reprimand, suspension of license
b) disciplinary action cases
-against whom: migrant worker, agency, foreign employer
-possible sanction if filed against foreign principal or employer
-perpetual disqualification in recruitment activities in the Philippines
-suspension, etc.

*if license suspended

-may file motion to lift order of suspension based on a valid ground
- if without ground: it may offer instead the required amount as required by law
-50k per month

*theory of imputed knowledge

-extended contracts of employment without knowledge of the agency
-agency cannot be held accountable because the knowledge of the principal cannot be
made to be the knowledge of the agency

[Type text]
*POEA DIRECTOR (if someone brings a case for illegal recruitment)
-make a surveillance
-check veracity of the report
-assist the litigant

*Mandatory insurance coverage

*different programs provided by law to migrant workers

*Repatriation

*Theory of imputed knowledge in relation to Sun Ace case

-pertains to issue of WON local recruitment agency can be held jointly and solidarily
liable with foreign principal based on extended contract of employment
-if there is an agreement as to extension but without knowledge of recruitment agency, no
liability on the part of the latter
-imputed knowledge
*Sunace case: theory does not apply
-who’s knowledge is being imputed upon whom?
-knowledge of principal being imputed to the principal

*Jones Case

*Mandatory Insurance Coverage (Rule XVI, RA 10022)

-“mandatory”: there are sanctions for its breach

*Repatriation
- Principal obligation of agency and foreign principal
- If the above refuse because of breach of contract by the migrant worker: they are still
mandated to repatriate the migrant worker

-while dispute ongoing:

-while recruitment agency may question or raise valid defenses against
shouldering liability, in the meantime while not settled it is the primarily liability of the
foreign principal and agency. After determination, only then will there be reimbursement
if appropriate.

-obligation of above continues even after the contract up to the time the migrant worker is
safe home or safely transported back to the Philippines especially when the latter has
medical complications

-instances of emergency repatriation: demands immediate repatriation

-principal liability of government through OWWA from emergency fund (mere
advance, subject to reimbursement)

1. war

[Type text]
 2. epidemic
3. etc.

-medical repatriation
-determination by a physician of necessity
-from host country to point of hire or country of origin accompanied by a
physician or medical personnel provided by ambulance or common carriage
-travel must not be beyond 14 days from date of discharge

-medical evacuation
-place of migrant worker is distant from medical facility thus he needs to be
transported for medical assistance

*Compassionate visit
-the ailing employee is given opportunity to choose one of his family members to visit
him and the latter is given if migrant worker is confined atleast 7 days

*Other benefits under mandatory insurance coverage

1.accidental death
-15k US dollars
2. natural death
-10k
3. subsistence allowance
4. etc

*do not bargain if there is an appeal bond

*steps
1
2
3

*CASES:

Coastal v. Esguerra
-Permanent Total Disability
-
-basis of granting this claim: RA 10022

*GR: there should be a consultation with company physician

-except if shown sufficient excuse

incase there is consultation

-seafarer may accept or contest
-if contested, may seek second opinion
-court is not bound by company physician’s findings

[Type text]
*PTD under Labor Code v. PTD under standard approved POEA Contract (Magsaysay Case)

Non resident aliens

Case:

if a non res alien worked in the Philippines as she was employed or hired to serve as VP
for a company but she did not have requisite alien permit. Assume that there was illegal
dismissal. She filed a case for ID but er contested because she was a corporate officer and
therefore LA had no jurisdiction. The position is not provided in the aoi even if created by BOD.
SC: not a corporate officer; labor dispute so LA has jurisdiction.

La awarded separation pay and full back wages. Assume that it took 1 year for decision
to be final and the employee had been working for 1 year. SC: Since without alien permit, not
entitled to back wages. (WPE Marketing case, 2011) violation leaves her without relief incase of
illegal dismissal because of absence of the requisite alien permit.

Cases:
a. Century canning aug 17 2007
b. Atlanta jan 26, 2011
c. Wpb marketing jan 2011

Can you choose not to file MR and file another remedy in AEP?
Appeal to the SOLE w/in 10 days
If he wants to work again he needs

VP for domestic corp no AEP and he was terminated

Where shall the non-resident alien file for illegal dismissal:
Qualify if VP is a corporate officer under the CBA, and reso of board subsequently
ratified

Ordinary EE and LA found illegal dismissal what would be the relief

Wpb marketing jan 2011 or 2010 this case has stated that because no AEP he should be
left as he is
You can declare he is illegally dismissed but no reliefs can be awarded

Nationalized business
The implication is that Filipino wholly owns or part of the percentage is Filipino
Qualify if it is sole or corporation

Is the employment of foreign citizen allowed: qualify

Instances take note of this

[Type text]
 1. technical or supervisory positions
2. SOJ authorizes
3. Governing board member but management must be Filipino

Human Resource Management

*middle source:
not graduates of college degree but with skills learned either through practical job
trainings or educational, technical trainings; college drop outs; college students who were not
able to complete their tertiary education.

*Go over TESDA ACT: take note of definitions

*in case of learners, apprentices and handicaps

-rule: they should be compensated; generally even at lower than minimum wage
-exception: need not be compensated
-program undertaken in order to complete college education or taking a board
education

*learners:
*apprentices:
*handicaps

*Apprenticiable occupation:
-Tesda act: one approved by the Tesda as such and defined as such
-requires a longer period of training
-requires application of scientific technology

*learner:
-merely semi skilled occupation
-Learners can only be hired with no regular EE available
-But they can hire when it comes to handicap workers

*handicap
-there is commitment to hire them after training; no such commitment for apprentices and
learners

*apprentice: probationary period is the period by which either the apprentice or employer may
pre-terminate the program with or without valid cause; they can only terminate if before 6
months but under valid grounds.
-grounds:
1.there is inhumane treatment by the er;
2.if there is deleterious activities;
3.ee has been sickly and not able to comply with requirements of the
apprenticeship;

[Type text]
 -for the employer
1.if the apprentice has been sickly and the latter cannot continue with the demands
of the program
2.if the ee had behaved in such a manner that he has been destructive as to
company property;
3.habitual absenteeism of the apprentice

if er is unable to carry on the apprenticeship program, is there a remedy?

-Assuming without bad faith.
-They can be transferred to other employers.
-If er cannot provide for other requirements such as theoreticl instruction, it may be done
by other er or tesda.

*terms and Conditions of employment until wages (READ)

Important things to remember:

Coverage
If one is not covered, then not entitled to benefits under hours of work

Hours of Work
What are benefits under hours of work

1.normalworking hours
-Generally: 8 hours
-There are exceptions
-Implication of 8 hours: employee is entiled to rest after working his normal work hour
-He cannot be compelled to work overtime
-If compelled to work during emergency situations, entitled to overtime pay or
compensation

2. entitlement to night shift differentials

3.right to meal break

-Atleast 1 hour
-Less than 1 hr: compensable as a general rule

4.right to rest day, holiday, rest period

-Consider if special or regular holiday

-Special holiday is the same as special day

-For purposes of computing premiums

5.Service incentive leave and service charges

*COVERAGE

[Type text]
 -Art. 82 of LC, speaks of all employees being covered
-All employees in all establishments except gov ees

For gov ees, with a qualification

-only those in CSC rules are exempted
-but those governed by LC are covered

If they work for GOCC’s incorporated under corporation code, LC applies or governs their terms
or conditions
If GOCCs have original charter, CSC rules apply

Art. 82 makes references to field personnel

Not all FP are exempted, look at qualifying phrase (only workers whose work are outside
office whose work cannot be determined with certainty will be excluded)
Distinguish between supervised FP and unsupervised FP
If with field supervisors: qualify for benefits

House Helpers
-those who cater to personal needs of employers
-there is a diff chapter devoted to their terms and conditions of employment
-not covered under coverage
-qualify:
What if er does job/business at home, would that make the ee one in the personal employment of
another, as to exclude him from hours of work?
-Depends on kind of service rendered
-If in pursuance of business of eer and not just personal comforts: regular
employment, not domestic service
-Not place of performance that is important but the nature of service or work

Managerial employees
-Also excluded in the coverage
-Article 212 under labor relations
-same as art. 82? No

212 82
In reference to exclusion also but from For purposes of determining who are
exdrcise to right to self organization exclucedde from benefits under hours of work
Broader

Are those referred to in 82 also have no right to self organize? Qualify

Not all the ees under 82 are excluded
Those excluded:
a)incharge with management of establishment
b)Have power to hire or fire ees

[Type text]
 c)direc the work of the employees

three kinds of manerial eers

1. top management
2. middle man
3. first line

first line managers: supervisory employees

-have right o self org;
-LC expressly provides except that they cannot join RFE LO

Middle and top:

-No right SO

Would supervisory employees be entitled to benefits in hours of work?

-No because they are considered as ________________

In 212: managerial employees not necessarily includes members of the managerial staff
In 82: include managerial staff
-But may be excluded to Right to Self Organize if work considered highly
confidential
-Doctrine of necessary implication
-Also exclude to right ot SO

Diff conditions which confer status as officer or member of managerial staff

1)performs duties directly related to management of the establishment
2)when his duties involve discretion and independence
3)When he assists the proprietor or officer
4)When portion of his work, nor part of those enumerated, do not exceed 20%
5)His work involves tech and specialized skills and training

Other exclusion

Family members of the eer who are dependent to er for support

They probably derive morebenefits from the er than those in hours of work

Workers paid by results

-Piece rate v. tasked workers/pain on pakyaw basis
-Not all these are exempted but all paid on pakyaw basis are exempted
-Because they are paid based on completion of task assigned; not time based

For piece rate, qualify

-Compensation is based on determination of units of output multiplied by
applicable rate

[Type text]
 -WON the ees are entitled to hours of work for one would depend on rate used in
paying compensation
-If the eer pays the piece rate workers based n rates fixed by DOLE or similar
agencies then ees are not entitled to benefitsunder hours of work
-If eer unitlateraaly imposes the rheate, eer tohas to obligation to make up
difference between amount earned and min wage
-SC: include payment of benefits such as night shit fidd , overtime, holiday pay,
rest day pay, etc

Who to determine the applicable rate by DOLE?

-Basis is rate of output or no of unit by an ordinary output belonging to lower
50% of that establishment in one day
-Day is usually based on 8 hours
-Assume can complete 100 pieaces and min wage is P300
-rate per pice? 300 / 100
If employee can produce 200 units: P600

In some case by SC distinction is made between supervised and unsupervised

If such that the ee made to work: entitled to benefits of hours of work

Different rights or provisions

Normal working day: 8 hours

What if eer regularly operate less than 8 hours a day because of nature of business?
Will eer have obligation to pay 8 hours usual pay or min wage? Yes
Must be fully compensated with atleast minimum wage

Differentiate if operates 8 hours but accepts parttime ees

If ex. Parttime ee works only 4 hours as normal working hour
If normal daily wage is 300 pesos a day
Consistent with principle of fairness, there mustbe reduction

Are all ees entitle to 8 hours a day?

GR: yes
But there are ees who are entitled to less based n provision of law
1)public health workers

Regular working day or week

LC: 40 hours per week; 8 hours per day for 5 days
Exception: in cases of exigencies of service, they may be made to work on 6th day
Additional compensation is 25% if regular day; 30% if holiday, rest day ( in this case 30%)

[Type text]
Who are health workers?

Prerogative of eer to compress a workweek?

Allowed
Regular workweek 48 hours a week in 6 days
Compressed: 48 hours in a shorter number of days
If you have a compressed WW to 5 daysonly for ex, each day is more than 8 hours, would there
be OT?

Depends with compliance with the ff:

1)scheme is voluntarily supported (here is an agreement between eer and ee affected)
2)When work involves hazardous equipment or activity, there must be a cert from _
3)Dole has to be notified
4)Must not be 12 hours per day
Take home pay must bnot be reduece, must be comparable or better
Theremust atleast be 60 mins break
Work mut not be stermous
With adequate facilities
Must only be a temporary arrangement
For a necessary/legitimate business prupose

If compressed but still required to work on sat? considered as overtime work

Reduced work week

Inlinton: reg sked was 8 hours a day for 6 days, eer offerd imposed a reduced work sked from 6
days to 3 works a day due to emergency. Anythingg that my threaten sec of tenure or pay of ee
requires certain conditions. Valid depends on legitimacy of reason,1) tehr emust be proof of
subst financial losses suffered by eer or the business; 2) must be shown that other remedies have
been exhausted and these did not work; 3) notice to DOLe; 4) temp agreementin writing; 60
there must be a prior agreement ofr concense between eer and ee to get consensus of ee (means
ees must constent before RWW is mplemented on a temp basis)

Hours of work
LC and its IRR
Under art. 84 of LC: 2 provisions only
Hours of work; allthe hours which an ee is req to report for duty….
Hours devote fofor interest of eer: compnsble. Etc.

Work sked is mamgement prerogative

Eer cannot simply choose to work overtime; er has to approve

Inc ase of replacement , guard cannot leave the post if replacement still not present
Not entitled to pay unless with knowledge of supervisor

[Type text]
work interruptions of short duration

temporary work stoppage may

if economic strike? Not entitled to back wages if reinstated and asking BW during time of strike
if ULP? Entitled because nnot a matter of choice ont eh part of the empoyer

is waiting part compensable? Depends?

If waiting time is part of job? Yes
If waiting to be engaged to work? No

Traverl time if part of work: compensable even if outside work day or rime oplace

Attendance to seminars, grievance meetings, etc.:?

During quiz there will be computation!

Normal working hday:8 hours

May be reduced
If demanded by nature of business or usual operation of employer

Facilities: tools and implements provided by er for the benefit of the ee and his family

Supplement:

If min wage is 320

May have cash component and facilities
Vefore facilities be deducted from cash component
1.facilites is a csutimary practice in that particular line of business
2.Privision of facilities has been customarily, consistnecly provided by er over a reasoble period
of time
3.Fair and reasonable valuation should be deductec:
-er should not derived any profir or anyone under him
There should be indl written authorization from ees

Basis wage is impt in order to determine proper benefit that may accrue to an employee
“may”: depends if covered or exempted

Overtime Pay
Comes after rendering service beyond normal work day (8 hours)
What is material is the determination of:
No. of hours rendered beyond 8 hours

[Type text]
If monthly pay is given:
If ex. Monthly pay is P10,000
Get daily compensation first
Depnds how many days are considered worked
Get total annual basic wage and divided by days considered worked
Days considered worked: exclude from 365 days and exclude Sundays in a year
Etc.

Hourly rate must be the applicable rate!

Meal breaks
If shorter than 60 mins:
Should not be strenuous, etc.

Holiday pay
May be regular or special
RH:
National muslim holiday: observed nationwide
Regional muslim holiday: only in muslim region (all entitled); if outside muslim region (only
muslims)

2 conditions of holiday benefit

1.must be a regular holiday as provided by law
2.presence of ee or leave with pay during succeeding day

Piece rate workers: GR: not entitled

Exception: there is a occupation
How: get average earning withint 7 days immediately following(?) the holiday
Must not be lower than min wage
If rate is det by eer
If rate is det by sole

Service incetive leave

5 days leave
Convertible to cash
All the leave benefit an ee has in the private sector
Rule: if er is paying SIL before LC effectivity, this will be sufficient compliance with law unless
than wha the law provides in which case the eer shoud make up for the difference
Hernandez v. NLRC
Cebuana lhuilier case
Lots of ees are not paid SIL from the very beginning even before LC. They were illegally
dismissed. Withint pres period, they filed ID with money claims including SIL. How to construe
the 3 year prescripetive period for money claims
Under the LC; money claims arising from ere e prescribe in 3 years, ID: 4 years

[Type text]
Assume for the ssake of discussion that ee was dismiseed june 1 2010. On the same day a case
for ID was filed. La found ID. Assueme that ee was employed since 1980, LC was already in
effect but never paid. They are enditled to receive. When to start computation? Ordinarily, if
money claims, just go back 3 year sback,. In this case, 3 years refers to limitation of period
within which a cauase of action may ne brought. If a worker has a money clia, he has 3 years to
birin go court. This perios hould not serve as limitation in the computation of benfit. In this case,
timely filed. Compute sil from time they becae entitld to SIL upto 1)if for sep payL afte finality
of dec; if reinstatement up to reinstatement wheter actual or in the payroll. Had the ees nnot been
illegally dismissed, the workers would have been working earing their wages.

If in the above problem. Everyday, 2 hours of OT is not paid. Howmuch is the worker entitled?
Assume beginning point is june 1, 2007 (3 years from 2010). Recover only 3 years back. From
june 1 2007 up to 2010 only

Service charges
Depednds on kind of establishement applies to hotels, bar, resto,
Generally provice SC
Out of collected amount from customers
85% to workers (shared equally by covered ees)
15% to management for breakages
If giving is constent for a long period of time,

When OT may be compelled or imposed:

Rest day:
A;though ees preferce is primary but if it causes prejudice to eer, compromise: atleast 2 weeks in
a month for ee’s preference

Overtime and undertime

Undertime of another day cannot be offset with overtime of another day
This alw refers to two different day
Undertime: regularly hourly rate
Overtime: with additional compensation
What only can be offset is that of same value
If same day: generally not allowed.
Exception: where available leave credits were used so that is fi there is no undertime

13th month pay

Mandated
So longa s worked for atleast 1 month
Whatever status (exception)
Unless commission
Total annula basic awge / 12
13th month pay or its equivalent
If provided in cba or contract that bonuses are also 13th month pay

[Type text]
If no provision: 2 diff benefits
Gauges
1.intetion
2when availed

14th month pay is not the same as 13th month pay

Just like any other bonus (14th month pay)

13th Month Pay

Atleast 1 month of employment
Computed by taking aggregate annual earning dividing by 12
Result is the 13th month pay

If pay is the same every month, 13th month pay is equivalaen to a month

Excluded
1.Government employees
There is a law that governs their 13th month pay
2.Those already enjoying the same benefit
3.Purely commission basis
4.paid on a boundary basis
5. paid on Task basis
6. domestic helpers

13th month pay v. bonuses given out of generosity

Latter are gen not demandable; stat bonus like 13th month pay is demandable
Even if er is in financial distress
May become demandable if no condition attached to giving of some beefit
If given persistenely or consistenly for a period of time (especially ompany practice)
Proceeds from contractual obligation
CBA
Empl contract
Where demandable as matter of right, ceases when er is in financial distress
Sometimes called signing bonus

Service Incentive leave pay

Art. 82 provides for those included
There are additional exemptions of ers:
1.those already providing equivalent benefit prior to enactment of law
2.those paying 5 days vacation leave at least
3.those regularly employing less than 10 workers are not obligated

Other than SIL, there are no other leave benefits provided for under LC
Maternity leave benefit has been repealed by SSS act as amended

[Type text]
If we say ML: provision of SSS act
But there are other laws passed granting special elave benefits or addl leave benefits to workers
especially to women

Benefits in the employees of private sector

SIL
5 days of leave with full pay
May be commutable to cash if not used
In retirement, SIL is included in the computation

Maternity leave benefit

Under SSS act of 1997
Equivalent to 60 days leave with pay based on average daily credit earned; or
78 days with pay in case of delivery by cesarean section
Requirements:
1,mom must be aworking mom (immaterial if mareid or not)
2.within 4 first deliveries or miscarriage
3.there must be prior notification submitted by pregnant woman atleast within reasonable period
of time giving notice of expected date of delivery (to er, and er notifies SSS)
Prior notice not required in case of miscarriage
Er advances payment, atleast 30 days from time of application
If er was notified but SSS fails to notify: SSS will or may not be accountable
Er will be made accountable to damages equiv to the maternity lave pay
If er fails to remit contri of the ee and the coutner part of er, ss may not be held liable to f
matermnily leave benefit
Er will pay for MLB
4.paymnet of atlest 3monthhly contribution within 1 year period immediately preceding semester
of child birth
May not be claimed if not followed

Paternity Leave Benefit

7 days leave with pay
Working days
If no work, not deducted from 7 days leave
Conditions:
1.pops whose lawful wife delivers a child or suffers miscarriage must be cohabiting with the
lawful spouse
2.prior notification
Notification within reasonable period of time

Seven days may be apportioned, may be before, during or after delivery

May not be commuted to cash

Solo Welfare Act

In reference to parental leave
(qualification in this leave is that the parent is taking care of the child or has custody of the child)

[Type text]
Must be not more than 7 working days
Purpose: enables parent to attend to whatever the Child needs
who are solo parents:
1.those who are unmarried but who have children who are in their custody
2.those who are married but legally separated or separated in fact
3.unmarried but adopt a child
4.so long as adult sibling is a head of the family
5.the once spouse is incarcerated or is serving sentence and custody is left to the other spouse
6.One spouse has become physically or mentally incapacitated and custody and rearing
7.Victim of rape and she raises the child on her own
8.One abandoned by the spouse

For women victims of violence

Under RA 9262
Not more than 10 days
Leave with full pay

Magna Carta for Women (Ra 9710)

Special Leave Benefits
Leave with full pay for 2 months
Woman who needs surgery due to gynecological disorder
Anything affecting the repro organ of a woman and those related
Condition :
1.Must have an aggregate con work of 6 mos within 12 mos prior to surgery
2.Proper notification
Unless operation is immediately required
Notification or in writing may be done immediately after the surgery

WAGES

Definition

Who are covered under these provisions and not covered:

Includes: all ees, except:
1.farm tenancy
Household
Homeworkers in needle works
Etc. (research)

Who are deemed agricultural workers: those who are engaged in farming activities

Minimum wage (definition)

How to fix minimum wages
By NWPC (national)
Regional Wages tripartite board (Regional)

[Type text]
Min wage fixing
Regionalized

Role of NWPC
Composition
Body or agency that gives advisory on formulation on minimum wages
…..

Who formulates policies and guidelines from exeptions of min wage orders: NWPC
Although RTWP fixes RTWB, board only follows policies formulated by NWPC

How minimum wage fixing initiated: motu proprio by board or petition filed by interested party
Notice to public through publication or posting
There must be public hearing and consultations by the board
Within 30 days form last consultation: wage order issued
Basis of wage order: (criteria
Art 124
Refer to NWPC guidelines
1.needs of woking man dhis family
2.Capacity to pay by eer
3.Standard of living
4.Need of counry side for development
5.Equit dist of wealth
6.Prevailing wage levels
7.Wage adjustments
Oppositions may be submitted or other petitions for wage order may be filed (consolidated)

When is the wage order considered effective: 15 days from publication

If one party would like to question wage order: Appeal
If by the Board: to NWPC
10 days from date of publication

Can the WO be subject of TRO or injunctions? No.

If an appeal is filed: WO is still effective unless the party appealing files a bond
Bond sufficient to answer for any damage to be sufferd by employers

Wage distortion
Results from implementation of wage order
Hierarchy of position and wages correspongin to heirachy of positions
There are intentional differences
If complete obliteration of these intentional differences
Prerogative of er to address that

Wage distortion 1st hour

Matters concerning wages

[Type text]
Forms of payment
How made
Prohibitions concerning wages
Different powers under 128 and 129

2nd hour: special workers

Book IV

Social legislations

Wage distortion
There is a hierarchy of position with hierarchy of wages. Gaps are really intended. When a wage
order is implemented, this way result towage distortion in the region where the differences is
present. The gap is completely obliterated or substantially contracted.

Elements:
1.operation in the same region

Resolution depends if organized or unorganized establishment.

In Organized Establishments
1. negotiation: between employer and union
May follow CBA procedure nor availment of grievance machinery or dispute settlement .
2.if cannot settle in the first level, resort to voluntary arbitration.
Binding decision.

If unorganized establishment
1.eer and ees sitting down together to resolve the problem
If resolution is adopted: resolved
2.if they fail to arrive: mediation by NCMB
3. unresolved after 10 days of conciliation, refer to NLRC (LA)

Suggested Formula

Existing min wage/actual salary = (quotient) x prescribed increase = Distortion Adjustment (to
be added to existing wages)
Ex. If Min wage: 270; increased to 300 (increase of 30)

A: 270+ 30 = 300
Same as B already
If B is direct supervisor of A, there may be problems because of same pay despite difference in
responsibilities
Company has to adjust

Solution:

[Type text]
270/300 x 30 = adjustment (27)

B: 300+ 27 = 327
There might be problem again because only difference with C is P3

Solution:
270/330 = 24.54

C: 330 + 24.54 = 354. 54

Original distinctions are not usually restored

Unless they just agree on a specific amount
This is merely a suggested formula

FORMS OF PAYMENT OF WAGES

Must be paid in legal currency

Exception:
Through checks
Conditions:
There is a written consent of ees concerned
Reasonable time for ee to withdraw from the bank
Considered compensable if…
There must eb a bank with a radius of ….
Er or anyone under him should not benefit from the arrangement

How often
Twice a week
Or twice a month in intervals not more than 16 days

If wages are determined by task basis:

Same rules as above
Basis of payment of wages: proportionate to amount of work done
Completepayment should be done upon completion of tas

Where to be paid
GR: at the work place or near the premises of the er
Unless:
There is a _ wherein the eer cannot pay the wages in that place
…
Condition:
Provde free transportation back and forth

Inside casinos? Enternainment places?

GR: no
Exception: if that is their workplace

[Type text]
To whom paid:
Directly to ee
Except:
1.third person in case of written consent of ee
2.To heirs of ee where there ________
3.To members of the family of ee where there is written authorization from the ee
4.when indirect payment is allowed by law or ordered by the court

If worker is deceased
Legal heirs must execute an affidavit that they are the heirs

Lawful deductions from wages of ees as required by law:

1.sss
Medicare/phil health
Pagibig
Debt due and demandable
Absences
Rest and meal periods
Damages or losses incurred subject to certain conditions
a. Er is engaged in business or uundertaking which allows deductions for loss or
damages
b. Ee should e te one resp for the loss or damage
c. Ee must be giben opp to be heard
d. Should not ne pre than 20% of ees ___ wage
e.

Fact alone that there is a debt due to 3rd person does not vest upon er the right to deduct
Only that owin to him whichis due and demandable

PROHIBITIONS ON WAGES
Payment not in legal tender
pAyment in night clubs etc. unless ee working there
Against diminution of wages
-considered compressed work weeks
-consider fact of allowance by SOLE
Interference of er on how wage to be spent
Deductions not allowed by law or consented by the ees
Kickbacks
-percentage or an amount from wages withheld by eer for the purpose of employment,
promotion, and the like
-nature of an extortion
False reporting
-usually in payrolls where false info are indicated like ees woked regular time but infact there
was overtime

[Type text]
-prohibited
Er to commit any retaliatory actions agains the ees possibly for having testified against thm or
complained or their relative or any one close to them
-possible retatilatiory actions by er:
Withholding or dimunition of wages
Demotions
Acts of discrimination
Dismissal
Requiring to make deposits for loss or damages unless the conditions would obtain
Prohibited to pay 3rd persons the wage of ee unless with written consent from ee or is allowed by
law or there is a court order

WORKERS PREFERENCE IN CASEOF BANKRUPTCY

there must first eb ajud dec of insolvency

condition precedent

application is not that simple because of preference of credits in the CC

art. 2041, 2042: lists order of preference of special preferred credits both as to movable and
immovable assets fo the insolvent ee
art 2044: ordinary preferred credits

as to workers:
preference to ees are not just as to unpaid wages but as to all unpaid money claims of the ee
owed by er
there should be judicial declaration of insolvency
Rule in 241: 6th
In 2242: construction, repaid or a building, canals, and the like: 3rd
In 2244: 2nd
110 in the LC: ees are given preference
Reconcile provisions of CC and LC:
Art. 110 does not apply to amend the orders of prefence in the CC with respect so specific mov
and mimov belonging to eer: same order of prefenree in CC
Bu refence to working man pertains to an ordinary preferred credit
Rule in 2044 will be followed
But sine provisions in the LC on workers prefrnce are of more recent, this effectively amends
2244 (for some authors)
It must be first in the order of

ATTORNEY’S FEES
May either be ord or eo

O: collected by atty arising form the atty-client relationship

EO: awarded by court to the ee
Art 111
Attorney is not entitled to the fee; it is for the client

[Type text]
Cannot exceed 10%
LC does not distinguish 10% imposition as to O or EO

Usual rule
If awrd of attys fees ina decision: for the account of the ee or of the client
Not revceived directlfy from court but form client

labor cases where attys fees may be charged

unlawful withholding of wages
not a limitation as to the nature of actions wehre AF can be asked for
illegal dismissal
unpaid money claims
unpaid money benefits
if it involves provions of CBA
etc.

ART. 128 AND 129

128 129
Powers granted Visitorial and enforcement Adjudicatory
To whom granted SOLE or any of his duly RD
authorized representatives or
agent; includes RD
Limitation as to amount No limitation because old Not more than 5k
subject of claim provision as to limitation has
been amended and removed
Matters subject/ issues/ Any violation in labor Only as to recovery of money
Causes of action standards or labor standards claims, wages, and other
concerns (wages, hours of related money claims
work, benefits, det of safety
health and sanitation of the
place of work)
How powers initiated or 1.inspection by SOLE or rep 1.there must be complaint by
invoked (what triggers their motu pro prio or by petition an ee wherein and payment of
exercise?) unpaid wage is less than 5k; If
for Illegal dismissal: OEJ of
LA under Art. 217 of the LC;
or if with claim of
reinstatement
Presence of eer Eer-ee relationship necessary; Eer-ee relationship not
necessary at time of filing
If in course of inspection, ees ;immaterial if at the time of
are separated from filing of complain there is or
employment: power will not there is no EER; there must be
be affected causal connection between

[Type text]
 relationship and money claim
They may still benefit from
ruling such as unpaid wages
House helpers or domestic
helpers

Complainant invoking adj

power of RD need not be HH
or DH; refer to any kind of
workers so long as below 5k
-refernce is only to emphasize
that they are included
Remedies: DOLE may issue compliance If RD issues an order
orders
Remedy of party: NLRC
Remedy of party: appeal to
SOLE within 10 days

Grounds Any violation of labor Fraud, graft, coercion; pure

standards; grave abuse of questions of law; serious
discretion errors of findings of fact by
RD then appeal can be made
Bond necessary to perfect to NLRC
appeal
Bond NOT necessary to
perfect appeal

Conditions to divest SOLE or No more eer

representative for enforcement (matter of evidence; not by
powers mere allegation)
If there is a protest or
controversy or issue relation
gtoexistence of eer that cannot
be resolved in the ord course
of inspection, SOLE and rep
are deemed divested
Does SOLE have power to
determine eer? (Later case of
bombo radio): Yes. Incidental
to exercise of vis and
enforcement rights

If parties ? findings of SOLE

and his rep to the SOLE or to
CA as the case may be

[Type text]
 SPECIAL WORKING GROUPS
Women children
HH
Industrial workers

WOMEN WORKERS
Art. 130 and 131 of LC
Night work prohibition against women
Not supposed to work at night
No longer good law
Amended June 21, 2011 (RA 10151)
Possible health assessment undertaken by eer if requested by workers in order to receive advice
on how to avoid health problems in connection to work; if night work is assumed
For health reasons or pregnancy or some sensitive conditions, she can also request that another
position or work be given her to avoid night work
Option may be granted only if it will not affect company productivity
Period already immaterial
Special facilities remain
Separate lavatories, dressing rooms when necessary
In case demaded by physciological make up or helath condition, request for seating facility so
long as does not hamper performance
Nurseries fr nursing mothers (for babies or infants still being nursed)
Fam planning programs
Maternity leave benefits (60 days leave with pay or 78 days leave with pay with certain
conditions)
Under LC, several proc against discriminations involving women workers
1.payment of lesser wages or benefits compared to male counter part simply on account of
gender
2.favoring male ee in terms of promitons, scholarships and similar benefi s of employment
3.refusing to reinstate a woman worker who gave birth or who availed of MLB
4. anti sexual harassment act
Contemplates situatins involving sork, educ and training inst
For work est
Whom directed:
Refers to relationships tpp sub andsuperios where superiors demands request sexual favors
Not ntecssary that favor is acceded to
Cert retaliatory
Refusal results to hosilework envi or demotion or dismissal

Even if eer did not act upon a complaint, manager/superviso is laible

Crim liable does not automatically attachunless he has part directly or indrirectly participated
If inaction is basis of liab: civil liab only; damages for lack of cooperation or inaction

[Type text]
Art. 9262
Leave bnefits
Max of 10 days who are victims of whatever type of abuse (phys, metl, etc.)

Magna carta for women

Spec leave benefits
2 months at most with reference to gynecologicl disorders
Frelxble working hours

LC
prov prohibiting stipulations against marriage
Unless objection of eer rests on legitimate business reasons
CASE: policy of glasowelcome prohibiting of a vital ee with a n ee of a rival company is no t
allwed because of possibleleaks of ind secrets. Valid by way of exception

Case: co workers were not allowed marriage.no substational bassi given by er to prevent
marriage between ees. No legit business prupose.

What I prohibited is any act of discrim on account of marriage

Treatment of night works n en test

They are ees so long as they are controlled or supervise in tehier work by owners of est wher
ehtye work
Like required to report on spec hours

House helpers
Not assigned to non house hold work if they are made to work in the business of the ER they are
considered as regular EE
Additional done within the house of the ER: not part of house hold even if done in the house if it
pertains to the business of the ER

What will be provided

Max employment contract of HH is 2 years it can be renewed subject to the agreement of the
parties

4 days leave in a month

Cannot be forced to work
The days are at the option of the ER

Funeral expenses: the ER shall pay

Illegal dismissal:

[Type text]
ER will be liable for

Unjust termination:

SSS coverage: report them and cover for their share

Retirement benefits: they are entitled

Home worker
Page 726
Made to accomplish in various compounds of the ER: active supervision or personal is not
industrial if not then it is IH

Coverage labor standards until social legislation

[Type text]
 Social legislation
Retirement RA 6421 amending art 247 of LC RA 8558 approved in 1998
 Remember
 Coverage
 Entitled
 Exempted
 Conditions for entitlement
 Retirement pay computation itself

It speaks of entitlement regardless of status whether regular or other kinds

Q: are part time excluded A: not, as well as domestic although originally they were exempted.
Deleted by DOLE

Who are exempted:

1. Government EE for there are other laws GSIS act of 1997 w/c is the amendatory law
amending the original GSIS act
2. EE of retail service and agricultural services regularly employing not more than 10 EE
Retail for house hold use selling

2kinds
1. Optional
2. Mandatory
60 is optional and 65 is mandatory

Conditions
a. Attaining the age
b. Completion of at least 5 yrs of service
Conditions may be subject of CBA or contracts
Q: age in CBA A: yes. Like in SLU the retirement age is 60 and mandatory
SSS the maximum is 15k monthly pension
Q: Reverse the age is increased A: more prejudicial to interest on senior citizen for they
are suppose to be mandatorily retired
The choice by the senior citizen cannot be changed by the CBA
It is more adverse on the part of the EE if age is increased

Special EE
 Miners: younger age in retiring is 55
 Police officers is 56
 Women workers

[Type text]
  Flight steward: old Pal case states it is not correct
 On the weight the flight attendant SC sustained it that it is for safety of the airline
 Policy of retirement cannot be forced by virtue of marriage

Other factors may be included for retirement:

1. Pilots is the number of flying hours
2. In CBA is attainment of age or CBA upon conditions and who exercises it like EE or ER
and they have to respect such and not stike it out

Composition:
1. ½ month pay for every year of service (which is 15 days)
2. Sil pay of 5 days
3. 1/12 13th pay which is 30 days pay which 2.5
22.5 days = equivalent
o Unless there are other conditions or additional methods or factors in the
retirement pay
o Like the number of child can be added
o SLU computation is 120% of monthly salary x yr of service
o PAGIBIG the EE can pay a higher contribution w/c will be savings for EE
o It is like a retirement fund it will be a compliance but it depends whether the share
of ER will amount to or be equivalent under the new retirement pay law
o Exclude the contribution of the EE and include only the ER if more than enough
or equivalent it can be but if lacking can go after the ER

SSS v. GSIS
SSS
Year of service: 120 monthly contributions w/c may translate to 10 year of work for it involve
120 months if there is continuous payment
Ages: are the same 60 and 65
Except you cannot be a member in SSS if your 65 if for the 1st time
Maximum benefit if you contributed 120 mos

GSIS
Age: 60 and 65
Yr of service: is 15 years service

Case: army reservist (remember the basic concepts) reserved officers of the AFP and there are 3
categories 31, 41, 51 and above
Suppose to be if you’re in service you shall be retired at age of 56
Stayed there until the age of 65
Memorandum all 65 are retired
SC: said that the 2 year period has already expired and thus retired

[Type text]
Cases:
Salenga v CA clark feb 1, 2012
Computation of retirement pay benefit the last 2 employment had been with GOCC in issue was
under what retirement act will he receive retirement benefits
GSIS act all years of service should be considered or is he an EE under the Labor code RA 7641
as amended
Resolve: it depends
Base on understanding on whether or not he is in private sector or GSIS
The test of incorporation
Original charter or the general corporation law

SC: latter is to be maintained Clark has no original charter

Thus the Labor code shall govern

Serrano v Santos
Speaks of retiring bus conductor who was paid on commission basis
He is entitled to retirement the computation of which
Remember if EE is paid on purely commission basis
Even as bus conductor he is under 7641 that it is clear that ½ mos pay 5 days SIL and 13th mos
pay

GSIS v De leon

Social legislation
Remember constitutional provision
Definition: legislation that caters more to the EE benefit at times there are hazards in
employment that render an EE unable to continue with employment
Disability
Death

Pre employment the disability payments of sea fearers

Liberally for the grant of benefits to affords certain EE in working for their needs and needs of
family
There are times that they can be waived

SSS:
 Coverage: note who are EE also in GSIS
 Who are covered compulsory and mandatory and optional
 Conditions
 Benefits

EE: under the act those covered

Those who perform services for an ER in w/c either mental or physical efforts are used
Speaks of:
a. Person engaging services of another

[Type text]
 b. Like 4 fold test

Compulsory coverage:
They must not be age 60 and above and private sector EE and self employed professionals
Specifically they are:
a. Actors and actresses
b. Self employed
c. Private EE not above 60

Compulsory is mandatory that means someone must comply under the pain of punishment
It includes criminal cases
Same must be enforced before the RTC
Who prosecutes the SSS have counsels
Under direct control of the prosecution
SSS counsels are required to get an authority from the public prosecutors

Voluntary or optional
Who are subject:
a. Spouses who devote full time or most of the time for care of home
b. Filipinos recruited by foreign based

Note the exceptions

1. Casual
2. Alien vessel services if such vessel is outside the Philippine jurisdiction
3. Where service for international org and foreign government
4. Such other services on temporary basis

Fr. Dena? Covered by SSS – yes they are. Make a distinction w/ strictly ecclesiastical
They are entitled to retirement benefits no prohibition on use of public funds here

Midterms: all labor standards and social legislations except agrarian law

New retirement pay law

Effective: 1993
Amended art. 187 of LC

Coverage:
Included:
1.All ees in the private sector
Regardless of status of employment (regular, etc.)
Unless otherwise exempted by law
Includes part time ees

Exempted:
Originally domestic helpers

[Type text]
Deleted subsequently in an issuance by SOLE on May 1994
Reiterrated by succeeding SOLE

1.Government ees
Those who are under CSC Rules

2.ees of retail est employing not more than 10 ees

Retail establishments: principally enaged in sale of goods to end users for personal or household
use only

Wholesalers are covered

Conditions for entitlements

1.Age: 60 (optional retirement) and 65(mandatory)
2.length of service
Minimum of 5 years
Special occupations such as underground miners: 4 years

Computation/extent:
15 days worth of salary x no. Of years in service
Ex. Salary is 50k/month for 20 years
Consider:
15 days is composed of 15 days salary + 5 days SIL + 1/12th of 13th month pay (or 2.5 days in
reference to 13th month law) = 22.5 days
Reference is daily wage
Get annual basi salra/no of days worked in a year = daily income x 22.5 days = retirement pay

Case 1:
Salengga v. CA (Feb. 1 2012)
Amount of retirement pay
Shown that he was claiming that he worked for gov for 40 years
He insisted His work should be computed under GSIS act for a period for 40 years
Peculiar: last two employment was with 2 GOCC’s
Last agency worked is clark corporation
Number of years in service for purposes of computing his retirement pay?
What law will govern?\

Det if eer is governed by CSC rule and therefore GCIS act or without a charter/under corp code
If under corp code: LC governs

Clark had no original charter and therefore LC applies

Thus 40 years cannot be claimed

Case 2:
Rodolfo Serrano v. Santos Transi (Aug. 9, 2010)
Involved is abus conductor who was paid on a purely comission basis and he was retiring

[Type text]
Contention: his retiment pay should not include 13th month pay therefore since purely
commission basis
SC: Ra 7641 applies to all ees regardless of status of employment or regardless of manner of
payment unless otherwise exempted by law; the situation does not fall under any of hte
exemptions
READ CASE to a different issue as cited

SSS
60 and 65 (same)
Does not refer to specifc no. Of years in service
Specific monthly contributions: atleats 120 monthly contipaid by eer and ee to SSS
maximum benefit: 15k a month if paying max contri
Must be able tos how that you have no other gainful employment
If gainfully employment, including leasing out properties, not qualified

No of years in service: 15 years

Under LC: 5 years
GSIS: 15 years

What if you reach retirement age of 65 in the gov but you have not yet coplied with the
minimum years in service: make a special petition for an extension and can be granted under
special exigencies

Is it possible that a private eer or enterprise would agree with union in a CBS for the lowering of
the optional and mandatory ages of retirement? Yes.

If agreed that optional is 65 and mandatory is 70. Not valid. CBA cannot divest the right of ee to
retire at a younger age

Not only age as condition for retirement

In private sector, there are other factors such as retirement aafter teaching for a certain number of
years: valid
Another, in airlines, no. Of flying hours

Who exercises option to retire?

It depends
In universities: usually the professors
PAL: CBA gave option to eer

Social Legislation
SL v. Labor Leg
LL: covers benefits given while they are working
SS: more for workers when they are unable to work becasue of certain hazards of employment
such as injury, retirement, death, etc.

[Type text]
Just like any other SL, how are they construed?
Liberally to favor teh grant of benefits
Liberallyto apply to as many claimants
If a part provision would admit of two or more interpretation, that favoring applicant is to be
considered
Would this include mere allegation to be sufficient? No.
Not certainty is considered but mere probability
Only substantial evidence is required

Diability benefits
OFW, Seafarer’s
Liberal interpretation must be within bounds of law
If law imposese conditions for grant, these must be satisfied

In cases, there are instanfes where there were non compliance but still allowed
Non compliance may be excused if tehre is reasonable justification in not being able to comply
with the requirements of law
Consistent with liberal interpretation

SSS Law
Other benefits of employment aside from retirement and maternity benefits
Coverage (READ)
Consistent with 4 criteria of establishment of ee-er relationship
Take note of subject to compulsory coverage and those to voluntary coverage

Compulsory
All ees not over 60 years old are subj to man or compulsory coverage
Professionals including lawyers, doctors, etc.
Actors, actresses, broadcasters, similar talents
Fishermen and farmers
Athletes, coaches

Spouses who devote most or full time in taking care of home and children while other spouse
works is also covered

OFWs?
May be covered by voluntary coverage

Exempted:
1.Those who have employment of a purely casual nature and not for teh purpose of occupation or
business of the eer
2.services perforemd in connection with an alien vessel if ee was employed when such vessel
was outside the Philippines
3.service performend in teh emplyment of a foreign government or internatinoal organization,
unless there is a separte agreeemtnt that teh eer had with the SSS or teh government for the ees
enrollment to SSS

[Type text]
4.other services performed on a temporary basis

Fr. Dena is covered

No purely ecclesiastical affair
Does not violate use of state funds for pbeneift of any religios organization or priest, etc.
SSS Funds: not government funds; come from contribution of ees in private sector

Benefits:
Sickness benefits
Conditions for entitlemen:
1.Atleast 3 monthly contri..
If there are sickness benefits provided for in the compnay, use that first before use SSS
2.injury atleast hosp confinemtn or home confinemoent for atleast 4 days
3.notice to SSS

Maximum sickness coverage: 120 days pay for the sickness benefit
In a year, if there is another sickness, another 120 days pay

Disability benefit
Partial Permanent
Total Permanent

Not temporary: covered already under sickness benefit

Pension
Limited to 5 dependents
Legitimate children preferred against illegits
If ex. 8 legit: report only 5; 5 may be changeable so long as 5
Supplemental allowance: P500
Age of majoriy for purposes of SSS: 21

Death Benefits
Mothly pension
Includes a funeral benefits
Amount:

Dpendent’s pension
To widow/er
Other dependents

If there is failure to notify SSS due to eer, eer should pay the benefit by way of dmanages for
such failure; same if the eeer fails to deduct

GSIS
Eer: government and other instrumentalities including GOCC and fin inst with orig charter

[Type text]
Ee: any person redeiving compensation...
Key factor to be an ee aside from emploment: payment of compensation
If not paid: not covered

No volunaty membership

Once a member, you are a member for life even if inteh meantime to left for private service and
returned and vice versa

Benefits

1.separation benefits
2.unemployment or involuntary separation benefits
Depending on years serving the government

Permanent diability benefits

Conditioned on suffering of any permanent disability
The disability must not have been caused by...

We consider Temporary ...

For reasons not due to... (same as above)

Survivroship
Paid to beneficiaries

Funeral benefits
Covers :
Active members...

Life insurance benefits (not present in SSS)

To claim life insurance and retirement beenfits: iprescriptible

All other benefits: prescribe in 4 years

Where to file: GSIS or SSS; appeal to CA

EES COMPENSATION
Work realted injuries and death
Law pertains to injuries or illnesses suffered in course of employment or arising out of
employment
Merely a refernece to source of illness or death
Distinguished from “in the course of illness or death”
State insurance fund
For gov: GSIS
For private: SSS

[Type text]
If ee becomes injure, suffers illness or dies: file either in GSIS or SSS
Appeal to Employees compensation commission

Guidelines for coverage

All injuries, illnesse even death, in the course.. is compensable
Must be shown that ee was injured at the place where his/her qork requirees him to be
Perforing official functions
Sustained elsewhere, executing an order of eer
Not compneble if due to drunkennnes, same as the first two above
Probability and not certaintly that is material

If acident is incurred fcoming to or going to work

GR: not compensable
Exception:_____________________
Ingress or egress rule/ proximate rule: either at gate, entrace, exit where he was suppose dot be:
compensable
Special errand rule: compesanble
Suttle bus rule/extra premises rule: compensable

Other guidelines:
If a decease: determnin if occupationald dissease:
Compensable
Show reasonble csause or connection between work and sickness

Finals
August 18, 2012

MIDTERM EXAMS
1.Not a limitation to apprenticeship: Not transferable
2.Which is a limitation to employment of a handicap worker in art. 78-81 of LC: non impairment
of working standards
3.whch feature is exclusive to a laearnership training program: commitment to hire
4.not a healthworker: psychometrician
5.if mandy works on the company’s first shift from 7am to 3pm, what is her work day? 7am to
6:59am of the following day
6.the normal hours of work of 9 hrs a day , 5 days a week apply to: hospitals and clinics ....
7.which of the ff situations ndenotes compensable work hour: all the time that the employee
waits in the manufacturing plant for the arrival of raw material (waiting is an integral part of the
job)
8.which is not compensable work hour: the rest of work hour when employer in his own work
volition send home his workers due to worstening political situation
9.entitlement to NSD extends to: letter D
10. who among ff ees are not exempted from payment of holiday pay: workers ....
11. Computation

[Type text]
12. Computation
13. which of the ff statments is not true: labor cases are resolved in favor of labor
14. which of the ff will complete the statment to make it false: “rigid rules may not be dispensed
with...”

Example
in an appeal in a mater of a decision of the LA to the NLRC: 10 days from reciept of adverse
decision
Jurisdictional
If not filed within this period with posting of a bond when necessary, you lose right to appeal
Right to appeal is just a privilege
The SC relaxed this rule in some cases to render justice, or for social justice

Example
1 lawyer represented several workers, they lost before LA
Counsel appealed to NLRC, all complainants thought that they were all inculuded in the appeal
But not
Thus the rest lost right of appeal
They secured another counsel
They Filed peition for relief from judgment (generally not allowed in Labor cases)
Allowed by SC considering social justice

15. workers right to participate in policy decision making processes means where ees may
participate in teh rule making authority of the employer emanating from eers exercise of property
rights
“May”: selective
16.labor jurisp[rudence on transfer alows ees to ? transfer. Which is not a valid transfer:
Concerns union oficals ....
17.which of the ff is not a requisite for a valid reduction of a workers valid work week: a verbal
agreemtn for temporary work reduction (it has to be in writing)
18. is the policy of suspending drivers pending... valid MP designed to arreest laxity of drivers in
remitance of boundaries
19. right to security ot tenure requires that ees should not be reassigned: if grossly
inconvenienced (or prejudicial to them)
20. Jenny hired piece rate workers.. are they her ees? Yes, she had control over their work
performance
21. There was an in crease in volume in business, he had to contract other guys to sell his
product... are they ees of jenny? No. They are independent contractors
22. Mr and mrs. Jones entered in a contract whereby for a fixed sum the latter.. are mr. And mrs.
Jones liable for unpaid wages of teh contractor? Yes because anypne who contracts with a
contractor pfor performance of any work guarantees payment of wages
23.at the tiem Joan was employed by PS pbuliccations, no law was...
24. no entitlement to Sp if separatio is due to serious business` lossess
26.do pakywa workers enjoy sec of tenure? No
27.: yes bec there is a valid ground for refusal to hire them

[Type text]
It is an accepted practice in training institutions to extend yearly contracts to probationaary
employees. This may b renewed based on standards. If not satisfactory in the end of the year, this
is a justifiable reason for not hiring.
28.which of teh ff is not a valid act: termniation due to alleged inefficiency (there should have
been communication)
29. june wa hired by DZ const as an apprentice carpenter in... he is a project employee
30. after probationary period, teh apprenticeship may be terminated, which ecludes: failure to
cmply with lawful order
31. upon completion of agreed period of training, eers arepermitted to regularize: leaners
32. duration of license to recruit: 2 years from date of issuance
33. which document is issued by SOLE authorizing a person: License
34. a migrant worker refers to: in an installation located offshore
35.: private recruitment agency
36.law prohibits .. form engaging directly or indirectly... national economic and development
authority
37. professional workers abroad given free board and logdging are required to remit: 70%
38. : 75%
39. incawe of breach of contract.. may the private recruitment agency be held liable? Yes, the
locl recuiter undertook to guaranty compliance
40. which of the ff acts is prohibited by law: reprocessing of workers though a job order to a
different employer
41: joint and solidary liability: condition precedent for approval of the overseas employment
contract
42. to ensure ..
43. undre mandatory insurance policies of migrant workers, within what year should payment be
made: within 10 days from...
44. carla was deployed by...
A filipina nurse was deployed overseas...
45. there are 4 separate information charging 4 separate simple illegal recruitment against a the
same person. Prosecutor moved for amendment. Proper? Yes. Substantial amendment is not
proscribed by the rules
46. seaman had to go home bec wife is sick and is in the hospital. Allowed to leave june 30 so
lng as return july 20 of that year. 2 days prior july 20, he notified eer that he could not yet join
the vessel because he had to attend to his wife. Eer hired another seaman. Latter filed case of
illegal dismissal. Is there ID? No becaue he was not terminted, it was him who failed to return to
the vessel.
47.duration of an AEP: 1 year
48. process by which actual and potential labor force is ...: human resrouce development
49.based on job evaluation program, supervisory ees were given additional ... no, they
voluntarily accepted the promotion. This divested them of entitlement to benefits of RF ees
50. excet for life insurance and life benefits; prescription: 4 years

True or False: (if not completely true, it must be false)

1.justly dismissed ees ..: false
Justly dismissed ees based on grounds that are not..
2.due process clause of the constitution need not be followed: false

[Type text]
3court cannot substitute its judgment with Mp: either false or true depending on explanation
4.fact alone that complainant is a SH and director of a corporatio automatically classifies his
removal from office..:false
5.requored foreign exchange remittance... false
6.the award of only 3 mos salary for every year of unexpired... is unconstituttional...:
presumption of constitutionality (apply this principle)
7.in the awar od attys. Fees, there need be no showing that.. True..
8. teenager.. false
9.women workers: may be true or false
10.

Essay:
1. jill cannot be held liable for abandonment. There was no abandonment. She was incarcerated;
she was stripped searched and this caused ..
No ilegall dismissal, she was just a probationary employee..
Although no abandontment and ID,

August 22, 2012

TERMINATION OF EMPLOYMENT
WAYS BY WHICH AN EE MAY GET SEPARATED:

1.Retirement

When conditions for mandatory or optional retirement are present

Payment of retirement benefits
May either be provided by law or retirement plan of a company
Benefit should not be less than that provided by law
Reference: new retirement pay law
Salaries coresponding to 22.5 days x no. Of year of service
If plan is contributory: compliance pertains only to contribution by eer excluding those
contributed by ee
Same is true for fees or payments made to the pag-ibig which serve as a retirement fund

2.termination

3.resignation
Termination initiated by ee
Remember it could either be constructive or voluntray

Constructive Dismissal
Forced resignation
Not voluntary
Likened to Illegal Dismissal

[Type text]
Voluntary
If there is no justifiable ground; except for desire of ee:
there must be compliance with atleast 30 day prior notice
If ee reigns without the prior notice: may be held liable for damages specially if tehre is cont of
employment with contract
Some contracts may specify liquidated damages

Can there be valid resignation even without 30 day period of resignation:

Yes.
Consider the grounds
There may be immediate resignation without need of 30 day prior notice
Courtesy requires some sort of notice

POSSIBLE PENALTIES IN CASE THE EE HAS GIVEN CAUSE FOR BEING

DISCIPLINED

if initiated by eer: maximum penalty

Eers prerogative to discipline an ee

Why necessary to formulate rules, goals, objectives:

Best way to reach objectives or goals
to harness human resources through these rules or regulations

In discipining, its not just termination that is a weapon by management

There are possible sanctions or actions (may be positive action) by eer

Code of dicipline
List out possible offenses
Indicating appropirate action or penalty to be imposed
May range from counselling up to dismissal

Counselling
Not a penalty
No need to observe due process (prior notice and copy)
Counsel an ee who committed a wrong and remind him his role in a company’s progress

Warning
Eers may take two forms
1.oral
Usually for first time or light offenses or less serious offense
May be given to a second time offender who has repeated offense despite a previous warning
2.written
More of a serious nature

There is a graduation of actions and sanctions form slightes offense up to the gravest offenses

[Type text]
Reprimand

Transfer
Can be a sanction that may be imposed
Can be effected so long as does not involve demotion in rank and diminution in pay
However, where there may be a demotion and diminution: demotion as a sanction

Suspension
2 kinds
1.preventive
2.suspension imposed as a penalty

Preventive: imposed prior to a final resolution or determintion of culpability of the ee subject to

discipline
Basic principles:must be temporary or not indefinite
Period: must not exceed 30 days
First 30 days: not compensable
After 30 days: with pay

For the private sector

While ee is being investigated for alleged infraction, the above rule applies
Not a penalty

Are all ees undergoing investigation for an alleged infraction or violation of company
policy subject to PS?
No.
a.If if there is threat to life or property of the eer and co workers
b.If ee occupies position of trust and confidence
c.if ee in the perform of his job is in custody of property or money belonging to company
d.If hampers an ongoing investigation

Suspension imposed as a penalty

A penalty depending on gravity of offense and provisions of any agreement or company rules
and regulations

Graduated scales of penalties

Unless the actions are serious outright
Here termination may be immediate
Consider article 282
Serious misconduct and so on

Termination / dismissal from employment

Entitlement to separation pay

Contrary to notion of sanction
When an ee commits an act so serious, contradicts

[Type text]
GR: cannot be granted separation pay
ExceptiON:
CBA, contract, company policy, social justice

DIFFERENT GROUNDS FOR DISMISSAL UNDER ART. 282

1.SERIOUS MISCONDUCT

Connotes something improper or wrong

Must be of an aggravated nature
Slight misconduct: not a ground for termination but may be a ground for another sanction

Is there a possibility that a light or less serious conduct may be a valid ground for dismissal?
Depends. If so provided in a CBA.
Detrimental to labor.

Take note of gravity. Should be commensurate with offense committed

If wrong can be addresed with imposition of a lower penalty other than termination, that should
be the penalty to be imposed

If repeated: then less serious misconduct or light conduct may be ground of dismissal
Apply totality rule
Totality of conduct of ee may result to dismissal

Requisites:
1.must be serious
2.must be in connection with the ees job/position

What if an ee has been convicted of acts of lasciviousness, can this be a valid ground for
termination?
Yes.

Smoking
Take into consideration nature of business and type of environment
Ex.

2.WILLFUL DIOBEDIENCE

a.order
Lawful and order on its face amd manner of implemetation
Must be duly commuicated to ee
Must be related to the job of the ee

b.willful

[Type text]
There are alot of instanes where rules of company

Ex. Repeated tardiness or absences

Case:
Seaman

3.GROSS AND HABITUAL NEGLIGENCE

Gross:
Seriousness and gravity
Thoughtless disregard of consequences without effor to avoid them

Can you remove an ee based on gross negligence but only once but also highly prejudicial to the
eer’s business:
If the chef in a fine dining resto left the gas range open. He left. The entire building was gut by
fire. It was definitely gross negligence but happened only once.

Not necessary that er shows that he has suffered actual loss or damage; it is sufficient that the
neglect of the employee tends to prejudice the employer’s interest

What is required of an employee is ordinary diligence, skill and care. Thus he cannot be
dismissed for failure to exercise the higest degree of care UNLESS he is specially contracted by
reason thereof.

August 25, 2012

CASES:

1. Nissan motors (Sept. 14, 2011)

Case involving payroll staff of nissan motors inc.
Nissan motors is a big company with hundreds of ees
But only 1 payroll staff and a payroll supervisor being immediated superviser of Payroll staff
Payroll staff encountered problems
He had a Failing heart ailment
He was frequently on leave
Several times that he was not able to complet a day’s work as he wasn’t feeling well

April 7 to 17 2000: sick leave

He was unable to meet payroll for the period
There was delay in paying wages
Surpervisor cannot prepare documents

[Type text]
Based pay on a previous payroll computation
Alot of the ees received inaccurate wages and lower in fact
Hundreds of ees complained and mad at management

Management reminded him to make next payroll

If he will go on leave to submit all documents to supervisor or prepare payroll before he goes on
leave
He went on vacation leave and was approved but on condition to finish payroll computation or
submit documents to supervisor
He did not do this
Ees started to delcine request of mangement to render OT when infact it was a constant practice
to render OT
When he reported back to work and he was constantly reminding
He made a computation on a monthly basis instead of twice a month
Adversely affected ees
He was required to submit an explanation why he should not be disciplined for his neglect of
duty for such grave misconduct and his deliberate refusal to comply

Letter of explanantion of ee:

“Its not negligence on my part and im not alone on my part to be blamed
Its negligence on your part
Kase noong april 1999 alam ninyo ng hindi ako ang may responsibilidad kundi ang sa section
head
Bakit ,....”

SC: this letter is grossly dicourteous in concept and in tenor

In fact he could have jsut stated what he wanted to say instead of resortin to this langguage
There had been decisions in the past by the SC where it held that accusaotry and inflamatory
langguage by an ee to eer or supervisor vcan be a ground for termination

Was there willful disobedience?

When the act of disobediene is willful: prompted by a perverse or wrongful attitude
Can be seen from the letter
Order must be reasonalbe and it was

Was there serious misconduct or insubordination?

Or serous misconduct: the act must be seroius or of an aggravated nature; must pertain to work
performance or job of ee and the act / ommision must show that ee is unfit to continue working
for eer
These requsites were present
Unfit: displayed by ee himself

Gross and habitual neglect of duty:

Yes
Repeately failed in preparation of payroll
Had it been unavoidable, still the requriemetns of eer was reasonable and he failed to do these

[Type text]
Valid dismissal? Yes.
It is sufficient that there is one valid ground
Here, there are several grounds.
However, there was an issue on WON there was entitlement to separation pay on teh basis of
social justice?
Yes. Financial assitance considering length of srvice and poor physical consition which was teh
reason for his absences
Will this affect the GR? For mam Q: No
This is an exceptional case; the moral depravity of the ee should be considered

2. Teng
Used to play with PBA
He left PBA or retired
He joined a new basketball association sometime in 1999
He joine one team there
Signed a 3 year contract: “employment contract”
With bonuses and additional benefits
He was unable to complete 3 year contract because just after 2 years, he was traded to another
team: negros slashers
They took over the contract and signed a contract with them
Monthly salary in 2001: P250k
His team arived in championship
Issue: game 4 and game 5
Game 4: they played but his performance was below par
He was pulled out of the game
He got mad, he removed his shoelaces, he put on his practice jersey
Team members took offense and were demoralized
He was looked upon as a leader
Lost game 4
Game 5: he called in sick
He did not attend
They lost the game and championship
Mangement wrote him scheduling ahearing asking him to explain behavior and not to be cited
for seriousmisconduct
Hearing was scheduled ona particular day and he did not appear
Rescheduled: his two lawyers appeared
He was dismissed
His employment contract was terminated
He filed a complaint before MBA
The MBA was dissolved
He filed case of ID with LA

Another issue: forum shopping

Filing with MBA and then the court
No forum shopping

[Type text]
The MBA is not one of authorized forum or agency or court reposed with jruidsiction to resolve
issued such as the issue on ID
It is the LA who has jurisdiction over termination disputes

Was there Id or a valid dismissal due to serious misconduct?

Yes.
As an employee, he was exepected to report regularly
Missing a game is a punishableoffense
Untying of shoelaces is also irreaponsible and unprofessional
However, this isolated foolishness does not justify extreme penatly of dismissal
They could have imposed other disciplinary sanctions
No doubt that there is misconduct
Not serious smisconduct
Infraction commited by ee should merit only correspnding penalty demanded by circumstances
Penalty must be commensuarate with act, conduct or ommission imputed to ee and must be in
connection with disciplinary auhtority of the eer
They did not even verify even if he was indeed sick, etc.
The defeat fo the team could not be attributed only to teh fault of Te
He is just one person and that was team work
Its very easy to blame somebody else

Award: more than 2.5M by way of unpaid salaries and separation pay

3.Kakampi v. Kings point (April 25, 2012)

Kingspin express: company in a door to tdoor delivery service
Complainants are drivers of KP
Problem started when the drivers refused to comply with order of Management to undergo
mandatory drug testing
They could not give any explanation for not undergoing
They were dismissed for serious mis and willful disobedience

Validty of policy of imposing mandatory drug testing

Rule: when a policy is implemented, it affects rights of ee
Management policy is valid as management prerogative if it can be shown that there is a
legitimate business purpose
In relation to this environment, is there alegitimate business purpose? Yes.
In the door to door delivery serice, the drivers should be alert and able at all times to perform
functions
Driving abilities are important

Use of drugs aside from affecting driving abilities also cause threat to public
Thus policy is reasonable and lawful

Next: is the disobedience willful disobedience or gross insubordination?

Drivers did not even bother to give an explanation
Shows their obstinacy, adamant in not complying thus willful disobedience

[Type text]
Order was valid and lawful and reasonable

They were given 2 day notice

In issue: was the two day notice to explain sufficient compliance?
Rules provide reasonable opportunity to be heard or defended their position
Resolved in a case: reasonable opportunity is acutally five calendar days from receipt of notice

5 day notice:
No definite no. of days for just causes
What is simply mentioned is reasonable opportunity given to an ee to defend his position
Interpreted by SC as 5 days
(King; june 29, 2007)
Hard and fast rule as of now

4.cosmos bottling v. Fermin (June 20, 2012)

Invoving alleged theft of Cell Phone

CP of a co ee
Is dismissal valid on ground of seriousmisconduct or any other ground under art. 282.

Fermin: fork lift operator

He said he was near his locker in the locker room and there was another co worker (braga) and
then braga left and he left also his CP
Fermin got Cp and kept in his locker
Braga complained to secutiry and they started to look in lockers
It was foundin fermins locker
He was asked to explain

Company rule: stealing within company premises is penalized with dismissal or termination
Explanation: he hid the CP but without intent to unlawfully taking it for gain
He was just playing a prank
Mr Braga executed a recantation and said that he belived the explanation of Mr. Fermin
Despite this, Fermin was still terminated for alleged serious misconduct and voilation of stealing

SC:
illegal dismissal (?)
Not seriouS misconduct
Misconduct must pertain to peformance of work
Not related to work
But this act is analgous to those mentioned to 282
Why analogous to serious misconduct: if voluntary and willful act or ommission attesting to an
ees moral depravity

There was theft as found by the courts and LA, NLRC

He was liable to theft
Thus, there is a valid ground for dismissal

[Type text]
5.Meralco v. Dehan (june 18, 2012)

Mr. Dehan worked as branch representative of Meralco

As branch representative, he was responsible for acceptance of payment for consumer
application for installation of electric connection
Also accepting deposits and relase of sockets and similar parafernalia required in installation
There was release of 20 sockets by Dehan without propert authorization from customer who
applied: this was prohibited under company policy because this can be an easy way to defraud
management
Dehan realsed sockets to a contractor but with intercession of field rep of meralco who was
charged in private contacting with meralco customers
Charge: dehan was branch rep and another ee conspired to release these eletric sockets and other
itemds and use them in private contracting activites at t lower amound
SC: is there Serious Misconduct? Or breach of trust and oconfidence?
Dehan was aware company policy
Defense of Dehan: it was an acepted company practice to release socket without authorization so
long as deposit fee was paid
Countered by meralco
Established that dehan submitted evidence that will try to present that tsockets were relased in
favor private contractor with pending ocntracts with meralco
But seen that documents pertained to contracts already approved by meralco and sockets were
already released
This was a mere scheme to cover up a wrongful act
Thus an act of seirous misconduct

6.Galang v. (Feb. 8, 20120)

Galang was ajantor for different companies
His contracts of emplotments were terminated or expired
He was taken by City Lands with a promise of regularization after 6 month period of probation
There were alot of indcidents:
He lost 4k while on work; he supected that co ees stole money from him; he asked everybody
and they denied
He started taking pics of each of the janitors
Others felt harassed
They complained to the immediate supervisor
The supervisor interceded and talked nicely
Galang disrespeted her, even shouted at her

Another: he would often dispbey orders from ms. Tupaz

He said the ms tupaz was incompetent to be his supervisor

Another: other janitors said that he made them feel that he was superior

Also, there was flooding of his floor

Destroyed elevator

[Type text]
Costly for management

He was terminated

He filed ID in 2002
Affidavits submitted by co employees to prove validity of his dismissal
Dismissal was effected 2002
Galang: cannot use affidavit executed only in 2005 when complaint was file 2002
SC: even without affidavits, there was already sufficent evidence to his culpability

There was serious misconduct and willful disobedience and gross insubordination
He became unfit to continue
He continued to exhibit unwanted behavior toward other employees and supervisor

Issue: when he was about to be dismsed he was called in a conference investigation by ms.
Tupaz
Is this sufficient compliance with due process requirement? If not, liableto pay nominal dmanges
of atleast 30k pesos.
Not suffcient compliance
Galang was not clearly appraised of nautre of charges against him
Thus entitled to nominal damages

This took place in 2000

What will govern? Prevailing jrusprudene at the time of commision of act or at the time of
finality of judgment?
Finality: 2012
Serrano: 2000 (backwages)
Agabon: 2004 (mere nominal damages)
At the time of finality
Apply Agabon; Agabon already superceded the Serrano case

7.Joe rizaldi (Oct 19, 2011)

Act of turning over compnay files in the possession of an ee
WON such act of turning over all compnay files and property in his possession is an act of
resignation or summary dismissal

Facts:
Position of rizalde: full time sales executive
Began as a probationary ee
After a couple of years of employment there was incident
He was advised by Agcaoili that he will be transferred to another department (marketing)
He said he will think it over
After this, his co ees cautioned him that “mainit ka kay M.s Garcia” (another superior)
Same day he was summoned by company presidnt Ms. Sy and Ms.Garcia for closed door
meeting
They informed him of his termination from service for act of insubordination

[Type text]
Adivsed him to turn over his samples immediately
Ms. Sy said “member ka panaman ng singles for christ pero napakatigas ng ulo mo”
The ff day: he was summoned again by Ms. Sy but before hewas summoned, he was already
informed that he will be given evetrything due him such as commission plus goodwill money to
settle everything
During meeting he asked for his termination paper
Ms. Sy was further irked
“if that’s what you want, i will give it to you; pag isispan mo ang gagwin mo dahil .. we are
powerful”
Ff day: he turned over all samples; he was not able to get termination paper
Did not repor tfor work anymore
After two weeks; an ee wentto his residence and presented him a memo while he was not able to
meet his sales quota
He ignored this
Another notice for explantion for absences was given
He consutled a lawyer and lawyer wrote the cmpany : “his client was terminated feb 22 and
commented that they realized that ID wa..
SC: was there ID?
There was allegation of resignation bec company said that ee asked them what will he get if he
will resign
Yes there is ID.
Highly illogical for an ee offered to be transfered to simplyquit if nothing grave really happend
in the mean time
He did not want to be trasferred why would he resign?
Act of ee was prompted by early warning by mangement of his termination and that he turnover
papers from eer
When he demanded for termination papers: this is right of ee to ask for a written ...

Going back to the grounds:

FRAUD AND WILLFUL BREACH OF TRUST AND CONFIDENCE

Fraud: any act or ommission or concealment which involves breach of legal duty , trust or
confidene justly reposed and injurious to another

Based on jurisprudence, there is a separte standard based on this ground for RNF and M ees

If ee is Managerial ee: there mustbe some basis established to prove the alleged loss of trust and
confidence
Cannot be based on surmises or speculations by the eer

If ee is RNF: there must be a ground alleged for losing trust and is established as a fact
Greater quantum of evidence

Can it be used against all ees? RNF, Supervisory, M?

[Type text]
Postion must be one of trust and confidence

True or False
All M ees may be terminated based on loss of trust and confidence?True
All RNF ees may be terminated based on loss of trust and confidence? False
Only those who occupy positions of trust and confidence
Ex. Cashier

Requisites
1.position is one affected by trust and confidence
2.

Guidelines
1.loss of trust is not simulated
2.

Commission of an offense against eer or immediate ..

Conviction of the crime not necessary

Even if the ee is discharge from the criminal case if the er has lost trust towards him

September 5, 2012

Quiz: Saturday (September 8, 2012)

7:00-8:00

QUIZ DISCUSSION

Worker’s Prefence:
Only gives ordinary preference
Judicial declaration of insolvency is necessary

Problem
Garments factory
Last shift id 10am to 6pm
With additional compensation as NSD
As a matter of policy, management refused to place women workers during this time
Discriminatory
Unless she is pregrant or has health problems

Wage distortion
Intentional wage difference which is there for a reason is completely or substantially negated
Applicable per region

Problem

[Type text]
Manufacturing firm
Workers handle money for the firm
Retains deposit of 5% for shortages
Refunded at the end of the month if not used
an accepted practice for positions handling money of the firm
5% is reasonable

Rights of Home Workers

1.Rt to self organization
2.Rt to payment of wages
3.Rt not to work on hazardous materials
4.The work completed is not to the satisfaction of the eer,
they can be accorded chance to re do the work and be properly compensated

AUTHORIZED CAUSES FOR DISMISSAL

Installation of labor saving devices

Usually cited in redundancy

Redundancy
Redundancy may be caused by reduction of volume of business
Abolition of certain responsibilities
Under art 83,no disct between installation and redundancy in terms of separation pay
Atleast 1mo pay or 1 mo pay for every yera of service a quarter of six months consdiered as 1
year

Used interchangeably with retrenchment

Not correct
Both are different in terms of amount of sep pay

For retrenchment: 1 month pay or ½ month pay for every year of service whichever is higher

Also in terms of conditions for application of this ground

Red: no need to est serious business losses
Not an economic ground
Ret: hve to establish
Remised on losses by eer

Ret: adopted only as a matter of last recourse

For it to be valid, it must be shown by the eer that he attmpted to make use of less adverse
measures than retrenchment but failed
Ex. the use of reduction of work hours or rotation of work hours as an alternative
Conditions:
a.est serious business lossess
either actual or imminent
soon to happen if the situation is not contained

[Type text]
by means of subs evidence
covers not jsut 1 fiscal year
through audit
b.last recourse
other measures were attempted but failed
c.est of ereasobnle and fair criteria in determinning who is to be retrenched
also a requisite in redundancy
assuming that in redudndacy an apart position has 20 positions occupying the same
after evals, it was det that company only needed 10 to operate efficiently
there should eb a reas criteria
d.undertaken in good faith
not to suppress the union activities of the ees or to remove an ee not desired by er
reasonble criteria:
seniority
work performance
any similar valid criteria
cannot use gender or civil status
e.prior notice of hearing
f.separation pay

what if er agreed to pay er consitent with sep pay

but er did not receive the sep pay
does not validate ret
subjects the er to causes of action

if no notice and hearing

non comp with sta due proecss
nominal damages

Closure Not Due To Serious Business Losses

not prompted by serious business losses
if it is, the only implication is that it will not be covered under 283
ees terminated are not entiteld to sep pay
but for othercauses such as expiration of lease contract, change in business or locationL sep pay
atleast 1 mo pay or ½ moth pay for each year which ever is less

covers temporary or permanent closure or closure of a certain unit or the whole business

if an eer closed temporarily

bec. Its tranferring to another site
lease expired
closed for 8 months
LC: “suspension form work which exceeds 6 months i deemed constructive dismissal”
Remedy:

Reading:

[Type text]
jurisdiction
2011 NLRC Rules

Make up Class

Closure
Whether partial, temp for 283 to apply
Mustnot be based in serious business losses
Must not be caused or imposed by the government

example
A prop of the er corp wa exproperirated for dist to beneficiaires to ees of the eer
Closure may not give rise to any separation pay

Disease
There is a cert issued by a pub health officer
Not company doctor or private practicing phycisian
Content of cert:
Attest to teh fact that ee is suffering form a dicease of illnes cannot be cured within 6 mos
Shown also that should he report form work, it shall be dterimental to teh ee himsle fo co
emloyees or er
Separation pay: 1month pay or ½ month pay

ECP case
Employment is shorter than 6 months
Computation was proprutionately made
Lenght of service to 12 months must be taken relative to monthly compensation

If monthly compensation is 24k

Ee was employed for 4 months
Separation pay:
Proportion of 4 months is taken relative to 1 year
4/12 = 1/3
So 1/3 of 24k which is 8k

RELIEFS

1.Reinstantemnent plus full back wages

If reinstatemn no longer feasible, Sep pay plus full back wages
At option of ee

Ee prayed initially for reinstatemetn and then changed mind to spe pay
No prpblem if cse has not yet been submitted
If a decision has already been rendered and no execution of judgment yet
If sep pay is desired: may be granted
File necessary motion / appeal as the case may be

[Type text]
2.reinstatement
If decided by LA that it is imm executory even pending appeal
LA decsion appealble to NLRC within 10 days
If LA found D and awarded reinstatemtn and full back wages
LC: mandates that eer should reinstate
It is required that LA should include in his decision a spe order for eer to furchish LA a
certificate of reisntatment

If
NLRC may reverse the order of the LA
Entitlement of ee who was originally ID and awarded reinstatment but was not immediately
reinstated until the NLRC decision was ordered
May these ees claim for wages during period from issuance of teh decision of the LA finding ID
and ordering reinstatemtn until ruling of the NLRC
Can they claim the wages that could have accrued to them prior to the NLRCorder

Genuino Case:
Refund doctrine
If actual reinstantmen, ee is put back to old podition wihtou loss of seniority right s or if no
longer existing a substntially equivalent position wihtout loss of seniority rights
Where an ee has been on payroll reinstatment: no actual services rendered:
If this is the nature of reinstatement or no reinstatement: these ees shall refund all benefits,
allowances during that period
SC: there is no entitledment to all these wages if there is a reversal of the earlier ruling of the LA

What if it took NLC to decide is 5 years

Would the ee be able to refund that?
There will be difficulty

For subsequent cases:

SC: genuino ruling is very oppressive on part of ees
Instead of getting areleif with refund doctrine, they are placed in a more difficualt sisutaion jus to
refunt
Not the intention of labor laws

Thus PAL v. Garcia; Pfizer v. Velasc o (March 9, 2011); ISLRZ Trading v. Kapada (Jan 31,
2011)

IVY’s Trading
Compainants aredrivers sn ahlper

Ruling:
SC referred to Genuinio case, as ruled in subsequent cases, the genuino case is considered as a
stray posture which should not be considered anymore; no longer prevails

[Type text]
During this period, the ees are entitled to all backwages (wages, allowances, other benefits that
ee would have been enditled to had they nod been IC)

Referred to a 2 fold test to det entitlemtn to reinstatement

1.determine whetehr there is delay in effecting reinstatment
Law provides that reinstatemnt is immediately executyr
If there is delay:
2.is delay due or not due to the fault of the er

PAL Case
Pal at this time ofsupposed reinstamtne was under rehabilitation ‘becaus if this, they were unable
to reinstee ID dismissal
NLRC declared VD
delay in esintatmen twas not due to fault of pal but due to it state of rehabilittion
Thus it is under no obligation to pay all the backwages during this period

2 fold test was also applied

Case:
SC:no jjstification for delay in reinstatment
Eer wasat faulth where the ees are not immediately resintatemtn
Advice of counsel not necessary

Thus entitlement is not automatic, look at requisites

Payroll reinstatment
Not a norm
Allowed only in instances where immeidate acutal reinstantment will just disrupt the operation

Backwages with reinstatment

From time of ID until reinstatment (wter actual or )

SeparationPay
... until finality of judgment
Amy be recomputed if no immediate payment of full bakwages

LABOR RELATIONS
Constitutional provisions
Consider bill of rights
Freedom of expression
Freedom of assembly
Concerning ULP
Utterances by eer or his representative of any union sentiment

When an eer says that he is against his ees union or ees sentiments

[Type text]
ULP
Depend upon totality Doctrine
Including previous CB history of the eer
If basedon these surrounding circumstances, then it was intended to hamper the activiteis of the
union: ULP

FREEDOM OF ASSEMBLY
Particulary relevant in strikes and lock outs
In determining if exercise of the Art. III, remember conditions which distinguish

1.there is a temporary work stoppage

If ees gather to express sentiment against a prevailing practice of eer
Outside hours of work and outside eers premises
Not a strike
No temproray work stoppage
2.concerted action / design by the ees
In reference to an activity undertaken on account of a labor dispute

BASIC CONCEPTS:

Policy declaration (Art 211)

1.giving preference of voluntary modes..
CBA
Voluntary arbittration
Coniciliation
mediation
Grievance machinery

In CBA: process whereby eer and ee or their representatives negotiate for better termsof
employment in concluding the execution of the CBA emdodying rules and regulations agreed
upon.

Vol Arbitration:
not just the party themselves solving, there is a neutral 3rd party chosen by the parties
The 3rd party can render judmgment which is binding upon the parties
Subject matter: limited

Unresolved: grievances which should first be referred to grievance procedure

SUBJECT MATTERS OF GREIVANCE

1.implementation and interpretation of CBA and company personnel policy

Conciliation and mediation

3rd party but hand out own decision
can give only suggestion

[Type text]
Work on cases involving strikes or lockouts or may result to these
Including preventive mediation cases

Labor Management Council

Bodies which are channels of commuication designed to address Day to day problems
Do not discuss wages

2.Promotion of labor organizing

Not just orgaization but aggregation of smaller LO to stronger LO
Establishment of strong LO
To allow stronger democracy

3.enlightenment of the workers

LC:
Union obligation to provide labor education seminars
May or may not be free
Eers may deduct even wihtout individual consent for these

4.establishment of dispute resolution machineries

Ex. DOLE
DOLE is not there just to resolve conflicts
It is a machinery for dispute settlement
There is a proper forum for labor dispute

LA Jurisdiction and NLRC Jurisdicion

5.tripartism
Alot of agencies engaged in labor are of tripartite compostition
There are representatives from ees sector, eers sector and public sector
To resolve labor conflicts or attend to labor concerns though a tripartite concern

Ex.RTWPB,

6.injunction
Discouraged
But accepted remedy
Sometimes prohibitbed but some provisions of LC allow

Prohibted:
Enjoin implementation of wage orders

But under 218, allows issuance of injunction

[Type text]
218:NLRC powers
-one of which is issuanceof labor injunciton
Must be after due notice and hearing that there is an unlawful act that may cause damage and
injury to the petitioner
If not enjoined, may cause further damge to the petitioner

If injunction would not isseu, greater damage would be caused to petioner as compared to the
respondent

Establish that it is a matter of last recourse

Who shouldbe notified? Parties, chief executive to protect the property of a petitioner but failed
to do so

May injunciton issue ex parte?

No there should be prior notie and hearing

But if just TRO (injuction), 20 days, this may be exparte

Injunction
ancillary remedy
Not a principal action
There must be a pending labor dispute
Cannot be used as a rememdy where clearly ther COA referred to should be filed before a
different forum

JURISDICTION AND LABOR PROCEDURE

Jurisdiction is conferred by law

Parties cannot agree on jurisdiction
But parties can do this in labor law
LC allows referral of cases belongingto EOJ of specified courts or agencies to VA by submission
of parties
Not just veue that is transferred but in fact jurisdiction

Ex. termination disputes

LA has jurisdiction
Can be referred to the VA
They can agree as early as in negotiation of CBA where they agree that term disputees will first
be referred to VA
Can still be done even if the LA has already jurisdiction so long as before there is judgment

Cases falling under jurisdicion of the LA

1.ULP
2.termination disputes

[Type text]
2011 NLRC Rules of procedure (next meeting)
Quiz: termination disputes
Discussions
NLRC rulesof procedure

Doctrines: finality of judgment

Appeal perfectino all the way to SC
Execution

Kuya Jordan Notes

CARDINAL RIGHTS IN QUASI JURIDICAL PROCEEDINGS

1.right to hearing
2.right to a competent tribunal who shall hear the case and decide on it
3.decision is based on evidence presented
4.evidence presented must be substantial
5.the judge decides based on his independent judgment or decision
6. Decision must be written and is understandable to both parties and contain the facts and law
upon which the decision is based and reason why such conclusion was reached
7.right to speedy trial

September 8, 2012

Jurisdiction of LA
1.ULP
....
Money claims: with reinstatement;Exceeding 5k
Questions on wage distortion
Enforcement of a compromise agreement
Claims of OFW’s arising from an OC contract
As may be provided for by law

NLRC

1.Original and exclusive

a.Injunction
b.Contempt
c.Certified: either the SOLE or OP has assumed jurisdiction and delegated theses to VA
Can resolve not just raised disputes but all other issues related to the resolution of the main issue

2.Appelate Jurisdiction
a.All cases decided by LA (under Art. 217)
within a period of 10 days from receipt of counsel
b. all cases decided under 129
adjdicatory power of RD

[Type text]
5 days from receipt of adverse decision

Preliminary Matters

Venue
Different from jurisdicion
Determination Is based on workplace of ee

How to determine workplace

Place where an ee regularly reports for work
What if a worker is put on detail or put on a field work or assignment
a.Where ee reports back after the temporary detail or assignment
b.Where he receives his salaires
c.Receives his salaraies
d.Reports back after an assignment

Rules on venue are formulated primarily for convenience of parties

Although workplace determnies venue, this may be relaxed
Like place of residence of worker where worker has transferred residence
Must no be unduly burdensome on part of er

A complaint involving all those cases under LA

File in RAB of NLRC
Upon receipt of complaint
Raffled to a LA if more than 1 LA in one region
After assignment
All records of the case are given to the LA within a period of 24 hours

Prohibited pleadings:
1.MTD
...
2.Bill of Particular
3. MR
Unless it has complied with all requirement for a valid appeal
3.Petition for relief from judgment
Allowed if meritorious and requirments of valid appeal other than the period
4.interlocutory order of the court
Does not finally sisposes o fhte merits of the case
5.Motion for new trial
6. motion to declare defendant in default
7.order denying order of execution of the LA
Is a MTQ an order of execution? Yes
8.etc.

Once all records have been transmitted

Study the case

[Type text]
Summon parties to amandatory conciliation and mediation conference
Scheduled twice
Non appearance of parties:
Petitioner during the 2: dismissed wihtout prejudice
Remedy: revival of the case; within 10 days;
After 10 days: refile
Revive: bears same docket number as originial one
Refiled:bears a new docket number ; issues on prescription sets in
During refiling consider if prescription has already set in

If Respondent:
Waived right to submit position paper
Remedy:
Leave of court to submit evidence and position paper (a matter of courtesy)

If parties attended mandatory conference, what should be undertaken?

Determine posssibility of amicable settlement

If there is Amicable Settlement:

Reduce into writing
Contents should have been knowingly entered into

LA shall ensure that compromise agreement does not violate any provision of law, good morals,
etc
Terms and conditions should not be highly conscionable

Assume that Compromise has been validly executed

LA is supposed to approvethat
Parties and counsels should sign that
This will take place of decision
Order will be issued by LA citing the CA and if been complied with, then terminates or closes
the dispute

If lawyer of complainant who compromised and agreement is on installment basis

Do not agree to termination of case until there is full paymnt
Same if payment is through check, until encashed

What if settlement failed?

LA proceeds with other matters that under the law may be discussed or threashed out during
....

Amendment
Allowed

The LA can also initiate the simplification of the issues

Factual or legal issue

[Type text]
Stipualtion of facts

All other matters deemed necessary by LA under the circumstances

Non lawyers may appear in legal proceedings

1.appealing for and in his behalf
2.represents LO
3.represents a member of LO
4.duly accredited legal aidclinic approved by DOJ
5.corporation chairman or owner

After mandatory conference is over:

Submit position papers

2011 rules
Order of LA specifies the date and time when parties submit simultaenously their PP
10 days from last mandatory conference

Can you extend the period to extend PP?

No.

Next,
parties have 10 days from recepit of oteh paries PP to submit a reply, answer or comment

Position Paper and reply must be accompanied by all attachments and evidence

LA will now determine WON there should be a clarificatory hearing

CH different from mandatory confernee

Comes after submition of PP
MC: comes after sbmtion of complaint
CH:not mandatory
CH: discretion of LA to clarify

Take note of period to complete CH and MC

LA will record the proceedings

Make a summary thereof
Have it signed by parties and himself
Then case will be submitted for decision

How many days: 30 days from submission for judgment

OFW: 90 days from filing of case

Decision should be clearly made

[Type text]
partymayquestion: 10 days from receipt

If wrong remedies are availed of: deemed final and executory after lapse of 10 days

Immutability or finality of judgment

Once a decision has become final and executory, cannot be altered or modified unless involves:
a.correction of a clerical error
b.nunc pro tunc : does not prejudice the parties
c.decision being amendedis a void judgment
d.circumstances subsequently render the decision prejudicial or unreasonble

requisites for perfection of an appeal

1.filed within reglamentary periodof 10 days
2.verified memorandum of appeal also within 10 days
Grounds, arguments, releifs
..

Surety bond requirements

a.Must be areputable conding company
b.The ff documents must accompany the appeal

Is a property bond allowed?

No
No provision for a property bond

But there are decisions by SC that property bond was allowed

But here, their appeal was on meritorious grounds and the amount of bond is substantial

GOCC:
Depends on charter

10 day period of appeal is jurisdictional

Unless delay in filing is highly meritorious or justified

Case

Banahaw (May 30, 2011)

BBC: complainants were ees of DXWG Iligan radio station
BBC was operating several radio and tv stations
DXWG was owned by BBC but managed by IBC
Because ofunpaid CBA benefits, ees filed cases against IBC and BBC
Amount awarded by LA: more than 12M
This was amount of appeal bond to be posted
Did BBC post a bond? No
It asked for a recomputation
NLRC denied: resolving merits of case if recomputation necessary

[Type text]
Given fresh 10 days to file 12M
They filed MR citing that since GOCC exempt form payment of apeeal bond and fees
BBC, IBC, RPN 9
Previously private corporations
Came 1986 revolution:taken over by government
There were arrangements entered into by the owner and government
The owner ceded the right to government
Is BBC under obligatin to post a bond?
Yes
Althoug GOCC, has an identity distinct from government
If no distinct personality: exempt
Government is always presumed to be solvent

GOCC
Depends if exercising proprietary or governmental functions

Here BBC is operating TV or radio stations

Not governmental undertaking but proprietary

Decision of NLRC is not final and executory because BBC simply defiled order to post bond
despite chance to do so

Verification and certification

Must be verified

Verification: not mandatory or jurisdicitional in labor cases

If there are several parties and only 1 verified
Allowed so long as that person can swear to the truthfulness

Non forum shopping

If required
If there are several petitioners or appellant
Even if not all sign
If can be shown that there is substantial compliance
When it is established that although there are many complainants, they share common causes of
action or interest
That resolution of that issue would benefit all of them

September 12, 2012

Right to appeal is a statutory privilge

Exercised in consonance with provisions of the law
Although in labor proceedings, technical rules of procedure should be liberally construed
But in appeals, manner is as provided by statute

[Type text]
In instances when belated appeal is allowed, the SC allows such where it was established that the
case meritorious
Where an appeal is meritoriousand there is some technical flaw in such appeal, the SC allowed it
in consonance with liberal application of the rules

PROCEDURE AND RELATED PRINCIPLES ON PROCEDURE

LA to NLRC
From time of filing upto rendition of judgment
Doctrine of finality of judgment

Appeal
10 days
Take note of grounds
Requisites for perfection
Effect of reversal of judgment of reinstatement and so on

Remedy if you want to question decision of NLRC

MR with NLRC
10 days from receipt of counsel or representative of the decision

Next:
Petition for certiorari under rule 65 with CA
Fresh period of 60 days form receipt of order denying MR

Next:
Petition for Review under rule 45 to SC
Ordinary appeal so 15 days
Any other remedy?
Yes.
MR of decision of CA
Choice given to a party desiring to question decision of CA

Can you go immediatelt to CA without MR?

Certify if there is no other remedy available at law or when other remedies are lost
GR: you cannot go directly to CA without MR thus
Exception: (instances when you can directly file cert)
1.order is a patent nullity as whenthe court a quo has no jurisdiction
2.Question raised in the certified proceedings have been duly raised or passed upon by the lower
court or are the same as those passed upon in the lower court
3.Where thereis urgent necessity for the resolution of the question and further delay would
prejudice government interest or of thepetitioner or subject matter of petition is perishable
4.Under circumstances a MR would be useless
5.Petitioner was deprived of due process and there is extreme urgency for relief
6.Where in a criminal case, relief is _____________

[Type text]
7.Where proceedings in lower court are nullity for lack of DP
8.Where proceedings were exparte
9.P had no ___
10. Issue raises is one purely of law or where public interest is involved
(abraham v. NLRC march 6, 2001)

A petition for review in SC would only tackle questions of law, no longer questions of fact
Question of fact (make an evaluation of the evidence presented) v. Question of law (proerp
application and interpretation of law)

SC allowed petionfor review even if question of fact in the ff

1.When findings are grounded entirely on speculation, surmises or conjectures
2.when the inference made is manifestly mistaken, absorbed or impossible
3.when there is Grave abuse of discretion
4.when judgment is based on misapprehension of facts
5.when findings of facts of lower bodies are conflicting
6.When in making findings, the CA went beyond issues of the case or are contary to admission
of both appelant and appellee
7.Finding are contrary to the trial cout
8.Findingsare conclusion without citation of specific evidence on which they are based
9.Facts set for the in petition and in peitioners main and brief are not disp by resp
10.When findings offacts are premised on absence of evidence and contradicted by evidence on
record
11.When CA manifestly overlooked certain relevant facts not disputed by parties which if
properly considered would justify a different conclusion
(Chua v. Buklod Jan 31 2007)

Going back to appeal

In procedural law, one common principle is thatyou can raise lack of jurisdiction at anystage of
proceedings
Q: lets say there is an adverse judgment by LA, appealed to NLRC
Party adversely affected before LA is now assailing for the first time the jurisdicion of LA in
NLRC
Yes,can be raised anytime
Except when estoppel has set in
In estoppel when they have actively participatedin proceedings in lower tribunals
Its like Raising a theory of a case and midway you change that
To allow that would be unfair to the other party
Offends rules on fairplay and justice and due process

In Labor proceedings, technical rules are liberally construed

Can a party be allowed to present evidence for the first time on appeal?
Consistent with the rule that in labor proceeding, technical ruels are strictly applied
NLRC can admit evididence presented for the first time
Only if the party appellant presents a meritorious or justifiable ground such that they were
earlier unavailable

[Type text]
But if earlier available: cannot present anymore

Possible MTD based on 5 grounds

What is res judicata

a.2 cases or actions
1st case: there isa final judgm
b.Identi between parties COAs subject matter
c.judgment was on the merits
d.jurisdiction over the parties

is it required that there be identity in parties, COA and subject matter?

If all elements are present: res judicata as bar by prior judgment

In situations where there is no identiy of COA, can you still raise res judicata?
Yes
Conclusiveness of judgment
Sec. 47 (c) rules of civil procedure

Example
Social security commission v. Rizal (june 1, 2011)
Ees file cases against respondent claiming that the latter are their ers
ID
LA and NLRC: no eer
Case became final
Same workers filed before teh SSC claims for remittance of .... for purpose of availing of
benefits
Same issue of eer
Can res judicata be raised?
Yes under conclusiveness of judgment (2nd component of res judicata)
Judgmentin 1st case will bind parties to the second case
Sinceno eer, respondents have no obligation to remit or pay any eers contribution to the SSS
Not all respondents in the ID case were included and not all eers in the SSS are included
Is absolute identiy required? No
What is sufficient then for conclusiveness of judgment?
Substantial identity of parties
What is this?
When there is a community of interest between a party in the 1st and second case even if the
latter is not a party to the second case
Judgment in 1st case applies in disposition of 2nd case

Others in NLRC rules: for reading

Under NLRC Rules

Additional remedy

[Type text]
Rule 12 on EO remedies
New provision
A petition to annul or modify an order or resolution of a tribunal or of the LA
May be accompanied with a prayer for TRO or Writ of Injunction
A specific provided remedy under NLRC Rules
Injunction is just an ancillary remedy
Grounds:
Grounds of appeal plus FAME
Period:same 10 day period from receipt of decision
Where to file: NLRC

Some innovations in NLRC

Affects of no appearnce
Remedies
If a party is deemed to waive his right tosubmit position paper
Remedy: move for setting aside of such order
If set aside: LA may require you to submit position paper

Execution
Through motion for issuance of writ of execution
Distinguish
Is the decision inclusive of a monetary award
If yes, await writ
Once isued, LA directs sheriff to enforce judgment
How would sheriff enforce: serve upon judgment debtor
If JD voluntarily pays: good
If not: sheriff along with winning paty will locate proerty
First money
May use garnishement
Bank turnovers to NLRC to teh extent of amount of decision
Check is issued in name of NLRC
NLRC issues check in favor of winning party

Pre execution conference

First had before LA where parties meet to confer with one another
Change where judbment debtor can ask for reduction of award
Allowed
Dubject to the discretion of the winning party, assisted by counsel
Dont allow an unconscionable reduction
If no settlement: move for issuance of WOE
Id issued: to allow the process to prosper

Ifr reinstatment
By LA: even without WOE
By NLRC: as a matter of courtesy file a Motion for issuance of WOE

[Type text]
Where their is order of reinstatement:
LA should order eer to immediately reinstate and require eer to furnish LA of acutal
reinstantement or payroll reinstatement

If a decision has not been implemented within 5 years form receipt of decion
Remedy: independent action before thesame RAB that rendered that same judgment
Like a new action or independent action
Until 10th year from receipt of decison sought to be implemented

September 15, 2012

NLRC Rules Parin

Previous discussion
LA to Execution

LA to NLRC
10 days

NLRC
MR
Unless one of the exceptions where MR need not be resorted to

Certiorari

Can you file motion to extend filing of certiorari?

Yes
Must be withint 60 day original period
Most extension to be given is 15 days
Do not assume it will be granted
Granted only in justifiable circumstances

Case:
Motion for extension to file certiorari
SC: reason given by cousel: heavy pressure of work
Not a good enough reason to justify extension
Implication of denial:
Period to file certiorari became final when the judgment by SC
A lawyer should not accept such number of cases which he cannot attend to dutifully

Upon reciept of denial of certiorari

2 options:
1.MR within 15 days
2.petition for review under rule 45

[Type text]
When judgment has become final and executory, execution follows

Pre execution conference is usually scheduled

What happens?
Parties meet with each other before LA and discuss possibility of immediate payment of
monetary award
If Judgment Debtor immediately pays, no problem
Parties immediately settle for the execution
JD usually negotitates for a lower amount
Allowed/valid
Facilitates payment
Do not agree to an unconscionable reduction of award especially if there is an appeal bond
Act of good relations to the other party
For broken fences to be mended

If JD has no money
Motion for issuance of writ of executionshould be filed
Once issued
Sheriff is instructed in the writ by the LA to enforce monetary judgment
First foes to JD to present writ
If JD pays immeditaely, ends
If not, sheriff determines banks where the JD has money
Etc.
If no money, locate movables
If insufficient or none: immovable

Enforce within 5 years

After 5 years: independent petition for execution to be filed before the same regional arbitration
branch which rendered judgment
Bears a different docket number
Upto 10th year of receipt from order finally disposing of that particular case

New provision in NLRC Rules

Extra Ordinary Remedy
A party adversely affected by a decision may file a petition for nullifiication or modificaiton of a
decision by LA
Within same period of appeal
Grounds include:
FAME
Purely questions of law
Prima facie evidence of grave abuse of discretion
Etc.

Common problem in execution:

the property executed on belongs to 3rd party not involved in the litigation:
Different remedies available to 3rd parties incase their property is executed upon:

[Type text]
a.Filing of a third party claim or complaint before LA office
If there is denial of third party claim:
b.Appeal to NLRC
c.terceria
submitting an affidavit before sheriff of LA indicating basis of claim or ownership
upon reciept of affidavit
the NLRC sheriff is bound not to proceed with auction sale even if scheduled
Judgment creditor remedy: post a bond in such amount as determined by LA
Sufficient to answer whatever damage that may be caused to 3rd party complainant

Cases:
SC highlighted fact that although generally injuction does not issueto LA
Much less injuction by an RTC judgment which hold position co equal to LA
However, theprohibition against issuance of injunction arises only if there is no 3rdparty
complainant involved
Such an action may be allowed if based on face of documents submitted, the JD does not appear
to be undeniably the owner of property levied on execution
SC allowed issuance of injunction to stop the injunction

Judge of RTC cannot issue an injunciton against LA

co equal bodies

Subsequent rulings
Injunction allowed if there is a 3rd party involved
Also if the property does not belong to the JD

Can also file reivindicatory action

To recover possession of property executed on

NLRC RULES

Compostion
Act in 3 division

NLRC sit enbanc when?

Rules of procedure ...
Etc. (see Beda)

OEJ of NLRC includes

a.Injunction
b.Contempt
c.Certified cases

contempt
both direct and indirect contempt charges

[Type text]
take note of different acts constituting direct contempt like misbehavior in front of conmmission
as well as specific indirect contempt that may be filed

certified cases
what are these?
They follow an act of certificaiton or delegation from whoever assumes jurisdiction over a
dispute that either involves a strike or lock out or likely to involve in an industry affected by
national interest either by president of SOLE

If SOLE takes jurisdcition

Decide case
Evaluate evidence

Upon receiveing cetification order:

NLRC is tasked to receive evidence as well as to make an evaluation thereof evidence

Issues that may be resolved by NLRC:

Whatever issue which is directly referred in certificaiton order including all other issues that are
relevant to the resolution of the main issue.
Cert order has the effect of a _______________

If a return to work order:

Eer has responsibility to admit ees to the same position or same terms and condition prior to
strike or lockout
If eer accepts but places them in a different position:
The eer can be charged for ULP
Pertains to act that may undermine union activities or those undertaken by members

Once a case is certified before NLRC, it acts in its original jurisdiction

Even if law specifies the jurisdiction , NLRC still acts inits original jurisdiction and not as an
____

Jurisdiciton of VA
EOJ over all unresolved grievances involving interpretation, implememtation of CBA and
unresolved grievances on enforcement and implementation of company personnel policy
Company personnel policy defintion (maneja case)

We refer to unresolved grievances

Must specify “unresolved grievances”
Has undergone prior proceeding
Must first avail of grievance procedure in CBA
only if unresolved will it go to VA
Immediate referral to VA unless highly justified, will result to dismissal
Like NLRCand LA, VA is also madated to take all methds to determine the factual background
of a dispute or a case brought before it
Technical rules of procedure are not binding

[Type text]
VA has to undergo process of accreditation before NCMB
Difference requirements?
Not supposed to be laywers
5 years exposure to labor affairs
Look for other qualifications

Once decision is rendered by VA

Parties are bound
Not appealable
Does not mean that there is no longer a remedy
There is still a remedy but not appeal
You can go to CA and then SC
CA through petition for review under rule 43 (ordinary appeal of 15 days from receipt of
judgment; or MR)
From recipt of jusgment of CA, remedy available in going to sC?
Rule 45 (15 days also to avail)

BLR (Bureau of Labor relation)

Counterpart: med arbiter or regional officer who ever is assigned at the regional office
Or regional director
If BLR: Art. 226; admin code of 1987 and implementing rules

BLR has both admin and QJ functions

Admin functions: keeps a record / registry of legitimate labor organizations
Also keeps registry of CBAs

QJ functions
Power to formulate rules affecting its internal operation or rules that may affect procedure in
disposition of cases brought beforeit for resolution
In general, has jurisdicion over inter union dispute, intra union dispute and other related dispute
Intra union: between and among rival organizations on maters affecting REPRESENTATION
Affiliation issues? Yes
Inter union: involving violations of rights of union membership either as provided by LC or CBL
of a LO

CBL of LO is important
Violation of this is intra union dispute

Alot of controversies hounded the descrpition of “other related labor diputes”

Does this mean all?
No
Reference here pertain to LD similar to inter union disputes and intra union disputes

Refer to rule 11, sec. 1

Coverage: inter,intra union disputes

[Type text]
(p.85 beda)
Very minimal amendments

Reportorial requirment:
reports to be submitted by union officer to the BLR

If violation of rights of members: intra union

Expulsion of union

Administrative Code of 1987

Sec. 16
BLR is madated to set policies,standards and proceeding on regulation and ______of LLO
activities including registration, also related to CBA and financial accounts

Example of other related..

a.Cancellation of union registration
Related to inter union dispute
Filed by any party interest not necessarily the officers

Requiremetns for filing inter/intra union:

Intra union
Verified petition supported by atleast 30% of all members

Petiton for cancellation of union registration

Under BLR
May fall under med arbiter registration
Basis of jurisdction:
Depends on kind of LO subject of petition
If federation or bigger: BLR
If smaller organization operating in a firm level: RO

If fededation:
Appeal to SOLE within 10 days
CA
SC
Same as before LA
Can MR before MR
requrementbofre certiori

If smaller organization
Appeal within 10 days to BLR
MR to BLR
CA (certiorari)

LA -----------------NLRC --------------- CA (rule 65) ----------- SC (rule 45)

[Type text]
VA --------------- (Rule 43) CA ------------- SC (Rule 45)

From an adverse judgment of BLR, remedy of party litigant adversely affected:

Qualify
If under original:
BLR ----------------------- SOLE --------------(rule 65) CA -------------SC (rule 45)
If appellate
MA/RD ---------------------BLR ---------------(rule 65) CA -------------- SC(rule 45)

Enforcement power of SOLE in Labor relations vs. Enforement power in Labor standards

Uneder 128: after petition is filed or motu pririo as part o routine inspection of SOLE or his
representative
Under ___; upon verified petition only filed by real perties in interest like union members
Before thi can be acted upon, it must be shown that there is atleast 20% of all members
Secretary canno motu proprio demand to inspectbooks of accounts or interview union members

In intra union dispute, the 30% support requirement

Does this apply to all intra union disputes?
No
Only if entire membership is affected

Assumption of jurisdiction order

Has effect of enjoining strike or lock out

SOLE has quasi judicial functions

Where to file petitin for cetification election shall be filed in regional office
Appealable to SOLE

MA/RO for certification election case -------- SOLE

RO (art. 129 case) ------------ appeal to NLRC within 5 days

RIGHT TO SELF ORGANIZATION

RSO: refers to particluar act undertaken and to the purpses for which these acts are undertaken

Definition: includes right to join, form, or assit in formation of a LO for purpose of CB and / or
particpating in a peaceful concerted action and/or promotion and protection of mutual aid and
benefit

Coverage: distinguish between those who can exercise these activities for CBA or peaceful
concerted activies and those who can only do so for mutual aid and protection

[Type text]
Ees working for C, I, ag, Ch, religon , med instituun wheter for prft or not for (p 99 Beda)

Except:..
Example: industrial homeworkers

Specific workers who have RSO

Previously there were different provision of law which disallowed them but now allow them:
Security guards
Supervisory ees
Terminated ees (Subject to the ff)
a.their separation from eemploymentis suject to pending labor dispute (ID or ULP) AND
b. Terminated ee has not obtained an equivalent, regular employment
also refer to new ees; RSO attaches from moment of employment
also those members of religious organizations who are otherwise prevented by leaders to join LO
or self organize:they still have right to SO; right to SO carries with it right not to SO

Government ees?
Have RSO
a.Unless high governmet officials involved inpolicy formulation or they have managerial
functions or they are highly confidential ees
b.also AFP due to nature of functions
c.PNP
d.Bureau of Fire protection
e.members of jail

other workers who cannot SO

a. HEMACEN
for confidential ees: there might be a conflict of interest

managerial ee is provided for by law

prohibits them from execising RSO
why prohibited: they are supposed to side with eer
high trust and confidence
represent interest of management and they arenot to go against that

is there a provision which prevents confidential ees from RSO?

None in the LC
By the nature of functions
Under Doctrine of necessary implication
Those not excluded by law may be necessarily exluded by implication by some reason which
apply

Who are confidential ees?

Confidential ee rule

[Type text]
2 requisites:
Information derived are matters which affect labor relations

FORMATION OF LO

LO:
Composed of
a.labor union
b.worker’s assoc

WA: cannot collectively bargain

LU: can CB

Both are required to register for purposes of legitimacy

Requirements for registration (take note)

Federations (take not of aaditional requirmetns imposed by law)

Different LO

Smallest: (may be registere or not but may be chartered):

Composedof individual ees who join or are admitted in membership of that LO
Several of these small LO can form a federation or natinoal union
Federation or NU are members: trade union center

Can all these 3 participate in trade and bargaining negotiations? Yes

Alliance of LOs
Dont have to register
Cannot engage in CB and N
Usually organized only for a limited prupose or particular purpsoe
May be in the same industry

Trade union

Industry union

Company union:
form of ULP
It is the eer who initiates its formation or he give assisstance fiancial, etc.
Good/bad intentions still ULP

Other Los (read)

Petition for union registration

[Type text]
Where to file:
Same jurisdicion pertainingto cancellation of union registration
Generally the agency who gave registration can take away the registration

Once registered, certain rights would accrue to the LO

What would be those rights under art. 242 of the LC
a.act as bargaining representative but must be chosen first by a marjority
b.represent memerbs in a suit
c.own properties subject to condition that the properties would benefit the members or LO
d.can be xempt from payment of taxes so long as the properties are ADE used for the common
benefit of memebrs of the LO
e.undertake such activities or programs for the betterment of members
etc.

Deliberative or decision making rights (p96)

1.deliberative
Through secret ballot
2.political right
Membership in good standing, not convicted of moral tupidted, must not be engaged directly or
indriectly in subversive activities
3.right to information
a.rights under CBL
b.rights under CBA
c.financial activities of the LO
financial officer may be required to
upon assumptionof office
when he vacate
demand is based on resolution of majority
d.right on money matters
against unreasonable fines and forefeiture
arbitrary collection of union dues
right to receipts
make proper entry of collection insource of revenue, date collected
disbursement must be for purpose of that stated in CBL or resolution of majority
right agains EO assessment unless there is individual written authorization from members
there must be a GA for that purpose, resolution and individualwritten
check off so on

CANCELATION OF UNION REGISTRATION

Art. 239 as amended (p 95 Beda)

Pertains only
a.misrepresentation, ...

voluntary dissolution
2/3 of all members agree to dissolution of their LO

[Type text]
SC: highlighted freedom of association and RSO
So to render it nugatory or nullified: 2/3 of all members in that LO

Cases

Heritage Hotel Manila (Jan. 2011)

1 issue proper of petition for cancellationof union registration is due to non submission of
reportorial requirement
Under 239 not a ground anymore
If brought now, dismiss the petition since no longer a ground
problem: new law took effect june 007
Incident: beforenew law took effect
Old law: non submission of reportorial requirement is ground for canellation
SC: no basis for cancelling union registration
Mere fact that a ground exists for cancellation of union registration does not mean that union
registration should subsequently be cancelled
Refered to constitutional provision which highlighted freedom of association and RSO
ILO conventions also mentioned: primacy of RSO
To cancel registration of union would have effectof imposing capital punishment against
association itself when infact it has just effect to an officer
Suggestion: penalize union officer/s who did not comply
Also under public policy that promotes free trade unionism and strengthening of self
organization

Case
Petition for cancellation of UR filed before RO
Appealed to BLR
BLR director inhibited himself because he said thereis conflict of interest as he was former
counsel fo respondent
Who will now take over his function?
It was former SOLE who took over BLR director
May SOLE decide an appeal from a decision of RO in connection with petition for cancellation
of UR
Yes
Principle of control and supervision
Including authority to act directly whenever a function is entrusted by law or regulation to a
subordinate
Higher official who has upervisory function can directly assume this
Why not assistant head?
Cannot be because the administrative code provides that whenever the head of office isabsent or
disabled, theassisstant head shall take over functions, cannot avail because BLR director was not
absent or disabled, he inhibited himself
Appeal was also timely made before BLR so it acquried jurisdicion
Once jur is acuqird, continues upto temriation
When SOLE jurisdiction, it was under BLR jurisdiction

[Type text]
September 19, 2012

Quiz this Saturday: until certification election from after Appeal (labor procedure except
appeal)

Registration
Vests legitimate personality
At what point of time: time of issuance of certificate of registration
Only 1 of the mode

The other is chartering

Legitimate LO which is a federation or mother union or national union issues a charter certificate
to a LO in the firm level

Requirements for chartering

Submission of CBL of the LO unless same as the federation in which case statement of fact is
sufficient
Officers
Office
Etc.

At whatpointof time does a LO acquire legitimate personality if acquried through chartering

qualify
a.For purpses of certification election: from issuance of charter certificate
b.For exercising all other rights of LLO as provided by law: from time of submission of all
documentary requirements duly attested to to the BLR

Cancellation of Union registration

Or cancellation or revocation of charter
By national union
Effect: divests the LO of its legitimate personality unless it has obtained independent registration
Where there is a duly subsisting CBA that is duly in effect, still the LO remains authorized to
administer the validly subsisting CBA

Requirements of affiliation and dis affiliation

What happens if there is affiliation

For a federation or mother union to extend affiliation
Take note of requirements
Resolution of affiliation
Etc.

Relationship between an affiliate and mother union

Principal- agent relationship
Does not mean that smaller affiliate is absorbed
It is the affiliate which is the principal

[Type text]
Even if the thereis subsequent disaffiliation, the affiliate still exists

Cannot disaffiliate anytime

Must be undertaken in the 60 day freedom period
Unless an overwhelming majority or majority of all ees support disaffiliation;
In which case it may be undertaken even outside freedom period

Supervisory ees union and RFE union in the same establishment affiliating with same
federation
Allowed
Without any condition
Provided by law (RA 9481)
Not a violation of Right to Self Organization

Determination of appropriate bargaining union and determination of bargaining agent

Bargaining unit/appropriate bargaining unit

Pertain to Either all of the ees or some of them whose collective interest can be best served for
purposes of dealing with management in adjustment of terms and conditions of employment
Members of same bargaining unit sharing same interest that can be best promotedby that
grouping

To be appropriate
Test accepted in this jurisdiction:
Mutuality of interest rule / susbtantial mutual interset or comunity of interest rule
Sharing of more or less same interest by the group that could be best addressed by the agent in
the CBNegotiations

Other factors considered:

1.Globe doctrine
Will of the ees or their desire
Whatever is desired or decided may not always be carried out
They may want ot be in one big bargaining unit but some are RFE and some are supervisory
interest
They have separate interests
Cannot be a sole determinant
There are other factors

2.Geographical location of workplaces

If an eer operates all over philippines, geographical location may be a factor
Difficult to organize if they are far from one another

Or if an educational institution
May have BU’s pertaining pertaining to different campuses

[Type text]
3.shared bargaiing history

4.status of employment

Majority RepresentationStatus
1.through voluntary recognition
2.certification election

Voluntary Recognition
Not the norm
Exception which operates only if the establishment is unorganized
There is no bargaining agent, there is no CBA in effect in that organization
How undertaken?
Under law, an eer is supposed to be a bystander in certification election proceeding in
determination of bargaining agent
As a by stander, extent of what eer can do: provide list of ees within a certain period, receive
notices, etc.
But cannot participate in the certification election
Here, the eer voluntarily gives recogninion to a union as Bargaining Representative to represent
ees in that BU
Applicable only in unorganized establishment where there is only a single LO operating or that is
established
If more than 1: certification election would be proper
The VR sought by the single LO is supported by atleast majority of all members in that BU
If there is VR, there should be a joint declaration or statement issued and duly signed by
president of the company and the president LO
Comply with posting requirements
At what point of time does a LO acquire majority representation status through VR?
Effect is to vest upon that LO theauhtoiry to represent the ees to collective bargaining
negotiations with eer
From recording of the fact of voluntary recognition with BLR or regional office of DOLE as the
case may be

Certification election
If there is more than 1 LO or the establishment is organized
May be had in organized or unorganized establishment
In unorganized where petition for CE is filed: there shall be an automatic conduct or holding of
CE
If organized: consider the different bars to the holding of CE
Verified petition must be filed before:
a.if small organization at the firm level: RO of DOLE
b.If bigger: med arbiter or RO of Dole
Med arbited: officer of BLR but stationed at regional ofice of DOLE
Where no Med arbiter in a region, a Regional officer would act in these disputes

Petition for CE

[Type text]
“Verified petition”
Supported by atleast 25% of all the ees in that BU; not just of all members of that particular LO
petitioning for CE
At what point intime should the CE petition be filed: with due consideration of the different bars
in the holding of CE

1.contract bar rule

Prohibits filing of PCE during subsistence of a validly/duly registered CBA unless done within
freedom period (60 days prior expiration of CBA)
Applies only if CBA is duly registered
If CBA not duly resitered: will not bar filing PCE at anytime even during its effectivity

Life of a CBA is usually 5 years

Freedom period: 60 days prior to the expiration of CBA (here you can file PCE)
What if by agreement of parties or no new CBA forged, the 5 year period was extended to 5
years, 8 months
This is possible
If extended up to this period, when to reckon 60 day freedom period for filing of PCE?
60 days prior to the original 5 year period
A CBA has economic provisions and representation aspect
As to extentions: whatis extended is economic provisions of CBA (terms and conditions as to
wges, benefits, etc)
But as to representation aspect: does not extend
Address issues on representation within the original period of the CBA

When to file PCE?

GR:Within 60 days period following the expiration of original period of CBA regardless of any
extention agreed upon or imposed by law
Exception (even outside the freedom period)
In essence allowed whenever cba is deemed ineffective to stabililize labor relations
Ex. if top down CBA or sweetheart CBA
where it provides benefits lower than labor standards
Or when CBA was hastily concluded

Certificationyear bar rule / 1 year bar rule

Prohibits filing of PCE within 1 year following the holding of CE, consent eleciton, run off
election or within 1 yeawr from recording of volunatry recognition

Run off election

None of contending unions garnered majority of votes cast
But total votes cast in favor of those contending amount to atleast 50% of all valid votes cast
Then the 2 LO which garnered highest votescan have a run off election

Consent election
qualify
Application of certification year bar rule only if with intervention of dole

[Type text]
If undertaken withou dole, does not bar subsequent cert eleciton even the year following such
consent election

Negotiation bar
Prohibiton in holding of CE where there was a negotiation between labor and management
commenced withint 1 year from holding of VR, CE, etc although no CBA yet after 1 years
If negotiation was commenced only after the 1 year period following CE etc, this does not bar
holding of CE
Does not mean that if it was commenced wtint 1 year period, there is no remedy, there is
If the negotiationhas beenprolonged without justifiable reason: not a bar
Rival unions can contest the representation status of the Bargaining Agent through a PCE

Deadlock bar rule

There is deadlock in CBN and has become subjectto a validnotice of strike and lockout then bars
hoding of CE

What if after a petition is filed, there is motion for intervention filed by interested LO operating
in the same BU where petitioner seeks to be the representative
If allowed, they will become choices in the CE
An incumbent agent is always a forced intervenor, always a choice

What happens when petitioner lost interset?

Can certification election proceeding proced?
Yes
If there are intevenors who satisfy requiremetns for filing of CE
Meaing the Motion for intervention was filed during appropriate period

Motion to inhibit filed

Depends on sound discretion of med arbiter
If he inhibits himself
The BLR can assign case to another med arbiter

If filed in med arbiter

Preliminary conference
They will determine among the following:
a.Define the BU affected by the PCE
b.Discuss matters involving the contending LO
c.WON the petition was filed outside bars of holding of CE
d.possibilty of holding a consent election

If they agree on a consent election:

Next thing will be a pre election conference
Here, what shall be undertaken:
a.Mechanics to apply during CE proceedings
b.Also determination of the qualified voters
c.The no. of voter in order to determine the ballots to be prepared

[Type text]
d.No. of polling places and location
e.Date , place and time of CE
f.Identify watchers

Preliminary conference
Assume that during PC, there was no agreement to Consent election
Holding of CE will be Thrown to med arbiter for determination
There wil be hearings, pleadings to be submitted where parties will argue for their positions
A resolution shall be issued which is either afirmative or negative

If positive
Pre election conference

What if negative
Specify ground for denial of PCE
Within 10 days may be appealed to the SOLE

If it grants the holding of CE

Can it be appealed to SOLE?
Qualify
a.If it is a PCE in an organized establishment: yes
b.If in an unorganized: no; holding of CE will be a matter of course if that is so decided

What if in the meantime, during pendencyof PCE, there was a new CBA registered
Will this affect the CE proceedings?
No
If there is new agent selected, it will justbe the one to adminsiter the new CBA
Rule: if you have a new bargaining agent and there is an existingCBA
Respect the CBA
New agent can eventualy petition to shorten life of CBA during freedom period

Publication
By posting in conspicous places
What shall be indicated:
a.Date, time and place of certification election
b.Contending LO
c.BU affected
d.List of eligible voters

Inspection of polling places

Day of CE
Qualified voters shall cast

During casting of votes there may be problems

a.On the spot quesitons

[Type text]
b.Protest
c.Challenges as defined under LC

On the spot questions

Addresed to the EO
Answered on the spot

Protest
Based on conduct or mechanics of election proceedings
Record protest in the minutes of proceedings
After close of proceeding, within 5 days therefrom, formalize before med arbiter
Any omission in process will not perfect the bringing of that dispute before med arbiter office
Meaning if you failed to record it in the minutes or brought it beyond the 5 day period: dismissed
Subject: mechanics or conduct of the CE

Challenge
Challenge or Quesions on qualifications of the voter in reference to WON he is an ee in that
establishment or of that eer of WON he is a member of that appropriate BU
How to address the challege?
Challenged voted shall be Segregated from others, sealed, duly marked,
Not openedanymore unless it affects outcome of CE

Tabulation of votes

Consolidation of results of votes

Possible determination of winner

Proclamation of winner

Determination of whether there was a failure of CE

No. of votes cast is less than majority of all eleigible voters in the establishment

example
Assume BU has 1k ees
To have a valid election, how many should have participated?
900? Yes
What if of the 900, only 800 are valid votes cast? Yes
What if only 300 ees cast their votes? No valid election
This 300 is less than a majority of the BU
To have a valid election, atleast 501 should have particiapted in the CE
if only 300: Failure of Election
Effect of the failure: Not a bar to the holding of CE at anytime thereafter

Runoff eleciton is possible also

Atleast 50% went to the LOs but none of them garnered majority votes

[Type text]
At what point in time would that LO obtain majority representationstatus or obatin staus of the
BA of that BU
From time of issuance of certification order designating the winning organization as wole and
exlcuive BA of all ees of that BU

Art. 255
To choose an Exclusive Bargainin Agent, the same must be chosen by a majority of all ees in the
BU

Art 256
to choose an EBA, majority of valid votes cast must have selected that organization

same digits as above

if 1k ees
under 255: 500 + 1
under 256: 400 + 1

majority rule
those who did not participate in the election proceedings are deemed to have given consent to the
choice of the majority who participated in that proceeding

legend inter resort (feb 23, 2011)

WON the cacellation of Union registration would retoract to

RP v textile (july 23, 2008)

[Type text]
[Type text]