Dean Salvador A. Poquiz 1

LABOR LAW
As per SC Syllabus
by
Dean Salvador A. Poquiz
A. Basic Principles
(1) Principles of Construction – In case of doubt in the implementation of the

Labor Code and its implementing rules and regulations, the same shall be
resolved in favor of labor. This is also known as the favored treatment
clause.
(2) Principles of Equipoise- Where the evidence presented by the parties is in

equipoise, the scale must be tilted in favor of labor.
(3) Protection to labor clause - There is a need to protect labor as the later is
weak and helpless. Without State’s protection, labor which constitutes the
bulk of the population may trigger a social and political disquietude
because of dissatisfaction in life.
(4) Promotion of full employment clause- This is designed to provide the

worker and his family to live in reasonable comfort, that is, to enjoy a
decent standard of living.
(5) Social justice clause – The target of this principles is the common man, the
impoverished, the destitute, the poor people, those in the lower bracket of
society so that those who have less in life should have more in law.
(6) Doctrine of speedy labor justice – This simply means that technical rules of
procedures and evidence are relaxed in labor proceedings, based on the
labor code provision: “technical rules are not binding but prior resent to
amicable settlement.” This is also known as “principles of emancipation of
labor relations.”
1 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

B. Employer-employee relationship
(1) Four-way test in determining employer-employee relationship:
a) selection or engagement of the putative employee,

b) payment of wages,
c) presence or absence of the power of dismissal, and
d) presence or absence of the power of control which is the most crucial
test.
(2) Two-tiered test:
a) economic dependence test, and

b) control test
(3) Economic relations or economic reality test – The prevailing economic

circumstances such as payment of salaries, of an employee, enrolling him
with SSS, BIR, Pag-ibig, Philhealth by the employer even without a contract
of employment between them, the law creates employer-employee
relationship between them.
(4) Working scholar, not an employee - A working scholar is not an employee

of the school provided he is given the “real opportunity” to finish a chosen
course. If he were not given the such real opportunity, the law establishes
employer-employee relationship.
C. Management prerogatives
(1) Management prerogative is the power and authority to regulate, according

to his own discretion and judgment, all aspects of employment from hiring
up to employee’s termination of his services. Note: the courts decline to
interfere in legitimate business decisions.
(2) What are the management prerogatives?
(a) The right to discipline employees;

(b) The right to dismiss employees is a measure of self-protection. This
is subject to the principle of non-oppression which provides that

“neither capital nor labor shall act oppressively against the other or
impair public interest.”
(c) The right to impose penalty based on “proportionality rule”, that is,
the penalty to be imposed must be proportional to the degree of the
offense committed.
(d) The right to transfer employees, that is, from one position to another
position of equivalent rank, or from one office to another within the
same business establishment. This right must be exercised in good
faith. Thus, if the transfer is prejudicial or unreasonable, it would
metamorphose into a case of constructive dismissal.
(e) The right to promote or demote. Promotion contemplates increase
of duties and responsibilities usually accompanied by an increase in
salaries. Demotion refers to a situation where an employee is
relegated to a less important position with a corresponding decrease
of duties and functions accompanied by a decrease in salary. Note:
The employee has the right to refuse promotion.
(f) The right to prescribe quota. If an employee does not live up to such
quota system, he can validly be dismissed for inefficiency.
(g) The right to grant bonus which is a matter of privileges; therefore, not
a demandable right on the part of the employee, except:
- when stipulated in an employment contract or CBA;
- when it is a company policy or practice;
- when it is granted as an additional compensation not contingent
on profit; and
- when it is provided by law.
(h) The right to change working hours according to its discretion and best
judgment such as reduced or compressed workweek scheme. The
flexible work assignments are designed to save on energy costs,
promote work efficiency and lower the rate of absenteeism.
(i) The right to rules on marriage.
(1) A “no spouse employment policy” is an arbitrary discrimination
against all spouses of employees without regard to the actual effect
on the individual’s qualifications or work performance. Thus, proof
of that “reasonable business necessity” must be presented.” Under the
“reasonable business necessity” rule, the Supreme Court validated a
discriminatory marital policy of the company to protect its interest. If
it were otherwise, the trade secrets, confidential informations,

manufacturing formula, and marketing strategies could be
transmitted to a competing company.
(j) The right to stipulate “non-compete” clause in an employment
contract. Under this clause, an employee is prohibited within a
certain period after his resignation or termination from (a starting a
similar business, trade or professions, or (b) working in an entity
engaged in the same economic activity that might compete with his
former employer. “Non-compete” contracts are not necessarily void
for being in “restraint of trade.”
With a wealth of sensitive information, trade secrets, marketing
strategies, and other business practices which were acquired by him
during his employment, he could use them to the tremendous
damage of his former employer.
D. Illegal recruitment
(1) Types of illegal recruitment:
(a) Simple - committed by a licensee or holder of authority against one or

two persons only;
(b) Non-licensee – committed by a non-licensee or non-holder of
authority;
(c) Syndicated – committed by a syndicate if carried out by a group of
three (3) or more persons in confederation with one another;
(d) Large scale – committed against three (3) or more persons
individually or as a group.
(2) In large scale illegal recruitment, the number of victims is essential or

derminative. Failure of the prosecution that the offense is committed
against (3) or more is fatal to its cause of action.
(3) Doctrinal rulings on illegal recruitment

(a) Giving the impression that he has the ability to enlist workers for
overseas job.
(b) Failure to present receipts of money paid for overseas placement will
not effect the case as it can be proved by clear and convincing
evidence of the prosecution;

(c) Substitution of contract to the prejudice of an OFW;
(d) Failure to reimburse expenses for documentation and processing for
purposes of deployment;
(e) Recruitment agency’s employee not registered with POEA;
(f) Inducing applicants to part with their money upon false
misrepresentations;
(g) Money is not material in the prosecution of illegal recruitment;
(h) Absence of documents evidencing recruitment strengthens the case
for illegal recruitment;
(i) An employee of an illegal recruiter is liable as principal by direct
participation.
(4) Illegal recruitment and estafa cases may be filed simultaneously or

separately. The filing of a case of illegal recruitment does not bar the filing
of estafa under the Revised Penal Code. Note: The doctrine of double
jeopardy will not set in because illegal recruitment is malum prohibitum but
estafa is malum in se.
(5) Solidary liability of the principal employer (foreign government

instrumentality) cannot be sacrificed in favor of immunity from suit.
(6) Although the recruitment agency and the foreign principal had already
severed their agency agreement at the time the worker was injured, the
recruitment agency can still be sued for violation of the contract if no notice
of termination of the agency agreement with its foreign principal was given
to the OFW.
(7) Liability of the previous owner not extinguished by an undertaking to
assume responsibility by the new owner.
(8) Nature of OFW’s employment is contractual in nature. If there was pre-

termination of the employment contract by the employer, the OFW is
deemed constructively dismissed and therefore entitled to an award of
nominal damages pursuant to Agabon ruling.

E. Remedies in Labor Standards Benefits
(1) It is settled labor standards benefits under Book III of the Labor Code such
as money claims exceeding P5,000.00 properly belongs to the jurisdiction
of the Labor Arbiter under Art. 224 of the Labor Code.
(2) May the Secretary of Labor take cognizance of money claims beyond
P5,000.00, for e.g., the million pesos? The answer is yes, if the money
claims are the issues in the exercise of his assumption power under Art.
278(g) of the Labor Code.
(3) May the voluntary arbitrator take cognizance of such money claim? The
answer is also yes, that is, by agreement of the parties.
(4) May the Regional Director of the DOLE take cognizance of money claims
regardless of the amount of the claim? Yes, in the exercise of its visitorial
and enforcement powers under Art. 128 of the Labor Code.
(5) May the Regional Director take cognizance of money claim in the amount
of P5,000.00 pesos or below? Yes, in the exercise of its adjudicative function
under Art. 129 of the Labor Code with the following elements/
requirements:
(a) A complaint filed by any employee or househelper,
(b) The claimant, no longer employed, does not seek reinstatement, and
(c) The aggregate amount of the claim does not exceed P5,000.00.
F. Labor-only contracting vs. Permissible job contracting
(1) Labor contracting is against the law; therefore, totally and absolutely
prohibited.
(2) What is the legal effect if there is finding of labor-only contracting? The
labor-only contractor is treated merely as an agent or intermediary of the
principal or indirect employer.

(3) When does labor-only contracting exist? It exists where the contractor does
not have substantial capital or investments in the form of tools, equipment,
machineries, work premises among others. It has no right of contract over
the performance of the work of its employees.
(4) Distinctions between legitimate job contracting and labor-only contracting.
(a) The legitimate job contractor provides the services; while, the labor-
only contractor provides only the manpower.
(b) In job contracting, the principal is considered an indirect employer;
while, in labor-only contracting, the principal is the direct employer.
(c) In job contracting, there exists no employer-employee relationship
between the employees of the job contractor and the principal; while,
in labor-only contracting there exists employer-employee relationship
between the principal and employees supplied by the labor-only
contractor.
(d) In job contracting, the solidary obligation of the principal and the
legitimate job contractor is only for a limited purpose, that is, to
ensure that the employees are paid of their wages; while, in labor-only
contracting, the principal is liable for the payment of wages of
employees supplied by such labor-only contractor, the principal being
treated as a direct employer.
(5) What are the tests in determining legitimate job contracting?
(a) Registration test – which requires the contractor to be registered with

the DOLE;
(b) Right of control test – which is used in determining whether or not
the contractor’s manner and methods of performing his job
contracting is free from the control and direction of the principal in all
matters connected with the performance of the work except as to the
results thereof.
(c) Substantial capital or investment test – which refers to the issue of
whether or not the contractor has substantial capital or investments in
the form of tools, equipment, machineries, etc.

(d) Legal rights and compliance test – which refer to the issue of whether
or not the Service Agreement between the Principal and the
Contractor is compliant with the rights and benefits of workers under
labor laws.
G. Law on Dismissal
A. Law on Dismissal
1. Security of Tenure – is the right of a worker to continue in
employment until the same is terminated for a valid cause (just or
unauthorized).
2. Doctrine of Perpetual Employment – Security of tenure is a
constitutionally guaranteed right of an employee. However, it does
not mean perpetual employment for the employee (Phil. Village Hotel
v. NLRC, G.R. no. 115033, 28 February 1994). This doctrine is
opposed to the exercise of management prerogative to dismiss an
employee for a valid cause.
3. Reliefs/Normal Consequences of Illegal Dismissal
(a) Reinstatement – restoration of the dismissed employee to his
former position without loss of seniority rights and other
privileges.
(b) Full backwages – restoration of the lost income of an employee
due to illegal dismissal. Full backwages are awarded because
income earned by the employee from other sources shall not be
deducted from the backwages.
(c) Damages – indemnity recoverable by an employee who has
sustained injury to his right to labor which is property within
the mantle of constitutional protection.
(d) Attorney’s Fees – Attorney’s fees are awarded to an employee
due to unlawful withholding of his wages, or he is compelled to
litigate his case by hiring a lawyer to represent him. An award
of attorney’s fees under Article III of the Labor Code is in the
form of damages in their extraordinary concept.
(e) 6% legal interest on monetary awards.

4. Management Prerogative to Dismiss – it is a management prerogative
to dismiss its employee; however, it should be exercised without
abuse of discretion. It is subject to limitations founded in law, CBA or
principles of fair play and justice (Ferrer v. NLRC, G.R. No. 100898, 5
July 1993).
5. Doctrine of Incompatibility – Where the employee has done

something that is contrary or incompatible with the faithful
performance of his duties, his employer can validly dismiss him
(Manila Chauffeur’s League v. Bachrach Motor Co., O.G 159).
6. Procedural requirements in Dismissal
(a) Pre-Notice (First Notice) or Formal Specific Charges – The

purpose of formal charges is to inform the employee of the
specific charges against him.
(b) Adequate and Responsive Answer – The purpose is to enable
the employee to prepare adequately his responsive and
intelligible answer.
(c) Ample Opportunity to be Heard – Under existing jurisprudence,
while formal hearing or conference is ideal, it is not an absolute
mandatory or exclusive avenue of due process. What is
paramount in termination for a just cause is to provide an
employee an “ample opportunity to be heard and to defend
himself.” Indeed, notice and hearing can be dispensed with
(Perez v. PT&T, G.R. No. 152048, 29 April 2009).
(d) Post Notice (Notice of Dismissal) – The decision to dismiss is
contained in the last notice which states the reason therefore.
This is also designed for the employee to contest the validity of
the dismissal by filing the proper complaint for illegal dismissal
with the Regional Arbitration Branch of the NLRC.
Types of Due Process
(a) Constitutional – protects a person from the government and

assures him of his rights in criminal, civil or administrative
proceedings.

(b) Statutory – due process found in the Labor Code which protects
an employee from illegal dismissal.
(c) Contractual – due process found in company policy which
provides for the steps to be followed in dismissal but the same
was violated by the company.
Types of Dismissal
(a) Dismissal for a just cause with due process

(b) Dismissal for authorized cause with due process
(c) Dismissal for health reasons with due process
(d) Dismissal without just or authorized cause with due process
(e) Dismissal for just or authorized cause without due process
(belated due process rule). An employee dismissed for violation
of this rule is entitled to an award of damages under Jaka Food
and Agabon Rulings.
(f) dismissal for a false or non-existent cause.
Degree of Proof in Illegal Dismissal
As a rule, the quantum of proof required in labor proceedings is

substantial evidence, that is, relevant evidence which a reasonable
mind might accept as adequate to justify or prove the conclusion.
However, the onus probandi to prove the validity of dismissal rests
upon the employer to prove that the dismissal of an employee is for a
just cause with clear and convincing evidence.
This quantum of proof required is to give flesh and blood to the

security of tenure clause of the constitution (Duty Free Phils. V. Tria,
G.R. No. 174809, 27 June 2012).
Circumstances Affecting Validity of Dismissal – (Proportionality

rule or Doctrine of Commensurate Penalty)
(a) gravity of the offense

(b) length of service
(c) employment position

(d) totality of infractions (collective infractions rule)
(e) nature of the business
(f) first – offense rule
(g) principle of compassion, charity, and understanding
(h) principle of equity
Just Causes for Dismissal
(a) Serious Misconduct – wrongful conduct committed in an

aggravated or serious manner. E.g., sexual harassment, sexual
intercourse in company premises, fighting in company
premises, drug use, etc.
(b) Willful Disobedience – this is also known as insubordination
which is refusal to obey a reasonable and lawful. An isolated
case of insubordination will not justify dismissal but repeated
commission of the same justifies dismissal.
(c) Gross and Habitual Neglect of Duty – it connotes want of care in
the performance of one’s duties. E.g., a company guard who was
caught sleeping during his tour of duty. Even if the act is not
habitual if it were gross, it will still justify dismissal.
(d) Fraud or Willful Breach of Trust
Fraud – involves a breach of legal duty, trust or confidence
justly reposed and is injurious to another.
Breach of Trust – involves matters that relate to protection
of company money or property. Thus, an employee entrusted
with trust and confidence breached such trust results in the
employer’s loss of confidence.
(e) Commission of a Criminal Offense – against the person of the
employer, immediate members of his family, including
managerial employees.
(f) Analogous Causes – such as abandonment, violation of no-
gambling rule or gross inefficiency, etc.
Distinctions between Just-Cause and Authorized Cause
Dismissal
(a) In a just-cause dismissal, the dismissal process is initiated by the
employee. On the other hand, in authorized-cause dismissal, it
is initiated by the employer.

(b) In just-cause dismissal, payment of separation pay is not
required (Toyota Ruling). In authorized-cause, the law
mandates payment of separation pay.
(c) For failure to comply with due process, requirement by the
employer in just-cause dismissal, he is liable to pay indemnity
which is tempered (Php 30,000.00). For violation of the due
process requirement by the employer, in authorized-cause
dismissal, he is liable to pay indemnity which is stiffer (Php
50,000.00).
Authorized Causes
(a) Introduction of labor-saving device (automation) – replacement

of workers by machines in order to effect more economy and
greater efficiency in the methods of production.
(b) Retrenchment (Downsizing, Delayering) – reduction of
personnel due to poor financial returns designed to cut down on
costs of operations. Also, its purpose is to save a financially
ailing company from eventually collapsing (JATA Gen. Services
v. NLRC, G.R. No. 148340, 26 January 2004).
(c) Redundancy – it exists where the services of an employee are in
excess of what is reasonably demanded by the actual
requirement of the enterprise. Does redundancy refer to
duplication of work? No. A position is redundant when it is
superfluous and it is the outcome of some factors such as over-
hiring of workers, decline in the volume of business, etc.
(d) Disease - when an employee suffers from a disease which cannot
be cured for (6) months and his continued employment is
prohibited by law or prejudicial to his health or to the health of
his co-employees, the employer shall terminate his services.
What is contemplated by law is either contagious or non-
contagious disease.
(e) Closure of Business – it is a management prerogative to close its
business operations due to serious economic reverses or not due
to adverse economic conditions.

Total Closure – due to serious economic conditions, the company
is not liable to provide separation pay. However, if it is not due to
serious financial reverses, it is liable to pay ½ month pay for every
year of service. Note that partial closure of business is treated
retrenchment; thus, an employee is entitled to ½ month pay for every
year of service.
Other forms (just causes) of termination by an employee

(constructive dismissal)
Constructive dismissal (dismissal in disguise) – is quitting from a

job of an employee because continued employment has become
impossible, unreasonable, unlikely or unbearable under the
circumstances; it includes demotion in rank, diminution of salaries,
benefits and other privileges.
(a) Serious insult – any act of the employer that injures or wounds
the feelings of an employee which may compel the latter to quit
his job results in constructive dismissal.
(b) Unbearable treatment – any act that affects the mind and body
such as it produces a reasonable apprehension of physical
violence, causes mental distress and sorrow which compelled an
employee to resign, results in constructive dismissal.
(c) Commission of a Criminal Offense by the employer against the
person of an employee – such as slapping the employee plus the
threat of scratching her face with a pair of scissors constitutes an
offense will justify employee’s act of severing employer-
employee relationship.
Note: In constructive dismissal, the most significant element is
quitting from the job.
Employment not deemed terminated
(a) Bona fide suspension of operation of business not exceeding (6)

months.

(b) Fulfillment of a personal civic or military duty even it exceeds
(6) months.
(c) Floating status or off-detail status for a period of (6) months.
(d) Employee on a leave of absence.
(e) 30-day time frame for preventive suspension of an employee. If
it exceeds 30 days it metamorphoses into a case of constructive
dismissal unless paid his monthly salaries.
(f) Employee filed a case of illegal dismissal. Employer-employee
relationship is merely suspended.
Types of Regular Employment
A. Regular Employment
(1) By nature of work – the employee is engaged to perform job which is

usually necessary or desirable in the usual business or trade of the
employer. (E.g., mechanic in an auto repair shop)
(2) By years of service – the employee renders services for at least one
year of service, whether such service is continuous or broken, with
respect to the activity in which he is employed.
(3) Upon the expiration of the probationary period – the general

probationary period is six (6) months; beyond the six-month period,
the employee becomes a regular employee. For teachers with full-time
satisfactory service, the probation is three (3) years not three (3) school
years.
Note: The employer and the employee can agree on probation below six (6)
months which is favorable to the employee. Also, they can agree beyond
six (6) months especially if the nature of the job requires extensive training
(PLDT Ruling).
(4) Upon expiration of the training period of special types of workers

under Book II of the Labor Code.
(5) Pre-termination of learnership contract – provided a learner has

already been trained for two (2) months.

(6) Casual employee – who has rendered at least one year of service, a
regular employee.
(7) Constant rehiring or renewal of contract - such as constant project
employees; exception OFWs and seamen who were employed for a
fixed term or contractual basis.
(8) Seasonal employees who are employed from season to season
performing the same task.
(9) Non-project employees belonging the work pool who are not allowed
to provide their services to other employers.
B. Casual Employment – employee is engaged to work in an activity that is

not usually necessary or desirable in the usual business of the employer.
E.g., A carpenter hired to repair the roof of an auto repair shop is a casual
employee, because he performs job that is only incidental to the principal
activity of the employer. If the carpenter was able to repair it for three (3)
years, what is his status?
C. Fixed-term, fixed-period or contractual employment – An employee is

engaged to work on a specific project or undertaking, the completion of
which has been determined at the time of the engagement of the employee.
The contract terminates by itself with the expiration of the contract or
completion of the project.
B. Law on Prescription of Offenses and Claim

(a) Purely money claims – 3 years
(b) Incremental proceeds arising from tuition fees – 3 years
(c) Service Incentive Leave – 3 years
(d) Criminal cases under the Labor Code – 3 years
Except:
*Unfair labor practice – 1 year
*Simple illegal recruitment – 5 years
*Syndicated illegal recruitment – 20 years
*Large scale illegal recruitment – 20 years
*Criminal aspect in Social Security Law – 4 years
(e) Union fund – 3 years
(f) Employee’s compensation claims – 3 years

(g) Illegal dismissal – 4 years (Callanta v. Carnation Phils., 145 SCRA 268)
(h) Reinstatement – 4 years
(i) Backwages, damages, Attorney’s fees, 6% legal interest on monetary
awards – 4 years (Arriola v. Pilipino Star, G.R. No. 175689, 13 August 2014)
(j) Social security claims – 10 years
Government claims on premiums – 20 years
(k) GSIS claims – 4 years
Except:
*Life insurance claims – imprescriptible
*Retirement claims – imprescriptible
C. Labor Relations Law
1. Trisectoral composition of the NLRC

The NLRC is a trisectoral body whose composition comes from the
government, labor and management sectors. It sits en banc for purposes of
policy determination and promulgation of rules and regulations governing
its proceedings. The hearing and disposition of cases before any of its
divisions or its regional arbitration branches are an exercise of its
quasijudicial functions.
2. NLRCs adjudicatory functions exercised through division
The NLRC exercises its adjudicatory functions and all other powers
and duties through its divisions. The Divisions of the NLRC have exclusive
appellate jurisdiction over cases within their respective territorial
jurisdiction (Mina v. NLRC, 14 July 1995).
3. NLRC Commissioners and Labor Arbiters
The NLRC Commissioners and Labor Arbiters shall hold office

during good behavior until they reach the age of 65 years. The President
may extend their services to 70 years upon the recommendation of the
Commission en banc.
The President shall appoint them without the confirmation of the

Commission on Appointments.

4. Jurisdiction of the Labor Arbiter
(a) Unfair labor practices. Except - ULP cases under the assumption
power of the President of Secretary of Labor in a vital industry dispute
or by agreement pf the parties through voluntary arbitration.
(b) Termination disputes. Except – termination disputes under the
assumption power of the President of Secretary of Labor or by
agreement of the parties through voluntary arbitration.
(c) Money claims in excess of Php 5,000.00. Except – money claims under
the assumption power of the President or Secretary of Labor, by
agreement of the parties through voluntary arbitration or through the
exercise by the Regional Director of the DOLE of its visitorial
(inspection) or enforcement powers.
(d) Damages. An award of damages is brought about by his illegal
dismissal. The purpose of damages is indemnity not punishment but
to alleviate the moral suffering he has undergone by virtue of his
unwarranted dismissal.
(e) All matters that pertain to any concerted activity such as strike,
picketing, lockouts, etc.
(f) All claims that have reasonable causal connection with employer-
employee relationship.
Note: With employer-employee relationship – labor tribunals; without
employer-employee relationship – regular courts.
(g) All claims arising out of employer-employee relationship of an OFW
including damages and disability claims (Sec. 10, R.A. 8042 as
amended by R.A. 10022).
(h) All claims of employees of government-owned or controlled
corporations without original charters known also as subsidiaries or
corporate offsprings; governing law – labor code.
(i) Jurisdiction over collateral matters – If the Labor Arbiter has
jurisdiction over the main case, likewise, he has jurisdiction over all
matters that are collateral or incidental thereto. E.g., illegal dismissal
case, those that are collateral thereto may include determination of
backwages, damages, attorney’s fees, issuance of writ of execution, or
motion to quash.

(j) Jurisdiction over deductions for tax purposes are money claims under
Labor Arbiter’s jurisdiction.
5. Cases not cognizable by the Labor Arbiter
(a) The aggregate amount of money claim does not exceed Php5,000.00.
(b) Claims for employee’s compensation, social security, Philhealth and
maternity benefits.
(c) Claim for liquidated damages for breach of non-compete provision in
an employment contract is an intrinsically a civil dispute.
(d) Delito, quasi-delito or tort
(e) Intra-corporate cases such as dismissal of corporate officers shall be
cognizable by the Regional Trial Court acting as corporate court
under Securities Code of 2000.
The corporate officers are those mentioned in the Corporation
Code and the by-laws. It is settled the Board of Directors can no longer
create corporate offices through Board Resolutions because their
power to create such offices cannot be delegated (Matling Industrial
and Commercial Corp., v. Corros, G.R. No. 157802, 13 October 2010).
(f) Dismissal case filed against a local water district is governed by the
Civil Service Law.
(g) cases involving government -owned or controlled corporations with
original charters are governed by Civil Service Law (P.D. 807, as
amended).
(h) Cases on unresolved grievances arising from interpretation or
enforcement of CBA or company personnel policies.
(i) Cases arising from violation of training agreements. E.g., in
Apprenticeship, jurisdiction rests upon initially with Apprenticeship
Plant Committee.
(j) International organizations with functional immunities such as
SEAFDEC, IRRI, and ADB are beyond the jurisdiction of the Labor
Arbiter.
(k) Members of the diplomatic corps with diplomatic immunities;
(l) Money claims against government agencies such as the Department
of Agriculture. The claim should be filed with the Commission on
Audit.

(m) The Labor Arbiter has no jurisdiction over cases that have become
final and executory under the doctrine of immutability of final
judgment. The exception is when there was a motion filed for
purposes of re-computation of monetary awards (Lim v. HRM, Phils.,
G.R. No. 201483, 14 August 2014).
(n) The Labor Arbiter has no power to issue a writ of injunction in labor
disputes involving a strike or lockout (Article 224, infra).
6. NLRC Powers
(a) Contempt power – the NLRC has the power to hold a person in
contempt and impose appropriate penalties for any misbehavior or
misconduct that may obstruct the exercise of its powers and functions.
(b) Injunctive power – the purpose of an injunctive writ is to preserve the
status quo until the merits of the case are fully heard. The issuance
requires a hearing at which parties are given the opportunity to be
heard. May the NLRC issue a Temporary restraining Order ex parte?
Yes. Reason – it is a mere interlocutory order which contemplates
further hearing for the application of a temporary injunction upon
notice to the adverse party. Indeed, it can be issued without notice
and hearing when the urgency of the situation or extreme necessity
demands (Bisig v. NLRC, 226 SCRA 499).
(c) Cases under assumption power of the President and Secretary of
Labor certified to the NLRC for compulsory arbitration.
(d) Appellate power
(1) Cases decided by the Labor Arbiters under Article 224 of the
Labor Code and Section (10) of R.A. 8042 over cases involving
OFWs and seafarers.
(2) Wage distortion cases decided by the Labor Arbiters under
Article 124 of the Labor Code in nonunionized establishments.
(3) Cases decided by the Labor Arbiters on contested cases under
Article 128 of the Labor Code on visitorial and enforcement
powers.
(4) Cases decided by the Regional Directors of the DOLE in the
exercise of their adjudicatory functions under Article 129 of the
Labor Code.

7. Principle of emancipation of labor relations (doctrine of speedy labor
justice). This principle simply provides that rules of procedure and
evidence in courts of law or equity shall not control labor proceedings. The
same may be relaxed in labor cases to serve the demands of substantial
justice (Havtor v. NLRC, 372 SCRA 271).
8. Position paper proceedings, not violative of due process Labor cases can be
decided on the basis of position papers and other documents without
resorting to technical rules of procedure and evidence observed in the court
of justice. Such a procedure complies with the requirements of due process
(Asia World v. Ople, 152 SCRA 219).
9. Grounds for appeal
(a) Abuse of discretion

(b) Fraud or coercion
(c) Graft and corruption
(d) Question of Law
(e) Serious error in the finding of facts
10. Requirements for appeal to the NLRC
(a) A memorandum of appeal copy furnished the other party. Failure to

copy furnish the other party is not fatal to appeal; it is a mere
procedural and formal lapse.
(b) Payment of appeal, docket fee of filing fee. Nonpayment is fatal to
appeal because payment of docket fee is not a matter of procedure but
a matter of jurisdiction. It is jurisdictional requirement (Acda v.
Minister of Labor, 119 SCRA 306).
(c) Posting of cash or surety bond. if the judgment involves a monetary
award. The law fixes (2) types of bonds, cash or surety. The exception
is property bond pursuant to UE-RM ruling.
Note: The appellant employer should post a reasonable amount of the bond
(20% and above) or full amount of the bond to perfect an appeal. 10% bond
is not reasonable.
(d) Proof of service to the adverse party.

11. Motion to reduce bond accompanied by posting an appeal bond Pursuant
Mc Bernie v. Ganzon, the appellant employer can post 10% of the amount
of the bond. However, if the NLRC denied the motion, the employer is
given (10) days fresh period to post the full amount of the bond. The 10%
posting applies only to motion to reduce the bond to perfect an appeal.
12. Receipt of evidence for the first time on appeal, allowed It is settled the
NLRC is not precluded from receiving evidence, even for the first on
appeal, because technical rules of procedure are not binding in labor cases
v. NLRC; G.R. No. 148372, 27 June 2005).
13. Change of theory on appeal, not proper A change or theory on appeal is

not proper. It is offensive to the basic rules of fair play and violative of due
process.
Thus, prescription cannot be raised for the first time on appeal, much
less in a motion for reconsideration (Dosch v. NLRC; 123 SCRA 296;
Jacqueline Ind. V. NLRC, 69 SCRA 242).
14. Labor Arbiter’s decision as to reinstatement aspect, immediately self-

executory (Pioneer ruling)
As to the reinstatement aspect of the decision of the Labor Arbiter, it

is immediately self-executory; that is, the employee is restored to his former
position sans the procedural requirement of a writ of execution. This
applies only in the Labor Arbiter level not with NLRC, C.A. or the Supreme
Court.
15. Reinstatement pending appeal (Refund doctrine abandoned) The employer

is given (2) options under the law, that is, to reinstate the employee actually
or in the payroll. If the Supreme Court finally finds legal dismissal and sets
aside the decisions a quo finding illegal dismissal, the employee reinstated
in the payroll is not required to reimburse the salaries received pending
appeal because the principle of social justice renders inapplicable to the
civil law doctrine of unjust enrichment (Garcia v. Pal; G.R. 164856, 20
January 2009).

16. NLRC decision subject to petition for certiorari pursuant to St. Martin’s
Funeral Home ruling the party adversely affected by the NLRC decision
may obtain a review and nullification of that decision through the
extraordinary writ of certiorari under Rule 65 to be initially filed with the
Court of Appeals under the doctrine of hierarchy of Courts.
17. Petition for review on certiorari to the Supreme Court from the decision of
the Court of Appeals under Rule 45 The appeal from a final disposition of
the Court of Appeals is a petition for review on certiorari under Rule 65.
Under Rule 45, the reglementary period to appeal is fifteen (15) days from
notice of judgment or denial of the motion for reconsideration (ATC v. CA;
G.R. 144664, 16 March 2004).
18. Judicial review of questions of facts
The final order or resolution of the Court of Appeals may be appealed

to the Supreme Court by filing a petition for review under Rule 45
grounded on purely question of law, which is fifteen (15) days from notice
of judgment or denial of the motion for reconsideration.
Questions of facts should not be reviewed by the Supreme Court as it

is not a trier of facts. However, judicial review of findings of facts are
allowed under the following instances:
(a) When the factual findings of the Labor Arbiter, the NLRC and
the Court of Appeals are contradictory or diametrically opposed
to each other.
(b) When the conclusions of the CA are based on speculations,
surmises, conjectures and misapprehension of facts.
(c) When the CA failed to consider facts which if properly
considered would justify a different conclusion (Bascon v. CA;
G.R. No. 144899, 5 February 2004).
19. Writ of execution issued by the Labor Arbiter

After termination of the pre-execution conference, the Labor Arbiter can
issue a writ of execution as it is its ministerial duty once the decision has
become final and executory.
20. Grounds for motion to quash
A writ of execution may be quashed on the following grounds:
(a) The writ has been improvidently issued;

(b) The writ is issued to non-party;
(c) The writ is issued without authority; and
(d) The writ is defective due to the irregularity in the issuance (Heirs of
Guballa, 168 SCRA 518).
21. Execution pending appeal
A party may already move for the execution of the monetary award
of the NLRC even during the pendency of the petition for certiorari of the
NLRC decision awarding the same with the Court of Appeals or the
Supreme Court unless restrained by the latter (Brizuela v. Dingle; G.R.
175371 , 30 April 2008).
22. Bureau of Labor Relations
*Concurrent and original jurisdiction of BLR and the Regional Office of the
DOLE
(a) All inter-union and intra-union conflicts; and
(b) All disputes affecting labor management relations in all workplaces.
*Concurrent administrative functions of the BLR and DOLE Regional
Office
(a) Registrations of labor unions
(b) Keeping a registry of all labor unions; and
(c) Keeping a file of all CBAs.

23. Complaints involving federations, national unions, etc.
All complaints or petitions involving federations, national unions or

industry unions shall be filed with DOLE Regional Office or the BLR; but
such complaint shall be heard and resolved by the BLR.
24. Conciliation/Mediation function of the NCMB
The conciliation/mediation functions of the BLR are now transferred

to the NCMB.
25. Duties of the NCMB in case of bargaining deadlock/stalemate
If the parties fail to settle issues in collective bargaining, any party

may declare a deadlock. Once there is a deadlock, the law directs the NCMB
to intervene either:
(a) motu proprio;

(b) upon request of the management;
(c) upon request of the union; or
(d) upon the joint request of the management and the union.
26. Quitclaim declared null and void
A quitclaim in which the consideration is scandalously low and

inequitable does not bar the pursuit of the worker’s legitimate claim. It is
null and void for being contrary to public policy (Cruz v. NLRC, 203 SCRA
286).
27. Registry of unions, registration of CBA
The BLR shall keep a registry of all legitimate labor organizations. It

shall also register CBAs.

28. Validity of CBA
Substantive validity of the CBA is not affected by non-registration.

However, an unregistered CBA does not bar certification election rule.
29. Contract-bar rule
The existence of the duly registered CBA bars the holding of a

certification election or any action that disturbs such CBA.
30. Exceptions to the contract-bar rule; certification election not barred
(a) CBA is not registered. Since it is not registered, it will not bar
certification election;
(b) CBA is incomplete/inadequate (sweetheart contract);
(c) CBA was prematurely extended;
(d) Mass disaffiliation from the majority union (schism or split); and
(e) CBA entered into during the pendency of a petition for certification
election.
31. Legal effects of registration of a union (Rights of a union)
(a) Rights of representation- applies only to union members;

(b) Right to be certified as the collective bargaining agent in the
bargaining unit – applies to all employees;
(c) Right to acquire and dispose of property;
(d) Right to sue and be sued in its registered name;
(e) Right to engage in activities which redound to the benefit of union
members;
(f) Right to tax exemption; and
(g) Right to be furnished with employee’s audited financial statement
upon written request of the union.
32. Right to self-organization
The right to self-organization applies to all employees to form, join or

assist in the formation of a labor organization or workers association. This

includes employees in commercial, industrial, agricultural, religious,
charitable, medical, or education institutions operating for profit or not.
Ambulant, intermittent and itinerant workers, self-employed, rural
workers, and those without any definite employers may form a worker
association for their mutual aid and protection but not for purposes of
collective bargaining.
33. Who can/cannot join a labor organization?
(a) Supervisors cannot join a rank-and-file union; co-mingling

prohibited;
(b) Employees-members of a cooperative cannot join a labor
organization; an employee-member cannot bargain with himself or
his co-owners (CNEEC v. SOLE, 13 September 1991);
(c) Confidential employees performing managerial functions cannot join
a labor organization;
(d) Confidential employees who have access on confidential matters of
persons who exercise managerial functions in the field of labor
relations. However, confidential employees without access to
confidential labor relations matters can join (NATU v. Torres, 29
December 1994);
(e) Working children can join a labor organization (P.D. 603);
(f) Homeworkers can join a union (D.O.5, 4 February 1992);
(g) Independent contractor’s employees can join a union (D.O. 18-02,
2002);
(h) In the government sector, the following cannot form or join a rank-
and-file union:
1) Members of the AFP, PNP, BJMP, BFP;
2) High level employees exercising managerial functions (E.O. 180);
(i) Employees of international organization may join but not for
purposes of collective bargaining (Kapisanan v. SOLE, 28 September
1990);
(j) Alien employees cannot join unless their country extends the right to
Filipino workers (D.O. 40-03);
(k) Managerial employees cannot join a union (Article 251, Labor Code);
(l) Supervisors may join a union;
(m) Rank and file employees can join a union; and

(n) Rank and file union and a supervisor’s union belonging to the same
company can join the same federation (Article 251, Labor Code).
34. Unfair Labor Practice
(a) An unfair labor practice is an act by an employer – or their agents

which violates the right of workers to self organization.
(b) Nature of ULP – it is not only an administrative or civil offense but
also a criminal act. But the criminal aspect of ULP can be filed only
with the regular courts provided there was already a final verdict by
the Labor Arbiter on the administrative or civil aspects.
(c) Settled is the rule that employer-employee relationship should exist
in ULP. (1) ULPs committed by agents (nonemployees) of either
company or union, (2) yellow-dog contract; and (3) doctrine of
innocent by-stander (Liwayway Publishing Ruling).
(d) Employer ULPs
(1) Interference, Restraint, Coercion – committed through
economic, physical or psychological means. The term
“interference” is all embracing as it includes all acts of both the
employer and the union designed to discourage active
unionism.
(2) Yellow-dog contract – A person who signs this contract is a
cowardly dog because he renounced his right to self-
organization. Here, the employer requires an applicant to the job
that he should never join the union in the bargaining unit, once
employed.
(3) Company unionism – It may be formed at the instance of an
employer or it is already an active union but the employer
dampens its militancy by capturing it by kindness or by
maintaining a close personal relationship with union officers or
by providing economic concessions to such union.
(4) Discrimination – manifests itself in the following: Dismissal, lay-
off, closure of business, rehiring, transfer, retrenchment or threat
to close the plant because of union activities.
(5) Refusal to bargain – In duty to bargain it requires the parties to
manually bargain promptly on reasonable terms and conditions

of employment and in good faith. In this context, the following
ULPs may be committed:
a) Delaying the bargaining process by the employer as it has

no intention of signing a CBA with the union – surface
bargaining.
b) Delaying the submission by the employer of its counter-
proposal or the employer in its counterproposal intimated
to the union that is submitting the same on a take it or leave
it bargaining – Boulwareism.
c) The union submitting CBA proposal containing economic
demands that are unreasonable or exaggerated – Blue-sky
bargaining.
d) The employer sold the stocks to a dummy corporation or
puts up a shop in another area where the operation of the
business or equipment are transferred – Run-away shop.
(6) Gross/Flagrant violation of the CBA – it refers to the violation of

the economic provisions in the CBA such as escalator clause,
across the board wage increase, etc.
(7) Providing testimony in judicial, quasi-judicial or administrative

bodies. This ULP is not related with violation of Right to self-
organization.
(8) Providing the union with negotiation fees – The purpose is to

prevent a sweetheart contract.
(9) Contracting out of services to an independent contractor beyond

six (6) months – constructive dismissal. 35. UNION ULPs
(a) Restraint or coercion such as preventing employees who

do not wish to join the strike in going to or returning from
work during the strike.
(b) Discrimination – such as the act of expelling a union
member for filing charges against union officers.

(c) Featherbedding activities – This ULP committed against
the employer is an extortion of money or other things of
value for services rendered or unperformed by the union.
The union makes work or prolongs the work in order to
earn.
(d) Violation of the duty to bargain collectively – The union is
guilty of ULP if it compels an employer to negotiate a CBA
with it during pendency of a petition for certification of
election.
(e) Acceptance of negotiation fees from the employer. This is
designed to prevent an inadequate CBA known as
sweetheart contract.
(f) Violation of the CBA – A strike staged by the union in
violation of the conclusive arbitration clause in the CBA is
an unfair labor practice.
(g) Blue-sky bargaining – The economic proposals of the union
are exaggerated or unreasonable. They are beyond the
capacity to give by the employer.
36. Collective Bargaining
(a) Collective bargaining denotes negotiations looking forward to a

collective bargaining agreement.
(b) Characteristics of collective bargaining:

1) Continuing legal relationship
2) Process of adjustment
3) Contract of reasonable benefits
4) Contract of relative equality
5) Agency of participatory democracy
(c) Steps in collective bargaining

1) Preliminary process (Initiation) – Submission of CBA proposal
by the union and counter proposal by the employer;
2) Negotiation – Bargaining Negotiations; if there is a collective
bargaining deadlock, it is resolved by the NCMB;
3) Execution – signing and approval;

4) Publication – Posting the CBA in (2) conspicuous place in the
company;
5) Ratification – by the employees;
6) Registration – the purpose is to bar certification election;
7) Administration – joint administration by the parties of the CBA
during its lifetime; and
8) Interpretation and Enforcement of the CBA.
37. Collective Bargaining Agreement (CBA)
(a) CBA is the law of the plant.

(b) Term of the CBA – the life span of the CBA is five (5) years as far as
the representation aspect is concerned. However, the workers may
negotiate on other provisions of the CBA no later than three (3) years
after its execution.
(c) Rules of retroactivity
1) The effectivity of the CBA shall retroact to the day immediately
after the date of expiration of the old CBA in case the new CBA
is concluded and entered into within six (6) months from the
said expiration date.
2) If the new CBA is entered into beyond six (6) months from the
expiration of the old CBA, the parties are given the right to
negotiate the duration of the effectivity.
Note: Retroactivity of the CBA has no application in arbitral awards
by the DOLE Secretary, the NLRC or Voluntary Arbitrator.
3) One-year extension of the CBA is valid upon agreement of the
parties. In fact, 10-years suspension of the CBA negotiations is
legally tenable in order to promote industrial stability and
predictability (Rivera v. Espiritu; 374 SCRA 351).
4) If no new CBA is concluded with the expiration of the old CBA,
the latter is automatically renewed under the automatic renewal
clause or principle of hold-over or CBA continuity.
38. Appropriate bargaining unit defined
An appropriate bargaining unit is a classification of jobs or position

where two or more employees possess common employment interests and

conditions and which may be reasonably combined together for purposes
of collective bargaining.
The following are the tests of determination:
(a) Globe election test – which is the express will or desire of the
employee’s test.
(b) Community or Mutuality of Interest Test – is reflected in groups
having substantial similarity of work and duties or similarity of
compensation and working condition.
(c) Prior collective bargaining history test – In determining the proper
bargaining unit, another test is the prior history (past history) of
collective bargaining between the proposed bargaining unit and the
employer. Simply stated, past history of collective bargaining process
is resorted to in order to determine the proper bargaining unit.
(d) Similarity of employment status test – Determining the proper
bargaining unit is based on the status of employment of the workers.
Thus, regular employees should constitute one bargaining unit;
while, those employees with brief or casual employment status
should constitute another proper bargaining unit.
39. Modes of determining representation status
(a) SEBA certification – Sole exclusive bargaining agency certification.

(b) Consent election – Unions agreed between and among themselves to
select the bargaining agent through an election conducted with or
without the intervention of the DOLE.
(c) Certification election – an election conducted among three or more
choices to determine the exclusive bargaining agent. Under the
“double majority rule” the majority of the employees in the
bargaining unit must have voted and the winner must have garnered
the majority of the valid votes cast.
(d) Run-off election (automatic second election rule) – an election which
provides for three or more choices results in no chance receiving a
majority of the valid votes cast, the election officer shall motu propio
conduct a run-off election between labor unions receiving the (2)

highest numbers of votes for all contending unions is at least fifty
(50%) percent.
(e) Re-run election – an election conducted to break a tie (a) between two
(2) contending unions, (b) between a “no-union” and one of the
unions, or (c) a failure of election has been declared by the election
officer and/or confirmed by the Med-Arbiter (Sec. 2, D.O. 40-1-15,
Series of 2015).
40. Certification election (sole concern rule/bystander rule) It is the sole

concern of the employees and the employer is regarded as a bystander.
However, the employer can file a petition for certification election because
it is requested to bargain collectively.
(a) In the absence of collective bargaining agreement, an employer who

is requested to bargain collectively may file a petition for certification
election at any time.
(b) Settled is the rule, the employer is without “locus standi” to oppose a
petition for certification election. It should maintain a “hands-off”
policy.
(c) Jurisdictional 25% consent requirement. The petition for certification
election should be supported by the written consent of at least 25% of
all the employees in the appropriate bargaining unit.
If the 25% is complied with, certification election is mandatory.

However, if the 25% is not met. It is still discretionary to conduct
certification election as it is the best forum in determining the will of
the employees (Best forum rule).
(d) Certification election, barred despite compliance with 25% consent

requirement. Certification election cannot be conducted under the
following instances:
1) Contract-bar rule;
2) Outside of the freedom period rule;
3) One-year bar rule;
4) Deadlock-bar rule;
5) Charge of company unionism rule;

6) Negotiation-bar rule;
7) Appeal-bar rule;
8) Not listed in the registry of unions rule.
(e) Exceptions to the contract-bar rule; instances certification election is

conducted:
1) The CBA that is unregistered will not bar certification election.

However, if the CBA is an arbitral award, it need not be
registered.
2) The CBA is incomplete or inadequate – sweetheart contract.
3) The CBA was hastily entered into frustrating the right of
employees to file a petition for certification election at the proper
time.
4) The CBA entered into during the pendency of the certification
election.
5) The CBA was registered with falsified supporting documents.
6) The CBA entered into between the employer and with the union
that is not the exclusive bargaining agent in the company
premises.
7) In case of mass withdrawal/disaffiliation, of the members from
the majority union. (f) Pre-election conference – it is the
machinery if determining the eligibility list of voters through
inclusion exclusion proceeding before filing a petition for
certification election.
Thus, the employer cannot question the qualification of
workers in a certification election as the proper forum is the pre-
election conference or otherwise known as inclusion/exclusion
proceeding (Notre Dame v. Laguesma; G.R. 149833, 29 June
2004).
(g) Effect of no-union winning the election. It shall be certified that

indeed no certification election shall be conducted within one year
from the date of final election result.
A no-union won because majority of the employees in the

bargaining are members of a religious group (such as members of the

Iglesia ni Cristo) who are allowed under the law not to form or join a
labor union but can vote in a certification election. They are religious
or conscientious objectors.
41. Establishment of a grievance machinery
Its purpose is to establish a machinery for the expeditious resolution

of grievances arising from interpretation or implementation of the CBA or
company personnel policies. Unresolved grievances shall be referred to
voluntary arbitration.
42. Conclusive arbitration clause in the CBA
The conclusive arbitration clause is one of the mandatory provisions

in the CBA providing for grievance machinery and voluntary arbitration
procedures.
However, a grievance may be brought directly to voluntary

arbitration without passing through the grievance machinery as it has been
proven to be ineffective in the past or the parties inadvertently failed to
include grievance machinery in their CBA. Also, the parties may
voluntarily agree to submit their grievance directly to voluntary arbitration
procedure (CENPELCO v. Macaraeg, 22 January 2003).
43. Original and exclusive jurisdiction of Voluntary Arbitrators
(a) To hear and decide all grievances arising from the interpretation or
implementation of the CBA and company personnel policies.
(b) To hear and decide wage distortion issues in unionized establishment.
(c) To hear and decide grievances arising from the interpretation or
implementation of the Productivity Incentive Program under R.A.
6971.
44. Jurisdiction of VA by agreement of the parties
(a) To hear and decide all other disputes including ULPs and bargaining
deadlocks by agreement of the parties.

(b) To hear and decide termination cases by agreement of the parties.
45. Jurisdiction of VA on collateral issues in the Submission Agreement
(a) To hear and decide on all matters collateral to the main case subject of
Submission Agreement such as award of reinstatement and
backwages in illegal dismissal case (Ludo and Luym Corp. v.
Saordino, 20 January 2003). It includes all matters cognizable by the
Labor Arbiter but referred to voluntary arbitration by agreement of
the parties such as money claims and legality/illegality strike and
lockout (San Jose v. NLRC, 17 August 1998).
46. Jurisdiction of VA over violations of the CBA The VA has jurisdiction over
violation of a CBA or an ordinary grievance under the grievance machinery
and voluntary arbitration proceedings in the CBA. However, if the
violation of the CBA is gross in character it is a ULP cognizable by the Labor
Arbiter.
47. DOLE Secretary’s Administrative Intervention on Dispute Avoidance

(AIDA Power) Either or both the employer and the certified bargaining
agent may voluntarily bring to the Office of the DOLE Secretary through a
Request for Intervention any potential or ongoing dispute (strike or
lockout) not subject of any complaint or notice of strike or lockout at the
time of the Request for Intervention is made (No. 1 DOLE Circular No. 1,
series of 2006).
48. DOLE Regional Directors and Assistant Regional Directors designated as

Ex Officio Voluntary Arbitrators (EVAs) (EVA Power)
All Regional Directors and Assistant Regional Directors of the DOLE

are designated as Ex Officio Voluntary Arbitrators that have jurisdiction to
hear and decide all grievances arising from the interpretation or
implementation of the CBA and company personnel policies.
The Secretary of Labor and Employment may likewise refer to EVAs

Voluntary Arbitration cases from DOLE Secretary’s Intervention under the

DOLE’s Administrative Intervention for Dispute Avoidance (AIDA) (D.O.
83-17, Series of 2007).
49. Voluntary Arbitrator’s decision appealable to C.A. under Rule 43 of the

Rules of Court.
The decision of the Voluntary Arbitrator is appealable to the Court of

Appeals under Rule 43, Rules of Court within 10 days from receipt of the
decision of the Voluntary Arbitrator (Phil. Electric Corp. v. C.A., G.R. No.
168612, 10 December 2014; Baronda v. C.A., G.R. No. 161006, 14 October
2015).
50. Strike and Lockout
A strike is a temporary stoppage of work arising out of a labor or

industrial dispute. In the words of the Supreme Court, it is the most
dangerous and the most lethal weapon in the arsenal of the union. On the
other hand, lockout takes place when an employer temporarily refuses to
furnish work as a result of a labor or industrial dispute.
51. Kinds of Strike
(a) Authorized – with the approval of the majority of the total union
membership.
(b) Unauthorized (wildcat) – without the approval of the union
membership.
(c) General – it is a sympathetic, political type of strike that covers a wider
region or territory of a State. Example: Welga ng Bayan
(d) Particular – it is limited in scope as it is staged in a particular plant or
a single occupation or trade.
(e) Slowdown – the workers try to reduce production to compel the
employer to grant their wishes.
(f) Sit down – the workers remain in the plant but refuse to work and
their machines or tools remain idle.
(g) Quickie – it is related to slowdown which is characterized by brief
work stoppage for a period of few minutes or hours.

(h) Sympathetic – staged in the absence of employer-employee
relationship.
(i) Political – it resembles that of general strike staged in redress of
grievances against the government. This is also known as cause-
oriented strike.
(j) Unfair labor practice – staged in violation of right to self-organization.
(k) Economic – staged as a result of bargaining deadlock.
(l) Union recognition strike – staged to compel the employer to recognize
the union as the bargaining agent.
(m) Good Faith – staged by the union (without compliance with strike
requirements) on the belief that the employer was committing an
unfair labor practice which was later found to be untrue. According
to the Supreme Court, it is illegal because good faith is not a defense
in a strike (Grand Boulevard Hotel v. Dacanay, G.R. No. 153655, 18
July 2003).
(n) Legal – staged in compliance with the requirements for staging a lawful
strike.
(o) Illegal – requirements for staging a lawful strike are not complied
with.
52. Requirements for a valid strike

(a) It must be based on valid grounds;
(b) It must be approved by the majority of the union membership in order
to prevent a wildcat strike;
(c) It must be declared on (2) strikeable issues: (1) collective bargaining
deadlock, or (2) unfair labor practice; and
(d) Filing of the notice of strike to the NCMB: (1) bargaining deadlock –
30 days, (2) unfair labor practice – 15 days (cooling-off period).
In case of dismissal of union officers which may constitute union

busting where the existence of the union is threatened, the cooling-off
period need not be observed (Capitol Medical Center, Inc. v. NLRC,
G.R. No. 147080, 26 April 2005). In case of union busting, the cooling-
off period can be dispensed with but the strike vote report
requirement (7- day strike ban) being mandatory in character, shall
“in every case” be complied with (Sukhotai Cuisine v. C.A., G.R. No.
150437, 17 July 2006).

(e) Compliance with the 24-hour prior notice rule. The failure of the
union to comply with this requirement will render the subsequent
strike staged by the union illegal (Ibid).
(f) If the result of the strike vote ballot is filed within the cooling-off
period, the 7-day waiting period shall be counted from the day
following the expiration of the cooling-off period.
Illustration:
(1) Economic strike – 30-day cooling-off period plus 7-day strike
ban equals 37 days; but a strike is staged only on the 38th day.
(2) Unfair labor practice strike – 15-day cooling-off period plus 7-
day strike ban equals 22 days; but a strike is staged only on the
23rd day.
(g) In strikes/lockouts in hospitals, it is the duty of the striking union or

locking-out employer to provide an effective skeletal workforce of
medical and health personnel to insure adequate protection of the life
and the health of patients (Article 278, Labor Code).
53. Doctrine of means and purposes

The strike to be valid, its purpose and objective must be lawful. However,
the strike may still be declared invalid, if the means used in attaining the
purpose are illegal (AIUP v. NLRC, 364 Phil. 697,707 [1999]).
54. Assumption power of the President/Secretary of Labor under Article 278g

of the Labor Code
Under Article 278g of the Labor Code, the President/Secretary of

Labor is granted an extraordinary pre-emptive power to assume
jurisdiction over vital industry disputes. By nature, such assumption power
is plenary, full, complete, and at the same time discretionary. Such power
is limited only to national interest cases.
55. Legal effects of an Assumption Order
(a) It has the effect of a writ of injunction;

(b) The striking workers shall return to work; otherwise, they could be
validly dismissed because they are already engaged in a prohibited
activity;
(c) Return-to-work order is not necessary in an Assumption Order. The
mere issuance of an Assumption Order automatically carries with it a
return-to-work order.
(d) Assumption Order contemplates only actual reinstatement; however,
under special circumstances, they could be reinstated in the payroll;
(e) With the Assumption Order issued, the Secretary of Labor can take
cognizance of cases under the jurisdiction of the labor Arbiter; and
(f) Cases pending with the Labor Arbiter can be taken over by the
Secretary of Labor, provided they are the issues under assumption.
56. Strike and picketing, distinguished
The strike to be effective, there must be an effective picketing. There

can be no strike without picketing; however, there can be picketing without
strike, because picketing is a part of freedom of expression guaranteed
under the Constitution (Thornhill v. Alabama, 310 US 88).
Picketing is the marching to and fro of the strikers at the company

premises usually accompanied by the display of placards and other signs
making known to the public the facts in a labor dispute (IBM v. NLRC; G.R.
No. 91980, 27 June 1991).
57. Government employees prohibited to strike
A strike of government employees is a form of an insurrection against

public authority in the light of the principle of State sovereignty. To allow
government employees to strike will tremendously affect the delivery of
vital and basic services to the public. Since government employees are civil
servants, the act of striking is a civil service offense violative of the civil
service law (P.D. 807, as amended).
However, employees of government-owned or controlled

corporations without original charters known as corporate offsprings or
subsidiaries are allowed to unionize, bargain collectively, and stage a

strike. Terms and conditions of employment in government subsidiaries
are governed by the Labor Code (Lumanta v. NLRC, 170 SCRA 79;
NASECO v. NLRC, 168 SCRA 122).
58. Liability of union officers and members in illegal strike

With the declaration of illegality of strike, the union officers are liable for
dismissal for knowingly participated in an illegal strike or committed
illegal acts during the strike. However, a worker merely participating in an
illegal strike may not be terminated from employment, unless he
participated actively in the commission of illegal acts (VCMC v. Yballe,
G.R. No. 196156, 15 January 2014).
In an illegal strike, union officers are liable for dismissal under the
doctrine of vicarious liability.
59. Strikers not entitled to economic benefits; exceptions
In an economic strike, the strikers are not entitled to backwages under

the principle of “no-work, no-pay.” However, under the following, they
could be granted such benefits:
(a) Strikers were discriminatorily dismissed;

(b) Strikers were illegally locked-out by the employer; and
(c) Strikers unconditionally offered to return to work; but rejected by the
employer (PBTC v. PBTC Employees Union, 69 SCRA 10).
-∞-

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LABOR LAW

Dean Salvador A. Poquiz

(1) Principles of Construction – In case of doubt in the implementation of the

(2) Principles of Equipoise- Where the evidence presented by the parties is in

(4) Promotion of full employment clause- This is designed to provide the

1 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

(1) Four-way test in determining employer-employee relationship:

a) selection or engagement of the putative employee,

(2) Two-tiered test:

a) economic dependence test, and

(3) Economic relations or economic reality test – The prevailing economic

(4) Working scholar, not an employee - A working scholar is not an employee

(1) Management prerogative is the power and authority to regulate, according

(2) What are the management prerogatives?

(a) The right to discipline employees;

2 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

3 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

(1) Types of illegal recruitment:

(a) Simple - committed by a licensee or holder of authority against one or

(2) In large scale illegal recruitment, the number of victims is essential or

(3) Doctrinal rulings on illegal recruitment

4 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

(4) Illegal recruitment and estafa cases may be filed simultaneously or

(5) Solidary liability of the principal employer (foreign government

(8) Nature of OFW’s employment is contractual in nature. If there was pre-

5 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

F. Labor-only contracting vs. Permissible job contracting

6 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

(4) Distinctions between legitimate job contracting and labor-only contracting.

(5) What are the tests in determining legitimate job contracting?

(a) Registration test – which requires the contractor to be registered with

7 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

8 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

5. Doctrine of Incompatibility – Where the employee has done

6. Procedural requirements in Dismissal

(a) Pre-Notice (First Notice) or Formal Specific Charges – The

Types of Due Process

(a) Constitutional – protects a person from the government and

9 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

(a) Dismissal for a just cause with due process

Degree of Proof in Illegal Dismissal

As a rule, the quantum of proof required in labor proceedings is

This quantum of proof required is to give flesh and blood to the

Circumstances Affecting Validity of Dismissal – (Proportionality

(a) gravity of the offense

10 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

Just Causes for Dismissal

(a) Serious Misconduct – wrongful conduct committed in an

11 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

(a) Introduction of labor-saving device (automation) – replacement

12 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

Other forms (just causes) of termination by an employee

Constructive dismissal (dismissal in disguise) – is quitting from a

Employment not deemed terminated

(a) Bona fide suspension of operation of business not exceeding (6)

13 LABOR LAW as per SC syllabus - Dean Salvador A. Poquiz

Types of Regular Employment

(1) By nature of work – the employee is engaged to perform job which is

(3) Upon the expiration of the probationary period – the general