Finals Flashcards
Purpose for labor law
Social justice in all phases of nat’l development
- regulate property, create economic opportunities, afford full protection to labor
Basic workers’ rights
- organize
- collective bargaining
- peaceful concerted activities, to strike
- security of tenure
- work under humane conditions
- living wage
- participate in policy and decision-making processes
Rule on retrenchment (requisites)
1) Done to prevent losses. (QUAL: Losses must be serious, actual and real)
2) Written notices were given to workers and to DOLE at least 1 month before
3) Separation pay is paid
Twin notice rule (Olympia Housing)
(1) a written notice specifying the ground/s for termination, + reasonable opportunity within which to explain his side; and (2) a written notice of termination indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.
Past practice (what to consider)
1) Regularity/Continuous
2) Voluntariness
3) Deliberate intent
4) Done over a long period of time
5) * Uniform
6) * Unconditional in nature
Non-diminution of benefits
Any benefit enjoyed by employees can’t be reduced/diminished/discontinued/eliminated
Rule on non-diminution of benefits
1) Grant of benefit is founded on policy/has ripened into practice after a long period
2) Practice is consistent and deliberate
3) Practice is not due to error in the construction/application of doubtful or difficult question of law
4) Diminution or discontinuance is done unilaterally by the employer
Company policies
Policies and regulations (not contrary to law or grossly oppressive) regarding all aspects of employment that are generally binding and valid on the parties and must be complied with
Company practice v. company policy
Policies are written down
Dismissal due to inefficiency at work
1) Set standards of conduct and workmanship upon which to judge the employee
2) The standards were communicated to the employee
3) The communication was made a reasonable time prior to the employee’s assessment
Just causes (Art. 282)
1) Serious misconduct
2) Willful disobedience
3) Gross and habitual neglect
4) Fraud or willful breach of the trust reposed in him
5) Commission of a crime against the person of his employer/immediate member
6) Analogous circumstances
Twin notice rule
1) Notice to explain
2) Hearing
3) Notice of Termination
Termination of OFWs
1) Just/authorized cause
2) Compliance with procedural due process reqs
Construction in favor of labor
All doubts in the implementation and interpretation of the Code and its IRR is to be resolved in favor of labor
When does Art. 4 apply?
1) When there exists an extraordinary circumstance that justified deviation from the rules
2) If doubt exists
3) If there is a dispute in implementation
Management prerogative
Right of an employer to regular all aspects of employment (inc work assignment, working processes, regulations, transfer, supervision, lay-off, discipline, dismissal and recall)
Limits to management prerogative
1) Law
2) CBA
3) General principles of fair play and justice
Redundancy
Employee is serving a function the company no longer needs/a function that some other employee is already serving
Guidelines in implementing redundancy
1) Who is the less preferred status
2) More efficient
3) More senior
Transfer v. Promotion
Transfer: movement from one position to another of equal rank, level, or salary without break in service
Promotion: Advancement from one position to another with an increase in duties and responsibilities (usually accompanied by an increase in salary)
Constructive dismissal
Involuntary resignation resorted to when continued employment becomes Impossible, Unreasonable, or unlikely
- demotion in rank or diminution in pay
- Clear discrimination, insensibility or disdain by employer
Labor-only contracting
1) Contractor does not have substantial capital or investment related to the job AND
2) Workers are performing activities directly related to the principal business of the employer
OR
1) Contractor has no right to control over the performance of the work of the employee
Bonus
An amount granted and paid to an employee for his industry and loyalty
GOCCs
When they have an original charter: under Civil Service Code
When they’re organized under Corpo Code: Labor law
Permanent Teacher Rule (Private School)
1) Teacher is a full-time
2) Rendered 3 consecutive years
3) Service was satisfactory
Rules for non-permanent teachers
Manual of Regulations for Private Schools
Managerial employees
1) Customarily and regularly direct the work of two or more employees
2) Have the authority to hire/fire others/ can make suggestions and and recos
Managerial staff
1) Performs work directly related to management policies
2) Exercises discretion and independent judgement
3) Regularly and directly assists a managerial employee w/ management
4) Execute under gen. supervision, specialized/technical lines
5) Eexecute special assignments and tasls
6) Not more than 20% of the workweek’s hours to activities not directly related to the work described above
Employer
Any person acting in the interest of an employer, directly or indirectly
Employee
Any person in the employ of an employer
Economic realities test
If the employee is highly dependent (at the beck and call, is required to report every day)
Four-fold test
1) Power of selection
2) Control re: means and methods to accomplish work
3) Power to dismiss
4) Wages
How to determine who is a managerial employee?
1) Job description
2) Done on a day-to-day basis
Types of Managerial Employees
1) Top management (COs & VPs)
2) Middle (GMs, and others)
3) First-line (Supervisors)
First-line managers
Those responsible for the work of others. They direct operating employees only.
Interest: That the work of rank-and-file is carried out
Middle Managers
Direct the activities of other managers and sometimes also those of operating employees.
Interest: That of the employer
Top Managers
Responsible for overall management of the organization. Establishes OPs
Categories of managerial employees
1) Managers
2) Supervisors
Control Test
When the employer reserves the right to control the manner and means used to achieve the result
Factors to consider in the control test
1) Skills required
2) Source of instrumentalities and tools
3) Location of the work
4) Duration of the relationship
5) Extent of employee’s discretion over when and how long to work
6) MOP
7) Employee’s role in hiring and paying assistants; Whether the work is part of regular business or not
8) Provisions of employee benefits, tax treatments
Two tier test
1) Employer’s power to control means and methods
2) Underlying economic realities
Quantum of proof (EE-ER)
Substantial evidence, such amount of relevant evidence that a reasonable mind might accept as adequate to justify a conclusion
Corporations
GEN RULE: An officer may not be held liable for the corp.’s labor obligations UNLESS he acted with evident malice and/or bad faith in dismissing the employee
Where to apply doctrine of piercing the corporate veil
1) When not to do so would defeat public convenience
2) Fraud cases
2) Alter ego cases
Effect of piercing the corporate veil
The corporation and its persons who are normally distinct from it, are treated as one and they all adjudged liable
How to hold an officer personally liable for corporate obligations
1) Complaint must allege gross negligence/bad faith
2) Proof that they acted in bad faith
Valid termination due to willful disobedience
1) Conduct must have been willful, characterized by a wrongful and perverse attitude
2) Order violated must have been reasonable, lawful, made known to the employee, and pertains to the duties which he had been engaged to do
When is misconduct/improper behavior a just cause
1) Serious
2) Related to the performance of the employee’s duties
3) Employee has become unfit to continue working for the employer
Permissible job contracting
1) Contractor carries out a distinct and independent business and undertakes the contract work on his account
2) Has substantial capital or investment
Trilateral relationship (Legitimate)
1) Principal
2) Contractor
3) Contractual worker
Section 6, DOJ 174
1) Cabo
2) Work due in-house agency
3) Work due in-house cooperative
4) Lock-out
5) Union member
6) Currently being performed by regular employees
7) Signing of waivers, resignation letters, blank payrolls, etc.
8) Repeated hiring with short duration
9) Signing contract fixing period of employment shorter than that in the Service Agreement
10) Other practices designed to circumvent the security of tenure
Implication of being registered with DOLE
Creates presumption that the contractor is legitimate.
When is job contracting allowed?
1) Contractor carries on an independent business
2) Contractor has substantial capital or investment
Effect of termination of contracted employment
1) If due to authorized causes, all benefits are paid by the party at fault
2) If due to expiration of the Service Contract, employee may wait for reemployment or ask it from the contractor
10 factors to consider in independent contractor relationship
1) WON contractor was carrying on an independent business
2) Nature and extent of the work
3) Skill required
4) Term and duration of the relationship
5) Right to assign performance of specified pieces of work
6) Control and supervision of workers
7) Power of employer re hiring, firing, payment
8) control of the premises
9) Duty to supply premises, tools, appliances, materials and labor
10) Mode, manner and Terms of payment
Piece worker vs. Partner
Piece worker
1) Paid for work accomplished
2) Paid wages by employer
3) Paid for work accomplished without concern to the profit derived by the employer
4) Employer supervises
Partner
1) Contributes anything to the employer’s capital
2) Paid directly by customer
3) Proceeds from his trade are divided with the partner
4) Employer doesn’t exercise control
What is a person illegally dismissed entitled to? (Art. 294)
Reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances and other benefits (or their monetary equivalent)
Regular employee (Art. 295)
1) Perform activities usually necessary/desirable in the usual business or trade of the employer OR
2) Has rendered at least 1 year of service, regardless of whether such service is continuous or broken w/ respect to the activity in which he employed
Can probationary periods be extended?
Yes. So long as:
1) it’s requested by the employee/both parties mutually agree OR
2) Nature of work requires that the period be more than 6 months
Requirements to validly hire probationary employees
1) Contract provides for a probationary period not more than 6 months
2) Contract has metrics by which the employee will be evaluated
Metrics
Categories/characteristics by which you are evaluated (adaptability, performance, capability to work with others, etc.)
Project employment
1) Project employment contract
2) Project is clearly defined
3) * Employee is only employed for the duration of the project
What is a project?
Particular job/undertaking within the regular business of the employer but is distinct and separate and identifiable from the undertakings of the company. Such job or undertaking begins and ends at determined or determinable times
Term employment
1) Term employment contract
2) Specified start and end date
3) Both parties must have the same standng
Seasonal
Employed for a specific season
Regular seasonal employment
Repeatedly rehired for the next seasons
Casual employment
1) Perform work that is not usually necessary or primarily related to the employer’s business or trade
2) Can’t exceed 12 months
Regular employers vs. all others
Have security of tenure; can only be dismissed for just cause or authorized cause
Process of termination for exceptions
1) Send formal notice of termination
2) Give final pay
Are rotation of employees allowed? Yes.
1) Must be temporary in nature
2) Done to address financial situation of company
Authorized causes
1) Installation of a labor saving device
2) Redundancy
3) Retrenchment to prevent losses
4) Retrenchment due to serious financial losses
5) Closure
6) Disease
Regular
Employee performs activities which are usually necessary or desirable in the usual business or trade of the employer
Project
Employment is fixed for a specific project/undertaking, the completion or termination of which has been determined at the time of engagement of the employee
Primary standard of determining regular employment
Reasonable connection between the particular activity performed in relation to the usual trade of the employer
