LABlab Flashcards
Maria Antoniette Cudal Lee was hired by Fil-Expat Placement Agency, Inc. as an orthodontist for Thanaya Al-Yaqoot Medical Specialist in the Kingdom of Saudi Arabia for a contract period of two years. She signed an employment contract duly approved by the POEA. After 5 months of employment, the employer asked Maria Antoniette to execute a new employment contract for the purpose of insurance and to comply with the KSA’s Ministry of Health requirement of securing a signed contract. According to the employer, the new contract was only for uniformity and was not intended to alter the terms of the original contract. Maria Antoniette refused to sign the new contract. Due to hostile experiences, she left her job and was repatriated. She then filed a labor case against her employer and the agency for contract substitution. Did her employer commit contract substitution?
Yes. The substitution or alteration of employment contracts is a prohibited practice under the Labor Code. To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE is considered an act of “illegal recruitment” under Section 6(i) of Republic Act No. 8042. It is illogical to require Maria Antoniette to sign a second contract if it would only restate the contents of the POEA-approved employment contract. It is also illogical that Maria was allowed to work at the clinic for five months without the foreign employer having a copy of the POEA-approved employment contract. Even assuming that Maria Antoniette failed to provide her foreign employer with a copy of the POEA-approved contract, the latter could just easily request a copy of the same from the recruitment agency, Fil-Expat. (Fil-Expat Placement Agency, Inc., v. Maria Antoniette Cudal Lee, G.R. No. 250439, September 22, 2020)
Distinguish between legitimate job contracting and labor-only contracting.
(1) As to nature of employer/principal
LJC: The employer or principal is merely an indirect employer, by operation of law, of his contractor’s employees
LOC: The employer/principal is treated as direct employer of the contractor’s employees in all instances (contractor is deemed agent of the employer)
(2) As to existence of EER
LJC: The law creates an employer-employee relationship for a limited purpose, i.e., to ensure that the employees are paid their wages.
LOC: The law creates an employer-employee relationship for a comprehensive purpose i.e. to prevent a circumvention of the law. The contractor is considered merely an agent of the principal employer and the latter is responsible to the employees of the labor-only contractor as if such employees had been directly employed by the principal employer.
(3) As to liability
LJC: The principal employer becomes jointly and severally liable with the job contractor only for the payment of the employees’ wages whenever the contractor fails to pay the same. Other than that, the principal employer is not responsible for any claim made by the employees.
LOC: The principal employer becomes solidarity liable with the labor-only contractor for all the rightful claims of the employees.
In 2002, PPI Holdings, Inc., hired Rico Palic Conjusta as a messenger for its human resources department, and later on, for its accounting department. Eventually, Conjusta’s employment was transferred to a manpower agency, a certain Human Resources, Inc., and subsequently, to Consolidated Buildings Maintenance, Inc. (CBMI). Despite such transfer, nothing changed with Conjusta’s employment — he continued to be PPI’s messenger in its accounting department until CBMI sent him, along with other coworkers, a Letter in 2016 terminating his services with PPI. Conjusta then filed an illegal dismissal case with money claims against PPI and CBMI arguing that he was PPI’s regular employee for having worked with it for 14 years. Is CBMI a legitimate job contractor and, consequently, Conjusta’s direct employer?
No. PPI and CBMI were engaged in the proscribed labor-only contracting. The following must be considered in determining whether CBMI is a legitimate job contractor or is engaged in labor-only contracting: (1) registration with the proper government agencies; (2) existence of substantial capital or investment; (3) service agreement that ensures compliance with all the rights and benefits under labor laws; (4) nature of the activities performed by the employees, i.e., if they are usually necessary or desirable to the operation of the principal ‘s company or directly related to the main business of the principal within a definite predetermined period; and (5) the exercise of the right to control the performance of the employees’ work. There is want of evidence that it was CBMI who hired Conjusta. There was no contract of employment showing that Conjusta was an employee of CBMI. As a messenger, Conjusta had been performing his tasks at PPI’s premises for about 14 years. All those times, all the tools and equipment which he used in the performance of his work are owned by PPI and the latter’s managers and supervisors controlled his work inside the company premises. (Rico Palic Conjusta v. Ppi Holdings, Inc., G.R. No. 252720, August 22, 2022)
Freddie B. Laurente initiated a complaint for Illegal Dismissal with Money Claims against Helenar Construction and its owner Joel Argarin. He claimed to doing work that is necessary and desirable for respondents’ construction business. He performed painting jobs from April 2012 until his termination in November 2014 across various projects. He claimed that he was asked to sign a labor contract for a period of three (3) months with a clause stating that his employment would be renewable “depending on the evaluation of the site engineer and foreman”, which he refused to sign because it would violate his security of tenure. Subsequently, he was barred from entering the construction site. The respondents contested, stating that Freddie is not their regular employee and that it was their subcontractor who recruited him as a painter for the project. Is Freddie a regular employee of Helenar Construction?
Yes. What determines regular employment is not the employment contract, written or otherwise, but the nature of the job. The applicable test is the reasonable connection between the particular activity performed by the employee in relation to the usual business of the employer or whether the work undertaken is necessary or desirable in the usual business or trade of the employer. This can be assessed by looking into the nature of the services rendered and its relation to the general scheme under which the business is pursued in the usual course. In this case, respondents are principally engaged in the construction business. Freddie, as a painter, is tasked with preparing, sanding and painting various construction works. Inarguably, the nature of Freddie’s job required him to perform activities, which were deemed necessary in the usual business of respondents. Freddie’s continuous rehiring to different construction projects of respondents from April 2012 until his termination in November 2014 attests to the desirability of his services. (Freddie B. Laurente v. Helenar Construction and Joel Argarin, G.R. No. 243812. July 07, 2021)
Simbajon and other employees filed a complaint against Q.S.O. Disco Pub & Restaurant, Abelardo Salazar, Quirino Ortega, and Lucia Bayang for unfair labor practices, illegal dismissal, underpayment of salaries, and non-payment of benefits. They claimed to have been employed in various roles at the restaurant and alleged harassment after forming a union. Abelardo, in response, denied any employment relationship with Simbajon, et al. He asserted that Lucia and Quirino were the restaurant owners, and he was only the lessor of the building. As supporting evidence, Abelardo submitted Contracts of Lease and Tax Returns showing his income solely on building rentals. Abelardo likewise presented the Certificate of Registration of Business Name, Mayor’s Permit, and Certificate of Registration with the Bureau of Internal Revenue which were all issued in Lucia’s name. Will the case for illegal dismissal prosper against Abelardo?
No. Applying the four-fold test of employment relationship, namely: (1) the selection and engagement of the employee or the power to hire; (2) the payment of wages; (3) the power to dismiss; and (4) the power to control the employee, would disclose that Abelardo is not the employer of Simbajon, et al. The evidence showed that Abelardo did not participate in the selection of employees, did not directly pay their wages, did not have the power to dismiss them, and did not exercise control over their work. Instead, Abelardo presented documents proving that he is the lessor of the restaurant, providing lease contracts, tax returns, and other certifications in Lucia’s name as the business owner. (Abelardo Salazar v. Albina Simbajon, et.al, G.R. No. 202374, June 30, 2021)
Pedro and Maricel Dusol worked in Ralco Beach owned by Emmarck Lazo. Pedro handled maintenance and security, while Maricel managed the store. They were compensated with weekly allowances and monthly payments, respectively. In July 2008, due to unprofitability, Emmarck decided to lease out the beach, ending their services. Pedro and Maricel claimed illegal dismissal, but Emmarck denied an employment relationship, stating they were industrial partners. Are Pedro and Maricel employees of Emmarck?
Yes. To determine whether an employment relationship exists, the following elements are considered: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the employer’s power to control the employee’s conduct. The most important element is the employer’s control of the employee’s conduct, not only as to the result of the work to be done, but also as to the means and methods to accomplish it. The records show that all the elements of an employer-employee relationship are present. First, Ralco Beach engaged the services of Pedro as caretaker and Maricel as a storekeeper. Second, Emmarck paid their wages in the form of allowances and commissions. Third, Emmarck terminated their employment when he notified them that he will be leasing the beach Resort, and that their services were no longer needed. Finally, Emmarck had the power to control their conduct in the performance of their duties. (Pedro D. Dusol and Maricel M. Dusol v. Emmarck A. Lazo, G.R. No. 200555, January 20, 2021)
What is contracting?
Contracting or subcontracting refers to an arrangement whereby a principal agrees to farm out to a contractor the performance or completion of a specific job or work within a definite or predetermined period, regardless of whether such job or work is to be performed or completed within or outside the premises of the principal.
What are the elements of a legitimate contracting or subcontracting?
The contracting or subcontracting shall only be allowed if all of the following circumstances concur:
- The contractor or subcontractor is engaged in a distinct and independent business and undertakes to perform the job or work on its own responsibility according to its own method
- The contractor or subcontractor has substantial capital to carry out the job farmed out by the principal on his account, manner and method, investment in the form of tools, equipment, machinery, and supervision
- In performing the work farmed out, the contractor or subcontractor is free from control and/or discretion of the principal in all matters connected with the performance of the work except as to the result thereto
- The service agreement ensures compliance with all the rights and benefits for all the employees of the contractor or subcontractor under the labor laws
What is considered “substantial capital” for the purpose of compliance in legitimate contracting?
Substantial capital refers to paid-up capital stocks/shares of at least P5,000,000 in case of corporations, partnerships and cooperatives; or net worth of at least P5,000,000 in the case of single proprietorship.
Is the registration of a contractor conclusive proof of the contractor’s legitimacy?
No. While the existence of registration in favor of a contractor is a strong badge of legitimacy, the elements of substantial capital, or investment and control over the workers may be examined to rebut the presumption of regularity to prove that a contractor is not a legitimate one.
Tri-lateral relationship
It refers to the relationship in a contracting or subcontracting arrangement where there is contract for a specific job, work, or service between the principal and the contractor, and a contract of employment between the contractor and its workers.
Who are the parties involved in a trilateral relationship?
The parties involved in a trilateral relationship:
- Principal: any natural or juridical entity, whether an employer or not, who puts out or farms out a job or work to a contractor
- Contractor: any person or entity engaged in a legitimate contracting or subcontracting arrangement providing services for a specific job or undertaking farmed out by principal under a service agreement
- Contractor’s employee: employee of the contractor hired to perform or complete a job or work farmed out by the principal pursuant to a service agreement with the latter
What are the contracts required in a trilateral relationship?
- Employment contract between the contractor/subcontractor and its employees
- Service Agreement between the principal and the contractor
What is labor-only contracting?
Labor-only contracting refers to an arrangement where the contractor or subcontractor recruits, supplies, or places workers to perform a job or work for a principal, any of the two elements hereunder is present:
- The contractor or subcontractor:
a. Does not have either substantial capital OR investments in the form of tools, equipment, machineries, supervision, work premises, among others; AND
b. The employees recruited and placed are performing activities which are directly related to the main business operation of the principal; or - The contractor or subcontractor does not exercise the right to control over the performance of the work of the employee
*There is labor-only contracting even if only one of the two elements above is present. Labor-only contracting is legally wrong and prohibited because it is an attempt to evade the obligations of an employer.
Oscar Ortiz, who was claiming to be a regular employee was allegedly illegally terminated after refusing to sign a new employment contract. Forever Richardson claimed, on the other hand, that Ortiz should be reporting to Workpool Manpower as its labor-only contractor. It further argued that Workpool Manpower should be impleaded in this case. Is an employee, who was allegedly hired through labor-only contracting, required to implead such contractor in an illegal dismissal case?
No. In labor-only contracting, the party who would have been the principal in a legitimate job contracting relationship, and who has no direct relationship with the contractor’s employees, simply becomes the employer in the situation with direct supervision and control over the contracted employees. Strictly speaking, in labor-contracting, there is no contracting, and no contractor; there is only the employer’s representative who gathers and supplies people for the employer. Considering that the respondents and Workpool Manpower’s contracting relationship is a prohibited form of contracting, it is no longer necessary to implead Workpool Manpower as a party to the case. It is a consequence of labor-only contracting that the personality of the principal and the contractor is merged into one. Thus, Workpool Manpower becomes a mere representative of the respondents, who is the employer of Oscar. (Ortiz v. Forever Richardson et. al, GR No. 238289, January 20, 2021)
The Social Housing Finance Corporation (SHFC), a government-owned entity, and its rank-and-file employees’ union, Social Housing Employees Association, Inc. (SOHEAI), entered into a Collective Bargaining Agreement (CBA) where they renegotiated its economic provisions, leading to agreed-upon benefits enhancements. However, the Governance Commission for GOCCs stated that SHFC had no authority for such enhancements due to existing laws and executive orders thus nullifying the new benefits and increases. SOHEAI claimed it as a diminution of benefits. Is the contention correct?
No. The SOHEAI and SHFC may establish in their CBAs such terms and conditions that are not contrary to law. However, there are existing and subsequent laws prohibiting GOCCs like SHFC from negotiating the CBAs’ economic provisions. EO No. 203 expressly disallowed the governing boards of GOCCs, whether chartered or non-chartered, to negotiate the economic terms of their CBAs. Further, the grant of allowances and other benefits to GOCCs must have the approval of the President upon the recommendation of the Budget Commissioner. Therefore, the SHFC’s revocation of the CBAs’ economic provisions can hardly amount to diminution of benefits. Suffice it to say that SOHEAI is not entitled to the new benefits and increases which yield neither legal nor binding effect. (Social Housing Employees Association, Inc. v. Social Housing Finance Corporation, G.R. No. 237729, October 14, 2020)
LBP Service Corporation had a manpower services agreement with Land Bank of the Philippines, deploying workers like Tuppil and Borja, et al. in Metro Manila. When the contract expired in 2014, the workers were recalled. Tuppil resigned, and Borja filed a complaint for illegal dismissal, claiming they were regular employees performing services necessary and desirable to LBP Service’s business. The Labor Arbiter dismissed the complaint, stating they were fixed-term contractual employees with no evidence of contract termination by LBPSC. Are the fixed term employment contracts of Tuppil, et al. and Borja, et al. unlawful?
No. Article 280 of the Labor Code does not proscribe or prohibit an employment contract with a fixed period provided the same is entered into by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstance vitiating consent.
The criteria of a valid fixed-term employment are:
(1) the fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or
(2) it satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter.
In an administrative charge involving sexual harrasment under RA 7877 or the Anti-Sexual Harassment Act of 1995, what quantum of evidence is required?
The employee’s liability for an administrative offense of sexual harassment should not be determined solely based on Section 3 of RA No. 7877. Substantial evidence to support the administrative charge is sufficient. Thus, the “demand, request, or requirement of a sexual favor” requirement in Section 3 is not essential before an act can be qualified as sexual harassment in an administrative charge. It is enough that the respondent’s actions created an intimidating, hostile, or offensive environment for the employee. (Philippine Airlines v. Frederick Yañez, G.R. No. 214662, March 02, 2022)
Atty. Panga-Vega availed the 15 days of special leave benefit under RA No. 9710 (Magna Carta of Women), underwent total hysterectomy on February 7, 2011, and decided to return to work on March 7, 2011. She sought to resume her duties and presented a medical certificate of her fitness to return to work. HRET, however, directed her to consume her 2-month special leave given her need for prolonged rest. Does RA No. 9710 require that the entire duration of the special leave applied for be consumed before an employee is allowed to return to work?
No. While RA No. 9710 and the CSC Guidelines do not require that the entire special leave applied for be consumed, certain conditions must be satisfied for its propriety. Under the CSC Guidelines, a total hysterectomy is classified as a major surgical procedure. requiring a minimum period of recuperation of three weeks to a maximum period of two months. Aside from observing this time frame, the employee, before she can return to work, shall present a medical certificate signed by her attending surgeon that she is physically fit to assume the duties of her position. As it appears, she was already able to observe a period of recuperation of four weeks. As to the requirement for a medical certificate, she already presented a medical certificate signed by her attending obstetrician/gynecologist attesting her physical fitness to report back for work. Based on these facts, Panga-Vega sufficiently complied with the CSC Guidelines warranting her return to work. (House of Representatives Electoral Tribunal v. Panga-Vega, G.R. No. 228236, January 27, 2021)
When does a benefit provided by an employer to an employee, ripen into a company practice?
To be considered a company practice, the benefit must be consistently and deliberately granted by the employer over a long period of time. It requires an indubitable showing that the employer agreed to continue giving the benefit knowing fully well that the employee is not covered by any provision of law or agreement for its payment. The burden to establish that the benefit has ripened into a company practice rests with the employee. (Home Credit Mutual Building and Loan Association et.al v. Ma. Roulette Prudente, G.R. No. 200010, August 27, 2020)
In 1997, Home Credit Mutual Building and Loan Association gave its employee Rollette Prudente her first service vehicle. Later, Rollete purchased the vehicle from Home Credit at its depreciated value. In 2003, Home Credit granted Rollete’s request for a second service vehicle. However, Home Credit required Rollete to pay for additional equity. In 2008, Rollete again purchased the vehicle at its depreciated value. In 2009, Rollette applied for a third service vehicle. This time, Home Credit adopted a cost sharing scheme where Rollette must shoulder 40% of the acquisition price. Aggrieved, Rollette filed a complaint against Home Credit for violation of Article 100 of the Labor Code on non-diminution of benefits before the Labor Arbiter (LA). Did the provision of a service vehicle starting from 1997 already ripened into a company practice?
No. The non-diminution rule applies only if the benefit is based on an express policy, a written contract, or has ripened into a practice. To be considered as company practice requires an indubitable showing that the employer agreed to continue giving the benefit knowing fully well that the employee is not covered by any provision of law or agreement for its payment. In this case, Home Credit had no existing car plan at the time Rollette was hired. There was no substantial evidence to prove that the car plan at full company cost had ripened into company practice. Notably, the only time Rollette was given a service vehicle fully paid for by the company was for her first car. For the second vehicle, the company already imposed a limit but Rollette never questioned this. She willingly paid for the equity in excess of said limit. The elements of consistency and deliberateness are not present. (Home Credit Mutual Building and Loan Association et.al v. Ma. Roulette Prudente, G.R. No. 200010, August 27, 2020)
Mutia, hired as an assistant cook by C.F. Sharp for Norwegian Cruise Lines (NCL), was found fit to work despite mild hearing loss. He suffered two accidents causing lower back pain and was diagnosed with “Multiple Sclerosis” and “Blurring of Vision”. Despite undergoing treatments, his condition worsened. After repatriation to the Philippines, his treatment payments were stopped by C.F. Sharp and NCL. He was certified for permanent total disability benefits by OWWA’s physician. However, C.F. Sharp and NCL denied his claim for benefits, alleging that he concealed a pre-existing condition of acute otitis media (ear illness). Is the defense of concealment tenable despite the facts that the prior illness is unrelated to his present claim for disability benefits?
No. A seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) shall be liable for misrepresentation and shall be disqualified from any compensation and benefits. An illness shall be considered as pre-existing if prior to the processing of the POEA contract, any of the following conditions are present: a. The advice of a medical doctor on treatment was given for such continuing illness or condition; or b. The seafarer had been diagnosed and has knowledge of such an illness or condition but failed to disclose the same during pre-employment medical examination (PEME), and such cannot be diagnosed during the PEME. Mutia’s acute otitis media does not fall under any of the conditions mentioned constituting a pre-existing illness. Mutia’s prior ear illness is also unrelated to his present medical conditions. There is no proof that the ear condition caused or aggravated Mutia’s “Multiple Sclerosis,” “Blurring of Vision,” and “Neuromyelitis optica.” (Loue B. Mutia v. C.F. Sharp Crew Mgt., Inc., G.R. No. 242928, June 27, 2022)
What is fraudulent concealment?
A finding of fraudulent concealment means that a person failed to disclose the truth and that the non-disclosure is deliberate and for a malicious purpose. The fraudulent concealment must be coupled with an intent to deceive and profit from that deception. (Loue B. Mutia v. C.F. Sharp Crew Mgt., Inc., G.R. No. 242928, June 27, 2022)
When is Section 20 (E) of the 2010 POEA-SEC which provides that a seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) shall be liable for misrepresentation and shall be disqualified from any compensation and benefits applicable?
Section 20(E) of the 2010 POEA-SEC is applicable if the following conditions are met: (1) the seafarer is suffering from a pre-existing illness or injury as defined under Item 11 (b) of the 2010 POEA-SEC, (2) the seafarer intentionally concealed the illness or injury, (3) the concealed pre-existing illness or injury has a causal or reasonable connection with the illness or injury suffered during the seafarer’s contract. Under the last condition, it is enough that the concealed illness or injury contributed to the seafarer’s disability. In the absence of these conditions, the employers remain liable for work-related injury or illness consistent with their duties to provide a seaworthy ship and to take precautions to avoid the seafarer’s accident, injury, or sickness. (Loue B. Mutia v. C.F. Sharp Crew Mgt., Inc., G.R. No. 242928, June 27, 2022)
Almario, who was hired by Skanfil as a mess person on board M/V “DIMI” POS TOPAS, fell from a ladder while working He was brought to a hospital and was diagnosed with a blunt head injury, blunt back injury, lacerated scalp wound, and brain concussion. Almario was repatriated to the Philippines on October 2, 2013, examined by company physicians, and referred to specialists for treatment, medication, and rehabilitation. After weeks of treatment and rehabilitation, he was cleared by the specialists and the company-designated physicians who also declared him fit for duty on February 7, 2014. Unconvinced, Almario consulted another physician who declared him permanently unfit to resume sea duties. He filed a complaint against Skanfil. Is Almario entitled to permanent total disability benefits?
Yes. Based on jurisprudence, the company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total. Here, Almario was medically repatriated and submitted for post-medical examination by the company-designated physicians who later referred him to other specialists to address the specific concerns. Said specialists treated Almario, prescribed medications, and assisted in the rehabilitation. The company-designated physicians must issue a final and valid medical assessment within 120 days reckoned from October 2, 2013, or the date when Almario was repatriated. The company-designated physicians had until January 30, 2014, to issue the assessment unless there was a justifiable reason to extend the period. (Skanfil Maritime Services, Inc., et.al., v. Centeno, G.R. No. 227655, April 27, 2022)
What are the rules on the prescribed period for company-designated physicians to issue a final medical assessment and the consequences for failure to observe such periods?
The Court has summarized the rules as follows:
1. The company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him;
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.
The 120 days must be reckoned “from the date of the seafarer’s repatriation.” (Skanfil Maritime Services, Inc., et.al., v. Centeno, G.R. No. 227655, April 27, 2022)
Celestino is employed by Pacific Ocean Manning, Inc. as a Fitter onboard MCT Monte Rosa. While performing overhaul in the engine and fixing the hydraulic machine, the hose accidentally detached and hit his left eye. Several months later, he collapsed and an Accident Report was issued regarding the incident. The ship captain referred him to an offshore physician. He underwent an MRI and several medical tests were conducted. Findings showed that he had a posterior retinae partial tear, sinusitis, hyperlipidemia, and acute gastroduodenitis. He was later repatriated but there was no medical assessment issued by a company doctor. Is Celestino entitled to permanent total disability benefits?
Yes. The grant of permanent total disability benefits does not require a state of absolute helplessness. It is enough that there is inability to substantially pursue his gainful occupation as seafarer without serious discomfort or pain and without material injury or danger to life. Celestino’s illness disabled him from performing his customary job on board the vessel. This incapacity, coupled with the company-designated physician’s abdication of the duty to declare the seafarer’s fitness or unfitness to work within the prescribed periods under the POEA-SEC, converts the latter’s disability to permanent and total by operation of law. (Celestino, v. Pacific Ocean Manning, Inc., et.al., G.R. No. 220657, March 16, 2022)
Celestino, while performing overhaul in the engine and fixing the hydraulic machine, the hose accidentally detached and hit his left eye. Several months later, he collapsed and an Accident Report was issued regarding the incident. Upon repatriation, he asserts that he asked to be referred to a company-designated physician but his request was rejected. Pacific Manning claims that it did not know of Celestino’s medical conditions, hence, it cannot be held liable for the claims of Celestino. Is Pacific Manning’s contention tenable?
No. The burden to prove that the seafarer was referred to the company physician falls on the employer, and not the seafarer. To be sure, without the assessment from the company-designated doctor, there is nothing for the seafarer to contest and this entitles him to receive total and permanent disability benefits. Here, it is apparent that respondents did not refer Celestino to the company-designated physician. The absence of a post-employment medical examination cannot be used to defeat a seafarer’s claim especially when the failure to satisfy this requirement was not due to his fault but because of the inadvertence or deliberate refusal of the employer. The absence of a post-employment medical examination cannot bar Celestino’s claim for disability benefits and sickness allowance. (Celestino, v. Pacific Ocean Manning, Inc., et.al., G.R. No. 220657, March 16, 2022)
Jose signed a nine-month contract to serve as Chief Cook onboard M/V Independent Endeavor. Jose experienced intense and unbearable pain in his right knee due to an occupational accident and underwent an operation. After his operation, Jose was medically repatriated on December 12, 2006. Upon arrival in the Philippines, the company-designated doctors subjected him to further evaluation, therapy, and operation. He completed his physical therapy and his right knee has improved. In 2007, the company-designated doctor issued a final assessment that Jose was fit to work. In 2009, Dr. Chua, a personal doctor, diagnosed Jose with Traumatic Arthritis, and assessed him with permanent partial disability. Should the findings of the personal doctor prevail over the company-designated doctor?
No. It is the company-designated doctor’s findings that should prevail as he is equipped with the proper discernment, knowledge, experience, and expertise on what constitutes total or partial disability. Having cared for the seafarer after repatriation, the company-designated physician’s declaration serves as the basis for the seafarer’s fitness to work, or degree of disability. Here, the company-designated doctor’s assessment was based on examinations, operations, and therapy administered to Jose, as recommended by the physiatrist and orthopedic specialist who treated him. On the other hand, Jose only consulted his own physician and arrived at her conclusion based on information provided by Jose. (Doehle Philman Manning Agency, Inc., et al. v. Gatchalian, G.R. No. 207507, February 17, 2021)
For occupational accidents, when is referral to a third doctor proper and mandatory?
Under the POEA-SEC, a seafarer may contest the findings of the company-designated doctor by seeking a second opinion from a doctor of his choice. In the event of disagreement between the findings of the doctors, the parties shall jointly refer the matter to a third doctor, whose findings will be final and binding. This referral to a third doctor has been held by this Court to be a mandatory procedure because of the provision that it is the company designated doctor whose assessment should prevail if there is no referral to a third doctor. The procedure for the referral to the third doctor should be complied with when (1) there is a valid and timely assessment by the company designated physician and (2) the appointed doctor of the seafarer refuted such assessment. (Doehle Philman Manning Agency, Inc., et al. v. Gatchalian, G.R. No. 207507, February 17, 2021)
Seafarer Jamias, employed by Blue Manila and/or Oceanwide Crew Manila, served as a cook and performed various duties involving strenuous manual work. While onboard, he experienced pain and was later diagnosed with constipation and umbilical hernia, resulting in his repatriation to Manila. He underwent an MRI as advised by the company doctor and had surgery for hernia. However, his lower back pain persisted. The company-designated doctor declared him fit-to-work, but Jamias sought further evaluation. Dr. Runas, as specialist, supported this claim, stating Jamias unfit for ship duty. Jamias demanded disability benefits but petitioners argued no liability since his claim for disability benefit was based on a back ailment that occurred post-employment. Must the seafarer’s ailment be a necessary consequence or directly connected to the cause of his medical repatriation to be compensable?
No. A seafarer may claim disability benefits arising from (1) an injury or illness that manifests, or is discovered during the term of the seafarer’s contract, which is usually while the seafarer is still on board the vessel; or (2) an illness that manifests, or is discovered after the contract, which is when the seafarer has disembarked from the vessel. In this case, the company-designated doctor ordered a test for MRI. The only logical conclusion why the company designated doctor would specifically request for a lumbosacral MRI is that Jamias was already suffering from low back pains and he brought this to the attention of the attending physician. Clearly, any illness complained of, and/or diagnosed during the mandatory PEME is deemed existing during the term of the seafarer’s employment, and the employer is liable therefore. (Blue Manila, Inc. and/or Oceanwide Crew Manila, Inc. v. Antonio R. Jamias, G.R. No. 230919, January 20, 2021)
What are the requisites for serious misconduct to be a just cause for dismissal of employees?
Article 297 of the Labor Code. To be a just cause for dismissal: (a) the misconduct must be serious; (b) it must relate to the performance of the employee’s duties showing that the employee has become unfit to continue working for the employer; and (c) it must have been performed with wrongful intent. (Universal Robina Corporation v. Roberto De Guzman Maglalang, G.R. No. 255864, July 06, 2022 )
Roberto, a URC machine operator since 1997, used company-provided alcohol to clean his motorcycle. The bottle, still in his bag, was found by a security guard on March 26, 2015. Roberto was charged with qualified theft and was placed under preventive suspension. In an administrative hearing, Roberto admitted that he took the bottle but denied stealing, which URC did not believe. The criminal case was dismissed, but Roberto filed an illegal dismissal case against URC. Was the act done by Roberto proportionate to the penalty of dismissal?
No. The following factors should be considered in determining whether theft of company property by an employee warrants the penalty of dismissal: (a) period of employment and existence of a derogatory record; (b) value of the property involved; (c) cost of damage to the employer; (d) effect on the viability of employer’s operation or company’s interest; and (e) employee’s position. Here, Roberto had been in URC’s employ for 18 years. The bottle of ethyl alcohol is very minimal. URC did not lose anything as the bottle was timely retrieved. Further, it was not shown that Roberto’s retention would work undue prejudice to the viability of URC’s operations. Neither does Roberto occupy a position of trust and confidence, the loss of which would justify his dismissal.(Universal Robina Corporation v. Roberto De Guzman Maglalang, G.R. No. 255864, July 06, 2022)
Roberto, a URC machine operator since 1997, used company-provided alcohol to clean his motorcycle. The bottle, still in his bag, was found by a security guard on March 26, 2015. Roberto was charged with qualified theft and was placed under preventive suspension. In an administrative hearing, Roberto admitted that he took the bottle but denied stealing, which URC did not believe. The criminal case was dismissed, but Roberto filed an illegal dismissal case against URC. Was the act done by Roberto proportionate to the penalty of dismissal?
No. The following factors should be considered in determining whether theft of company property by an employee warrants the penalty of dismissal: (a) period of employment and existence of a derogatory record; (b) value of the property involved; (c) cost of damage to the employer; (d) effect on the viability of employer’s operation or company’s interest; and (e) employee’s position. Here, Roberto had been in URC’s employ for 18 years. The bottle of ethyl alcohol is very minimal. URC did not lose anything as the bottle was timely retrieved. Further, it was not shown that Roberto’s retention would work undue prejudice to the viability of URC’s operations. Neither does Roberto occupy a position of trust and confidence, the loss of which would justify his dismissal.(Universal Robina Corporation v. Roberto De Guzman Maglalang, G.R. No. 255864, July 06, 2022)
Yañez, Supervisor of Philippine Airlines (PAL) Passenger Handling Division was charged with sexual harassment under PAL’s Revised Code of Discipline. He was first served a notice containing a summary of the alleged incident between him and a flight attendant, Nova. He was later served a memo advising him of the administrative charges against him and notified of a scheduled administrative hearing in Pasay, which he did not attend. Another hearing was scheduled in Cebu where he appeared with his lawyers. He refused to testify and walked out of said conference. Yañez claims that his right to due process was violated because his request for a transcript of the Pasay hearing was denied. Was Yañez’s right to due process violated?
No. Due process is not violated where a person is not heard because he has chosen, for whatever reason, not to be heard. The essence of due process is simply an opportunity to explain one’s side or the chance to seek a reconsideration of the action or ruling complained of. It safeguards not the lack of previous notice but the denial of the opportunity to be heard. As long as the party was afforded the opportunity to defend his interests in due course, there is no denial of due process. Here, PAL notified Yanez of the incident report. Yañez was advised of the hearing in Pasay City. Yet, Yañez still did not appear at the scheduled hearing. PAL scheduled another hearing, this time in Mactan, to give Yañez opportunity to present his side, but Yañez and his counsel staged a walk out. Since it was Yañez who refused to attend the scheduled hearings, he cannot, later on, complain that he was unduly silenced. (Philippine Airlines v. Frederick Yañez, G.R. No. 214662, March 02, 2022)
Yañez, Supervisor of Philippine Airlines (PAL) Passenger Handling Division was charged with sexual harassment under PAL’s Revised Code of Discipline. He was first served a notice containing a summary of the alleged incident between him and a flight attendant, Nova. He was later served a memo advising him of the administrative charges against him and notified of a scheduled administrative hearing in Pasay, which he did not attend. Another hearing was scheduled in Cebu where he appeared with his lawyers. He refused to testify and walked out of said conference. Yañez claims that his right to due process was violated because his request for a transcript of the Pasay hearing was denied. Was Yañez’s right to due process violated?
No. Due process is not violated where a person is not heard because he has chosen, for whatever reason, not to be heard. The essence of due process is simply an opportunity to explain one’s side or the chance to seek a reconsideration of the action or ruling complained of. It safeguards not the lack of previous notice but the denial of the opportunity to be heard. As long as the party was afforded the opportunity to defend his interests in due course, there is no denial of due process. Here, PAL notified Yanez of the incident report. Yañez was advised of the hearing in Pasay City. Yet, Yañez still did not appear at the scheduled hearing. PAL scheduled another hearing, this time in Mactan, to give Yañez opportunity to present his side, but Yañez and his counsel staged a walk out. Since it was Yañez who refused to attend the scheduled hearings, he cannot, later on, complain that he was unduly silenced. (Philippine Airlines v. Frederick Yañez, G.R. No. 214662, March 02, 2022)
Is an employee entitled to damages if the dismissal was due to the closure of the business?
No. As a general rule, Article 298 of the Labor Code considers the closure of business as an authorized cause for the dismissal of employees, whether or not the closure is due to serious business losses. However, if the closure is not due to serious business losses, the employer is required to pay its employees separation pay equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. (Pedro D. Dusol and Maricel M. Dusol v. Emmarck A. Lazo, G.R. No. 200555, January 20, 2021)
What are the conditions to justify a valid dismissal based on loss of trust and confidence?
To justify a valid dismissal based on loss of trust and confidence, the concurrence of two (2) conditions must be satisfied: (1) the employee concerned must be holding a position of trust and confidence; and (2) there must be an act that would justify the loss of trust and confidence. In terminating managerial employees based on loss of trust and confidence, proof beyond reasonable doubt is not required. The mere existence of a basis for believing that such employee has breached the trust of his employer is enough. This degree of proof differs from that of a rank and file employee which requires proof of involvement in the alleged events, and that mere uncorroborated assertions by the employer will be insufficient. (Noel M. Manrique v. Delta Earthmoving, Inc., et. al., G.R. No. 229429, November 09, 2020)
Who are considered employees holding positions of trust and confidence?
- Managerial employees - those vested with power to lay down and execute management policies and/or hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees
- Supervisorial employees - those who, in the interest of the employer, effectively recommend such managerial actions the exercise of which is not merely routinely or clerical in nature but requires the use of independent judgment; and
- Those who, in the normal and routine exercise of their functions, regularly handle significant amounts of money or property
Noel M. Manrique filed a complaint against Delta Earthmoving, Inc. for illegal dismissal. Manrique alleged he was wrongfully terminated from his position as Assistant Vice President for Mining Services due to poor performance. Delta Earth argued that Manrique’s dismissal was justified, citing instances of neglect and inefficiency supported by evidence such as a Performance Evaluation and memoranda. Manrique disputes the evidence, claiming that the fact of his termination was only relayed to him by his immediate supervisor in the mining site. He contends that Delta Earth failed to give the required notices. Was the proper notice of termination under Article 292(b) of the Labor Code satisfied?
No. Delta Earth failed to comply with the two-notice rule under Article 292(b) of the Labor Code. The first notice must contain the reasons for the termination affording the employee ample opportunity to be heard and defend himself with the assistance of a representative if he so desires. The second notice must indicate that there are grounds to justify the employee’s termination upon due consideration of all the circumstances. None of these notices were given to Manrique as the fact of his termination was only relayed to him by his immediate supervisor in the mining site, upon instructions received from Delta Earth’s main office. (Noel M. Manrique v. Delta Earthmoving, Inc., et. al., G.R. No. 229429, November 09, 2020)
What are the requisites to justify a dismissal on the ground of serious misconduct?
For serious misconduct to be a just cause for dismissal, the concurrence of the following elements is required: (a) the misconduct must be serious; (b) it must relate to the performance of the employee’s duties showing that the employee has become unfit to continue working for the employer; and (c) it must have been performed with wrongful intent. (Wilfredo T. Mariano v. G.V. Florida Transport, G.R. No. 240882, September 16, 2020)
Relucio filed a complaint for illegal dismissal against Bicol Isarog Transport System, Inc. He claimed that he was illegally dismissed without valid reason and due process. Bicol Isarog Transport System argued that Relucio repeatedly and willfully violated the company’s Code of Discipline. Relucio was given specific instructions, by the OIC for Operations, not to push through with his trip to Manila since he only had five passengers and was reminded that it is a policy to transfer passengers to another bus with more passengers to save operational costs. However, he insisted on pursuing his trip. Relucio was then ordered to report to the Operations Manager of Bicol Isarog upon arriving in Manila but he failed to abide by the summons. Through a text message, Relucio was directed to go to the Human Resource (HR) but he did not heed the directive. Does Relucio’s failure to obey the order of the OIC constitute insubordination which is punishable by dismissal?
Yes, insubordination, as a just cause for the dismissal of an employee, necessitates the concurrence of the following requisites: (1) the employee’s assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. The order not to continue with the trip is reasonable, lawful, made known to Relucio and pertained to his duty as a bus driver of Bicol Isarog. Relucio did not deny nor offer any explanation for his disobedience. Company policies and regulations are generally valid and binding on the parties and must be complied with until finally revised or amended, unilaterally or preferably through negotiation, by competent authority. Bicol Isarog’s Code of Conduct categorized insubordination and failure to report for duty as a grave offense, which merits the penalty of dismissal. (Bicol Isarog Transport System, Inc. v. Relucio, G.R. No. 234725, Sep 16, 2020)
What are the standardized requirements of procedural due process in the termination of employment under the Labor Code?
Procedural due process consists of the twin requirements of notice and hearing. The employer must furnish the employee with two written notices before the termination of employment can be implemented: (1) the first apprises the employee of the particular acts or omission for which his dismissal is sought; and (2) the second informs the employee of the employer’s decision to dismiss him. The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment. An employee’s right to be heard is satisfied not only by a formal face to face confrontation but by any meaningful opportunity to controvert the charges against him and to submit evidence in support thereof. (Verizon Communications v. Laurence C. Margin, G.R. No. 216599, September 16, 2020)
What are the remedies available to an employee who was found to be illegally terminated?
The employee is entitled to reinstatement without loss of seniority rights and other privileges. However, if actual reinstatement is no longer possible, the employee becomes entitled to separation pay in lieu of reinstatement. Based on jurisprudence, reinstatement is not feasible:
1. in cases where the dismissed employee’s position is no longer available;
2. the continued relationship between the employer and the employee is no longer viable due to the strained
relations between them; and
3. when the dismissed employee opted not to be reinstated, or the payment of separation benefits would be
for the best interest of the parties involved.
In these instances, separation pay is the alternative remedy to reinstatement. The payment of separation pay and reinstatement are exclusive remedies. While an illegally dismissed employee is entitled to payment of full backwages, there are exceptions to the said rule. This is on account of: (1) the fact that dismissal of the employee would be too harsh of a penalty; and (2) that the employer was in good faith in terminating the employment. Only employees discriminatorily dismissed are entitled to backpay. (Verizon Communications v. Laurence C. Margin, G.R. No. 216599, September 16, 2020)
Do the Philippine Overseas Employment Administration (POEA) and Labor Arbiter (LA) have concurrent jurisdiction?
No. the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act (RA) No. 10022, provides that the LA shall have original and exclusive jurisdiction to hear and decide the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary, and other forms of damage. On the other hand, Rule X of the Implementing Rules and Regulations of RA No. 10022, provides that the POEA exercises administrative jurisdiction arising out of violations of rules and regulations and administrative disciplinary jurisdiction over employers, principals, contracting partners, and overseas Filipino workers. (U R Employed International Corporation and Pamela T. Miguel, v. Mike A. Pinmiliw, Murphy P. Pacya, Simon M. Bastog, And Ryan D. Ayochok, G.R. No. 225263, March 16, 2022)
What are the instances wherein the bond requirement on appeal involving monetary awards under the Labor Code may be relaxed?
These cases include instances in which (1) there was substantial compliance with the Rules; (2) surrounding facts and circumstances constitute meritorious grounds to reduce the bond; (3) a liberal interpretation of the requirement of an appeal bond would serve the desired objective of resolving controversies on the merits; or (4) the appellants, at the very least, exhibited their willingness and/or good faith by posting a partial bond during the reglementary period. (Abelardo Salazar v. Albina Simbajon, et.al, G.R. No. 202374, June 30, 2021)
Zonio was hired as a security guard by 1st Quantum Leap Security Agency. 1st Quantum Leap did not pay him for overtime work, work rendered on holidays and rest days, as well as 13th month pay, service incentive leave, and night shift differential. Zonio filed a complaint for underpayment of salary and benefits. The Labor Arbiter ruled that Zonio failed to substantiate his claim for payment of overtime and holiday pay, holiday and rest day premiums pay, and night shift differential pay. Even so, he is entitled to salary differentials for a period of three years counted backwards from the date of his suspension, as well as to 13th month pay, and the monetization of his service incentive leave. The NLRC modified the decision of the Labor Arbiter and ruled otherwise. 1st Quantum Leap filed a petition for certiorari with the CA to question NLRC’s decision in favor of Zonio. The CA partly granted the petition by deleting the award of overtime pay, holiday and rest day premiums pay, and night shift differential pay. Who bears the burden of proof in determining the employee’s entitlement to monetary claims?
In determining the employee’s entitlement to monetary claims, the burden of proof is shifted from the employer or the employee, depending on the monetary claim sought. In claims for payment of salary differential, service incentive leave, holiday pay, and 13th month pay, the burden rests on the employer to prove payment. This standard follows the basic rule that in all illegal dismissal cases the burden rests on the defendant-employer to prove payment rather than on the plaintiff-employee to prove non-payment. On the other hand, for overtime pay, premium pay for holidays and rest days, the burden is shifted on the employee, as these monetary claims are not incurred in the normal course of business. It is thus incumbent upon the employee to first prove that he actually rendered service in excess of the regular eight working hours a day, and that he in fact worked on holidays and rest days. (Zonio v. 1st Quantum Leap Security Agency, G.R. No. 224944, May 5, 2021)
The DORELCO Employees Union-ALU TUCP and Don Orestes Romualdez Electric Cooperative, Inc. submitted for arbitration before the National Conciliation and Mediation Board (NCMB) the issue on whether the rank and file employees are entitled to salary adjustments. On September 22, 2017, the voluntary arbitrator ruled in favor of the Company. This decision was received by the Union on October 3, 2017. A motion for reconsideration was filed assailing said decision, which was denied on November 9, 2017. A copy of the resolution was received by the Union on November 27, 2017. It was only on December 12 2017 – where the Union filed an appeal to the Court of Appeals. Was the appeal filed beyond the reglementary period and that the decision of the Voluntary Arbitrator has already become final and executory?
No. The 10-day period stated in Article 276 should be understood as the period within which the party adversely affected by the ruling of the Voluntary Arbitrators or Panel of Arbitrators may file a motion for reconsideration. Only after the resolution of the motion for reconsideration may the aggrieved party appeal to the CA by filing the petition for review under Rule 43 of the Rules of Court within 15 days from notice pursuant to Section 4 of Rule 43. Here, the records reveal that the Union received the voluntary arbitrator’s resolution denying its motion for reconsideration on November 27, 2017. As such, the Union had 15 days or until December 12, 2017 within which to perfect an appeal. Verily, the Union filed a petition for review within the prescribed period. (Dorelco Employees Union-Alu-Tucp V. Don Orestes Romualdez Electric Cooperative (Dorelco), Inc., G.R. No. 240130, March 15, 2021)
LA and NLRC both ruled that Jose, a seafarer, is fit to work based on the assessment made by the doctor designated by Jose’s company. CA, on the other hand, ruled that the latter is unfit to work due to the fact of his unemployment. Upon appeal to the Supreme Court, can the latter directly review the facts of the case as to Jose’s fitness to work?
Yes. Generally, the principle that the Supreme Court is not a trier of facts applies with greater force in labor cases. The question of whether the seafarer was properly declared fit to work is one of fact, hence, is beyond the ambit of this Court’s jurisdiction in a petition for review on certiorari. However, when there is a conflict in the factual findings of the LA and NLRC as opposed to that of the CA, it behooves the Court to review and re-evaluate the questioned findings in the exercise of its equity jurisdiction. Here, both the LA and the NLRC gave credence to the fit to work assessment made by the company-designated doctor. On the contrary, the CA rejected the fit-to-work assessment and reversed the labor tribunals’ ruling on the ground that Jose has not been employed by petitioners despite being declared fit to work. (Doehle Philman Manning Agency, Inc., et al. v. Gatchalian, G.R. No. 207507, February 17, 2021)
Who are not covered by the Labor Code?
The following persons and entities are not covered by the Labor Code:
1. Corporate officers involved in intra-corporate disputes under PD 902
2. Employees of GOCCs created by special or original charter. Such employees are governed by the Civil Service.
3. Local water districts
4. Foreign governments
5. International agencies
6. Government agencies covered by civil service rules and regulations
Protection-to-Labor Clause
1987 CONST., art. XIII, sec. 3
The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.
Social Justice
Social justice is neither communism, nor despotism, not atomism, nor anarchy but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of “sales populi est suprema lex.”
What is the quantum of evidence required in labor cases?
The party-litigant who alleges the existence of a fact or thing necessary to establish his/her claim has the burden of proving the same by the amount of evidence required by law, which, in labor proceedings, is substantial evidence, or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
May affidavits be submitted in evidence in labor cases uncorroborated by any other evidence?
Yes, the Supreme Court has held that in labor cases, affidavits may be sufficient to establish substantial evidence.
Who has the burden of proof in determining the employee’s entitlement to monetary claims?
In determining the employee’s entitlement to monetary claims, the burden of proof is shifted from the employee or the employee, depending on the monetary claim sought. In claims for payment of salary differential, service incentive leave, holiday pay, 13th month pay, the burden rests on the employer to prove payment. On the other hand, for overtime pay, premium pays for holidays and rest days, the burden is shifted on the employee, as these monetary claims are not incurred in the normal course of business.a
Powers and Functions of Department of Migrant Workers
R.A. No. 11641
Section 6. Powers and Functions. – To carry out its mandate, the Department shall:
(a) Formulate, recommend, and implement national policies, plans, programs, and guidelines that will ensure the protection of OFWs, including their safe, orderly and regular migration, then promotion of their interests, the timely and effective resolution of their problems and concerns, and their effective reintegration into Philippine society;
(b) Regulate the recruitment, employment, and deployment of OFWs;
(c) Investigate, initiate, sue, pursue, and help prosecute, in cooperation with the Department of Justice (DOJ) and the Inter-Agency Council Against Trafficking (IACAT), illegal recruitment and human trafficking cases as defined under Republic Act No. 8042, as amended by Republic Act No. 10022, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended, and as provided under Republic Act No. 9208, as amended by Republic Act No. 10364, otherwise known as the Anti-Trafficking in Persons Act, and other existing laws and other issuances. In the performance of its functions, the Department Secretary and his or her authorized deputy shall have the power: (1) to issue subpoena or subpoena duces tecum to any person for investigation for illegal recruitment or trafficking in persons cases as defined under Republic Act No. 9208, as amended, and other existing laws and other issuances; and hold or cite any person in contempt as may be provided by the implementing rules and regulations; (2) to administer oaths upon cases under investigation; and (3) to have access to all public records and to records of private parties and concerns, in accordance with law;
(d) Protect and promote the welfare, well-being, and interests of the families of OFWs in accordance with this Act, consistent with the constitutional policy of upholding the sanctity of the family as a basic autonomous social institution and of valuing the vital role of youth in nation-building;
(e) Support and assist the Department of Foreign Affairs (DFA) and relevant government agencies in building strong and harmonious partnerships with counterpart and relevant agencies in foreign countries in order to facilitate the implementation of strategies and programs for the protection and promotion of the rights and well-being of OFWs and their families, and to continuously monitor economic, political and labor developments therein;
(f) Support and assist the DFA in the negotiation of bilateral and multilateral agreements, initiatives and programs, including intergovernmental processes, which primarily concern labor migration;
(g) Represent, in coordination with and under the guidance of the DFA, interests pertaining to OFWs in bilateral, regional, and multilateral fora and international bodies. A written authorization shall be secured by the Department from the President, through the Secretary of Foreign Affairs, prior to any international meeting or negotiation of a treaty or executive agreement on any subject matter within its mandate;
(h) Provide, in cooperation with the Department of Education (DepEd), the Department of Trade and Industry (DTI), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDAT), the Maritime Industry Authority (MARINA), and other government agencies, civil society organizations, nongovernmental organizations and the private sector, trainings aimed at promoting the global competitiveness of OFWs, as well as job matching services to persons desiring to become OFWs;
(i) Encourage and enhance information and resource sharing among related agencies, and develop an electric database to improve services for OFWs in accordance with Section 18 of this Act;
(j) Regulate the operations of private recruitment and manning agencies involved in the deployment of OFWs abroad to protect the interests and well-being of these workers;
(k) Foster the professionalization, promote ethical recruitment practices, and ensure compliance with legal and ethical standards, training, and capacity-building of private recruitment and manning agencies;
(l) Establish a 24/7 Emergency Response and Action Center Unit and media and social media monitoring center to respond to the emergency needs of OFWs and their families;
(m) Perform all the powers, functions, and responsibilities assigned to all agencies, offices, or units to be transferred to, or absorbed by, the Department pursuant to the consolidation mandated by this Act;
(n) Require private recruitment and manning agencies to provide comprehensive insurance to the OFWs they deploy in accordance with the law: Provided, That with respect to OFWs deployed through other arrangements, a substantially similar benefit shall be provided to the concerned OFW;
(o) Develop and create a training institute that will provide substantive, analytical and strategic leadership training programs meant to equip employees of the Department , especially those who will be working overseas, with necessary knowledge and skills, such as, but not limited to, the language, customs, traditions, and laws of the host countries where OFWs are located, with due regard to the training services being provided by the Foreign Service Institute of the DFA. The training shall also include effective means and methods in handling the concerns of OFWs;
(p) Develop and create an institute for advanced and strategic studies on migration and development, which shall, among others, conduct advanced, strategic and up-to-date studies and research on global migration and development trends;
(q) In coordination with the DFA, conduct regular, timely and relevant political and security risk assessment of the conditions in the receiving country, including adequate evacuation plans that will be communicated with all migrant workers thereat, not only for deployment purposes but more especially in cases of emergencies which will require swift actions including, but not limited to, possible evacuation of our migrant workers;
(r) Create a system for the blacklisting of persons, both natural and juridical, including local and foreign recruitment agencies, their agents, and employers, who are involved in trafficking as defined in Section 16(h), second paragraph of Republic Act No. 9208, as amended. The Department shall create and update a database of blacklisted persons which will be shared within the concerned agencies of the Department and with the IACAT. It shall also establish a monitoring system for cases involving trafficking and illegal recruitment of OFWs; and
(s) Perform such other functions as may be necessary to achieve the objectives of this Act.
The exercise of the powers and functions of the Department shall in no way limit, restrict, or diminish the pursuit of an independent foreign policy or the conduct of foreign relations and treaty negotiations by the DFA.
Protection of the rights and promotion of the welfare of overseas Filipinos is a pillar of Philippine foreign policy. The DFA shall continue providing assistance to other Filipino nationals not covered under this Act.
What comprises the Department of Migrant Workers?
The following entities are consolidated and merged into and constituted as the Department, and their powers and functions subsumed to the Department which shall assume and perform all their powers and functions:
1. POEA
2. Office of the Undersecretary for Migrant Workers’ Affairs (OUMWA) of the DFA
3. Philippine Overseas Labor Offices (POLO) under DOLE
4. International Labor Affairs Bureau (ILAB) under DOLE
5. National Reintegration Center for OFWs (NRCO) under OWWA
6. National Maritime Polytechnic (NMP) under DOLE
7. Office of the Social Welfare Attache (OSWA) under DSWD
Jurisdiction of DMW
Exercise original and exclusive, and appellate jurisdiction to hear and decide all cases which are administrative in character, involving or arising out of:
1. Violations of recruitment rules and regulations, including refund of fees collected from OFWs and any violation of the conditions for the issuance of the license to recruit OFWs
2. Disciplinary action cases that are administrative in character, excluding money claims. In the exercise of its adjudicatory power, including its appellate jurisdiction, the Department shall formulate its own rules and procedures governing the proceedings before the Overseas Employment Adjudicators (OEAs), Regional Directors and the Office of the Secretary (IRR of the DMWA, Rule III, Sec. 6)
Regulatory power of the Secretary of Labor for local employment
The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title. (Art. 36)
Visitorial power of the Secretary of Labor in relation to recruitment in local employment
The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and record of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violations of any provisions of this Title (Art. 37)
The following persons and entities are disqualified to participate or engage in the recruitment and placement of workers for overseas employment:
Revised POEA Rules 2016 for Land-based Workers, Part II, Rule I, sec. 3
SECTION 3. Who are Disqualified. — The following persons and entities are disqualified to participate or engage in the recruitment and placement of workers for overseas employment:
a. Travel agencies and sales agencies of airline companies;
b. Officers or members of the Board of any corporation or partners in a partnership engaged in the business of a travel agency;
c. Corporations and partnerships, where any of its officers, members of the board or partners is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency;
d. Individuals, partners, officers or directors of an insurance company who make, propose or provide an insurance contract under the compulsory insurance coverage for agency-hired Overseas Filipino Workers;
e. Sole proprietors, partners or officers and members of the board with derogatory records, such as, but not limited to the following:
1. Those convicted, or against whom probable cause or prima facie finding of guilt is determined by a competent authority, for illegal recruitment, or for other related crimes or offenses committed in the course of, related to, or resulting from, illegal recruitment, or for crimes involving moral turpitude;
2. Those agencies whose licenses have been revoked for violation of RA 8042 (Migrant Workers and Overseas Filipinos Act of 1995), as amended, PD 442 (Labor Code of the Philippines), as amended, and RA 9208 (Trafficking in Persons Act of 2003), as amended, and their implementing rules and regulations;
3. Those agencies whose licenses have been cancelled, or those who, pursuant to the Order of the Administrator, were included in the list of persons with derogatory record for violation of recruitment laws and regulations; and
f. Any official or employee of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNP, Civil Aviation Authority of the Philippines (CAAP), international airport authorities, and other government agencies directly involved in the implementation of RA 8042, as amended, and/or any of his/her relatives within the fourth civil degree of consanguinity or affinity.
The Philippine Overseas Labor & Office (POLO) may suspend accreditation based on any of the following grounds:
Revised POEA Rules 2016 for Land-based Workers, Part III, Rule I, secs. 101
SECTION 101.Suspension of Accreditation by the POLO. — The POLO may suspend accreditation based on any of the following grounds:
a. Unjustified refusal to assist/repatriate distressed Overseas Filipino Worker/s;
b. Deliberate violation/non-compliance of the principal/employer with its contractual obligations to its hired Overseas Filipino Worker/s;
c. Continued processing and deployment of the Overseas Filipino Workers for the principal/employer will lead to the further exploitation of any or all of its applicants and Overseas Filipino Workers or pose imminent danger to the lives and safety of its Overseas Filipino Worker/s; or
d. When found to have hired and employed an Overseas Filipino Worker who is either a minor or below the prescribed minimum age requirement.
The POLO or the Administration shall automatically revoke the accreditation of a principal/employer on any of the following grounds:
Revised POEA Rules 2016 for Land-based Workers, Part III, Rule I, secs. 104
SECTION 104. Revocation of Accreditation and Registration. — The POLO or the Administration shall automatically revoke the accreditation of a principal/employer on any of the following grounds:
a. Expiration of the principal’s/employer’s business license or cessation of business or recruitment activity, after a period of one (1) year from expiration or cessation;
b. Upon written mutual agreement by the principal/employer and the licensed recruitment agency to terminate the agreement;
c. When the principal/employer is meted the penalty of disqualification from participation in the overseas employment program; and
d. Failure to comply with the undertaking submitted as requirement for accreditation.
What are the aspects of procedural due process which must be observed in the termination of employment?
Procedural due process requires that an employee must be given:
a. Written notice of the charges against him. The employer is bound to furnish him 2 notices, the written charge and the written notice of dismissal in case that is the penalty imposed
b. Formal investigation where he can defend himself personally or through a representative before he can be dismissed and disembarked from the vessel.
Illegal recruitment
Migrant Workers and Overseas Filipinos Act of 1995
SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;
(d) To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;
(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers’ organization;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;
(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment;
(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;
(l) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;
(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and
(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.
In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts:
“(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;
“(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;
“(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter’s employment contract has been prematurely terminated through no fault of his or her own;
“(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;
“(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;
“(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers’ applications; and
“(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker’s insurance coverage.
“The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.
“In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused.
“In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator.
The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations.”
Jurisdiction of LA and NLRC
Migrant Workers and Overseas Filipinos Act of 1995
Section 7. Section 10 of Republic Act No. 8042, as amended, is hereby amended to read as follows:
SEC. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage. Consistent with this mandate, the NLRC shall endeavor to update and keep abreast with the developments in the global services industry.
Liability of Local Recruitment Agency and Foreign Employer
Section 7. Section 10 of Republic Act No. 8042, as amended, is hereby amended to read as follows:
SEC. 10. Money Claims. - xxx
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to de filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.
Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within thirty (30) days from approval of the settlement by the appropriate authority.
In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker’s salary, the worker shall be entitled to the full reimbursement if his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.
In case of a final and executory judgement against a foreign employer/principal, it shall be automatically disqualified, without further proceedings, from participating in the Philippine Overseas Employment Program and from recruiting and hiring Filipino workers until and unless it fully satisfies the judgement award.
Noncompliance with the mandatory periods for resolutions of case provided under this section shall subject the responsible officials to any or all of the following penalties:
(a) The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith;
(b) Suspension for not more than ninety (90) days; or
(c) Dismissal from the service with disqualification to hold any appointive public office for five (5) years.
Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incured under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph.
Aliens exempted from license requirement
The following categories of foreign nationals are exempted from securing an AEP: (IT-LORD-PP)
- Accredited officers and personnel of International organizations of which the Philippine government has entered into an agreement with, and their dependent spouse desiring work in the Philippines
- Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government, subject to the rules of reciprocity
- All foreign nationals granted exemption by law
- Foreign national who are officers, staff, and employees working in the Embassy by reason of extra-territoriality principle, which is one of the generally accepted principles in International Law
- Refugees and stateless persons recognized by DOJ pursuant to Art. 17 of the UN Convention and Protocol relating to status of refugees and stateless persons
- Dependent spouse of any member of the Diplomatic corps, provided there is an existing reciprocity agreement and/or exchange of notes between the Philippine Government and their respective countries of origin
- Permanent resident foreign nationals and probationary or temporary resident visa holders under Sec. 13 (a-f) of the Philippine Immigration Act of 1940 and Section3 of the Alien Social Integration Act of 1995
- Foreign nationals who are officers and staff of peacekeeping or international organizations, either deployed in the Philippines or invited by non-governmental organizations as accredited, provided they will not engage in any gainful employment in the Philippines
The Regional Director may, motu proprio or upon petition, cancel or revoke an AEP after due process, based on the following grounds
DOLE D.O. No. 186-17, Sec. 13
a. Non-compliance with any of the requirements or conditions for which the AEP was issued
b. Misrepresentation of facts in the application including fraudulent misrepresentation, i.e. false statement that has a negative effect in the evaluation of the application made knowingly, or without belief in its truth, or recklessly whether it is true or false
c. Submission of falsified or tampered documents
d. Meritorious objection or information against the employment of the foreign national
e. Foreign national has been convicted of a criminal offense or a fugitive from justice
f. Employer terminated the employment of foreign national
g. Grave misconduct in dealing with or ill treatment of workers
May a person who has committed illegal recruitment be charged and convicted of estafa?
Yes. A person who has committed illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estate under Art. 315 of the Revised Penal Code. The crime of illegal recruitment is malum prohibitum where the criminal intent of the accused is necessary for conviction. In other words, a person convicted under the Labor Code may be convicted of offenses punishable by other laws.
Theory of Imputed Knowledge
The Theory of Imputed Knowledge ascribes the knowledge of the agent to the principal, not the other way around. The knowledge of the principal-foreign employer cannot, therefore, be imputed to its agent.
In the case of Sunace, the agency was not aware of or was ignorant of the employment extension between the principal and the employee; hence, the agency was free from any liability.
Four-fold test
The four-fold test is a test to determine the existence of employer-employee relationship by considering the following factors:
1. Selection and engagement of the employee
2. Payment of wages
3. Power of dismissal
4. Power to control the employee’s conduct
What are the remedies of an employee whose service was terminated without just, valid or authorized causes as defined by their law or contract?
The following are the remedies of a migrant worker:
1. Full reimbursement of his placement fee with interest of 12% per annum;
2. Salaries for the unexpired portion of his employment contract
3. Exemplary, moral and other forms of damages if the acts or omission of the employer is tainted with bad faith, malice, or fraud.
What is the period of validity of AEP?
The AEP shall be valid for the position and the company for which it was issued for a period of 1 year, unless granted a longer period vis-a-vis the employment duration, as stated in the employment contract or other modes of agreement, but in no case shall exceed 3 years.
DO No. 221-21, Sec. 8
Control test
The control test, or “means-and-method control test,” determines whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. The greater the supervision and control the hirer exercises, the more likely the worker is deemed an employee.
Two-tiered test
- The putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished
- The underlying economic realities of the activity or relationship. The proper standard of economic dependence which is an aspect to be considered under economic realities is whether the worker is dependent on the alleged employer for his continued employment in that line of business
What is the relationship between jeepney and taxi drivers and their operators under the boundary system?
The relationship between jeepney owners/operators on one hand and jeepney and taxi drivers on the other under the boundary system is that of employer-employee and not of lessor-lessee. In the case of jeepney owners/operators and jeepney drives, the former exercise supervision and control over the latter. The owner as holder of the certificate of public convenience must see to it that the driver follows the route prescribed by the franchising authority and the rules promulgated as regards its operation. The fact that the drivers do not receive fixed wages but get only that in excess of the so-called “boundary” they pay to the owner/operator is not sufficient to withdraw the relationship between them from that of employer and employee.
The existence of a vendor-vendee relationship between the operator and the driver under a boundary-hulog system which is essentially a contract to sell does not negate the existence of an employer-employee relationship.
When is an employee deemed regular?
- The employee has been engaged to perform activities usually necessary or desirable in the usual business or trade of the employer (Art. 295)
- A casual employee is allowed to work for at least 1 year, whether the same is continuous or broken, with respect to the activity in which he is employed and while such activity exists (Art. 295)
- An employee is allowed to work after the lapse of the probationary period (Art. 296)
Is a part-time employee a regular employee?
Yes. One’s regularity of employment is not determined by the number of hours one works but by the nature and by the length of time one has been in that particular job.
Since the work of regular seasonal employees are seasonal in nature, what happens to their employment during off-season?
The nature of their relationship with the employer is such that during off-season, they are temporarily laid off but during the season they are reemployed or when their services are needed. They are not, strictly speaking, separated from the service but are merely considered as on leave of absence without pay until they are reemployed. Their employment relationship is never severed but only suspended.
Contractor
A contractor refers to any person or entity engaged in a legitimate contracting or subcontracting arrangement providing services for a specific job or undertaking farmed out by principal under an agreement.
Labor Code, art. 82; Omnibus Rules Implementing the Labor Code, Book III, Rule I, secs. 1-2
SECTION 2. Exemption. — The provisions of this Rule shall not apply to the following persons if they qualify for exemption under the conditions set forth herein:
(a) Government employees whether employed by the National Government or any of its political subdivision, including those employed in government-owned and/or controlled corporations;
(b) Managerial employees, if they meet all of the following conditions:
(1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof.
(2) They customarily and regularly direct the work of two or more employees therein.
(3) They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight.
(c) Officers or members of a managerial staff if they perform the following duties and responsibilities:
(1) The primary duty consists of the performance of work directly related to management policies of their employer;
(2) Customarily and regularly exercise discretion and independent judgment; and
(3) (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (iii) execute, under general supervision, special assignments and tasks; and
(4) Who do not devote more than 20 percent of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above.
(d) Domestic servants and persons in the personal service of another if they perform such services in the employer’s home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer’s household.
(e) Workers who are paid by results, including those who are paid on piece-work, “takay,” “pakiao” or task basis, and other non-time work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section.
(f) Non-agricultural field personnel if they regularly perform their duties away from the principal or branch office or place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.
Overtime work – Labor Code, arts. 87-90; Omnibus Rules Implementing the Labor Code, Book III, Rule I, secs. 8-10
SECTION 10. Compulsory overtime work. — In any of the following cases, an employer may require any of his employees to work beyond eight (8) hours a day, provided that the employee required to render overtime work is paid the additional compensation required by these regulations:
(a) When the country is at war or when any other national or local emergency has been declared by Congress or the Chief Executive;
(b) When overtime work is necessary to prevent loss of life or property, or in case of imminent danger to public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic or other disaster or calamities;
(c) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other causes of similar nature;
(d) When the work is necessary to prevent loss or damage to perishable goods;
(e) When the completion or continuation of work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer; or
(f) When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.
In cases not falling within any of these enumerated in this Section, no employee may be made to work beyond eight hours a day against his will.
SECTION 6. When work on rest day authorized. — An employer may require any of his employees to work on his scheduled rest day for the duration of the following emergencies and exceptional conditions:
(a) In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety;
(b) In case of urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer;
(c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;
(d) To prevent serious loss of perishable goods;
(e) Where the nature of the work is such that the employees have to work continuously for seven (7) days in a week or more, as in the case of the crew members of a vessel to complete a voyage and in other similar cases; and
(f) When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.
No employee shall be required against his will to work on his scheduled rest day except under circumstances provided in this Section: Provided, However, that where an employee volunteers to work on his rest day under other circumstances, he shall express such desire in writing, subject to the provisions of Section 7 hereof regarding additional compensation.
Holidays – Labor Code, art. 94; Omnibus Rules Implementing the Labor Code, Book III, Rule IV, secs. 1-11
Section 3. As used in the rule, the term ‘regular holiday’ shall exclusively refer to:
New Year’s Day, Maundy Thursday, Good Friday, Araw ng Kagitingan (April 9), Labor Day, Independence Day, National Heroes’ Day (the last Sunday/Monday of August), Bonifacio Day (Nov 30), Christmas, Rizal Day (Dec 30), Eid ul-Fitr, Eid ul-Adha, Nationwide special days shall include the first of November and the last day of December.
As used in this Rule legal or regular holiday and special holiday shall now be referred to as ‘regular holiday’ and ‘special day’, respectively.
Special holidays: Ninoy Aquino Day (Aug 21), All Saints Day, Last Day of the Year, Feast of the immaculate Conception of Mary
Rule on successive holiday
SECTION 10. Successive regular holidays. — Where there are two (2) successive regular holidays, like Holy Thursday and Good Friday, an employee may not be paid for both holidays if he absents himself from work on the day immediately preceding the first holiday, unless he works on the first holiday, in which case he is entitled to his holiday pay on the second holiday.
What are compensable hours?
- All time during which an employee is required to be on duty or to be at a prescribed workplace
- All time during which an employee is permitted to work
- Rest periods of short duration during working hours which shall not be more than 20 minutes shall be counted as hours worked (IRR of the Labor Code)
What are the exceptions to the general rule on normal hours of work?
- Health personnel in cities and municipalities with a population of at least 1,000,000 or in hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours for 8 hours a day, for 5 days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for 6 days or 48 hours, in which case, they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the 6th day
- Compressed Workweek
Health personnel
Resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants, and all other hospital or clinic personnel
Art. 83
What are the rules on power interruptions or brownouts with respect to compensable hours?
DOLE Policy Instruction No. 36 provides for the following rules:
1. Brownouts of short duration not exceeding 20 minutes are compensable hours worked
- Brownouts running for more than 20 minutes may not be treated as hours worked provided any of the following conditions are present:
a. The employees can leave their workplace or go elsewhere whether within or without the work premises
b. The employees can use the time effectively for their own interest
Compressed Work Week
The CWW scheme is an alternative arrangement whereby the normal workweek is reduced to less than 6 days but the total number of normal hours per week remains at 48 hours. The normal workday is increased to more than 8 hours without corresponding overtime premium. This concept can be adjusted accordingly in cases where the normal workweek of the firm is 5 days. (DOLE Advisory No. 02-04)
Conditions of a valid CWW scheme
- The scheme is expressly and voluntarily supported by majority of the employees affected
- In firms using substances, or operating in conditions that are hazardous to health, a certification is needed from an accredited safety organization or the firm’s safety committee that work beyond 8 hours is within the limits or levels of exposure set by DOLE’s occupational safety and health standards
- The DOLE-RO is duly notified
Effects of CWW
- Work beyond 8 hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed 12 hours;
XPN: where there is a more favorable practice existing in the firm
- Employees under a CWW scheme are entitled to meal periods of not less than 60 minutes. Nothing herein shall impair the right of employees to rest days as well as to holiday pay, rest day pay or leaves in accordance with law or applicable collective bargaining agreement or company practice
- Adoption of the CWW scheme shall (in no case result in diminution of existing benefits. Reversion to the normal 8-hour workday shall not constitute a diminution of benefits. The revision shall be considered a legitimate exercise of management prerogative, provided that the employer shall give the employees prior notice of such reversion within a reasonable period of time.
Flexible Work Arrangement
Flexible wok arrangements refer to alternative arrangements or schedules other than the traditional or standard work hours, workdays or workweek. The following are the flexible work arrangements which may be considered:
1. Compressed workweek
2. Reduction of workdays - where the normal workdays per week are reduced but should not last more than 6 months
3. Rotation of workers - where the employees are rotated or alternatively provided work within the workweek
4. Forced leave - refers to one where the employees are required to go on leave for several days or weeks utilizing their leaves credit if there are any
5. Broken time schedule - where the work-hours within the day or week remain
6. Flexi-holidays schedule - where the employees agree to avail the holidays at some other days provided there is non-diminution of existing benefits as a result of such arrangements
7. Gliding or flexi-time schedule - where the employees are required to complete the core workhours in the establishment but are free to determine their arrival and departure
What is needed prior implementation of the flexible work arrangements?
The employer shall notify the Department through the Regional Office which has jurisdiction over the workplace, of the adoption of any of the flexible work arrangements.
Is night shift differential waivable?
No. NSD is not waivable. Additional compensation for nighttime work is founded on public policy.
When can overtime work be compelled by an employer?
War-LUNS
- When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive
- When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity
- When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature
- When the work is necessary to prevent loss or damage to perishable goods
- Where the completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer
Enumerate the instances when an employer may compel his/her employees to work on a rest day
WE-CAMP
- When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon
- In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety
- Where the nature of the work is such that the employees have to work continuously for 7 days in a week or more, as in the case of the crew members of a vessel to complete a voyage and in other similar cases
- In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures
- In cases of urgent work to be performed on machineries, equipment, or installations to avoid serious loss which the employer would otherwise suffer
- To prevent serious loss of perishable goods
IRR of the Labor Code
Computation of Additional Compensation
- Work on scheduled rest day: 30% of regular wage
- Work on Sunday when it is his established rest day: 30% of regular wage
- No regular workdays and no specific rest days: 30% of regular wage for work performed on Sundays and holidays
- Work on special holiday: 30% of regular wage
- Work on special holiday falling on scheduled rest day: 50% of regular wage
- Work on regular holiday falling on scheduled rest day: 160% of regular wage
Exempted Employers from 13th month pay
The following employers are still not covered by P.D. No. 851:chanroblesvirtuallawlibrary
a. The Government and any of its political subdivisions, including government-owned and controlled corporations, excepts those corporations operating essentially as private subsidiaries of the Government;
b. Employers already paying their employees a 13th month pay or more in a calendar year or its equivalent at the time of this issuance;
c. Employers of household helpers and persons in the personal service of another in relation to such workers; and
d. Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall grant the required 13th month pay to such workers.
As used herein, workers paid on piece-rate basis shall refer to those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.
The term “its equivalent” as used on paragraph (b) hereof shall include Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 1/12 of the basic salary but shall not include cash and stock dividends, cost of living allowances and all other allowances regularly enjoyed by the employee, as well as non-monetary benefits. Where an employer pays less than required 1/12th of the employees basic salary, the employer shall pay the difference.
Managerial vs. Rank-and-File employee
The Labor Code distinguishes a rank-and-file employee from a managerial employee. It provides that a managerial employee is one who is vested with powers of prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall discharge, assign or discipline employees, or to effectively recommend such managerial actions. All employees not falling within this definition are considered rank-and-file employees.
The above distinction shall be used as guide for the purpose of determining who are rank-and-file employees entitled to the mandated 13th month pay.
Wages of deceased employee
Omnibus Rules Implementing the Labor Code, Book III, Rule VIII
SECTION 6. Wages of deceased employee. — The payment of the wages of a deceased employee shall be made to his heirs without the necessity of intestate proceedings. When the heirs are of age, they shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs to the exclusion of all other persons. In case any of the heirs is a minor, such affidavit shall be executed in his behalf by his natural guardian or next of kin. Upon presentation of the affidavit to the employer, he shall make payment to the heirs as representative of the Secretary of Labor and Employment.
Who are the employers exempted from the application of PD 851, requiring all employers to pay their employees 13th month pay?
- Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall grant the required 13th month pay to such workers
- Employers already paying their employees a 13th month pay or more in a calendar year or its equivalent at the time of this issuance
NOTE: The term “its equivalent” as used on paragraph (b) hereof shall include Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 1/12 of the basic salary but shall not include cash and stock dividends, cost of living allowances and all other allowances regularly enjoyed by the employee, as well as non-monetary benefits. Where an employer pays less than required 1/12 of the employees’ basic salary, the employers shall pay the difference.
- The Government and any of its political subdivisions, including GOCCs, except those corporations operating essentially as private subsidiaries of the Government
Under RA 10361, otherwise known as “Domestic Workers Act” or “Batas Kasambahay,” domestic workers are now entitled to 13th month pay.
What is meant by “basic salary” for the purpose of computing the 13th month pay?
The basic salary of an employee for the purpose of computing the 13th month pay shall include all remunerations or earning paid by this employer for services rendered but does not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash equivalent of unused vacation and sick leave credits, overtime, premium, night differential and holiday pay, and cost-of-living allowances. However, these salary-related benefits should be included as part of the basic salary in the computation of the 13th month pay if by individual or collective agreement, company practice or policy, the same are treated as part of the basic salary of the employees.
Principle of Fair Wage for Fair Work
Under the principle of fair day’s wage for a fair day’s labor, if there is no work performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to work but was prevented by management or was illegally locked out, suspended or dismissed. If there is no work performed by the employee, there can be no wage.
Equal Pay for Equal Work
The concept of “equal pay for equal work” means that persons who work with substantially equal qualifications, skill, effort, and responsibility, under similar conditions, should be paid similar salaries. Whenever an employer gives employees the same position and rank, the presumption is that these employees perform equal work.
Diminution of benefits
Nothing in this Book (Conditions of Employment) shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of the Labor Code (Art. 100)
This rule only applies if the the benefit is based on any of the following:
1. An express policy
2. A written contract
3. A company practice
Exceptions to the Non-Diminution Rule
NEW-CRIB
1. Negotiated benefits
2. Correction of error
3. Wage order compliance
4. Contingent benefits of conditional bonus
5. Reclassification of position
6. Productivity incentives
7. Benefits on reimbursement basis
What happens if SIL is not availed of?
SIL shall be commutable to its money equivalent if not used or exhausted at the end of the year.
Under the Kasambahay Law, a domestic worker who has rendered at least 1 year of service shall be entitled to an annual service incentive leave of 5 days with pay, Provided That any unused portion of said annual leave shall NOT be cumulative or carried over to the succeeding years. Unused leaves shall NOT be convertible to cash.
Expanded Maternity Leave Benefits
All covered female workers in government and the private sector, including those in the informal economy, regardless of civil status or the legitimacy of her child, shall be granted 105 days maternity leave with full pay and an option to extend for an additional 30 days without pay: Provided, That in case the worker qualifies as a solo parent under RA 8972, or the “Solo Parents Welfare Act,” the worker shall be granted an additional 15 days maternity leave with full pay. (RA 11210, 105-day Expanded Maternity Leave Law)
Note: In cases of miscarriage or emergency termination of pregnancy, 60 days maternity leave with full pay shall be granted.
Is a pregnant woman allowed to claim maternity benefits and sickness benefits simultaneously?
No. Payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided under RA 1161, as amended, otherwise known as “Social Security Law,” for the same period for which daily maternity benefits have been received. However, under the Circular 36-V issued by the SSS dated May 24, 1997, if they have qualifying contributions schedule, they shall be entitled to maternity benefits.
Maternity benefit in case of termination
If the childbirth, miscarriage, or emergency termination of pregnancy occurs within 15 calendar days from termination of the employment, the right to maternity leave has already accrued and should thus be granted.
Paternity Leave
Paternity leave refers to the leave credits granted to a married male employee to allow him to earn compensation for 7 working days without reporting for work, provided that his spouse has delivered a child or had a miscarriage or an abortion for the purpose of lending support to his wife during her period of recovery and/or the nursing of the newly born child.
- Applicable to first 4 deliveries of the legitimate spouse with whom he is cohabiting.
- Should have rendered at least 6 months of service, whether continuous or broken
Special leave benefit for women under RA 9710
Gynecological leave refers to a female employee’s leave entitlement of 2 months with full pay from her employer based on her gross monthly compensation (i.e. monthly basic salary plus mandatory allowances fixed by the regional wage boards) following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at least 6 months for the last 12 months
What if the female employee had undergone gynecological surgery during maternity leave?
She is entitled only to the difference between the special leave benefit and the maternity leave benefit.
Violence against women and their children under RA9262
VAWC refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which results in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment, or arbitrary deprivation of liberty.
What is the leave benefit under RA9262?
At any time during the application of any protection order, investigation, prosecution and/or trial of the criminal case, a victim of VAWC who is employed shall be entitled to a paid leave of up to 10 days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations and other existing laws and company policies, extendible when the necessity arises as specified in the protection order.
Special Groups of Employees
- Women – Labor Code, arts. 130 and 132-136
- Minors – R.A. No. 7610, as amended by R.A. No. 9231
- Kasambahays – R.A. No. 10361
- Homeworkers – Labor Code, arts. 151-153
- Night Workers – Labor Code, arts. 154-161
- Apprentices and Learners – Labor Code, arts. 58-60 and 73-74
- Persons with Disabilities – R.A. No. 7277, as amended by R.A. No. 9442, R.A. No. 10070 and R.A. No. 10524
Children below fifteen (15) years of age shall not be employed except:
When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed: Provided, however, That his/her employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development: Provided, further, That the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or
2) Where a child’s employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: Provided, That the employment contract is concluded by the child’s parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: Provided, further, That the following requirements in all instances are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal development of the child;
(b) The employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and
(c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.
In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements.
For purposes of this Article, the term “child” shall apply to all persons under eighteen (18) years of age.
R.A. No. 7610, as amended by R.A. No. 9231
Hours of Work of a Working Child
(1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: Provided, That the work shall not be more than four (4) hours at any given day;
(2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week;
(3) No child below fifteen (15) years of age shall be allowed to work between eight o’clock in the evening and six o’clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work between ten o’clock in the evening and six o’clock in the morning of the following day.
R.A. No. 7610, as amended by R.A. No. 9231
Which court has jurisdiction over cases falling under Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act?
Sec. 16-A. Jurisdiction - The family courts shall have original jurisdiction over all cases involving offenses punishable under this Act: Provided, That in cities or provinces where there are no family courts yet, the regional trial courts and the municipal trial courts shall have concurrent jurisdiction depending on the penalties prescribed for the offense charged.
The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of filing.
If the preliminary investigation establishes a prima facie case, then the corresponding information shall be filed in court within forty eight (48) hours from the termination of the investigation.
Trial of cases under this Act shall be terminated by the court not later than ninety (90) days from the date of filing of information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case.
A working child permit is required if the child below 15:
a. Will be engaged in public entertainment or information regardless of his/her role in a project such as lead supporting, guest, or regular extra. This includes projects which are non-profit, advocacy materials or political advertisements
b. is a foreign national and will be engaged in public entertainment or information in the Philippines
c. will be engaged as regular extra or as part of a crowd and is included the script or storyboard
d. Has been selected for a project after undergoing auditions, workshops or VTR screenings, or
e. Has been selected as semi-finalist in a singing, dance or talent contest for a television show
A working child permit is NOT required if the child below 15:
a. Is a spot extra or cast outright on the day of filming or taping of a project
b. Will join auditions or VTR screenings
c. Is part of the audience of a live tv show unless the child’s participation is expected
d. Is picked or chosen as a contestant from the audience of a live tv show
e. Is a contestant of a singing, dance, or talent contest for a tv show but has not yet been selected as a semi-finalist
f. Is a recipient of gift-giving activities in tv
g. Is a participant in school-related performance such as play, skit, or recital
h. is a participant in sports activities, trainings, or workshops aimed at developing the child’s talent or skills
i. Will be featured in a documentary material
Who administers the working child’s income?
The wages, salaries, earnings and other income of the working child shall belong to him/her in ownership and shall be set aside primarily for his/her support, education or skills acquisition and secondarily to the collective needs of the family: Provided, That not more than 20% of the child’s income may be used for the collective needs of the family.
The income of the working child and/or the property acquired through the work of the child shall be administered by both parents. In the absence or incapacity of either of the parents, the other parent shall administer the same. In case both parents are absent or incapacitated, the order of preference on parental authority as provided for under the Family Code shall apply.
When the child’s gross earnings in a year amount to at least P200,000, the administrator shall set up a Trust Fund for the child where at least 30% of such amount shall be deposited. For a child earning less than P200,000 a year, at least 30% of his/her income may be deposited in a Savings account each time the child receives an income.
The accumulated savings shall be immediately transferred to the Trust Fund should his/her total gross income be at least P200,000. The child shall have full control over the Trust Fund upon reaching the age of majority. The administrator shall render a semi-annual accounting of the Trust Fund to the concerned Regional Office.
Domestic worker/Kasambahay
Domestic worker or kasambahay refers to any person engaged in domestic work within an employment relationship, whether on a live-in or live-out arrangement basis such as, but not limited to the following: general househelp, nursemaid or Maya, cook, gardener, or laundry person, but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis. The term shall not include children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education, i.e., boon, transportation, school projects and school activities.
The criterion of a household is the personal comfort and enjoyment of the family of the employer. The mere fact that the householder is working within the premises of the business of the employer and in relation to or in connection with its business, warrants the conclusion that said householder is and should be considered as a regular employee of the employer.
Who are not contemplated within the concept of a domestic worker?
a. Service providers - undertake to perform a service on their own for a household, free from the control of the employer except as to the results thereof
b. Family drivers
c. Children under foster family arrangement - they live with a family or household of relatives and are provided access to education and given an allowance
d. Any person who performs domestic work occasionally or sporadically and not on an occupational basis
- must be at least 15 years old
How are domestic workers hired?
- Directly
- Through a private employment agency (PEA) licensed by the Regional Office of the DOLE
The PEA shall register with the Barangay where they recruit, by representing a copy of its valid license and authority to recruit.
How is the employment of a Kasambahay terminated?
- With just cause - at any time, as long as any of the following circumstances are present: (MIFOV)
a. Misconduct or willful disobedience to lawful order in connection with the work
b. Gross or habitual neglect or inefficiency
c. Fraud or willful breach or trust
d. Commission of a crime or offense by the kasambahay against the person of the employer or any immediate member of the employer’s family
e. Violation by the kasambahay of the terms and conditions of the employment contract
Note: Pregnancy and marriage of the kasambahay are not valid grounds for termination of employment (IRR of RA10361, Domestic Workers Act)
- Without just cause - it depends on whether or not there is a stipulated period in the employment contract
a. There is stipulated period - at the end of the stipulated period
b. There is no stipulated period - by giving 5 days advance notice before the intended termination. If this is not followed, the employer is liable for salary plus an indemnity equivalent to 15 days pay.
Who has jurisdiction to resolve labor-related disputes between the employer and kasambahay?
A request for assistance shall be filed before the DOLE Field/Provincial/Regional Office or DOLE Attached Agency for conciliation-mediation proceedings. The concerned DOLE Filed/Provincial Officer or DOLE attached agency shall issue the referral and transmit the same, including the entire record of the conciliation-mediation proceedings previously conducted to the DOLE Regional Office having jurisdiction over the workplace, within one day, should the parties fail to settle amicable under any of the following circumstances:
a. Expiration of the 30-day mandatory conciliation-mediation period, unless there is a request for extension;
b. Failure of the parties to reach an agreement within the 30-day mandatory conciliation-mediation period
c. Non-appearance of the responding party in 2 scheduled consecutive conferences
d. Non-appearance of the responding party in 2 scheduled consecutive conferences despite due notices
e. Non-settlement of one or some issues bot not all in RFAs with multiple issues
f. Non-compliance with the Agreement
Under RA 7877, work, education,or training related sexual harassment is committed by
an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted or not by the object of said act.
How is work-related sexual harassment committed?
Work-related Sexual Harassment is committed when:
The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee.
The above acts would impair the employee’s rights or privileges under existing labor laws; or
The above acts would result in an intimidating, hostile or offensive environment for the employee.
Gravamen of the offense in sexual harassment
The gravamen of the offense in sexual harassment is not the violation of the employee’s sexuality but the abuse of power by the employer.
Prescriptive period for filing complaint under RA7877
3 years
Safe spaces
Safe spaces refer to the following spaces where persons are supposed to be protected from gender-based sexual harassment:
- Public spaces - streets, public parks, schools, malls, bars, restaurants, transportation terminals, government offices, PUVs, hotels, and other privately-owned places open to the public
- Online platforms - those which use information and communications technology
- Workplaces or employment environments - all sites where work is being undertaken by an employee within or outside the premises of the usual place of business of the employer
- Educational or training institutions - all schools, whether public or private
Laws prohibiting discriminatory practices
- Anti-Age Discrimination in Employment Act – R.A. No. 10911
- The Magna Carta of Women (Gender and Marital Status) – R.A. No. 9710
- The Responsible Parenthood and Reproductive Health Act of 2012 (Pregnancy) – R.A. No. 10354, sec. 23(c)
- Illness – DOLE D.A. No. 05-10 (Guidelines for the Implementation of a Workplace Policy and Program on Hepatitis B); DOLE D.O. No. 73-05 (Guidelines for Instituting a Comprehensive and Unified Policy for Tuberculosis Control in the Philippines)
- Solo Parents’ Welfare Act of 2000 – R.A. No. 8972, as amended by R.A. No. 11861, sec. 7
- Magna Carta for Disabled Persons – R.A. No. 7277, as amended
What are the exceptions to the rule that it is unlawful for employers to set age limitations?
- Age is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business or where the differentiation is based on reasonable factors other than age
- The intent is to observe the terms of a bona fide seniority system that is not intended to evade the purpose of this Act
- The intent is to observe the terms of a bona fide employee retirement or a voluntary early retirement plan consistent with the purpose of this Act: Provided, That such retirement or voluntary retirement plan is in accordance with the Labor Code, as amended, and other related laws; or
- The actions is duly certified by the DOLE Secretary in accordance with the purpose of the Rules
Who are compulsorily covered by the Social Security System?
- Employees and their employers - all employees including kasambahays or domestic workers not over 60 years of age and their employers (RA No. 11199, otherwise known as “Social Security of 2018,” Sec, 9)
- Self-employed - includes, but not limited to:
a. Self-employed professionals
b. Partners and single proprietors of businesses
c. Actors and actresses, directors, scriptwriters, and news correspondents, who do not fall within the definition of the term “employee” in Sec. 8(d) of RA 11199
d. Professional athletes, coaches, trainers, and jockey; and
e. Individual farmers and fishermen - Overseas Filipino Workers - all sea-based and land-based OFW as defined under RA 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995 as amended, provided that they are not over 60 years of age
- A farmer, fisherman, or a worker in the informal sector (IS) - an IS member being defined as one whose income is irregular or seasonal and who may be registered as a self-employed member under the SSS AlkanSSSya Program (SSS Membership primer)
Who are voluntarily covered by the SSS Law?
- Non-working spouses who devote full-time to managing the household and family affairs unless they are also engaged in other vocation or employment which is subject to mandatory coverage
- OFW upon the termination of their employment overseas
- Filipino permanent migrants, including Filipino immigrants, permanent residents, and naturalized citizens of their host countries
- An employee under compulsory coverage who has been separated from employment who continues to pay contribution
- A self-employed member who realizes no income in any given month who continues to pay contribution
Enumerate the employment services which are exempted from compulsory coverage under the SSS Law
- Services where there is no employee-employer relationship in accordance with existing labor laws, rules, regulations, and jurisprudence
- Serves performed in the employ of the Philippine Government or instrumentality or agency thereof
- Services performed in the employ of the foreign government or international organization or their wholly-owned instrumentality unless there is an agreement with the Philippine Government for the inclusion of such employees in the SSS
- Such other services performed by temporary and other employees which may be excluded by regulation of the Commission
Who are dependents under the SSS Law?
- Legal spouse entitled to receive support from the member
- Legitimate, legitimated, or legally adopted and illegitimate child who is unmarried, not gainfully employed, and has not reached 21 years of age, or if 21 years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally; and
- Parent who is receiving regular support from the member
Who are the primary beneficiaries under the SSS Law?
- Dependent spouse until he/she remarries
- Dependent spouse who has not cohabited or entered in a “live-in” relationship before or after the death of the member
- Dependent legitimate, legitimated, or legally adopted and illegitimate children
NOTE: Where there are legitimate or illegitimate children, the former shall be preferred. The dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated, or legally adopted children. In the absence of the dependent legitimate, legitimated, or legally adopted children of the member, his/her dependent illegitimate children shall be entitled to 100% of the benefits.
The Supreme Court recently held unconstitutional the stipulation under Sec. 13-A (c) which provides that the applicant for survivorship pension must be the legitimate spouse of the pensioner as of the date of the latter’s disability. The Court finds the proviso “as of the date of disability” under Section 13-A(c) void for being violative of the equal protection and due process clauses of the Constitution.
Benefits under the SSS Law
- Sickness benefit
- Maternity benefit
- Disability benefit
- Retirement benefit
- Death benefit
- Funeral benefit
- Unemployment benefit or involuntary separation benefit
- Employee’s compensation program
Types of retirement benefits
- Monthly pension - a monthly specified cash amount that a qualified member or a qualified beneficiary will receive on account of a permanent total disability, retirement, or death
- Lump sum amount - a one-time payment granted to a covered member who has reached the required retirement age and who does not qualify for a full pension benefit under the Social Security Act of 2018, provided, that he/she is separated from employment and is not continuing payment of contributions to the SSS on his/her own. The amount of benefit is equivalent to the total contributions paid by the member and/or on his/her behalf.
Requisites for entitlement to monthly pension
- A member must have at least 120 monthly contributions prior to the semester of his retirement
- Has reached 60 years old and is already separated from employment or has ceased to be self-employed, except
a. In the case of an underground mineworker, at least 55 years old effective March 13, 1998; and
b. In the case of an underground or a surface mineworker, at least 50 years old effective April 27, 2016; or - Is at least 65 years old, except
a. In the case of an underground mineworker effective March 13, 1998 or a surface mineworker effective April 27, 2016, at least 60 years old; and
b. In the case of a racehorse jockey, at least 55 years old effective May 24, 2016
Who are entitled to death benefits under the SSS Law?
Upon the death of the member who has paid at least 36 monthly contributions prior to the semester of death, his primary beneficiaries shall be entitled to the monthly pension provided that if he has no primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum equivalent to 36 times the monthly pension.
NOTE: If he has not paid the required 36 monthly contributions, his primary or secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS or 12 times the monthly pension, whichever is higher.
Enumerate the permanent total disabilities
- Complete loss of sight of both eyes
- Loss of 2 limbs at or above the ankle or wrists
- Permanent complete paralysis of 2 limbs
- Brain injury resulting to incurable imbecility or insanity
- Such cases as determined and approved by the SSS and/or the Commission
What constitutes the funeral benefit under the SSS Law?
The funeral benefit is intended to help defray the cost of funeral expenses upon the death of a member, including permanently totally disabled or retired member and is equivalent to the following amounts paid either in cash or in kind, depending on the date of contingency and may be adjusted as determined by the Commission
1. P12,000 effective May 24, 1997
2. P15,000, effective September 1, 1998
3. P20,000 effective September 1, 2000
4. A variable amount ranging from a minimum of P20,000 to a maximum of P40,000 depending on the member’s number of contributions and Average Monthly Salary Credit (AMSC), effective August 1, 2015
Sickness benefit under the SSS Law
It is a Daily Cash allowance paid by the employer to the member who is unable to work due to sickness or injury for each day of compensable confinement or a fraction thereof, or by the SSS, if such person is unemployed or is self-employed, OFW, a voluntary member who have been previously covered either as employed/self-employed/OFW and non-working spouse.
The daily sickness allowance shall be equivalent to 90% of the member’s average daily salary credit.
Eligibility requirements to qualify for the grant of sickness benefit under the SSS Law?
- He has paid at least 3 monthly contributions within the 12-month period immediately before the semester of sickness or injury
- Was confined for at least 4 days either in the hospital or elsewhere as defined by the SSS
- Has notified the employer, if employed, or SSS, if unemployed or self-employed/voluntary member of the sickness or injury; and
- Has used up all current company sick leave with pay for the current year, if employed, except sea-based OFWs.
NOTE: No contributions paid retroactively by self-employed/voluntary member/OFWs shall be used in determining his/her eligibility to sickness benefit wherein the date of payment is within or after the semester of contingency.
How many days in a year can a member avail of the sickness benefit?
A member can be granted a sickness benefit for a maximum of 120 days in 1 calendar year.
Note: Any unused portion of the allowable 120-day sickness benefit cannot be carried forward not added to the total number of allowed compensable days for the following year. The sickness benefit shall be paid for not more than 240 days on account of the same illness. If the sickness or injury still persists after 240 days, his claim will be considered a disability claim.
May sickness and disability benefits be availed simultaneously?
Yes, provided that:
1. Sickness/injury and disability are not related; and
2. The member meets all the qualifying conditions for the grant of sickness and disability benefits.
What are the eligibility requirements to qualify for the grant of maternity leave benefit under SSS Law?
- Has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of childbirth or miscarriage or emergency termination of pregnancy.
- Has notified her employer of the pregnancy and expected date of childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations issued by the Commission.
- If the female member is self-employed including those in the informal economy, voluntary member, or an OFW, notice shall be given directly to SSS.
Note: Notwithstanding the above rules, the failure of the pregnant employed female member to notify the employer shall not bar her from receiving the maternity benefits. Subject to the guidelines to be prescribed by the SSS.
Who are covered by the GSIS Law?
- All government personnel, whether elective or appointive, irrespective of status of appointment, provided they are receiving fixed monthly compensation and have not reached the mandatory retirement age of 65 years
- An employee who is already beyond the mandatory retirement age of 65 shall be compulsorily covered and be required to pay both the life and retirement premiums under the following situations:
- An elective official who at the time of election to public office is below 65 years of age and will be 65 years or more at the end of his term of office, including the period/s of his re-election to public office thereafter without interruption
- Appointive officials who, before reaching the mandatory age of 65, are appointed to government position by the President of the Republic of the Philippines and shall remain in government service at age beyond 65.
- Contractual employees including casuals and other employees with an employee-government agency relationship, provided they are receiving fixed monthly compensation and rendering required number of working hours for the month
Who are excluded from the GSIS Law?
- Uniformed personnel of the Armed Forces of The Philippines (AFP)
- Uniformed personnel of the Philippine National Police (PNP)
- Uniformed personnel of the Bureau of Fire Protection (BFP)
- Uniformed personnel of the Bureau of Jail Management and Penology (BJMP)
- Barangay and Sanggunian Officials who are not receiving fixed monthly compensation
- Contractual employees who are not receiving fixed monthly compensation; and
- Employees who do not have monthly regular hours of work and are not receiving fixed monthly compensation
Who are the dependents under GSIS Law?
- Legitimate spouse dependent for support upon the member or pensioner
- Legitimate, legitimated, legally adopted child including illegitimate child who is unmarried, not gainfully employed, not over the age of majority or is over the age of majority but incapacitated and incapable of self-support employment due to mental or physical defect acquired prior to age of majority
- Parents who are dependent upon the member for support.
Benefits under the GSIS Law
- Life Insurance benefit
- Retirement benefit
- Separation benefit
- Unemployment benefit or involuntary separation benefit
- Disability benefit
- Survivorship benefit
- Funeral benefit
- Employees’ compensation benefit
Limited Portability Law
Limited Portability Law shall apply to all worker-members of the Government Service Insurance System (GSIS) and/or Social Security System (SSS) who transfer from one sector to another, and who wish to retain their membership in both Systems.
The term “portability” refers to the transfer of funds for the account and benefit of a worker who transfers from one system to the other. Totalization refers to the process of adding up the periods of creditable services or contributions under each of the Systems.
Overlapping periods of membership shall be credited only once for purposes of totalization.
What disabilities shall be deemed total and permanent under the Labor Code?
- Temporary total disability lasting continuously for more than 120 days, except as otherwise provided for in the Rules
- Complete loss of sight of both eyes
- Loss of 3 limbs at or above the ankle or wrist
- Permanent complete paralysis of 2 limbs
- Brain injury resulting in incurable imbecility or insanity
- Such cases as determined by the Medical Director of the System and approved by the Commission
Note: Mere lapse of the 120-day period under Art. 198, par. C (1) of the Labor Code does not automatically give rise to a cause of action for a claim of permanent total disability benefits. If the said sickness or injury that caused the temporary total disability requires medical treatment beyond the 120-day period but not to exceed 240 days, then the employee is only entitled to temporary total disability benefits until he is declared as either: “fit to work,” which stops his entitlement to disability benefits; or “permanently and totally disabled,” which then entitles him to permanent total disability benefits. In any event, if the 240 days had lapsed without any certification issued by the company-designated doctor, then the employee may pursue an action for permanent total disability benefits.
What is the prescriptive period for claims under the Labor Code?
No claim for compensation shall be given due course unless said claim is filed with the System within 3 years from the time the cause of action accrued.
Based on jurisprudence, who qualifies as a seafarer?
In order to be considered a seaman or seafarer, one would have to be, at the very least, employed in a vessel engaged in maritime navigation. Thus, it is clear that those employed in non-mobile vessels or fixed structures, even if the said vessels/structures are located offshore or in the middle of the sea, cannot be considered as seafarers under the law.
When shall the employer be held liable for the employee’s disability allowance under the POEA-SEC?
The employer shall be liable when the seafarer suffers work-related injury or illness during the term of his contract.
Work-related illness is any sickness as a result of an occupational disease listed under Sec. 32-A of POEA Memorandum Circular No. 10, Series of 2010.
Those illnesses not listed in Section 32 are disputably presumed as work-related.
Requisites for a work-related illness or death to be compensable
(REPN)
1. The seafarer’s work must involve the Risks described under Sec. 32-A of POEA Memorandum Circular No. 10, Series of 2010
2. The disease was contracted as a result of the seafarer’s Exposure to the described risks
3. The disease was contracted within a Period of exposure and under such other factors necessary to contract it; and
4. There was no notorious Negligence on the part of the seafarer
These conditions apply to those illnesses not listed as an occupational disease in the 2010 POEA-SEC. For a disease not included in the list of compensable diseases to be compensable, the seafarer still has to establish, by substantial evidence, that his illness is or was work-related.
Must an illness be directly connected to the seafarer’s cause of medical repatriation?
No. An ailment need not be a necessary consequence or directly connected to the cause of medical repatriation to be compensable. There is nothing in Section 20(A) of the POEA-SEC or the CBA that would suggest, not even remotely, that the medical attention to be extended to the seafarer must only pertain to the cause of repatriation.
When is compensation for disability or death not compensable?
No compensation and benefits shall be payable in respect of any injury, incapacity, disability, or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties, provided, however, that the employer can prove that such injury, incapacity, disability, or death is directly attributable to the seafarer.
What are the liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract?
- The employer shall continue to pay the seafarer his wages during the time he is on board of the ship
- The employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared to fit to work or to be repatriated
- The seafarer shall also receive sickness allowance from his employer in the amount equivalent to his basic wage
- In case the seater is disembarked from the ship for medical reasons, the employer shall bear the full repatriation in the event the seafarer is declared fit for repatriation or fit to work but the employer is unable to find employment for the seafarer on board his former ship or another ship of the employer; and
- In case of permanent total or partial disability of the seafarer caused by either injury or illness, the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Sec. 32-A.
Can seafarer claim both the benefits under the POEA-SEC and those provided under the Philippine laws, e.g., SSS, ECC, Pag-IBIG Fund?
Yes, the seafarer can claim benefits on both. The benefits under the POEA-SEC are separate and distinct from and will be in addition to whatever benefits which the seafarer is entitled to under the Philippine laws.
What is prescriptive period for claims under POEA-SEC?
All claims from this contract shall be made within 3 years from the date the cause of action arises.
Doctrine of Management Prerogative
Under the doctrine of management prerogative, every employer has the inherent right to regulate, according to his own discretion, and judgment, all aspects of employment, including hiring, work assignments, working methods, the time, place and manner of work, work supervision, transfer of employees, lay-off of workers, and discipline, dismissal and recall of employees.
It must be upheld so long as they are exercised in good faith for the advancement of its interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or valid agreements.
Limitations on the exercise of management prerogative?
(LCE3-GePo-WiG)
a. Limitations imposed by:
1. Law
2. CBA
3. Employment contract
4. Employment policy
5. Employer practice
6. General principles of fair play and justice
b. It is subject to Police power (The preservation of the lives of the citizens is a basic duty of the State, more vital than the preservation of profits.)
c. Its exercise should be Without abuse of discretion
d. It should be done in Good faith and with due regard to the rights of labor
Bona Fide Occupational Qualifications
The BFOQ rule provides that employment may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that such is an actual qualification for performing the job.
When is a stipulation against marriage a valid exercise of management prerogative?
Dismissal based on this stipulation in the employment contract is a valid exercise of management prerogative. The prohibition against personal or marital relationships with the employees of competitor companies upon its employees was held reasonable because relationships of that nature might compromise the interests of the company. In laying down the assailed company policy, the employer only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures.
What are the limitations on the transfer of employees?
FUCIL
1. The transfer must not be motivated by discrimination or bad faith
- The managerial prerogative to transfer personnel cannot be used by the employer to rid himself of an undesirable employee
- Transfer, even if due to promotion, cannot be done without employee’s consent
- The mere fact that it would be inconvenient does not, by itself, make the transfer illegal
- The transfer of an employee should be considered as within the bounds allowed by law, unless there are circumstances which directly point to interference by the company with the employees’ right to self-organization
Reasonable proportionality rule
Reasonable proportionality rule means that infractions committed by an employee should merit only the corresponding sanction demanded by the circumstances. The penalty must be commensurate with the gravity of the offense, the act, conduct, or omission imputed to the employee and imposed in connection with the employer’s disciplinary authority.
What is the nature of grant of a bonus?
The grant of a bonus is a management prerogative. It is a gratuity or act of liberality of the giver which the recipient has not right to demand as a matter of right.
Is the employer required to obtain a clearance from the Secretary of Labor in order to shut down his establishments or dismiss employees with at least one year of service?
No. BP Blg. 130, approved on August 21, 1981, abolished the clearance requirement.
An employer may terminate an employment for any of the following causes
a. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work
b. Gross and habitual neglect by the employee of his duties
c. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representatives
d. Commission of a crime of offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives
e. Other causes analogous to the foregoing.
An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes:
- Serious insult by the employer or his representative on the honor and person of the employee
- Inhuman and unbearable treatment accorded the employee by the employer or his representative
- Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family
- Other causes analogous to any of the foregoing.
Preventive Suspension
A disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.
(Omnibus Rules Implementing the Labor Code, Book V, Rule XIV, secs. 3-4
SECTION 3. Preventive suspension. — The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.
SECTION 4. Period of suspension. — No preventive suspension shall last longer than 30 days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker.
Serious misconduct
Misconduct is defined as the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. In order for such to be considered serious, the misconduct must be of such grave and aggravated character, and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless be in connection with the employee’s work to constitute just cause for his separation.
How can an unsatisfactory rating be a just cause for dismissal?
An unsatisfactory rating can be a just cause for dismissal only if it amounts to gross and habitual neglect of duties. Poor or unsatisfactory performance of an employee does not necessarily mean that he is guilty of gross and habitual neglect of duties.
What constitutes analogous cases of just causes for termination of employment?
Analogous cases must be due to voluntary and/or willful act or omission of the employee. No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies.
Authorized causes for the termination of employment
(IRR-CD)
1. Installation of labor-saving device or automation
2. Redundancy
3. Retrenchment to prevent losses (downsizing)
4. Closure or cessation of operation of the establishment or undertaking (Art. 298)
5. Disease (art. 299)
Redundancy
Redundancy is a condition when the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise or superfluous. A position is redundant where it is superfluous, and superfluity of position/s may be the outcome of a number of factors such as over hiring of employees, decreased volume of business, or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise.
When may redundancy be a valid ground for termination of employment?
(SEA-FA)
1. There must be superfluous positions or services of employees
- The positions or services are in excess of what is reasonably demanded by the actual requirements of the enterprise to operate in an economical and efficient manner
- There must be good faith in abolishing redundant positions
- There must be fair and reasonable criteria in selecting the employees to be terminated; and
- There must be an adequate proof of redundancy such as but not limited to the new staffing pattern, feasibility studies/proposal, on the viability of the newly created positions, job description and the approval by the management of the restructuring.
Retrenchment
Retrenchment is an economic ground for dismissing employees and is resorted to primarily to avoid or minimize business losses. Likewise, retrenchment has been defined as the termination of employment initiated by the employer through no fault of the employees and without prejudice to the latter.
Last in, First out Rule
When there are 2 or more employees occupying the same position in the company affected by the retrenchment program, the last one employed will necessarily be the first one to go.
Applicable in retrenchment, redundancy, labor-saving devices, except when an employee volunteers to be separated from employment.
Retrenchment vs. Redundancy
(1) As to purpose
Retrenchment: employer reduces the number of its personnel In order to prevent further losses in his business operations
Redundancy: when for purposes of economy, a company decides to reorganize its departments by imposing on employees of one department the duties performed by the employees of the other other department, thus rendering unnecessary the job of the latter, the services of the employees whose functions are now being performed by the former.
(2) As to separation pay
Retrenchment: equivalent to 1 month pay or at least 1/2 month pay for every year of service, whichever is higher, a fraction of 6 months is considered as 1 whole year
Redundancy: Equivalent to at least 1 month pay or at least 1 month pay for ever year of service, whichever is higher, a fraction of 6 months is considered as 1 whole year
(3) As to employer’s business status
Retrenchment: an act of employer of dismissing employees because of losses in the operation of a business, lack of work, and considerable reduction and the volume of his business
Redundancy: even if the business is doing well, an employer can still validly dismiss an employee from the service due to redundancy if that employee’s position has already become in excess of what the employer’s enterprise requires.
When may disease be a valid ground for termination of employment?
- The employee must be suffering from any disease
- The continued employment of the employee is prohibited by law or prejudicial to his/her health as well as to the health of his/her co-employees; and
- There must be certification by a competent public health authority that the disease is incurable within a period of 6 months even with proper medical treatment
Note: The following issuances govern the subject diseases:
a. DO No. 102-10 provides that workers shall not be terminated if the basis is actual, perceived or suspected HIV status
b. DO No. 73-05 provides that workers who have or had tuberculosis shall be entitled to work as long as they are certified by the company’s accredited health provider as medically fit and shall be restored to work as soon as their illness is controlled
c. DO No. 5-10 provides that individuals found to be Hepatitis B positive shall not be terminated and should be able to work as long as medically fit.
Authorized-cause dismissal vs. Just-cause dismissal
(1) as to nature
AC: A form of terminating employer-employee relationship with a liability on the part of the employer to pay separation pay as mandated by law. It does not necessarily imply delinquency or culpability on the part of the employee. Instead, the dismissal process is initiated by the employer’s exercise of his management prerogative such as installation of labor-saving devices, closure of business or implementing a retrenchment program.
JC: The employee is dismissed for causes which are attributable to his fault or culpability.
(2) as to entitlement to separation pay
AC: if the ground is automation and redundancy, the amount of separation pay is equivalent to at least 1 month pay or at least 1 month pay for every year of service, whichever is higher, a fraction of 6 months is considered as 1 whole year.
If the ground is retrenchment, closure not due to serious business losses, and disease, the amount of separation pay is equivalent to at least 1 month pay or at least 1/2 month pay for every year of service, whichever is higher, a fraction of 6 months is considered as 1 whole year. If the ground is closure due to serious business losses, there is no separation pay. (Art. 298-299)
JC: As a rule, a dismissed employee is not entitled to separation pay.
What are the aspects of the two-fold process requirement in the termination of an employee?
- Substantive aspect, by which the dismissal must be for any of the just causes or authorized causes; and
- Procedural aspect, rudimentary requirements of due process, notice and hearing must be observed.
Twin Notice Requirement/Two-notice Rule under Procedural Due Process
In dismissing an employee, the employer has the burden of proving that the former worker has been served two notices:
1. One to apprise him of the particular acts or omissions for which his dismissal is sought; and
2. The other to inform him of his employer’s decision to dismiss him.
Note: The first notice must inform the employee outright that an investigation will be conducted on the charges particularized therein which, if proven, will result in his dismissal. Such notice must not only contain a plain statement of the charges of malfeasance or misfeasance but must categorically state the effect on his employment if the charges are proven to be true.
After serving the first notice, the employer should afford the employee ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative if he/she so desires. A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it.
DO No. 147-15, Sec. 5.1(b)
What are the rules in the interplay of substantial and procedural due process requirements?
- Legal if it was done observing both substantive and procedural due process
- Illegal if it was done without substantive due process although procedural due process was observed
- Illegal if it was done without observance of both substantive and procedural due process
- Legal if it was done with substantive due process but without procedural due process
Note: Failure to observe due process should not invalidate or render ineffectual the dismissal for just or authorized cause. Even so, the Court still deplored the employer’s violation of the employee’s right to statutory due process by directing the payment of indemnity in the form of nominal damages, the amount of which would be addressed to the sound discretion of the labor tribunal upon taking into account the relevant circumstances.
May a resignation be withdrawn?
Yes. Resignation is withdrawal even if the employee has called it irrevocable. However, once an employee resigns and his resignation is accepted, he no longer has any right to the job.
When is there constructive dismissal?
- When continued employment is rendered impossible, unreasonable, or unlikely
- When there is a demotion in rank and/or diminution in pay
- When a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee that it could foreclose any choice by him except to forego his continued employment; or
- When the suspension went beyond the maximum period allowed by law
Voluntary Resignation vs. Constructive Dismissal
(1) as to nature
VR: the act of an employee, who finds himself in a situation in which he believes that personal reasons cannot be sacrificed in favor of the exigency of the service thus, he has no choice but to dissociate himself from his employment.
CD: an act of clear discrimination, insensibility, or disdain by an employer that becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment
(2) as to test of validity
VR: to be valid, the employee’s intent to relinquish must concur with the overt act of relinquishment
CD: whether a reasonable person in the employee’s position would have been compelled to give up his position under the circumstances
(3) as to entitlement to relief
VR: not entitled to separation pay unless stipulated in an employment contract or CBA or sanctioned by established employer practice or policy
CD: entitled to reinstatement without loss of seniority and payment of back wages
What are the reliefs available to an employee upon finding that he was illegally dismissed?
- Reinstatement without loss of seniority rights and other privileges or separation pay if no longer viable
- Full back wages, inclusive of allowances and other benefits of their monetary equivalent computed from the time his compensation was withheld from him up to his actual reinstatement.
Kinds of reinstatement
- Actual reinstatement: the employee shall be admitted back to work
- Payroll reinstatement: the employee is merely reinstated in the payroll
What is the remedy if the position previously occupied is already filled up?
It would be unjustified for the employer to dismiss the person hired to replace the dismissed employee just to make available the position for the latter. Under the circumstance, the proper remedy would be to reinstate him to a substantially equivalent position.
Consequences of the violation of worker’s security of tenure
(BaReD)
- Full back wages, inclusive of allowances and other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement
- Reinstatement without loss of seniority rights and other privileges; and
- Recovery of moral and exemplary damages and attorney’s fees
Note: Moral damages may be awarded when the dismissal is attended by bad faith or fraud or constitutes an act oppressive to labor, or is done in a manner contrary to good morals, good customs, or public policy. Exemplary damages may be awarded if the dismissal is effected in a wanton, oppressive, or malevolent manner.
What are the penalties imposed upon the employer for failure to observe procedural process?
In cases of termination for just causes, the employee is entitled to payment of indemnity or nominal damages in a sum not more than P30,000.
In cases of termination for authorized causes, the employee is entitled to P50,000.
If the authorized cause is due to losses, the penalty to the employer who disregarded due process may be lighter than if the authorized cause has not relation to losses.
What are the two concepts of attorney’s fees?
- Ordinary concept: an attorney’s fee is the reasonable compensation paid by the client to his lawyer in exchange for the legal services rendered by the latter. The compensation is paid for the cost and/or results of the legal services, as agreed upon by the parties or as may be assessed by the courts
- Extraordinary concept: attorney’s fee is deemed an indemnity for damages ordered by the Court to be paid by the losing party to the winning party. In labor cases, attorney’s fees partake of the nature of an extraordinary award granted to the victorious party as an indemnity for damages. As a general rule, it is payable to the client, not to his counsel, unless the former agreed to give the amount to the latter as an addition to, or part of the counsel’s compensation.
Note: Article 111 of the Labor Code sanctions that award of attorney’s fees in cases of the unlawful withholding of wages, wherein the culpable party may be assessed attorney’s fees equivalent to 10% of the amount of wages recovered. The amount of attorney’s fees shall not exceed 10% of the total monetary award, and the fees may be deducted from the amount due the winning party.
Does the availment of the free legal services offered by the Public Attorney’s Office (PAO) prevent the award of attorney’s fees to employees?
No. The Supreme Court held that the employees are entitled to attorney’s fees, notwithstanding their availment of the free legal services offered by the PAO. The amount of attorney’s fees shall be awarded to the PAO as a token recompense to them for their provision of free legal services to litigants who have no means of hiring a private lawyer. The costs of the suit, attorney’s fees and contingent fees imposed upon the adversary of the PAO clients after a successful litigation shall be deposited in the National Treasury as trust fund and shall be disbursed for special allowances of authorized officials and lawyers of the PAO.
What are the kinds of retirement schemes?
- Compulsory and contributory in nature
- One set up by the agreement of the employer and employee in the CBA or other agreement between them; or
- One that is voluntarily given by the employer.
What is the age requirement for the purpose of retirement?
a. Optional retirement (60 years old)
b. Compulsory retirement (65 years old)
Note: The employee must have served in the establishment for at least 5 years.
Under a retirement plan, the employers and employees are given free hand to determine and agree upon the terms and conditions of retirement, even less than 60 years of age.
An underground or surface mining employee upon reaching the age of 50 years or more, but not beyond 60 years which is hereby declared the compulsory retirement age for both underground and surface mine workers, who has served at least 5 years as underground or surface mine worker may retire and shall be entitled to all the retirement benefits (Art. 302)
May an electric cooperative general manager be entitled to retirement benefits after being validly dismissed?
No. Dela Cruz’s removal from his position as general manager through NEA Resolution No. 79, entails the forfeiture of his retirement benefits. Section 3(a), Rule VII of the Rules of Procedure of the NEA on all administrative cases of Electric Cooperatives’ Board of Directors, officers and employees explicitly provides for the forfeiture of retirement benefits in case an officer is found guilty of grave offenses and penalized with removal from service.
What is the amount the retiring employee is entitled to under the Labor Code?
A retiring employee is entitled to retirement pay equivalent to at least 1/2 month salary for every year of service, a fraction of at least 6 months being considered as 1 whole year. (Art. 302). The term “one-half month salary” is equivalent to 22.5 days as it consists of the following:
- 15 days salary of the employee on his latest salary date
- Cash equivalent of not more than 5 days of service incentive leave
- One-twelfth (1/12) of 13th month pay due the employee or two and a half (2.5) days; and
- All other benefits that the employer and employee may agree upon that should be included in the computation of the employee’s retirement pay.
Grounds for cancellation of union registration
a. Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification;
b. Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers and the list of voters
c. Voluntary dissolution
(Art. 247)
Meaning of duty to bargain collectively
The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. (Art. 263)
When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least 60 days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.
Employees’ right to self-organization
It is the right of the employees to form, join, or assist in the formation of a labor organization of their own choosing for purposes of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for purposes of collective bargaining or for their mutual aid and protection. The State guarantees the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. (1987 Constitution, Art. XIII, Sec. 3, Par. 2)
Labor organization
It is any union or association of employees which exists in whole or in part for the purpose of collective bargaining with employers concerning terms and conditions of employment (Labor Code, Art. 219 (g))
Worker’s association
An association organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining.
Who are not eligible to join, form, or assist a labor organization?
(MIACHANGES)
- Managerial employees (Art. 255)
- Employees of international organizations with immunities
- Members of the Armed Force of the Philippines, including police officers, policemen, firemen and jail guards
- Confidential employees
- High-level or managerial government employees (EO No. 180, Sec.3)
- Aliens without valid working permits or aliens with valid working permits but are nationals of a country which do not allow Filipinos to exercise the right of self-organization and to join or assist labor organizations (Art. 284)
- Government employees, including GOCC with original charter
- Employees of cooperatives who are at the same time its members; and
- Subversives or those directly or indirectly engaged in subversive activities (Art. 250 (e))
Different ranks of managerial employees
- Top managers
- Middle managers
- First line managers
Top and middle managers have the authority to devise, implement and control strategic and operational policies while the task of First-Line Managers is simply to ensure that such policies are carried out by the rank-and-file employees of an organization.
Limitations as to the rights of supervisory employees
The supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist, or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank-and-file union and the supervisors’ union operating within the same establishment may join the same federation or national union. (Art. 255)
Confidential employees
Confidential employees are those who (1) assist or act in a confidential capacity, (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee—that is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations.
What is the legal basis for prohibiting confidential employees from exercising the right to self-organization?
The disqualification of confidential employees proceeds merely from the application of the Doctrine of Necessary Implication because what Article 255 of the Labor Code singles out as ineligible to join, assist or form any labor organization are managerial employees. By necessary implication, confidential employees are similarly disqualified. What is implied in a statute is as much part thereof as that which is expressed.
If there managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interest. The same rationale was applied to confidential employees who by the very nature of their functions, assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations.
Are confidential employees allowed to join unions?
Yes. As a GR, jurisprudence has extended the prohibition in joining unions to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records.
However, the SC explained that confidential rank-and-file employees may join the union of supervisors especially in a situation where the confidential employees are very few in numbers and are, by practice and tradition, identified with the supervisors in their roles as representatives of management vis-a-vis the rank-and-file employees. Such identity of interest has allowed their inclusion in the bargaining unit of supervisors for the purpose of collective bargaining.
Are employees of cooperatives allowed to form labor organizations?
It depends.
- Employees who are members of cooperative have NO right to form labor organizations. An employee of such a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his co-owners.
- Employees who are not members of cooperative may exercise rights to form labor organizations. Insofar as it involves cooperatives with employees who are not members or co-owners thereof, certainly such employees are entitled to exercise the rights of all workers to organization, collective bargaining, negotiations and others as are enshrined in the Constitution and existing laws of the country.
- Employees who are members-consumers of a cooperative are also NOT qualified to form, join or assist labor organizations for purposes of collective bargaining. The reason for withholding from employees of a cooperative who are members-co-owners the right to collective bargaining is clear: an owner cannot bargain with himself.
What are the requisites for an alien employee to be able to join or form a labor organization?
- He should have a valid working permit issued by DOLE
- He is a national of a country which grants the same or similar rights to Filipino workers or which has ratified either ILO Convention No. 87 or 98, as certified by the Philippine DFA
Who are not eligible to join, form or assist a labor organization in the public sector?
- High-level employees whose functions are normally considered as policy-making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank-and-file government employees
- Members of the AFP, including police officers, firemen, and jail guards
EO No. 180, Secs. 3-4
Limitations on the rights of government employees to organize
Government employees covered by EO No. 180 may organize, even unionize, and negotiate employment conditions not fixed by law but they cannot strike.
Commingling or mixture of membership
It is the inclusion as union members of employees outside the bargaining unit (Art. 256). It also refers to any mingling between supervisory and rank-and-file employees in its membership in a legitimate labor organization.
The inclusion as union members of employees outside the bargaining unit shall not be a ground for cancellation of the registration of the union, unless such mingling was brought about by misrepresentation, false statement, or fraud under Art. 239 of t e Labor Code. Said employees are automatically deemed removed from the list of membership of said union (Art. 256).
What is the effect of non-registration of a labor organization?
Non-registration does not mean it is “illegitimate.” It is simply unregistered and has no legal personality. It exists legally but does not possess the rights of a legitimate labor organization (LLLO).
What is the effect of a petition for cancellation of union registration?
A petition for cancellation of union registration shall not suspend the proceedings on certification of election nor shall it prevent the filing of a petition for certification election (Art. 246)
Grounds for the cancellation of Union Registration
(CoDE)
- Misrepresentation, false statement or fraud in connection with the adoption or ratification of the Constitution and by-laws or amendments thereto, the minutes of ratification and the list of members who took part in the ratification;
- Voluntary dissolution by the members; and
- Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters (Art. 247)
Can the registration of a legitimate labor organization be cancelled by the organization itself?
Yes, provided that:
1. At least 2/3 of its general membership votes, in a meeting duly called for that purpose, to dissolve the organization; and
2. An application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof (Art. 248)
Rules on Cancellation of Registration
- For legitimate individual labor unions, chartered locals, and worker’s associations, they must file with the Regional Director who has jurisdiction over the place where respondent principally operates (30 days to decide). It may be filed by any party-in-interest, if ground is: failure to comply with any of the requirements or violation of any provision.
- For federations, national or industry nations, and trade union centers, it shall be filed with the Bureau Director (30 days to decide). It may be filed by at least 30% of the members of the union or any member or members specially concerned if grounds are actions involving violations of Art. 249.
Methods to determine the bargaining representative
- Request for SEBA Certification (DO No. 40-03 as amended, rule VII)
A process whereby the DOLE recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit. - Certification election (DO No. 40-03 as amended, Rule I, Sec. 1(h))
Certification election refers to the process of determining through secret ballot the sole and exclusive bargaining or negotiation (DO No. 40-03, Rule I, Sec. 1(h)). It is the most democratic method of determining the employee’s choice of the bargaining representative whenever there is doubt whether a particular union represents the majority of the rank-and-file employees. - Consent election (DO No. 40-03 as amended, Rule I)
An election voluntarily agreed upon by the parties with or without the intervention of the DOLE, to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit.
Run-off election and re-run election may occur during certification or consent election.
SEBA Certification
A process whereby the DOLE recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit.
When is certification election mandatory on the part of the Bureau of Labor Relations?
- Upon the filing of a verified petition by a legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or local chapter which has been issued a charter certificate by the national union or federation (Art. 269); or
- Upon the filing of a petition by the employer when such employer is requested by the employees to bargain collectively where there is not existing certified collective bargaining agent (Art. 270)
Requisites for the conduct of a certification election in organized establishments (where there is already a union duly recognized or certified as bargaining representative)?
60-VC
1. That the Petition for Certification Election (PCE) questioning the majority status of the incumbent bargaining agent is filed before the DOLE within the 60-day freedom period;
2. That such PCE is verified; and
3. That the PCE is supported by the written consent of at least 25% of all the employees in the bargaining unit
Where there is no CBA, the petition may be filed any time except within 12 months of a previous election, if any.
What are the requirements for the conduct of a certification election in unorganized establishments?
In any establishment where there is no certified bargaining agent, hence, unorganized, the certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization (Art. 269)
Grounds for the dismissal of a petition for certification election
(DANCES-U-12)
1. Negotiation or Deadlock - where a duly certified union has commenced and sustained negotiations with the employer in accordance with Art. 260 of the Labor Code within 1-year period referred to in Section 14 of the IRR or where exists a bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout where an incumbent or certified bargaining agent is a party
- Absence of Employment Relationship - absence of ER-EE relationship between all members of the petitioning union and the establishment where the proposed bargaining unit is sought to be represented
- Non-appearance - non-appearance of the petitioner for 2 consecutive scheduled conferences before the Med-Arbiter despite notice
- No charter - failure of a local/chapter or national union/federation to submit a duly issued charter certificate upon the filing of the petition for certification election
- Existing CBA - the petition was filed before or after the freedom period of a duly registered collective bargaining agreement
- Lack of Support - in case of an organized establishment, failure to submit the 25% support requirement for the filing of the petition for certification election
- Unregistered Union - the petitioner is not listed in the Department’s registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality; or
- 12-Month Bar Rule - the petition was filed within 1 year from entry of voluntary recognition or a valid certification, consent or run-off election and no appeal on the results of the certification, consent, or run-off election is pending (DO No. 40-03, Rule VIII, Sec. 14)
Who are qualified to vote in a certification election?
All employees who are members of the appropriate bargaining unit 3 months prior to the filing of the petition/request are eligible to vote. Also considered qualified voter is an employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election.
Who shall be considered as the SEBA after the conduct of the certification election?
The union which obtained a majority of the valid votes cast shall be certified as the SEBA of all employees within 5 days from the day of election, provided no protest is recorded in the minutes of the election.
When the winning choice is a local chapter without a certificate of creation of chartered local, such chartered local shall submit its DOLE-issued certificate of creation within 5 days from conclusion of election.
Certification election vs. consent election
(1) as to purpose
Both are done to determine the SEBA of all the employees in an appropriate bargaining unit for the purpose of collective bargaining.
(2) as to intervention of DOLE
Certification Election: ordered by the DOLE
Consent Election: voluntarily agreed upon by the parties, with or without the intervention by the Department of Labor and Employment. If the consent election is done with the intervention of the DOLE such as where a petition for certification election had been filed, and upon the intercession of the Med-Arbiter, the parties agree to hold a consent election or where no petition for certification election was filed but the parties themselves agreed to hold a consent election with the intercession of the Regional Office the results thereof shall constitute a bar to the holding of a certification election for 1 year from the holding of such consent election.
Different rules which prevent the holding of a certification election
- Contract bar rule (DO No. 40-03, Rule XVII, Sec. 7)
The contract bar rules provides that whole a valid and registered CBA of a fixed duration is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent union during the 5-year term of the CBA except during the 60-day period immediately prior to the expiration of the CBA. - Deadlock bar rule
A petition for certification election can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. The principal purpose is to ensure stability in the relationship of the workers and the management.
A deadlock arises when there is an impasse, which presupposes reasonable effort at good faith bargaining which, despite notable intentions, did not conclude in an agreement between the parties.
- Negotiation bar rule (DO No. 40-03, Rule VIII, Sec. 14(e), as amended by DO No. 40-F-03)
A petition for certification election cannot be entertained if, before the filing of the petition for certification election, the duly recognized or certified union has commenced and sustained negotiations with the employer within 1 year from the date of a valid certification, consent, run-off, or re-run election, or from the date of issuance of SEBA Certification by the DOLE. - Certification year rule (DO No. 40-03, Rule VIII, Sec. 14(d), as amended by DO No. 40-F-03)
No petition for certification election may be filed within 1 year from the date of a valid certification, consent, or run-off election or from the date of entry of a voluntary recognition of the union by the employer.
Voluntary recognition has been replaced by Request for SEBA Certification.
- Statutory bar rule (Sec. 14(d), Rule VIII, Book V of the Rules Implementing the Labor Code)
The Statutory Bar Rule bars the filing of a petition for certification election within a period of 1 year from the date of a valid conduct of a certification, consent, run-off or re-run election where no appeal on the results thereof was made.
The 1-year statutory period for “statutory bar” begins to run on the actual date of the prior election, not from the date the SEBA was certified, which is the reckoning date for another rule — the “certification year bar.” If prior election results in a vote for “No Union,” the 1-year period runs from the date of that election.
Effect of failure of election
It shall not bar the filing of a Motion for the immediate holding of another certification or consent election within 6 months from the date of declaration of failure of election.
Double Majority Rule
The double majority rule provides that for there to be a valid election, the following must concur:
- Majority of the bargaining unit must have voted; and
- The winning union must have garnered majority of the valid votes cast
Re-Run vs. Run-off Election
(1) as to when conducted
Re-Run: it is conducted to break a tie between contending unions, including between “no union” and one of the unions, or after a failure of election has been declared by the election officer and/or affirmed by the mediator-arbiter
Run-Off: takes place between 2 unions which received the 2 highest number of votes in a certification election with 3 or more choices, where not one of the 2 unions obtained the majority of the valid votes cast (Art. 268)
(2) as to voting requirement
Re-Run: there must be a tie between contending unions
Run-Off: The total votes of the contending unions subject of the run-off election must be at least 50% of the total votes cast
(3) as to participation of “no-union” choice
Re-Run: the contending unions may include “no union”
Run-Off: “no union” shall no be choice in the run-off election.
When should a run-off election be held?
The Election Officer should motu proprio conduct a run-off election, upon presence of all requirements and no objections or challenges thereto, within 10 days from the close of the election proceeding between the labor unions receiving the 2 highest number of votes.
Requirement for a proper conduct of a run-off election
(EN-VoUCH)
1. Valid election took place because majority of the collective bargaining unit members voted (first majority)
2. Not one of the choices obtained the majority (50%+1) (second majority) of the valid votes cast
3. The total Votes for the unions are at least 50% of the votes cast
4. There is no Unresolved challenged votes or election protest which if sustained can materially alter the results
5. The said election presented at least 3 choices (union one, union two, and no union); and
6. The 2 unions which garnered the highest number of votes shall participate in the election.
“No union” shall not be a choice in the run-off election.
When should a re-run election be held?
Re-run election shall be held within 10 days from posting of the notice by the Election Officer who caused the same after scheduling the date of the re-run elections after motion for immediate holding of another certification election, filed within 6 months from date of declaration of election proceedings.
May an employer voluntarily recognize a labor organization as its exclusive bargaining agent?
No. It is an iron-clad rule that in an inter-union or certification/representation dispute, the employer is a mere bystander and should never be considered a party thereto; it has no concomitant right to oppose in any way the petition for certification election (PCE). Department Order No. 40-1-15, Series of 2015, has expressly repealed the entire set of Rules applicable to “Voluntary Recognition” in the Labor Code’s Implementing Rules on Book V and replaced it with the freshly-minted mode of securing the status of a SEBA through a “Request for SEBA Certification” or simply “Request.” The principle of the employer as a by-stander shall be strictly observed throughout the conduct of certification election. The employer shall not harass, intimidate, threaten or coerce employees before, during and after elections.
Who is an affiliate?
An affiliate is:
1. An independent union affiliated with a federation or national union; or
2. A chartered local which was subsequently granted an independent registration but did not disaffiliate from its mother federation or national union (D.O. No. 40-03, Rule 1, Sec. 1(a)).
What are the requirements of affiliation?
(RAR-MAN)
1. Report of affiliation of independently registered labor union; and
2. Attachments:
a. Resolution of the labor union’s board of directors approving the affiliation;
b. Minutes of the general membership meeting approving the affiliation;
c. The total number of Members comprising the labor union and the names of members who approved the affiliation;
d. The certificate of Affiliation issued by the federation in favor of the independently registered labor union; and
e. Written Notice to the employer concerned if the affiliating union is the incumbent bargaining agent (IRR of the LABOR CODE, Book V, Rule III,
Sec. 7, as amended by D.O. No. 40-03).
What is the relationship between an affiliate or chartered local and the national union?
The national union, or “mother union,” acting for and in behalf of its affiliate, has the status of an agent while the affiliate or local chapter remains the principal - the basic unit of the association free to serve the common interest of all its members, subject only to the constraints imposed by the constitution and bylaws of the association (Progressive Development Corp., v. Secretary of Labor and Employment, G.R. No. 96425, February 4, 1992).
When should a labor union disaffiliate from its mother union?
A labor union, as a general rule, may disaffiliate from the mother union to form an independent union only during the 60-day freedom period immedlately preceding the expiration of the CBA. However, even before the onset of the freedom period, disaffiliation may be carried out when there is a shift of allegiance on the part of the majority of the members of the union (ANGLO-KMU v. Samahan ng mga Manggagawang Nagkakaisa sa Manila Bay Spinning Mills, G.R. No. 118562, July 5, 1996).
What is the effect of disaffiliation?
- As to Union Dues - The federation will no longer receive the dues from the employer because without the said affiliation, the employer has no link to the mother union; and
- As to existing CBA - The CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA’s expiration date.
What is Equity of the Incumbent Rule?
Article 249 of the Labor Code provides that all existing federations and national unions which meet the qualifications of a legitimate labor organization and none of the grounds for cancellation shall continue to maintain their existing affiliates regardless of the nature of the industry and the location of the affiliates.
What is Substitutionary Doctrine?
The Substitutionary Doctrine only provides that the employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. And it is in the light of this that the phrase “said new agent would have to respect said contract” must be understood. It only means that the employees, thru their new bargaining agent, cannot renege on their collective bargaining contract, except of course to negotiate with management for the shortening thereof (Benguet Consolidated v. BCI Employees & Workers Union, L-24711, April 30, 1968).
What are the rights of labor organizations?
- To Undertake activities for the benefit of the organization and its members;
- To Sue and be sued;
- To be the Exclusive representative of all employees;
- To Represent union members;
- To be Furnished by employers of audited financial statements;
- To Own properties; and
- Exemption from taxes (LABOR CODE, Art. 251).
What is the nature of the relationship between the union and its members?
The relationship between the union and its members is that of principal and agent, the former being the agent while the latter, the principal. Their relationship is fiduciary in character, and arises out of two factors: one is the degree of dependence of the individual employee on the union organization; and the other, a corollary of the first, is the comprehensive power vested in the union with respect to the individual. The union may be considered but the agent of its members for the purpose of securing for them fair and just wages and good working conditions. As agent, the union is subject to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted to it (Heirs of Teodolo M. Cruz v. Court of Industrial Relations, G.R. No. L-23331-32, December 27, 1969).
What is a check-off?
A check-off is a method of deducting by the employer from the employee’s pay at prescribed periods the amounts due to the union for fees, fines, or assessments (A. L.
Ammen Transportation v. Bicol Transportation Employees Mutual Ass’n., G.R. No. L-4941, July 25, 1952). It assures continuous funding for the labor organization (Gabriel v.
Secretary of Labor, G.R. No. 115949, March 16, 2000).
What are union dues?
Union dues are the payments to meet the union’s general and current obligations. Payment must be regular, period, and uniform.
Agency fees
Agency fees are those reasonable fees assessed to employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement (LABOR CODE, Art. 259(e)).
Requisites:
- The employee is Part of the bargaining unit;
- He is Not a member of union; and
- He partook of the Benefits of the CBA (LABOR CODE, Art. 259(e)).
What is a Union Security clause?
It is a stipulation in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company (2 AZUCENA, p.
287).
Who may be excluded in a Union Security clause?
(MARCS)
- Employees already in the service and already Members of a union other than the SEBA at the time the union security agreement took effect (LABOR CODE, Art. 259(e))
- Employees excluded from the coverage of the union security clause per express mutual Agreement of the parties as stipulated in the CBA
- Religious objectors who are bona fide members of religious organizations which prohibit their members from joining labor unions on religious grounds
- Confidential employees who are excluded from the rank-and-file or supervisory bargaining unit; and
- Supervisory employees excluded from being members of the rank-and-file union and vice-versa (LABOR CODE, Art. 255).
What is a Collective Bargaining Agreement (CBA)?
Collective Bargaining Agreement (CBA) refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries (Omnibus Rules Implementing the Labor Code, Book V, Rule 1, Sec. 1U)).
Is the registration of the CBA a requisite for its validity?
No, registration of the CBA is not a requisite for its validity. The certification of the CBA by the BLR is not required to put a stamp of validity to such contract. Once it is duly entered into and signed by the parties, a CBA becomes effective as between the parties regardless of whether or not the same has been certified by the BLR.
What is freedom period?
Freedom period is the last 60 days of the 5th year of the CBA. A petition questioning the majority status of the incumbent bargaining agent or a petition for certification election may be entertained and a certification election may be conducted within the 60-day period immediately prior to the expiration of the CBA (LABOR CODE, Art 265).
What is freedom period?
Freedom period is the last 60 days of the 5th year of the CBA. A petition questioning the majority status of the incumbent bargaining agent or a petition for certification election may be entertained and a certification election may be conducted within the 60-day period immediately prior to the expiration of the CBA (LABOR CODE, Art 265).
What are the differences between 60-day notice period and 60-day freedom period?
(1) as to definition
N: The 60-day period prior to the expiration date of the CBA where a party serves a written notice to terminate or modify the CBA (Art. 264)
F: The 60-day period immediately before the date of expiry of the five-year term of the CBA, where a petition questioning the majority status of the incumbent bargaining agent may be entertained and a certification election may be conducted (Art. 265)
(2) as to nature
N: an economic event
F: a political event between rival unions and voters
(3) as to the participation of the employer
N: the employer is a party
F: the employer is not a party
Note: The renegotiation period of the CBA economic provisions occurs towards the end of the 2nd or 3 year of the CBA. The notice and freedom periods may coincide on the 5th year of the CBA.
What is the automatic renewal clause?
The automatic renewal clause provides that the CBA shall remain effective and enforceable even after the expiration of the period fixed by the parties as long as no new agreement is reached by them (LABOR CODE, Art. 264).
What is the Procedure in Bargaining?
The following procedures shall be observed in collective bargaining:
1. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice;
- Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request;
- If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;
- During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes;
- The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator (LABOR CODE, Art. 261).
May an employer be held guilty of ULP for failure to comply with the procedure in bargaining under the Labor Code?
Yes, an employer may be held guilty of ULP for failure to comply with such procedure. According to General Milling, the procedure in collective bargaining prescribed under the said provision is mandatory because of the basic interest of the State in ensuring lasting industrial peace. In Colegio de San Juan de Letran, petitioner school was declared to have violated Article 261 [250] and to have acted in bad faith because of its failure to make a timely reply to the proposals presented by the union. Its refusal to make a counter-proposal shows a lack of sincere desire to negotiate, rendering it guilty of ULP.
What are the economic or non-political terms and conditions of a CBA?
- Wage increases
- Allowances
- Premiums for Work on Rest Days, Holidays, etc.
- Meal, Rice, and other Subsidies
- Leave Benefits
- Union Leave
- Uniforms
- Union Office
- Promotions
- Bonuses
- Insurance
- Hospitalization
- Retirement
- Excursion
- Others which have monetary values
Are GOCC officials and employees entitled to benefits and increases without approval?
There are existing and subsequent laws prohibiting GOCCs from negotiating the CBAs economic provisions. GOCC officials and employees are not entitled to the benefits and increases without the approval of the President or the Governance Commission. A law must authorize the benefit before it may be granted to government officials or employees (Social Housing Employees Association, Inc. V. Social Housing Finance Corporation, G.R. No. 237729; October 14, 2020).
What are the non-economic or political terms and conditions of a CBA?
- Coverage or scope of the agreement
- Exclusions
- Rights and responsibilities of parties
- Union security arrangement
- Job security
- Management rights and prerogatives
- Company rules and regulations
- Discipline of employees
- Union dies and special assessments
- Agency fee
- Check-off
- Grievance machinery
- Voluntary arbitration
- Labor-Management council
- No strike, no lockout
- Waiver and completeness of agreement
- Duration and effectivity of agreement
What are the non-economic or political terms and conditions of a CBA?
- Coverage or scope of the agreement
- Exclusions
- Rights and responsibilities of parties
- Union security arrangement
- Job security
- Management rights and prerogatives
- Company rules and regulations
- Discipline of employees
- Union dies and special assessments
- Agency fee
- Check-off
- Grievance machinery
- Voluntary arbitration
- Labor-Management council
- No strike, no lockout
- Waiver and completeness of agreement
- Duration and effectivity of agreement
What are the 4 forms of ULP in Bargaining?
(BE-GF)
- Bad faith in bargaining (boulwarism), including failure or refusal to execute the CBA, if requested; and
- Evading the mandatory subjects of bargaining:
- Gross violation of the CBA; and
- Failure or refusal to meet and convene
Violations of the collective bargaining agreement, except those which are gross in character, shall no longer be treated as an unfair labor practice but as a grievance under the CBA (LABOR CODE, Art. 274).
Grievance machinery
Grievance machinery is a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their CBAs and those arising from the interpretation or enforcement of company personnel policies (LABOR CODE, Art. 273).
Mandatory provisions of the CBA
- Wages
- Hours of work
- Vacations and holidays
- Bonuses
- Pensions and retirement plans
- Seniority
- Transfer
- Lay-offs
- Employee workloads
- Work rules and regulations
- Rent of company houses
- Grievance machinery
- Voluntary arbitration
- No strike-no lockout clause
- Labor management council
- Provisions against Drug Use in Workplace
Employer’s duty to bargain is limited to mandatory bargaining subjects; as to other matters, he is free to bargain or not to bargain.
Unfair Labor Practice
ULP refers to acts that violate workers’ right to organize. The prohibited acts are related to workers’ right to self-organization and to the observance of a CBA.
Unfair Labor Practice
ULP refers to acts that violate workers’ right to organize. The prohibited acts are related to workers’ right to self-organization and to the observance of a CBA.
It may be committed by an employer or by a labor organization.
Differentiate the two aspects of ULP
(1) as to persons liable
Civil aspect: employer, labor organization, officers, agents, or representatives of the labor organization
Criminal aspect: agents and officers who have actually participated in, authorized or ratified ULP; and agents, representatives, members of the government board including ordinary members
(2) as to jurisdiction
Civil: labor arbiters
Criminal: regular courts
(3) as to quantum of proof
Civil: substantial evidence
Criminal: proof beyond reasonable doubt (subject to prosecution and punishment)
(4) as to prescriptive period
Civil: one year from the accrual of ULP
Criminal: one year from the accrual of the ULP, however, it will be suspended once the administrative case has been filed and would only continue running once the administrative case has attained finality.
What are the acts considered as ULP by employers?
DIV-PaVi-DisCo
- To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encoyrage or discourage membership in any labor organization (Discrimination);
- To interfere with, restrain or coerce employees.in the exercise of their rightto self-organization (Interference);
- To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs (Yellow
Dog Condition); - To pay negotation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute (Paid Negotiation);
- To violate the duty to bargain collectively as prescribed by the Labor Code (Violation of the duty to Bargain);
- To grossly violate a CBA (Gross Violation of CBA);
- To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under the Labor Code (Discrimination because of Testimony);
- To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization (Contracting Out); and
- To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters (Company-Domination of Union)
(LABOR CODE, Art. 259).
Can a criminal case for ULP precede the administrative case?
No. To prosecute ULP as criminal offense is not possible until after finality of judgment in the labor case, finding that respondent indeed committed ULP. But such judgment will not serve as evidence of ULP in the criminal case; the criminal charge must be proved independently from the labor case (LABOR CODE, Art. 258).
What are the ULPs of labor organizations?
(GRADE-V)
- To Grossly violate a collective bargaining agréement
- To Restrain of coerce employees in the exercise of the right to self-organization
However, labor organization shall have the right to prescribeits own rules with respect to the acquisition and retention of membership
- To Ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute
- To cause or attempt to cause an employer to Discriminate against anemployee, including discriminátion against an employee with respecf towhom membership in such organization has been denied or to terminateand employee on any ground other than, the usual terms and conditions under which membership or continuation of membership is made availableto other members
- To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an Exaction, for services which are not performed or not to be performed, including thedemand for fee for union negotiations; and
- To Violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees (LABOR CODE, Art. 260).
What are the ULPs of labor organizations?
(GRADE-V)
- To Grossly violate a collective bargaining agréement
- To Restrain of coerce employees in the exercise of the right to self-organization
However, labor organization shall have the right to prescribeits own rules with respect to the acquisition and retention of membership
- To Ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute
- To cause or attempt to cause an employer to Discriminate against anemployee, including discriminátion against an employee with respecf towhom membership in such organization has been denied or to terminateand employee on any ground other than, the usual terms and conditions under which membership or continuation of membership is made availableto other members
- To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an Exaction, for services which are not performed or not to be performed, including thedemand for fee for union negotiations; and
- To Violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees (LABOR CODE, Art. 260).
What is blue-sky bargaining?
Blue-sky bargaining is defined as making exaggerated or unreasonable proposals.
If the union requires exaggerated or unreasonable economic demands, it is prohibited from declaring or conducting a strike. The rationale behind this absolute probation is that the terms and conditions of employment in the government service are governed by Civil Service Law, in relation to the Constitution, rules and regulations (CONST. Art. XIII, Sec. 3; LABOR CODE, Art. 291).
Consequently, they cannot use strike to secure changes in such terms and conditions (IRR of E.O. No. 180, Rule III, Sec. 4).
Who may declare a strike or lockout?
Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair abor practices. The employer may declare a lockout in the same cases. In the absence of the former, any legitimate labor organization in the establishment may declare a strike but only on grounds of unfair labor practice (IRR of the LABOR CODE, Book V, Rule XIII, Sec. 2).
Who may declare a strike or lockout?
Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair abor practices. The employer may declare a lockout in the same cases. In the absence of the former, any legitimate labor organization in the establishment may declare a strike but only on grounds of unfair labor practice (IRR of the LABOR CODE, Book V, Rule XIII, Sec. 2).
Grounds for strike/lockouts
- A collective bargaining deadlock; or
- A ULP act of the employer or the labor organization (LABOR CODE, Art. 278).
What is a slowdown?
Slowdown is a “strike on installment plan.” It is also an activity by which workers, without a complete stoppage of work, retard production or their performance of duties and functions to compel the management to grant their demands. This is generally condemned as inherently illicit and unjustifiable (IBM v. NLRC, G.R. No. 91980, June 27, 1991).
When will a mass leave be considered a strike?
The phrase “mass leave” may refer to a simultaneous availment of authorized leave benefits by a large number of employees in a company. Art. 212(o) of the Labor Code defines a strike as “any temporary stoppage of work by the concerted action of employees as a result of any industrial on labor dispute. ““Concerted” is defined as “mutually contrived or planned” or “performed in unison” (Naranjo y. Biomedica Healthcare, G.R. No. 193789, September 19, 2012)
What are the procedural and substantive requirements of strike?
For a strike to be considered valid, the following must be complied with:
1. A strike must be based on a valid and factual ground, based on either:
a. ULP of the employer; or
b. Collective bargaining deadlock;
- Strike notice filed with NCMB: a. At least 15 days (cooling-off period) before intended day of the strike if the issues raised are ULPs; b. At least 30 days (cooling-off period) before the intended date if the issue involves bargaining deadlock; or c. In case of acts constituting union busting where the existence of the union is threatened, the 15-day cooling-off period shall not apply.
- A strike must be approved by a majority vote of the members of the union by secret ballot in a meeting called for that purpose;
Note: A notice must be served to the NCMB-DOLE at least 24 hours prior to the taking of strike or lockout vote by secret balloting, informing said office ofthe decision to conduct a strike or lockout vote, and the date, place and timethereof (IRR of the LABOR CODE, Book V, Rule XXII, Sec. 10, as amendedby D.O. No. 40-03).
- The strike vote shall be reported to the NCMB-DOLE Regional Branch at least7
days before the intended strike subject to cooling-off period; and
Note: It must be stressed that the requirements of cooling-off period and 7- day strike ban must both be complied with, although the labor union may take a strike vote and report the same within the statutory cooling-off period (NSFW v. Ovejera, G.R. No. 59743, May 31, 1982).
- The dispute must not be the subject of an assumption of jurisdiction by the President or the DOLE Secretary, a certification for compulsory arbitration, or submission to compulsory or voluntary arbitration nor a subject of a pending case involving the same grounds for the strike or lockout (NCMB Primer on Strikes, Picketing and Lockouts, Part II, Question 6, A.5).
Strike caused by Economic Strike (CBA deadlock) vs. Strike caused by ULP
(1) as to nature
EC: a voluntary strike because the employee will declare a strike to compel management to grant its demands
ULP: An involuntary strike; the labor organization is forced to go on strike because of the ULP committed against them by the employer
(2) as to who initiates
EC: the collective bargaining agent of the appropriate bargaining unit
ULP: Either collective bargaining agent OR the legitimate labor organization in behalf of its members
(3) as to cooling-off period
EC: 30 days from the filing of the notice of strike before the intended date of actual strike subject to the 7-day strike ban
ULP: 15 days from the filing of the notice of strike subject to the 7-day strike ban
(4) exception to the cooling-off period
EC: no exception; mandatory
ULP: cooling-off period may be dispensed with and the union may take immediate action in case of dismissal from employment of their officers duly elected in accordance with the union’s constitution and by-laws, which may constitute union busting where the existence of the union is threatened
(5) as to strike duration
EC: not entitled to said pay based on the principle that a “fair day’s wage accrue only for a fair day’s labor”
ULP: said pay may be awarded in the discretion of the authority deciding the case
Legal strike vs. Illegal strike
(1) as to nature
LS: one called for a valid purpose and conducted through means authorized by law
IS: one staged for a purpose not recognized by law or if for a valid purpose, it is conducted through means not sanctioned by law
(2) as to its effects on union members
LS: officers are not liable for resulting damages. They will not lose employment by reason thereof
IS: any union officer who knowingly participates in an illegal strike and knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status
(3) as to its effects to the members of the union
LS: they are not civilly liable for participating in a valid strike
IS: when he commits illegal acts during a strike that he may be declared to have lost employment status
What kind of strikes are covered by the no-strike no lock-out clause?
A no-strike no-lock-out clause in a CBA is applicable only to economic strikes, i.e., those which is to force wage or other concessions from the employer which he is not required by law to grant. Corollary, if the strike is founded on an ULP of the employer, a strike declared by the union cannot be considered a violation of the no-strike no lock-out clause (Master Iron Labor Union v. NLRC, G.R. No. 92009, February 17, 1993).
What is Good Faith Strike Doctrine?
Under the Good Faith Strike Doctrine, strike may be considered legal where the union believed that the company committed ULP and the circumstances warranted such belief in good faith, although subsequently such allegations of ULP are found out as not true. A strike staged by the workers, inspired by good faith, does not automatically make the same illegal (Bacus v. Ople, G.R. No. L-56856, October 23, 1984).
What is the Doctrine of Means and Purposes?
A strike is legal when lawful means concur with lawful purpose (GOP-CCP Workers V. CIR, G.R. No. L-33015, September 10, 1979). Lawful purpose means that to validly recognize a strike, it must be for the purpose of collective bargaining and other mutual aid or protection. There are two strikeable grounds: collective bargaining deadlock and employer’s ULP. It also has to be pursued within the bounds of law; the limits are among those prohibited activities, i.e., no person engaged in picketing shall commit any act of Miolence, coercion or intimidation, or obstruct the free ingress or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares (LABOR CODE, Art. 279(e)).
In what instances are striking workers entitled to backwages?
Striking workers are not entitled to compensation during the period of strike under the principle of “no work no pay”. However, there are recognized exceptions to the “no backwages rule,” to wit:
- When the employees were illegally locked to thus compel them to stage a strike;
- When the employer is guilty of the grossest form of ULP;
- When the employer committed discrimination in the rehiring of strikers refusing to readmit those against whom there were pending criminal cases while admitting non-strikers who were also criminally charged in court; or
- When the workers who staged a voluntary ULP strike offered to return to work unconditionally but the employer refused to reinstate them (Philippine Diamond Hotel & Resort, Inc., v. Manila Diamond Hotel Employees Union, G.R. No. 158075, June 30, 2006).
How does a strike become illegal under the Means Employed Test?
Under the Means Employed Test, a strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which is widespread, pervasive and adopted as a matter of policy and not merely violence which is sporadic which normally occurs in a strike area (Shell Oil Workers’ Union v. Shell Company of the PHL, G.R. No. L-28607, May 31, 1971).
What are the prohibited activities during strike?
(FAOB-PuV)
1. No labor organization or employer shall declare a strike or lockout without first having bargained collectively or without First having filed the notice required or without the necessary strike or lockout vote first having been obtained and reported to the DOLE (LABOR CODE, Art. 279(a));
- No strike or lockout shall be declared after Assumption of jurisdiction by the President or the Secretary of Labor or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout (LABOR CODE, Art. 279(a));
- No person shall Obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference (LABOR CODE, Art. 279(b));
- No employer shall use or employ any strike-Breaker, nor shall any person be employed as a strike-breaker (LABOR CODE, Art. 279(c));
- No Public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police (now the Philippine National Police), or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, that nothing herein shall be interpreted to prevent any public officers from taking any measure necessary to: a. Maintain peace and order; b. Protect life and property; and/or c. Enforce the law and legal order (LABOR CODE, Art. 279(d));
- No person engaged in picketing shall commit any act of Violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares (LABOR CODE, Art. 279(e)).
What is the liability of union officers and members for illegal strike and illegal acts committed during strike?
A strike staged without compliance with the requirements of Art. 278 of the Labor Code is illegal and may cause the termination of the employment of the participating union officers and members. However, the liablity for the illegal strike is individual, not collective. To warrant the termination of an officer of the labor organization on that basis, the employer must show that the officer knowingly participated in the illegal strike. An ordinary striking employee cannot be terminated based solely on his participation in the illegal strike, for the employer must further show that the employee committed illegal acts during the strike (he Hong Kong and Shanghai Banking Corp. Employees Union v. NLRC, G.R. No. 156635, January 11 2016).
What is picketing?
Picketing is a concerted activity of workers consisting in peacefully marching to and from before an establishment involved in a labor dispute generally accompanied by the carrying and display of signs, placards and banners intended to inform the public aboutthe dispute (llaw at Buklod ng Manggagawa v. NLRC, G.R. No. 91980, June 27, 1995).
What is a lockout?
Lockout means the temporary refusal of an employer to furnish work as a result of and industrial or labor dispute (LABOR CODE, Art. 212(p), as amended by R.A. No. 6715, Sec. 4). It is a term commonly used to express an employer’s act of excluding from his plant union members hitherto employed by him. The act may affect all or less than all of the employee-union members. In the sense in which it is universally used, is an act directed at the union itself rather than at the individual employer-members of the union.
What are the grounds for lockouts?
The following are the grounds for lockouts:
1. A collective bargaining deadlock (LABOR CODE, Art. 278 (b)); and
2. An unfair labor practice act of the employee (LABOR CODE, Art. 278 (c)).
When is a lockout deemed lawful and unlawful?
A Lockout is deemed lawful when: (WUT)
- In response to a Whipsaw strike;
- In response to an Unprotected strike or walkout; or
- In anticipation of a Threatened strike
On the other hand, a Lockout is deemed unlawful when: (BAD)
- It is to avoid Bargaining;
- It is to Aid a particular union by preventing further organizational work of its rival, or to coerce the employees to join the favored union; or when
- It is to Discourage and dissipate membership in a labor organization or otherwise kill the union.
What are the procedural and substantive requirements of a lockout?
For a lockout be considered valid, the following must be complied with:
- A lockout must be baséd on a valid and factual ground, based on either:
a. ULP of the employer; or:
b. Collective Bargaining Deadlock; - Lockout notice filed with NCMB:
a. Atleast 15 days before intended day of the strike if the issues raised are ULPs;on
b. At least 30 days before the intended date if the issue involves bargaining deadlock; - A lockout must be approved by a majority vote of the members of the Board of Directors of the Corporation or Association on of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose;
- The lockout vote shall be reported to the NCMB-DOLE Regional Branch at least 7 days before the intended strike subject to cooling-off period; and
- The dispute must not be the subject of an assumption of jurisdiction by the President or the DOLE Secretary, a certification for compulsory arbitration, or submission to compulsory or voluntary arbitration nor a subject of a pending case involving the same grounds for the strike or lockout (NCMB Primer on Strikes, Picketing and Lockouts, Part II, Question 6, A.5).
What are the reliefs available to illegally locked-out employees?
In case of illegal lockout, any worker whose employment has been terminated as a consequence thereof shall be reinstated with payment of full backwages and other benefits (LABOR CODE, Art. 279(a)).
What is the power of the Secretary of Labor to assume jurisdiction in cases of strikes and lockouts?
When in the opinion of the DOLE Secretary, the labor dispute causes or will likely cause a strike or lockout in an industry indispensable to the national interest, he is empowered to either:
1. Assume jurisdiction over the labor dispute and decide it himself; or
2. Certify it to NLRC for compulsory arbitration, in which case, the NLRC shall hear and decide it (LABOR CODE, Art. 278(g)).
The Secretary may assume jurisdiction over the dispute provided that any of the following conditions is present:
1. Both parties have requested the Secretary to assume jurisdiction over the labor dispute; or
2. After a conference called by the Office of the Secretary on the propriety of its issuance, motu proprio or upon a request or petition by either party to the labor dispute (D.O. No. 40-03, as amended by D.O. No. 40-G-03, Rule XXII, Sec. 15).
What are the issues that the Secretary of Labor can resolve when he/she assumes jurisdiction over a labor dispute?
The issues that the Secretary of Labor can resolve when he/she assumes jurisdiction over a labor dispute are the following:
1. Issues submitted to the Secretary for resolution and such issues involved in the labor dispute (St. Scholastica’s College v. Torres, G.R. No. 100158, June 2, 1992); and
- The Secretary of Labor may subsume pending labor cases before Labor Arbiters which are involved in the dispute and decide even issues falling under the exclusive and original jurisdiction of Labor Arbiters such as legality and illegality of strike (International Pharmaceuticals v. Secretary of Labor, G.R. No. 92891, January 9, 1992).
What is the effect of defiance of assumption or certification orders?
Non-compliance with the certification order of the DOLE Secretary shall be considered as an illegal act committed in the course of the strikeor lockout, and shall authorize the Commission to enforce the same under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and/or other affirmative relief, even criminal prosecution against the liable parties (2011 NLRC RULES OF PROCEDURE, Rule VIII, Sec. 4).
Who are authorized to issue injunctions or restraining orders?
(NPS)
The following are authorized to issue injunctions or restraining orders:
1. NLRC (LABOR CODE, Art. 225);
- President - In case of labor dispute in industries which are indispensable to national interest (LABOR CODE, Art. 278 (g)); and
- DOLE Secretary - In case of labor dispute in industries which are indispensable to national interest, the Secretary may assume jurisdiction over the dispute or certify the same to the NRC for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike. If one has already taken place, all striking or locked out employees shall immediately return to work and the employer shall immediately re-admit employees and resume operations (LABOR CODE, Art. 278 (g)).
Note: The Labor Arbiters are not authorized to issue injunctions/TROs.
Can regular courts issue injunctions?
Regular courts are without authority to issue injunction orders in cases involving or originating from labor disputes even if the complaint was filed by non-striking employees and the employer was made a respondent. To hold otherwise is to sanction splitting of jurisdiction which is obnoxious te the orderly administration of justice (Ando v. Campo, G.R. No. 184007, February 16, 2011).
As an exception, a regular court may issue injunction to protect the interest of neutral employers in common situs picketing, provided the injunction does not in any way curtail the right of the union to strike and/or picket (Republic Flour Mill Workers Ass’n. v. Reyes, G.R. No. L-21378, November 28, 1966).
Note: In cases of strikes/picketing, third parties or innocent bystanders may secure a court (regular court) injunction to protect their rights (PAFLU v. Cloribel, G.R. No. L-25878, March 28, 1969).
What are the other modes of settling in case of strikes and lockouts?
- Improved Offer Balloting - In an effort to settle a strike, DOLE shall conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work, and the employer shall thereupon readmit them upon the signing of the agreement;
- Decreased Offer Balloting - In case of a lockout, the DOLE shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work, and the employer shall thereupon readmit them upon the signing of the agreement (LABOR CODE, Art. 280).
What is the importance of employer-employee relationship with respect to jurisdiction?
An employer-employee relationship is an indispensable jurisdictional requisite. The jurisdiction of Labor Arbiters and the NLRC under Article 217 of the Labor Code is limited to disputes arising from an employer-employee relationship which can only be resolved by reference to the Labor Code, other labor statutes or their collective bargaining agreement (Villamaria v. CA, G.R. No. 165881, April 19, 2006).
What is the reasonable causal connection rule?
Under this rule, if there is a reasonable causal connection between the claim asserted and the employer-employee relations, then the case is within the jurisdiction of our labor courts. In the absence of such nexus, it is the regular courts that have jurisdiction (San Miguel Corp., v. Ectuban, G.R. No. 127639, December 3, 1999).
What is the Single Entry Approach (SEnA)?
SEnA refers to the administrative appreach to provide an accessible, speedy, impartial, and inexpensive settlement procedure of all issues arising from labor and employment through a 30-day mandatory conciliation mediation (Single Entry Approach Implementing Rules and Regulations, D.O. NO. 151-16, series of 2016, RULE 1, Sec. 4(k) [hereinafter SENARR),
What are the cases covered by the SEnA?
As a general rule, all issues arising from labor and employment shall be subject to the 30-day mandatory conciliation-mediation EXCEPT: (NCEV2O)
1. Notices of strike/lockout or preventive mediation cases with the NCMB;
- Issues arising from the interpretation.and implementation of the CBA, and those arising from the interprefation and enforcement of company personnel policies which should be processed through the grievance machinery;
- Applications for Exemption from wage orders with the National Wages and Productivity Commission (NWPC);
- Issues involving Violations of: (AEP-PEA-CRPLTO)
a. Alien Employment Permit (AEP):
b. Private Employment Agency (REA) authority or license;
c. Working Child Permit (WCP) and violations of R.A. No. 9231 (Anti-Child Labor Law);
d. Registration under D.O. No. 18-A, series of 2011;
e. Professional License issued by the PRC and violation of the Professional Code of Conduct;
f. TESDA Accreditations; and
g. Other Similar Permits, licenses or registrations issued by the DOLE or its attached agencies; - Violations of POEA Rules and Regulations involving: (SDIR-Not)
a. Serious offenses and offenses penalized with cancellation of license;
b. Disciplinary actions against overseas workers/seafarers which are considered serious offenses, or which carry the penalty of delisting from the POEA registry at first offense;
c. Complaints Initiated by the POEA;
d. Complaints against an agency whose license is Revoked, cancelled, expired or otherwise delisted; and
e. Complaints categorized under the POEA Rules and Regulations as Not subject to SEnA; and - Issues on Occupational Safety and Health Standards involving imminent danger situation, dangerous occurrences/disabling injury, and absence of personal protective equipment (R.A.No. 10396, Sec. 1; LABOR CODE Art. 234; SENA IRR, RULE I, Sec. 3).
What is the purpose of the conciliation-mediation process?
(CNE-OPM)
The Single Entry Assistance Desk Officer (SEADO), in the conduct of the conciliation-mediation, shall:
1. Clarify the issues, validate positions and determine the underlying issues;
- Narrow down the disagreements and broaden areas for settlement;
- Encourage parties to generate options and enterinto stipulations;
- Offer proposal and options toward mutually acceptable solutions and voluntary settlement;
- Prepare the settlement agreement in consultation with the parties; and
- Monitor the voluntary and faithful compliance of the settlement agreement (SENA IRR, Rule IV, Sec. 3).
Labor Arbiters shall have original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural:
(a) Unfair labor practice cases;
(b) Termination disputes;
(c) If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment;
(d) Claims for actual, moral, exemplary and other forms of damages arising from employer employee relations;
(e) Cases arising from any violation of Article 264 (now 279) of the Labor Code, as amended, including questions involving the legality of strikes and lockouts;
(f) Except claims for employees compensation not included in the next succeeding paragraph, social security, medicare, and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding Five Thousand Pesos (P5,000.00), whether or not accompanied with a claim for reinstatement;
(g) Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to Republic Act No. 6727;
(h) Enforcement of compromise agreements when there is non compliance by any of the parties pursuant to Article 227 (now 233) of the Labor Code, as amended;
(i) Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages as provided by Section 10 of RA 8042, as amended by RA 10022; and
(j) Other cases as may be provided by law.
Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration, as may be provided in said agreements.
Periods of appeal
Decisions, awards, or orders of the Labor Arbiter shall be final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt thereof; and in case of decisions or resolutions of the Regional Director of the Department of Labor and Employment pursuant to Article 129 of the Labor Code, within five (5) calendar days from receipt thereof. If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday or holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday or holiday.
No motion or request for extension of the period within which to perfect an appeal shall be allowed.
Grounds for appeal
The appeal may be entertained only on any of the following grounds:
(a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Regional Director;
(b) If the decision, award or order was secured through fraud or coercion, including graft and corruption;
(c) If made purely on questions of law; and/or
(d) If serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the appellant.
Inter/intra-union disputes shall include:
a) cancellation of registration of a labor organization filed by its members or by another labor organization;
b) conduct of election of union and workers’ association officers/nullification of election of union and workers’ association officers;
c) audit/accounts examination of union or workers’ association funds;
d) de-registration of collective bargaining agreements;
e) validity/invalidity of union affiliation or disaffiliation;
f) validity/invalidity of acceptance/non-acceptance for union membership;
g) validity/invalidity of impeachment/expulsion of union and workers association officers and members;
h) validity/invalidity of voluntary recognition;
i) opposition to application for union and CBA registration;
j) violations of or disagreements over any provision in a union or workers’ association constitution and by-laws;
k) disagreements over chartering or registration of labor organizations and collective bargaining agreements;
l) violations of the rights and conditions of union or workers’ association membership;
m) violations of the rights of legitimate labor organizations, except interpretation of collective bargaining agreements;
n) such other disputes or conflicts involving the rights to self-organization, union membership and collective bargaining —
(1) between and among legitimate labor organizations;
(2) between and among members of a union or workers’ association.
BLR Jurisdiction
Inter/Intra-Union Disputes and other related labor relations disputes
Other related labor relations disputes shall include any conflict between a labor union and the employer or any individual, entity or group that is not a labor organization or workers’ association. This includes: (1) cancellation of registration of unions and workers associations; and (2) a petition for interpleader.
Discuss the flow of procedure from the Labor Arbiter to Supreme Court
- Decision/Order of the Labor Arbiter
- Appeal to NLRC within 10 days from receipt of the decision/order
- Petition for certiorari in CA (Rule 65) within 60 days from notice of judgment, order or resolution
- Appeal by certiorari in the SC (Rule 45) within 15 days from notice of the judgment or final order or resolution
What are the differences between Article 128 and Article 129 of the Labor Code?
(1) as to nature of power
128: visitorial and enforcement powers
129: adjudicatory power
(2) as to who exercises the power
128: Secretary of Labor or his duly authorized representative who may or may not be a Regional Director
129: Regional Director or any duly authorized hearing officer of DOLE
(3) as to existence of Er-Ee relationship
128: requires existence of Er-Ee relationship
129: Er-Ee relationship is not necessary since it should not include a claim for reinstatement
(4) as to how initiated
128: enforcement power is an offshoot of visitorial power
129: sworn complaint filed by interested party
(5) as to limitation as to amount
128: no limit
129: aggregate claim of each complainant does not exceed P5,000
(6) as to remedy
128: appeal to Sec. of Labor, within 10 calendar days; decision may be elevated to the CA through certiorari
129: appeal to NLRC, within 5 calendar days
What are the differences between the visitorial powers under Article 37 and Article 289?
(1) as to purpose
37: to inspect the premises, books of accounts and records of any covered person or entity, to require it to submit reports regularly on prescribed forms, and act on violation of any provisions in relation to recruitment and placement of workers for both local and overseas employment
289: to inquire into the financial activities of legitimate labor organizations
(2) as to when may be exercised
37: at any time
289: upon the filing of a complaint under oath and duly supported by the written consent of at least 20% of the total membership of the labor organization concerned
Note: such inquiry or examination shall not be conducted during the 60-day freedom period nor within the 30 days immediately preceding the date of election of union officials
It is the DOLE Regional Directors, as the DOLE Secretary’s duly authorized representatives, who have the original jurisdiction to exercise the visitorial powers under Articles 37 and 289. The Role of the DOLE Secretary is appellate in nature. Art. 37 refers to the Secretary of Labor’s visitorial powers with regard to local employment only.
What is a labor dispute?
Labor dispute includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee (LABOR CODE as amended, Art. 219).
What are the cases falling under the exclusive and original jurisdiction of the Labor Arbiter?
(TURDOS-5000-CLAD)
The Labor Arbiters (LA) shall have original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural:
- Termination disputes;
- ULP cases;
- If accompanied with a claim for Reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment;
- Claims for actual, moral, exemplary, and other forms of Damages arising from employer-employee relations;
- Monetary claims of Overseas contract workers arising from employer-employee relationship or by virtue of any law or contract, including claims fordeath and disability benefits and for actual, moral, exemplary and other forms of damages as provided by Section 10 of R.A. No. 8042 amended by R.A. No. 10022;
Note: In order for the LA to assume jurisdiction over the money claim, the OFW must have a certification from POEA (PNB.v. Cabansag, G.R. No. 157010, June 21, 2005).
- Cases arising from any Violation of Article 279 of the Labor Code, including questions involving the legality of Strikes and lockouts;
- Except claims for Employment Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding P5,000 regardless of whether accompanied with a claim for reinstatement;
- Contested cases under the exception clause in Article 128(b) of the Labor Code;
Note: The jurisdiction of the LA is found in the exception clause, of Article 128 (b) where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection (E.O. No. 111 (1986)
- Other cases as may be provided by Law. (2011 NLRC PROCEDURE OF PROCEDURE, Rule V, Sec. 1): 1
- Enforcement of compromise Agreements when there is non-compliance by any of the parties pursuant to Article 233 (non-compliance, or if settlement is obtained through fraud, misrepresentation, or coercion) of the Labor Code, as amended; and
- Wage Distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to R.A. No. 6727;
Note: Not every controversy or money claim by an employee against the employer or vice-versa is within the exclusive jurisdiction of the labor arbiter. Actions between employees and employer where the employer-employee relationship is merely incidental and the cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court (Halagueña v. PAL, G.R. No. 172013, October 2, 2009).
What are the exceptions to the original and exclusive jurisdiction of the LA?
The following are the exceptions:
1. When in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the DOLE Secretary may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration (LABORCODE, Art. 278(g));
2. The President is not precluded from determining the industries that are indispensable to the national interest, and from intervening at any time assuming jurisdiction over such any labor dispute (LABOR CODE, Art. 278(g));
3. When the NLRC exercises its power of compulsory arbitration over similar national interest cases that are certified to it by the DOLE Secretary pursuant to the exercise by the latter of his certification power under the same Article 278(g); and
4. When upon agreement of the parties, the Voluntary Arbitrator or the panel of Voluntary Arbitrators shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks (LABOR CODE, Art. 275).
Note: This ruling is NOT within the coverage of the 2024 Bar Syllabus, but it is worth noting. A complaint charging the employer for non-remittance of collected union member dues by virtue of a check-off provision in the CBA, does not fall under “intra-union disputes” over which the Mediator-Arbiter (Med-Arbiter) may exercise jurisdiction. The charge constitutes an unfair labor practice on the part of the employer, being in the nature of interference, as it curtails the employees’ right to self-organization. Hence, it is the Labor Arbiter who has jurisdiction to settle the controversy (South Cotabato Integrated Port Services, Inc. v. Montefalco, G.R. Not 285569, December 13, 2013).
Who has jurisdiction over illegal dismissal cases?
(LV-DN)
1. Labor Arbiters (LABOR CODE, Art. 224 (a));
- Voluntary Arbitrators or panel of Voluntary Arbitrators upon agreement of the parties (LABOR CODE, Arts. 274 & 275);
- DOLE Secretary, in the exercise of his assumption power in national interest cases (LABOR CODE, Art. 278 (g)); or
- The NLRC, in national interest cases certified to it for compulsory arbitration by the DOLE Secretary (LABOR CODE, Art. 278 (g)).
Where a conflict of jurisdiction exists, who among the LA and Voluntary Arbitrator (VA) may take cognizance of the case?
In case of conflict of jurisdiction between LA and VA over termination cases, the LA’s jurisdiction shall prevail because:
- A termination dispute is not a grievable issue that must be submitted to the grievance machinery or voluntary arbitration for adjudication (Landtex Industries V. CA, G.R. No. 150278, August 9, 2007);
- Where the dispute is just in the interpretation, implementation or enforcement stage, it may be referred to the grievance machinery set up in the CBA or brought to voluntary arbitration. But, where there was already actual termination, with alleged violation of the employees’ rights, it is already cognizable by the labor arbiter (Atlas Farms v. NLRC, G.R. No. 142244, November 18,2002);
- Where the CBA provision on grievance machinery does not expressly state that termination disputes are included in the ambit of what may be brought before the company’s grievance machinery, the original and exclusive jurisdiction of the Labor Arbiter over termination disputes is not removed (Negros Metal v. Lamayo, G.R. No. 186557, August 25, 2010);
- Article 224 is deemed written into the CBA being an intrinsic part thereof (2 AZUCENA, p. 448):
- Article 292(b) grants the right to the dismissed employee to contest his termination with the LA (LABOR CODE, Art. 292(b));
- Estoppel confers jurisdiction on LA (Ocheda.v. CA, G.R. No. 85517, October16)
- Failure of the employer to activate grievance machinery confers jurisdiction on LA (Atlas Farms v. NLRC, G.R. No. 142244, November 18, 2002).
When is a dispute considered an intra-corporate controversy under the relationship test?
A dispute is considered an intra-corporate controversy under the relationship test when the relationship between or among the disagreeing parties is any one of the following:
- Between the corporation, partnership, or association and the public;
- Between the corporation, partnership, or association and its stockholders, partners, members, or officers;
- Between the corporation, partnership, or association and the State as far as its franchise, permit or license to operate is concerned; and
- Among the stockholders, partners, or associates themselves (Philippine Communications Satellite Corporation v. Sandiganbayan, 5th Division, G.R.No. 203023, 17 June 2015).
Who has jurisdiction in dismissal cases of directors and corporate officers?
The dismissal of a director or corporate officer is an intra-corporate dispute cognizable by the RTC and not by the LA. A corporate officer’s dismissal is always a corporate act, or an intra-corporate controversy which arises between a stockholder and a corporation (Locsin v. Nissan Lease PHL, G.R. No. 185567, October 20, 2010).
Note: Prior to its amendment, Section 5(c) of Presidential Decree No. 902-A (PD 902-A) provided that intra-corporate disputes fall within the jurisdiction of the Securities and Exchange Commission. Subsection 5.2, Section 5 of Republic Act No. 8799, which took effect on 8 August 2000, transferred to RCS the SEC’s jurisdiction over all cases listed in Section 5 of PD 902-A (Logsin-v. Nissan Lease PHL,G. R. No, 185567, October 20, 2010).
What are the classifications of money claims falling under the jurisdiction of the LA?
(ARO)
Money claims falling within the original and exclusive jurisdiction of the LA may
- Any money claim, regardless of amount, accompanied with a claim of reinstatement (2011 NLRC RULES OF PROCEDURE, Rule V, Sec. 1):
Note: This falls within the jurisdiction of the LA since it is principally a termination dispute.
The situation presupposed that it proceeds from a termination case, it being accompanied with a claim for reinstatement (CHAN REVIEWER, supra at 841).
- Any money claim, regardless of whether accompanied with a claim for Reinstatement, exceeding the amount of P5,000 per claimant (LABOR CODE, Art. 129); and
Note: The claim does not necessarily arise from or involve a termination case, but because the amount exceeds P5,000, it falls within the jurisdiction of the LA (CHAN REVIEWER, supra at 840-841).
- Monetary claims of Overseas contract workers arising from employer-employee relations, or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary, and other forms of damages as provided by Section 10 of R.A. No. 8042 amended by R.A. No. 10022 (2011 NLRC RULES OFPROCEDURE, Rule V, Sec. 1)
Note: The issue of deduction for tax purposes is intertwined with the main issue of whether the benefits have been fully paid. It is, therefore, a money claim arising from an employer-employee relationship, which falls within the jurisdiction of the Labor Arbiter (Santos v. Servier PHL, G.R. No. 166377, November 28, 2008).
How do we reconcile the grants of jurisdiction vested under Article 224 and 274 of the Labor Code for money claims?
In reconciling the grants of jurisdiction vested under Articles 274 and 224 of the Labor Code, the Court has pronounced that the original and exclusive jurisdiction of the Labor Arbiter under Article 224(c) for money claims is limited only to those arising from statutes or contracts other than a CBA. The Voluntary Arbitrator or Panel of Voluntary Arbitrators shall have original and exclusive jurisdiction over money claims arising from the interpretation or implementation of the CBA and, those arising from the interpretation or enforcement of company personnel policies, under Article 274 (Del Monte v. Saldivar, G.R. No. 158620, October 11, 2006).
How may the jurisdiction of the Labor Arbiter vis-à-vis that jurisdiction of the Regional Director be summarized?
- If the claim involves labor standards benefits mandated by the Labor Code or other labor legislation regardless of the amount prayed for and provided that there is an existing employer- employee relationship, jurisdiction is with the DOLE regardless of whether the action was brought about by the filing of a complaint or not;
- If the claim involves labor standards benefits mandated by the Labor Code or other labor legislation regardless of the amount prayed for and there is no existing employer-employee relationship or the claim is coupled with a prayer for reinstatement, jurisdiction is with the LA/NLRC (Del Monte Land Transport Bus, Co. v. Armenta, G.R. No. 240144, February 03, 2021).
What is the jurisdiction of the Regional Director for simple money claims?
Labor Arbiters have no jurisdiction over small money claims lodged under Article 129, except when the claim includes a prayer for reinstatement (LABOR CODE, Art.
224). It must be noted that R.A. No. 7730, or an Act Further Strengthening the Visitorial and Enforcement Powers of the Secretary of Labor, did away with the P5,000 limitation, allowing the DOLE Secretary to exercise its visitorial and enforcement power for claims beyond P5,000. The only qualification to this expanded power of the DOLE was only that there still be an existing employer-employee relationship (People’s Broadcasting Service v. Secretary of DOLE, G.R. No. 179652, March 6, 2012).
Who has jurisdiction over money claims of an OFW?
Section 10 of R.A. No. 8042 or the Migrant Workers Act, provides that the LA shall have the exclusive and original jurisdiction to hear and decide any claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary, and other forms of damages.
Note: The jurisdiction of LAs is not limited to claims arising from employer-employee relationships. Despite the absence of an employer-employee relationship between petitioner and respondent, the Court-ruled that the NLRC has jurisdiction over petitioner’s complaint (Santiago v. C.F. Sharp Crew Management, G.R. No: 162419, July 10, 2007).
What are the grounds for appeal to the NLRC?
(FAQS)
The appeal to the NLRC may be entertained only on any of the following grounds:
1. If the decision, award or order was secured through Fraud, coercion, including graft and corruption;
2. If there is a prima facie evidence of Abuse of discretion on the part of the Labor Arbiter or the Regional Director,
3. If made purely on Questions of law; and/or
4. If Serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the appellant (2011 NLRC RULES OF PROCEDURE, Rule VI, Sec. 2);
Discuss the original jurisdiction of the NLRC.
(C-CIV)
The NLRC has original jurisdiction over the following cases:
- Cases Certified to the NLRC for compulsory arbitration by the Secretary of Labor under Articles 277 and 278 of the Labor Code;
- Contempt Cases committed before the NLRC under Article 225 of the Labor Code;
- Injunction cases under Articles 225 and 278 of the Labor Code; and
- Verified Petition (2011 NLRC RULES OF PROCEDURE, Rule XII, Sec. 3)
What are the instances wherein NLRC has appellate jurisdiction?
(Not5-LM-DC-3rd)
The NLRC has appellate jurisdiction over the following:
- Cases decided by the Regional Offices of the DOLE in the exercise of their adjudicatory functions under Article 129 over monetary claims of workers Not exceeding P5,000;
- Cases decided by the Labor Arbiters under Article 224(b) of the Labor Code and Section 10 of the Migrant Worker’s Act;
- Cases decided by the Labor Arbiters pursuant to Article 124 of the Labor Code on wage Distortion problem in non-unionized establishment and cases Certified by the Regional Director under Article 128(b); and
- Denial of the claim of the 3rd party where property was levied by the Sheriff of Labor Arbiter can be appealed to the NLRC (Yupangco Cotton Mills v. Mendoza, G.R. No. 139912, March 3, 2005).
May the NLRC consider evidence presented for the first time on appeal?
Yes, even if the evidence was not submitted to the labor arbiter, the fact that it was duly introduced on appeal to the NLRC is enough basis for the latter to be more judicious in admitting the same, instead of falling back on the mere technicality that said evidence can no longer be considered on appeal (Spouses Maynes v. Oreiro, G.R. No. 206109, November 25, 2020).
What is the remedy from an adverse decision of NLRC?
The remedy from an adverse decision of NLRC is through the special civil action of certiorari under Rule 65 of the Rules of Court to the Court of Appeals. Thus, the 1997 Rules of Civil Procedure should be observed, to wit:
- The petition for certiorari must be filed not later than 60 days from notice of the judgment, order or resolution. If a motion for new trialon reconsideration is timely filed, whether it is required’or not, the 60-day period shall be counted from denial of such motion;
- The petition, should be accompanied by a certified true copy of the NLRC decision and by a sworn certification of non forum shopping as well as copies of all relevant pleadings and documents; and
- In observance of the hierarchy of courts principle, the petition must be filedin the first instance with the CA (St. Martin Funeral Home v. NLRC, G.R. No. 130866, September 16; 1998).
When is a remedy of petition for certiorari available?
The Court declared in St. Martin Funeral Home v. NLRC that the absence of an appeal from NLRC decisions, does not mean that the same are absolutely beyond the powers of review of the court. In fact, NLRC decisions may be reviewed by the CA through a petition for certiorari under Rule 65. Pertinent here is the use of the word “review” and not “appeal.” Also relevant is the use of the remedy of a petition under Rule 65, which is a special civil action for certiorari on the basis of grave abuse of discretion. Thus, a decision of the labor tribunal can be properly reviewed by the appellate court on ground of grave abuse of discretion. When the CA reviews an NLRC decision, it is necessarily limited to the question of whether the labor tribunal acted arbitrarily, whimsically, or capriciously, in the sense that grave abuse of discretion is understood under the law, the rules, and jurisprudence. It does not entail looking into the correctness of the judgment of the NLRC on the merits, (Mabalot v. Maersk-Filipinas Crewing, Inc., G.R. No. 224344, September 13, 2021).
Note: The Rule on the filing of a Motion for Reconsideration of the decision of the DOLE
Secretary, NRC and BLR Director is mandatory and jurisdictional (Diamonon v. DOLE, G.R. No. 108951, March 7, 2000).
What is the proper remedy to appeal a final order or resolution by the Court of Appeals?
The appeal from a final disposition of the CA is a petition for review under Rule 45 and not a special civil action under Rule 65 of the 1997 Rules of Civil Procedure. Rule 45 is clear that decisions, final orders or resolutions of the CA in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. This is in line with another established rule “that one of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy.
Where an appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion” (Union Bank of the PHL v. Menju, G.R. No. 189508, March 18, 2021).
Discuss the exclusive and original jurisdiction of the BLR.
(IIO) The BLR may act on its own initiative/or upon the request of either or both parties in the following cases involving federations, rational unions, industry unions, its officers or member organizations:
1. Intra-union conflicts;
2. Inter-union conflicts; and
3. Other related labor relations disputes (D.O. No. 40-03, RULE XI, Sec. 5).
What is an inter-union dispute?
An inter-union dispute refers to any conflict between and among legitimate labor unions involving representation questions for purpose of collective bargaining or to any other conflict or dispute between legitimate labor unions (D.O No. 40-03, Rule 1, Sec.
What is an intra-union dispute?
An intra-union dispute refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union’s constitution and by-laws or disputes arising from chartering or affiliation of union (D.O No. 40-03, Rule I, Sec. (bb)).
What is the venue for complaints involving independent unions, local chapters or workers’ associations?
Complaints or petitions involving labor unions with independent registrations, “local chapters,” workers’ associations, or their offices or members should be filed with the DOLE Regional Office that issued their certificates of registration or certificates of creation of chartered local (local chapter). Complaints filed shall be resolved by:
- DOLE Regional Director for petitions for cancellation of registration of labor unions with independent registration, chartered locals (local chapters) and workers’ associations and petitions for de-registration of collective bargaining agreements. For this purpose, he may appoint a Hearing Officer from the Labor Relations Division; or
- Mediation-Arbiter in the DOLE Regional Office for other inter-union or intra-union disputes and related labor relations disputes
What is the venue for complaints involving federations, national unions, or industry unions, trade union centers and their chartered locals (local chapters) affiliates or member organizations?
They shall be filed either with the Regional Office or the Bureau of Labor Relations.
But the complaint or petitions shall be heard and resolved by the BLR (D.O. 40-03, RULE XI, Sec. 5).
What is the remedy from an adverse decision of the Med-Arbiter or Regional Director?
The decision of the Med Arbiter and Regional Director may be appealed to the Bureau of Labor Relations by ahy of the parties within 10 days from receipt thereof, copy furnished to the opposing party. The decision of the Bureau director is appealable to the Office of the DOLE Secretary (D.O. No. 40-03, RULE XI, Sec. 16).
Note: In petitions for cancellation of union registration, if filed with the Regional Office, the appeal is with the BLR Director. If the petition for cancellation is filed directly with the BLR, the appeal is with the Secretary of Labor (D.O. No. 40-03, RULE XI, Sec. 16). The decision of the Bureau or the Office of the Secretary shall become final and executory after 10 days from receipt thereof by the parties, unless a motion for its reconsideration is filed by any party therein within the same period. Only 1 motion for reconsideration of the decision of the Bureau or the Office of the Secretary in the exercise of their appellate jurisdiction shall be allowed.
What is the National Conciliation and Mediation Board (NCMB)?
The NCMB is an agency attached to the Department of Labor and Employment principally in-charge of the settlement of labor disputes through conciliation, mediation and of the promotion of voluntary approaches to labor dispute prevention and settlement (2017 Revised NCMB Manual of Procedures For Conciliation and Preventive Mediation Cases, Rule III, Sec. 1[23] [hereinafter 2017 Revised NCMB Manual of Procedure]).
What is the difference between conciliation and mediation?
Conciliation is conceived of as a mild form of intervention by a neutral third party, the Conciliator-Mediator, relying on his persuasive expertise, who takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tries to keep things calm and forward- looking in a tense situation. Mediation is a mild intervention by a neutral third party, the Conciliator-Mediator, whereby he starts advising the parties or offering solutions or alternatives to the problems with the end in view of assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute.
What are preventive mediation cases?
Preventive mediation cases refer to the potential labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB to avoid the occurrence of actual labor disputes (2017 Revised NCMB.Manual of Procedure, Rule III, Sec. 1(28)).
What is the subject of the visitorial and enforcement power?
The visitorial and enforcement powers given to the Secretary of Labor is relevant to, and exercisable over establishments, not over the individual members/employees, because what is sought to be achieved by its exercise is the observance of, and/or compliance by, such firm/establishment with the labor standards regulations. Necessarily, in case of an award resulting from a violation of labor legislation by such establishment, the entire members/employees should benefit therefrom.
What is covered by the enforcement power under Article 128?
(CRESt)
The enforcement power under Article 128 covers:
- The power to issue Compliance orders to give effect to the labor standards provisions of the Labor Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection;
- The power to require employers to keep and maintain such employment. Records as may be necessary in aid of his visitorial and enforcement powers;
- The power to issue writs of Execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection; and
- The power to order Stoppage of work or suspension of operations of anyunit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace.
What is the remedy from a decision of the DOLE Regional Director under Article 128?
An appeal to the DOLE Secretary within 10 calendar days from receipt of the order (Rules on the Disposition of Labor Standard Cases in the Regional Offices, Rule IV, Sec. 1)
Where does the DOLE Secretary have original jurisdiction?
- Petition to assume jurisdiction over labor disputes affecting industries indispensable to the national interest (LABOR CODE, Art. 278 (g));
- Petitions to certify national interest cases to the NRC for compulsory arbitration
- Petition to suspend effects of termination (LABOR CODE, Art. 292 (b));
- Administrative Intervention for Dispute Avoidance cases (DOLE CIRCULAR NO. 1-06);
- Voluntary arbitration cases (ld);
- Contempt cases (LABOR CODE, Art. 231).
What cases are under the appellate jurisdiction of the Secretary?
- From the Regional Directors: a. Visitorial cases under Article 37; b. Visitorial and enforcement cases under Article 128; c. Occupational safety and health violations (Rules on Disposition of Labor Standards Cases in the Regional Offices); d. Cases related to private recruitment and placement agencies (D.O. 216-20 and D.O. 217-20);
- Decisions by the Med-Arbiter in inter-union disputes such as representation or certification election conflicts (LABOR CODE, Art. 272);
- Cases decided by the BLR Director in his original jurisdiction;
- From the POEA:
a. Cases which are administrative in character involving or arising out of violations of recruitment rules and regulations, including refund of fees collected from land-based OFWs and seafarers and any violation of the conditions for the issuance of the license to recruit OFWs; and
b. Disciplinary action cases against land-based OFWs and seafarers and principals/employees that are administrative in character, excluding money claims (POEA Rules, Sec. 186).
What is the mode for reviewing the decision of the DOLE Secretary?
The Labor Code and its implementing and related rules generally do not provide for any mode for reviewing the decision of the Secretary of Labor. However, the SCruled that the proper remedy is Rule 65 and which should be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts. Accordingly, the SC read “the appropriate court” in Section 15, Rule XI, Book V of the Implementing Rules to refer to the Court of Appeals (National Federation of Labor v. Laguesma, G.R. No. 123426, March 10, 1999).
The final disposition of the Court of Appeals may be reviewed by the Supreme Court on a petition for review on certiorari under Rule 45.
Who is a voluntary arbitrator?
A voluntary arbitrator refers to any person who has been accredited by the Board as such, or any person named or designated in the collective bargaining agreement by the parties as their voluntary arbitrator, or one chosen by the parties with or without the assistance of the board, pursuant to a selection procedure agreed upon in the CBA or one appointed by the board in case either of the parties to the OBA refuses to submit to voluntary arbitration. the term includes panel of voluntary arbitrators (Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings, Rule II, Sec. 1 (e)).
What are the powers of a voluntary arbitrator? (RSTE)
The voluntary arbitrator shall have the following powers:
- Require any person to attend hearing(s);
- Subpoena witnesses and receive documents when the relevancy of the testimony; and the materiality thereof has been demonstrated to the arbitrators:
- Take whatever action is necessary to resolve the issue/s subject of the dispute; and
- Issue a writ of Execution to enforce final decisions, and, in connection therewith, it shall be his duty to: (DICE)
a.Determine every question of fact and law which may be involved in the execution;
b. Inquire into the correctness of the execution of the decision;
c. Consider any supervening event during such execution; and
d. Ensure satisfaction of decision (NCMB GUIDELINES, Rule V, Sec. 3).
What is a grievance?
A grievance is a complaint arising from the interpretation or implementation of the collective bargaining agreement (CBA) and those arising from interpretation or enforcement of company rules and regulations, personnel policies, and established practices, or such other controversy involving employer-employee relationship (Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings, Rule II, Sec. 1 (9)).
Note: To be grievable, the violations of the CBA should be simple or ordinary, and not gross in character, otherwise they shall be considered Unfair Labor Practice which is under the original and exclusive jurisdiction or the Labor Arbiter (CHAN REVIEWER, supra at 978).
What is grievance machinery?
It refers to the mechanism for the adjustment and resolution of grievances arising from the interpretation or implementation of a CBA and those arising from the interpretation or enforcement of company personnel policies (LABOR CODE, Art. 273).
What are company personnel policies?
These policies deal with matters affecting efficieney and well-being of employees and include, among others, the procedures in the administration of wages, benefits, promotions, transfer and other personnel movements. which are usually not spelled out in the CBA (No. 10, NCMB Primer on Grievance Machinery and Voluntary Arbitration).
What are the cases that must be referred to the grievance machinery and voluntary arbitration?
The following are cases which must be disposed of by the Labor Arbiter by referral to the grievance machinery and voluntary arbitration:
a. Disputes on the interpretation or implementation of CBA; and
b. Disputes on the interpretation or enforcement of company personnel policies (2011 NLRC RULES OF PROCEDURE, Rule V, Sec. 1).
What is the remedy for unresolved grievances?
All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement (NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings). Resort to voluntary arbitration from grievance machinery is in the nature of appeal. This may be gleaned from the provisions of Art. 273, in relation to Art. 274 that all grievances which are not settled or resolved within 7 calendar days from the date of their submission for resolution to the last step of the grievance machinery shall automatically be referred to voluntary arbitration prescribed in the CBA (LABOR CODE, Art. 273).
Who are bound by the decision of the voluntary arbitrator?
When the voluntary arbitration submission covers matters affecting third parties who are not parties to the voluntary arbitration and over whom the voluntary arbitrator has no jurisdiction, the voluntary arbitration ruling cannot bind them. Thus, the voluntary arbitration process and ruling can only be recognized as valid between its immediate parties as a case arising from their collective bargaining agreement (Temic Automotive PHL v. Temic Automotive PHL, Inc., Employees Union, G.R. No. 186965, December 23, 2009).
Who has original and exclusive jurisdiction over unfair labor practices, termination disputes, and claims for damages?
The original and exclusive jurisdiction of the labor arbiter over unfair labor practices termination disputes, and claims for damages cannot be arrogated into the powers of voluntary arbitrators in the absence of an express agreement between the union and the company. A reading of Article 217 in conjunction with Article 262 shows that termination disputes fall under the jurisdiction of the labor arbiter unless the union and the company agree that termination disputes should be submitted to voluntary arbitration. Such agreement should be clear and unequivocal (Landtex Industries v. CA, G.R. No. 150278, August 9, 2007).
What is the period to appeal the decision of the Voluntary Arbitrator to the CA?
The petition for review shall be filed within 15 days pursuant to Section 4, Rules 43 of the Rules of Court. The 10-day period stated in Article 276 should be understood as the period within which the party adversely affected by the ruling of the Voluntary Arbitrators or Panel of Arbitrators may file a motion for reconsideration. Only after the resolution of the motion for reconsideration may the aggrieved party appeal to the CA by filing the petition for review under Rule 43 of the Rules of Court within 15 days from notice pursuant to Section 4 of Rule 43 (Guagua National Colleges v. CA, G.R. No. 188492, August 28, 2018).
What is the prescriptive period for money claims arising from employer-employee relations?
All money claims arising from employer-employee relations accruing during the effectivity of the Labor Code shall.be filed within 3 years from the time the cause of action accrued, otherwise they shall be forever barred (LABOR CODE, Art. 291).
What are the exceptions to the 3-year prescriptive period for money claims arising from employer employee relationship?
Art. 306 of the Labor Code on the 3-year prescriptive period for money claims arising from employer-employee relationship does not cover money claims consequent to an illegal dismissal, such as backwages and damages due to illegal dismissal. These claims are governed by Art. 1146 of the Civil Code, wherein actions upon injury to rights of the plaintiff must be instituted within 4 years (Protective Maximum Security Agency, inc., v. Fuentes, G.R. No, 169303, February 11, 2015).
When may the period of prescription be disregarded?
There is an ample justification not to follow the prescriptive period when the delay of filing the complaint was by reason of the reliance by the employee on the promise of the employer that he would be paid, as in the case of promissory estoppel (Accessories Specialist v. Alabanza, G.R. No. 168985, July 23, 2008).
When does the cause of action for Service Incentive Leave accrue?
The 3-year prescriptive period commences, not at the end of the year when the employee becomes entitled to the commutation of his service incentive leave, but from the time when the employer refuses to pay its monetary equivalent after demand of commutation or upon termination of the employee’s services (Auto Bus Transport v. Bautista, G.R. No. 156367, May 16, 2005).
What is the prescriptive perlod for the filing of a complaint for illegal dismissal?
The prescriptive period for filing an illegal dismissal complaint is 4 years from the time the cause of action accrued. This 4-year prescriptive period, not the 3-year period for filing money claims under Article 291 of the Labor Code, applies to claims for backwages and damages due to illegal dismissal. The 4-year prescriptive period under Article 1146 also applies to actions for damages due to illegal dismissal since such actions are based on an injury to the rights of the person dismissed (Arriola Pilipino Star Ngayon, G.R. No. 175689, August 13, 2014)
What is the prescriptive period for the filing of a complaint for unfair labor practice?
All unfair labor practice arising from Book V shall be filed with Labor Arbiter within 1 year from accrual of such unfair labor practice; otherwise, they shall forever be barred (LABOR CODE, Art. 305).
What is the pre-requisite for filing a criminal case for unfair labor practice?
No criminal prosecution under this Title (Unfair Labor Practices) may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in an administrative proceeding. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth (LABOR CODE, Art. 258).
On July 16, 2023, M bank hired X as a management trainee. Pertinent portion of X’s trainee contract reads: “(2) The trainee agrees to undergo training for a period of six months. (3) The trainee needs to receive a performance evaluation rating of 3.00 and up to become a regular employee.”
On January 12, 2024, X received a termination letter on the ground that she failed to meet the standards set forth in her contract for having received a performance evaluation rating of 2.95. Aggrieved, she filed a complaint for illegal dismissal claiming that at the time of her dismissal she was already a regular employee, hence, the results of her performance rating is not a valid ground to dismiss her. Will the action prosper? Explain your answer.
No, the action will not prosper.
The Supreme Court held in one case that the computation of the 6-month probationary period is reckoned from the date of appointment up to the same calendar date of the 6th month following.
In this case, since X was hired on July 16, 2023, for a six-month probationary contract, her probationary employment should last until January 16, 2024. Consequently, at the time she was dismissed, she was not yet a regular employee. As such, the employer can dismiss her for failing to meet the standards set forth in the probationary employment contract. (Reference: Jaso v. Metrobank, GR No. 235794, May 12, 2021)
In June 2019, M was deployed by X Agency to Y Foods in Africa for a one-year employment contract
with an option to renew. In May 2020, M was promoted by Y Foods, hence, her initial contract was
extended for another three years or until May 2023. Sometime in November 2022, Y Foods served M
with a letter of termination and immediately repatriated her back to Manila. Aggrieved, M filed a
complaint for illegal dismissal against X Agency and Y Foods. X Agency moved for the dismissal of the
complaint on the ground that it is not a privy to M’s contract renewal, hence, its solidary liability with the
foreign principal only extends up to the first contract. Is X Agency correct? Explain. (5 points)
No, X agency is not correct. The substitution of the contract does not affect the solidary liability of X agency with Y Foods.
Section 10 of Republic Act No. 8042 expressly provides that the liability of the recruitment agency shall continue during the period or duration of the employment contract and shall not be affected by any substitution, amendment, or modification made locally or in a foreign country of the said contract.
In this case, M’s employment contract was substituted during the effectivity of the first contract.
Further, the initial contract has an option to renew, and it is unlikely that X agency was unaware that Y Foods re-employed M. (Reference: Questcore vs. Bumanlag, December 7, 2022)
MY ANS:
No, X Agency is not correct.
Jurisprudence has consistently held that recruitment agencies are jointly and solidarily liable with the foreign principal. X Agency cannot contend that its liability only extends up to the first contract because the one-year employment contract explicitly mentioned there is an option to renew. Hence, M’s contract renewal with Y Foods is closely tied to its contract with X Agency.
L, a Chinese national, wanted to teach Chinese language to the kindergarten students of X Chinese School in Binondo. X Chinese School required L to apply for an Alien Employment Permit before she can start her employment. L, on the other hand, contends that school teachers are exempted from said requirement. Is L correct? Explain.
No, L is not correct.
DOLE DO No. 221-2021 states that all foreign nationals, who intend to engage in gainful employment in the Philippines, are required to apply for an Alien Employment Permit (AEP).
Also, foreign nationals, who come to the Philippines to teach, are only exempted from securing an AEP, if he/she will teach, present, and/or conduct research studies in universities and colleges as visiting, exchange, or adjunct professor under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government, subject to the rules of reciprocity.
In this case, teaching a foreign language in kindergarten does not fall within the exemption. Hence, L should secure an AEP, before commencing her employment with X Chinese School.
X filed a complaint for illegal dismissal against Y. Y received the summons from the Labor Arbiter (LA), but he failed to appear during the two (2) mandatory conferences. Y also failed to submit his Position Paper. The LA ruled in favor of X. Aggrieved, Y appealed the decision of the LA to the National Labor Relations Commission beyond the ten-day reglementary period. Y prayed that his appeal should be given due course in accordance with Article 4 of the Labor Code, otherwise, he will be denied his right to due process. Is Y correct? Explain.
No, Y is not correct.
Article 4 of the Labor Code requires construction in favor of labor, only if doubt exists in the interpretation and implementation of thereof. Further, the Supreme Court has held that liberal interpretation of the rules is primarily granted for the employee’s favor and not the employer.
Here, the provisions of the Labor Code and the National Labor Relations Commission Rules, regarding the perfection of an appeal, are not ambiguous that would require the application of Article 4 of the Labor Code.
Moreover, Y is not the employee, but is the employer in the case warranting the application of liberal construction. Hence, Article 4 of the Labor Code is not applicable, as being prayed for by Y. (Reyes v. Rural Bank of San Rafael, GR No. 230597, March 23, 2022)
MY ANS: No, Y is not correct. Article 4 of the Labor Code provides that all doubts in the implementation and interpretation of the provisions of the Labor Code shall be construed in favor of labor. In this case, there is no doubt in the implementation nor interpretation of the law. Y was not denied his right to due process as he received the summons from the Labor Arbiter (LA), but he still failed to appear during the 2 mandatory conferences. It is clear he did not intend to defend himself when he failed to submit his Position Paper, and filed an appeal beyond the reglementary period. No person shall be favored by the eyes of the law when such person sleeps on his right. In this case, X had been given all the chances to defend himself but he refused to do so. He cannot claim such benefit of construction if he himself has failed to exercise his right.
Since X Co. has been suffering severe financial losses, the company decided to temporarily close the business from January 1 to May 1, 2022.
On April 15, 2022, the company’s officers held a meeting with the union officers and requested for the extension of the temporary closure of the company for another two (2) months or until July 1, 2022. The request was acceded by the Union. A, B, and C, who are non-union members, believe that the extension is not valid. Are A, B, and C correct? (5 points)
Yes, A, B and C are correct.
Department of Labor and Employment Department Order No. 215-2020 provides that the temporary suspension of business operation for a period not exceeding six (6) months may be extended by the employer only in cases of declaration of war, pandemic, and similar national emergencies.
In this case, none of the circumstances, which warrant the extension of the suspension of business operation, are present. Hence, the extension of the six- month temporary suspension of business operations is not valid.
(Reference: DOLE DO No. 215, Series of 2020)
Cardo, who is a mason, was hired by BBN Construction Corporation, which assigned him in one of its projects in Batangas. His contract of employment referred to him as a “project employee,” although it did not provide any date of completion of the project. After the completion of the Batangas project, Cardo was transferred to the Tagaytay project of the Corporation. After the completion of the Tagaytay project, Cardo was told not to report anymore as there are no more projects at hand. After one (1) week, Cardo learned that the Corporation has another project in Makati, but he was no longer engaged by the Corporation. Cardo sought your legal advice as to what are the steps he needed to take to protect his rights. Explain your legal advice.
I would advise Cardo to file a case for illegal dismissal against the BBN Corporation. Cardo is not a project employee.
A project employee under Article 295 of the Labor Code, as amended, is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee. The services of project-based employees are co-terminus with the project and may be terminated upon the end or completion of the project or a phase thereof for which they were hired.
Here, the fact that Cardo was not given an employment contract on every project or undertaking, while being continuously engaged by the employer, denies the claim that Cardo is a project employee.
MY ANS:
A: I would suggest that Cardo clear things out with BBN Construction Corporation first. I will help Cardo write a letter narrating the circumstances that warrants his right to tenure, being a regular employee under the eyes of the law. If the employer is not willing to settle the matter between them and Cardo, I will tell Cardo to file an illegal dismissal case against BBN Construction Corporation. The Labor Code provides that one is deemed a regular employee if he had been engaged to perform tasks necessary in the usual business or services of such employer, unless the employment is only for a specific project or undertaking. Even if the contract of employment referred to Cardo as a “project employee,” he was repeatedly re-hired by BBN Construction Corporation. This no longer consitutes a mere “project” as his services are necessary in the usual business of BBN Construction Corporation.
Comments: This is good, but the way you present your answer can still be improved.
Ben filed a complaint for illegal dismissal against Mirage Transport Co. The Labor Arbiter (LA) dismissed the complaint, but awarded Ben financial assistance. The employer appealed the ruling of the LA. It confined its appeal solely to the question of whether financial assistance could be awarded.
The National Labor Relations Commission (NLRC), instead of ruling solely on the appealed issue, fully reversed the LA’s decision, and found the employer liable for illegal dismissal and ordered the payment of separation pay in lieu of reinstatement, backwages, attorney’s fees and damages. The employer filed a Petition for Certiorari under Rule 65 of the Rules of Court, challenging the validity of the NLRC ruling. It argued that the NLRC acted with grave abuse of discretion, when it ruled on the illegal dismissal issue, because the only issue brought on appeal was the legality of the financial assistance awarded to the employee. Decide the case.
The 2011 National Labor Relations Commission (NLRC) Rules provide that subject to the provisions of Article 225 of the Labor Code, as amended, once the appeal is perfected in accordance with the Rules, the Commission shall limit itself to reviewing and deciding only the specific issues that were elevated on appeal. When the employer limited the issue on appeal, the NLRC may review only that issue raised. All other matters, including the issue of the validity of private Ben’s dismissal, are final. If Ben wanted to challenge the finding of a valid dismissal, he should have appealed his case seasonably to the NLRC.
By raising new issues in the reply to appeal, Ben is in effect appealing his case, although he has, in fact, allowed his case to become final by not appealing within the reglementary period. A reply or opposition to appeal cannot take the place of an appeal.
MY ANS:
The case shall be decided in favor of Mirage Transport Co. (employer). The employer is correct to contend that the National Labor Relations Commission (NLRC) acted with grave abuse of discretion for taking up matters beyond the issue elevated on appeal. The law provides that the NLRC, in its appellate jurisdiction, shall only limit itself in reviewing and deciding on specific issues elevated on appeal. Here, the appeal was limited to the issue on whether financial assistance could be awarded. However, NLRC went beyond its scope by reviewing the issue on illegal dismissal. Hence, the petition for certiorari under Rule 65 shall be granted in favor of the employer.
The CBA for the period January 2017 to December 2022 expired on December 31, 2022. Thereafter, the union and the employer agreed to a PhP60.00 increase on the daily wage on July 23, 2023. May the union invoke the automatic retroactivity clause?
No, the automatic retroactivity clause is not operative in this case.
Under the Labor Code, any agreement on such other provisions of the Collective Bargaining Agreement (CBA) entered into within six (6) months from the date of expiry of the term of such other provisions, as fixed in such CBA, shall retroact to the day immediately following such date.
The union may no longer invoke the automatic retroactivity clause, because the agreement has been made beyond six (6) months from the expiration of the CBA. Thus, it is already beyond the contemplation of the Labor Code.
MY ANS:
No, the union may not invoke the automatic retroactivity clause. Generally, the new CBA is applied retroactively to the date immediately succeeding the expiration date of the last CBA to give a semblance of continuity. However, the Labor Code provides that such retroactivity may be invoked only if the new CBA is executed within 6 months from its expiry date. If the new CBA is executed beyond the 6-month period, the parties shall discuss the extent to which retroactivity may apply. Here, July is already 7 months from the last CBA’s expiration date of December 31, 2022. Hence, the union and the employer shall both discuss the extent of retroactive application of the new CBA.
Bea filed her money claims for unpaid wages and other benefits before the Labor Arbiter (LA), but she is still employed with the respondent employer. The employer moved for the dismissal of the complaint alleging that the LA has no jurisdiction as the issues fall within the jurisdiction of the Regional Director of the Department of Labor and Employment. If you were the LA, how would you resolve the issue?
As the Labor Arbiter, I would conduct a mandatory conciliation proceeding under the SingleEntry Approach (SEnA) based on the Labor Code.
While it is true that the jurisdiction in this issue belongs to the Department of Labor and Employment Regional Director, yet the law provides that the Labor Arbiter must not dismiss the case and instead proceed with the SEnA to explore possible amicable settlement among the parties within the mandatory period of thirty (30) calendar days.
Should the parties fail to reach an amicable settlement, the hearing officer must then refer the case to the agency or tribunal, which has jurisdiction on the case.
MY ANS:
If I were the Labor Arbiter (LA), I would dismiss the motion for dismissal because the employer is wrong to contend that the LA has no jurisdiction over the issue. The law provides that the Regional Director of the Department of Labor and Employment has jurisdiction over inter-union and intra-union disputes. The LA, on the other hand, has jurisdiction over claims arising from employer- employee relationships. Money claims for unpaid wages and other benefits arise from an employer-employee relationship as its nature and existence would determine Bea’s rights and their extent. Clearly, her claims do not fall under inter-union or intra-union disputes. Hence, the LA has jurisdiction over the case.
Comments: Presentation of your argument is coherent but work on your legal basis. While it is true that the jurisdiction in this issue belongs to the Department of Labor and Employment Regional Director, yet the law provides that the Labor Arbiter must not dismiss the case and instead proceed with the SEnA to explore possible amicable settlement among the parties within the mandatory period of thirty (30) calendar days.
XYZ Company is not satisfied with the decision of the voluntary arbitrator. It filed a Petition for
Certiorari alleging grave abuse of discretion before the Court of Appeals (CA). The CA dismissed the
petition for lack of jurisdiction. If you were the counsel for the management of XYZ Company, what
would have been your proper remedy.
As counsel for XYZ Company, the proper remedy under the rules is to appeal the decision of the voluntary arbitrator to the Court of Appeals under Rule 43 of the Rules of Court, after the denial of its Motion for Reconsideration.
As provided for by jurisprudence, the proper remedy, to reverse or modify a voluntary arbitrator’s or a panel of voluntary arbitrators’ decision or award, is to appeal the award or decision before the Court of Appeals based on Rule 43, Sections 1 and 3 of the Rules of Court.
Here, XYZ Company should have appealed, instead of filing a Petition for Certiorari alleging grave abuse of discretion before the Court of Appeals.
MY ANS:
If I were the counsel for the management of XYZ Company, I would have filed an appeal before the Court of Appeals. The Labor Code provides that decisions by the Labor Arbiter are appealable to the Court of Appeals, only within 10 days from the receipt of the decision. XYZ Company cannot prematurely invoke grave abuse of discretion without resorting first to immediate and available remedies in the ordinary course of proceedings.
Comments: Specify which Rule. As provided for by jurisprudence, the proper remedy, to reverse or modify a voluntary arbitrator s or a panel of voluntary arbitrators decision or award, is to appeal the award or decision before the Court of Appeals based on Rule 43, Sections 1 and 3 of the Rules of Court.
Due to his religious beliefs, Mario refused to join the union. However, since he is also benefiting from the Collective Bargaining Agreement (CBA) negotiated by the union, Mario is required to pay agency fee to the contracting union. Mario requested the employer and the union not to deduct agency fee from his salary. In exchange, he is willing to execute a waiver, so that he would not receive any benefit under the CBA. Is the waiver valid?
Yes, the waiver is valid.
Under the law, rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.
Mario’s rights, under the Collective Bargaining Agreement (CBA), are conditioned on his payment of agency fee to the contracting union.
Thus, he can waive such right under the CBA in exchange for his non payment of agency fee. (Reference: Article 6, Civil Code)
MY ANS:
No, the waiver is not valid. Jurisprudence held that waivers from receiving any benefit under the CBA is contrary to public policy. Hence, the waiver shall be invalid.
Comments: Answer is not on point. Mario s rights under the Collective Bargaining Agreement (CBA) are conditioned on his payment of agency fee to the contracting union. Thus, he can waive such right under the CBA in exchange for his non-payment of agency fee.
Pursuant to the check-off clause of the Collective Bargaining Agreement between Ex Co. and Union A, the former deducted union dues from the salaries of the latter’s members. This notwithstanding, Ex Co. failed to remit the union dues to Union A, and for this reason, C, the then union president, demanded immediate remittance thereof. However, Ex Co. claimed that while it was willing to remit the collected union dues, it was not clear who was the duly authorized person to receive the same, since Union A had a new set of officers. Consequently, a complaint for remittance was filed before the Med-Arbiter, who appointed someone to receive the union dues, and giving the company ten (10) days to remit. Meanwhile, Union B intervened and claimed that it is the new exclusive bargaining agent, thus demanding the remittance. Ex Co. moved to dismiss on the ground of lack of jurisdiction. Should the Med-Arbiter dismiss the case? Explain.
Yes, the Med-Arbiter should dismiss the case for lack of jurisdiction.
A complaint, charging the employer for non-remittance of collected union member dues by virtue of a check-off provision in the Collective Bargaining Agreement, does not fall under “intra-union disputes” over which the Med-Arbiter may exercise jurisdiction. The charge constitutes an unfair labor practice on the part of the employer, being in the nature of an interference, as it curtails the employees’ right to self-organization. As such, it is the Labor Arbiter, who has jurisdiction to settle the controversy. Here, the employer’s act of refusing to remit union dues clearly interferes with the exercise by the workers of their organizational right, which falls under the context of unfair labor practice within the jurisdiction of the Labor Arbiter.
MY ANS:
Yes, the Med-Arbiter shall dismiss the case. Current jurisprudence provides that Med-Arbiters have jurisdiction over cases involving certification elections. The Regional Director of the Department of Labor and Employment (DOLE), on the other hand, has jurisdiction over cases involving inter-union and intra-union disputes. Since the issue here is which of Union B or Union A is entitled to receive the remittance, the Regional Director of DOLE shall have jurisdiction to try this case.
Comments: Read the facts carefully. Issue here is jurisdiction over complaint involving employer’s non-remittance of union dues.
Leonardo was hired as a waiter under a six-month probationary employment contract. A month before the expiration of his contract, he was dismissed without fault on his part. On the seventh month, he filed a complaint for illegal dismissal with prayer for reinstatement and payment of backwages. Finding neither just causes, authorized cause, nor any basis for concluding failure to qualify, the Labor Arbiter (LA) adjudged the employer liable for illegal dismissal. In the decision, the LA ordered Leonardo’s immediate reinstatement and payment of his full backwages. On appeal, the employer questioned the reliefs accorded to Leonardo. The employer argued that, being a probationary employee, Leonardo could not be reinstated beyond six (6) months and his backwages could not be computed beyond six (6) months also. Resolve.
I will resolve in favor of Leonardo.
Jurisprudence posits that when a probationary employee is dismissed for no cause, he/she should be restored to both his/her position and pay, regardless of the fact that the six-month period of his/her probationary employment may have already expired.
Here, a month before the expiration of the contract of Leonardo, as a probationary employee, he was dismissed without fault on his part. This is tantamount to an illegal dismissal, and for this, his employer should be duly held accountable thereon. Illegally dismissed probationary employees, like regular employees, are entitled to backwages up to their actual reinstatement and not only until the end of their probationary period.
MY ANS:
The employer is wrong to argue that Leonardo cannot be reinstated beyond 6 months. Recent jurisprudence established that a probationary employee illegally dismissed shall be entitled to reinstatement and backwages computed from the time he was illegally dismissed up to the extent that his payment is being withheld.
Comments: Observe formal writing style. Use incorrect instead of wrong.
Add legal application where you apply the cited legal basis to the facts of the case.
The Union served a notice of strike on January 5, 2024 by reason of the termination of its officers which allegedly threatened its existence. It reported the strike vote result to the National Conciliation and Mediation Board on January 10, 2024. When was the earliest date it could validly stage the strike?
The earliest date that The Union could have validly staged the strike was on January 18, 2024.
The strike is a union-busting strike. As such, the cooling-off period is zero. This notwithstanding, the seven-day strike ban is mandatory.
As applied, reckoned from January 10, 2024, when the strike vote result was reported to the National Conciliation and Medication Board, the strike ban expired on January 17, 2024. Thus, January 18, 2024, which is the next day after the expiration of the strike ban, was the earliest date for the conduct of a valid strike.
MY ANS:
The earliest date it can validly stage the strike would be January 20, 2024. The law provides that a strike notice shall be filed at least 15 dats before the intended date of strike on grounds of unfair labor practices. Since the Union served the notice of strike on January 5. They can validly stage the strike after 15 days, which is January 20.
Comments: Incorrect computation. Read the facts carefully (it was a union-busting strike so no cooling-off period but strike ban applies). Reckoned from January 10, 2024, when the strike vote result was reported to the National Conciliation and Medication Board, the 7-day strike ban expired on January 17, 2024. Thus, January 18, 2024, which is the next day after the expiration of the strike ban, was the earliest date for the conduct of a valid strike.
Astrud has been working for JBC Corp for five (5) years as a software engineer. Recently, he received an offer from another company with a significantly higher salary and better benefits. Eager to start his new job, Astrud submitted his resignation to JBC Corp with a two-week notice, as per the terms outlined in his employment contract. However, JBC Corp informed Astrud that, due to an ongoing critical project, they require him to stay for an additional month to ensure a smooth transition. Astrud is concerned about losing the new job opportunity, if he delays his start date. Is JBC Corp legally entitled to require Astrud to extend his notice period?
No, Astrud cannot be required to extend his notice period.
The Labor Code allows an employee to terminate without just cause the employee-employer relationship by serving a written notice on his employer at least one (1) month in advance or as stipulated in the employment contract.
Here, Astrud’s employment contract specifies a two-week notice period, which he has adhered to by submitting his resignation letter accordingly. While JBC Corp may request for an extension of the notice period for operational reasons, such request is not legally enforceable without Astrud’s consent. Requiring Astrud to stay an additional month against the agreed terms would constitute breach of contract.
Solid Co. (SolCo) allowed its employees to occupy SolCo Village, a property it owns out of liberality and for the convenience of its employees, on the condition that the employees including their families would vacate the premises anytime SolCo deems fit. Years later, SolCo informed all its employees that it would cease its operations due to serious business losses. After complying with the procedural requirements, SolCo required the employees to sign a Memorandum of Agreement (MOA) providing for the company’s grant of separation pay less accountabilities, accrued sick leave benefits, vacation leave benefits, and 13th month pay. The employees who signed the MOA were considered to have agreed to vacate the SolCo Village, and to the demolition of the constructed houses inside as condition for the release of their termination benefits and separation pay. Dave refused to sign the MOA. He demanded to be paid his benefits and separation pay. When SolCo refused to pay unless he signed the MOA, Dave filed a complaint for non-payment of separation pay, accrued sick and vacation leaves, and 13th month pay. He argued that these benefits should not be withheld, because their payment is based on company policy and practice, the law, and that his possession of SolCo property is not an accountability that is subject to clearance procedures. If you are the Labor Arbiter, how will you decide?
I will decide in favor of Solid Co.
Requiring clearance before the release of last payments to the employee is a standard procedure among employers, and is a valid exercise of management prerogative. Clearance procedures are instituted to ensure that the properties, real or personal, belonging to the employer, but are in the possession of the separated employee, are returned to the employer, before the employee’s departure. Relatedly, under Article 1706 of the Civil Code, the employer is authorized to withhold wages for debts due. Here, the return of the possession over the company’s properties became an obligation or liability on the part of the Dave, when the employer-employee relationship ceased. Thus, respondent Solid Co. has the right to withhold Dave’s wages and benefits because of this existing debt or liability.
Fly High Aviation Company is a new airline company recruiting flight attendants for its domestic flights in the country. It requires that the applicant be single, not more than twenty-four (24) years old, with pleasing personality, and proficient in three (3) local dialects, viz: Cebuano, Ilocano and Ilonggo.
Flora, twenty-three (23) years old, was accepted as she possesses all the qualifications. After passing the probationary period, Flora disclosed that she got married when she was 18 years old, but the marriage was already in the process of being annulled on the ground of psychological incapacity. As a result of this revelation, Flora was not hired as a regular flight attendant. Consequently, she filed a complaint against Fly High Aviation Company alleging that the pre-employment qualifications on age, status, and language proficiency violate the law and are against public policy. Is the contention of Flora tenable? Why?
Yes, Flora’s contention is tenable. The pre-employment requirements of Fly High Aviation Company are against the law and public policy.
Fly High Aviation Company’s pre-employment requirements cannot be justified as a bona fide occupational qualification. There must be a compelling business necessity for which no alternative exists other than the discriminatory practice. The requirement on being proficient in three local dialects and being single are not valid because they do not reflect an inherent quality that are reasonably necessary for a satisfactory job performance. Likewise, the company’s policy to hire single young ladies is not only in derogation of the law, but is also contrary to public policy, tending as it does to deprive a woman of the freedom to choose her status. Accordingly, while age may be considered a bona fide occupational qualification as reasonably necessary, it must not be discriminatory to those agile, able and competent to perform the functions required of the job.
Chiara, single, has been an active member of the Social Security System for the past twenty (20) months. She became pregnant out of wedlock and on her 7th month of pregnancy, she was informed that she would have to deliver the baby through caesarean section, because of some complications.
Can Chiara claim maternity benefits? If yes, how many days can she go on maternity leave? If not, why is she not entitled?
Yes, Chiara can claim maternity benefits.
The Expanded Maternity Law does not discriminate based on the civil status of a female employee as well as the legitimacy of the child.
As long as said female employee has paid at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of her childbirth, she can avail of the maternity benefits under the law, which is her average salary credit for One Hundred Five (105) days, and an additional fifteen (15) days, if she qualifies as a solo parent, provided that she notifies her employer of her pregnancy and the probable date of her childbirth, among others. She can also avail of a thirty-day extension of maternity leave, but without pay.
Loyce is a daily-paid worker in a food processing company. Loyce is required to render eight (8) hours of work per day. Two (2) days ago, she rendered only seven (7) hours of work, as she arrived late in the morning. Yesterday, Loyce worked for nine (9) hours, as she was required to assist in the processing of perishable goods. Her supervisor, Gina, told Loyce that she would not get any overtime pay, as her work for nine (9) hours yesterday was meant to offset the one (1) hour shortfall in her work the day before. Is Gina correct? Explain briefly.
Gina is not correct.
Overtime pay cannot be offset with undertime, because Article 188 of the Labor Code prohibits the same.
The law discourages the offset, because the hourly rate of overtime is higher than the hours missed when an employee works for less than eight hours. There is premium or additional pay for overtime work, which cannot be equated or offset with undertime work, as the latter is rendered during regular working hours without premium pay.
In the course of a routine inspection, a Department of Labor and Employment (DOLE) Inspector noted that the workers’ cash daily wage of PhP500.00 is below the prescribed minimum wage of PhP610.00, and thus required BBB Company to pay wage differentials of PhP110.00 each employee per day. BBB Company denies any liability, explaining that after the market value of the company provided board and lodging are added to the employees’ PhP500.00 cash daily wage, the employees’ effective daily rate would be way above the minimum pay required by law. The company counsel further points out that the employees are aware that their food and lodging form part of their salary, and have long accepted the arrangement. Can the employer be required to pay the differential?
Yes, BBB Company is required to pay the differential.
Minimum wage is set by law and regulations, and employers are required to pay the same to its employees, who are entitled to it as a matter of right. In order that the fair and reasonable value of the facilities, such as food and lodging, may be deducted from the wages of employees, the following requisites must concur:
(i) facilities are customarily furnished by the employer;
(ii) deductibility of the value of the facilities must have been voluntarily accepted in writing by the employee; and
(iii) facilities must be charged at a fair and reasonable value.
As there is no showing that the employees of BBB Company voluntarily accepted in writing the deduction of the value of the food and lodging, and that the valuation of food and lodging is fair and reasonable, BBB Company is liable to pay the salary differential to its employees.
