Arellano University School of Law

Center for Legal Education and Research

2019 BAR OPERATIONS COMMISSION

LAST MINUTE TIPS
LABOR LAW

LABOR STANDARS

1. What is the principle of co-determination and the right of shared responsibility?

The principle of co-determination refers to the right of persons to participate in policy and decision
making processes directly affecting their rights and benefits. On the other hand, the right of shared
responsibility grants the employers and employees to enter into arbitration and the preferential use of
voluntary modes in settling disputes. (Art XIII, Sec. 3 par 2 & 3, 1987 Constitution)

2. What is reasonable causal connection rule?

This pertains to the rule in case of conflict of jurisdiction between labor court and regular court. Under
this rule, if there is a reasonable causal connection between the claim asserted and the employer-
employee relations, then the case is within jurisdiction of labor courts. In the absence of such nexus,
it is the regular courts that have jurisdiction. (Chan, Bar Review on Labor Law, 2019, p. 830)

3. What are the classifications of employees?

a. Regular employees - referring to those who have been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer;
b. Project employees - referring to those 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;
c. Seasonal employees - referring to those who work or perform services which are seasonal in
nature and the employment is for the duration of the season;
d. Casual employees - referring to those who are not regular, project, or seasonal employees;
e. Fixed-term employees whose terms are freely and voluntarily determined by the employer and
the employee.
f. Probationary employees - shall not exceed six (6) months from the date the employee started
working, unless it is covered by an apprenticeship agreement stipulating a longer period . (Art. 296,
Labor Code)
g. Security guards - the employment of security guards is an example of job contracting or
commonly known as “contractualization” where trilateral relationship between the principal, the
contractor (Security Service Contractoror Private Security Agency) and security guards or private
security personnel exists. (DO No. 150-16)
h. Floating employees - the period of time when security guards are in between assignments or
when they are made to wait after being relieved from a previous post until they are transferred to a
new one. However, the security guard must not remain in such status for a period of more than six
(6) months; otherwise, he is deemed terminated.

4. Who are regular employees?

a. By nature of work. - The employment is deemed regular when the employee has been engaged
to perform activities which are usually necessary or desirable in the usual business or trade of the
employer.
b. By period of service. - The employment is reckoned as regular when the employee has rendered
at least one (1) year of service, whether such service is continuous or broken, with respect to the
activity in which he is employed and his employment shall continue while such activity exists.
c. By probationary employment. - The employment is considered regular when the employee is
allowed to work after a probationary period

5. Who are exempt from securing foreign employment permits?

a. All members of the diplomatic service and foreign government officials accredited by and with
reciprocity arrangement with the Philippine government;
b. Officers and staff of international organizations of which the Philippine government is a member,
and their legitimate spouses desiring to work in the Philippines;

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 c. Owners and representatives of foreign principals whose companies are accredited by the
Philippine Overseas Employment Administration, who come to the Philippines for a limited period
and solely for the purpose of interviewing Filipino applicants for employment abroad;
d. 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: provided that the exemption is on a
reciprocal basis;
e. Permanent resident foreign nationals and probationary or temporary resident visa holders under
the Philippine Immigration Act of 1940 and the Alien Social Integration Act of 1995;
f. Refugees and Stateless Persons recognized by DOJ pursuant tot Article 17 of the UN Convention
and Protocol relating to status of Refugees and Stateless Persons; and
g. All foreign nationals granted exemption by law. (Section 3, Department Order No. 186, Series of 2017,
Revised Rules for the Issuance of Employment Permits to Foreign Nationals)

6. Are Commissions considered part of wages or salaries?

Yes. Wage paid to any employee shall mean the remuneration of earnings, however designated,
capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or
commission basis, or other method of calculating the same, which is payable by an employer to an
employee under a written or unwritten contract of employment for work done or to be done, or for
services rendered or to be rendered and includes the fair and reasonable value, as determined by the
Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the
employer to the employee. (Toyota Pasig, Inc. vs. De Peralta, G.R. No. 213488, November 7, 2016, J. Perlas-Bernabe)

7. May seafarers be considered as regular employees?

No. Seafarers are considered contractual employees and cannot be considered as regular employees
under the Labor Code. Their employment is governed by the contracts they sign every time they are
rehired and their employment is terminated when the contract expires. The exigencies of their work
necessitates that they be employed on a contractual basis. (Santiago vs. Cf Sharp Crew Management, Inc.,
G.R. No. 162419, July 10, 2007)

8. How may seafarers claim for disability?

It is explicit and clear that for purposes of determining the seafarer’s degree of disability, it is the
company designated physician who must proclaim that he sustained a permanent disability, whether
total or partial, due to either injury or illness, during the term of his employment. (Ison vs. Crewserve, Inc,
G.R. No. 173951, April 16, 2012)

9. What are the requisites for an occupational disease and the resulting disability or death be
compensable?

a. The seafarer’s work must involve the risks describe herein;

b. The disease was contracted as a result of the seafarer’s exposure to the described risks;
c. The disease was contracted within a period of exposure and under such other factors necessary
to contract it; and
d. There was no notorious negligence on the part of the seafarer. (Inter Orient Maritime Enterprises, Inc.,
G.R. No. 181921, September 17, 2014)

10. Elias, a seafarer, sustained a back injury in the course of his performance as a plumber. He
was examined by a company-designated physician, the results of which revealed that he was
suffering from “Lumbosacral Strain with right L5 Radiculopath.” He was declared fit to work
after subsequent supervision and therapy. Later on, he sought the second opinion from a
physician not related with the EE’s employer company, and was declared unfit to work as a
seaman-plumber.

a. If the company-designated physician’s medical opinion about the seafarer’s fitness to

work is inconsistent with that of the doctor sought by the seafarer, what would be the
remedy?

If a doctor appointed by the seafarer disagrees with the assessment of the company-designated
physician, a third doctor may be agreed jointly between the Employer and the seafarer. The third
doctor's decision shall be final and binding on both parties.

b. If Elias failed to comply with the procedure on joint appointment of a third doctor, which
medical opinion shall prevail?

If the seafarer failed to comply with the procedure laid down under Section 20 (B) (3) of the 2000
POEA-SEC with regard to the joint appointment by the parties of a third doctor, the seafarer’s

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 non-compliance with the said conflict resolution procedure results in the affirmance of the fit-to-
work certification of the company-designated physician. (Bahia Shipping Services, Inc., vs. Hipe, Jr. G.R.
No. 204699, November 12, 2014, J. Perlas-Bernabe)

11. What are the guidelines to be observed when a seafarer claims permanent and total disability
benefits?

a. 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;
b. 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;
c. 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
d. 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. (Talaroc vs. Araphil Shipping Corporation, G.R. No. 223731, August 30, 2017, J. Perlas-Bernabe)

12. Must the death take place on board the vessel to claim death benefits?

No. The provisions of the POEA-SEC states that the only condition for compensability of a seafarer’s
death is that such death must occur during the effectivity of the seafarer’s contract of employment.
(Hermogenes vs. Osco Shipping Services, Inc., G.R. No. 141505. August 18, 2005)

13. How is Night Shift Differential computed?

REGULAR NIGHT SHIFT NIGHT SHIFT WORK IS OVERTIME DURING NIGHT

WORK OVERTIME SHIFT WORK
Ordinary Plus 10% of the basic Plus 10% of the overtime Plus 10% of 125% of basic
Day hourly rate or total of 110% hourly rate on an ordinary hourly rate or total of 110%
of the basic hourly rate day or a total of 110% of of 125% of basic hourly rate.
the overtime hourly rate
on an ordinary day
Regular Plus 10% of basic hourly Plus 10% of the overtime Plus 10% of 130% of
Holiday, rate on a rest day, special hourly rate on a rest day regularly hourly rate on said
Special day or regular holiday or or special day or regular days or a total of 110% of
Day or total of 110% of the basic holiday 130% of the applicable
Rest Day. hourly rate regular rate on such days

14. How are backwages computed?

The computation of backwages is based on the wage rate at the time of the employee’s dismissal,
inclusive of regular allowances that the employee had been receiving such as the emergency living
th
allowances and the 13 month pay mandated under the law. (Equitable Banking Corp. vs. Sadac, G.R. No.
1647772 June 8, 2006)

15. When is travel time compensable?

COMPENSABLE NOT COMPENSABLE

Benefits the Employer, such as: Normal incidence of
(a) Emergency call outside regular working hours requiring employee employment, such as
to travel; and travel time from home to
(b) Integral part of the employee’s work or nature of the job. (Rada v. work and vice-versa.
NLRC, G.R. No. 96078, 9 January 1992) (Arica vs. NLRC, G.R. No.
78210 February 28, 1989)
Employee is subject to the absolute control of the Employer, such that
he is deprived of time to attend to personal pursuit.

16. What is the trilateral relationship in a Job Contracting arrangement and who are its parties?

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. The parties are:

a. Principal: owner of the project who decides to farm out a job, work or service to a contractor;
b. Job Contractor: who has the capacity to independently undertake the performance of the job,
work and service; and

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 c. Contractual Workers: engaged by the contractor to accomplish the job, work or service.

17. What are the contracts involved in a trilateral relationship?

a. Employment Contract – it is between the contractor and its employee which is governed by the
Labor Code; and
b. Service Agreement – it is between the principal and the contractor containing the terms and
conditions governing the performance or completion of a specific job, work or service being
farmed out for a definite or predetermined period, which is governed by the Civil Code.

18. What are the effects of a finding of Labor-Only Contracting?

The effects are: (1) the creation of an employer-employee relationship between the principal and the
employees of the contractor or sub-contractor; and (2) the solidary liability of the principal and the
contractor to the employees in the event of any violation of the Labor Code. (San Miguel Foods, Inc. vs.
Rivera, et. al., G.R. No. 220103, January 31, 2018)

19. Distinguish Job Contracting from Labor-Only Contracting

JOB CONTRACTING LABOR-ONLY CONTRACTING

The Employer is merely an indirect employer, by The Employer is treated as direct employer of the
operation of law, of his contractor employees. contractor employees in all instances.
The law creates an ER-EE relationship for a The statute creates an ER-EE relationship for a
limited purpose, i.e. to ensure that the comprehensive purpose, i.e. to prevent a
employees are paid their wages. circumvention of labor laws.
The principal becomes solidarily liable with the The principal becomes solidarily liable with the
contractor in the event the latter fails to pay the contractor not only for unpaid wages but also for
employee’s wages and for violation of Labor all the rightful claims of the employees under the
Standards laws. Labor Code and ancillary laws.
Permissible. Prohibited by Law.
There is a presence of substantial capital or There is an absence of substantial capital or
investment investment.

20. What are the requisites under D.O. No. 174 to be considered as a legitimate contractor?

a. 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 manner and
method;
b. The contractor 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;
c. In performing the work farmed out, the contractor is free from the control and/or direction of the
principal in all matters connected with the performance of the work except as to the results
thereto; and
d. The Service Agreement ensures compliance with all the rights and benefits for all the employees
of the contractor or subcontractor under labor laws. (Sec. 8, D.O. 174)

21. Who are field personnel?

Field personnel are to non-agricultural employees who regularly perform their duties away from the
principal place of business or branch office of the employer and whose actual hours of work in
the field cannot be determined with reasonable certainty. (Art. 82, Labor Code)

22. What is Service Incentive Leave?

Every employee who has rendered at least one (1) year of service shall be entitled to a yearly service
incentive leave of 5 days with pay. The phrase “at least one (1) year service” means service within 12
months, whether continuous or broken reckoned from the date of employee started working, including
authorized absences and paid regular holidays, unless the working days in the establishment as a
matter of practice or policy or that provided for in the employment contract is less than 12 months, in
which case, the period shall be considered as 1 year. (Secs. 2 & 3, Rule V, Book III, Rules Implementing the
Labor Code).

23. Who are not entitled to the service incentive leave (SIL)?

a. Government employees including those employed in government-owned and controlled

corporations (GOCCs) with original charter;
b. Managerial employees;
c. Officers or members of a managerial staff;

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 d. Persons in the personal service of another;
e. Workers paid by results, including those who are paid on piece-work, “takay”, “pakiao”, or task
basis, purely commission basis or those who are paid a fixed amount irrespective of time
consumed in the performance thereof (Tan v. Lagrama, 387, SCRA 393);
f. Members of the family of the employer dependent on him for support;
g. Field personnel and their employees whose work is unsupervised by the employer (Autobus v.
Bautista, G.R. No. 156367, May 16, 2005);
h. Those enjoying vacation leave with pay of at least 5 days; and
i. Employees in establishments regularly employing less than 10 employees (Art. 82 of the Labor Code;
Sec. 1, Rule V, Book III, Rules Implementing the Labor Code).

24. May unused Service Incentive Leaves of a Domestic Worker be convertible to cash?

Any unused portion of annual service incentive leave shall not be cumulative or carried over to the
succeeding years. Unused leaves shall not be convertible to cash. (Sec. 29, RA 10361)

25. How is sexual harassment committed in the workplace?

a. 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 of conditions, promotions, or privileges; or the 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;
b. The above acts would impair the employee's rights or privileges under existing labor laws; or
c. The above acts would result in an intimidating, hostile, or offensive environment for the employee.
(Sec. 3 (a), Republic Act No. 7877)

26. Can a Kasambahay be borrowed from the employer to perform a task for the benefit of
another’s household?

Yes. The domestic worker and the employer may mutually agree for the former to temporarily perform
a task that is outside the latter’s household for the benefit of another household for a period of not
exceeding 30 days per assignment. However, any liability that will be incurred by the domestic worker
on account of such arrangement shall be borne by the original employer. In addition, such work
performed outside the household shall entitle the domestic worker to an additional payment of not
less than the existing minimum wage rate of a domestic worker. It shall be unlawful for the original
employer to charge any amount from the said household where the service of the domestic worker
was temporarily performed. (Sec. 1, Rule V, IRR of R.A. 10361)

LABOR RELATIONS

27. When may the Employer file a Verified Petition for Certification Election?

An Employer may file a verified petition for certification election is when it is requested by a labor
organization to bargain collectively and its majority status is in doubt. (Sec. 1, Rule VIII, Book Five, Omnibus
Rules Implementing the Labor Code)

28. When is a Petition for Certification Election not allowed?

a. Statutory Bar Rule

The Rule bars the filing of a Petition for Certification Election within a period of one (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. If there was such an appeal from the order of the Med-Arbiter,
the running of the 1-year period is deemed suspended until the decision on the appeal has
become final and executory. (Section 3(a), Rule VIII, Book V, Rules to Implement the Labor Code, as amended by
Department Order No. 40-03, Series of 2003);

b. Certification Year Bar Rule

A Petition for Certification Election may not be filed within one (1) year reckoned from the date of
the Sole and Exclusive Bargaining Agent (SEBA) Certification is issued by the DOLE Regional
Director. (Chan, Bar Reviewer on Labor Law, 2017, p. 528);

c. Negotiations Bar Rule

While the SEBA and the Employer have commenced and sustained negotiations in good faith
within the period of one (1) year from the date of a valid certification, consent, run-off or re-run
election or from the date of voluntary recognition. Once the CBA negotiations have commenced
and while the parties are in the process of negotiating the terms and conditions of the CBA, no
challenging union is allowed to file a petition for certification election that would disturb the
process and unduly forestall the early conclusion of the agreement. (Chan, Bar Reviewer on Labor Law,
2017, pp. 530-531);

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 d. Bargaining Deadlock Bar Rule
When a bargaining deadlock to which an incumbent is a party has been submitted to conciliation,
arbitration, or the subject of a valid notice of strike or lockout. (Chan, Bar Reviewer on Labor Law, 2017, p.
531);

e. Contract Bar Rule

For the entire 5-year lifetime of the CBA, no petition questioning the majority status of the
incumbent bargaining agent shall be entertained and no certification election shall be conducted
by the DOLE outside of the 60-day period immediately before the date of expiry of such 5-year
term of the CBA. (Chan, Bar Reviewer on Labor Law, 2017, p. 523)

29. What are the modes to determine the Exclusive Bargaining Agent?

a. Request for SEBA Certification – process by which the union desiring to be certified as a SEBA
may file a request without such need to secure first the consent and voluntary recognition of the
employer. The employer so requested cannot now extend voluntary recognition but may still
validly file a petition for certification election in order to determine if the requesting union has the
majority support of the employees in the bargaining unit which it seeks to represent or where it
intends to operate.
b. Certification election – process of determining through secret ballot the sole and exclusive
bargaining agent of the employees;
c. Consent election – refers to the determination of the bargaining unit without the intervention of the
DOLE;
d. Run-off election – an election conducted between the labor unions receiving the two highest
number of votes in a certification election or consent election with three or more choices, where
such certification election or consent election results in none of the three or more choices
receiving the majority of the valid votes cast, provided that the total number of votes for all
contending unions is at least 50% of the number of votes cast; and
e. Re-run election – if there are irregularities committed during the conduct of the certification
election, such as disenfranchisement of voters, lack of secrecy voting, fraud or bribery, a re-run
election may be conducted.

30. What is an automatic renewal clause?

Pending the renewal of the CBA, the parties are bound to keep the status quo and to treat the terms
and conditions embodied therein still in full force and effect during the 60-day freedom period and/or
until a new agreement is negotiated and ultimately concluded and reached by the parties, which is
mandated by law and therefore deemed incorporated in all CBAs. The employer cannot discontinue
the grant of the benefits embodied in the CBA which just expired. The Union, on the other hand, has
to observe and continue to abide by its undertakings and commitments under the expired CBA until
the same is renewed. (Pier 8 Arrastre & Stevedoring Services, Inc. vs. Roldan-Confesor, G.R. No. 110854, February 13,
1995)

31. What is the Kiok Loy Doctrine?

Negotiating a CBA in bad faith consisting of the employer’s refusal to bargain with the collective
bargaining agent by ignoring all notices for negotiations and requests for counter-proposals. Such
refusal to send a counter-proposal to the union and to bargain on the economic terms of the CBA
constitutes an unfair labor practice under Article 248(g) of the Labor Code. (Kiok Loy vs NLRC, G.R. No. L-
54334, January 22, 1986)

32. What are the elements of an unfair labor practice?

a. There should exist an employer-employee relationship between the offended party and the
offender; and
b. The act complained of must be expressly mentioned and defined in the Labor Code as an unfair
labor practice. (Article 248 & 249, Labor Code)

33. What are the aspects of an unfair labor practice?

CIVIL ASPECT CRIMINAL ASPECT

The civil aspect of an unfair labor practice includes claims for The criminal aspect, on the other
actual, moral, and exemplary damages, attorney’s fees and hand, can only be asserted before
other affirmative reliefs. Generally, these civil claims should be the regular courts after the
asserted in the labor case before the Labor Arbiters who have determination of the existence of
original and exclusive jurisdiction over unfair labor practices. an unfair labor practice. (Article 258,
Labor Code)

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34. When does contracting out become an ULP?

It is only when the contracting out of a job, work or service being performed by union members
interferes with, restrain or coerce employees in the exercise of their right to self-organization, that it
shall constitute an unfair labor practice. Thus, it is not unfair labor practice to contract out work for
reasons of business decline, inadequacy of facilities and equipment, reduction of cost and similar
reasonable grounds. Absent proof that the management acted in a malicious or arbitrary manner, the
Court will not interfere with the exercise of judgment by an employer. (BPI Employees Union-Davao vs. Bank
of the Philippine Islands, G.R. No. 174912, July 24, 2013)

35. Is the dismissal of 27 union members due to redundancy tantamount to Unfair Labor Practice
amounting to Union Busting?

No, the consequent dismissal of 27 regular members of the complainant’s union due to redundancy is
not per se an act of ULP amounting to union busting. For while the number of union membership was
diminished due the termination of herein union members, it cannot safe be said that respondent
company acted in bad faith in terminating their services because the termination was not without a
valid reason. (SACORU vs. Coca-Cola Bottlers Philippines, Inc., G.R. No. 200499, October 4, 2017)

36. Distinguish a strike from a picket.

STRIKE PICKETING
Strike is guaranteed under the Constitutional The right to picket is guaranteed under the
provision on the right of workers to conduct freedom of speech and of expression and to
peaceful concerted activities. peaceably assemble to air grievances.
To strike is to withhold or to stop work by the The work stoppage may be accompanied by
concerted action of employees as a result of picketing by the striking employees outside of the
an industrial or labor dispute. company compound.
A strike focuses on stoppage of work. Picketing focuses on publicizing the labor dispute
and its incidents to inform the public of what is
happening in the company being picketed.
A picket simply means to march to and fro in front
of the employer’s premises, usually accompanied
by the display of placards and other signs making
known the facts involved in a labor dispute. It is
but one strike activity, separate and different from
the actual stoppage of work.

37. Frankie Bob Union filed a Notice of Strike against Pepsi Cola Company. Thereafter, members
of the Frankie Bob Union filed their respective applications for leave of absence to participate
in another strike, organized by another labor group. However, the company disapproved their
applications for leave and notified them accordingly. On the day of their planned leave, said
employees did not report for work and held a picket along the front perimeter of the plant,
carrying placards with slogans such as, “CBA-WAG BABOYIN,” “SAHOD NG MANGGAGAWA
ITAAS,” and “STOP UNION BUSTING.” The employees marched to and fro in front of the
company’s premises during working hours. As a result, only one of the three bottling lines
operated during the day shift. Was the concerted activity conducted by the members of the
Magbobote Union a picket or a strike? Explain.

The concerted activity conducted by the members of the Union was a strike. Under the Labor Code,
strike is the temporary stoppage of work by the concerted action of the employees as a result of an
industrial or labor dispute. The employees deliberately absented themselves when they opted not to
report from work notwithstanding the fact that their applications for leave were disapproved.
Moreover, the concerted activity brought about a temporary stoppage of work at two out of three
bottling lines of the company. Lastly, such concerted activity was by reason of a labor dispute
considering that the union had earlier filed a Notice of Strike against the company. (Santa Rosa Coca-Cola
Plant Employees Union v. Coca-Cola Bottlers Phils., Inc., G. R. Nos. 164302-03, January 24, 2007).

38. What are the requisites for a valid strike?

a. It must be based on either a collective bargaining deadlock or an unfair labor practice.

b. A notice of strike must be filed with the NCMB-DOLE;
c. A notice must be served to the NCMB-DOLE at least 24 hours prior to the taking of the strike vote
by secret balloting, informing said office of the decision to conduct a strike vote, and the date,
place, and time thereof;
d. A strike vote must be taken where a majority of the members of the union obtained by secret
ballot in a meeting called for the purpose, must approve it;

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 e. A strike vote report should be submitted to the NCMB-DOLE at least 7 days before the intended
date of the strike;
f. Except in cases of union-busting, the cooling-off period of 15 days, in case of unfair labor
practices of the employer, or 30 days, in case of collective bargaining deadlock, should be fully
observed; and
g. The 7-day waiting period/strike ban reckoned after the submission of the strike vote report to the
NCMB-DOLE should also be fully observed in all cases.

39. If the result of the Strike Vote was filed during the cooling off period, when does the 7-day
strike ban commence?

If the strike vote was taken and reported to the NCMB within the cooling-off period, the requirements
of cooling-off period and 7-day waiting period or strike ban must both be complied with. Although the
Union may take a strike vote and report the same to the NCMB-DOLE within the statutory cooling-off
period, the 7-day waiting period or strike ban should be counted not from the date of submission of
the report but “from the day following the expiration of the cooling-off period (Chan, Reviewer of Labor Law
(2017), pp. 612-613)

40. Is notice of termination required in Fixed-Term employment?

No. There is no need for notice of termination because the employees know exactly when their
contracts would end. Contracts of employment for a fixed period terminate on their own at the end of
such period. (Labayog vs. M.Y San Biscuits, G.R. No. 148102, July 11, 2006)

41. What are the requirements to be complied with by employers in dealing with probationary
employees?

a. The Employer must communicate the regularization standards to the probationary employee; and
b. The Employer must make such communication at the time of the probationary employee’s
engagement. (Abbott Laboratories vs. Pearl Alcaraz, G.R. 192571, July 23, 2013)

42. Does the usual two-notice rule apply in the termination of a probationary employee?

No. If the termination is brought about by the failure of an employee to meet the standards of the
employer in case of probationary employment, it shall be sufficient that a written notice is served the
employee, within a reasonable time from the effective date of termination." (Abbott Laboratories vs. Pearl
Alcaraz, G.R. 192571, July 23, 2013)

43. Does performance of core activities by contractual workers automatically make the
contractual arrangement illegal?

No, it is not the performance of core activities per se that makes a contracting arrangement illegal, but
rather, a clear showing that the resort to such an arrangement was done specifically to violate the
employee’s right to security of tenure and payment of benefits to which he is entitled. (BPI Employees
Union-Davao vs. Bank of the Philippine Islands, G.R. No. 174912, July 24, 2013)

44. Distinguish Just Causes from Authorized Causes

JUST CAUSES AUTHORIZED CAUSES

The dismissal process is initiated by the The dismissal process is initiated by the employer.
employee.
Payment of separation pay is not required. Payment of separation pay is required subject to
certain exceptions.
For failure to comply with the due process For the violation of due process requirement by
requirement in just cause dismissal, the the employer in authorized cause dismissal, he is
employer is liable to pay indemnity amounting liable to pay indemnity in the amount of Php
to Php30,000, which is tempered. 50,000, which is stiffer.

45. What is “Ample Opportunity to be Heard” in Dismissal Cases?

It means any meaningful opportunity, verbal or written, given to the employee to answer the charges
against him and submit evidence in support of his defense, whether in a hearing, conference or some
other fair just and reasonable way. (Perez v. Philippine Telegraph and Telephone Company, G.R. No. 152048, April 7,
2009)

46. When does hearing become mandatory in Dismissal Cases?

a. When requested by the employee in writing;

b. When substantial evidentiary disputes exist;

arellano C|L|E|A|R 8
 c. When a company rule or practice requires it; or
d. When similar circumstances justify it. (Maula vs. Ximex, G.R. No. 207838, January 25, 2017)

47. What are the valid grounds of termination?

JUST CAUSES AUTHORIZED CAUSES

Termination by the Employer: Business-related causes
a. Serious misconduct or willful a. Installation of labor-saving device;
disobedience by the employee of the b. Redundancy;
lawful orders of his employer or c. Retrenchment;
representative in connection with his d. Closure or cessation of business
work; operations not due to serious business
b. Gross and habitual neglect by the losses or financial reverses; and
employee of his duties; e. Closure or cessation of business
c. Fraud or willful breach by the operations due to serious business losses
employee of the trust reposed in him or financial reverses; and
by his employer or duly authorized
representative; Health-related causes
d. Commission of a crime or offense by
the employee against the person of
his employer or any immediate
member of his family or his duly
authorized representatives; and
e. Other causes analogous to the
foregoing;

Prohibited Activities:
a. Union officers who knowingly
participate in an illegal strike and
therefore deemed to have lost their
employment status; and
b. Any employee, union officer or
ordinary member who knowingly
participates in the commission of
illegal acts during a strike
(irrespective of whether the strike is
legal or illegal), is also deemed to
have lost his employment status.

National Interest Cases- where strikers

who violate orders, prohibitions and/or
injunctions as are issued by the DOLE
Secretary or the NLRC, may be imposed
immediate disciplinary action, including
dismissal or loss of employment status.

Union Security Clause - where violation of

the union security agreement in the CBA
may result in termination of employment.
Under this clause, the bargaining union can
demand from the employer the dismissal of
an employee who commits a breach of union
security arrangement, such as failure to join
the union or to maintain his membership in
good standing therein. The same union can
also demand the dismissal of a member who
commits an act of disloyalty against it, such
as when the member organizes a rival union.

48. What is the Doctrine of Strained Relations?

When the employer can no longer trust the employee and vice-versa, reinstatement could not
effectively serve as a remedy. This applies only to (1) positions which require trust and confidence,
or (2) managerial employees. It does not apply to rank-and-file employees. (Globe-Mackay Cable and
Radio Corporation vs. NLRC, G.R. No. 82511, March 3, 1992)

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49. Renante was employed by Holcim Philippines as pack house operator for 19 years. One day,
Renante was about to exit from the company premises when the security guard on duty asked
him to be inspected. Renante refused and confided to the security guard that he has a piece of
scrap electrical wire in his bag which he got from the plant. Renante requested the security
guard not to report the incident to the management, and asked if he could bring the scrap wire
outside the company premises, otherwise, he will return it inside the plant. The security guard
did not agree, so Renante hurriedly went back to the plant where he took the scrap wire out of
his bag. Due to this incident, Renante was dismissed from service for serious misconduct.
Was the dismissal valid?

No. Infractions committed by an employee should merit only the corresponding penalty demanded by
the circumstance. The penalty must be commensurate with the act, conduct or omission imputed to
the employee. The misconduct is not so gross as to deserve the penalty of dismissal from service. At
any rate, Holcim did not suffer any damage from the incident, given that after being asked to submit
himself and his bag for inspection, the employee had a change of heart and decided to just return the
wire. The employee deserves compassion and humane understanding more than condemnation,
especially considering that he had been in Holcim’s employ for 19 years already, and this is the first
time that he had been involved in taking company property, which item, at the end of the day, is
practically of no value. (Holcim Philippines vs. Obra, G.R. No. 220998, August 8, 2016, J. Perlas-Bernabe)

50. Frankie Bob filed a complaint for illegal dismissal against Riri Construction alleging that he
was orally notified not to report back to work without any reason. Riri Construction denied the
allegation and claimed that Frankie applied as a painter in another company. Since then, he
never reported back to work. Before the Labor Arbiter, Frankie refused to present evidence of
his dismissal because according to him, Riri Construction, as the employer, has the burden of
proof to show that his dismissal was for a just cause. Is Franklin correct?

No. Generally, in cases of illegal dismissal, the employer bears the burden of proof to prove that the
termination was for a valid or authorized cause. But before the employer must bear the burden of
proving that the dismissal was legal, it is incumbent upon the employee to first establish the fact of his
dismissal before the burden is shifted to the employer to prove that the dismissal was legal. (Exodus Int.
Const. Corp. vs Biscocho, G.R. No. 166109, February 23, 2011)

51. Bobby was hired by Century Realty as Vice President for Sales. His employment contract also
contained a "Confidentiality of Documents and Non-Compete Clause" which, among others,
barred him from disclosing confidential information, and from working in any business
enterprise that is in direct competition with Century Realty. Should Bobby breach any of the
terms thereof, his "forms of compensation, including commissions and incentives” will be
forfeited. Century received reports that Bobby provided a competitor with information
regarding the company’s marketing strategies. Bobby tendered his resignation and revealed
that he had been accepted as Vice President of First Global Corporation, a competitor of
Century Realty. Can the Non-Compete Clause on the employment contract be implemented?

Yes. Obligations arising from contracts, including employment contracts, have the force of law
between the contracting parties and should be complied with in good faith. Absent any ambiguity, the
provision on its face will be read as it is written and treated as the binding law of the parties to the
contract. Here, the Vice President for Sales held a highly sensitive and confidential managerial
position as he was tasked, among others, to guarantee the achievement of agreed sales targets for a
project and to ensure that his team has a qualified and competent manpower resources by
conducting recruitment activities, training sessions, sales rallies, motivational activities, and
evaluation programs. Hence, to allow him to freely move to direct competitors during and soon after
his employment would make the company’s trade secrets vulnerable to exposure, especially in a
highly competitive marketing environment. (Century Properties, Inc. vs. Edwin J. Babiano G.R. No. 220978, July 5,
2016, J. Perlas-Bernabe)

52. Hu Go was hired by Sophie’s Meat Shop as truck driver. Sometime in 2019, he was caught by
the security guard in the act of attempting to smuggle out of the company premises 10 sacks
of tocino worth Php10,000.00 aboard the delivery van that was assigned to him. He was given
the opportunity to explain himself. However, he was still subsequently terminated from
employment after finding his explanation unsatisfactory. Thereafter, Hu Go filed a complaint
for illegal dismissal. The NLRC ruling in favor of Hu Go held that he should have been
afforded, or at least advised of the right to counsel. Is the NLRC correct?

No, the NLRC is not correct. The right to counsel and the assistance of one in investigations involving
termination cases is neither indispensable nor mandatory, except when the employee himself
requests for one or that he manifests that he wants a formal hearing on the charges against him.
Here, there is no showing that he requested for a formal hearing to be conducted or that he be
assisted by counsel. (Lopez v. Alturas Group of Companies, G. R. No. 191008, April 11, 2011)

arellano C|L|E|A|R 10
53. Janet was hired by CABI as a Purchasing Assistant, and eventually, promoted her to the
position of Purchasing Officer. Janet was then confronted by Antonio Chan, owner of CABI,
on the propriety of the delivery of a machine part via air freight in lieu of previously approved
sea freight. Later that day, Janet received a letter signed by Chan informing her that she had
been committing various purchasing policy violations over the past 12 months which are very
unfavorable to CABI, and that the management could no longer turn a blind eye on such
violations, and as such, she should tender her immediate resignation from CABI. Janet then
received another letter, this time from CABI's legal officer, following up the former's action
regarding CABI’s letter. Janet was then constrained to draft a resignation letter. Janet filed a
complaint claiming that she was constructively dismissed because her employers from CABI
forced her to resign.

a) What is constructive dismissal?

Constructive dismissal exists where there is cessation of work because continued employment is
rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a
diminution in pay and other benefits. Aptly called a dismissal in disguise or an act amounting to
dismissal but made to appear as if it were not, constructive dismissal may, likewise, exist if an act
of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the
part of the employee that it could foreclose any choice by him except to forego his continued
employment.

b) Was there constructive dismissal in this case?

None. The employee was given the option to voluntarily resign from CABI, instead of dealing with
an investigation which might result in her dismissal. CABI’s decision to give the employee a
graceful exit rather than to file an action for redress is perfectly within the discretion of the former;
as it is not uncommon that an employee is permitted to resign to avoid the humiliation and
embarrassment of being terminated for just cause after the exposure of her malfeasance. Thus,
CABI did not constructively dismiss the employee but rather, the latter voluntarily resigned from
her job in order to avoid a full-blown administrative trial regarding her misdeeds which could
potentially result in her termination for just cause. While it may be said that she did not tender her
resignation wholeheartedly, circumstances of her own making did not give her any other option
but to voluntarily do so. (CABI vs. Siason, G. R. No. 215555, July 29, 2015, J. Perlas-Bernabe)

54. Differentiate a return-to-work order from reinstatement.

Reinstatement is awarded by a Labor Arbiter to an illegally dismissed employee pursuant to Article

294 of the Labor Code. On the other hand, a return-to-work order is issued by the Secretary of Labor
and Employment when he or she assumes jurisdiction over a labor dispute in an industry that is
considered indispensable to the national interest. Article 278 (g) of the Labor Code provides that the
assumption and certification of the Secretary of Labor and Employment shall automatically enjoin the
intended or impending strike. (Manggagawang KomunikasyonsaPilipinas v. PLDT Company, Inc., G. R. No. 190389,
April 19, 2017)

55. JFCI hired Loralei as its Consultant Program Coordinator. An Employment Contract was
executed with Loralei for a term of one year, with the condition that either party may terminate
the same “at any time by giving four weeks written notice.” JFCI, without any reason, enforced
the termination clause by informing Loralei that they are terminating her services as
Consultant Program Coordinator. Was the dismissal valid?

No. The contract has its termination clause which reads that either party may terminate the same “at
any time by giving four weeks written notice.” While said clause is silent on the requirement of a legal
cause for the same to be operative, the contract’s termination clause should not be interpreted as a
form of blanket-license by which each of the parties may just abdicate the contract at will. Rather, it is
a clause which allows any of the parties to pre-terminate the employment contract within the
stipulated fixed-term period of one year, provided that the party invoking the same has: (a) a legal
cause for terminating it; and (b) notifies the other party in writing four weeks prior to the intended date
of termination. (Halili vs. JFCI, G.R. No. 194906, September 9, 2015, J. Perlas-Bernabe)

56. How are the decisions issued by the Voluntary Arbitrator or panel of Voluntary Arbitrators
appealed?

As a general rule, decisions of the voluntary arbitrator are final and executory after 10 calendar days
from receipt of the copy of the award or decision by the parties. The 10 calendar period should be
understood as the period within which the party adversely affected by the ruling of the Voluntary
Arbitration or Panel of Arbitrators may file a motion for reconsideration. Being a quasi-judicial agency,
the decisions and awards of a Voluntary Arbitrator are appealable by way of a petition for review to
the Court of Appeals within 15 days from the receipt of the Voluntary Arbitrator’s decision in

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 accordance with Section 1, Rule 43 of the 1997 Rules of Civil Procedure only after the resolution of
the motion for reconsideration. (Guagua National Colleges v. CA, GR No. 188492, Aug 28, 2018)

57. Do Labor Arbiters still have jurisdiction even if the case is filed by the heirs of the OFW?

Yes, the Labor Arbiters still have jurisdiction even if the case is filed by the heirs of the OFW. As heirs
of a deceased OFW, they have the personality to file the claim for death compensation,
reimbursement of medical expenses, damages and attorney's fees before the Labor Arbiter of the
NLRC. (Medline Management, Inc. vs. Roslinda, G.R. No. 168715, September 15, 2010)

58. What are the respective jurisdictions of the Labor Arbiter, Regional Director, NLRC, NCMB,
and BLR?

JURISDICTION OF LABOR ARBITER

a. Unfair labor practices 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 the
employer employee relations;
e. Cases arising from any violation of Art. 279 of this Code, including questions involving the
legality of strikes and lockouts;
f. Except claims for Employees 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 five thousand
pesos (P5,000) regardless of whether accompanied with a claim for reinstatement.
g. Money claims arising out of employer-employee relationship or by virtue of any law or
contract, involving claims for actual, moral, exemplary and other forms of damages, as
well as employment termination of OFWs;
h. Wage distortion disputes in unorganized establishments not voluntarily settled by the
parties;
i. Enforcement of compromise agreements when there is non-compliance by any of the
parties; and
j. Other cases as may be provided by law.

JURISDICTION OF THE DOLE REGIONAL DIRECTORS

a. Visitorial (inspection) cases under Article 37;

b. Visitorial (inspection) and enforcement cases under Article 128, either routine or initiated
through a complaint;
c. Visitorial cases, involving examination of books of accounts of independent unions, local
chapters/chartered locals and workers’ associations;
d. Occupational safety and health violations;
e. Small money claims cases arising from labor standards violations in an amount not
exceeding ₱5,000.00and not accompanied with a claim for reinstatement under Article 129;
f. Cases related to private recruitment and placement agencies (PRPAs) for local employment,
such as:
1. Applications for license or denial thereof;
2. Complaints for suspension or cancellation of license by reason of administrative offenses;
3. Complaints for illegal recruitment; and
4. Petition for closure of agency;
g. Cases submitted for voluntary arbitration in their capacity as Ex-Officio Voluntary Arbitrators
(EVAs) under Department Order No. 83-07, Series of 2007.
h. Union registration-related cases, such as:
1. Applications for union registration of independent unions, local chapters and workers’
associations;
2. Petitions for denial of application for registration of said unions;
3. Petitions for revocation or cancellation of registration of said unions;
i. Notice of merger, consolidation, affiliation and change of name of said unions and or petition
for denial thereof;
j. CBA-related cases, such as:
1. Application for registration of single-enterprise CBAs or petition for deregistration thereof;
2. Petition for denial of registration of single-enterprise CBAs or denial of petition for
deregistration thereof; and
k. Request for SEBA certification when made in an unorganized establishment with only one
(1) legitimate union.

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 JURISDICTION OF THE NATIONAL CONCILIATION AND MEDIATION BOARD

The NCMB has the authority to convert a notice of strike/lockout filed by the union/employer into a
preventive mediation case under any of the following circumstances:

a. When the issues raised in the notice of strike/lockout are not strikeable in character;
b. When the party which filed the notice of strike/lockout voluntarily asks for the conversion;
c. When both parties to a labor dispute mutually agree to have it subjected to preventive
mediation proceeding.

Such authority is in pursuance of the NCMB’s duty to exert all efforts at mediation and conciliation
to enable the parties to settle their dispute amicably and in line with the State policy of favoring
voluntary modes of settling labor disputes.

NCMB is not a quasi-judicial agency. Not being a quasi-judicial agency, NCMB’s rulings cannot
be elevated to, and cognizable by, the court of appeals. Rule 43 of the Rules of Court applies only
to awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in
the exercise of its quasi-judicial functions. Hence, NCMB’s decision, not having been rendered by
a quasi-judicial body, cannot be elevated to the Court of Appeals under said rule. (Tabigue vs.
International Copra Export Corporation, G.R. No. 183335, December 23, 2009)

JURISDICTION OF THE BUREAU OF LABOR RELATIONS

The following cases fall under the BLR’s original jurisdiction:

a. Complaints and petitions involving the application for registration, revocation or cancellation
of registration of federations, national unions, industry unions, trade union centersand their
local chapters/chartered locals, affiliates and member organizations;
b. Request for examination of books of accounts of said labor organizations under Article 289
[274] of the Labor Code;
c. Intra-union disputes involving said labor organizations;
d. Notice of merger, consolidation, affiliation and change of name of said unions and or petition
for denial thereof;
e. Registration of multi-employer CBAs or petitions for deregistration thereof; and
f. Contempt cases.

JURISDICTION OF THE NATIONAL LABOR RELATIONS COMMISSION

EXCLUSIVE ORIGINAL JURISDICTION:

a. Petition for injunction in ordinary labor disputes to enjoin or restrain any actual or threatened
commission of any or all prohibited or unlawful acts or to require the performance of a
particular act in any labor dispute which, if not restrained or performed forthwith, may cause
grave or irreparable damage to any party;
b. Petition for injunction in strikes or lockouts under Article 264 of the Labor Code;
c. Certified cases which refer to labor disputes causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, certified to it by the Secretary of Labor and
Employment for compulsory arbitration by virtue of Article 263(g) of the Labor Code;
d. Petition to annul or modify the order or resolution (including those issued during execution
proceedings) of the Labor Arbiter.

EXCLUSIVE APPELLATE JURISDICTION:

a. All cases decided by the Labor Arbiters;

b. Cases decided by the DOLE Regional Directors or hearing officers involving small money
claims under Article 129 of the Labor Code;
c. Contempt cases decided by the Labor Arbiters.

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59. Discuss the Hierarchy of Labor Courts.

AGENCIES AND COURTS

SUPREME COURT
RULE 45

COURT OF APPEALS COURT OF

Rule 65 APPEALS
Rule 43
Petition shall be filed not later than 60 days from notice
of the judgment, order or resolution; or from notice of Petition for Review
the denial of the MR. within 15 days from
notice of the award,
judgment, final order
or resolution of the
MR.

MOTION FOR RECONSIDERATION

No
NLRC BLR DIRECTOR DOLE VOLUNTARY Appeal or
SECRETARY ARBITRATOR Certiorari

Within 10 days Within 10 days Within 10 days Within 10 days from

from receipt of from receipt of from receipt of receipt of decision.
decision decision decision
Grievances must be
settled within seven
(7) calendar days from
submission; otherwise,
will be automatically
ELEVATE TO

referred to voluntary
arbitration.

LABOR MED-ARBITER REGIONAL GRIEVANCE NCMB

ARBITER DIRECTOR MACHINERY

Decisions of Med-arbiters in INTER-UNION disputes are directly appealable to the DOLE SECRETARY
and not the BLR Director.

Decisions of the Regional Director involving small money claims are appealable to the NLRC; and
decisions of the same for voluntary arbitration in their capacity as ex-officio voluntary arbitrators (EVA) are
appealable to the CA, by way of Rule 43.

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