2 2020 UP BOC Labor Law Reviewer PDF
2 2020 UP BOC Labor Law Reviewer PDF
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TABLE OF CONTENTS
LABOR LAW 1
LABOR LAW
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himself. [Jeffrey Nacague v. Sulpicio Lines, different from that provided in its terms, is a law
Inc., G.R. No. 172589 (2010)] which impairs the obligation of a contract and
is null and void. [Clemens v. Nolting, G.R. No.
Procedural: an opportunity to be heard and to L-17959 (1922)]
defend oneself must be observed before an
employee may be dismissed [Metro Eye Vis-à-vis the freedom of contract
Security v. Salsona, G.R. No. 167367 (2007)] The prohibition to impair the obligation of
contracts is not absolute and unqualified. In
Labor as Property Right spite of the constitutional prohibition and the
One’s employment is a property right, and the fact that both parties are of full age and
wrongful interference therewith is an actionable competent to contract, it does not necessarily
wrong. The right is considered to be property deprive the State of the power to interfere
within the protection of the constitutional where the parties do not stand upon an
guarantee of due process of law. [Texon equality, or where the public health demands
Manufacturing v. Millena, G.R. No. 141380 that one party to the contract shall be protected
(2004)] against himself. [Leyte Land Transportation
Co. v. Leyte Farmers & Workers Union, G.R.
The Right to Assemble No. L-1377 (1948)]
Sec. 4, Art. III. No law shall be passed Labor Rights and Protection
abridging the right of the people peaceably All persons shall have the right to a speedy
to assemble and petition the government for disposition of their cases before all judicial,
redress of grievances. quasi-judicial, or administrative bodies. [Sec.
16, Art. III.]
Right to peaceably assemble and petition for
redress of grievances is, together with freedom No involuntary servitude in any form shall exist.
of speech, of expression, and of the press, a [Sec. 18 (2), Art. III.]
right that enjoys primacy in the realm of
constitutional protection. [BAYAN, et al. v. Except as a punishment for a crime whereof
Ermita, G.R. No. 169838, (2006)]. the party shall have been duly convicted. [Sec.
18 (2), Art. III.]
Wearing armbands and putting up placards to
express one’s views without violating the rights 2. Civil Code
of third parties, are legal per se and even
constitutionally protected. [Bascon v. CA, G.R. Relations between labor and capital
No. 144899 (2004)] The relations between capital and labor are
not merely contractual. [Art. 1700, CC]
The Right to Form Associations [Sec. 8, Art.
III, 1987 Constitution] They are impressed with public interest that
The right to form associations shall not be labor contracts:
impaired except through a valid exercise of a. Must yield to the common good
police power. [Bernas, The 1987 Philippine b. Are subject to special laws on
Constitution: A Comprehensive Reviewer] 1. Labor unions,
2. Collective bargaining,
Non-impairment of Contracts [Sec. 10, Art. 3. Strikes and lockouts,
III, 1987 Constitution] 4. Closed shop,
A law which changes the terms of a legal 5. Wages,
contract between parties, either in the time or 6. Working conditions,
mode or performance, or imposes new 7. Hours of labor; and
conditions, or dispenses with those expressed, 8. Similar subjects
or authorizes for its satisfaction something
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b. In the pledge of protection to labor with Sec. 3, par. 1, Art. XIII, 1987 Constitution.
specific authority to regulate the relations The State shall:
between landowners and tenants and a. Afford full protection to labor -
between labor and capital. 1. Local and overseas,
2. Organized and unorganized, and
Separation pay as measure of social justice b. Promote full employment and equality of
[PLDT v. NLRC, G.R. No. 80609 (1988)] employment opportunities for all.
The rule embodied in the Labor Code is that a
person dismissed for lawful cause is not Sec. 2, R.A. No. 10911. Declaration of
entitled to separation pay. Policies
The State shall promote equal opportunities in
Exception: Considerations of equity. Equity employment for everyone. To this end, it shall
has been defined as justice outside law, being be the policy of the State to:
ethical rather than jural and belonging to the a. Promote employment of individuals on the
sphere of morals than of law. basis of their –
1. Abilities,
Strictly speaking, however, it is not correct to 2. Knowledge,
say that there is no express justification for the 3. Skills, and
grant of separation pay to lawfully dismissed 4. Qualifications, rather than their age
employees other than the abstract b. Prohibit arbitrary age limitations in
consideration of equity. employment.
c. Promote the right of all employees and
Reason: Our Constitution is replete with workers, regardless of age, to be treated
positive commands for the promotion of social equally in terms of –
justice, and particularly the protection of the 1. Compensation,
rights of the workers. 2. Benefits,
3. Promotion,
3. Equal work opportunities 4. Training, and
5. Other employment opportunities.
Declaration of Basic Policy [Art. 4, LC]
The State shall: 4. Right to self-organization and
a. Afford protection to labor, collective bargaining
b. Promote full employment,
c. Ensure equal work opportunities 1987 Constitution
regardless of: The State shall guarantee:
1. Sex, a. The right of the people, including those
2. Race, or employed in the public and private sectors,
3. Creed, to form unions, associations, or societies
d. Regulate the relations between workers for purposes not contrary to law. [Sec. 8,
and employers. Art. III.]
b. The rights of all workers to –
The State shall assure the rights of workers to: 1. Self-organization [Sec. 3, Art. XIII]
a. Self-organization, 2. Collective bargaining and negotiations
b. Collective bargaining, [Sec. 3, Art. XIII]
c. Security of tenure, and 3. Peaceful concerted activities [Sec. 3,
d. Just and humane conditions of work. Art. XIII]
4. Strike in accordance with law. [Sec. 3,
Note: Art. 4 of the Labor Code must be read in Art. XIII]
relation to the 1987 Constitution since this is
still based on the 1973 Constitution.
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Corporation v. Farrales, G.R. No. 211497 ER has burden of proving valid dismissal
(2015)] Unsubstantiated accusations or baseless
conclusions of the employer are insufficient
Of labor contracts legal justifications to dismiss an employee. The
A CBA, as a labor contract within the unflinching rule in illegal dismissal cases is that
contemplation of Art. 1700 of the Civil Code of the employer bears the burden of proof.
the Philippines which governs the relations [Garza v. Coca-Cola Bottlers Philippines, Inc.,
between labor and capital, is not merely G.R. No. 180972 (2014)]
contractual in nature but impressed with public
interest, thus, it must yield to the common Penalty must be commensurate with gravity
good. As such, it must be construed liberally of offense
rather than narrowly and technically, and the Not every case of insubordination or willful
courts must place a practical and realistic disobedience by an employee reasonably
construction upon it, giving due consideration deserves the penalty of dismissal. The penalty
to the context in which it is negotiated and to be imposed on an erring employee must be
purpose which it is intended to serve. [Cirtek commensurate with the gravity of his offense.
Employees Labor Union-FFW v. Cirtek [Joel Montallana v. La Consolacion College
Electronics, G.R. No. 190515 (2010)] Manila, G.R. No. 208890 (2014)]
Mutual obligation
The employer's obligation to give his workers II. RECRUITMENT AND
just compensation and treatment carries with it PLACEMENT
the corollary right to expect from the workers
adequate work, diligence and good conduct. A. DEFINITION OF RECRUITMENT
[Judy Philippines, Inc. v NLRC, G.R. No. AND PLACEMENT
111934 (1998)]
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Provided, That any person or entity which, in License and Authority [Art. 13(d) and (f); Sec.
any manner, offers or promises for a fee 3 (h)(g), DO 141-14]
employment to two or more persons shall be
License Authority
deemed engaged in recruitment and
placement. [Art. 13 (b), Labor Code] document issued by the Department of
Labor and Employment (DOLE)
The proviso provides for a presumption that a
person or entity so described engages in Authorize an entity Authorize an entity
recruitment and placement. [People v. Panis, to operate as a to operate as a
G.R. No. 58674 (1988)] private employment private recruitment
agency entity
Number of persons: not essential
The number of persons dealt with is not an When a license is Does not entitle a
essential ingredient of the act of recruitment given, one is also private recruitment
and placement of workers. Any of the acts authorized to collect entity to collect fees.
mentioned in Art. 13(b) will constitute fees
recruitment and placement even if only one
prospective worker is involved. [People v. Private employment agency (PEA) v.
Panis, supra.] Private recruitment entity (PRE) [Art. 13 (c),
(e)]
Worker – any member of the labor force,
whether employed or unemployed. [Art.13 (a)] Private Private
Employment Recruitment
Overseas Filipino Worker/Migrant Worker – Agency Entity
a person who is to be engaged, is engaged, or
has been engaged in a remunerated activity: Definition Any person Any person or
1. in a state of which he or she is not a citizen, or entity association
or engaged in engaged in the
2. on board a vessel navigating the foreign recruitment recruitment
seas other than a government ship used for and and placement
military or non-commercial purposes, or placement of of workers,
3. on an installation located offshore or on the workers for a locally or
high seas. [Sec. 2 (a), RA 8042, as fee which is overseas,
amended] charged, without
directly or charging,
indirectly, directly or
from the indirectly,
workers or any fee
employers or
both
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or violation of the conditions for issuance of The Administration shall also establish and
license or authority to recruit workers. All maintain joint projects with private
prohibited recruitment. activities and organizations, domestic or foreign, in the
practices which are penal in character as furtherance of its objectives. [Sec. 3, EO 247]
enumerated and defined under and by
virtue of existing laws, shall be prosecuted POEA Standard Contract Deemed
in the regular courts in close coordination Integrated in every Employment Contract
with the appropriate Departments and While the seafarers and their employers are
agencies concerned; governed by their mutual agreements, the
e. Maintain a registry of skills for overseas POEA rules and regulations require that the
placement;
POEA SEC, which contains the standard terms
f. Recruit and place workers to service the and conditions of the seafarers' employment in
requirements
for trained and competent foreign ocean-going vessels, be integrated in
Filipino workers by foreign governments every seafarer's contract. [Wallem Maritime
and their instrumentalities and such other Services, Inc. v. Tanawan, G.R. No. 160444,
employers as public interest may require; (2012)]
g. Promote the development of skills and
careful selection of Filipino workers;
POEA Jurisdiction vis-a-vis NLRC and RTC
h. Undertake overseas market development
Administrative Disciplinary
activities for placement of Filipino workers;
cases arising action cases
i. Secure the best terms and conditions of
out of and other
employment of Filipino contract workers
violations of special
and ensure compliance therewith;
rules and cases,
j. Promote and protect the well-being of
regulations involving
Filipino workers overseas;
relating to employers,
k.
Develop and implement programs for the
licensing and principals,
effective monitoring of returning contract
registration of contracting
workers, promoting their re-training and re- POEA
recruitment partners, and
employment or their smooth re-integration
and Filipino
into the mainstream of national economy in
employment migrant
coordination with other government
agencies and workers
agencies;
entities. [Sec. [Sec. 28(b),
l. Institute a system for ensuring fair and
28(a), Omb. Omb. Rules
speedy disposition of cases involving
Rules Implementing
violation or recruitment rules and
Implementing RA 8042]
regulations as well as violation of terms and
RA 8042]
conditions of overseas employment;
m. Establish a system for speedy and Claims arising out of an ER-
efficient enforcement of decisions laid EE relationship or by virtue of
down through the exercise of its any law or contract involving
adjudicatory function; Filipino workers for overseas
n. Establish and maintain close relationship NLRC
deployment including actual,
and enter into joint projects with the moral, and exemplary and
Department of Foreign Affairs, Philippine other forms of damage. [Sec.
Tourism Authority, Manila International 10, RA 8042]
Airport Authority, Department of Justice,
Department of Budget and Management Criminal actions arising from
and other relevant government entities, in illegal recruitment [Sec. 9, RA
the pursuit of its objectives. RTC
8042]
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Acts prohibited under Art. 34 are grounds for g. To obstruct or attempt to obstruct
suspension or cancellation of license. Note that inspection by the Secretary of Labor or by
these acts likewise constitute illegal his duly authorized representatives;
recruitment under RA 8042 as amended by RA h. To fail to file reports on the status of
10022. employment, placement vacancies,
remittance of foreign exchange earnings,
Who can suspend or cancel the license? separation from jobs, departures and such
1. DOLE Secretary other matters or information, as may be
2. POEA Administrator required by the Secretary of Labor;
i. To substitute or alter employment contracts
The power to suspend or cancel any license or approved and verified by the Department of
authority to recruit employees for overseas Labor from the time of actual signing
employment is concurrently vested with the thereof by the parties up to and including
POEA and the Secretary of Labor. [People v. the periods of expiration of the same
Diaz, G.R. 112175 (1996)] without the approval of the Secretary of
Labor;
5. Prohibited Practices j. To become an officer or member of the
Board of any corporation engaged in travel
Recruitment of Local Workers: Prohibited agency or to be engaged directly or
Practices under Art. 34 indirectly in the management of a travel
a. To charge or accept, directly or indirectly, agency; and
any amount greater than that specified in k. To withhold or deny travel documents from
the schedule of allowable fees prescribed applicant workers before departure for
by the Secretary of Labor, or to make a monetary or financial considerations other
worker pay any amount greater than that than those authorized under this Code and
actually received by him as a loan or its implementing rules and regulations.
advance;
b. To furnish or publish any false notice or Recruitment of Migrant Workers: Prohibited
information or document in relation to Acts under Sec. 6, R.A. No. 8042
recruitment or employment; a. To charge or accept directly or indirectly
c. To give any false notice, testimony, any amount greater than that specified in
information or document or commit any act the schedule of allowable fees prescribed
of misrepresentation for the purpose of by the Secretary of Labor and
securing a license or authority under this Employment, or to make a worker pay or
Code; acknowledge any amount greater than that
d. To induce or attempt to induce a worker actually received by him as a loan or
already employed to quit his employment in advance;
order to offer him to another, unless the b. To furnish or publish any false notice or
transfer is designed to liberate the worker information or document in relation to
from oppressive terms and conditions of recruitment or employment;
employment; c. To give any false notice, testimony,
e. To influence or to attempt to influence any information or document or commit any act
person or entity not to employ any worker of misrepresentation for the purpose of
who has not applied for employment securing a license or authority under the
through his agency; Labor Code, or for the purpose of
f. To engage in the recruitment or placement documenting hired workers with the
of workers in jobs harmful to public health POEA, which include the act of
or morality or to the dignity of the Republic reprocessing workers through a job
of the Philippines; order that pertains to nonexistent work,
work different from the actual overseas
work, or work with a different employer
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c. Solidary Liability of Agent & 2. Assume joint and several liability with
Principal the employer for all claims and liabilities
which may arise in connection with the
Coverage implementation of the contract, including
The liability of the principal/employer and the but not limited to unpaid wages, death,
recruitment/placement agency for the claims disability compensation and repatriation.
involving Filipino workers for overseas 3. Assume full and complete responsibility
deployment including claims for damages is for all acts of its officers, employees and
joint and several. representatives done in connection with
recruitment and placement [Part II, Rule II,
Incorporation into the contract Sec. 4 (f) (7-9), 2016 Revised POEA Rules
This shall be incorporated in the contract for and Regulations].
overseas employment and shall be a condition
precedent for its approval. For corporations or partnerships, a duly
notarized undertaking by the corporate officers
Performance bond and directors, or partners, that they shall be
The performance bond filed by the joint and severally liable with the corporation or
recruitment/placement agency shall be partnership for claims and/or damages
answerable for all money claims or damages awarded to workers is also required. [Part II,
awarded to workers. Rule II, Sec. 4 (g), 2016 Revised POEA Rules
and Regulations]
Corporate officers and directors and
partners solidarily liable 2. Theory of Imputed Knowledge
If the recruitment/placement agency is a
juridical being, the corporate officers and This is a doctrine in agency stating that the
directors and partners as the case may be, principal is chargeable with and bound by the
shall be joint and severally liable with the knowledge of or notice to his agent received
corporation or partnership for the claims and while the agent was acting as such.
damages. [Sec. 10, RA 8042 as amended]
Notice to the agent is notice to the principal.
Purpose of solidary liability
The termination of agreement between the A local employment agency is considered the
manning agency and its principal does not agent of the foreign employer, the principal.
relieve the former of its liability. The agency Knowledge of the former of existing labor and
agreement extends until the expiration of the social legislation in the Philippines in binding
employment contracts of the employees on the latter. Notice to the former of any
recruited and employed. Otherwise, this violation thereof is notice to the latter.
renders nugatory the purpose of the law which
is to assure aggrieved workers of immediate But, notice to the principal is NOT notice to the
and sufficient payment of what is due them. agent. Notice to the foreign employer,
therefore, is not notice to the local employment
Requisite undertaking for application of agency.
license
The written application for a license to operate
a private employment agency shall be
submitted with, among others, a duly
notarized undertaking that the applicant:
1. Shall assume full and complete
responsibility for all claims and liabilities
which may arise in connection with the use
of the license;
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Contractual Service Supplier: Requisites a. General Rule (GR): within 15 working days
for exclusion after signing of contract/appointment
1. Must be an Executive, Manager, or b. If commencement of employment is later
Specialist that the 15 working day grace period:
2. Enters the Philippines temporarily to supply before the commencement of employment
a service pursuant to a contract between [Sec. 17, D.O. No. 186-17]
his/her employer and a service consumer
in the Philippines What documents should be submitted
3. Must possess the appropriate educational 1. Application form
and professional qualifications; and 2. Photocopy of passport with visa, or Cert of
4. Employed for at least 1 year prior [Section Recognition for Refugees or Stateless
3, D.O. No. 186-17] Persons
3. Original copy of notarized appointment or
Certificate of Exclusion contract of employment enumerating the
All foreign nationals excluded from securing duties and responsibilities, annual salary,
AEP shall secure Certificate of Exclusion from and other benefits of the foreign national
the Regional Office. Further, Regional Offices 4. Photocopy of Mayor’s Permit to operate
shall issue the Certificate of Exclusion within business, in case of locators in economic
two (2) working days after receipt of complete zones, certification from the PEZA or the
documentary requirements and fees. [Section Ecozone Authority that the company is
4, D.O. No. 186-17] located and operating within the ecozone,
while in case of a construction company,
2. Conditions for Grant of Permit photocopy of license from PCAB or D.O.
No. 174-17 Registration should be
Non-availability of Competent, Able, and submitted in lieu of Mayor’s Permit; and
Willing persons [CAW] 5. Business Name Registration and
The employment permit may be issued to a Application Form with the Department of
non-resident alien or to the applicant employer Trade and Industry (DTI) or SEC
after a determination of the non-availability of Registration and GIS;
a person in the Philippines who is 6. If the position title of the foreign national is
competent, able and willing at the time of included in the list of regulated professions,
application to perform the services for a Special Temporary Permit (STP) from the
which the alien is desired. Professional Regulations Commission
(PRC); and
For an enterprise registered in preferred areas 7. If the employer is covered by the Anti-
of investments, said employment permit may Dummy Law, an Authority to Employ
be issued upon recommendation of the Foreign National (ATEFN) from the DOJ or
government agency charged with the from the DENR in case of mining. [Section
supervision of said registered enterprise. 5a, D.O. No. 186-17]
[Art 40, Labor Code]
In case of additional position of change in
Where to file Applications position
All applications for AEP shall be filed and Additional position of the foreign national in
processed at the DOLE Regional Office or the same company or subsequent assignment
Field Office having jurisdiction over the in related companies during the validity or
intended place of work. [Sec. 5(a), D.O. No. renewal of the AEP will be subject for
186-17] publication requirement. A change of
position or employer shall require an
When to file Applications application for new AEP [Section 5(c), D.O.
Newly hired/appointed officers may file the No. 186-17]
application for new AEP without penalty:
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Principles in determining hours worked Note: Article 82 applies to the whole of Title I.
Hours worked shall include: This includes Service Incentive Leaves, which
1. All time during which an employee is will be discussed in a separate section.
required to be on duty or to be at a
prescribed workplace; AND Exceptions (i.e. those NOT covered by Title I):
2. All time during which an employee is 1. Government employees [Art. 82; Art. 76]
suffered or permitted to work. [Art. 84] (exception to the exception: Employees
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of GOCCs created under the Corporation transfer, suspend, lay off, recall, discharge,
Code) assign or discipline employees. [Art.
2. Managerial Employees [Art. 82] 219(m)]
3. Members of the managerial staff [Art. 82]
4. Field Personnel [Art. 82] Characteristics of managerial employees
5. Members of the family of the employer who [Sec. 2(b), Rule I, Book III, IRR]
are dependent on him for support [Art. 82]; Managerial employees are exempted from the
6. Domestic workers or kasambahay [Art. coverage of Book III Articles 83 through 96 if
141, RA 10361] (exception to the they meet all of the following conditions:
exception: Assignment in a Commercial, 1. Their primary duty consists of the
Industrial or Agricultural Enterprise) management of the establishment in
7. Persons in the personal service of another which they are employed or of a
8. Workers who are paid by result as department or subdivision thereof.
determined by DOLE regulation [Art. 82] 2. They customarily and regularly direct the
work of two or more employees therein.
(1) Government Employees 3. They have the authority to hire or fire
employees of lower rank; or their
The terms and conditions of employment of all suggestions and recommendations as
government employees, including employees to hiring and firing and as to the promotion
of GOCCs, are governed by the Civil Service or any other change of status of other
rules and regulations, not by the Labor Code employees, are given particular weight.
[Art. 291].
Managerial employees and managerial staff
However, not all GOCCs are governed by the are determined by their job description and not
Civil Service Rules; only those created by their job title. [Peñarada v. Baganga Plywood
original charter are governed by the Civil Corp., G.R. No. 159577 (2006)]
Service rules:
(3) Members of the managerial staff
“Following Sec. 2(i) Art. IX-B of 1987 Phil. (supervisory employees)
Constitution, the test in determining whether a
government owned corporation is subject to Definition
the Labor Code or the Civil Service law is Supervisory employees are those who, in the
finding out what created it – if it is created by interest of the employer, effectively
a special charter, then, Civil Service Law recommend such managerial actions if the
applies, if it is created by the General exercise of such authority is not merely
Corporation Law, then the Labor Code routinary or clerical in nature but requires the
applies.” [PNOC Energy Development Corp. v. use of independent judgment. [Art. 219(m)]
NLRC, G.R. No. 79182 (1991)]
Art. 82 also includes managerial staff
(2) Managerial Employees (supervisory employees) in the definition of
managerial employees. The definition in Art. 82
Two definitions of “managerial employee” covers more people than that in Art. 219(m). In
in the Labor Code: effect, managerial employees in Art. 82
1. One whose primary duty consists of the includes supervisors, but Art. 219(m) does not,
management of the establishment in which for purposes of the right to self-organization.
they are employed or of a department or
subdivision thereof and to other officers or
members of the managerial staff. [Art. 82]
2. One who is vested with the powers or
prerogatives to lay down and execute
management policies and/or to hire,
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Managerial Staff is included as they are ascertain if actual hours of work in the field can
considered managerial employees as well be determined with reasonable certainty by the
[Sec. 2(c), Rule I, Book III, IRR] employer. In so doing, an inquiry must be
Officers or members of a managerial staff are made as to whether or not the employee’s
also exempted if they perform the following time and performance are constantly
duties and responsibilities: supervised by the employer. [Far East
1. Their primary duty consists of the Agricultural Supply v. Lebatique, G.R. No.
performance of work directly related to 162813 (2007)]
management policies of their employer;
2. Customarily and regularly exercise Although the fishermen perform non-
discretion and independent judgment; agricultural work away from petitioner’s
3. (a) Regularly and directly assist a business offices, the fact remains that
proprietor or a managerial employee throughout the duration of their work they are
whose primary duty consists of the under the effective control and supervision
management of the establishment in which of petitioner through the vessel’s patron or
he is employed or subdivision thereof; OR master. Hence, the fishermen are not “field
(b) Execute under general supervision personnel”. [Mercidar Fishing Corporation v.
work along specialized or technical lines NLRC, G.R. No. 112574 (1998)]
requiring special training, experience, or
knowledge; OR (5) Dependent Family Members
(c) Execute, under general supervision,
special assignments and tasks; Workers who are family members of the
4. Do not devote more than 20% of their hours employer, and who are dependent on him for
worked in a work week to activities which their support, are outside the coverage of this
are not directly and closely related to the Title on working conditions and rest periods
performance of the work described in [Art. 82].
paragraphs (1), (2) and (3) above.
(6) Domestic Helpers (Workers)
Effective recommendatory power
Supervisory employees are those who, in the Definition
interest of the employer, effectively Domestic worker or “Kasambahay” refers to
recommend such managerial actions and the any person engaged in domestic work within
exercise of such authority is not merely an employment relationship such as but not
routinary or clerical in nature but requires the limited to the following:
use of independent judgment [Art. 219(m)]. 1. general househelp,
2. nursemaid or “yaya”,
(4) Field Personnel 3. cook,
4. gardener or
Field personnel are non-agricultural 5. laundry person
employees:
1. Who regularly perform their duties away "Domestic work" refers to work performed in
from the principal or place of business or or for a household. [Sec. 3(d), IRR of RA10361]
branch office of the employer; and
2. Whose actual hours of work in the field "Household" refers to the immediate
cannot be determined with reasonable members of the family or the occupants of the
certainty. [Art. 82] house who are directly and regularly provided
services by the kasambahay. [Sec. 3(g), IRR of
Legal Test: Control & Supervision of RA 10361]
employer
In order to determine whether an employee is
a field employee, it is also necessary to
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rates have been fixed by the Secretary of Labor determining the existence or absence of
in accordance with the aforesaid section, are employer-employee relationship. [Tan v.
not entitled to receive overtime pay. [Sec. Lagrama, G.R. No. 111042 (1999)]
2(e), Rule I; Labor Congress of the Philippines
v. NLRC, G.R. No. 123938 (1998)] b. Compensable Time
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regular wage for each hour of work performed for the statutorily fixed or voluntary agreed
between 10pm and 6am. [Art. 86] hours of labor he is supposed to do. [PNB v.
PEMA, G.R. No. L-30279 (1982)]
Illustration: If an employee has a regular wage
of P100 for each hour of work performed Overtime on ordinary working day
between 10PM and 6AM, he/she shall be paid Work may be performed beyond eight hours a
P110 per hour worked during such time day, provided that the employee is paid an
interval. additional compensation equivalent to his
regular wage plus at least 25% thereof. [Art. 87]
Coverage
Aside from those enumerated under Art. 82 as Overtime work on holiday or rest day
excluded from Title I: Working Conditions and Work performed beyond eight hours on a
Rest Periods, those employed in retail and holiday or rest day shall be paid an additional
service establishments regularly employing not compensation equivalent to the rate of the first
more than five (5) workers are also NOT eight hours on a holiday or rest day plus at least
entitled to Night Shift differential [Sec. 1, Rule 30% thereof. [Art. 87]
II, Book III, IRR]
Computation of additional compensation
Rest days (night-off) Base of Computation: Regular wage – means
Night shift employees are entitled to a weekly regular base pay.
night-off (usually Saturday evening) or a
weekly rest period of 24 hours beginning at the It includes the cash wage only without
start of the night shift [See also Art. 91]. deduction on account of facilities provided by
the employer. [Art. 90]
Work on special days
Night shift employees are also entitled to the It excludes money received in different
premium pay on special days and holidays. concepts, such as Christmas bonus and other
These days are reckoned as calendar days fringe benefits. [Bisig ng Manggagawa ng
which start at midnight and end at the following Philippine Refining Co. v. Philippine Refining
midnight. The premium pay for the night shift Co., G.R. L-27761 (1981)]
also starts or ends at midnight. However, the BUT when the overtime work was performed
employment contract, company policy or CBA on the employee’s rest day or on special
may provide that in the case of night shift days or regular holidays (Art. 93 and 94), the
workers, days—including special days and premium pay, must be included in the
regular holidays—shall begin on the night computation of the overtime pay. [See: p. 19 of
before a calendar day. [Chan, Pre-Week Handbook on Workers’ Statutory Monetary
Guidelines] Benefits, issued by the Bureau of Working
Conditions, 2006]
iii. Overtime work
ILLUSTRATIONS
Overtime compensation is additional pay for Overtime on a Regular Day (OTRD)
service or work rendered or performed in Work may be performed beyond eight (8) hours
excess of eight hours a day by employees or a day provided that the employee is paid for the
laborers covered by the Eight-hour Labor Law. overtime work, an additional compensation
[National Shipyard and Steel Corp. v. CIR, equivalent to his regular wage plus at least
G.R. No. L-17068 (1961)] twenty-five percent (25%) thereof [Art. 87]
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Work on Scheduled Rest Day (WRD) 6. Where overtime work is necessary to avail
Work performed on a rest day shall be paid an of favorable weather or environmental
additional compensation equivalent to 30% of conditions where performance or quality of
the regular wage. [Art. 93] work is dependent thereon. [added by Rule
1, Sec. 10]
WRD = Regular Wage x 130%
Overtime pay does not preclude night
Overtime on Scheduled Rest Day (OTSRD) differential pay
Where an employee is made or permitted to When the tour of duty of a laborer falls at
work on his scheduled rest day, he shall be nighttime [between 10:00pm and 6:00am], the
paid an additional compensation of at least receipt of overtime pay will not preclude the
thirty percent (30%) of his regular wage. An right to night differential pay. The latter is
employee shall be entitled to such additional payment for work done during the night, while
compensation for work performed on Sunday the other is payment for the excess of the
only when it is his established rest day. [Art. regular eight-hour work. [Naric v. Naric
93(a)] Workers Union, G.R. No. L-12075 (1959)]
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Universal Robina Corp. v. Villa, G.R. No. expressed through collective bargaining or
175869 (2016)] other legitimate workplace mechanisms of
participation such as labor management
3. Compensation for work rendered in excess councils, employee assemblies or
of the 8 normal working hours in a day: referenda.
a. For ordinary days, additional 25% of 2. In firms using substances, chemicals and
the basic hourly rate. processes or operating under conditions
b. For rest day/special day/holiday, where there are airborne contaminants,
additional 30% of the basic hourly rate. human carcinogens or noise prolonged
exposure to which may pose hazards to
4. A given day is considered an ordinary day, employees’ health and safety, there must
unless it is a rest day. be a certification from an accredited
health and safety organization or
5. Undertime does NOT offset overtime. practitioner from the firm’s safety
Undertime work on any particular day shall committee that work beyond eight hours is
not be offset by overtime work on any other within threshold limits or tolerable levels of
day. Permission given to the employee to exposure, as set in the OSHS.
go on leave on some other day of the week 3. The employer shall notify DOLE, through
shall NOT exempt the employer from the Regional Office having jurisdiction over
paying the additional compensation the workplace, of the adoption of the CWW
required in this Chapter. [Art. 88] scheme. The notice shall be in DOLE
CWW Report Form attached to this
Offsetting work on a regular day with work Advisory. [DOLE Advisory No. 02-04]
rendered on a holiday or rest day is prohibited
because such deprives the employee of Effects of CWW
additional pay or premium. [Lagatic v. NLRC, 1. Unless there is a more favorable practice
G.R. No. 121004 (1998)] existing in the firm, work beyond eight
hours will not be compensable by
(a) Compressed work week overtime premium provided the total
(CWW) number of hours worked per day shall not
exceed twelve (12) hours. In any case, any
[DOLE Advisory No. 02, Series of 2004] work performed beyond 12 hours a day or
48 hours a week shall be subject to
A CWW refers to one where the normal overtime premium.
workweek is reduced to less than 6 days but 2. Consistent with Art. 85, employees under a
the total number of work hours of 48 hours per CWW scheme are entitled to meal periods
week shall remain. Under the CWW scheme, of not less than 60 minutes. There shall be
the normal workday goes beyond eight no impairment of the right of the employees
hours but not exceed 12 hours, without the to rest days as well as to holiday pay, rest
corresponding overtime premium. [DOLE day pay or leaves in accordance with law
Advisory No. 04, Series of 2010]. or applicable collective bargaining
agreement or company practice.
In excess of such, the employer is obliged to 3. Adoption of the CWW scheme shall in no
pay the worker the overtime premium. case result in diminution of existing
benefits. Reversion to the normal eight-
Conditions for CWW hour workday shall not constitute a
1. The CWW scheme is undertaken as a diminution of benefits.
result of an express and voluntary
agreement of majority of the covered Rationale: Although the right to overtime pay
employees or their duly authorized cannot be waived as per Cruz v. Yee Sing
representatives. This agreement may be [G.R. No. L-12046 (1959)], D.O. No. 21
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sanctions the waiver of overtime pay in Exceptions: Employees may be given a meal
consideration of the benefits that the period of not less than twenty (20) minutes
employees will derive from the adoption of a provided that such shorter meal period is
compressed workweek scheme, thus: credited as compensable hours worked of the
employee:
The compressed workweek scheme was 1. Where the work is non-manual work in
originally conceived for establishments wishing nature or does not involve strenuous
to save on energy costs, promote greater work physical exertion;
efficiency and lower the rate of employee 2. Where the establishment regularly
absenteeism, among others. Thus, under this operates not less than sixteen (16) hours a
scheme, the generally observed workweek of day;
six (6) days is shortened to five (5) days, but 3. In case of actual or impending
prolonging the working hours from Monday to emergencies or there is urgent work to be
Friday without the employer being obliged for performed on machineries, equipment or
pay overtime premium compensation for work installations to avoid serious loss which the
performed in excess of eight (8) hours on employer would otherwise suffer; OR
weekdays, in exchange for the benefits that will 4. Where the work is necessary to prevent
accrue to the employees (e.g. savings on meal serious loss of perishable goods [par. 1,
and snack expenses; longer weekends etc). Sec. 1, Rule I, Book III, IRR]
[Bisig Manggagawa sa Tryco v. NLRC, et al.,
G.R. No. 151309 (2008)] The eight-hour work period does not include
the meal break. Employees are not prohibited
(b) Built-in overtime from going out of the premises as long as they
return to their posts on time. Nowhere in the
Composite or Package Pay NOT per se law may it be inferred that employees must
illegal; Conditions for Validity take their meals within the company premises.
Composite or “package pay” or “all-inclusive [Philippine Airlines v. NLRC, G.R. No. 132805
salary” is an arrangement where the (1999)]
employee’s salary includes the overtime pay.
In other words, the overtime pay is “built-in”. SYNTHESIS OF THE RULES
Such arrangement is valid provided that: General Rule: Meal periods are NOT
1. There is a clear written agreement compensable.
knowingly and freely entered by the
employee; and Exception:
2. The mathematical result shows that the It becomes compensable:
agreed legal wage rate and the overtime 1. Where the lunch period or meal time is
pay, computed separately, are equal to or predominantly spent for the employer’s
higher than the separate amounts legally benefit. [Azucena citing 31 Am. Jur. 881;
due. [Damasco v. NLRC, G.R. 115755 Duka, Labor Laws and Social Legislation]
(2000)] 2. Meal periods of 1 hour are deemed
compensable when the employee is on
c. Non-compensable hours; When continuous shift. [National Development
compensable Co. v. CIR, G.R. No. L-15422, (1962)]
3. Shortened meal period of less than 1 hour
i. Meal break (say, 30 minutes) must be compensable.
[Sec. 7, Rule I, Book III, IRR]
General Rule: Subject to such regulations as
the Secretary of Labor may prescribe, it shall Note: To shorten meal time to less than 20
be the duty of every employer to give his minutes is not allowed. If the so-called meal
employees not less than sixty (60) minutes time is less than 20 minutes, it becomes only a
time-off for their regular meals. [Art. 85]
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REST PERIOD and is considered working hours worked, whether used productively by
time. the employees or not.
Exception to the Exception: Shortened meal If they last more than 20 minutes, the time
breaks upon the employees’ request – NOT may not be treated as hours worked if:
compensable. 1. the employees can leave their workplace or
go elsewhere whether within or without the
The employees themselves may request that work premises; OR
the meal period be shortened so that they can 2. the employees can use the time effectively
leave work earlier than the previously for their own interest.
established schedule. [Drilon: Letter to Kodak
Philippines, Nov. 27, 1989; Cilindro: BWC- In this case, the employer may extend the
WHSD, Opinion No. 197, s. 1998] working hours beyond the regular schedule on
that day to compensate for the loss of
Conditions for shortened meal breaks upon productive man-hours without being liable for
employee’s request overtime pay. [Policy Instruction No. 36, May
1. The employees voluntarily agree in writing 22, 1978]
to a shortened meal period of 30 minutes
and are willing to waive the overtime pay Note: The time during which an employee is
for such shortened meal period; inactive by reason of work interruptions beyond
2. There will be no diminution whatsoever in his control is considered working time, either if
the salary and other fringe benefits of the the imminence of the resumption of work
employees existing before the effectivity of requires the employee’s presence at the place
the shortened meal period; of work or if the interval is too brief to be utilized
3. The work of the employees does not effectively and gainfully in the employee’s own
involve strenuous physical exertion and interest. [Sec. 4(d), Rule I, Book III, IRR]
they are provided with adequate “coffee
breaks” in the morning and afternoon; iii. Idle time
4. The value of the benefits derived by the
employees from the proposed work The idle time that an employee may spend for
arrangement is equal to or resting and dining which he may leave the spot
commensurate with the compensation or place of work though not the premises of his
due them for the shortened meal period as employer, is not counted as working time
well as the overtime pay for 30 minutes as only where the work is broken or is not
determined by the employees concerned; continuous. [National Development Co. v. CIR,
5. The overtime pay of the employees will G.R. No. L-15422 (1962)]
become due and demandable if ever they
are permitted or made beyond 4:30pm; A laborer need not leave the premises of the
and factory, shop or boat in order that his period of
6. The effectivity of the proposed working rest shall not be counted, it being enough that
time arrangement shall be of temporary he "cease to work", may rest completely and
duration as determined by the Secretary leave or may leave at his will the spot where he
of Labor. [BWC-WHSD Opinion No. 197, s. actually stays while working, to go somewhere
1998] else, whether within or outside the premises of
said factory, shop or boat. If these requisites
ii. Power interruptions or are complied with, the period of such rest
brownouts shall not be counted. [Luzon Stevedoring Co.
v. Luzon Marine Department Union, G.R. No.
Brownouts of short duration, but not L-9265 (1957)]
exceeding 20 minutes, shall be treated as
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Requirements for deducting value of See also VI. D. Bonus for a more
facilities comprehensive discussion on company
Mere availment is not sufficient to allow practices*
deductions from employees’ wages. Before the
value of facilities can be deducted from the 13th MONTH PAY
employees’ wages, the following requisites [PD 851 (The 13th-Month Pay Law) and the
must all be attendant: Revised Guidelines on the Implementation of
a. Proof must be shown that such facilities are the 13th Month Pay Law]
customarily furnished by the trade;
b. The provision of deductible facilities must Coverage
be voluntarily accepted in writing by the General Rule: ALL EMPLOYERS are hereby
employee; and required to pay all their rank and file
c. Facilities must be charged at reasonable employees a 13th month pay not later than
value. [SLL International Cable Specialists Dec 24 of every year, Provided that they have
v. NLRC, G.R. No. 172161 (2011)] worked for at least one (1) month during a
calendar year. [Memorandum Order No. 28]
“Customary” means long-established and
constant practice connoting regularity. [Millares N.B.: The law distinguishes managerial
v. NLRC & PICOP, G.R. No. 122827 (1999)] employees from rank-and-file employees;
hence, managerial employees are not legally
Computation entitled to 13th month pay.
Value of Facilities = Cost of Operation and
maintenance + Adequate depreciation + Exempted Employers:
reasonable allowance (not more than 5.5% a. Government, its political subdivisions,
interest on the depreciated amount of capital including GOCCs except those operating
invested by the employer) essentially as private subsidiaries of the
Government;
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due them. [BWC-WHSD Opinion No. 053, s. increases should only be used for
1998] computations which would be advantageous to
the employer (i.e. deduction for absences) and
Successive holiday pay not for computations which would diminish the
According to IRR, Rule IV, Sec. 10, an existing benefits of the employees (i.e.,
employee is entitled to holiday pay for both overtime pay, holiday pay and leave
days, IF: conversions). [Trans Asia Phils. v. NLRC,
a. He is present on day immediately supra]
preceding first holiday; or
b. He works on first holiday, which entitles him Sundays
to pay on second holiday. (See “Work on a Sunday or holiday which is
also a scheduled rest day”)
Where the day immediately preceding the a. When a holiday falls on a Sunday, the
holiday is a non-working day in the following Monday will not be considered a
establishment or the scheduled rest day of the holiday unless a proclamation says so.
employee, he shall not be deemed to be on b. A legal holiday falling on a Sunday does not
leave of absence on that day, in which case he create a legal obligation to pay extra, aside
shall be entitled to the holiday pay if he worked from the usual holiday pay, to monthly-paid
on the day immediately preceding the non- employees. [Azucena, citing Letter of
working day or rest day. [Sec. 6, Rule IV, Book Instruction No. 1087]
III, IRR]
No provision of law requires any employer to
Divisors make adjustments in the monthly salary rate
The divisor assumes an important role in set by him to take account of legal holidays
determining whether or not holiday pay is falling on Sundays in a given year, otherwise to
already computed. reckon a year at more than 365 days.
a. Monthly paid employees are not entitled to [Wellington Investment and Manufacturing
the holiday pay if their total annual income Corporation v. Trajano, G.R. No. 114698
is divided by 365 days resulting in a wage (1995)]
which is beyond the minimum wage per
day because they are considered paid Non-working/scheduled rest day
everyday of the year including holidays, Where the day immediately preceding the
rest days, and other non-working days. holiday is a non-working day in the
b. As a general rule, for a company with a 6- establishment or the scheduled rest day of the
day working schedule, the divisor 313 employee, he shall not be deemed to be on
already means that the legal holidays are leave of absence on that day, in which case he
included in the monthly pay of the shall be entitled to the holiday pay if he
employee. The divisor is arrived at by worked on the day immediately preceding
subtracting all Sundays from the total the non-working day or rest day. [Sec. 6(c),
number of calendar days in a year. Rule IV, Book III, IRR]
c. As a general rule for a company with a 5-
day working schedule, the divisor 277 Example:
means that the holiday pay is already If a holiday falls on Monday, and Sunday is a
included in the monthly salary of the non-working day in the establishment or is the
employee. [Trans Asia Phils. v. NLRC, scheduled rest day of the employee, the
G.R. No. 118289 (1999)] employee shall be entitled to holiday pay if he
worked on Saturday (which is the day
An increase in the divisor that results in the immediately preceding Sunday, the non-
prejudice of the employees is a violation of the working day or rest day).
proscription against non-diminution of benefits
under Sec. 100 of the Labor Code. Such
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General Rule: Legal Tender Only Force Majeure or Valid excuse for
circumstances delayed payment
Exception: Check/Money Order if customary beyond ER’s
OR necessary because of special control BUT ER must pay
circumstances, as specified by the Secretary of immediately after
Labor or the CBA. cessation and not less
than once a month
Not allowed:
1. Promissory Notes Tasks which Payments should be
2. Vouchers cannot be made with intervals
3. Tokens completed in 2 not more than 16
4. Tickets weeks days, in proportion to
5. Chits; or work completed
6. Any other form alleged to represent a legal
Final settlement is
tender, even when expressly requested by
made upon completion
the employee. [Art. 102]
of the work.
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c. Place of Payment [Art. 104; Sec. d. Person to Pay [Sec. 5, Rule VIII,
4, Rule VIII, Book III, IRR] Book III, IRR]
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Note: The manner of resolving wage distortion Teachers of private school on contract basis
is largely based on the applicable wage order. are entitled to service incentive leave. [Cebu
The current one for NCR, WO 20, refers to the Institute of Technology v. Ople, G.R. No. L-
procedure in Art. 124 of the Labor Code 58870 (1987)]
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commutation upon his resignation or i. Any other person who solely provides
separation from employment: parental care and support to a child or
The cause of action to claim the whole children: Provided, that he/she is duly
amount of his accumulated SIL shall arise licensed as a foster parent by the
when the employer fails to pay such Department of Social Welfare and
amount at the time of his resignation or Development (DSWD) or duly appointed
separation from employment. [Auto Bus legal guardian by the court; and
Transport v. NLRC, G.R. No. 156367 j. Any family member who assumes the
(2005)] responsibility of head of family as a result
of the death, abandonment,
2. Special laws disappearance, or prolonged absence of
the parents or solo parent for at least one
a. Parental leave for solo parents (1) year. [Sec. 3 (a), RA 8972]
[RA 8972 (Solo Parents’ Welfare Act of 2000)] Conditions for Entitlement
A solo parent employee shall be entitled to the
Parental leave for solo parents – Leave parental leave under the following conditions:
benefits granted to a solo parent to enable a. He/she has rendered at least one (1) year
him/her to perform parental duties and of service, whether continuous or broken;
responsibilities where physical presence is b. He/she has notified his/her employer that
required. [Sec. 3 (d), RA 8972] he/she will avail himself/herself of it, within
a reasonable period of time; and
Coverage c. He/she has presented to his/her employer
Any solo parent or individual who is left alone a Solo Parent Identification Card, which
with the responsibility of parenthood due to: may be obtained from the DSWD office of
a. Giving birth as a result of rape or and other the city or municipality where he/she
crimes against chastity even without a final resides. [Sec. 19, Art. V, IRR, RA 8972]
conviction of the offender: Provided, That
the mother keeps and raises the child; Availment
b. Death of spouse; The parental leave is in addition to leave
c. Spouse is detained or is serving sentence privileges under existing laws with full pay,
for a criminal conviction for at least one (1) consisting of basic salary and mandatory
year; allowances. It shall not be more than seven (7)
d. Physical and/or mental incapacity of working days every year. [Sec. 8, RA 8972]
spouse as certified by a public medical
practitioner; Grant of Flexible Work Schedule
e. Legal separation or de facto separation The employer shall provide for a flexible
from spouse for at least one (1) year: working schedule for solo parents: Provided,
Provided, that he/she is entrusted with the That the same shall not affect individual and
custody of the children; company productivity: Provided, further, That
f. Declaration of nullity or annulment of any employer may request exemption from the
marriage as decreed by a court or by a above requirements from the DOLE on certain
church: Provided, that he/she is entrusted meritorious grounds. [Sec. 6, RA 8972]
with the custody of the children;
g. Abandonment of spouse for at least one (1) Protection against Work Discrimination
year; No employer shall discriminate against any
h. Unmarried father/mother who has solo parent employee with respect to terms and
preferred to keep and rear his/her conditions of employment on account of his/her
child/children, instead of having others status. [Sec. 7, RA 8972]
care for them or give them up to a welfare
institution;
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See III. E. 7. for discussion on other working Maternity leave benefit after termination of
conditions for solo parents* employment possible
General Rule: Maternity leave with full pay
See also VII. E. for discussion on support for shall be granted even if the childbirth,
solo parents* miscarriage, or emergency termination of
pregnancy occurs not more than 15 calendar
b. Expanded maternity leave days after the termination of an employee’s
service.
[RA 11210 (105-Day Expanded Maternity
Leave Law)] Exception: When the employment of the
pregnant woman worker has been terminated
Expanded Maternity Leave -- Maternity leave without just cause, the employer must pay her
of 105 days with full pay, with an option to the full amount equivalent to her salary for 105
extend for an additional 30 days without pay. days for childbirth and 60 days for miscarriage
[Sec. 3, RA 11210] and emergency termination of pregnancy
based on her full pay, in addition to the other
Coverage applicable daily cash maternity benefits that
Every female worker in government and the she should have received had her employment
private sector, including those in the informal not been illegally terminated. [Sec. 5, Rule IV,
economy, regardless of civil status or the IRR of RA 11210]
legitimacy of her child, is entitled to the
maternity leave benefits. Benefit received
A daily maternity benefit equivalent to 100% of
This is applicable to pregnancy and her average daily salary credit for:
miscarriage, or emergency termination of a. 105 days in cases of live childbirth
pregnancy, regardless of frequency. [Sec. 3, b. 60 days in cases of miscarriage or
RA 11210] emergency termination of pregnancy.
Maternity leave for female workers in The maternity leave can be credited as
private sector, requisites combinations of prenatal and postnatal leave
a. Contribution: The female worker must as long as it does not exceed 105 days or 60
have paid at least 3 monthly contributions days as the case may be. In no case shall
in the 12-month period immediately postnatal care be less than 60 days. [Sec. 2,
preceding the semester of her childbirth, Rule IV, IRR of RA 11210]
miscarriage, or emergency termination of
pregnancy. In case the employee qualifies as a solo parent
(see III. C. 2. a., above), the employee shall be
In determining the female member’s paid an additional maternity benefit of 15 days.
entitlement to the benefit, the SSS shall [Sec. 5 (a), RA 11210]
consider only those contributions paid prior
to the semester of contingency; and
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Extended maternity leave option, requisite a. That the maternity leave benefits have not
notice yet been commuted to cash, if applicable;
In cases of live childbirth, an additional and
maternity leave of 30 days, without pay, can be b. That a certified true copy of the death
availed of, at the option of the female worker, certificate or medical certificate or abstract
provided that the employer shall be given is provided to the employers of both the
notice. female worker and the child’s father or
alternate caregiver.
Due notice must be in writing must be given at
least 45 days before the end of the female In case the maternity leave benefits have
worker’s maternity leave. already been paid to the female worker in full,
the child’s father or alternate caregiver shall be
Exception: No prior notice shall be necessary entitled to enjoy the remaining unexpired leave
in the event of a medical emergency, but credits of the female worker, if any.
subsequent notice shall be given to the
employer. Provided, That such leave without pay shall not
be considered a gap in the service of the child’s
The period of extended maternity leave without father or alternate caregiver. [Sec. 4, Rule VIII,
pay shall not be considered a gap in the IRR of RA 11210]
service. [Sec. 3, Rule IV, IRR of RA 11210]
Other conditions
Allocation of maternity leave credits a. Employer shall advance the full payment
A female worker entitled to maternity leave subject to reimbursement by the SSS
benefits may, at her option, allocate up to 7 within 30 days from filing of leave
days of said benefits to the child’s father, application. [Sec. 3, Rule VI, IRR of RA
whether or not the father is married to the 11210]
mother. b. SSS shall immediately reimburse the
employer the maternity benefits advanced
The allocated benefit granted to the child’s to the employed female member, only to
father is over and above the paternity benefits the extent of 100% of her average daily
provided under RA 8187 (Paternity Leave Act). salary credit for 105 days, 120 days or 60
In case of death, absence, or incapacity of the days, as the case may be, upon receipt of
child’s father, the female worker may allocate satisfactory and legal proof of such
to an alternate caregiver who may be: payment. [Sec. 4, Rule VI, IRR of RA
a. A relative within the 4th degree of 11210]
consanguinity; or c. Availment shall be a bar to the recovery of
b. The current partner, regardless of sexual sickness benefits provided under RA 1161
orientation or gender identity, of the female (Social Security Law) for the same period
worker sharing the same household. for which daily maternity benefits have
been received. [Sec. 6, Rule VI, RA 11210]
The option to allocate maternity leave credits d. Sanction: That if an employee should give
shall not be applicable in cases of miscarriage birth or suffer miscarriage or emergency
or emergency termination of pregnancy. [Sec. termination of pregnancy:
1, Rule VIII, IRR of RA 11210] 1. Without the required contributions
having been remitted for her by her
Death or permanent incapacity employer to the SSS, or
If the female worker dies or becomes 2. Without the latter having been
permanently incapacitated, the balance of her previously notified by the ER of time of
maternity leave benefits shall accrue to the the pregnancy,
child’s father or to a qualified alternate the employer shall pay to the SSS
caregiver subject to the following conditions: damages equivalent to the benefits which
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said employee would otherwise have been Conditions for entitlement [Sec. 3, IRR, RA
entitled to. [Sec. 5, RA 11210] 8187]
a. He is married;
c. Paternity leave b. He is an employee at the time of the
delivery of his child
[RA 8187 (Paternity Leave Act of 1996)] c. He is cohabiting with his spouse at the time
that she gives birth or suffers a miscarriage
Paternity Leave – leave of 7 calendar days d. He has applied for paternity leave with his
with full pay for every married male employee ER within a reasonable period of time from
in the private and public sectors the expected date of delivery by his
pregnant spouse, or within such period as
Coverage and Purpose may be provided by company rules and
Paternity leave is granted to all married male regulations, or by CBA; and,
employees in the private and public sectors, e. His wife has given birth or suffered a
regardless of their employment status (e.g. miscarriage.
probationary, regular, contractual, project
basis). Application for paternity leave
See d. under conditions for entitlement.
The purpose of this benefit is to allow the
husband to lend support to his wife during her In case of miscarriage, prior application for
period of recovery and/or in nursing her paternity leave shall not be required. [Sec. 4,
newborn child. [Sec. 3, RA 8187] IRR, RA 8187]
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acts of the offender. [Domingo v. Rayala, G.R. Anyone who commits any of the acts of GBSH
No. 155831 (2008)] may be held liable. GBSH may even be
committed between peers, and by a
Role of the employer or Head of Office subordinate to a superior officer. [Sec. 18, IRR
The Employer or Head of Office shall have the of RA 11313]
duty: Duties of employers
1. to prevent the commission of such acts and Employers, or other persons of authority,
2. to lay down the procedure for the influence or moral ascendancy have the
resolution, settlement or prosecution of following duties:
committed acts. [Sec. 4, RA 7877] a. Disseminate or post a copy of the Safe
Spaces Act to all persons in the workplace;
He shall be solidarily liable for damages: b. Provide measures to prevent GBSH in the
1. if he is informed of such acts by the workplace;
offended party, and c. Create an independent internal mechanism
2. no immediate action is taken thereon. [Sec. or a committee on decorum and
5, RA 7877] investigation to investigate and address
complaints of GBSH;
Independent action for damages d. Provide and disseminate, in consultation
The victim of work, education or training- with all persons in the workplace, a code of
related sexual harassment can institute a conduct or workplace policy. [Sec. 17, RA
separate and independent action for damages 11313]
and other affirmative relief. [Sec. 6, RA 7877]
In addition to liabilities for committing acts of
Sanctions GSBH, employers may also be held
Criminal: imprisonment of 1 month to mos. or responsible for:
fine of P10k to P20k or both a. Non-implementation of their duties under
Sec. 17 of this Act (see above), as provided
Prescription of such action is in 3 years. in the penal provisions; or
b. Not taking action on reported acts of GBSH
Termination committed in the workplace.
As a managerial employee, petitioner is
bound by more exacting work ethics. When Any person who violates (a) shall, upon
such moral perversity is perpetuated against conviction, be penalized with a fine of not less
his subordinate, he provides a justifiable than P5,000, nor more than P10,000.
ground for his dismissal for lack of trust and
confidence. [Sec. 7, RA 7877; Libres v. NLRC, Any person who violates (b) shall, upon
G.R. No. 123737 (1999)] conviction, be penalized with a fine of not less
than P10,000 nor more than P15,000. [Sec. 19,
The gravamen of the offense in sexual RA 11310]
harassment is not the violation of the
employee's sexuality but the abuse of power by Independent action for damages
the employer. Any employee, male or female, Nothing shall preclude the victim of work-
may rightfully cry "foul" provided the claim is related GBSH from instituting a separate and
well substantiated. Strictly speaking, there is independent action for damages and other
no time period within which he or she is affirmative relief.
expected to complain through the proper
channels. [Phil. Aelous Automotive United 3. Applicable Laws
Corp. v. NLRC, G.R. No. 124617 (2000)]
a. Sexual Harassment Act
SAFE SPACES ACT b. Safe Spaces Act
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b. First aid and safety personnel may be amended. [Sec. 32, RA 7277, as amended
informed, when appropriate, if the by RA 9442]
disability may require emergency
treatment; 3. Gender
c. Government officials investigating
compliance with this Act shall be Constitutional basis
provided relevant information on The State recognizes the role of women in
request; and nation-building, and shall:
d. The results of such examination are a. Ensure the fundamental equality before the
used only in accordance with this Act law of women and men;
[Sec. 33, RA 7277]. b. Protect working women by providing:
1. Safe and healthful working conditions,
c. Incentives for employers taking into account their maternal
functions, and
For employment of disabled persons - 2. Such facilities and opportunities that
additional deduction, from their gross income, will enhance their welfare and enable
equivalent to 25% of the total amount paid as them to realize their full potential in the
salaries and wages to disabled persons: service of the nation. [Sec. 14, Art. II &
a. Private entities that employ disabled Sec. 14, Art. XIII, 1987 Constitution]
persons either as regular EEs, apprentice
or learner; a. Discrimination
b. Provided such entities present proof as
certified by the DOLE and the DOH [Sec. It shall be unlawful for any employer to
8[b], RA 7277] discriminate against any woman employee with
respect to terms and conditions of employment
For construction of disabled-friendly solely on account of her sex.
facilities - additional deduction from their net
taxable income, equivalent to 50% of the direct The following are acts of discrimination:
costs of the improvements or modifications: a. Payment of a lesser compensation,
a. Private entities that improve or modify their including wage, salary or other form of
physical facilities in order to provide remuneration and fringe benefits, to a
reasonable accommodation for disabled female employee as against a male
persons; employee, for work of equal value; and
b. Does NOT apply to improvements or b. Favoring a male employee over a female
modifications or facilities required under employee with respect to promotion,
BP 344. [Sec. 8 (c), RA 7277] training opportunities, study and
scholarship grants solely on account of
For establishments giving discounts – may their sexes. [Art. 133]
claim such discounts as tax deductions based
on the net cost of the goods sold or services The Magna Carta of Women provides that the
rendered: State:
a. The cost of the discount shall be allowed 1. Condemns discrimination against women
as deduction from gross income for the in all its forms
same taxable year that the discount is 2. Pursues by all appropriate means and
granted without delay the policy of eliminating
b. The total amount of the claimed tax discrimination against women in keeping
deduction net of VAT if applicable, shall be with the Convention on the Elimination of
included in their gross sales receipts for tax All Forms of Discrimination Against
purposes and shall be subject to proper Women (CEDAW) and other international
documentation and to the provisions of the instruments consistent with Philippine law.
National Internal Revenue Code, as
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acts of the offender. [Domingo v. Rayala, G.R. Anyone who commits any of the acts of GBSH
No. 155831 (2008)] may be held liable. GBSH may even be
committed between peers, and by a
Role of the employer or Head of Office subordinate to a superior officer. [Sec. 18, IRR
The Employer or Head of Office shall have the of RA 11313]
duty: Duties of employers
1. to prevent the commission of such acts and Employers, or other persons of authority,
2. to lay down the procedure for the influence or moral ascendancy have the
resolution, settlement or prosecution of following duties:
committed acts. [Sec. 4, RA 7877] a. Disseminate or post a copy of the Safe
Spaces Act to all persons in the workplace;
He shall be solidarily liable for damages: b. Provide measures to prevent GBSH in the
1. if he is informed of such acts by the workplace;
offended party, and c. Create an independent internal mechanism
2. no immediate action is taken thereon. [Sec. or a committee on decorum and
5, RA 7877] investigation to investigate and address
complaints of GBSH;
Independent action for damages d. Provide and disseminate, in consultation
The victim of work, education or training- with all persons in the workplace, a code of
related sexual harassment can institute a conduct or workplace policy. [Sec. 17, RA
separate and independent action for damages 11313]
and other affirmative relief. [Sec. 6, RA 7877]
In addition to liabilities for committing acts of
Sanctions GSBH, employers may also be held
Criminal: imprisonment of 1 month to mos. or responsible for:
fine of P10k to P20k or both a. Non-implementation of their duties under
Sec. 17 of this Act (see above), as provided
Prescription of such action is in 3 years. in the penal provisions; or
b. Not taking action on reported acts of GBSH
Termination committed in the workplace.
As a managerial employee, petitioner is
bound by more exacting work ethics. When Any person who violates (a) shall, upon
such moral perversity is perpetuated against conviction, be penalized with a fine of not less
his subordinate, he provides a justifiable than P5,000, nor more than P10,000.
ground for his dismissal for lack of trust and
confidence. [Sec. 7, RA 7877; Libres v. NLRC, Any person who violates (b) shall, upon
G.R. No. 123737 (1999)] conviction, be penalized with a fine of not less
than P10,000 nor more than P15,000. [Sec. 19,
The gravamen of the offense in sexual RA 11310]
harassment is not the violation of the
employee's sexuality but the abuse of power by Independent action for damages
the employer. Any employee, male or female, Nothing shall preclude the victim of work-
may rightfully cry "foul" provided the claim is related GBSH from instituting a separate and
well substantiated. Strictly speaking, there is independent action for damages and other
no time period within which he or she is affirmative relief.
expected to complain through the proper
channels. [Phil. Aelous Automotive United 3. Applicable Laws
Corp. v. NLRC, G.R. No. 124617 (2000)]
a. Sexual Harassment Act
SAFE SPACES ACT b. Safe Spaces Act
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b. First aid and safety personnel may be amended. [Sec. 32, RA 7277, as amended
informed, when appropriate, if the by RA 9442]
disability may require emergency
treatment; 3. Gender
c. Government officials investigating
compliance with this Act shall be Constitutional basis
provided relevant information on The State recognizes the role of women in
request; and nation-building, and shall:
d. The results of such examination are a. Ensure the fundamental equality before the
used only in accordance with this Act law of women and men;
[Sec. 33, RA 7277]. b. Protect working women by providing:
1. Safe and healthful working conditions,
c. Incentives for employers taking into account their maternal
functions, and
For employment of disabled persons - 2. Such facilities and opportunities that
additional deduction, from their gross income, will enhance their welfare and enable
equivalent to 25% of the total amount paid as them to realize their full potential in the
salaries and wages to disabled persons: service of the nation. [Sec. 14, Art. II &
a. Private entities that employ disabled Sec. 14, Art. XIII, 1987 Constitution]
persons either as regular EEs, apprentice
or learner; a. Discrimination
b. Provided such entities present proof as
certified by the DOLE and the DOH [Sec. It shall be unlawful for any employer to
8[b], RA 7277] discriminate against any woman employee with
respect to terms and conditions of employment
For construction of disabled-friendly solely on account of her sex.
facilities - additional deduction from their net
taxable income, equivalent to 50% of the direct The following are acts of discrimination:
costs of the improvements or modifications: a. Payment of a lesser compensation,
a. Private entities that improve or modify their including wage, salary or other form of
physical facilities in order to provide remuneration and fringe benefits, to a
reasonable accommodation for disabled female employee as against a male
persons; employee, for work of equal value; and
b. Does NOT apply to improvements or b. Favoring a male employee over a female
modifications or facilities required under employee with respect to promotion,
BP 344. [Sec. 8 (c), RA 7277] training opportunities, study and
scholarship grants solely on account of
For establishments giving discounts – may their sexes. [Art. 133]
claim such discounts as tax deductions based
on the net cost of the goods sold or services The Magna Carta of Women provides that the
rendered: State:
a. The cost of the discount shall be allowed 1. Condemns discrimination against women
as deduction from gross income for the in all its forms
same taxable year that the discount is 2. Pursues by all appropriate means and
granted without delay the policy of eliminating
b. The total amount of the claimed tax discrimination against women in keeping
deduction net of VAT if applicable, shall be with the Convention on the Elimination of
included in their gross sales receipts for tax All Forms of Discrimination Against
purposes and shall be subject to proper Women (CEDAW) and other international
documentation and to the provisions of the instruments consistent with Philippine law.
National Internal Revenue Code, as
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3. Shall accord women the rights, protection, distinction based on marital status, and there is
and opportunities available to every no better available or acceptable policy which
member of society would better accomplish the business purpose,
4. Shall take steps to review and, when an ER may discriminate against an EE based
necessary, amend and/or repeal existing on the identity of the EE’s spouse. [Star Paper
laws that are discriminatory to women Corp. v. Simbol, G.R. No. 164774 2006]
within three (3) years from the effectivity of
this Act. [Sec. 2 & Sec. 12, Magna Carta of A personal or marital relationship with an
Women] employee of a competitor might compromise
the interests of the company. Thus an
b. Stipulation against marriage [Art. 134; employer policy prohibiting the same may be
Sec. 13(e), Rule XII] held as valid [Duncan Association of Detailmen
v. Glaxo Wellcome, supra.]
It shall be unlawful for an employer to:
1. require as a condition of employment or c. Prohibited acts [Art. 135]
continuation of employment that a woman
employee shall not get married, or 1. Discharge to prevent enjoyment of
2. stipulate expressly or tacitly that upon benefits.
getting married a woman employee shall To deny any woman employee the benefits
be deemed resigned or separated or provided for in this Chapter or to discharge
3. actually dismiss, discharge, discriminate or any woman employed by him for the
otherwise prejudice a woman employee purpose of preventing her from enjoying
merely by reason of her marriage. [Art. 134; any of the benefits provided under this
Duncan Assoc of Detailman – PTGWO v. Code. [Art. 135 (1), as amended by R.A.
Glaxo Wellcome, G.R. No. 162994 (2004)] 6725]
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marriage shall be outlawed. No school 2. In any night club, cocktail lounge, massage
shall turn out or refuse admission to a clinic, bar or similar establishments;
female student solely on the account of her 3. Under the effective control or supervision
having contracted pregnancy outside of of the employer for a substantial period of
marriage during her term in school. [Sec. time as determined by the SOLE;
13(c), RA 9710] shall be considered as an employee of such
establishment for purposes of labor and social
d. Facilities for women [Art. 130] legislation. [Art. 136]
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or legal guardian, with the express 2. when the child is below fifteen (15) years of
agreement of the child concerned, if age, in work where he/she is directly under
possible, and the approval of the the responsibility of his/her parents or legal
Department of Labor and Employment: guardian and where only members of the
Provided, further, That the following child‘s family are employed; or in public
requirements in all instances are strictly entertainment or information. [Sec. 3, D.O.
complied with: No. 65-04]
1. The employer shall ensure the
protection, health, safety, morals and Exceptions
normal development of the child; a. Child works directly under the sole
2. The employer shall institute measures responsibility of his parents or legal
to prevent the child'.s exploitation or guardian and where only members of the
discrimination taking into account the employer’s family are employed, provided:
system and level of remuneration, and 1. his employment does NOT endanger
the duration and arrangement of his life, safety, health and morals,
working time; and 2. nor impairs his normal development,
3. The employer shall formulate and and
implement, subject to the approval and 3. the parent or legal guardian shall
supervision of competent authorities, a provide the said minor child with the
continuing program for training and prescribed primary and/or secondary
skills acquisition of the child. education; [Sec. 12 of RA 7610, as
amended by RA 7658]
In the above-exceptional cases where any b. Child’s employment or participation in
such child may be employed, the employer public entertainment or information through
shall first secure, before engaging such child, a cinema, theater, radio or television is
work permit from the DOLE which shall ensure essential, provided that [Sec. 12 of RA
observance of the above requirements. 7610, as amended by RA 7658]:
1. employment does NOT involve ads or
For purposes of this Article, the term "child" commercials promoting alcohol,
shall apply to all persons under eighteen (18) tobacco and its by-products or violence
years of age. [Sec. 2, RA 9231] [Sec. 14, RA 7610]
2. the employment contract is concluded
Children - refers to any person under 18 years by the child’s parents or guardian, and
of age or those over but are unable to fully take approved by DOLE
care of themselves or protect themselves from 3. The ER shall ensure the protection,
abuse, neglect, cruelty, exploitation or health, safety and morals of the child
discrimination because of a physical or mental 4. The ER shall institute measures to
disability or condition. [Sec. 2, RA 7610] prevent the child’s exploitation or
discrimination taking into account the
Child labor - refers to any work or economic system and level of remuneration, and
activity performed by a child that subjects the duration and arrangement of
him/her to any form of exploitation or is harmful working time
to his/her health and safety or physical, mental 5. The ER shall formulate and implement,
or psychosocial development. subject to the approval and supervision
of competent authorities, a continuing
Working child - refers to any child engaged as program for training and skills
follows: acquisition of the child. [Sec. 12 of RA
1. when the child is below eighteen (18) years 7610, as amended by RA 7658]
of age, in work or economic activity that is
not child labor as defined in the
immediately preceding subparagraph; and
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e. Facilities for transportation and/or properly would otherwise be called upon to perform
ventilated temporary sleeping or resting such work. Such measures may include:
quarters, separate for male and female a. Transfer to day work – As far as
workers, shall be provided except where practicable, pregnant or nursing
any of the ff. circumstances is present: employees shall be assigned to day work,
1. There is an existing company before and after childbirth, for a period of at
guideline, practice or policy, CBA, or least sixteen (16) weeks, which shall be
any similar agreement providing for an divided between the time before and after
equivalent or superior benefit; or childbirth;
2. Start or end of the night work does NOT
fall within 12 mn - 5 am; or Medical certificate issued by competent
3. Workplace is located in an area that is physician (OB/Gyne/Pedia) is necessary
accessible 24 hours to public for the grant of:
transportation; or 1. additional periods of assignment to day
4. Number of employees does NOT work during pregnancy or after
exceed a specified number as may be childbirth, provided that such shall not
provided for by the SOLE in be more than 4 weeks or for a longer
subsequent issuances [Art. 156, as period as may be agreed upon by
amended by RA 10151; Sec. 4, Rule employer and worker;
XV, Book III, IRR, through D.O. No. 2. extension of maternity leave; and
119-12] 3. clearance to render night work.
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employee with just cause, including the b. Labor standards as may be provided in the
transport of his/her personal belongings; Service Agreement or under the Labor
e. Subsistence allowance benefit for a Code;
migrant worker who is involved in a case c. Retirement benefits under RA 7641, RA
for litigation for the protection of his/her 1161, as amended by RA 8282, and
rights in the receiving country; retirement plans of the security service
f. Money claims arising from employer’s contractor, if any;
liability which may be awarded or given to d. Social security and welfare benefits;
the worker in a judgment or settlement of e. Right to self-organization and collective
his/her case in the NLRC; bargaining, subject to the provisions of
g. Compassionate visit. When a migrant existing laws; and
worker is hospitalized and has been f. Security of tenure. [Sec. 6, DO 150-16]
confined for at least seven (7) consecutive
days, he shall be entitled to a PNP Examination required for employment
compassionate visit by one (1) family The security guards and other private security
member or a requested individual; personnel in the employ of any security service
h. Medical evacuation. When an adequate contractor (SSC)/private security agency
medical facility is not available proximate to (PSA) should be duly licensed and must have
the migrant worker, as determined by the passed the physical and neuro-psychiatric
insurance company's physician and/or a examination and drug test required by the PNP
consulting physician, the insurance for pre-employment and for continued
provider shall provide for the worker’s employment. Expenses for these examinations
evacuation; and and test shall be shouldered by the security
i. Medical repatriation. When medically guards.
necessary as determined by the attending
physician, repatriation under medical Any additional test may be required at the
supervision to the migrant worker's expense of the requesting party. [Sec. 7.1, DO
residence shall be undertaken by the 150-16]
insurance provider at such time that the
migrant worker is medically cleared for Minimum wage
travel by commercial carrier. [Sec. 2, Rule Unless a higher minimum wage is agreed upon
XVI, IRR of RA 8042, as amended by RA by the parties, the security guards and other
10022] private security personnel shall be entitled to
receive a salary of not less than the minimum
10. Security Guards wage rate prescribed for non-agricultural
sector or industry in the region where he/she is
[Relevant issuance: DO 150-16, Revised assigned, regardless of the nature of business
Guidelines Governing the Employment and of the principal. [Sec. 7.3, DO 150-16]
Working Conditions of Security Guards and
Private Security Personnel in the Private In case of transfer, the wage rate most
Sector Industry] favorable to the security guards and other
private security personnel shall apply. [Sec.
Rights of security guards and other private 7.4, DO 150-16]
security personnel
All security guards and other private security Deductions from salary
personnel, whether deployed or assigned as No deduction shall be made from the salary of
reliever, seasonal, week-ender, or temporary, the security guards and other private security
shall be entitled to all the rights and privileges personnel, except for:
as provided for in the Labor Code, which shall 1. SSS contribution;
include: 2. Pag-IBIG contribution;
a. Safe and healthful working conditions; 3. PhilHealth contribution;
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2. The workers recruited and placed by such 5. Contractors and subcontractors referred to
person are performing activities which are in these rules are prohibited from engaging
directly related to the principal business of in recruitment and placement activities as
such employer. defined in Art. 13(b), whether for local or
overseas employment. [Sec. 2. D.O. No.
In such cases, the person or intermediary shall 174-17: Rules Implementing Articles 106 to
be considered merely as an agent of the 109 of the Labor Code, as amended]
employer who shall be responsible to the
workers in the same manner and extent as if Applicability of Rules to Indirect Employers
the latter were directly employed by him. [Art. The provisions of Art. 106 shall likewise apply
106, par. 4] to any person, partnership, association or
corporation which, not being an employer,
Rules for Contracting/Subcontracting contracts with an independent contractor for
1. Whenever an employer enters into a the performance of any work, task, job or
contract with another person for the project. [Art. 107]
performance of the former’s work, the
employees of the contractor and of the Service Agreement
latter’s subcontractor, if any, shall be paid Service agreement refers to the contract
in accordance with the provisions of this between the principal and contractor
Code. [Art. 106, par. 1] containing the terms and conditions governing
2. In the event that the contractor or the performance or completion of a specific job
subcontractor fails to pay the wages of his or work being farmed out for a definite or
employees in accordance with this Code, predetermined period. [Sec. 3(j), D.O. No. 174-
the employer shall be jointly and severally 17]
liable with his contractor or subcontractor
to such employees: a. Elements
a. To the extent of the work performed
under the contract To be considered legitimate contracting or
b. In the same manner and extent that he subcontracting, the following elements must
is liable to employees directly concur:
employed by him. [Art. 106, par. 2] 1. Distinct and independent business:
3. The SOLE may, by appropriate Contractor or subcontractor is engaged in
regulations, restrict or prohibit the a distinct and independent business and
contracting-out of labor to protect the rights undertakes to perform the job on its own
of workers established under this Code. responsibility, according to its own manner
[Art. 106, par. 3] and method;
a. He may make appropriate distinctions 2. Substantial capital or investment:
between labor-only contracting and job Contractor or subcontractor has substantial
contracting as well as differentiations capital to carry out the job farmed out by
within these types of contracting. the principal on his account, manner and
b. He may determine who among the method, investment in the form of tools,
parties involved shall be considered equipment, machinery and supervision;
the employer for purposes of this Code. 3. Free from control/direction of the
4. An employer or indirect employer may principal: In performing the work,
require the contractor or subcontractor to contractor or subcontractor is free from the
furnish a bond equal to the cost of labor control/direction of the principal in all
under contract, on condition that the bond matters regarding performance of the work
will answer for the wages due the except the result;
employees should the contractor or 4. Compliance with labor laws: Service
subcontractor, as the case may be, fail to Agreement ensures that employees of the
pay the same. [Art. 108] contractor/subcontractor are given all the
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benefits and rights they are entitled to a. Specific description of the job or work
under labor laws. [Sec. 8, D.O. No. 174-17] to be performed by the employee; and
b. Place of work and terms and conditions
Substantial capital (#2) of employment, including a statement
Refers to paid-up capital stocks/shares of at of the wage rate applicable to the
least P5,000,000 in the case of corporations, individual employee.
partnerships and cooperatives; in case of 2. Service Agreement between the principal
single proprietorship, a net worth of at least and the contractor - It shall include the
P5,000,000. [Sec. 3(l), D.O. No. 174-17] following:
a. Specific description of the job or work
b. Trilateral relationship being subcontracted, including its term
or duration;
When the above-elements are present, a b. Place of work and terms and conditions
trilateral relationship arises. It consists of the governing the contracting
following parties: arrangement, including the agreed
1. Principal - Any natural or juridical entity, amount of the contracted job or work,
whether an employer or not, who puts out the standard administrative fee of not
or farms out a job or work to a contractor. less than 10% of the total contract cost;
2. Contractor - Any person or entity engaged c. Provision on the issuance of the bond/s
in a legitimate contracting or renewable every year. [Sec. 11, D.O.
subcontracting arrangement providing No. 174-17]
services for a specific job or undertaking
farmed out by a principal under a Service Rights of contractor’s employees
Agreement. 1. Security of tenure
3. Contractor’s employee - Employee of the 2. Safe and healthful working conditions;
contractor hired to perform or complete a 3. Labor standards such as but not limited to
job or work farmed out by the principal. service incentive leave, rest days, overtime
[Sec. 3, D.O. No. 174-17] pay, holiday pay, 13th month pay, and
separation pay
Note: Contractor may also be a subcontractor. 4. Retirement benefits under the SSS or
retirement plans of the
Relationships within the trilateral contractor/subcontractor;
relationship 5. Social security and welfare benefits; and
1. EER between the contractor and the 6. Self-organization, collective bargaining
employees it engaged to perform the and peaceful concerted activities including
specific job, work or service being the right to strike. [Sec. 10, D.O. No. 174-
contracted; and 17]
2. Contractual relationship between the
principal and the contractor as governed Termination of employment [Sec. 13, D.O.
by the provisions of the NCC. [Sec. 5, par. No. 174-17]
1, D.O. No. 18-A-11]
Cause Effect
Required contracts Prior to Governed by Art. 297 –
1. Employment contract between the expiration of 299
contractor and its employees - Service
Notwithstanding any oral or written Agreement
stipulations to the contrary, such contract
shall be governed by LC 294 and 295, and Pre- The right of the
provisions on general labor standards. It termination of contractor’s employee to
shall include the following: Service unpaid wages and other
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Labor-only contracting
Agreement. unpaid benefits including
This is one of the violations that may be
and not due to unremitted legal mandatory
committed by the principal and contractor,
authorized contributions, (e.g., SSS,
which may make them solidarily liable. There
causes PhilHealth, Pag-ibig, ECC),
are two kinds:
shall be borne by the party
1. Provided for by Article 206, Labor Code:
at fault, without prejudice
a. (i) The contractor does not have
to the solidary liability of
substantial capital; or
the parties to the Service
(ii) the contractor does not have
Agreement.
investments in the form of tools,
Due to Employee may opt to wait equipment, machineries, supervision,
expiration of for re-employment within 3 work premises, among others;
Service months to resign and b. The contractor’s employees are
Agreement, or transfer to another performing activities that are directly
from contractor-employer. related to the main business operation
completion of of the principal.
the phase of Failure of the contractor to 2. The contractor does not exercise the right
the job, work provide new employment to control the performance of the work of
or service for shall entitle the employee the employee. [Sec. 5., D.O. No. 174-17]
which to payment of separation
employee is benefits as may be Substantial capital under 1st kind
engaged provided by law or the Having substantial capitalization is not enough
Service Agreement, to declare one a legitimate contractor. If any of
whichever is higher, the other elements of labor-only contracting is
without prejudice to his/her present, they are labor-only contractors.
entitlement to completion [Quintanar v. Coca-Cola Bottlers, 794 SCRA
bonuses or other 654 (2016)]
emoluments, including
retirement benefits Presumption of labor-only contracting
whenever applicable. A contractor is presumed to be a labor-only
The mere expiration of the contractor and has the burden of proving the
Service Agreement shall contrary. [Polyfoam-RGC Int’l Corp. v.
not be deemed as a Concepcion, 672 SCRA 148 (2012)]
termination of employment
of the contractor’s Effect of labor-only contracting: employees
employees who are become regular employees
deemed regular employees Where an entity is declared to be a labor-only
of the contractor. contractor, the employees supplied by said
contractor to the principal become regular
employees of the latter. Having gained regular
c. Liabilities status, the employees are entitled to security of
tenure and can only be dismissed for just or
Solidary liability of principal and contractor authorized causes and after they had been
Every employer or indirect employer shall be afforded due process. [Norkis Trading v.
held responsible with his contractor for any Buenavista, G.R. No. 182018 (2012)]
violations of labor laws. For purposes of
determining the extent of their civil liability, they Other prohibitions
shall be considered as direct employers. [Art. 1. When the principal farms out work to a
109] “Cabo” [See definition under Sec. 3(a).,
D.O. No. 174-17];
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b. The work or service to be performed is Trading Corp. v. Molina, G.R. No. 206061
seasonal in nature and the employment is (2013)]
for the duration of the season. [Art. 295]
When Art. 295 not applicable
An employee who is allowed to work after a It does not apply where the existence of an
probationary period shall be considered a EER is in dispute. It is not the yardstick for
regular employee. [Art. 296] determining the existence of an EER, as it
merely distinguishes between two kinds of
Regular employee defined employees, i.e., regular and casual, for
One who is engaged to perform activities that purposes of determining the right of an
are necessary and desirable in the usual employee to certain benefits, to join or form a
business or trade of the employer as against union, or to security of tenure. [Atok Big Wedge
those which are undertaken for a specific Co., Inc. v. Gison, G.R. No. 169510 (2011)]
project or are seasonal.
Hiring for an extended period
It is not synonymous with permanent Where the employment of project employees is
employee, because there is no such thing as a extended long after the supposed project has
permanent employment. Any employee may been finished, the employees are removed
be terminated for just cause. from the scope of project employees and
considered regular employees. [Audion
Two kinds of regular employee Electric Co., Inc. v. NLRC, G.R. No. 106648
1. Those engaged to perform activities which (1999)]
are necessary or desirable in the usual
business or trade of the employer; and While length of time is not a controlling test for
2. Casual employees who have rendered at project employment, it can be a strong factor in
least 1 year of service, whether continuous determining whether the employee was hired
or broken, with respect to the activity in for a specific undertaking or in fact tasked to
which they are employed. [Romares v. perform functions which are vital, necessary
NLRC, G.R. No. 122327 (1998)] and indispensable to the usual business or
trade of the employer. [Tomas Lao Const. v.
Reasonable connection rule NLRC, G.R. No. 116781 (1997)]
The primary standard to determine regular
employment is the reasonable connection Repeated renewal of contract
between the activity performed by the While contractual stipulations as to the duration
employee to the business or trade of the of employment are valid, they cannot apply
employer. where the contract-to-contract arrangement
was but an artifice to prevent the acquisition of
Test: W/N the employee is usually necessary security of tenure and to frustrate constitutional
or desirable in the usual business or trade of decrees. [Beta Electric Corp. v. NLRC, G.R.
the employer. No. 86408 (1990)]
If the employee has been performing the job for Length of time not controlling
at least one year, even if not continuous or Length of time is merely a badge of regular
merely intermittent, the repeated and employment. [Maraguinot v. NLRC, G.R. No.
continuing need for performance is sufficient 120969 (1998)]
evidence of necessity, if not indispensability of
that activity to the business of the employer.
Hence, the employment is also considered
regular, but only with respect to such activity
and while such activity exists. [Forever Richons
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An employer is deemed to have made known termination of the 6-month probationary period,
the standards when it has exerted reasonable the employer was within his rights to sever the
efforts to apprise the employee of what he is EER. A contrary interpretation would defect the
expected to do or accomplish during the trial clear meaning of the term “probationary.” [De
period of probation. This employee must be la Cruz, Jr. v. NLRC, G.R. No. 145417 (2003)]
sufficiently made aware of his probationary
status as well as the length of time of the Termination can only be for:
probation. The exception to the foregoing is 1. Just causes;
when the job is self-descriptive in nature. 2. Authorized causes; or
[Abbott Laboratories Phil. et al. v. Alcaraz, G.R. 3. Failure to qualify as a regular employee in
No. 192571 (2013)] accordance with reasonable standards
made known by the employer to the
Effect of failure to comply employee at the time of engagement.
If the employer fails to comply with the above- [Robinson’s Galleria et al. v Ranchez, G.R.
requirements, the employee is deemed as a No. 177937, Jan. 19, (2011)]
regular and not probationary employee. [Alcira
v. NLRC, G.R. No. 149859, (2004)] Nonetheless, procedural and substantial due
process must be observed during termination
Burden of proof of compliance with of the probationary employee.
employer
The employer has the burden of proving that Note: In order to invoke “failure to meet the
they have informed the probationary employee probationary standards” as a justification for
of the standards, that those standards have dismissal, the employer must show how these
been applied to the employee, and that the standards have been applied to the subject
employee fell short of such standards. employee. [Univac Development, Inc. v.
Soriano, G.R. No. 182072 (2013)]
Prohibition on extended/double probation
When the employer renews the employment Limits to termination
contract after the lapse of the 6-month 1. It must be exercised in accordance with the
probationary period, the employees thereby specific requirements of the contract
became regular employees. No employer is 2. If a particular time is prescribed, the
allowed to indefinitely determine the fitness of termination must be within such time and if
its employees. [Bernardo v. NLRC, supra.] formal notice is required, then that form
must be used
Furthermore, an employee who is merely 3. Employer’s dissatisfaction must be real
transferred to his employer’s sister company and in good faith, not feigned so as to
cannot be subjected to new probationary circumvent the contract or the law
employment when he had already attained 4. There must be no unlawful discrimination in
regular employment under his original the dismissal [Manila Hotel Corporation v.
employer. [A Prime Security Services, Inc. v. NLRC, G.R. No. 53453 (1986)]
NLRC, G.R. No. 107023, (2000)]
Private school teachers
Termination of probationary employee A private school teacher’s entitlement to
A probationary employee enjoys only a security of tenure is governed by the Manual of
temporary employment status. He is Regulations for Private Schools and not the
terminable at any time, permanent employment Labor Code. Thus, for a private school teacher
not having been attained in the meantime. The to acquire permanent employment (security of
employer could decide he no longer needed tenure), these must be present:
the probationary employee’s services or his 1. Must be a full-time teacher
performance fell short of expectations. As long 2. Must have rendered 3 consecutive years of
as termination was made before the service
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3. Service must have been satisfactory. [La 3. Other benefits or their monetary equivalent
Salette of Santiago v. NLRC, G.R. No.
82918 (1991)] Reckoning period of computation: from the
time his compensation was withheld up to his
Mere completion of the 3-year probation, even actual reinstatement.
with an above-average performance, does not
guarantee that the employee will automatically Rationale
acquire a permanent employment status. The It is a constitutionally protected right under Sec.
probationer can only qualify upon fulfillment of 3, Art. XIII, 1987 Constitution.
the reasonable standards set for permanent
employment as a member of the teaching Termination of employment is not anymore a
personnel. [Herrera-Manaois v. St. mere cessation or severance of a contractual
Scholastica’s College, G.R. No. 18891 (2013)] relationship, but an economic phenomenon
affecting members of the family. Under the
These standards should be made known to the principle of social justice, dismissal of
teachers on probationary status at the start of employees is adequately protected by the
their probationary period, or at the very least laws. [Albambra Industries v. NLRC, GR No.
under the circumstances of the present case, 106771 (1994)]
at the start of the semester or the trimester
during which the probationary standards are to Management Prerogative
be applied. Of critical importance in invoking a An employer cannot be compelled to continue
failure to meet the probationary standards, is in its employ a person whose continuance in
that the school should show – as a matter of the service would patently be inimical to its
due process – how these standards have been interests. [Baguio Central University v.
applied. [Colegio del Santisimo Rosario v. Gallente, GR No, 188267 (2013)]
Rojo, G.R. No. 170388 (2013)]
Requisites for the valid invocation of
management prerogative affecting security of
B. TERMINATION BY tenure:
EMPLOYER 1. Exercised in good faith for the
advancement of employer’s interest, and
Coverage 2. Not for the purpose of defeating or
All establishments or undertakings, whether for circumventing the rights of the employees
profit or not. [Art. 293] under special laws or valid agreements.
[San Miguel Brewery Sales Force Union v.
Exception Ople, GR No. 52515 (1989)]
Government and its political subdivisions
including GOCCs without original charter. [Sec. Disposition of labor disputes
1, Rule 1, Book VI, IRR] Bare and vague allegations as to the manner
of service and the circumstances surrounding
Security of Tenure [Art. 294] the same would not suffice.
In case of regular employment, the employer
shall not terminate the services of an employee Example: a mere copy of the notice of
except for a just cause or when authorized termination allegedly sent by the employer to
by this Title. the employee, without proof of receipt or at the
very least, actual service is not substantial
An employee who is unjustly dismissed from evidence. [Mansion Printing Center v. Bitara
work shall be entitled to: Jr., GR No. 168120 (2012)]
1. Reinstatement without loss of seniority
rights, and other privileges, Substantive issues must be addressed more
2. Full backwages inclusive of allowance, and than anything else, and so, the Court may
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forego the matter of procedural infirmities in While an employer enjoys a wild latitude of
labor cases. [Ang v. San Joaquin, Jr., GR No. discretion in the promulgation of policies, rules
182249 (2013)] and regulations on work-related activities, such
must be fair and reasonable, and the
Burden of Proof corresponding penalties, when prescribed
In order: must be commensurate to the offense
1. Existence of ER-EE Relationship - borne involved and to the degree of infraction.
by employee [Moreno v. San Sebastian College-Recoletos,
2. Fact of dismissal - borne by employee GR No. 175283 (2008)]
3. Legality of dismissal - borne by employer
1. Requisites for Validity
Employee must first establish fact of
dismissal a. Substantive due process
Before the employer must bear the burden of
proving that the dismissal was legal, the Substantive Due Process - whether the
employee must prove by substantial evidence termination was based on the provisions of the
the fact of his dismissal from service for the Labor Code or in accordance with
question of the legality or illegality of the jurisprudence.
dismissal to arise. [MZR Industries v.
Colambot, GR No. 179001 (2013)] The dismissal must be for any of the causes
provided for in Art. 297-299.
Employer’s burden of proving legality of
dismissal i. Just causes
The burden of proving the termination was for
a valid or authorized cause shall rest on the a. Serious Misconduct or Willful
employer. (Art. 292 (b)) Disobedience (Insubordination)
b. Gross & Habitual Neglect of Duties
Unsubstantiated accusations or baseless c. Fraud/Willful Breach of Trust
conclusions of the employer are insufficient d. Commission of A Crime
legal justifications to dismiss and employee. e. Analogous cases
[Garza v. Coca-Cola Bottlers Inc, GR No.
180972 (2014)] An employer may terminate an employment for
any of the following causes:
The employer’s case succeeds or fails on the a. Serious misconduct or willful disobedience
strength of its evidence, and not the weakness by the employee of the lawful orders of his
of that adduced by the employee in keeping employer or representatives in connection
with the principle that the scales of justice with his work;
should be titled in favor of the latter in case of b. Gross and habitual neglect by the
doubt in the evidence presented. [Functional employee of his duties;
Inc. v Garafil, GR No, 176377 (2011)] c. Fraud or willful breach by the employee of
the trust reposed in him by his employer or
Measure of Penalty duly authorized representative;
Not every case of insubordination or willful d. Commission of a crime or offense by the
disobedience by an employee reasonably employee against the person of his
deserves the penalty of dismissal. The penalty employer or any immediate member of his
must be commensurate with the gravity of family or his duly authorized
the offense. [Joel Montallana v. La representatives; and
Consolacion College Manila, GR No. 208890 e. Other causes analogous to the foregoing.
(2014)] [Art. 297]
(c) Fraud/Willful Breach of Trust The employee is one holding a position of trust
and confidence (e.g. managerial or fiduciary
Requisites of fraud or willful breach of trust: employees). There must be an act that justifies
1. There must be an act, omission or the loss of trust and confidence based on a
concealment; willful breach of trust and founded on clearly
2. The act, omission or concealment involves established facts. [Wesleyan University -
a breach of legal duty, trust, or Philippines v. Reyes, GR No. 208321 (2014)]
confidence justly reposed;
3. It must be committed against the Moreover, the act complained must be related
employer or his/her representative; and to the performance of the duties of the
4. It must be in connection with employee’s employee such as would show him to be
work. [Sec. 5.2 (d), DO No. 147-15] thereby unfit to continue working for the
employer. [Equitable Banking Corp. v. NLRC,
When dismissal is proper for fraud/willful GR No. 102467 (1997)]
breach of trust
Such breach is willful if it is done intentionally, Note: DO 174-15 distinguishes fraud or willful
knowingly, and purposely, without justifiable breach of trust from loss of confidence, but, as
excuse as distinguished from an act done seen in cases, jurisprudence seems to make
carelessly, thoughtlessly, heedlessly or no such distinction.
inadvertently. The act complained of must be
work-related and shows that the employee is Positions of trust and confidence
unfit to continue working. In addition, it must be 1. Managerial employees - vested with
premised on the fact that the employee powers or prerogatives to lay down
concerned holds a position of responsibility, management policies and to hire, transfer,
trust and confidence or is entrusted with suspend, lay-off, recall, discharge, assign
confidence with respect to delicate matters or discipline employees or effectively
such as handling or case and protection of the recommend such managerial actions.
property and assets of the employer. 2. Fiduciary Rank and File - those who in the
[Villanueva, Jr. v. NLRC, GR No. 176893 normal and routine exercise of their
(2012)] functions, regularly handle significant
amounts of money or property. Ex.
Requisites of loss of confidence cashiers, auditors, property custodians.
1. There must be an act, omission or [Prudential Guarantee and Assurance
concealment; Employee Labor Union v. NLRC, GR No.
2. The act, omission or concealment justifies 185335 (2012)].
the loss of trust and confidence of the
employer to the employee;
Managerial Fiduciary Rank-
3. The employee concerned must be holding
and-File
a position of trust and confidence;
4. The loss of trust and confidence should Mere existence of a Proof of involvement
not be simulated; basis for the belief in the alleged events
5. It should not be used as a subterfuge for of employee’s guilt. in question required;
causes which are improper, illegal or [Grand Asian mere uncorroborated
unqualified; and Shipping Lines assertions and
6. It must be genuine and not a mere Inc.v. Galvez, GR accusations are not
afterthought to justify an earlier action No. 178184 (2014) enough. [Etcuban,
taken in bad faith. [Sec. 5.2(e), DO No. Jr. v. Sulpico Lines
147-15] Employment for a Inc, GR No. 148410
long time is counted (2005)]
When dismissal is proper for loss of AGAINST the
trust/confidence
The act of engaging in extramarital affairs was misconduct and present behavior must be
specifically provided for by the cooperative’s taken together in determining the proper
Personnel Policy as one of the grounds for imposable penalty. [Merin v. NLRC, GR No.
termination of employment. The Board 171790 (2008)]
received complaints and petitions from the
cooperative members for the removal of Pregnancy out of wedlock
Bandiola because of his immoral conduct, When the law speaks of immoral or
hence immorality (extramarital affair) justified necessarily, disgraceful conduct, it pertains to
the termination of his employment. [Alilem public and secular morality.
Credit Cooperative v. Bandila, Jr. GR No.
173489 (2013) Pre-marital sexual relations between two
consenting adults, who have no impediment to
Standard of morality marry each other, and consequently,
It is public and secular, not religious. Whether conceiving a child out of wedlock, gauged from
a conduct is considered disgraceful or immoral a purely public and secular view of morality
should be made in accordance with the does NOT amount to an immoral conduct.
prevailing norms of conduct, which as stated in [Cheryl Leus v. St. Scholastica College
Leus, refer to those conducts which are Westgrove, GR No. 187226 (2015)]
proscribed because they are detrimental to
conditions upon which depend the existence of Conviction/commission of a crime
and progress of human society. The charge of drug abuse within the company’s
premises and during work hours constitutes
The fact that a particular act does not conform serious misconduct which is a just cause for
to the traditional moral views of a certain termination. [Bughaw Jr. v. Treasure Island
sectarian institution is insufficient to qualify the Industrial, GR No. 173151 (2008)]
act as immoral unless it likewise does not
conform to the public and secular standards. Temporary “off-detail” or “floating status”
More importantly, there must be substantial This is the period of time when security guards
evidence to establish premarital sexual are in between assignments or when they are
relations and pregnancy out of wedlock is made to wait after being relieved from a
considered disgraceful or immoral. [Capin- previous post until they are transferred to a new
Cadiz v. Brent Hospital, GR No. 187417 one.
(2016)]
When this occurs
Totality of infractions 1. Security agency’s clients decide not to
The totality of infractions or the number of renew their contracts with the agency,
violations committed during the period of resulting in a situation where the available
employment shall be considered in determining posts under its existing contracts are less
the penalty to be imposed upon an erring than the number of guards in its roster,
employee. Fitness for continued employment 2. Contracts stipulate that the client may
cannot be compartmentalized into tight little request the agency for replacement of
cubicles of aspects of character, conduct and guards assigned to it even for want of
ability separate and independent of each other. cause.
While it may be true that the petitioner was During such time, the security guard does not
penalized for his previous infractions, this does receive any salary or financial assistance
not and should not mean that his employment provided by law. It does not constitute a
record would be wiped clean. After all, the dismissal, as the assignments primarily
record of an employee is a relevant depend on contracts entered into between
consideration in determining the penalty that security agencies and third parties, so as long
should be meted out since an employee’s past as such status does not continue beyond a
reasonable time. When such status lasts for Payment of Separation Pay
more than 6 months, the employee may be
Authorized Cause Separation Pay
considered constructively dismissed.
[Salvaloza v. NLRC, GR No. 182086 (2010)] Labor-saving 1 month pay or at
devices least 1 month pay
Transfer/Reassignment of work for every year of
Jurisprudential guidelines Redundancy service, whichever is
1. A transfer is a movement from one position higher [Art. 298]
to another of equivalent rank, level or
salary without break in the service or a Retrenchment, 1 month pay or at
lateral movement from one position to closure, or least ½ month pay
another of equivalent rank or salary; suspension of for every year of
2. The employer has the inherent right to operations service, whichever is
transfer or reassign an employee for higher. [Art. 298]
legitimate business purposes;
3. A transfer becomes unlawful where it is
Note: A fraction of at least 6 months shall be
motivated by discrimination or bad faith or
considered 1 whole year. [Art. 298]
is effected as a form of punishment or is a
demotion without sufficient cause;
Basis
4. The employer must be able to show that
Employment is the lifeblood upon which the
the transfer is not unreasonable,
worker and his family owe their survival. [Flight
inconvenient or prejudicial to the
Attendants and Stewards Ass’n of the
employee. [Rural Bank of Cantilan Inc v.
Philippines v. PAL, GR. No. 178083 (2009)]
Julve, GR No. 169750 (2007)]
Written notice
ii. Authorized causes
For all authorized causes, a written notice
served on both the employees and the DOLE
Also known as “Business-related Causes”
at least one month prior to the intended date of
termination is required.
The employer may also terminate the
employment of any employee due to:
(a) Installation of labor-saving devices
a. The installation of labor-saving devices,
b. Redundancy,
This refers to the installation of machinery to
c. Retrenchment to prevent losses or
effect efficiency and economy in the
d. The closing or cessation of operation of the
employer’s method of production. [Edge
establishment or undertaking not due to
Apparel Inc v. NLRC, GR No. 121314 (1998)]
serious loss [Art. 298]
Requisites
Other causes
1. There must be introduction of
a. Disease incurable in 6 months [Art. 299]
machinery, equipment, or other
b. Enforcement of union security clause in the
devices;
CBA
2. The introduction must be done in good
c. Dismissal of union officers for the conduct
faith;
of an illegal strike; Dismissal of union
3. The purpose for such introduction must
members for participating in the
be valid such as to save on cost, enhance
commission of illegal acts in a strike [Art.
efficiency and other justifiable economic
279 (a)]
reasons;
d. Termination in conformity with existing
4. There is no other option available to
statute/qualification requirements.
employer than the introduction of
machinery, equipment or device and the
(d) Closing or cessation of business not separation pay. Otherwise, the affected
due to serious loss employees are entitled to separation pay.
5. The burden of proving compliance with all
Requisites the above-stated falls upon the employer.
1. There must be a decision to close or cease [Manila Polo Club Employees’ Union v.
operation of the enterprise by the Manila Polo Club, GR No. 172846 (2013)]
management;
2. The decision was made in good faith; and Closure of Department
3. There is no other option available to the The closure of a department or division of a
employer except to close or cease company constitutes retrenchment by, and not
operations. [Sec 5.4(d), DO No. 147-15] closure of, the company itself. [Waterfront
Cebu City Hotel v. Jimenez, GR No. 174214
Unless the closing is for the purpose of (2012)]
circumventing the provisions of this Title [Art.
298] Corporate Acquisitions
Asset Sales Stock Sales
By serving a written notice on the workers and
the Ministry of Labor and Employment at least
Sale
1 month before the intended date thereof. [Art.
298]
Corporate entity The individual or
Guidelines sells all or corporate
1. Closure or cessation of operations of substantially all of its shareholders sell a
establishment or undertaking may either be assets to another controlling lock of
partial or total. entity. stock to new or
2. Closure or cessation of operations of existing
establishment or undertaking may or may shareholders.
not be due to serious business losses or
financial reverses. In both instances, proof Obligations of Seller
must be shown that:
a. It was done in good faith to advance the Seller in good faith is A shift in the
employer's interest and not for the authorized to composition of its
purpose of defeating or circumventing dismiss the affected shareholders will not
the rights of employees under the law employees, but is affect its existence
or a valid agreement; and liable for the and continuity.
b. A written notice on the affected payment of
employees and the DOLE is served at separation pay. Notwithstanding the
least 1 month before the intended date stock sale, the
of termination of employment. corporation
3. The employer can lawfully close shop even continues to be the
if not due to serious business losses or employer of its
financial reverses but separation pay, people and
which is equivalent to at least one month continues to be
pay as provided for by Article 283 of the liable for the
Labor Code, as amended, must be given to payment of their
all the affected employees. wages.
4. If the closure or cessation of operations of
establishment or undertaking is due to Obligation of Buyer
serious business losses or financial
reverses, the employer must prove such
allegation in order to avoid the payment of
Summary
Retrenchment Redundancy Closure
1 month or ½ month pay per 1 month or 1 month pay per Closure not due to serious
year of service separation pay year of service separation pay business losses, 1 month or ½
(whichever is higher) (whichever is higher) month pay per year of service
separation pay (whichever is
higher).
3. There is sufficient evidence to support the the National Labor Relations Commission.
union’s decision to expel the employee [Art. 292 (b)]
from the union or company.
Procedural Due Process - manner in which
(g) Dismissal of Union Officers for the the dismissal was effected.
conduct of an illegal strike; Dismissal of 1. The first written notice to be served on the
union members for participating in the employees should contain the specific
commission of illegal acts in a strike causes or grounds for termination against
them, and a directive that the employees
Any union officer who knowingly participates in are given the opportunity to submit their
an illegal strike, and any worker or union officer written explanation within a reasonable
who knowingly participates in the commission period.
of illegal acts during a strike may be declared 2. The requirement of a hearing is complied
to have lost employment status. [Art. 279 (a)] with as long as there was an opportunity to
be heard, and not necessarily an actual
(h) Termination in Conformity with Existing hearing was conducted.
Statute/ Qualification Requirements 3. After determining that termination of
employment is justified, the employers
While the right of workers to security of tenure shall serve the employees a written notice
is guaranteed by the Constitution, its exercise of termination indicating that:
may be reasonably regulated pursuant to the a. All circumstances involving the charge
police powers of the State to safeguard health, against the employee have been
morals, peace, education, order, safety, and considered, and
the general welfare of the people. b. The grounds have been established to
justify the severance of the
Consequently, persons who desire to engage employment. [Inguillo v. First Phil
in the learned professions requiring scientific or Scales, GR No. 165407 (2019)]
technical knowledge may be required to take
an examination as a prerequisite to engaging The employee must be afforded an opportunity
in their chosen careers. [St. Luke's Medical to be heard and defend himself. [Fujitsu
Center Employees Assn v. NLRC, GR No. Computer Products Corporation of the Phil v.
162053 (2007)] CA, GR No. 158232 (2005)]
b. Procedural due process The employer may not substitute the required
prior notice and opportunity to be heard with
The employer shall: the mere payment of 30 day’s salary. [PNB V.
1. Furnish the worker, whose employment is Cabansag, GR No. 157010 (2005)]
sought to be terminated, a written notice
containing a statement of the causes for Right to Counsel
termination; and The right to counsel, a very basic requirement
2. Afford the latter ample opportunity to be of substantive due process, has to be
heard and to defend himself, with the observed. Indeed the rights to counsel and to
assistance of his representative if he so due process of law are two of the fundamental
desires, in accordance with company rules rights guaranteed by the 1987 Constitution to
and regulations promulgated pursuant to any person under investigation, be the
guidelines set by the DOLE. [Art. 292 (b)] proceeding administrative, civil or criminal.
[Salaw v. NLRC, GR No. 90786 (1991)]
Any decision taken by the employer shall be
without prejudice to the right of the worker to The procedure can be summarized as follows:
contest the validity or legality of his dismissal
by filing a complaint with the regional branch of
1. Employer must furnish the employee with a 2. Directive that the employee is given the
written notice containing the cause for opportunity to submit his written
termination. explanation within a “reasonable period” or
2. The employer must give the employee an every kind of assistance that management
opportunity to be heard. This can be done must accord to enable him to prepare
either through: adequately for his defense. This should be
a. Position paper or construed as a period of at least 5 calendar
b. Clarificatory hearing. days from receipt of notice.
3. The employee MAY also be assisted by a 3. Detailed narration of the facts and
representative or counsel. circumstances that will serve as basis for
4. The employer must give another written the charge against the employees. A
notice apprising the employee of its general description of the charge will not
findings and the penalty to be imposed suffice. [Unilever v. Rivera, GR No. 201701
against the employee, if any. (2013)]
4. The company rules, if any, violated and/or
In labor cases, these requisites meet the the grounds under Art. 288 being charged
constitutional requirement of procedural due against the employee. [United Tourist
process, which contemplates, “notice and Promotions v. Kemplin, GR No. 205453
opportunity to be heard before judgment is (2014)]
rendered affecting one’s person or property”.
[Montinola v. PAL, GR No. 198656 (2014)] CONTENTS OF SECOND NOTICE
1. All circumstances involving the charge
i. Twin Notice Requirement against the employee considered
2. Grounds established to justify the
The employer has the burden of proving that a severance of employment. [United Tourist
dismissed worker has been served two notices: Promotions v. Kemplin, GR No. 205453
1. First written notice: specifying the (2014)]
ground(s) for termination and giving the
employee the reasonable opportunity PRE-DISMISSAL NOTICE GROUNDS
within which to explain his side. An employee may be dismissed only if the
2. Second written notice: indicating that upon grounds mentioned in the pre-dismissal notice
due consideration of all circumstances, were the ones cited for termination of
grounds have been established to justify employment. [Erector Advertising Sign Groups
his termination v. Cloma, GR No. 167218 (2010)]
The Test of Constructive Dismissal In order for intimidation to vitiate consent, the
Whether a reasonable person in the following requisites must concur:
employee’s position would have felt compelled 1. that the intimidation caused the consent to
to give up his position under the be given;
circumstances. [Tuazon v. Bank of Commerce, 2. that the threatened act be unjust or
G.R. No. 192076 (2012)] unlawful;
3. that the threat be real or serious, there
It is an act amounting to dismissal but made to being evident disproportion between the
appear as if it were not. Constructive dismissal evil and the resistance which all men can
is, therefore, a dismissal in disguise. As such, offer, leading to the choice of doing the act
the law recognizes and resolves this situation which is forced on the person to do as the
in favor of employees in order to protect their lesser evil; AND
rights and interests from the coercive acts of 4. that it produces a well-grounded fear from
the employer. In fact, the employee who is the fact that the person from whom it
constructively dismissed may be allowed to comes has the necessary means or ability
keep on coming to work. [McMer Corp., Inc. v. to inflict the threatened injury to his person
NLRC, G.R. No. 193421 (2014)] or property. [Mandapat v. Add Force
Personnel, G.R. No. 180285 (2010)]
Unlawful withholding of wages for a long time (a) Burden of proof
could be tantamount to an illegal constructive
dismissal. [Gilles v. CA, G.R. No. 149273 The burden of proving that the termination was
(2009)] for a valid or authorized cause shall rest on the
employer. [Art. 292 (b)]
A bona fide suspension of work is allowed for
as long as it does not exceed 6 months. In illegal dismissal cases, the onus of proving
Failure of the employer to recall the suspended that the employee was not dismissed or, if
employees in the 6-month period amounts to dismissed, that the dismissal was not illegal,
constructive dismissal. [SKM Art. Craft Corp. v. rests on the employer, failure to discharge
Bauca, G.R. No. 171282 (2013)] which would mean that the dismissal is not
justified and, therefore, illegal. [Macasero v.
For a transfer to be a valid exercise of Southern Industrial Gases Philippines, GR No.
management prerogative: 198656 (2014)]
(1) There is no demotion in rank;
(2) There is no diminution of salary, benefits,
and other privileges;
Either way, this must be done immediately Instances when the award of separation pay, in
upon the filing of their appeal, without need of lieu of reinstatement to an illegally dismissed
any executory writ. employee, is proper:
a. When reinstatement is no longer possible,
If the order of reinstatement of the Labor Arbiter in cases where the dismissed employee's
is reversed on appeal, it is obligatory on the position is no longer available;
part of the employer to reinstate and pay the b. The continued relationship between the
wages of the dismissed employee during the employer and the employee is no longer
period of appeal until reversal by the higher viable due to the strained relations
court. between them; and
c. When the dismissed employee opted not to
The Labor Arbiter's order of reinstatement is be reinstated, or the payment of separation
immediately executory and the employer has to benefits would be for the best interest of the
either re-admit them to work under the same parties involved. [Sec. 4(b), Rule I, Book VI,
terms and conditions prevailing prior to their IRR]
dismissal, or to reinstate them in the payroll,
and that failing to exercise the options in the Separation Pay and Reinstatement,
alternative, employer must pay the employee's Exclusive Remedies
salaries [Magana v. Medicard Philippines, Inc., The payment of separation pay and
G.R. No. 174833 (2010)] reinstatement are exclusive remedies. The
payment of separation pay replaces the legal
No refund doctrine consequences of reinstatement to an
An employee cannot be compelled to employee who was illegally dismissed. [Bani
reimburse the salaries and wages he received Rural Bank, Inc. v. De Guzman, G.R. No.
during the pendency of his appeal, 170904 (2013)]
notwithstanding the reversal by the NLRC of
the LA's order of reinstatement. [College of the Doctrine of Strained Relations
Immaculate Conception v. NLRC, G.R. No. Where reinstatement is not feasible, expedient
167563 (2010)] or practical, as where reinstatement would only
exacerbate the tension and strained relations
Note: However, Rule XI, Sec. 14 of the 2011 between the parties or where the relationship
NLRC Rules of Procedure provide for between the employer and employee has been
restitution of amounts paid pursuant to unduly strained by reason of their irreconcilable
execution of awards during pendency of the differences, particularly where the illegally
appeal. However, it expressly disallows dismissed employee held a managerial or key
position in the company, it would be more 3. In the nature of a command to the employer
prudent to order payment of separation pay to make a public reparation for illegally
instead of reinstatement. [Quijano v. Mercury dismissing an employee.
Drug Corp., G.R. No. 126561 (1998)] a. It is not private compensation or
damages;
Computation b. Nor is it a redress of a private right. [St.
SP as a statutory requirement is computed by Theresa's School of Novaliches
integrating the basic salary with regular Foundation v. NLRC, G.R. No. 122955
allowances employee has been receiving (1998)]
[Planters Products, Inc. v. NLRC, G.R. No.
78524, 78739 (1989)]; allowances include Backwages and reinstatement are two reliefs
transportation and emergency living that should be given to an illegally dismissed
allowances [Santos v. NLRC, G.R. No. 76721 employee. They are separate and distinct from
(1987)] each other.
The effects of extraordinary inflation are not to It shall be unlawful for any person to demand
be applied without an official declaration or accept, in any judicial or administrative
thereof by competent authorities. [Lantion v. proceedings for the recovery of wages,
NLRC, G.R. No. 82028 (1990)] attorney’s fees which exceed 10% percent of
the amount of wages recovered. [Art. 111, CC]
Note that according to Nacar v. Gallery
Frames, when the judgment of the court General Rule: attorney's fees and expenses of
awarding a sum of money becomes final and litigation, other than judicial costs, cannot be
executory, the rate of legal interest …. shall be recovered
6% per annum from such finality until its
satisfaction, this interim period being deemed Exception: stipulation to the contrary xxx in
to be by then an equivalent to a forbearance of actions for the recovery of wages of household
credit. [Nacar v. Gallery Frames, G.R. No. helpers, laborers and skilled workers [Art.
189871, (2013)] 2208(7), CC]
business or of a specific component thereof. service, such that he has no other choice but to
[Valdez v. NLRC, G.R. No. 125028 (1998)] disassociate himself from his employment.
[Cervantes v. PAL Maritime Corp., G.R. No.
175209 (2013)]
C. TERMINATION BY
EMPLOYEE To constitute a resignation:
1. It must be unconditional and with the intent
to operate as such;
1. With notice to the employer
2. There must be an intention to relinquish a
portion of the term of office accompanied
An employee may terminate without just cause
by an act of relinquishment.
the employer-employee relationship
a. By serving a written notice on the employer
The fact that the employee signified his desire
at least one (1) month in advance
to resume his work when he went back to
b. The employer upon whom no such notice
AZCOR after recuperating from his illness, and
was served may hold the employee liable
actively pursued his case for illegal dismissal
for damages [Art. 300]
before the labor courts when he was refused
admission by his employer, negated any
Notice is required when termination is without
intention on his part to relinquish his job at
just cause. Written notice to resign must be
AZCOR. [Azcor Manufacturing Inc. v. NLRC,
submitted one (1) month in advance. [Art. 300]
G.R. No. 117963 (1999)]
2. Without notice to the employer Well-entrenched is the rule that resignation is
inconsistent with the filing of a complaint for
An employee may put an end to the illegal dismissal. [Blue Angel Manpower and
relationship without serving any notice on the Security Services Inc. v Court of Appeals, G.R.
employer for any of the following requirements: No. 161196 (2008)]
1. Serious insult by the employer or his
representative on the honor and person of The rule requiring an employee to stay or
the employee; complete the 30-day period prior to the
2. Inhuman and unbearable treatment effectivity of his resignation becomes
accorded the employee by the employer or discretionary on the part of management, as an
his representative; employee who intends to resign may be
3. Commission of a crime or offense by the allowed a shorter period before his resignation
employer or his representative against the becomes effective. [Hechanova Bugay Vilchez
person of the employee or any of the Lawyers v. Matorre, G.R. No. 198261 (2013)]
immediate members of his family; and
4. Other causes analogous to any of the Requisites of a valid resignation
foregoing. [Art. 300] 1. Voluntary, unconditional, and intentionally
to relinquish a portion of a term of
Notice is NOT required when termination is employment;
with just cause. [Art. 300] 2. Accompanied by an act of relinquishment.
regularly employing not more than ten Employee may still work after retirement
employees [Sec. 2, IRR, RA 7641] Upon retirement of an employee, whether
optional or compulsory, his services may be
Note: Domestic helpers and those in the continued or extended on a case to case basis
personal service of others used to be upon the agreement of the employer and
exempted but such was deleted by D.O. 20 employee. [Sec. 4, IRR, RA 7641]
(1994).
2. Amount of Retirement Pay
When the provisions of RA 7641 apply
RA 7641 only applies in a situation where there Minimum Retirement Pay [Sec. 5, IRR, RA
is: 7641]
a. No CBA or other applicable employment
contract providing for retirement benefits; Minimum Components
OR ½ month salary for “One-half month
b. Retirement benefits provided by CBA or every year of service salary” shall include
other employment contract fall below the all of the following:
requirements set by law. [Oxales v. Unilab, NOTE: a fraction of Fifteen (15) days
G.R. No. 152991 (2008)] at least 6 months salary based on the
shall be considered latest salary rate;
Age of retirement a year
In the absence of a retirement plan or
Cash equivalent of
agreement: “one-half month five (5) days of
a. Compulsory retirement: 65 years old [Sec.
salary” is equivalent service incentive
4, IRR, RA 7641] to 22.5 days. leave;
b. Optional retirement: 60 years or more (but [Capitol Wireless,
below 65) and having served the
Inc. v. Sec. One-twelfth (1/12) of
establishment for at least 5 years. [Sec. 1,
Confessor, G.R. No. the 13th month pay.
IRR, RA 7641]
117174 (1996); (1/12 x 365/12 =
Reyes v. NLRC, .083 x 30.41 = 2.52)
An employer is free to impose a retirement age G.R. No. 160233
less than 65 for as long as it has the (2007)] All other benefits
employees’ consent. [Jaculbe v. Silliman that the employer
University, G.R. No. 156934 (2007)] and employee may
agree upon
For surface mine workers:
a. Compulsory retirement age: 60 years old
b. Optional retirement age is 50 and having Retirement pay under RA 7641 vis-à-vis
served the establishment for at least 5 retirement benefits under SSS and GSIS
years. [Sec. 2, RA 10757] laws
The benefits under RA 7641 are other than
Forfeiture of Benefits those granted by the SSS or the GSIS. [Secs.
Employees dismissed for just cause are not 1 & 2, RA 7641]
entitled to retirement benefits and other
privileges including reinstatement and Retirement Benefits under a CBA or
backwages. To rule otherwise would be to Applicable Contract
reward acts of willful bread of trust by Any EE may retire or be retired by his/her ER
employees. [Sy v. Metropolitan Bank, G.R. No upon reaching the age established in the CBA
160618 (2006)] or other applicable agreement/contract and
shall receive the retirement benefits granted
therein; provided, however, that such
retirement benefits shall not be less than the
Where both the ER and the EE contribute to a The retirement benefits received by officials
retirement fund pursuant to the applicable and employees of private firms in accordance
agreement, the ER’s total contributions and the with a reasonable private benefit plan
accrued interest thereof should not be less maintained by the employer:
than the total retirement benefits to which the a. shall be exempt from all taxes and
EE would have been entitled had there been no b. shall not be liable to attachment,
such retirement benefits’ fund. If such total garnishment, levy or seizure by or under
portion from the ER is less, the ER shall pay any legal or equitable process whatsoever.
the deficiency. [Sec. 3.3, IRR, RA 7641] [Sec. 1, RA 4917]
LABOR LAW 2
LABOR LAW
employer. [Belyca Corp. v. Calleja, G.R. No. University v. DLSU Employees Association EA,
77395 (1988) citing Rothenberg] G.R. No. 109002, (2000)]
Workers Union v. Calica, G.R. No. 96490 the several categories to select the group
(1992)] which each chooses as a bargaining unit.
[Kapisanan ng mga Manggagawa sa Manila
Spun-off corporations Road Co. v. Yard Crew Union, G.R. Nos. L-
The transformation of the companies is a 16292-94 (1960)]
management prerogative and business
judgment which the courts cannot look into Rationale: Highly skilled or specialized
unless it is contrary to law, public policy or technical workers may choose to form their
morals. [...] Considering the spin-offs, the own bargaining unit because they may be in
companies would consequently have their better position to bargain with the employer
respective and distinctive concerns in terms of considering the market value of their skills.
the nature of work, wages, hours of work and
other conditions of employment. [...] The nature Community or Mutuality of Interests
of their products and scales of business may The basic test in determining the appropriate
require different skills, volumes of work, and bargaining unit is that a unit, to be appropriate,
working conditions which must necessarily be must affect a grouping of employees who have
commensurate by different compensation substantial, mutual interests in wages, hours,
packages. [San Miguel Union v. Confesor, working conditions, and other subjects of
G.R. No. 111262 (1996)] collective bargaining. [UP v. Ferrer-Calleja,
G.R. No. 96189, (1992)]
TEST TO DETERMINE THE CONSTITUENCY
OF AN APPROPRIATE BARGAINING UNIT – Rationale: There are greater chances of
4 Factors: success for the collective bargaining process.
1. Will of the Employees (Globe Doctrine) The bargaining unit is designed to maintain the
2. Affinity and unity of employees’ interest mutuality of interest among the employees in
(Substantial Mutual Interests Rule) such unit.
3. Prior collective bargaining history
4. Employment status [Democratic Labor When the interest between groups has
Association v. Cebu Stevedoring Co. Inc, changed over time, there is reason to dissolve,
G.R. No. L-10321 (1958); University of the change or expand a certain bargaining unit.
Philippines v. Ferrer-Calleja, G.R. No.
96189 (1992)] Prior Collective Bargaining History
The existence of a prior collective bargaining
Note: Where the employment status was not at history is neither decisive nor conclusive in the
issue but the nature of work of the employees determination of what constitutes an
concerned; the Court stressed the importance appropriate bargaining unit. [Sta. Lucia East
of the 2nd factor. [Belyca Corp. v. Calleja, G.R. Commercial Corporation v. SOLE, G.R. No.
No. 77395 (1988)] 162355 (2009)]
while Rule IX, Sec. 2 reckon the period of Non-participation in previous election has
employment from the “time of filing the no effect
petition”. This difference has not been resolved [Failure to take part in previous elections is no
in any case before the Supreme Court. bar to the right to participate in future elections.]
No law, administrative rule or precedent
All rank and file employees in the appropriate prescribes forfeiture of the right to vote by
bargaining unit, whether probationary or reason of neglect to exercise the right in past
permanent are entitled to vote. The Code certification elections. [Reyes v. Trajano, G.R.
makes no distinction as to their employment No. 84433 (1992)]
status. [...] All they need to be eligible to
support the petition is to belong to a bargaining 1. Determination of Representation
unit. [Airtime Specialists, Inc. v. Ferrer-Calleja, Status
G.R. No. 80612-16 (1990)]
Methods of Establishing Majority Status
Rationale for Non-Distinction Policy a. Sole and Exclusive Bargaining Agent
Collective bargaining covers all aspects of the (SEBA) Certification
employment relation and the resultant CBA b. Consent Election
binds all employees in the bargaining unit. All c. Certification Election
rank and file employees, probationary or d. Run-Off Election
permanent, have a substantial interest in the e. Re-Run election
selection of the bargaining representative.
[Airtime Specialists, Inc. v Ferrer-Calleja, Note: D.O. No. 40-I-15 replaced Voluntary
supra.] Recognition with SEBA certification, as of
September 7, 2015.
Dismissed employees [Sec. 6, Rule IX, Book
V, IRR] a. SEBA Certification
General Rule: [Dismissed] employees [who]
contested legality of the dismissal in a forum of PROCEDURE [RULE VII, BOOK V, IRR]
appropriate jurisdiction at the time of the 1. File Request for SEBA Certification [Sec.
issuance of the order for conduct of a 1]
certification election
Who: Any legitimate labor organization
Exception: Dismissal was declared valid in a
final judgment at the time of the conduct of the File where: Regional Office which issued
certification election. its certificate of registration or certificate of
creation of chartered local
Disagreement over voters’ list over
eligibility of voters 2. Indicate in the request [Sec. 2]:
All contested voters shall be allowed to vote a. Name and address of the requesting
[but] their votes shall be segregated and sealed legitimate labor organization;
in individual envelopes. [Sec. 6, Rule IX, Book b. Name and address of the company
V, IRR] where it operates;
c. Bargaining unit sought to be
Voting List and Voters represented;
The basis of determining voters may be agreed d. Approximate number of employees in
upon by the parties (i.e. the use of payroll). the bargaining unit; and
[Acoje Workers Union v. NAMAWU, G.R. No. e. Statement of the existence/non-
L-18848 (1963)] existence of other labor
organization/CBA.
If the Regional Director finds it deficient, 5. Regional Director shall post the SEBA
he/she shall advise the requesting union or Certification [Sec. 4.1]
local to comply within ten (10) days from
notice. Failure to comply within the Period: Fifteen (15) consecutive days
prescribed period shall be deemed
withdrawal of the request. Where: At least two (2) conspicuous
places in the establishment or covered
If Unorganized Establishment [Sec. 4] bargaining unit.
a. Finding of only 1 legitimate labor
organization – Regional Director shall call EFFECT OF SEBA CERTIFICATION [Sec.
a conference within five (5) working days 4.2]
for the SUBMISSION of: Upon the issuance of the [SEBA Certification],
1. Names of employees in the covered the certified union or local shall enjoy all the
bargaining unit who signify support for rights and privileges of an exclusive bargaining
certification; [and these] employees agent of all the employees in the covered
comprise at least majority of the bargaining unit.
number of employees in the covered
bargaining unit; and The certification shall bar the filing of a [PCE]
2. Certification under oath by the by any labor organization for a period of one (1)
president of the requesting union or year from the date of its issuance.
local that all documents submitted are
true and correct based on personal Upon expiration of this one-year period, any
knowledge legitimate labor organization may file a [PCE]
b. Failure to Complete Requirements for in the same bargaining unit represented by the
SEBA Certification - the request for SEBA certified labor organization, unless a [CBA]
between the employer and the certified labor organization. [Reyes v. Trajano, G.R. No.
organization was executed and registered with 84433 (1992)]
the Regional Office in accordance with Rule
XVII. BARS TO A CERTIFICATE ELECTION
Petition for certification may be filed:
b. Consent Election General Rule: Anytime
Exceptions:
Consent Election means the election 1. One-year bar rule
voluntarily agreed upon by the parties with or 2. Negotiation bar rule
without the intervention by DOLE [Sec. 1(i), 3. Deadlock bar rule
Rule I, Book V, IRR] 4. Contract bar rule
Procedure [Sec. 11, Rule VIII, Book V, IRR] See Grounds for denying a Petition for
1. The parties may agree to hold a consent Certification Election
election
a. Where no petition for certification (1) One-Year Bar Rule
election was filed; or
b. Where a petition for certification No certification election may be held within 1
election had been filed, and upon the year from the time a valid certification, consent
intercession of Med-Arbiter [Sec. 25, or run-off election has been conducted within
Rule VIII, Book V, IRR] the bargaining unit.
2. Mediator-Arbiter shall call for the consent
election, reflecting the parties’ agreement [If the order of the Med-Arbiter certifying the
and the call in the minutes of the results of the election has been appealed], the
conference. Regional Director or running of the one-year period shall be
authorized representative shall determine suspended until the decision on the appeal
the Election Officer by raffle in the becomes final and executory. [Sec. 3(a), Rule
presence of representatives of the VIII, Book V]
contending unions if they so desire
3. First pre-election conference is scheduled Note: This bar also applies to a SEBA
within ten (10) days from the date of the Certification under Rule VII. “The certification
agreement. Subsequent conferences may shall bar the filing of a petition for certification
be called to expedite and facilitate the election by any labor organization for a period
holding of the consent election. of one (1) year from the date of its issuance.”
[Sec. 4.2, Rule VII, Book V, IRR]
c. Certification Election
(2) Negotiation Bar Rule
Certification Election is the process of
determining, through secret ballot, the sole and No certification of election may be filed when:
exclusive representative of the employees in 1. Within 1 year after the valid certification
an appropriate bargaining unit for purposes of election
collective bargaining or negotiation. [Sec. 1(i), 2. The DULY CERTIFIED union has
Rule I, Book V, IRR] COMMENCED AND SUSTAINED
negotiations in good faith with the employer
PURPOSE 3. In accordance with Art. 261 of the Labor
The purpose of a certification election is Code Sec. 3(b), Rule VIII, Book V
precisely the ascertainment of the wishes of
the majority of the employees in the
appropriate bargaining unit: to be or not to be
represented by a labor organization, and in the
affirmative case, by which particular labor
INTERVENORS
1. Incumbent bargaining agent as forced
intervenor: The incumbent bargaining
agent shall automatically be one of the
choices in the certification election as
forced intervenor. [Sec. 8, Rule VIII, Book
V, IRR]
2. Legitimate labor union other than the
incumbent bargaining agent operating
within the bargaining unit: When a
petition for certification election was filed in
an organized establishment, any legitimate
labor union other than the incumbent
bargaining agent operating within the
bargaining unit may file a motion for
intervention with the Med-Arbiter during the
freedom period of the collective bargaining
agreement.
Substantial support rule Must be duly supported by 25% of NO substantial support rule
ALL THE MEMBERS OF THE
APPROPRIATE BARGAINING Rationale: Intention of law is
UNIT to bring in the union, to
implement policy behind Art.
Rationale: Law wants to know the 218A.
intention of the employees – if they
really want a certification election,
since they already have a
bargaining agent
shall have control of the pre- the minutes of the conference. The
election conference and election mediator-arbiter shall immediately
proceedings. (1a) forward the records of the petition
to the regional director or his/her
authorized representative for the
determination of the election officer
who shall be chosen by raffle in the
presence of representatives of the
contending unions if they so desire.
(6) Appealing the Order Granting or Secretary’s decision shall be final and
Denying the Conduct of Certification executory within ten (10) days from receipt by
Election [Sec. 19-20, RULE VIII, BOOK V, parties. [Sec. 23, Rule VIII, Book V, IRR]
IRR]
Note: No motion for reconsideration of decision
Form of appeal shall be entertained. [Sec. 23, Rule VIII, Book
1. Verified under oath V, IRR]
2. Consists of a memorandum of appeal
specifically stating the grounds relied upon Implementation of decision
by appellant with the supporting arguments General Rule: Shall not be stayed
and evidence Exception: Restrained by appropriate court
[Sec. 24, Rule VIII, Book V, IRR]
Dismissed
Organized or denied (7) Raffling of the Case to an Election
Appeal to Officer
Granted Office of
Secretary Regional Director shall cause the raffle of the
Dismissed
or denied case to an Election Officer who shall have
Unorganized control of:
Granted Unappealable 1. Pre-election conference; and
2. Election proceedings
When: Within ten (10) days from receipt of the
When: Within twenty-four (24) hours from
order [of the Med-Arbiter].
receipt of notice of entry of final judgment
granting the conduct of a certification election
Where: Regional Office where the petition
[Sec. 2, Rule IX, Book V, IRR]
originated
(8) Pre-Election Conference
Effect of Filing Memorandum of Appeal
Stays the holding of any certification election.
Notice of Pre-Election Conference [Sec. 3,
[Sec. 23, Rule VIII, Book V, IRR]
Rule IX, Book V, IRR]
The Election Officer shall cause the issuance
Reply to Appeal
of notice of pre-election conference upon the
Reply by any party to the petition shall be filed
contending unions
within ten (10) days from receipt of the
memorandum of appeal […] and filed directly
When: Within twenty-four (24) hours from the
with the office of the Secretary. [Sec. 22, Rule
[Election Officer’s] receipt of assignment for the
VIII, Book V, IRR]
conduct of a certification election
When no appeal is filed
Schedule of pre-election conference
The decision shall be final and executory if no
When: Within ten (10) days from receipt of the
appeal is filed within the ten (10) day period.
assignment
[Sec. 21, Rule VIII, Book V, IRR]
Completed within thirty (30) days from the date
of the first hearing [Sec. 5, Rule IX, Book V,
IRR]
Employer to Submit: [Sec. 3, Rule IX, Book 1. Date and time of the election;
V, IRR] 2. Names of all contending unions;
1. Certified list of employees in the bargaining 3. Description of the bargaining unit;
unit; or where necessary, 4. List of eligible and challenged voters.
2. Payrolls covering the members of the
bargaining unit at the time of the filing of Posting of the list of employees comprising the
petition bargaining unit shall be done by the DOLE
personnel.
Failure of party to appear during pre-
election conference despite notice [Sec. 4, What cannot be waived by contending
Rule IX, Book V, IRR] unions or employer:
This shall be considered a waiver of right to: 1. Posting of the notice of election
1. To be present; and 2. Information required to be included therein
2. To question or object to any of the 3. Duration of the posting
agreements reached in the pre-election
conference The parties agreed to conduct the election on
[...] a regular business day but a strike was held
Shall NOT deprive the non-appearing party of on that day. The alleged strike and/or picketing
the right to: of some employees at the company’s premises
1. Be furnished notices; and which coincided with the actual conduct of
2. To attend subsequent pre-election certification election might, perhaps have
conferences affected the actual performance of works by
some employees but did not necessarily make
Minutes of pre-election conference [Sec. 5, said date an irregular business day of the
Rule IX, Book V, IRR] company. [Asian Design and Manufacturing
Election Officer shall keep the minutes of Corp. v. Ferrer-Calleja, G.R. No. L-77415
matters raised and agreed upon. (1989)]
Exception: Devices brought in by the Election 2. Have custody of all envelopes containing
Officer the challenged votes
Consequence: Any other device found within Opening of envelopes and question of
the premises shall be confiscated by the eligibility
Election Officer and returned to its owner after Shall be passed upon by the Med-Arbiter only
conduct of the certification election. if the number of segregated votes will
materially alter the results of the election.
Spoiled Ballots
A ballot that is torn, defaced, or contains On-the-spot Questions
marking which can lead another to clearly What the Election Officer shall rule on: Any
identify the voter who casts such vote [Sec. question relating to and raised during the
1(ww), Rule I, Book V, IRR] conduct of election
If the voter inadvertently spoils a ballot, he shall What the Election Officer SHALL NOT rule
return it to the Election Officer who shall on: Question of eligibility which shall be
destroy it and give him/her another ballot. [Sec. decided by the Mediator-Arbiter
10, Rule IX, Book V, IRR]
Failure of representative/s of the
Member unintentionally omitted in the master contending unions to appear [Sec. 15, Rule
list of voters may either be: IX, Book V, IRR]
1. May be allowed to vote if both parties Considered a waiver of the right to be present
agree; [OR] and to question the conduct thereof
2. Allowed to vote but the ballot is segregated
(11) Protest [Sec. 13, Rule IX, Book V, IRR]
(10) Challenging of Votes and on the Spot
Questions [Sec. 11-12, Rule IX, Book V, Who may file: Any party-in-interest
IRR]
Ground: On the conduct or mechanics of the
Ballot of the voter who has been properly election
challenged during the pre-election conferences
shall be: When Protest is Perfected:
1. Placed in an envelope sealed by Election 1. [Record the protest] in the minutes of the
Officer in the presence of: election proceedings; AND
a. the voter; and 2. Formalize [the] protest with the Med-
b. representatives of the contending Arbiter, with specific grounds, arguments
unions. and evidence within five (5) days after the
2. Election Officer shall indicate on the close of the election proceedings
envelope the:
a. Voter’s name; Protests deemed dropped
b. Union challenging the voter; and Protests [which are]:
c. Ground for the challenge 1. Not recorded in the minutes; AND
3. Sealed envelope shall be signed by: 2. Formalized within the prescribed period
a. Election Officer; and
b. Representatives of the contending General reservation to file protest
unions prohibited
Protesting party shall specify the grounds for
Election Officer shall: protest.
1. Note all challenges in the minutes of the
election proceedings; and
Failure to formalize within 5-days cannot be Procedure [Sec. 14, Rule IX, Book V, IRR]
taken against the union 1. Election Officer shall count and tabulate
[The petitioner union misrepresented that they the votes in the presence of the
were independent which caused the members representatives of the contending unions.
to disaffiliate and form a new union and their 2. Upon completion of canvass, the Election
protest was not filed within the 5-day period. Officer shall give each representative a
The] failure to follow strictly the procedural copy of the minutes of the election
technicalities regarding the period for filing their proceedings and results of the election.
protest should not be taken against them. 3. Ballots and tally sheets shall be sealed in
an envelope and signed by the Election
Mere technicalities should not be allowed to Officer and the representatives of the
prevail over the welfare of the workers. What contending unions and transmitted to the
is essential is that they be accorded an Med-Arbiter together with the minutes and
opportunity to determine freely and intelligently results of the election within twenty-four
which labor organization shall act on their (24) hours from the completion of the
behalf. [DHL-URFA-FFW v. BMP, G.R. No. canvass.
152094 (2004)]
Election conducted in more than one region
Note: "Election Proceedings" refer to the period Consolidation of results shall be made within
during a certification election, consent or run- fifteen (15) days from the conduct thereof.
off election and election of union officers,
starting from the opening to the closing of the Double Majority Rule
polls, including the counting, tabulation and It is well-settled that under the so-called
consolidation of votes, but excluding the period "double majority rule,” for there to be a valid
for the final determination of the challenged certification election, majority of the bargaining
votes and the canvass thereof. [Book V, Rule unit must have voted AND the winning union
1, Sec. 1 (q)] must have garnered majority of the valid votes
cast. [NUWHRAIN-Manila Pavilion Hotel
Included: Chapter v. Secretary of Labor and
1. Starting from the opening to the closing of Employment, G.R. No. 181531 (2009)]
the polls
2. Counting, tabulation and consolidation of Requisites:
votes 1. There must be a valid certification or
consent election
Excluded:
1. Period for the final determination of the Valid Election: At least majority of the
challenged votes number of eligible voters have cast their
2. Canvass of the challenged votes [Sec. votes (VOTES CAST) [Sec. 17, Rule IX,
1(q), Rule I, Book V, IRR] Book V, IRR]
(12) Canvassing of Votes [Sec. 15, Rule IX, 2. The winning union must garner majority of
Book V, IRR] the VALID VOTES CAST [Sec. 16, Rule IX,
Book V, IRR]
Election precincts shall open and close on the
date and time agreed upon during the pre- Winning union certified as SEBA if there is
election conference. no protest [Sec. 16, Rule IX, Book V, IRR]
The [winning union] shall be certified as the
The opening and canvass of votes shall [SEBA] in the appropriate bargaining unit within
proceed immediately after the precincts have five (5) days from date of election, provided no
closed. protest is recorded in the minutes of the
election.
Winning union shall have the rights, privileges, The Bureau of Labor Relations has jurisdiction
and obligations of a duly certified collective to hear, decide and to mete out punishment
bargaining agent from the time the certification any violation under Art. 250 upon report of at
is issued. least 30% of the union membership OR
members specially concerned to the
Majority of valid votes cast results in “No Bureau.
Union” obtaining majority
Med-Arbiter shall declare such fact in the order Note: Secretary of Labor or his duly authorized
representative may inquire into financial
(15) Appeal from Certification Election activities of legitimate labor orgs
Orders [Art. 272] a. UPON filing of complaint under oath and
supported by written consent of at least
Who appeals: Any party to an election 20% of total membership,
b. Provided, such inquiry shall not be
What is appealed: Order or results of the conducted during (60)-day freedom period
election nor within the thirty (30) days immediately
preceding the date of election of union
Appeal to: Directly to SOLE officials. [Art. 289]
2. Secretary’s record of the minutes of the The legal basis of the union’s right to agency
meeting; AND fees is neither contractual nor statutory but
3. Individual written authorization for check off quasi-contractual, deriving from the
duly signed by the employees concerned established principle that non-union employees
which indicates the: may not unjustly enrich themselves by
a. Amount benefiting from employment conditions
b. Purpose negotiated by the bargaining union. [Holy
c. Beneficiary of deduction [Gabriel v. Cross of Davao College, Inc v. Hon. Joaquin,
SOLE, G.R. No. 115949 (2000)] G.R. No. 110007 (1996)]
MANDATORY ACTIVITIES
Proper charging of attorney’s fees: Definition: A judicial process of settling
a. Charges against union funds; AND dispute laid down by the law. [Vengco v.
b. In an amount agreed upon by the parties Trajano, G.R. No. 74453 (1989)]
Hence, the mere filing of a petition for [Pentagon Steel v. CA, G.R. No. 174141
certification election does not ipso facto justify (2009)]
the suspension of negotiation by the employer.
[Colegio de San Juan de Letran v. Association b. Collective Bargaining
of Employees, G.R. No. 141471 (2000)] Agreement
Note: See also v. Bargainable Issues under “a. ii. Administration and
Duty to bargain collectively” Enforcement of CBA
Note: A substandard CBA cannot bar a petition Labor Relations Commission, G.R. No. 78524
for certification election under the contract-bar (1989)]
rule. [Prof. Battad]
Note: Ratification of the CBA by the employees
Ratification in the bargaining unit is not needed when the
Within thirty (30) days from the execution of a CBA is a product of an arbitral award as a result
collective bargaining agreement of voluntary arbitration under Art. 275 or from
the secretary’s assumption of jurisdiction or
The parties shall submit copies of the same certification under Art. 278 (g).
directly to the Bureau or the Regional Offices
of the Department of Labor and Employment Registration
for registration, accompanied with: Within thirty (30) days from the execution of a
1. Verified proofs of its posting in two Collective Bargaining Agreement, the parties
conspicuous places in the place of work, shall submit copies of the same directly to the
and Bureau or the Regional Offices of the
2. Ratification by the majority of all the Department of Labor and Employment for
workers in the bargaining unit. [Art. 237; registration […]. [Art. 237]
Book V, IRR Rule XVII, Sec. 2 (c)]
iii. Requirements for Registration
[T]he posting of copies of the collective
bargaining agreement is the responsibility of The application for CBA registration shall be
the employer. accompanied by the original and two (2)
duplicate copies of the following documents
The fact that there were "no impartial members which must be certified under oath by the
of the unit" is immaterial. representative(s) of the employer(s) and labor
union(s) concerned:
The purpose of the requirement is precisely to 1. The collective bargaining agreement
inform the employees in the bargaining unit of 2. A statement that the collective bargaining
the contents of said agreement so that they agreement was posted in at least two (2)
could intelligently decide whether to accept the conspicuous places in the establishment or
same or not. [Associated Labor Unions v. establishments concerned for at least five
Ferrer-Calleja, G.R. No. L-77282 (1989)] (5) days before its ratification
3. A statement that the collective bargaining
Effect of Non-ratification agreement was ratified by the majority of
General Rule: The collective bargaining the employees in the bargaining unit of the
agreement should be ratified by the majority of employer or employees concerned. [Sec.
all the members of the bargaining unit. Non- 2, Rule XVII, Book V, IRR]
compliance with this requirement renders the
CBA ineffective. [Associated Trade Unions v. Specific information submitted in
Trajano, G.R. No. 75321 (1988)] confidence
General rule: Shall not be disclosed
Exception: Even if there was no ratification,
the CBA will not be invalid or void considering Exceptions:
that the employees have enjoyed benefits from 1. authorized by Secretary of Labor
it. 2. when it is at issue in any judicial litigation
3. public interest or national security requires
[The employees] cannot receive benefits under [Art. 237]
provisions favorable to them and later insist
that the CBA is void simply because other
provisions turn out not to the liking of certain
employees. [Planters Products Inc. v. National
A [CBA which continues to take effect beyond CBA Duration for economic provisions
its expiration date] cannot constitute a bar to a 3 years
filing of petition for certification election.
CBA Duration for non-economic provisions past unfair labor practices of the previous
5 years for representational or political issues; owner.
cannot be renegotiated to extend beyond 5
years. [FVC Labor Union-PTGWO v. Exception: When the liability therefore is
SANAMA-FVC-SIGLO, G.R. No. 176249 assumed by the new employer under the
(2009)] contract of sale, or when liability arises
because of the new owner's participation in
CBA Duration: Freedom Period thwarting or defeating the rights of the
No petition questioning the majority status of employees.
the incumbent bargaining agent shall be
entertained and no certification election shall The most that the transferee may do, for
be conducted by the DOLE outside of the reasons of public policy and social justice, is to
sixty-day period immediately before the give preference to the qualified separated
date of the expiry of such five-year term of employees in the filling of vacancies in the
the Collective Bargaining Agreement. [Art. facilities of the purchaser. [Manlimos v. NLRC,
265] G.R. No. 113337 (1995)]
CBA and 3rd Party Applicability The general rule applies only to the sale and
Labor contracts such as employment contracts purchase of asset. If the method of acquisition
and CBAs are not enforceable against a is by way of purchase of controlling shares, the
transferee of an enterprise, labor contracts employer remains the same and the new
being in personam, is binding only between the owners must honor the existing contracts.
parties.
c. hinder the promotion of healthy and stable language, in light of infinite combinations of
labor-management relations events, which may be charged as constituting
d. violations of the civil rights of both labor and an unfair labor practice. [HSBC Employee
management but are also criminal offenses Union v. NLRC, G.R. No. 125038 (1997)]
[Art. 258]
Note: Bargaining in bad faith constitutes Unfair
Four forms of Unfair Labor Practice in Labor Practice, which may be committed by
Collective Bargaining either Employer or Labor Organization.
1. Failure or refusal to meet and convene
2. Evading the mandatory subjects of 2. By Employers
bargaining
3. Bargaining in bad faith a. Interference/Restraint/Coercion
4. Gross violation of the CBA b. Yellow Dog Contracts
c. Contracting Out Services which
Purpose of the Policy Against ULPs Discourage Unionism
Protection of right to self-organization and/or d. Company Union
collective bargaining: e. Discrimination to Encourage/ Discourage
a. The employee is not only protected from Unionism
the employer but also from labor f. Discrimination for having given or about to
organizations. give testimony
b. The employer is also protected from ULP g. Violation of Duty to Bargain Collectively
committed by a labor organization. h. Payment of Negotiation or Attorney’s Fees
i. Violation of a Collective Bargaining
The public is also protected because it has an Agreement
interest in continuing industrial peace.
a. Interference/Restraint/Coercion
Employer-Employee Relationship Required
General Rule: An unfair labor practice may be Art. 259(a). Unfair Labor Practices of
committed only within the context of an Employers. – To interfere with, restrain or
employer-employee relationship [American coerce employees in the exercise of their
President Lines v. Clave, G.R. No. L-51641 right to self-organization
(1982)]
The fact that the resignations of the union
Exception: “Yellow Dog” condition or members occurred during the pendency of the
contract: to require as a condition of case before the labor arbiter shows GMC’s
employment that a person or an employee desperate attempts to cast doubt on the
shall not join a labor organization or shall legitimate status of the union. The ill-timed
withdraw from one to which he belongs. [Art. letters of resignation from the union members
259 (b)] indicate that GMC had interfered with the right
of its employees to self-organization. [General
Parties Not Estopped from Raising ULP by Milling Corporation v. Court of Appeals, G.R.
Eventual Signing of the CBA 146728 (2004)]
The eventual signing of the CBA does not
operate to estop the parties from raising unfair Interrogation
labor practice charges against each other. General rule: employer may interrogate its
[Standard Chartered Bank Union v. Confesor, employees regarding their union affiliation for
G.R. No. 114974 (2004)] legitimate purposes and with the assurance
that no reprisals would be taken against the
Statutory Construction unionists.
The Labor Code leaves to the court the work of
applying the law's general prohibitory
Exception: when interrogation interferes with Blooming Mills Co., Inc., G.R. No. L-31195
or restrains employees' right to self- (1973)]
organization. [Phil. Steam Navigation Co. v.
Phil. Marine Officer’s Guild, G.R. Nos. L-20667 b. Yellow Dog Contracts
and 20669 (1965)]
Art. 259(b). Unfair Labor Practices of
Note: The interrogation of the ER should not be Employers. – To require as a condition of
persistent and/or hostile employment that a person or an employee
shall not join a labor organization or shall
Speech withdraw from one to which he belongs;
The acts of a company which subjects a union
to vilification and its participation in soliciting Yellow dog contracts require, as a condition of
membership for a competing union are also employment, that a person or an employee
acts constituting a ULP. [Phil. Steam shall not join a labor organization or shall
Navigation Co. v. Phil. Marine Officer’s Guild, withdraw from one to which he belongs.
G.R. Nos. L-20667 and 20669 (1965)]
Requisites of a Yellow Dog Contract:
An employer may not send letters containing 1. A representation by the employee that he
promises or benefits, nor of threats of obtaining is not a member of a labor organization
replacements to individual workers while the 2. A promise by the employee that he will not
employees are on strike due to a bargaining join a union
deadlock. This is tantamount to interference 3. A promise by the employee that upon
and is not protected by the Constitution as free joining a labor organization, he will quit his
speech. [Insular Life Assurance Co. employment [Azucena]
Employees Assn. v. Insular Life Assurance
Co. Ltd, G.R. No. L-25291 (1971)] c. Contracting Out Services which
Discourage Unionism
Espionage
Espionage and/or surveillance by the employer Art. 259(c). Unfair Labor Practices of
of union activities are instances of interference, Employers. – To contract out services or
restraint or coercion of employees in functions being performed by union
connection with their right to organize, form members when such will interfere with,
and join unions as to constitute unfair labor restrain or coerce employees in the exercise
practice. […] The information obtained by of their right to self-organization;
means of espionage is invaluable to the
employer and can be used in a variety of cases General Rule: contracting out is not a ULP, but
to break a union. [Insular Life Assurance Co. is covered by the employer’s management
Employees Assn. v. Insular Life Assurance prerogative.
Co. Ltd, G.R. No. L-25291 (1971)]
Exception [Art. 259 (c)]:
Concerted Activities 1. contracted-out services or functions are
The mass demonstration and stoppage of work performed by union members AND
of the Union is not ULP. They didn’t 2. contracting out will interfere with, restrain,
demonstrate against the employer, but against or coerce employees in the exercise of their
the Pasig police for alleged human rights right to self-organization.
abuses. This is merely an exercise of their
freedom of expression, assembly, and right to d. Company Union
redress of grievances enshrined in the
Constitution. [Philippine Blooming Mills Art. 259(d). Unfair Labor Practices of
Employment Organization v. Philippine Employers. – To initiate, dominate, assist or
otherwise interfere with the formation or
administration of any labor organization, their own, must, however, suffer the
including the giving of financial or other consequences of their separation from the
support to it or its organizers or supporters; union under the security clause of the CBA.
[Villar v. Inciong, G.R. No. L-50283-84 (1983)].
Company union means any labor
organization whose formation, function or Statutory Basis and Rationale
administration has been assisted by any act
defined as unfair labor practice by this Code. Art. 259(e). Unfair Labor Practices of
[Art. 219(i)] Employers. – Nothing in this Code or in any
other law shall stop the parties from requiring
The employer commits ULP if it initiates, membership in a recognized collective
dominates, or otherwise interferes with the bargaining agent as a condition for
formation or administration of any labor employment, except those employees who
organization. are already members of another union at the
time of the signing of the collective
Example: giving out financial aid to any union's bargaining agreement.
supporters or organizers.
The law has allowed stipulations for 'union
e. Discrimination to Encourage/ shop' and 'closed shop' as means of
Discourage Unionism [Art. 259 encouraging workers to join and support the
(e)] union of their choice in the protection of their
rights and interests vis-a-vis the employer. [Del
General Rule: it is ULP to discriminate in Monte Philippines v. Salvidar, G.R. No. 158620
regard to wages, hours of work, and other (2006)]
terms and conditions of employment in order to
encourage or discourage membership in any Purpose
labor organization. To safeguard and ensure the existence of the
union and thus, promote unionism in general
Exception: Union security clauses as a state policy.
Union security is a generic term which is It is the policy of the State to promote unionism
applied to and comprehends “closed shop,” to enable the workers to negotiate with the
“union shop,” “maintenance of membership” or management on the same level and with more
any other form of agreement which imposes persuasiveness than if they were to individually
upon employees the obligation to acquire or and independently bargain for the
retain union membership as a condition improvement of their respective conditions. […]
affecting employment. [NUWHRAIN v. NLRC, For this reason, the law has sanctioned
G.R. No. 179402 (2008)] stipulations for the union shop and closed shop
as a means of encouraging the workers to join
[Union security clause] is an indirect restriction and support the labor union of their own choice
on the right of an employee to self- vis-à-vis the employer. [Liberty Flour Mills
organization. It is a solemn pronouncement of Employees v. Liberty Flour Mills, G.R. No.
a policy that while an employee is given the 58768-70 (1989)]
right to join a labor organization, such right
should only be asserted in a manner that will Coverage
not spell the destruction of the same General Rule: All employees in the bargaining
organization. [Tanduay Distillery Labor Union unit covered by the union security clause are
v. NLRC, G.R. No. 75037 (1987)] subject to its terms
union, but all workers hired thereafter must Company must conduct separate
join. [Azucena] investigation or hearing
The enforcement of union security clauses is
5. Agency shop authorized by law provided such enforcement
is not characterized by arbitrariness, and
Employees belonging to an appropriate always with due process. Even if there are
collective bargaining unit who are not members valid grounds to expel the union officers, due
of the recognized collective bargaining agent process requires that these union officers be
may be assessed a reasonable fee equivalent accorded a separate hearing by respondent
to the dues and other fees paid by members of company. [Malayang Samahan ng
the recognized collective bargaining agent, if Manggagawa sa M. Greenfield v. Ramos, G.R.
such non-union members accept the benefits No. 113907 (2000)]
under the collective agreement.
Requirement of Due Process
Provided, That the individual authorization The requirements laid down by the law in
required under Art. [250], paragraph (o) of [the determining whether or not an employee was
Labor] Code shall not apply to non-members of validly terminated must still be followed even if
the recognized collective bargaining agent [Art. it is based on a [union security clause] of a
259(e)]. CBA, i.e. the substantive as well as the
procedural due process requirements. [Del
ENFORCEMENT OF UNION SECURITY Monte v. Saldivar, G.R. No. 158620 (2006)]
CLAUSE
Obligations and Liabilities
Termination due to Union Security Where the employer dismissed his employees
Provision in the belief in good faith that such dismissal
Termination of employment by virtue of a union was required by the [union security provision]
security clause strengthens the union and of the collective bargaining agreement with the
prevents disunity in the bargaining unit within union, he may not be ordered to pay back
the duration of the CBA. The authorized compensations to such employees although
bargaining representative gains more numbers their dismissal is found to be illegal.
and strengthens its position as against other [Confederated Sons of Labor v. Anakan
unions which may want to claim majority Lumber Co., G.R. No. L-12503 (1960)]
representation. [Alabang Country Club v.
NLRC, G.R. No. 170287 (2008)] As dictated by fairness, […] the union shall be
liable to pay their backwages. This is because
Requisites for the enforcement of Union management would not have taken the action
Security Clauses it did, had it not been for the insistence of the
In terminating the employment of an employee labor union seeking to give effect to its
by enforcing the union security clause, the interpretation of a closed shop provision.
employer needs only to determine and prove [Guijarno v. CIR, G.R. No. L-28791-93 (1973)]
that:
1. The union security clause is applicable; f. Discrimination for having given
2. The union is requesting for the or about to give testimony
enforcement of the union security provision
in the CBA; Art. 259(f). Unfair Labor Practices of
3. There is sufficient evidence to support the Employers. — To dismiss, discharge or
union’s decision to expel the employee otherwise prejudice or discriminate against
from the union. [Alabang Country Club v. an employee for having given or being about
NLRC, G.R. No. 170287 (2008)] to give testimony;
Note: This is broader than the prohibition under the Union and the school management, […]
Art. 118 because Art. 259 (f) covers testimony SJCI in effect admitted that it wanted to end the
under the whole Code, while Art. 118 only bargaining deadlock and eliminate the problem
covers testimony under Book I: Pre- dealing with the demands of the union. [St.
Employment, Title II: Wages. John Colleges Inc. v. St. John Academy
Faculty and Employees Union, G.R. No.
Note further: Includes not giving testimony 167892 (2006)]
[Azucena].
3. Implied refusal
g. Violation of Duty to Bargain
Collectively The school is guilty of unfair labor practice
when it failed to make a timely reply to the
Art. 259(g). Unfair Labor Practices of proposals of the union more than one month
Employers — To violate the duty to bargain after the same were submitted by the union. In
collectively as prescribed by this Code; explaining its failure to reply, the school merely
offered a feeble excuse that its Board of
Collective bargaining does not end with the Trustees had not yet convened to discuss the
execution of an agreement. Being a continuous matter. Clearly, its actuation showed a lack of
process, the duty to bargain necessarily sincere desire to negotiate. [Colegio de San
imposes on the parties the obligation to live up Juan de Letran v. Association of Employees
to the terms of such a collective bargaining and Faculty of Letran, G.R. No. 141471 (2000)]
agreement if entered into, it is undeniable that
non-compliance therewith constitutes an unfair ACTS NOT DEEMED REFUSAL TO
labor practice. [Shell Oil Workers Union v. Shell BARGAIN
Co., G.R. No. L-28607 (1971)] 1. Adoption of an adamant bargaining
position in good faith, particularly where the
Note: See ULP in Collective Bargaining above. company is operating at a loss
2. Refusal to bargain over demands for
ACTS DEEMED AS REFUSAL TO BARGAIN commission of unfair labor practices
3. Refusal to bargain during period of illegal
1. Refusal to bargain when there is an strike
unresolved petition for union 4. Not initiating the bargaining
cancellation 5. Refusal to bargain where the union
demands for recognition and bargaining
“That there is a pending cancellation within the year following a certification
proceedings against the union is not a bar to election, and the clear choice is no union
set in motion the mechanics of collective and no ad interim significant change has
bargaining. […] Unless [the union’s] certificate taken place in the unit
of registration and status as the certified 6. Refusal to bargain because the other party
bargaining agent is revoked, [the employer], by is making unlawful bargaining demands
express provision of the law, is duty bound to
collectively bargain with the Union.” [Capitol h. Payment of Negotiation or
Medical Center v. Trajano, G.R. No. 155690 Attorney’s Fees
(2005)]
Art. 259(h). Unfair Labor Practices of
2. Employer’s suspension of operations in Employers — To pay negotiation or
order to forestall a demand for attorney's fees to the union or its officers or
collective bargaining agents as part of the settlement of any issue
in collective bargaining or any other dispute;
By admitting that the closure [of the business]
was due to irreconcilable differences between
Sweetheart contracts are favorable both to the An employer cannot be considered to have
union and the employer at the expense of the committed a gross and economic violation of
employees. The settlement of bargaining the CBA when it, in good faith, withheld union
issues must be made by fair bargaining in good dues and death benefits from the union upon
faith, and not through the payment of written request of the union members in light of
negotiation or attorney's fees which will the conflict between the members and the
ultimately lead to sweetheart contracts. union officers and instead deposited such
amount to the DOLE. [Arellano University
i. Violation of a Collective Employees and Workers Union v. Court of
Bargaining Agreement [Art. 259 Appeals, G.R. 139940 (2006)]
(i)]
Motive, Conduct, Proof
Art. 259(i) Unfair Labor Practices of To constitute ULP, the dismissals by the ER
Employers — To violate a collective need not be entirely motivated by union
bargaining agreement. activities or affiliations. It is enough that
discrimination was a factor. [Me-Shurn Corp. v.
Flagrant and/or Malicious Refusal to Me-Shurn Workers Union-FSM, G.R. No.
Comply with Economic Provisions 156292 (2005)]
Required
Art. 274. Jurisdiction of Voluntary Note: The basic inspiration of the dismissals
Arbitrators. – Accordingly, violations of a should concern the right to self-organization.
Collective Bargaining Agreement, except
those which are gross in character, shall no Totality of Evidence
longer be treated as unfair labor practice and Where the attendant circumstances, the history
shall be resolved as grievances under the of the employer's past conduct and like
Collective Bargaining Agreement. considerations, coupled with an intimate
connection between the employer's action and
For purposes of this Art., gross violations of the union affiliations or activities of the
Collective Bargaining Agreement shall mean particular employee or employees, taken as a
flagrant and/or malicious refusal to comply whole, raise a suspicion as to the motivation for
with the economic provisions of such the employer's action, the failure of the
agreement. employer to ascribe a valid reason therefor
may justify an inference that his unexplained
Violations of collective bargaining agreements, conduct in respect of the particular employee
except flagrant and/or malicious refusal to or employees was inspired by the latter's union
comply with its economic provisions, shall not membership or activities. [Royal Undergarment
be considered unfair labor practice and shall Corporation of the Philippines v. CIR, G.R. No.
not be strikeable. [Book V, Rule XXII, Sec. 5] L-39040 (1990)]
For purposes of this Art., gross violations of workers it is supposed to protect. [Batangas
Collective Bargaining Agreement shall mean Laguna Tayabas Bus Co. v. NLRC, G.R. No.
flagrant and/or malicious refusal to comply 101858 (1992)]
with the economic provisions of such
agreement. FORMS OF CONCERTED ACTIVITIES
Concerted Activities by Labor
See counterpart in ULP by Employers. Organization:
a. Strike (includes slow downs, mass leaves,
sitdowns, attempts to damage destroy or
F. PEACEFUL CONCERTED sabotage plant equipment and similar
ACTIVITIES activities)
b. Picketing
c. Boycott
Definition
A concerted activity is one undertaken by two
Response to Concerted Activities available
or more employees to improve their terms and
to Employers:
conditions of work.
a. Lockout
Nature of the Right to Strike and Lockout
The right to strike is a constitutional and legal
right of the workers, as the employers have the 1. By Labor Organization
inherent and statutory right to lockout within the
context of labor relations and collective a. Strike
bargaining.
Definition
It is a means of last resort and presupposes Any temporary stoppage of work by the
that the duty to bargain in good faith has been concerted action of employees as a result of an
fulfilled and other voluntary modes of dispute industrial or labor dispute. [Art. 219(o)]
settlement have been tried and exhausted.
[Guidelines Governing Labor Relations (1987)] Labor Dispute
Includes any controversy or matter concerning
Non-abridgment of right to self- terms and conditions of employment or the
organization association or representation of persons in
It shall be unlawful for any person to restrain, negotiating, fixing, maintaining, changing or
coerce, discriminate against or unduly interfere arranging the terms and conditions of
with employees and workers in their exercise employment, regardless of whether or not the
of the right to self-organization. Such right shall disputants stand in the proximate relation of
include the right to (…) engage in lawful employers and employees. [Solidbank Corp. v.
concerted activities for the same purpose or for EU Gamier, G.R. No. 159460 and G.R. No.
their mutual aid and protection, subject to the 159461 (2010)]
provisions of Art. [279] of this Code. [Art. 257]
Strikes not limited to work stoppages
Limitation: Concerted activities must be in The term “strike” shall comprise not only
accordance with law concerted work stoppages, but also
The strike is a powerful weapon of the working slowdowns, mass leaves, sit-downs, attempts
class. Thus, it must be declared only after the to damage, destroy or sabotage plant
most thoughtful consultation among them, equipment and facilities, and similar activities.
conducted in the only way allowed; that is, [Samahang Manggagawa v. Sulpicio Lines,
peacefully, and in every case conformably to G.R. No. 140992 (2004)]
reasonable regulation. Any violation of the
legal requirements and strictures will render As coercive measure by employees
the strike illegal, to the detriment of the very A strike is a coercive measure resorted to by
laborers to enforce their demands. The idea
behind a strike is that a company engaged in a reinstatement are entitled to the losses of pay
profitable business cannot afford to have its they may have suffered by reason of the
production or activities interrupted, much less, employer’s discriminatory acts from the time
paralyzed. [Phil. Can Co. v. CIR, G.R. No. L- they were refused reinstatement. [Philippine
3021 (1950)] Marine Officers’ Guild v. Compania Maritima,
G.R. Nos. L-20662 and L-20663 (1968)]
Who may declare a strike
1. The certified or duly recognized bargaining No Strike No Lockout Clause
representative A "no strike, no lock-out" provision in the [CBA]
2. Any legitimate labor organization in the is a valid stipulation, although the clause may
absence of a certified or duly recognized be invoked by an employer only when the strike
bargaining representative, but only on is economic in nature or one which is
grounds of ULP [Sec. 6, Rule XXII, Book V, conducted to force wage or other concessions
IRR] from the employer that are not mandated to be
granted by the law itself.
No severance of employer-employee
relationship during lawful strike It would be inapplicable to prevent a strike
Although during a strike the worker renders no which is grounded on unfair labor practice.
work or service and receives no compensation, [Panay Electric Co. v. NLRC, G.R. No. 102672
yet his relationship as an employee with his (1995); Malayang Samahan ng mga
employer is not severed or dissolved. [Elizalde Manggagawa sa Greenfield v. Ramos, G.R.
Rope Factory, Inc. v. SSS, G.R. No. L-15163 No. 113907 (2000)]
(1962)]
Other Forms of Strike
Payment of wages during lawful strikes
General rule: Striking employees are not AS TO GROUNDS
entitled to the payment of wages for un-worked 1. Economic strike – one staged by workers
days during the period of the strike pursuant to to force wage or other economic
the “no work-no pay” principle. concessions from the employer which he is
not required by law to grant; not a
Exception: If there is no work performed by the strikeable ground [Consolidated Labor
employee there can be no wage or pay unless Association of the Phil. v. Marsman and
the laborer was able, willing and ready to work Company, G.R. No. L-17038 (1964)]
but was illegally locked out, suspended or 2. ULP strike – called against a company's
dismissed or otherwise illegally prevented from unfair labor practice to force the employer
working. For this exception to apply, it is to desist from committing such practices.
required that the strike be legal. [Visayas
Community Medical Center v. Yballe, G.R. No. AS TO HOW COMMITTED
196156 (2014)] 1. Slowdown strike – one by which workers,
without a complete stoppage of work,
Reinstatement after a lawful strike retard production or their performance of
When strikers abandon the strike and apply for duties and functions to compel
reinstatement despite the existence of valid management to grant their demands.
grounds, but the employer either:
a. refuses to reinstate them or A slowdown is inherently illicit and
b. imposes upon their reinstatement new unjustifiable because while the employees
conditions, continue to work, they, at the same time,
then the employer commits an act of ULP. select what part of their duties they
perform. In essence, they work on their
The strikers who refuse to accept the new own terms. It is a strike on installment
conditions and are consequently refused
5. Mass leave – one in which workers Procedural Requirements for Strike [Art.
collectively abandon or boycott regular 278]
work causing temporary stoppage of work 1. Effort to bargain (for bargaining deadlock
[Solidbank Corp. v. E.U. Gamier, G.R. No. strikes)
159460-61 (2010)] 2. Filing and service of notice of strike
3. Observance of cooling-off period
Conversion from economic to ULP strike a. 15 days for ULP
It is possible for a strike to change its character No cooling-off period when the ULP
from an economic to a ULP strike. can be considered union busting
(dismissal of duly elected union officers
In the instant case, initially, the strike staged by from employment)
the Union was meant to compel the Company b. 30 days for bargaining deadlock
to grant it certain economic benefits set forth in 4. Notice of strike vote meeting to NCMB
its proposal for collective bargaining. However, within 24 hours before the strike vote [Sec.
the strike changed its character from the time 10, Rule XXII, Book V, IRR]
the Company refused to reinstate 5. Strike vote
complainants because of their union activities 6. Strike vote report sent to NCMB
after it had offered to admit all the strikers and 7. Observance of the waiting period (7-day
in fact did readmit the others. It was then strike ban)
converted into an unfair labor practice strike.
[Consolidated Labor Association of the Phil. v.
Marsman and Company, G.R. No. L-17038
(1964)]
(1) EFFORT TO BARGAIN the union constitution and by-laws, which may
constitute union-busting, where the existence
No labor organization […] shall declare a strike of the union is threatened, the 15-day cooling-
[…] without first having bargained collectively off period shall not apply and the union may
in accordance with Title VII of this Book […] take action immediately.
[Art. 279(a)]
Notice to the Employer
In case of bargaining deadlocks, the notice In case of unfair labor practice and/or union
shall, as far as practicable: busting, the notice must be served to the
a. Further state the unresolved issues in the employer. Failure to do so will constitute
bargaining negotiations; and noncompliance with the procedural
b. Be accompanied by the written proposals requirements and will result to an illegal strike.
of the union, the counter-proposals of the [Filipino Pipe and Foundry Corp v. NLRC, G.R.
employer and the proof of a request for No. 115180 (1999)]
conference to settle differences.
Rationale: Due process. [IRR]
In cases of unfair labor practices, the notice
shall, as far as practicable, state the acts Contents of Notice of Strike
complained of, and efforts taken to resolve the 1. Names and addresses of the employer and
dispute amicably. [Sec. 4, Rule XXII, Book V, the union involved
IRR] 2. Nature of the industry to which the
employer belongs
The Implementing Rules use the words as far 3. Number of union members and of workers
as practicable. In this case, attaching the in the bargaining unit
counter-proposal of the company to the notice 4. Such other relevant data as may facilitate
of strike of the union was not practicable. It was the settlement of the dispute.
absurd to expect the union to produce the
company’s counter-proposal which it did not Additional Requirements
have. [Club Filipino, Inc. v. Bautista, G.R. No. In case of Bargaining Deadlocks:
168406 (2009)] 1. Statement of unresolved issues in the
bargaining negotiations
(2) FILING AND SERVICE OF NOTICE OF 2. Written proposals of the union
STRIKE 3. Counter-proposals of the employer
4. Proof of a request for conference to settle
Ground: Bargaining Deadlocks [Art. 278(c)] the differences. [Sec. 4, Rule XXII, Book V,
Filed by: The duly certified or recognized IRR]
bargaining agent may file a notice of strike
Filed with: With the Ministry [now DOLE] In cases of ULP:
When: At least 30 days before the intended 1. Statement of acts complained of
date of the strike 2. Efforts taken to resolve the dispute
amicably. [Sec. 4, Rule XXII, Book V, IRR]
Ground: Unfair Labor Practice [Art. 278(c)]
Filed by: The duly certified or recognized Action on Notice:
bargaining agent, or in the absence of such 1. Upon receipt of a valid notice of strike or
agent, any legitimate labor organization in lockout, the NCMB, through its Conciliator-
behalf of its members may file a notice of strike Mediators, shall call the parties to a
Filed with: With the Ministry [now DOLE] conference the soonest possible time in
When: The period of notice shall be 15 days order to actively assist them to explore all
possibilities for amicable settlement.
Note: In case of dismissal from employment of 2. The Conciliator-Mediator may
union officers duly elected in accordance with suggest/offer proposals as an alternative
The purpose of the notice is to allow the NCMB The waiting period is intended to give the
to decide whether or not they will send a DOLE an opportunity to verify whether the
representative to supervise the strike vote. projected strike really carries the imprimatur of
the majority of the union members. [Lapanday b. Illegal strike – one staged for a purpose
Workers Union v. NLRC, G.R. Nos. 95494-97 not recognized by law, or if for a valid
(1995)] purpose, conducted through means not
sanctioned by law.
Compliance with Both Cooling-off and
Waiting Periods EFFECT OF ILLEGALITY / LIABILITY OF
The observance of both periods must be PARTICIPATING MEMBERS/OFFICERS OF
complied with, although a labor union may take THE UNION
a strike vote and report the same within the a. Ordinary Striking Worker – cannot be
statutory cooling-off period. The cooling-off and terminated for mere participation in an
7-day strike ban provisions of law constitute a illegal strike; proof must be adduced
valid exercise of police power of the State. showing that he or she committed illegal
[National Federation of Sugar Workers v. acts during the strike.
Ovejera, G.R. No. L-59743 (1982)] b. Participating Union Officer – may be
terminated, not only when he actually
Mutually exclusive periods (used in the commits an illegal act during a strike, but
NCMB Manual) also if he knowingly participates in an
The cooling off period and the 7-day period are illegal strike [Phimco Industries, Inc. v.
mutually exclusive. Thus, in the case of Capitol PILA, G.R. No. 170830 (2010)]
Medical Center v. NLRC [G.R. No. 147080
(2005)], the Court held that when the strike vote Prohibited Grounds for Strike
is conducted within the cooling-off period, the 1. Labor standards cases such as wage
7-day requirement shall be counted from the orders
day following the expiration of the cooling off 2. Issues involving wage distortion caused by
period. legislated wage orders
3. Inter or intra union disputes
Improved Offer Balloting 4. Execution and enforcement of final orders
In case of a strike, the regional branch of the or awards of cases pending at the DOLE
Board shall, at its own initiative or upon the Regional Offices, BLR, NLRC, VA, CA and
request of any affected party, conduct a SC and related offices
referendum by secret balloting on the improved 5. Violations of the CBA which are not gross
offer of the employer on or before the 30th day in character (not ULP) [BPI Employees
of strike. Union-Davao FUBU v. BPI, G.R. No.
174912 (2013)]
When at least a majority of the union members Gross in character shall mean flagrant
vote to accept the improved offer: and/or malicious refusal to comply with the
a. The striking workers shall immediately economic provisions of such agreement.
return to work and; [Art. 274]
b. The employer shall thereupon re-admit
them upon the signing of the agreement PROHIBITED ACTIVITIES IN STRIKE
[Sec. 12, Rule XXII, Book V] 1. By anyone. No person shall obstruct,
impede, or interfere with, by force,
i. Valid Strikes as violence, coercion, threats, or intimidation,
distinguished from Illegal any peaceful picketing by employees [Art.
Strikes 279(b)];
a. Blocking the free ingress to/ egress
VALID v. ILLEGAL STRIKE from work premises for lawful purposes
a. Legal strike – one called for a valid b. Obstruction of public thoroughfares
purpose and conducted through means c. Threatening, coercing and intimidating
allowed by law. non-striking employees, officers,
suppliers and customers
A legal strike must be based on a bargaining General Rule: A strike based on a non-
deadlock and/or a ULP act only. strikeable ground is an illegal strike; a strike
The law provides limits for its exercise. Among It would be unjustified, considering all the facts
such limits are the prohibited activities under disclosed, to stamp the strike with illegality. It is
Art. [279], particularly paragraph (e), which enough that individual liability be incurred by
states that no person engaged in picketing those guilty of such acts of violence that call for
shall: loss of employee status. [Shell Oil Workers
1. commit any act of violence, coercion, or Union v. Shell Co. of the Phils, G.R. No. L-
intimidation or 28607 (1971)]
2. obstruct the free ingress to or egress from
the employer's premises for lawful It bears stressing that the requirements of
purposes or strike notice and strike-vote report are
3. obstruct public thoroughfares. mandatory, meaning, non-compliance
therewith makes the strike illegal. The evident
A legal strike may turn into an illegal strike intention of the law in requiring these is to
Even if the strike is valid because its objective reasonably regulate the right to strike.
or purpose is lawful, the strike may still be [Stamford Mark Corp. v. Julian, G.R. No.
declared invalid where the means employed 145496 (2004)]
are illegal. [Phil. Diamond Hotel and Resort,
Inc. v. Manila Diamond Hotel Employees 5. Violation of Injunction Order
Union, G.R. No. 158075 (2006)]
An automatic injunction under Art. 278(g) or a
Examples of unlawful means and methods valid injunction order under the exceptions to
1. Acts of violence and terrorism Art. 279 must be complied with. Otherwise, the
2. Destruction of property strike becomes illegal.
shown any willingness to normalize relations Inc. v. Phimco Industries Labor Association
with it. [Philippine Inter-Fashion, Inc. v. NLRC, (PILA), et al., 628 SCRA 119 (2010)].
G.R. No. L-59847 (1982)]
PROHIBITED ACTIVITIES IN PICKETING
However, the mere act of entering into a 1. By any person. No person shall obstruct,
compromise agreement cannot be deemed to impede, or interfere with, by force,
be a waiver of the illegality of the strike, unless violence, coercion, threats or intimidation,
such a waiver is clearly shown in the any peaceful picketing by employees
agreement. [Filcon Manufacturing Corp v. during any labor controversy or in the
Lakas Manggagawa sa Filcon – Lakas exercise of the right to self-organization or
Manggagawa Labor Center, G.R. No. 150166 collective bargaining, or shall aid or abet
(2004)] such obstruction or interference. [Art.
279(b)]
b. Picket 2. By police force. The police force shall
keep out of the picket lines unless actual
The right of legitimate labor organizations to violence or other criminal acts occur
strike and picket and of employers to lockout, therein: Provided, That nothing herein shall
consistent with the national interest, shall be interpreted to prevent any public officer
continue to be recognized and respected. [Art. from taking any measure necessary to
278(b)] maintain peace and order, protect life and
property, and/or enforce the law and legal
Picketing involves merely the marching to and orders. [Art. 279(d)]
fro at the premises of the employer, usually 3. By person engaged in picketing. No
accompanied by the display of placards and person engaged in picketing shall commit
other signs making known the facts involved in any act of violence, coercion or intimidation
a labor dispute. or obstruct the free ingress to or egress
from the employer’s premises for lawful
As applied to a labor dispute, to picket means purposes, or obstruct public thoroughfares.
the stationing of one or more persons to [Art. 279(e)]
observe and attempt to observe. The purpose
of pickets is said to be a means of peaceable Picketing as Part of Freedom of
persuasion. [Sta. Rosa Coca-Cola Plant Speech/Expression
Employees Union v. Coca-Cola Bottlers General rule: picketing enjoys constitutional
Philippines, Inc., G.R. Nos. 164302-03 (2007)] protection as part of freedom of speech and/or
expression.
Peaceful Picketing is the right of workers
during strikes consisting of marching to and fro Exceptions/limitations:
before an establishment involved in a labor a. When picketing is coercive rather than
dispute generally accompanied by the carrying persuasive [Security Bank Employees
and display of signs, placards and banners Union v. Security Bank, G.R. No. L-28536
intended to inform the public about the dispute. (1968)]
[Guidelines Governing Labor Relations, b. When picketing is achieved through illegal
October 19, 1987; NCMB Manual, Sec. 1] means [Mortera v. CIR, G.R. No. L-1340
(1947)]
Purpose c. Courts may confine the communication/
The purpose of the picket line is to persuade demonstration to the parties to the labor
employers peacefully by publicizing the labor dispute [PCIB v. Philnabank Employees
dispute to inform the public of what is Association, G.R. No. L-29630 (1981)]
happening and thus cause other workers not to d. Innocent bystander rule. Courts may
work in the establishment and for customers insulate establishments or persons with no
not to do business there [Phimco Industries, industrial connection or having interest
The employer has the right to demote and The granting of a bonus is basically a
transfer an employee who has failed to observe management prerogative which cannot be
proper diligence in his work and incurred forced upon the employer "who may not be
habitual tardiness and absences and indolence obliged to assume the onerous burden of
in his assigned work. [Petrophil Corporation v. granting bonuses or other benefits aside from
NLRC, G.R. No. L-64048 (1986)] the employee's basic salaries or wages" xxx.
[Kamaya Point Hotel v. National Labor
In the consolidated cases of Leonardo v. NLRC Relations Commission, Federation of Free
[G.R. No. 125303 (2000)] and Fuerte v. Aquino Workers and Nemia Quiambao, G.R. No.
[G.R. No. 126937 (2000)], the employer 75289, (1989); Traders Royal Bank v. NLRC,
claimed that the employee was demoted G.R. No. 120592 (1990)]
pursuant to a company policy intended to foster
competition among its employees. Under this The matter of giving a bonus over and above
scheme, its employees are required to comply the worker’s lawful salaries and allowances is
with a monthly sales quota. Should a entirely dependent on the financial capability of
supervisor such as the employee fail to meet the employer to give it. [Kimberly-Clark
his quota for several consecutive months, he Philippines, Inc. v. Dimayuga, G.R. No. 177705
will be demoted, whereupon his supervisor’s (2009)]
allowance will be withdrawn and be given to the
individual who takes his place. When the
employee concerned succeeds in meeting the E. CHANGE OF WORKING
quota again, he is re-appointed supervisor and HOURS
his allowance is restored.
Management retains the prerogative,
The Supreme Court held that this arrangement whenever exigencies of the service so require,
is an allowable exercise of company rights to change the working hours of its employees.
since an employer is entitled to impose So long as such prerogative is exercised in
productivity standards for its workers. In fact, good faith for the advancement of the
non-compliance may be visited with a penalty employer’s interest and not for the purpose of
even more severe than demotion. defeating or circumventing the rights of the
employees under special laws or under valid
agreements, this Court will uphold such
exercise. [Sime Darby Pilipinas Inc. v. NLRC,
G.R. No. 119205 (1998)]
separated employee member. [Sec. 11-A, legitimate children, the illegitimate children
RA 11199] get 100%.
In Case of Death of Member Note: This is the same as death benefit, but
1. His/her primary beneficiaries as of the date permanent disability pension is paid
of his/her retirement shall be entitled to directly to the member.
receive the monthly pension;
2. If he/she has no primary beneficiaries AND 2. In case the permanently disabled member
he/she dies within 60 months from the start dies, he/she is given the same treatment as
of his/her monthly pension, his/her a retiree dying.
secondary beneficiaries shall be entitled to
a lump sum benefit equivalent to the total 3. For permanent partial disability, the
monthly pensions corresponding to the pension is not lifetime. It shall be paid in
balance of the 5 year guaranteed period, lump sum if the period is less than 12
excluding the dependents’ pension. months.
Benefit
75% x current daily compensation for every
day or fraction thereof of disability OR P70.00,
whichever is higher.
SSS GSIS
Dispute Social Security Commission à CA (Rule GSIS à CA (Rule 43) à SC (Rule 45);
settle- 43, questions of law & fact) à SC (Rule 45, appeal does not stay execution
ment questions of law only)
3. Loss of two limbs at or above the ankle or period of diagnosis and treatment shall be
wrist; extended to 240 days. The employer has
4. Permanent complete paralysis of two the burden to prove that the company-
limbs; designated physician has sufficient
5. Brain injury resulting in incurable imbecility justification to extend the period; and
or insanity; and 4. If the company-designated physician still
6. Such cases as determined by the Medical fails to give his assessment within the
Director of the System and approved by the extended period of 240 days, then the
Commission. [Art. 197(c)] seafarer's disability becomes permanent
and total, regardless of any justification.
Rules for the determination of disability
(120-day or 240-day) It must be emphasized that the company-
Initially, there was confusion as to the designated physician must:
application of the 120-day period found in 1. ISSUE a final medical assessment of the
Article 192 (c) (1) of the Labor Code vis-à-vis seafarer's medical condition; AND
the application of the 240-day period found in 2. GIVE his assessment to the seafarer
Section 2, Rule X of the Amended Rules on concerned.
Employees' Compensation Implementing Title
II, Book IV of the Labor Code. That is to say that the seafarer must be fully
and properly informed of his medical
Permanent disability: condition.
Article 192(c)(1): Temporary total disability
lasting continuously for more than one hundred The results of his/her medical examinations,
twenty days, except as otherwise provided in the treatments extended to him/her, the
the Rules. diagnosis and prognosis, his/her disability
grading must be fully explained to him/her by
Section 2, Rule X: …where such injury or no less than the company-designated
sickness still requires medical attendance physician.
beyond 120 days but not to exceed 240 days
from onset of disability. The company-designated physician is
mandated to issue a medical certificate,
To reconcile these provisions, the Supreme which should be personally received by the
Court laid down the following rules in the case seafarer, or, if not practicable, sent to him/her
of Dagasdas v. Grand Placement and General by any other means sanctioned by present
Services Corporation. [G.R. No. 205727, rules.
(2017)]
1. The company-designated physician must To require the seafarer to seek the decision of
issue a final medical assessment on the a neutral third-party physician without primarily
seafarer's disability grading within a period being informed of the assessment of the
of 120 days from the time the seafarer company-designated physician is a clear
reported to him; violation of the tenets of due process.
2. If the company-designated physician fails
to give his assessment within the period of Amount of Benefit
120 days, without any justifiable reason, The employee suffering from a permanent total
then the seafarer's disability becomes disability shall be entitled to an amount
permanent and total; equivalent to the monthly income benefit, plus
3. If the company-designated physician fails ten percent thereof for each dependent child,
to give his assessment within the period of but not exceeding five, beginning with the
120 days with a sufficient justification (e.g. youngest and without substitution: Provided,
seafarer required further medical treatment That the monthly income benefit shall be the
or seafarer was uncooperative), then the
in Art. 199(b) the same monthly income factors. [Central Azucarera Don Pedro v. C. de
benefit shall be paid for a period equivalent to Leon, in his capacity as Workmen’s
the sum of the periods established for the loss Compensation Commissioner and L. Alla, G.R.
of the member or the part thereof. If the result No. L-10036 (1957)].
is a decimal fraction, the same shall be
rounded off to the next higher integer [Art. b. Death Benefits
199(e)].
Monthly Income Benefit
In cases of injuries or illnesses resulting in Under such regulations as the Commission
a permanent partial disability not listed in may approve, the System shall pay to the
the Art. 199(b), the benefit shall be an income primary beneficiaries:
benefit equivalent to the percentage of the 1. Upon the death of the covered
permanent loss of the capacity to work [Art. employee under this Title:
199(f)]. a. An amount equivalent to his monthly
income benefit;
Distinguished from permanent total b. Plus 10% thereof for each dependent
disability child, but not exceeding five, beginning
While “permanent total disability” invariably with the youngest and without
results in an employee’s loss of work or inability substitution, except as provided for in
to perform his usual work, “permanent partial par. (j) of Article 167 hereof: Provided,
disability,” on the other hand, occurs when an That –
employee loses the use of any particular i. The monthly income benefit shall
anatomical part of his body which disables him be guaranteed for five years;
to continue with his former work. [Vicente v. ii. If he has no primary beneficiary,
ECC, G.R. No. 85024, (1991)] the System shall pay to his
secondary beneficiaries the
Conversion from permanent partial monthly income benefit but not to
disability to permanent total disability exceed sixty months; and
A person’s disability may not manifest fully at iii. The minimum death benefit shall
one precise moment in time but rather over a not be less than fifteen thousand
period of time. It is possible that an injury which pesos. (As amended by Section 4,
at first was considered partial disability may Presidential Decree No. 1921).
become totally and permanently disabled from 2. Upon the death of a covered employee
the same cause. There is nothing in the law who is under permanent total disability
that prohibits the conversion of permanent under this Title: 80% of the monthly
partial disability benefit to permanent total income benefit and his dependents to the
disability benefit, if it is shown that the dependents’ pension: Provided, That –
employee’s ailment qualifies as such. [GSIS v. a. The marriage must have been validly
Court of Appeals and R. Balais, G.R. No. subsisting at the time of disability;
117572 (1998)]. b. If he has no primary beneficiary, the
System shall pay to his secondary
When salary is higher after the injury beneficiaries the monthly pension
In a case where the employee filed a claim for excluding the dependents’ pension, of
permanent partial disability but the ECC denied the remaining balance of the five-year
the claim because in fact his salary was higher guaranteed period; and
than before, the Court ruled that the fact of c. The minimum death benefit shall not be
higher earning capacity fact would not in itself less than fifteen thousand pesos. (As
necessarily affect the laborer’s claim for amended by Section 4, Presidential
compensation for a permanent partial Decree No. 1921).
disability. The amount of his salary may be
affected by various extraneous matters or
4. If the company-designated physician still Other liabilities of the employer when the
fails to give his assessment within the seafarer dies as a result of work-related injury
extended period of 240 days, then the or illness during the term of employment are as
seafarer's disability becomes permanent follows:
and total, regardless of any justification. a. The employer shall pay the deceased’s
[Jebsens Maritime Inc. v. Rapiz, G.R. No. beneficiary all outstanding obligations due
218871 (2017)] the seafarer under this Contract.
b. The employer shall transport the remains
b. Compensation and benefits for and personal effects of the seafarer to the
death Philippines at employer’s expense, except
if the death occurred in a port where local
In case of work-related death of the seafarer, government laws or regulations do not
during the term of his contract, the employer permit the transport of such remains. In
shall pay his/her beneficiaries the Philippine case death occurs at sea, the disposition of
currency equivalent to the amount of Fifty the remains shall be handled or dealt with
Thousand US dollars (US$50,000) and an in accordance with the master’s best
additional amount of Seven Thousand US judgment. In all cases, the
dollars (US$7,000) to each child under the age employer/master shall communicate with
of twenty-one (21) but not exceeding four (4) the manning agency to advise for
children, at the exchange rate prevailing during disposition of seafarer’s remains.
the time of payment. [Sec. 20, B.1, POEA- c. The employer shall pay the beneficiaries of
SEC] the seafarer the Philippine currency
equivalent to the amount of One Thousand
Requisites US dollars (US$1,000) for burial expenses
For death to be compensable, the claimant at the exchange rate prevailing during the
bears the burden to establish that: time of payment. [Sec. 20, B.4, POEA-
1. The seafarer died during the duration of SEC]
his/her contract, and
2. His/her illness was work-related. [Sec. 20, When compensation is not payable (applies
B.1, POEA-SEC] to both disability and death benefits)
No compensation and benefits shall be
Exception: When the seafarer’s death payable in respect of any injury, incapacity,
occurred after the termination of his/her disability or death of the seafarer resulting from
contract after medical repatriation repatriation his willful or criminal act or intentional breach of
on account of a work-related injury or illness his duties, provided however, that the employer
can prove that such injury, incapacity, disability
Rationale: The 2000 POEA-SEC must be or death is directly attributable to the seafarer.
liberally construed, as impelled by the plight of [Sec. 20, D, POEA-SEC]
the bereaved heirs who stand to be deprived of
a just and reasonable compensation for the Prescription of claims
seafarer’s death, notwithstanding its evident All claims arising from this contract shall be
work-connection. [Racelis v. United Philippine made within three (3) years from the date the
Lines, 746 Phil. 758 (2014)] cause of action arises, otherwise the same
shall be barred. [Sec. 30, POEA-SEC]
When compensation payable is double
Where death is caused by warlike activity while
sailing within a declared war zone or war risk
area, the compensation payable shall be
doubled. [Sec. 20, B.2, POEA-SEC]
c. Eligible solo parents shall file their 1. The totality of factors and support services
application for housing unit directly with the designed to lift the economic status of the
concerned NHA Project Offices. [Sec. 24, beneficiaries; and
IRR] 2. All other arrangements alternative to the
physical redistribution of lands, such as:
Medical Assistance a. Production or profit-sharing,
The DOH shall develop a comprehensive b. Labor administration, and
health care program for solo parents and their c. The distribution of shares of stocks,
children. [Sec. 25, IRR] which will allow beneficiaries to receive
a just share of the fruits of the lands
Health/medical services shall be made they work. [Sec. 3(a), RA 6657]
available at all times, in all levels of health care
delivery system as mentioned in the previous 2. Existence and Concept of
section. [Sec. 26, IRR] Agricultural Tenancy
lot and the tenant agrees to the 2. Work the land according to his best
transfer [Sec. 26, RA1199, as judgment, provided this manner and
amended by RA2263] method of cultivation and harvest are in
ii. There is a severance of the accordance with proven farm practices.
tenancy relationship
iii. The tenant is ejected for cause Upon termination of the relationship, have ½ of
the value of the improvements made by him,
In any case, the tenant shall only be removed provided they are reasonable and adequate to
after the expiration of 45 days following such the purposes of the lease.
severance of relationship or dismissal for
cause. 4. Concept of Farmworkers
Specific rights of rice share tenants [Sec. A farmworker is a natural person who renders
36, RA 1199] services for value as an employee or laborer in
The rice share tenant shall have the right to: an agricultural enterprise or farm regardless of
1. Determine when to scatter the seeds, to whether his compensation is paid on a daily,
transplant the seedlings, and to reap the weekly, monthly or “pakyaw” basis.
harvest, provided they shall be in
accordance with proven farm practices and The term includes an individual whose work
after due notice to the landholder. has ceased as a consequence of, or in
2. Choose the thresher which shall thresh the connection with, a pending agrarian dispute
harvest whenever it is the best available in and who has not obtained a substantially
the locality and the best suited to the equivalent and regular farm employment. [Sec.
landholder’s and tenant’s needs and 3(g), RA 6657, Comprehensive Agrarian
provided that the rate charged by the Reform Law]
owner of other threshers under similar
circumstances. Types of farmworkers
1. Regular Farmworker - a natural person
If there are multiple tenants, the choice of who is employed on a permanent basis by
the majority of the tenants shall prevail. an agricultural enterprise or farm. [Sec.
3(h), RA 6657]
If the landholder is the owner of a thresher 2. Seasonal Farmworker - a natural person
and is ready and willing to grant equal or who is employed on a recurrent, periodic or
lower rates under the same conditions, the intermittent basis by an agricultural
use of the landholder’s thresher shall be enterprise or farm, whether as a permanent
given preference. or a non-permanent laborer, such as
“dumaan,” “sacada,” and the like. [Sec. 3(i),
3. Apply appropriate pest, insect, disease and RA 6657]
rodent control measures whenever in his 3. Other Farmworker - a farmworker who
judgment such action is necessary. does not fall under Sec. 3(g) (farmworker),
4. Apply fertilizer of the kind or kinds shown Sec. 3(h) (regular farmworker), and Sec.
by proven farm practices to be adapted to 3(i) (seasonal farmworker). [Sec. 3(j), RA
the requirements of the land, provided the 6657]
landholder has not exercised his right to
require the use of such fertilizer. Entitlements of different farmworkers under
the Constitution
Specific rights of leasehold tenants [Sec.
43, RA 1199] Sec. 4, Art. XIII, 1987 Constitution – The
The tenant-lessee shall have the right to: State shall, by law, undertake an agrarian
1. Enter the premises of the land, and to the reform program founded on the right of
adequate and peaceful enjoyment thereof; farmers and regular farm workers, who are
3. Loss of two limbs at or above the ankle or period of diagnosis and treatment shall be
wrist; extended to 240 days. The employer has
4. Permanent complete paralysis of two the burden to prove that the company-
limbs; designated physician has sufficient
5. Brain injury resulting in incurable imbecility justification to extend the period; and
or insanity; and 4. If the company-designated physician still
6. Such cases as determined by the Medical fails to give his assessment within the
Director of the System and approved by the extended period of 240 days, then the
Commission. [Art. 197(c)] seafarer's disability becomes permanent
and total, regardless of any justification.
Rules for the determination of disability
(120-day or 240-day) It must be emphasized that the company-
Initially, there was confusion as to the designated physician must:
application of the 120-day period found in 1. ISSUE a final medical assessment of the
Article 192 (c) (1) of the Labor Code vis-à-vis seafarer's medical condition; AND
the application of the 240-day period found in 2. GIVE his assessment to the seafarer
Section 2, Rule X of the Amended Rules on concerned.
Employees' Compensation Implementing Title
II, Book IV of the Labor Code. That is to say that the seafarer must be fully
and properly informed of his medical
Permanent disability: condition.
Article 192(c)(1): Temporary total disability
lasting continuously for more than one hundred The results of his/her medical examinations,
twenty days, except as otherwise provided in the treatments extended to him/her, the
the Rules. diagnosis and prognosis, his/her disability
grading must be fully explained to him/her by
Section 2, Rule X: …where such injury or no less than the company-designated
sickness still requires medical attendance physician.
beyond 120 days but not to exceed 240 days
from onset of disability. The company-designated physician is
mandated to issue a medical certificate,
To reconcile these provisions, the Supreme which should be personally received by the
Court laid down the following rules in the case seafarer, or, if not practicable, sent to him/her
of Dagasdas v. Grand Placement and General by any other means sanctioned by present
Services Corporation. [G.R. No. 205727, rules.
(2017)]
1. The company-designated physician must To require the seafarer to seek the decision of
issue a final medical assessment on the a neutral third-party physician without primarily
seafarer's disability grading within a period being informed of the assessment of the
of 120 days from the time the seafarer company-designated physician is a clear
reported to him; violation of the tenets of due process.
2. If the company-designated physician fails
to give his assessment within the period of Amount of Benefit
120 days, without any justifiable reason, The employee suffering from a permanent total
then the seafarer's disability becomes disability shall be entitled to an amount
permanent and total; equivalent to the monthly income benefit, plus
3. If the company-designated physician fails ten percent thereof for each dependent child,
to give his assessment within the period of but not exceeding five, beginning with the
120 days with a sufficient justification (e.g. youngest and without substitution: Provided,
seafarer required further medical treatment That the monthly income benefit shall be the
or seafarer was uncooperative), then the
in Art. 199(b) the same monthly income factors. [Central Azucarera Don Pedro v. C. de
benefit shall be paid for a period equivalent to Leon, in his capacity as Workmen’s
the sum of the periods established for the loss Compensation Commissioner and L. Alla, G.R.
of the member or the part thereof. If the result No. L-10036 (1957)].
is a decimal fraction, the same shall be
rounded off to the next higher integer [Art. b. Death Benefits
199(e)].
Monthly Income Benefit
In cases of injuries or illnesses resulting in Under such regulations as the Commission
a permanent partial disability not listed in may approve, the System shall pay to the
the Art. 199(b), the benefit shall be an income primary beneficiaries:
benefit equivalent to the percentage of the 1. Upon the death of the covered
permanent loss of the capacity to work [Art. employee under this Title:
199(f)]. a. An amount equivalent to his monthly
income benefit;
Distinguished from permanent total b. Plus 10% thereof for each dependent
disability child, but not exceeding five, beginning
While “permanent total disability” invariably with the youngest and without
results in an employee’s loss of work or inability substitution, except as provided for in
to perform his usual work, “permanent partial par. (j) of Article 167 hereof: Provided,
disability,” on the other hand, occurs when an That –
employee loses the use of any particular i. The monthly income benefit shall
anatomical part of his body which disables him be guaranteed for five years;
to continue with his former work. [Vicente v. ii. If he has no primary beneficiary,
ECC, G.R. No. 85024, (1991)] the System shall pay to his
secondary beneficiaries the
Conversion from permanent partial monthly income benefit but not to
disability to permanent total disability exceed sixty months; and
A person’s disability may not manifest fully at iii. The minimum death benefit shall
one precise moment in time but rather over a not be less than fifteen thousand
period of time. It is possible that an injury which pesos. (As amended by Section 4,
at first was considered partial disability may Presidential Decree No. 1921).
become totally and permanently disabled from 2. Upon the death of a covered employee
the same cause. There is nothing in the law who is under permanent total disability
that prohibits the conversion of permanent under this Title: 80% of the monthly
partial disability benefit to permanent total income benefit and his dependents to the
disability benefit, if it is shown that the dependents’ pension: Provided, That –
employee’s ailment qualifies as such. [GSIS v. a. The marriage must have been validly
Court of Appeals and R. Balais, G.R. No. subsisting at the time of disability;
117572 (1998)]. b. If he has no primary beneficiary, the
System shall pay to his secondary
When salary is higher after the injury beneficiaries the monthly pension
In a case where the employee filed a claim for excluding the dependents’ pension, of
permanent partial disability but the ECC denied the remaining balance of the five-year
the claim because in fact his salary was higher guaranteed period; and
than before, the Court ruled that the fact of c. The minimum death benefit shall not be
higher earning capacity fact would not in itself less than fifteen thousand pesos. (As
necessarily affect the laborer’s claim for amended by Section 4, Presidential
compensation for a permanent partial Decree No. 1921).
disability. The amount of his salary may be
affected by various extraneous matters or
4. If the company-designated physician still Other liabilities of the employer when the
fails to give his assessment within the seafarer dies as a result of work-related injury
extended period of 240 days, then the or illness during the term of employment are as
seafarer's disability becomes permanent follows:
and total, regardless of any justification. a. The employer shall pay the deceased’s
[Jebsens Maritime Inc. v. Rapiz, G.R. No. beneficiary all outstanding obligations due
218871 (2017)] the seafarer under this Contract.
b. The employer shall transport the remains
b. Compensation and benefits for and personal effects of the seafarer to the
death Philippines at employer’s expense, except
if the death occurred in a port where local
In case of work-related death of the seafarer, government laws or regulations do not
during the term of his contract, the employer permit the transport of such remains. In
shall pay his/her beneficiaries the Philippine case death occurs at sea, the disposition of
currency equivalent to the amount of Fifty the remains shall be handled or dealt with
Thousand US dollars (US$50,000) and an in accordance with the master’s best
additional amount of Seven Thousand US judgment. In all cases, the
dollars (US$7,000) to each child under the age employer/master shall communicate with
of twenty-one (21) but not exceeding four (4) the manning agency to advise for
children, at the exchange rate prevailing during disposition of seafarer’s remains.
the time of payment. [Sec. 20, B.1, POEA- c. The employer shall pay the beneficiaries of
SEC] the seafarer the Philippine currency
equivalent to the amount of One Thousand
Requisites US dollars (US$1,000) for burial expenses
For death to be compensable, the claimant at the exchange rate prevailing during the
bears the burden to establish that: time of payment. [Sec. 20, B.4, POEA-
1. The seafarer died during the duration of SEC]
his/her contract, and
2. His/her illness was work-related. [Sec. 20, When compensation is not payable (applies
B.1, POEA-SEC] to both disability and death benefits)
No compensation and benefits shall be
Exception: When the seafarer’s death payable in respect of any injury, incapacity,
occurred after the termination of his/her disability or death of the seafarer resulting from
contract after medical repatriation repatriation his willful or criminal act or intentional breach of
on account of a work-related injury or illness his duties, provided however, that the employer
can prove that such injury, incapacity, disability
Rationale: The 2000 POEA-SEC must be or death is directly attributable to the seafarer.
liberally construed, as impelled by the plight of [Sec. 20, D, POEA-SEC]
the bereaved heirs who stand to be deprived of
a just and reasonable compensation for the Prescription of claims
seafarer’s death, notwithstanding its evident All claims arising from this contract shall be
work-connection. [Racelis v. United Philippine made within three (3) years from the date the
Lines, 746 Phil. 758 (2014)] cause of action arises, otherwise the same
shall be barred. [Sec. 30, POEA-SEC]
When compensation payable is double
Where death is caused by warlike activity while
sailing within a declared war zone or war risk
area, the compensation payable shall be
doubled. [Sec. 20, B.2, POEA-SEC]
lot and the tenant agrees to the 2. Work the land according to his best
transfer [Sec. 26, RA1199, as judgment, provided this manner and
amended by RA2263] method of cultivation and harvest are in
ii. There is a severance of the accordance with proven farm practices.
tenancy relationship
iii. The tenant is ejected for cause Upon termination of the relationship, have ½ of
the value of the improvements made by him,
In any case, the tenant shall only be removed provided they are reasonable and adequate to
after the expiration of 45 days following such the purposes of the lease.
severance of relationship or dismissal for
cause. 4. Concept of Farmworkers
Specific rights of rice share tenants [Sec. A farmworker is a natural person who renders
36, RA 1199] services for value as an employee or laborer in
The rice share tenant shall have the right to: an agricultural enterprise or farm regardless of
1. Determine when to scatter the seeds, to whether his compensation is paid on a daily,
transplant the seedlings, and to reap the weekly, monthly or “pakyaw” basis.
harvest, provided they shall be in
accordance with proven farm practices and The term includes an individual whose work
after due notice to the landholder. has ceased as a consequence of, or in
2. Choose the thresher which shall thresh the connection with, a pending agrarian dispute
harvest whenever it is the best available in and who has not obtained a substantially
the locality and the best suited to the equivalent and regular farm employment. [Sec.
landholder’s and tenant’s needs and 3(g), RA 6657, Comprehensive Agrarian
provided that the rate charged by the Reform Law]
owner of other threshers under similar
circumstances. Types of farmworkers
1. Regular Farmworker - a natural person
If there are multiple tenants, the choice of who is employed on a permanent basis by
the majority of the tenants shall prevail. an agricultural enterprise or farm. [Sec.
3(h), RA 6657]
If the landholder is the owner of a thresher 2. Seasonal Farmworker - a natural person
and is ready and willing to grant equal or who is employed on a recurrent, periodic or
lower rates under the same conditions, the intermittent basis by an agricultural
use of the landholder’s thresher shall be enterprise or farm, whether as a permanent
given preference. or a non-permanent laborer, such as
“dumaan,” “sacada,” and the like. [Sec. 3(i),
3. Apply appropriate pest, insect, disease and RA 6657]
rodent control measures whenever in his 3. Other Farmworker - a farmworker who
judgment such action is necessary. does not fall under Sec. 3(g) (farmworker),
4. Apply fertilizer of the kind or kinds shown Sec. 3(h) (regular farmworker), and Sec.
by proven farm practices to be adapted to 3(i) (seasonal farmworker). [Sec. 3(j), RA
the requirements of the land, provided the 6657]
landholder has not exercised his right to
require the use of such fertilizer. Entitlements of different farmworkers under
the Constitution
Specific rights of leasehold tenants [Sec.
43, RA 1199] Sec. 4, Art. XIII, 1987 Constitution – The
The tenant-lessee shall have the right to: State shall, by law, undertake an agrarian
1. Enter the premises of the land, and to the reform program founded on the right of
adequate and peaceful enjoyment thereof; farmers and regular farm workers, who are
DOH shall promulgate the guidelines on the subsidized as a result of special laws [Sec.
licensing of primary care providers and the 4(o)]
registration of every Filipino to a primary care
provider. [Sec. 6(d)] Direct contributors
1. Employees with formal employment
Financial coverage [Sec. 7] characterized by the existence of an
Population-based health services shall be employer-employee relationship, which
financed by the National Government through include workers in the government and
the DOH and provided free of charge at point private sector, whether regular, casual, or
of service for all Filipinos. [Sec. 7(a)] contractual, are occupying either an
elective or appointive position, regardless
Population-based health service - of the status of appointment, whose
interventions such as health promotion, premium contribution payments are equally
disease surveillance, and vector control, which shared by the employee and the employer;
have population groups as recipients. [Sec. 2. Kasambahays, as defined in the
4(p)] Kasambahay Law;
3. All other workers who are not covered by
Individual-based health services shall be formal contracts or agreements or who
financed primarily through prepayment have no employee-employer relationship
mechanisms such as social health insurance, and whose premium contributions are self-
private health insurance, and HMO plans to paid, and with capacity to pay premiums,
ensure predictability of health expenditures. such as the following:
[Sec. 7(b)] a. Self-earning individuals; and
b. Professional practitioners;
Individual-based health services - services 4. Overseas Filipino Workers
which can be accessed within a health facility 5. Filipinos living abroad;
or remotely that can be definitively traced back 6. Filipinos with dual citizenship;
to 1 recipient, has limited effect at a population 7. Lifetime members as defined in RA 10606
level and does not alter the underlying cause of (National Health Insurance Act); and
illness such as ambulatory and inpatient care, 8. All Filipinos aged 21 years and above who
medicines, laboratory tests and procedures, have the capacity to pay premiums. [Sec.
among others [Sec. 4(p)] 8, IRR]
and those who are not yet in the PhilHealth employers and not exceeding 1.5% for self-
database and are financially incapable to earning, professional practitioners, and
pay premiums. [Sec. 8, IRR] migrant workers.
Dependents
1. Legal spouse/s who is/are not an active VIII. JURISDICTION AND
member; REMEDIES
2. Unmarried and unemployed legitimate,
illegitimate children, and legally adopted or
stepchildren below twenty-one (21) years A. LABOR ARBITER
of age;
3. Foster children as defined in RA 10165
(Foster Care Act of 2012); and 1. Jurisdiction of the Labor Arbiter
4. Parents who are sixty (60) years old and as distinguished from the
above, not otherwise an enrolled member. Regional Director
[Sec. 8, IRR]
JURISDICTION OF THE LABOR ARBITER
Benefits [Sec. 9] Except as otherwise provided under the Code,
Every member shall be granted immediate the Labor Arbiters shall have original and
eligibility for health benefit package under the exclusive jurisdiction to hear and decide:
NHIP under the following rules: a. Unfair labor practices cases;
1. The PhilHealth ID Card shall not be b. Termination disputes;
required in the availing of any health c. Cases that workers may file involving
service. wages, rates of pay, hours of work and
2. No co-payment shall be charged for other terms and conditions of employment,
services rendered in basic or ward if accompanied with a claim for
accommodation. reinstatement;
3. Co-payments and co-insurance for d. Claims for actual, moral, exemplary and
amenities in public hospitals shall be other forms of damages arising from the
regulated by the DOH and PhilHealth employer-employee relations;
e. Cases arising from any violation of Art.
Co-payment - a flat fee or predetermined [279] of this Code, including questions
rate paid at point of service [Sec. 4(e)] involving the legality of strikes and
lockouts;
Co-insurance - a percentage of a medical f. Except claims for Employees
charge that is paid by the insured, with the Compensation, Social Security, Medicare
rest paid by the health insurance plan [Sec. [Philhealth] and maternity benefits, all other
4(d)] claims, arising from employer-employee
relations, including those of persons in
4. The current PhilHealth package for domestic or household service, involving
members shall not be reduced. an amount exceeding P5,000 regardless of
whether accompanied with a claim for
PhilHealth shall provide additional NHIP reinstatement. [Art. 224]
benefits for direct contributors, where g. Money claims arising out of employer-
applicable: Provided, employee relationship or by virtue of any
1. Failure to pay premiums shall not prevent law or contract, involving claims for actual,
the enjoyment of NHIP benefits. moral, exemplary and other forms of
2. Employers and self-employed direct damages, as well as employment
contributors shall be required to pay all termination of OFWs;
missed contributions with an interest,
compounded monthly, of at least 3% for
issued by a reputable bonding company duly During the period of appeal until reversal by the
accredited by the Commission in the amount higher court, it is obligatory on the part of the
equivalent to the monetary award in the employer to:
judgment appealed from. [Art. 229] 1. Reinstate, and
2. Pay the wages of the dismissed employee.
It is clear from the NLRC Rules of Procedure
that appeals must be verified and certified If the employee has been reinstated during the
against forum-shopping by the parties-in- appeal period and such reinstatement order is
interest themselves. [Antonio B. Salenga, et al. reversed with finality, the employee is NOT
v. CA, G.R. No. 174941 (2012)] required to reimburse whatever salary he
received. He is entitled to such especially if he
Note: Decisions of the Labor Arbiter are actually rendered services during the period.
appealable to the NLRC. Decisions by the [Garcia v. Philippine Airlines, Inc., G.R. No.
NLRC are appealable to the CA via Rule 65. 164856 (2009)]
[St. Martin’s Funeral Homes v. NLRC, 295
SCRA 494 (1998)]
B. NATIONAL LABOR
Memorandum of Appeal RELATIONS COMMISSION
In all cases, the appellant shall furnish a copy
of the memorandum of appeal to the other
party who shall file an answer not later than ten
1. Jurisdiction/Powers
(10) calendar days from receipt thereof. [Art.
229] NLRC en banc
a. To promulgate rules and regulations
governing the hearing and disposition of
3. Reinstatement and/or execution cases
pending appeal b. To formulate policies affecting its
administration and operations
Reinstatement Pending Appeal and Effect c. To allow cases within the jurisdiction of any
of NLRC reversal of Labor Arbiter’s order of division to be heard and decided by
reinstatement another division
In any event, the decision of the Labor Arbiter d. To recommend appointment of a Labor
reinstating a dismissed or separated Arbiter
employee, insofar as the reinstatement aspect
is concerned, shall immediately be NLRC in divisions (8 divisions with 3
executory, even pending appeal. commissioners each)
a. Exclusive appellate jurisdiction from
The employee shall either be: decisions of LA
(within respective territorial
a. Admitted back to work under the same jurisdiction)
terms and conditions prevailing prior to his b. Jurisdiction over petitions for injunction or
dismissal or separation; or temporary restraining order under Art.
b. Merely reinstated in the payroll, at the 225(e)
option of the employer. c. Certified cases: “national interest” labor
disputes
certified (or referred) to the
The posting of a bond by the employer shall not Commission by the SOLE
for compulsory
stay the execution for reinstatement provided arbitration
under Art. 278 (g)
herein. [Art. 229]
Exclusive Appellate Jurisdiction: over all
Reversal of the order of reinstatement of cases decided by Labor Arbiters [Art. 224(b)]
the Labor Arbiter and the DOLE Regional Directors under Art.
129.
b. To formulate the terms and conditions of located in different regions, the Division
the CBA, staying within the scope of the having territorial jurisdiction over the
order principal office of the company shall
c. To act within the earliest time possible and acquire jurisdiction to decide such labor
with the end in view that its action would not dispute; unless the certification order
only serve the interests of the parties provides otherwise. [Sec. 3, Rule VIII, 2011
alone, but would also have favorable NLRC Rules and Procedures]
implications to the community and to the
economy as a whole. [Art. 278(g); Union of Effects of Defiance
Filipino Employees v. NLRC, G.R. No. Non-compliance with the certification order of
91025 (1990)] the SOLE shall:
1. Be considered as an illegal act committed
Effects of Certification in the course of the strike or lockout; and
1. Upon certification, the intended or 2. Authorize the Commission to enforce the
impending strike or lockout is automatically same under pain of immediate disciplinary
enjoined, notwithstanding: action, including:
a. The filing of any motion for a. Dismissal or loss of employment
reconsideration of the certification status; or
order; b. Payment by the locking-out employer
b. The non-resolution of any such motion, of backwages, damages; and/or
which may have been duly submitted to c. Other affirmative relief, even criminal
the Office of the Secretary of Labor and prosecution against the liable parties.
Employment.
2. If a work stoppage has already taken place The Commission may also seek the assistance
at the time of the certification: of law enforcement agencies to ensure
a. All striking or locked out employees compliance and enforcement of its orders and
shall immediately return to work; and resolutions. [Sec. 4, Rule VIII, 2011 NLRC
b. The employer shall immediately Rules and Procedures]
resume operations and readmit all
workers under the same terms and Strict Compliance of Assumption and
conditions prevailing before the strike Certification Orders
or lockout. The Secretary's assumption and certification
3. All cases between the same parties, shall orders being executory in character are to be
be considered subsumed or absorbed by strictly complied with by the parties even during
the certified case, and shall be decided by the pendency of a petition questioning their
the appropriate Division of the validity.
Commission, EXCEPT where the
certification order specifies otherwise the The extraordinary authority given by law to the
issues submitted for arbitration which are: Secretary of Labor is "aimed at arriving at a
a. Already filed or may be filed, and peaceful and speedy solution to labor disputes,
b. Relevant to or are proper incidents of without jeopardizing national interests." [Union
the certified case. of Filipino Employees v. NLRC, G.R. No.
4. The parties to a certified case, under pain 91025 (1990)]
of contempt, shall inform their counsels
and the Division concerned of all cases Procedure in certified cases
pending with the Regional Arbitration a. When there is no need to conduct a
Branches and the Voluntary Arbitrators clarificatory hearing, the Commission
relative or incident to the certified case shall resolve all certified cases within 30
before it. calendar days from receipt by the assigned
5. When a certified labor dispute involves a Commissioner of the complete records,
business entity with several workplaces which shall include the position papers of
the parties and the order of the SOLE The petition shall be accompanied by:
denying the motion for reconsideration of 1. A certified true copy of the judgment, order
the certification order, if any. or resolution subject thereof;
b. Where a clarificatory hearing is needed, 2. Copies of all pleadings and documents
the Commission shall, within 5 calendar relevant and pertinent thereto; and
days from receipt of the records, issue a 3. A sworn certification of non-forum
notice to be served on the parties through shopping as provided in the third
the fastest means available, requiring them paragraph of Sec. 3, Rule 46.
to appear and submit additional evidence,
if any. All certified cases shall be resolved Petition for prohibition
by the Commission within 60 calendar days A person may file a verified petition in the
from receipt of the complete records by the proper court, alleging the facts with certainty
assigned Commissioner. and praying that judgment be rendered
commanding the any tribunal, corporation,
No motion for extension or postponement shall board, officer or person, whether exercising
be entertained. [Sec. 5, Rule VIII, 2011 NLRC judicial, quasi-judicial or ministerial functions to
Rules and Procedures] desist from further proceedings in the action
or matter specified therein, or otherwise
Execution of Judgment granting such incidental reliefs as law and
Upon issuance of the entry of judgment, the justice may require:
Commission motu proprio or upon motion by 1. When the proceedings of such tribunal,
the proper party, may cause the execution of corporation, board, officer or person are:
the judgment in the certified case. [Sec. 6, a. Without or in excess of its or his
Rule VIII, 2011 NLRC Rules and Procedures] jurisdiction; or
b. With grave abuse of discretion
amounting to lack or excess of
C. COURT OF APPEALS jurisdiction, AND
2. When there is no appeal or any other plain,
speedy, and adequate remedy in the
Appeal via Rule 65, Rules of Court ordinary course of law.
Petition for certiorari
A person may file a verified petition in the The petition shall be accompanied by:
proper court, alleging the facts with certainty 1. A certified true copy of the judgment, order
and praying that judgment be rendered or resolution subject thereof;
annulling or modifying the proceedings of 2. Copies of all pleadings and documents
any tribunal, board or officer exercising judicial relevant and pertinent thereto; and
or quasi-judicial functions, and granting such 3. A sworn certification of non-forum
incidental reliefs as law and justice may shopping as provided in the third
require: paragraph of Sec. 3, Rule 46.
1. When such tribunal, board or officer has
acted: Petition for mandamus
a. Without or in excess its or his A person may file a verified petition in the
jurisdiction, or proper court, alleging the facts with certainty
b. With grave abuse of discretion and praying that judgment be rendered
amounting to lack or excess of commanding any tribunal, corporation, board,
jurisdiction; AND officer or person, immediately or at some other
2. When there is no appeal, or any plain, time to be specified by the court, to do the act
speedy, and adequate remedy in the required to be done to protect the rights of the
ordinary course of law. petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts
of the respondent:
1. When any tribunal, corporation, board, accordingly becomes final and executory, he
officer or person: cannot avail himself of the writ of certiorari, his
a. Unlawfully neglects the performance of predicament being the effect of his deliberate
an act which the law specifically inaction. [Tirazona v Phil EDS Techno-Service
enjoins as a duty resulting from an Inc, G.R. No. 169712 (2009)]
office, trust, or station; or
b. Unlawfully excludes another from the Note: Review of decisions of the NLRC shall be
use and enjoyment of a right or office done through (in order):
to which such other is entitled; AND 1. Motion for reconsideration
2. When there is no other plain, speedy and 2. Rule 65 to the CA
adequate remedy in the ordinary course of 3. Rule 45 to the SC
law.
E. BUREAU OF LABOR
D. SUPREME COURT RELATIONS
1. Jurisdiction
All references in the amended Sec. 9 of B.P.
No. 129 to supposed appeals from the NLRC The Bureau of Labor Relations and the Labor
to the Supreme Court are interpreted and Relations Divisions in the regional offices of the
hereby declared to mean and refer to petitions Department of Labor and Employment shall
for certiorari under Rule 65. have original and exclusive authority:
a. To act –
Consequently, all such petitions should hence 1. At their own initiative, or
forth be initially filed in the Court of Appeals, in 2. Upon request of either or both parties,
strict observance of the doctrine on the b. On all inter-union and intra-union conflicts,
hierarchy of courts, as the appropriate forum and
for the relief desired. [St. Martin Funeral Home c. All disputes, grievances or problems
v. NLRC, G.R. No. 130866 (1998)] arising from or affecting labor-management
relations in all workplaces –
Rule 45, Rules of Court 1. Whether agricultural or non-agricultural
Filing of petition with Supreme Court 2. Except those arising from the
A party desiring to appeal by certiorari from a implementation or interpretation of
judgment or final order or resolution of the collective bargaining agreements
Court of Appeals, the Sandiganbayan, the which shall be the subject of grievance
Regional Trial Court or other courts whenever procedure and/or voluntary arbitration.
authorized by law, may file with the Supreme [Art. 232]
Court a verified petition for review on certiorari.
The petition shall raise only questions of law The Bureau shall have fifteen (15) calendar
which must be distinctly set forth. [Sec. 1] days to act on labor cases before it, subject to
extension by agreement of the parties.
days from the date of request [Art. days unless otherwise agreed
261(b)]. upon by parties in writing
2. If the dispute is not settled, the Board shall b. If unorganized establishments without
intervene upon request of either or both CBA:
parties or at its own initiative and i. Submit issue before the NCMB for
immediately call the parties to conciliation conciliation after endeavors to
meetings [Art. 261(c)]. correct have failed
a. The Board shall have the power to ii. If not fruitful within 10 days, refer to
issue subpoenas requiring the the NLRC for arbitration to be
attendance of the parties to such decided within 20 days from
meetings. submission [Rule VII, Rules of
i. It shall be the duty of the parties to Procedure of Minimum Wage
participate fully and promptly in the Fixing]
conciliation meetings the Board
may call [Art. 261(c)]; 2. Conciliation as distinguished from
b. During the conciliation proceedings in mediation
the Board, the parties are prohibited
from doing any act which may disrupt Conciliation Mediation
or impede the early settlement of the Both refer to a process where a third
disputes [Art. 261(d)]; and person called a Conciliator/Mediator
c. The Board shall exert all efforts to intervenes in a dispute to reconcile
settle disputes amicably and differences or persuade them to adjust or
encourage the parties to submit their settle their dispute
case to a voluntary arbitrator [Art. C-M facilitates C-M assists parties
261(e)]. disputants to keep to voluntarily reach
things calm, delivers mutually
messages back and acceptable
In Collective Bargaining:
forth between the settlement.
1. If the dispute is not settled, the NCMB will
parties.
intervene upon request of either party or at
[Conciliation-Mediation, DOLE – NCMB
its own initiative to call for conciliation with Website, available at:
the power to issue subpoenas requiring http://ncrwp.ncmb.ph/?page_id=99]
attendance:
a. During conciliation proceedings, Conciliator-Mediator [C-M] — Official of the
parties are prohibited from doing any NCMB whose principal function is to settle and
act which may disrupt or impede the dispose potential and actual labor disputes
early settlement of the dispute; through conciliation and preventive mediation
b. NCMB will exert all efforts to settle including the promotion and encouragement of
disputes amicable and encourage voluntary approaches to labor disputes
submission to a voluntary Arbitrator. prevention and settlement. [Sec. 1, Rule III,
NCMB Manual of Procedure for Conciliation
[Art. 261(c)(d)]
and Preventive Mediation Cases]
2. Procedure for Correction of Wage
Distortion: Pre-Termination of Conciliation-Mediation:
a. In organized establishments with CBA Any or both parties in the dispute may pre-
i. Submit issue to grievance terminate the proceedings and request referral
machinery or endorsement to the appropriate DOLE
ii. If unresolved, refer to voluntary agency or office with jurisdiction or to the
arbitration who will decide within 10 voluntary arbiter if both parties agreed.
a. The final judgment in the administrative Article 1701. Neither capital nor labor shall
proceedings shall not be binding in the act oppressively against the other, or impair
criminal case nor be considered as the interest or convenience of the public.
evidence of guilt
b. But merely as proof of compliance of the Article 1702. In case of doubt, all labor
requirements therein set forth. legislation and all labor contracts shall be
construed in favor of the safety and
4. Offenses under the Labor Code decent living for the laborer.
Art. 305, LC. – Offenses penalized under Article 1703. No contract which practically
this Code and the rules and regulations amounts to involuntary servitude, under any
issued pursuant thereto shall prescribe in guise whatsoever, shall be valid.
three (3) years.
Migrant Workers and Overseas Filipinos
Art. 305, Civil Code. – Offenses penalized Act of 1995
under this Code and the rules and See II. Recruitment and Placement, and III. E.
regulations issued pursuant thereto shall 9. Migrant workers
prescribe in three (3) years.
Anti-Trafficking in Persons Act of 2003
3 years, except ULP (see: above)
SECTION 4. Acts of Trafficking in
Persons. — It shall be unlawful for any
5. Illegal recruitment person, natural or juridical, to commit any of
the following acts:
Illegal recruitment cases under this Act shall
(a) To recruit, obtain, hire, provide, offer,
prescribe in five (5) years.
transport, transfer, maintain, harbor, or
receive a person by any means,
Provided, however, that illegal recruitment
including those done under the pretext of
cases involving economic sabotage as defined
domestic or overseas employment or
herein shall prescribe in twenty (20) years.
training or apprenticeship, for the
[Migrant Workers and Overseas Filipinos Act of
purpose of prostitution, pornography, or
1995, Sec. 12]
sexual exploitation;
(b) To introduce or match for money, profit,
LAWS AND RULES OF or material, economic or other
consideration, any person or, as
PROCEDURE provided for under Republic Act No.
6955, any Filipino women to a foreign
The Civil Code of the Philippines national, for marriage for the purpose of
acquiring, buying, offering, selling or
Article 1700. The relations between capital trading him/her to engage in prostitution,
and labor are not merely contractual. They pornography, sexual exploitation, forced
are so impressed with public interest that labor, slavery, involuntary servitude or
labor contracts must yield to the common debt bondage;
good. Such contracts are subject to the (c) To offer or contract marriage, real or
special laws on labor unions, collective simulated, for the purpose of acquiring,
bargaining, strikes and lockouts, closed buying, offering, selling, or trading them
shop, wages, working conditions, hours of to engage in prostitution, pornography,
labor and similar subjects. sexual exploitation, forced labor or
slavery, involuntary servitude or debt
bondage;
(d) To undertake or organize tours and consideration or for barter for purposes
travel plans consisting of tourism of exploitation. Trafficking for purposes
packages or activities for the purpose of of exploitation of children shall include:
utilizing and offering persons for (1) All forms of slavery or practices
prostitution, pornography or sexual similar to slavery, involuntary
exploitation; servitude, debt bondage and forced
(e) To maintain or hire a person to engage labor, including recruitment of
in prostitution or pornography; children for use in armed conflict;
(f) To adopt persons by any form of (2) The use, procuring or offering of a
consideration for exploitative purposes child for prostitution, for the
or to facilitate the same for purposes of production of pornography, or for
prostitution, pornography, sexual pornographic performances;
exploitation, forced slavery, involuntary (3) The use, procuring or offering of a
servitude or debt bondage; child for the production and
(g) To adopt or facilitate the adoption of trafficking of drugs; and
persons for the purpose of prostitution, (4) The use, procuring or offering of a
pornography, sexual exploitation, forced child for illegal activities or work
labor, slavery, involuntary servitude or which, by its nature or the
debt bondage; circumstances in which it is carried
(h) To recruit, hire, transport, obtain, out, is likely to harm their health,
transfer, harbor, maintain, provide, offer, safety or morals; and
receive, or abduct a person, by means of (5) To organize or direct other persons
threat or use of force, fraud, deceit, to commit the offenses defined as
violence, coercion, or intimidation for the acts of trafficking under this Act.
purpose of removal or sale of organs of
said person; SECTION 4-A. Attempted Trafficking in
(i) To recruit, transport, obtain, transfer, Persons. — Where there are acts to initiate
harbor, maintain, offer, hire, provide, the commission of a trafficking offense but
receive or adopt a child to engage in the offender failed to or did not execute all
armed activities in the Philippines or the elements of the crime, by accident or by
abroad; reason of some cause other than voluntary
(j) To recruit, transport, transfer, harbor, desistance, such overt acts shall be deemed
obtain, maintain, offer, hire, provide or as an attempt to commit an act of trafficking
receive a person by means defined in in persons. As such, an attempt to commit
Section 3 of this Act for purposes of any of the offenses enumerated in Section 4
forced labor, slavery, debt bondage and of this Act shall constitute attempted
involuntary servitude, including a trafficking in persons.
scheme, plan, or pattern intended to
cause the person either: In cases where the victim is a child, any of
(1) To believe that if the person did not the following acts shall also be deemed as
perform such labor or services, he or attempted trafficking in persons:
she or another person would suffer (a) Facilitating the travel of a child who
serious harm or physical restraint; or travels alone to a foreign country or
(2) To abuse or threaten the use of law territory without valid reason therefor
or the legal processes; and and without the required clearance or
(k) To recruit, transport, harbor, obtain, permit from the Department of Social
transfer, maintain, hire, offer, provide, Welfare and Development, or a written
adopt or receive a child for purposes of permit or justification from the child's
exploitation or trading them, including parent or legal guardian;
but not limited to, the act of buying
and/or selling a child for any
(h) To tamper with, destroy, or cause the member of the military or law
destruction of evidence, or to influence enforcement agencies;
or attempt to influence witnesses, in an (f) When the offender is a member of the
investigation or prosecution of a case military or law enforcement agencies;
under this Act; (g) When by reason or on occasion of the
(i) To destroy, conceal, remove, confiscate act of trafficking in persons, the offended
or possess, or attempt to destroy, party dies, becomes insane, suffers
conceal, remove, confiscate or possess, mutilation or is afflicted with Human
any actual or purported passport or other Immunodeficiency Virus (HIV) or the
travel, immigration or working permit or Acquired Immune Deficiency Syndrome
document, or any other actual or (AIDS);
purported government identification, of (h) When the offender commits one or more
any person in order to prevent or restrict, violations of Section 4 over a period of
or attempt to prevent or restrict, without sixty (60) or more days, whether those
lawful authority, the person's liberty to days are continuous or not; and
move or travel in order to maintain the (i) When the offender directs or through
labor or services of that person; or another manages the trafficking victim in
(j) To utilize his or her office to impede the carrying out the exploitative purpose of
investigation, prosecution or execution trafficking.
of lawful orders in a case under this Act.
SECTION 10. Penalties and Sanctions. —
SECTION 6. Qualified Trafficking in The following penalties and sanctions are
Persons. — The following are considered hereby established for the offenses
as qualified trafficking: enumerated in this Act:
(a) When the trafficked person is a child; (a) Any person found guilty of committing
(b) When the adoption is effected through any of the acts enumerated in Section 4
Republic Act No. 8043, otherwise known shall suffer the penalty of imprisonment
as the "Inter-Country Adoption Act of of twenty (20) years and a fine of not less
1995" and said adoption is for the than One million pesos (P1,000,000.00)
purpose of prostitution, pornography, but not more than Two million pesos
sexual exploitation, forced labor, (P2,000,000.00);
slavery, involuntary servitude or debt (b) Any person found guilty of committing
bondage; any of the acts enumerated in Section 4-
(c) When the crime is committed by a A of this Act shall suffer the penalty of
syndicate, or in large scale. Trafficking is imprisonment of fifteen (15) years and a
deemed committed by a syndicate if fine of not less than Five hundred
carried out by a group of three (3) or thousand pesos (P500,000.00) but not
more persons conspiring or more than One million pesos
confederating with one another. It is (P1,000,000.00);
deemed committed in large scale if (c) Any person found guilty of Section 4-B of
committed against three (3) or more this Act shall suffer the penalty of
persons, individually or as a group; imprisonment of fifteen (15) years and a
(d) When the offender is a spouse, an fine of not less than Five hundred
ascendant, parent, sibling, guardian or a thousand pesos (P500,000.00) but not
person who exercises authority over the more than One million pesos
trafficked person or when the offense is (P1,000,000.00);
committed by a public officer or In every case, conviction shall cause
employee; and carry the automatic revocation of the
(e) When the trafficked person is recruited license or registration of the recruitment
to engage in prostitution with any agency involved in trafficking. The
license of a recruitment agency which
shall not be barred from communicating 105 Day Expanded Maternity Leave Law
with workers' representatives. See III. C. 2. b. Expanded Maternity Leave
The employers shall also ensure that Paternity Leave Act of 1996
measures are taken to prevent the See III. C. 2. c. Paternity Leave
telecommuting employee from being
isolated from the rest of the working Solo Parents’ Welfare Act
community in the company by giving the See III. C. 2. a., Parental Leave for Solo
telecommuting employee the opportunity to Parents, III. E. 7. Solo Parents, and VII. E. Solo
meet with colleagues on a regular basis, and Parents
allowing access to company information.
Magna Carta of Women
SECTION 6. Data Protection. — The See III. E. 3. a. Discrimination
employer shall be responsible for taking the
appropriate measures to ensure the Amending Art. 135 of the Labor Code Re:
protection of data used and processed by Prohibition on Discrimination Against
the telecommuting employee for Women
professional purposes. The employer shall See III. E. 3. c. Prohibited Acts
inform the telecommuting employee of all
relevant laws, and company rules Anti-Violence Against Women and Their
concerning data protection. The Children Act of 2004
telecommuting employee shall ensure that See III. C. 2. e. Battered women leave
confidential and proprietary information are
protected at all times. Safe Spaces Act
For this purpose, the provisions of the Data See III. D. Sexual Harassment in the Work
Privacy Act of 2012 shall have suppletory Environment
effect.
Special Protection of Children Against
SECTION 7. Administration. — The parties Abuse, Exploitation, and Discrimination Act
to a telecommuting work arrangement shall See III. E. 4. Minors
be primarily responsible for its
administration. In case of differences in Batas Kasambahay
interpretation, the following guideline shall See III. E. 5. Kasambahays
be observed:
(a) The differences shall be treated as Anti-Sexual Harassment Act of 1995
grievances under the applicable See III. D. Sexual Harassment in the Work
grievance mechanism of the company. Environment
(b) If there is no grievance mechanism or if
the mechanism is inadequate, the Portability Law
grievance shall be referred to the See VII. C. Limited Portability Law
regional office of the Department of
Labor and Employment (DOLE) which New Labor Relations Law
has jurisdiction over the workplace for [amended certain Articles in the Labor Code;
conciliation. already incorporated into the provisions
(c) To facilitate the resolution of grievances, previously cited]
employers shall keep and maintain, as
part of their records, the documents Wage Rationalization Act
proving that the telecommuting work See III. B. Wages
arrangement was voluntarily adopted.
Productivity Incentives Act of 1990 the terms and conditions agreed upon by
labor and management, be integrated in the
SECTION 5. Labor-Management collective bargaining agreement that may be
Committee. — a) A business enterprise or entered into between them.
its employees, through their authorized
representatives, may initiate the formation of SECTION 7. Benefits and Tax Incentives.
a labor-management committee that shall be — (a) Subject to the provisions of Section 6
composed of an equal number of hereof, a business enterprise which adopts
representatives from the management and a productivity incentives program, duly and
from the rank-and-file employees: Provided, mutually agreed upon by parties to the labor-
That both management and labor shall have management committee, shall be granted a
equal voting rights: Provided, further, That at special deduction from gross income
the request of any party to the negotiation, equivalent to fifty percent (50%) of the total
the National Wages and Productivity productivity bonuses given to employees
Commission of the Department of Labor and under the program over and above the total
Employment shall provide the necessary allowable ordinary and necessary business
studies, technical information and deductions for said bonuses under the
assistance, and expert advice to enable the National Internal Revenue Code, as
parties to conclude productivity agreements. amended.
(b) In business enterprises with duly (b) Grants for manpower training and special
recognized or certified labor organizations, studies given to rank-and-file employees
the representatives of labor shall be those pursuant to a program prepared by the labor-
designated by the collective bargaining management committee for the
agent(s) of the bargaining unit(s). development of skills identified as necessary
by the appropriate government agencies
(c) In business enterprises without duly shall also entitle the business enterprise to a
recognized or certified labor organizations, special deduction from gross income
the representatives of labor shall be elected equivalent to fifty per cent (50%) of the total
by at least a majority of all rank-and-file grants over and above the allowable
employees who have rendered at least six ordinary and necessary business deductions
(6) months of continuous service. for said grants under the National Internal
Revenue Code, as amended.
SECTION 6. Productivity Incentives
Program. — a) The productivity incentives (c) Any strike or lockout arising from any
program shall contain provisions for the violation of the productivity incentives
manner of sharing and the factors in program shall suspend the effectivity thereof
determining productivity bonuses: Provided, pending settlement of such strike or lockout:
That the productivity bonuses granted to Provided, That the business enterprise shall
labor under this program shall not be less not be deemed to have forfeited any tax
than half of the percentage increase in the incentives accrued prior to the date of
productivity of the business enterprise. occurrence of such strike or lockout, and the
workers shall not be required to reimburse
b) Productivity agreements reached by the the productivity bonuses already granted to
parties as provided in this Act supplement them under the productivity incentives
existing collective bargaining agreements. program. Likewise, bonuses which have
already accrued before the strike or lockout
c) If, during the existence of the productivity shall be paid the workers within six (6)
incentives program or agreement, the months from their accrual.
employees will join or form a union, such
program or agreement may, in addition to
(d) Bonuses provided for under the vested with the special function of
productivity incentives program shall be developing and implementing welfare
given to the employees not later than every programs and services that respond to the
six (6) months from the start of such program needs of its member-OFWs and their
over and above existing bonuses granted by families. It is endowed with powers to
the business enterprise and by law: administer a trust fund to be called the
Provided, That the said bonuses shall not be OWWA Fund. Being a chartered institution,
deemed as salary increases due the the OWWA shall not fall under any of the
employees and workers. following categories: government
(e) The special deductions from gross instrumentalities with corporate powers
income provided for herein shall be allowed (GICPs), government corporate entities
starting the next taxable year after the (GCEs), government financial institutions
effectivity of this Act. (GFIs) and/or government- owned or -
controlled corporations (GOCCs).
SECTION 9. Disputes and Grievances. —
Whenever disputes, grievances, or other The OWWA shall be an attached agency of
matters arise from the interpretation or the Department of Labor and Employment
implementation of the productivity incentives (DOLE). Its officials and employees are
program, the labor-management committee covered by the Salary Standardization Law.
shall meet to resolve the dispute, and may
seek the assistance of the National SECTION 6. Functions. — The OWWA
Conciliation and Mediation Board of the shall exercise the following functions:
Department of Labor and Employment for (a) To protect the interest and promote the
such purpose. Any dispute which remains welfare of member-OFWs in all phases
unresolved within twenty (20) days from the of overseas employment in recognition
time of its submission to the labor- of their valuable contribution to the
management committee shall be submitted overall national development effort;
for voluntary arbitration in line with the (b) To protect the interest and promote the
pertinent of the Labor Code, as amended. welfare of member-OFWs in all phases
of overseas employment in recognition
The productivity incentives program shall of their valuable contribution to the
include the name(s) of the voluntary overall national development effort;
arbitrator or panel of voluntary arbitrators (c) To facilitate the implementation of the
previously chosen and agreed upon by the provisions of the Labor Code of the
labor-management committee. Philippines (Presidential Decree No.
442, as amended) and the Migrant
SSS Law Workers and Overseas Filipinos Act of
See VII. A. Social Security System Law 1995 (Republic Act No. 8042, as
amended), concerning the responsibility
GSIS Law of the government to promote the well-
See VII. B. Government Service Insurance being of OFWs. Pursuant thereto, and in
Service Law furtherance thereof, it shall provide legal
assistance to member-OFWs;
Social Security Act of 2018 (d) To provide social and welfare programs
See VII. A. Social Security System Law and services to member-OFWs,
including social assistance, education
Overseas Workers Welfare Administration and training, cultural services, financial
Act management, reintegration, and
entrepreneurial development services;
SECTION 4. Nature of the OWWA. — The (e) To provide prompt and appropriate
OWWA is a national government agency response to global emergencies or crisis
situations affecting OFWs and their years from the last membership contribution
families; made.
(f) To ensure the efficiency of collections
and the viability and sustainability of the SECTION 10. Power of the Board to
OWWA Fund through sound, judicious, Adjust the Membership Contribution. —
and transparent investment and Based on actuarial studies and taking into
management policies; consideration the welfare and interest of the
(g) To undertake studies and researches for member-OFWs, the OWWA Board may
the enhancement of the social, adjust or modify the amount of membership
economic, and cultural well-being of contribution.
member-OFWs and their families;
(h) To develop, support and finance specific SECTION 11. Proof of Membership. —
projects for the welfare of member- Upon payment of the required contribution,
OFWs and their families; and an OWWA member shall be issued an
(i) To ensure the implementation of all laws official receipt, an OWWA E-Card,
and ratified international conventions identification card, or other proof of
within its jurisdiction. membership. No additional or extra charges
shall be levied on the member-OFW.
SECTION 8. Registration of Membership.
— Membership in the OWWA may be The OWWA shall maintain a comprehensive
obtained in two (2) ways: database of member-OFWs, which shall be
(a) By compulsory registration upon updated regularly.
processing of employment contracts of
OFWs at the POEA; and SECTION 13. Authorized Collecting
(b) By voluntary registration of OFWs at job Officers. — (a) Membership contributions
sites, or through electronic registration. shall be collected by duly authorized OWWA
collecting officers, deputized collecting
SECTION 9. Amount of Contribution and officers, or accredited collecting agents. The
Effectivity of Membership. — Membership collection of membership contributions shall
in the OWWA, either through the compulsory be made at the POEA contract processing
or voluntary coverage, shall be effective hub, OWWA regional and overseas offices,
upon payment of membership contribution in and other accredited collection centers.
the amount of twenty-five US dollars
(US$25.00) or its equivalent in the prevailing (b) In case of voluntary members who
foreign exchange rates. Such membership register at the job site, membership
shall be considered active until the expiration contributions shall be made directly to the
of the OFWs existing employment contract OWWA Overseas Offices located in the
or after two (2) years from contract respective foreign service posts of the
effectivity, whichever comes first. Philippines.
(2) Health Care Benefits. — Within two The annual scholarship lists of all
(2) years from the effectivity of this these programs shall be submitted to
Act, the OWWA shall develop and the Board.
implement health care programs for
the bene t of member-OFWs and Universal Health Care Act
their families, taking into See VII. H. Universal Health Care
consideration the health care needs
of women as provided for in Rules 45 and 65
Republic Act No. 9710, or the
Magna Carta of Women, and other RULE 45
relevant laws. Appeal by Certiorari to the Supreme Court
(3) Education and Training Benefits. —
A member, or the member's Section 1. Filing of petition with Supreme
designated beneficiary, may avail Court. — A party desiring to appeal by
any of the following scholarship certiorari from a judgment or final order or
programs, subject to a selection resolution of the Court of Appeals, the
process and accreditation of Sandiganbayan, the Regional Trial Court or
participating institutions: other courts whenever authorized by law,
may file with the Supreme Court a verified
petition for review on certiorari. The petition person aggrieved thereby may file a verified
shall raise only questions of law which must petition in the proper court, alleging the facts
be distinctly set forth. with certainty and praying that judgment be
rendered annulling or modifying the
Section 2. Time for filing; extension. — proceedings of such tribunal, board or
The petition shall be filed within fifteen (15) officer, and granting such incidental reliefs
days from notice of the judgment or final as law and justice may require.
order or resolution appealed from, or of the
denial of the petitioner's motion for new trial The petition shall be accompanied by a
or reconsideration filed in due time after certified true copy of the judgment, order or
notice of the judgment. On motion duly filed resolution subject thereof, copies of all
and served, with full payment of the docket pleadings and documents relevant and
and other lawful fees and the deposit for pertinent thereto, and a sworn certification of
costs before the expiration of the non-forum shopping as provided in the third
reglementary period, the Supreme Court paragraph of section 3, Rule 46.
may for justifiable reasons grant an
extension of thirty (30) days only within Section 2. Petition for prohibition. —
which to file the petition. When the proceedings of any tribunal,
corporation, board, officer or person,
Section 6. Review discretionary. — A whether exercising judicial, quasi-judicial or
review is not a matter of right, but of sound ministerial functions, are without or in excess
judicial discretion, and will be granted only of its or his jurisdiction, or with grave abuse
when there are special and important of discretion amounting to lack or excess of
reasons thereof. The following, while neither jurisdiction, and there is no appeal or any
controlling nor fully measuring the court's other plain, speedy, and adequate remedy in
discretion, indicate the character of the the ordinary course of law, a person
reasons which will be considered: aggrieved thereby may file a verified petition
a. When the court a quo has decided a in the proper court, alleging the facts with
question of substance, not theretofore certainty and praying that judgment be
determined by the Supreme Court, or rendered commanding the respondent to
has decided it in a way probably not in desist from further proceedings in the action
accord with law or with the applicable or matter specified therein, or otherwise
decisions of the Supreme Court; or granting such incidental reliefs as law and
b. When the court a quo has so far justice may require.
departed from the accepted and usual
course of judicial proceedings, or so far The petition shall likewise be accompanied
sanctioned such departure by a lower by a certified true copy of the judgment,
court, as to call for an exercise of the order or resolution subject thereof, copies of
power of supervision. all pleadings and documents relevant and
pertinent thereto, and a sworn certification of
RULE 65 non-forum shopping as provided in the third
Certiorari, Prohibition and Mandamus paragraph of section 3, Rule 46.