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PROJECT PHOENIX 2016

Labor Laws and Social Legislations


Atty. Cecilio D. Duka, Ed.D.
Labor Standards Laws
Labor standards refers to the minimum requirements prescribed by existing laws, rules and regulations relating to
wages, hours of work, cost of living allowance and other monetary and welfare benefits, including occupational, safety and
health standards (BatongBuhay Gold Mines, Inc., vs. Dela Serna, et. al., G.R. No. 86963, August 6, 1999)They are
covered by Books I to IV of the Labor Code.
Labor Relations Law
Labor relations laws are the laws, rules and regulations which govern the relationship between employees and
their employers, promote the right of the employees to self-organization and collective bargaining, penalize unfair labor
practice, and provide modes for the settlement of labor disputes such as conciliation, mediation, grievance machinery,
voluntary arbitration and compulsory arbitration. They are covered by Books V VII of the Labor Code.
Social Legislations
Social legislationsare laws, rules, and regulations that promote welfare of all sectors of society.Social
Legislationincludes laws that provide particular kinds of protection or benefits to the society, in furtherance of social
justice. Not all social legislations are labor laws. Labor lawsdirectly affect employment they directly govern effects of
employment. All labor laws are social legislations. But not all social legislations are labor laws.
Construction in favor of labor
All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules
and regulations, shall be resolved in favor of labor.
The liberality of law in favor of the working man and woman still prevails and the official agency charged by law to
implement the constitutional guarantee of social justice should adopt a liberal attitude in favor of the employee in deciding
claims for compensability, especially in light of compassionate policy towards labor which the 1987 Constitution vivifies
and enhances. (Employees Compensation Commission vs. Court of Appeals, G.R. No. 121545, 14 November 1996, 264
SCRA 248)
Corporate Officers are not covered by the Labor Code
Section 25 of the Corporation Code plainly states that the corporate officers are the President, Secretary,
Treasurer and such other officers as may be provided for in the By-Laws.Whoever are the corporate officers enumerated
in the by-laws are the exclusive Officers of the corporation and the Board has no power to create other Offices without
amending first the corporate By-laws.(Matling Industrial Corporation vs. Coros, October 13, 2010)
POEA
Under Executive Order No. 797 (May 1, 1982) and Executive Order No. 247 (E.O. No. 247), the POEA was
established and mandated to assume the functions of the Overseas Employment Development Board (OEDB Art. 17),
the National Seamen Board (NSB Art. 20), and the overseas employment function of the Bureau of Employment
Services (BES Art. 15). [Trans Action Overseas Corporation, vs. Secretary of Labor, G.R. No. 109583, September 5,
1997]
Money Claims of OFW
We reiterate our finding in Serrano v. Gallant Maritime that limiting wages that should be recovered by an illegally
dismissed overseas worker to three months is both a violation of due process and the equal protection clauses of the
Constitution. (Sameer Overseas Placement vs. Cabiles, August 5, 2014)
Rates of OFW Remittance
Seamen and mariners 80% of the basic salary, Construction companies and their workers 70% of the basic
salary, Professional workers (e.g. doctors, nurses, engineers, teachers) whose employment contracts provide for free
board and lodging 70% of the basic salary, Professionals without free board and lodging 50% of the basic salary,
Domestic and other service workers 50% of the basic salary, all other workers 50% of the basic salary (Section 2, of
Executive Order 857)
License and authority

A license is a document issued by the Department of Labor and Employment (DOLE) authorizing a person or
entity to operate a private employment agency, while an authorityis a document issued by the DOLE authorizing a person
or association to engage in recruitment and placement activities as a private recruitment entity.
Illegal Recruitment
Illegal recruitment is committed when two elements concur, namely; (1) the offender has no valid license or authority
required by law to enable one to lawfully engage in recruitment and placement of workers; and (2) he undertakes either
any activity within the meaning of recruitment and placement defined under Article 13(b), or any of the prohibited
practices enumerated under Article 34 of the Labor Code. (People vs. Gutierrez, 422 SCRA 32)
Economic sabotage
Illegal recruitment when committed by a syndicate or in large scale shall be considered as offense involving
economic sabotage.
Illegal recruitment is deemed committed in large scale if committed against three or more persons individually or
as a group. In this case, five complainants testified against appellants acts of illegal recruitment, thereby rendering his
acts tantamount to economic sabotage.
Syndicated Illegal Recruitment
Illegal recruitment is deemed committed by a syndicate when carried out by a group of three (3) or more persons
conspiring or confederating with one another. (Section 6, Republic Act No. 8042)
Large Scale Illegal Recruitment
It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.
(Section 6, Republic Act No. 8042)
Illegal recruitment in large scale is committed when a person "(a) undertakes any recruitment activity defined
under Article 13 (b) or any prohibited practice enumerated under Article 34 of the Labor Code; (b) does not have a license
or authority to lawfully engage in the recruitment and placement of workers; and (c) commits the same against three or
more persons, individually or as a group.(People of the Philippines vs. Calonzo, G.R. Nos. 115150-55, September 27,
1996)
Penalties for Illegal Recruitment
The penalties for illegal recruitment today are the ones provided by Section 6, Republic Act No. 10022 which
amended Republic Act No. 8042 which provided for higher penalties on illegal recruitment than what are provided by
Article 39 of the Labor Code. Thus:
Simple illegal recruitment - imprisonment of 12 years and 1 day to 20 years and a fine of1 million to
2 million pesos.
Illegal recruitment deemed as economic sabotage- life imprisonment and a fine of2 million to 5
Million pesos.
The maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or
committed by a non-licensee or non-holder of authority
Consequences of Conviction for Illegal Recruitment
1.
2.
3.

automatic revocation of the license or authority (Art. 39[e]);


forfeiture of the cash and surety bonds (Art. 39[e]);
conviction for the crime of estafa, if found guilty therefor. (People of the Philippines vs. Calonzo, G.R. Nos.
115150-55, September 27, 1996)

Prescription of action for illegal recruitment


Illegal recruitment cases under this Act shall prescribe in five (5) years: Provided, however, That illegal recruitment
cases involving economic sabotage as defined herein shall prescribe in twenty (20) years. (Section 12, Republic Act
8042)
Doctrine of Imputed Knowledge

The theory of imputed knowledge ascribes the knowledge of the agent, to the principal, employer not
the other way around.The knowledge of the principal-foreign employer cannot, therefore, be imputed to its
agent.(Sunace International Management Inc. vs. NLRC, G.R. No. 161757, January 25, 2006)
Apprentice
An apprentice is a worker who is undergoing training for an approved apprenticeable occupation covered by a
written apprenticeship agreement with an individual employer.
Apprenticeable Occupation
An apprenticeable occupation means any trade, form of employment or occupation which requires more than
three (3) months of practical training on the job supplemented by related theoretical instruction.
Requirements for an apprentice
1. Must at least be 15 years old as Section 12 A of Republic Act No. 9231 prohibits the employment of minor
below 15 years old, except those employed in entertainment business where a necessary permit is issued by the
Department of Labor and Employment.
2. Must have the vocational aptitude and capacity for appropriate tests;
3. Must possess the ability to comprehend or follow oral and written instructions.
Features of Apprenticeship Training
1. The apprentice must be paid not less than 75% of the prescribed minimum salary
2. There must be approval from DOLE Secretary for an apprenticeship program (without such one shall be
deemed a regular employee)
3. The employer is not compelled to continue ones employment
4.One-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of
apprentices of the training cost is deducted from the employers income tax but it shall not exceed ten percent (10%) of
direct labor wage.
5. If the apprenticeship training is part of the school curriculum, a requirement for graduation, or board
examination, the employer may not pay any wage.
Working scholars
There is no employer-employee relationship between students on one hand, and schools, colleges or universities
on the other, where there is written agreement between them under which the former agree to work for the latter in
exchange for the privilege to study free of charge, provided the students are given real opportunities, including such
facilities as may be reasonable and necessary to finish their chosen courses under such agreement.(Section 14, Rule X,
Implementing Rules and Regulations of Book III, The Labor Code)
Learners
Learners refers to persons hired as trainees in semi-skilled and other industrial occupations which are nonapprenticeable. Learnership programs must be approved by the Technical Education and Skills Development Authority
based on the provisions of Republic Act No. 7796.
Features of Learnership
1. The duration of the learnership period, which shall not exceed three (3) months;
2. If the learnership of 3 months is completed, the employer can be compelled to continue with the services of the
learner as a regular employee
3. There is a commitment from the employer to employ the learners if they so desire, as regular employees upon
completion of the learnership
4. If the learner is dismissed from the service without just and valid cause and without due process after 2 months
of service, he will be deemed as regular employee
5. The wages or salary rates of the learners which shall begin at not less than seventy- five percent (75%) of the
applicable minimum wage; and
Disabled persons
Disabled persons are those suffering from restriction or different abilities, as result of a mental, physical or
sensory impairment, to perform an activity in the manner or within the range considered normal for a human being.
Supervisory Employees are deemed managerial employees in view of Article 82
Officers or members of a managerial staff if they perform the following duties and responsibilities:

(1) The primary duty consists of the performance of work directly related to management policies of their
employer; (2) Customarily and regularly exercise discretion and independent judgment; and (3) (i) Regularly and directly
assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in
which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical
lines requiring special training, experience, or knowledge; or (iii) execute, under general supervision, special assignments
and tasks; and (4) Who do not devote more than 20 percent of their hours worked in a work week to activities which are
not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above. (Rule I,
Section 2(c), Labor Code Implementing Rules and Regulation, Book III)
Bus Drivers and Conductors are not Field Personnel
The driver is under constant supervision while in the performance of this work. He cannot be considered field
personnel. (Auto Bus Transport Systems, Inc. vs. Bautista, G.R. No. 156367, May 16, 2005)
Hours worked
The following shall be considered as compensable hours worked:
(a) All time during which an employee is required to be on duty or to be at the employer's premises or to be at a
prescribed work place; and
(b) All time during which an employee is suffered or permitted to work. (Section 3, Rule I, Labor Code
Implementing Rules and Regulation, Book III)
Working while sleeping
Sleepingwhile on duty is compensable if the nature of the employees work allows sleeping without interrupting or
prejudicing work or when there is an agreement between the employee and his employer to that effect. For example, a
truck helper may sleep after performing his task and while his truck is traveling on its way to its assignment. But of course,
the same may not be done by the driver.
Working while on calliscompensable if the employee is required to remain on call in the employers premises or
so close thereto that he cannot use the time effectively and gainfully for his own purpose.
Rules on meal periods
Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable
working time.Thus, the eight-hour work period does not include the meal break. Nowhere in the law may it be inferred that
employees must take their meals within the company premises. Employees are not prohibited from going out of the
premises as long as they return to their posts on time. Private respondent's act, therefore, of going home to take his
dinner does not constitute abandonment.(Philippine Air Lines, Inc. vs. National Labor Relations Commission, G.R. No.
132805, February 2, 1999)
Night shift differential
Night shift differential is the amount which every employee is entitled to receive which is equivalent to ten percent
(10%) of his regular wage for every hour he has worked between 10 pm to 6 am. (Section 2 Rule II, Implementing Rules
and Regulation, Book III)
Those who are assigned to work on the so called graveyard shift are entitled to night shift differential pay.
Overtime pay
Overtime pay means the additional compensation for work performed beyond 8 hours.
Premium pay means the additional compensation required by law for work performed within 8 hours on nonworking days, such as rest days and special days.
Entitlement to overtime pay must be proven
Notwithstanding the foregoing discussion, petitioner failed to show his entitlement to overtime and rest day pay
due, to the lack of sufficient evidence as to the number of days and hours when he rendered overtime and rest day work.
Entitlement to overtime pay must first be established by proof that said overtime work was actually performed, before an
employee may avail of said benefit. To support his allegations, petitioner submitted in evidence minutes of meetings
wherein he was assigned to work on weekends and holidays at Citylands housing projects. Suffice it to say that said
minutes do not prove that petitioner actually worked on said dates. It is a basic rule in evidence that each party must
prove his affirmative allegations.(Lagatic vs. National Labor Relations Commission, G.R. No. 121004, January 28, 1998)
Overtime pay of seamen
The correct criterion in determining whether or not sailors are entitled to overtime pay is not, therefore, whether
they were on board and can not leave ship beyond the regular eight working hours a day, but whether they actually

rendered service in excess of said number of hours. (Emphasis supplied) (Legahi vs. National Labor Relations
Commission,G.R. No. 122240, November 18, 1999) attycdduka
To be entitled to two (2) days successive holidays:
1. One must be present on the day immediately preceding the first holiday; or
2. One is on leave with pay
Two Regular Holidays Falling on the Same Day
When Araw ng Kagitingan falls on the same day as Maundy Thursday or Good Friday, a covered employee is
entitled to at least two hundred percent (200%) of his/her basic wage even if said day is unworked. Where the employee
is required to work on that day, he/she is entitled to an additional 100% of the basic wage.(2012 Handbook on Workers
Statutory Monetary BenefitsDole Bureau of Working Conditions)
Monthly paid employees are not entitled to holiday pay
Monthly paid employees are not entitled to the holiday pay if their total annual income is divided by 365 days
resulting in a wage which is beyond the minimum wage per day because they are considered paid every day of the year
including holidays, rest days and other non-working days.
Requisites for the Enjoyment of Service Incentive Leave
1. A total of 5 days leave in one year with pay
2. The employee must have been in the service for at least 1 year whether broken or continuous
3. If unused the 5 days are paid their cash equivalent at the end of the year
4. It covers all employees except the general exceptions and establishments already giving sick leaves/vacation
leaves with pay for at least 5 days.
Service charge
If the establishments like hotel, motels, restaurants and the likes collect service charges and/or the customers
give tips for their services the following rules must be observed:
1. Services-charges or compensation for service rendered
2. Tips are for the recognition for satisfactory or efficient service
3. The service charges must be pooled
4. The amount collected is divided between the company (15%) and employees (85%)
5. It shall be given twice a month with intervals of not more than 15 days
6. If discontinued, removed, or stopped, the average, share of the employees of their service charge or tips shall
be integrated with their basic wage
Facilities are deductible from wages
Facilities are items of expense necessary for the laborer's and his family's existence and subsistence so that by
express provision of law they form part of the wage and when furnished by the employer are deductible therefrom, since if
they are not so furnished, the laborer would spend and pay for them just the same. They shall include all articles or
services for the benefit of the employee or his family but shall not include tools of the trade or articles or services, primarily
for the benefit of the employer or necessary to the conduct of the employers business. They form part of the wage and
deductible from the wage.(Mabeza vs. National Labor Relations Commission, G.R. No. 118506, April 18, 1997 (271 SCRA
670)
Supplements are not deductible from wages
Supplements constitute extra remuneration or special privileges or benefits given to or received by the laborers
over and above their ordinary earnings or wages. They are independent of the wage and not wage deductible. More
significantly, the food and lodging, or the electricity and water consumed by the petitioner were not facilities but
supplements. A benefit or privilege granted to an employee for the convenience of the employer is not a facility. (Mabeza
vs. National Labor Relations Commission, G.R. No. 118506, April 18, 1997)
A company practice favoring employees cannot be withheld unilaterally by the employer
A company practice favorable to the employees had indeed been established and the payments made pursuant
thereto, ripened into benefits enjoyed by them. And any benefit and supplement being enjoyed by the employees cannot
be reduced, diminished, discontinued or eliminated by the employer, by virtue of Sec. 10 of the Rules and Regulations
Implementing P.D. No. 851, and Art. 100 of the Labor Code of the Philippines which prohibit the diminution or elimination
by the employer of the employees existing benefits. (Sevilla Trading Co. vs. Semana, G.R. No. 152456, April 28, 2004)
Time of payment of wages

(a) Wages shall be paid not less than once every two (2) weeks or twice a month at intervals not exceeding
sixteen (16) days, unless payment cannot be made with such regularity due to force majeure or circumstances beyond the
employer's control in which case the employer shall pay the wages immediately after such force majeure or circumstances
have ceased. (b) In case of payment of wages by results involving work which cannot be finished in two (2) weeks,
payment shall be made at intervals not exceeding sixteen days in proportion to the amount of work completed. Final
settlement shall be made immediately upon completion of the work. (Section 3, Rule VIII, Implementing Rules and
Regulations of Book III of the Labor Code)
Job contracting
There is "job contracting" where (a) The contractor carries on a distinct and independent business and undertakes
the contract work on his account under his own responsibility according to his own manner and method, free from the
control and direction of his employer or principal in all matters connected with the performance of his work except as to
the results thereof; (b) The contractor has substantial capital or investment; and (c) The agreement between the principal
and the contractor or subcontractor assures the contractual employees' entitlement to all labor and occupational safety
and health standards, free exercise of the right to self-organization, security of tenure, and social welfare benefits.(Babas
vs. Lorenzo Shipping, December 15, 2010)
Department Order No. 18-A, November 14, 2011
Substantial capital refers to paid up capital stocks/shares of at least three million pesos (Php 3,000,000.00) in
the case of corporations, partnerships and cooperatives; in the case of single proprietorship, a net worth of at least three
million pesos (Php 3,000,000.00)
Elements of labor only contracting
Under the Labor Code, two (2) elements must exist for a finding of labor-only contracting: (a) the person supplying
workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work
premises, among others, and (b) the workers recruited and placed by such persons are performing activities directly
related to the principal business of such employer. (Filipinas Synthetic Fiber Corporation (FILSYN) vs. National Labor
Relations Commission, G.R. No. 113347, June 14, 1996)
College Professors are not independent contractors
This Court takes judicial notice that a university controls the work of the members of its faculty; that a university
prescribes the courses or subjects that professors teach, and when and where to teach; that the professors' work is
characterized by regularity and continuity for a fixed duration; that professors are compensated for their services by
wages and salaries, rather than by profits; that the professors and/or instructors cannot substitute others to do their work
without the consent of the university; and that the professors can be laid off if their work is found not satisfactory. All these
indicate that the university has control over their work; and professors are, therefore, employees and not independent
contractors. There are authorities in support of this view. (FEATI University vs. Hon. Jose Bautista, G.R. No. L21278, December 27, 1966)
Wage Distortion
The term "wage distortion", under the Rules Implementing Republic Act 6727, is defined, thus:
Wage Distortion means a situation where an increase in prescribed wage rates results in the elimination or severe
contradiction of intentional quantitative differences in wage or salary rates between and among employee groups in an
establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of
service, or other logical bases of differentiation. (Metropolitan Bank & Trust Company Employees Union-ALU TUCP, vs.
National Labor Relations Commission, G.R. No. 102636, September 10, 1993)
Wage Distortion is a non - strikable issue
The solution to the problem of wage distortions shall be sought by voluntary negotiation or arbitration, and not by
strikes, lockouts, or other concerted activities of the employees or management. "Any issue involving wage distortion shall
not be a ground for a strike/lockout. (IlawAtBuklod Ng Manggagawa (IBM) vs. National Labor Relations Commission, G.R.
No. 91980, June 27, 1991)
Appeal from the orders of DOLE Regional Director under Art 128
The order of the Regional Director shall be final and executory unless appealed to the Secretary of Labor and
Employment within ten (10) calendar days from receipt thereof.(Section 1, Rule IV, Rules on the Disposition of Labor
Standards Cases in the Regional Offices)
Jurisdiction of the DOLE Regional Director under Art. 129

Under Article 129, the Regional Director or any of the duly authorized hearing officers of DOLE has jurisdiction
over claims for recovery of wages, simple money claims and other benefits, provided that the claim is filed by an
employee or person employed in domestic or household service or househelper and the following must concur:
1. the claim must arise from employer-employee relationship;
2. the claimant is no longer employed and does not seek reinstatement;
3. the aggregate money claim of each employee does not exceed P5,000.00.
In the absence of any of the three (3) requisites, the Labor Arbiters have exclusive original jurisdiction over all
claims arising from employer-employee relations, other than claims for employee's compensation, social security,
medicare and maternity benefits. (Brokenshire Memorial Hospital, Inc., vs. Minister of Labor and Employment, et. al., G.R.
No. 74621, February 7, 1990)
Jurisdiction of DOLERegional Director if the amount exceeds P5000
But even if the amount of the claim exceeds P5,000.00, the claim is not on that account necessary removed from
the Regional Director's competence. In respect thereof, he may still exercise the visitorial and enforcement powers vested
in him by Article 128 of the Labor Code, as amended, supra; that is to say, he may still direct his labor regulations officers
or industrial safety engineers to inspect the employer's premises and examine his records. (Brokenshire Memorial
Hospital, Inc., vs. Minister of Labor and Employment, et. al., G.R. No. 74621, February 7, 1990)
Jurisdiction of DOLERegional Director if the employer contests the order
The adjudicatory power provided by Article 129 to the DOLE Regional Director may not be exercised by him
where the employer contests the labor regulation officers' findings and raises issues which cannot be resolved without
considering evidentiary matters not verifiable in the normal course of inspection. In such an event, the case will have to be
referred to the corresponding Labor Arbiter for adjudication, since it falls within the latter's exclusive original jurisdiction.
(Brokenshire Memorial Hospital, Inc., vs. Minister of Labor and Employment, et. al., G.R. No. 74621, February 7, 1990)
Batas Kasambahay - R.A. 10361
SEC. 37. Mechanism for Settlement of Disputes. All labor-related disputes shall be elevated to the DOLE
Regional Office having jurisdiction over the workplace without prejudice to the filing of a civil or criminal action in
appropriate cases. The DOLE Regional Office shall exhaust all conciliation and mediation efforts before a decision shall
be rendered.
Ordinary crimes or offenses committed under the Revised Penal Code and other special penal laws by either
party shall be filed with the regular courts.
Period to file the claims
All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be
filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. (Article 306,
Labor Code)
The Anti Sexual Harassment Law
Sexual harassment abounds in all sick societies. It is reprehensible enough but more so when inflicted by those
with moral ascendancy over their victims. We rule that it is a valid cause for separation from service. (Villarama vs.
National Labor Relations Commission, G.R. No. 106341, September 2, 1994 [Puno])
Mere casual buss on the cheek is not a sexual conduct or favor
We have reviewed carefully the records of this case and found no convincing evidence to sustain complainants
charges. What we perceive to have been committed by respondent judge are casual gestures of friendship and
camaraderie, nothing more, nothing less. In kissing complainant, we find no indication that respondent was motivated by
malice or lewd design. Evidently, she misunderstood his actuations and construed them as work-related sexual
harassment under R.A. 7877. (Atty. Susan M. Aquino vs. Hon. Ernesto D. Acosta, Presiding Judge, Court of Tax Appeals,
A. M. No. CTA-01-1, April 2, 2002)
Maternity Leave under Republic Act No. 8282 (SSS Law)
A female member who has paid at least three (3) monthly contributions in the twelve-month period
immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to
one hundred percent (100%) of her average daily salary credit for sixty (60) days or seventy-eight (78) days in case of
caesarean delivery.
Paternity Benefit (R.A. 8187)
This benefit shall apply to the first four deliveries or miscarriage of the employees lawful wife with whom he is
cohabiting. For this purpose, cohabiting refers to the obligation of the husband and wife to live together. Where the

spouses are not physically living together because of the work station or occupation, the male employee is still entitled to
the paternity leave benefit.
The leave shall be for seven (7) days, with full pay, consisting of basic salary and mandatory allowances fixed by
the Regional Wage Board, if any, provided that his pay shall not be less than the mandated minimum wage.
Availment of the paternity leave may be after the delivery, without prejudice to an employers policy of allowing the
employee to avail of the benefit before or during the delivery, provided that the total number of days shall not be more than
seven (7) days for each covered delivery. (Handbook on Workers Statutory Monetary Benefits, p.38)
A policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid
exercise of management prerogative
Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential
programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive
pharmaceutical industry.
The prohibition against personal or marital relationships with employees of competitor companies upon Glaxos
employees is reasonable under the circumstances because relationships of that nature might compromise the interests of
the company. In laying down the assailed company policy, Glaxo only aims to protect its interests against the possibility
that a competitor company will gain access to its secrets and procedures. (Duncan Association of Detailman-PTGWO vs.
Glaxo Wellcome Philippines, Inc., G.R. No. 162994, September 17, 2004)
Republic Act 9710 Magna Carta of Women
Expulsion and non-readmission of women faculty, due to pregnancy outside of marriage shall be outlawed.
No school shall turn out or refuse admission to a female student, solely on the account of her having contracted
pregnancy outside of marriage during her term in school. [Section 13 (c)]
A woman employee having rendered continuous aggregate employment service of at least six (6) months for the
last twelve (12) months shall be entitled to a special leave benefit of two (2) months with full pay based on her gross
monthly compensation following surgery caused by gynecological disorders. (Section 18)
Republic Act No. 10028 Promotion of Breastfeeding
It is hereby mandated that all health and non-health facilities, establishments or institutions shall establish lactation
stations. The lactation stations shall be adequately provided with the necessary equipment and facilities.The lactation
station shall not be located in the toilet.
Employment of Children
Children below fifteen (15) years of age shall not be employed except when a child works directly under the sole
responsibility of his/her parents or legal guardian and where only members of his/her family are employed provided that
his/her employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development,
providedfurther that the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary
education. For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age.
(Section 2, Republic Act No. 9231)
Hours of Work of a Working Child
(1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week
provided that the work shall not be more than four (4) hours at any given day;(2) A child fifteen (15) years of age but below
eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a
week;(3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six
o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed
to work between ten o'clock in the evening and six o'clock in the morning of the following day. (Section 3, Republic Act No.
9231)
Republic Act No. 10361 Batas Kasambahay
January 18, 2013. All articles or provisions of Chapter III of Presidential Decree No. 442, as amended and
renumbered by Republic Act No. 10151 are hereby expressly repealed. (Sec. 44). This law governs the working conditions
of all kasambahay.
The term "house helper" as used herein is synonymous to the term "domestic servant" and shall refer to any
person, whether male or female, who renders services in and about the employer's home and which services are usually
necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and
enjoyment of the employer's family. (Section 1, Rule XIII, Implementing Rules and Regulation of Book III, of the Labor
Code)

While ahomeworkeris one who performs in or about his home any processing of goods or materials, in whole or
in part which have been furnished directly or indirectly by an employer and thereafter to be returned to the latter.
Republic Act No. 10151 the night workers law
It repealed Articles 130 and 131 of the Labor Code The new provisions in the Labor Code covering Articles 154 to 161
are brought about by Republic Act No. 10151 which was approved on June 21, 2011.
This law also repealed Articles 130 and 131 of the Labor Code and abolished the provisions of law which prohibits night
work for women.
Coverage of Night Work
This chapter shall apply to all persons, who shall be employed or permitted or suffered to work at night except
those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less
than seven (7) consecutive hours, including the interval from midnight to five oclock in the morning.
Health Assessment (Article 155)
At their request, workers shall have the right to undergo a health assessment without charge and to receive
advice on how to reduce or avoid health problems associated with their work:
(a) Before taking up an assignment as a night worker;
(b) At regular intervals during such an assignment; and
(c) If they experience health problems during such an assignment which are not caused by factors other than the
performance of night work.
Labor Relations Law
Labor relations laws are the laws, rules and regulations which govern the relationship between employees and
their employers, promote the right of the employees to self-organization and collective bargaining, penalize unfair labor
practice, and provide modes for the settlement of labor disputes such as conciliation, mediation, grievance machinery,
voluntary arbitration and compulsory arbitration. They are covered by Books V VII of the Labor Code.
Composition of the NLRC based on R. A. 9347
The National Labor Relations Commission shall be composed of eight (8) divisions with three members which
shall be chosen only from among the nominees of the workers and employers organizations, respectively.
The Chairman and the seven (7) members shall come from the public sector, with the latter to be chosen
preferably from among the incumbent labor arbiters.
The Commission may sit en banc or in eight (8) divisions, each composed of three (3)members.
The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing
and disposition of cases before any of its divisions and regional branches and formulating policies affecting its
administration and operations.
Of the eight (8) divisions, the first, second, third, fourth, fifth and sixth divisions shall handle cases coming from
the National Capital Regionand other parts of Luzon, the seventh and eighth divisions, cases from Visayas and Mindanao,
respectively
The divisions of the Commission shall have exclusive appellate jurisdiction over cases within their respective
territorial jurisdiction.
Appointees to NLRC not subject to confirmation of the Commission on Appointments
Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function.
The Court respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of
RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments
over appointments of the Chairman and Member of the National Labor Relations Commission (NLRC) is, as we see it,
beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof. (Calderon vs.
Carale, G.R. No. 91636, April 23, 1992)
Jurisdiction of the Labor Arbiters
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay,
hours of work and other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;
5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes
and lockouts; and

6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims
arising from employer-employee relations, including those of persons in domestic or household service, involving an
amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.
(Except those of the kasambahay, Section 37, RA 10361)
7. Cases arising from the interpretation or implementation of collective bargaining agreements and those arising
from the interpretation or enforcement of company personnel policies
JurisdictionoverOverseas Filipino Workers
The Labor Arbiter has original and exclusive jurisdiction over claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino workers for overseas employment including claims for
actual, moral, exemplary and other forms of damages.
Venue
The venue is the Regional Arbitration Branch where the complainant resides or where the principal office of the
respondent(s) employer is situated, at the option of the complainant (Sec. 1[e], The 2005 Revised Rules of Procedure of
the National Labor Relations Commission)
Money Claims of OFWs
100% reimbursement of placement fees plus 12% interest per annum plus the salaries for the unexpired portion of
the contract. (Sameer Overseas Placement Agency vs. Cabiles, Aug. 5, 2014,Serrano vs. Gallant Maritime Services, Inc.,
March 24, 2009)
Jurisdiction of the BLR
1. Inter-union disputes or representation disputes which refer to cases involving petition for certification
election filed by a duly registered labor organization which is seeking to be recognized as the sole and exclusive
bargaining agent of the rank-and-file employees in the appropriate bargaining unit of a company, firm or establishment.
2. Intra-union disputes or internal union disputes which refer to disputes or grievances arising from any
violation of or disagreement over any provision of the constitution and by-laws of the union, including any violation of the
rights and conditions of union membership provided for in the Labor Code.
The NCMB
The Conciliation, mediation and voluntary arbitration functions of the Bureau of Labor Relations (BLR) shall be
absorbed by NCMB. It is an attached agency under the administrative supervision of the Secretary of Labor and
Employment. It is headed by an Administrator and 2 Deputy Administrators. The NCMB has jurisdiction over conciliation,
mediation and voluntary arbitration cases.
Personality of Labor Union not subject to collateral attack
We rule, however, that such legal personality may not be subject to a collateral attack but only through a separate
action instituted particularly for the purpose of assailing it. This is categorically prescribed by Section 5, Rule V of the
Implementing Rules of Book V. (Laguna Autoparts Manufacturing Corporation vs. Office of the Secretary, Department of
Labor and Employment G.R. No. 157146. April 29, 2005)
Once a labor union attains the status of a legitimate labor organization, it continues as such until its certificate of
registration is cancelled or revoked in an independent action for cancellation. In addition, the legal personality of a labor
organization cannot be collaterally attacked. (Coastal Subic Bay Terminal Inc. vs. Department of Labor and Employment
Office of the Secretary, G.R. No. 157117, November 20, 2006)
Republic Act No. 10396
"ART. 228. Mandatory Conciliation and Endorsement of Cases.
(a) Except as provided in Title VII-A, Book V of this Code, as amended, or as may be excepted by the Secretary
of Labor and Employment, all issues arising from labor and employment shall be subject to mandatory conciliationmediation. The labor arbiter or the appropriate DOLE agency or office that has jurisdiction over the dispute shall entertain
only endorsed or referred cases by the duly authorized officer.
"(b) Any or both parties involved in the dispute may pre-terminate the conciliation-mediation proceedings and
request referral or endorsement to the appropriate DOLE agency or office which has jurisdiction over the dispute, or if
both parties so agree, refer the unresolved issues to voluntary arbitration."
Grounds for cancellation of union registration
(a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution
and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election
of officers, and the list of voters;

10

(c) Voluntary dissolution by the members (Republic Act No. 9481, May 25, 2007)
Republic Act No. 9481which lapsed into law on May 25, 2007 has effectively reduced to just three (3) the grounds
for the cancellation of registration of a legitimate labor organization. Under the old provisions of Article 239, there were ten
grounds for the cancellation of union registration.
Mixture of employees in one union is not a ground for cancellation of its registration
Clearly then, for the purpose of de-certifying a union, it is not enough to establish that the rank-and-file union
includes ineligible employees in its membership. Pursuant to Article 239 (a) and (c) of the Labor Code, it must be shown
that there was misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution
and by-laws or amendments thereto, the minutes of ratification, or in connection with the election of officers, minutes of
the election of officers, the list of voters, or failure to submit these documents together with the list of the newly electedappointed officers and their postal addresses to the BLR. (Air Philippines Corporation vs. Bureau of Labor Relations, G.R.
No. 155395 June 22, 2006)
Requisites for the validity of the special assessment
1) authorization by a written resolution of the majority of all the members at the general membership meeting
called for the purpose;
2) secretary's record of the minutes of the meeting; and
3) individual written authorization for check off duly signed by the employees concerned. (Gabriel vs. Secretary of
Labor and Employment, G.R. No. 115949 March 16, 2000).
Employees who do not have the right to self-organization
The following are the groups of people whose right to self-organization is restricted by the labor laws: high ranking
government employees, employees of international organizations enjoying immunity form suits, managerial employees,
members of the AFP, PNP, firemen, jail guards, confidential employees and employees of the cooperative who are
members of that same cooperative.
Security Guards Right to Self Organization
The security guards and other personnel employed by the security service contractor shall have the right to form,
join or assist in the formation of a labor organization of their own choosing for purposes of collective bargaining and to
engage in concerted activities which are not contrary to law including the right to strike. (Section 10, Department Order N0.
14 Series of 2001, December 18, 2001)
Government employees do not have the right to strike
The Court can concede hypothetically that the protest rally and gathering in question did not involve some specific
material demand. But then the absence of such economic-related demand, even if true, did not, under the premises, make
such mass action less of a prohibited concerted activity. For, as articulated earlier, any collective activity undertaken by
government employees with the intent of effecting work stoppage or service disruption in order to realize their demands or
force concessions, economic or otherwise,is a prohibited concerted mass action and doubtless actionable
administratively. xxx[i]n the absence of statute, public employees do not have the right to engage in concerted work
stoppages for any purpose (Government Service Insurance System vs. Kapisanan ng mgaManggagawasa GSIS, G.R.
No. 170132, December 6, 2006)
Unfair labor practice
Unfair labor practice refers to acts that violate the workers right to organize. The prohibited acts are related to the
workers right to self-organization and to the observance of a Collective Bargaining Agreement. Without that element, the
acts, no matter how unfair, are not unfair labor practices. (Philcom Employees Union vs. Philippine Global
Communications, G.R. No. 144315, July 17, 2006)
Dismissal due to union security clause
It has been the jurisprudential rule for quite sometime that the employer is not considered guilty of unfair labor
practice if it merely complied in good faith with the request of the certified union for the dismissal of employees expelled
from the union pursuant to the union security clause in the CBA (Soriano v. Atienza, G.R. No. 68619, March 16, 1989, 171
SCRA 284,289-290). Hence, the company may not be ordered to grant either backwages or financial assistance in the
form of separation pay as a form of penalty. Thus, where reinstatement is adjudged, the award of backwages and other
benefits continues beyond the date of the Labor Arbiters decision ordering reinstatement and extends up to the time said
order of reinstatement is actually carried out. (Olvido, et. al. vs. Court of Appeals, G. R. Nos. 141166 67, October 15,
2007)
Union Security Clause

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Union Security Clause - is a stipulation contained in the Collective Bargaining Agreement whereby the employer
undertakes to recognize the right of the union who negotiated the CBA to maintain and protect its membership by
imposing certain terms and conditions in hiring employees and retention of employment.
Common Types of Union Security Clauses
Closed shop, Union shop, Maintenance of membership clause, agency shop, preferential shop agreement.
Jurisdictional preconditions in bargaining
(1)Possession of the status of majority representation by the employees' representative in accordance with any of
the means of selection and/or designation provided for by the Labor Code; (2) proof of majority representation; and (3) a
demand to bargain under Article 251, paragraph (a), of the New Labor Code. (Associated Labor Unions (ALU) vs. Ferrer
Calleja, G.R. No. L-77282, May 5, 1989)
Boulwarism
In negotiation, Boulwarism is an offer or counter-offer that is not meant to be negotiated. This is a "take it or
leave it" strategy named after LemuelBoulware a former vice president of General Electric.
Contract Bar Rule
When there is an existing CBA, neither the employer nor the union may terminate nor modify the Collective
Bargaining Agreement during its lifetime. The parties are mandated by law to keep the status quo and to continue with full
force and effect the terms and conditions of the existing CBA. This is known as the contract bar rule the existence of the
CBA (a contract between the employer and the union) bars the modification or termination of the CBA except during the
freedom period.
Freedom Period
The freedom period refers to the sixty (60) days span prior to the expiration of the CBA. It is the time when the
parties may terminate or modify the terms and conditions of the CBA.
Automatic Renewal Clause
Article 264 provides that the CBA shall remain effective and enforceable even after the expiration of the period
fixed by the parties as long as no new agreement is reached by them and no petition for certification election is filed.
Lifetime of the CBA
The representation issueor the status of the union who entered into the Collective Bargaining Agreement has a
lifetime of five (5) years from the time of its effectivity. While the other provisions (economic) shall be effective for a period
of three (3) years from its execution.
CBA extended to ten years - valid
We also do not agree that the agreement violates the five-year representation limit mandated by Article 265.
Under said article, the representation limit for the exclusive bargaining agent applies only when there is an extant CBA in
full force and effect. In the instant case, the parties agreed to suspend the CBA and put in abeyance the limit on the
representation period. In sum, we are of the view that the PAL-PALEA agreement dated September 27, 1998, is a valid
exercise of the freedom to contract. Under the principle of inviolability of contracts guaranteed by the Constitution, the
contract must be upheld. (Rivera, et. al. vs. Espiritu, G.R. No. 135547, January 23, 2002)
The Exclusive Bargaining Status Cannot Go Beyond Five Years
In the event however, that the parties, by mutual agreement, enter into a renegotiated contract with a term of three
(3) years or one which does not coincide with the said five-year term and said agreement is ratified by majority of the
members in the bargaining unit, the subject contract is valid and legal and therefore, binds the contracting parties . The
same will however not adversely affect the right of another union to challenge the majority status of the incumbent
bargaining agent within sixty (60) days before the lapse of the original five (5) year term of the CBA. (FVC Labor UnionPhilippine Transport and General Workers Organization vs. Sama-SamangNagkakaisangManggagawa Sa FVC-Solidarity
Of Independent and General Labor Organizations, G.R. No. 176249, November 27, 2009)
Substitutionary doctrine
Stated otherwise, the "substitutionary" doctrine only provides that the employees cannot revoke the validly
executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent.
And it is in the light of this that the phrase "said new agent would have to respect said contract" must be understood. It
only means that the employees, thru their new bargaining agent, cannot renege on their collective bargaining contract,
except of course to negotiate with management for the shortening thereof.

12

Bargaining Unit
A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of the entire body
of employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal rights and
duties of the parties under the collective bargaining provisions of the law. (International School Alliance of Educators vs.
Quisumbing, G.R. No. 128845, June 1, 2000)
Test in determining the appropriate bargaining unit
In order to determine the appropriate bargaining unit the Supreme Court has time and again applied the four tests
to wit:
(1) will of the employees (Globe Doctrine);
(2) affinity and unit of employees interest, such as substantial similarity of work and duties, or similarity of
compensation and working conditions;
(3) prior collective bargaining history; and
(4) employment status, such as temporary, seasonal and probationary employees. (University of the Philippines
vs. Hon. Pura Ferrer-Calleja, G.R. No. 96189 July 14, 1992)
Certification election
Certification election refers to the process of determining through secret ballot the sole and exclusive
representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A
certification election is ordered by the Department of Labor and Employment (Department Order 40 03, Rule I, Section 1
[h])
Members of religious groups who do not want to join unions may vote in a certification election
That the INC employees, as employees in the same bargaining unit in the true sense of the term, do have the
right of self-organization, is also in truth beyond question, as well as the fact that when they voted that the employees in
their bargaining unit should be represented by "NO UNION," they were simply exercising that right of self-organization,
albeit in its negative aspect. No law, administrative rule or precedent prescribes forfeiture of the right to vote by reason of
neglect to exercise the right in past certification elections. In denying the petitioners' right to vote upon these egregiously
fallacious grounds, the public respondents exercised their discretion whimsically, capriciously and oppressively and
gravely abused the same. (Reyes vs. Trajano, G.R. No. 84433, June 2, 1992)
Deadlock bar rule
The Deadlock Bar Rule simply provides that a petition for certification election can only be entertained if there is
no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of
strike or lockout. The principal purpose is to ensure stability in the relationship of the workers and the management
(National Congress of Unions in the Sugar Industry of the Philippines (NACUSIP) TUCP vs. Trajano, G.R. No. L-67485,
April 10, 1992)
One year bar rule / Election year bar
A certification election cannot be held within one (1) year from the date of issuance of declaration of a final
certification election result. The one year bar rule also applies in cases of consent election, run off election and voluntary
recognition. (R. Transport Corporation vs. Laguesma, G.R. No. 106830, November 16, 1993)
Negotiation Bar Rule
Once the negotiation for a new CBA has been commenced pursuant to Article 250, a petition for certification
election may no longer be validly entertained by the Department of Labor and Employment.
Appeal bar rule
The filing of the memorandum of appeal from the order or decision of the Med-Arbiter stays the holding of any
certification election (Department Order No. 40 03, Rule VIII, Section 21)
Run Off election
Run-off Election refers to an election between the labor unions receiving the two (2) highest number of votes in a
certification or consent election with three (3) or more choices, where such a certified or consent results in none of the
three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all
contending unions is at least fifty percent (50%) of the number of votes cast. (Section 1(ss), Rule I, Department Order 40
03)
Voluntary Recognition

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Voluntary Recognition refers to the process by which a legitimate labor union is recognized by the employer as
the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office in accordance with
Rule VII, Section 2, Department Order 40 03 (Department Order 40 03, Rule I, Section 1 [bbb])
Grievance
Grievancerefers to any question by either the employer or the union regarding the interpretation or implementation
of any provision of the collective bargaining agreement or interpretation or enforcement of company personnel policies.
(Department Order No. 40 03, Rule I, Section 1[u])
Voluntary arbitration
Voluntary arbitration refers to the mode of settling labor-management disputes by which the parties select a
competent, trained and impartial third person who shall decide on the merits of the case and whose decision is final and
executory. (NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings, Section 1 [d], Rule
II [Oct. 15, 2004])
Gross Violations of Collective Bargaining Agreement is ULP
Gross violations of Collective Bargaining Agreement under Article 261 means flagrant and/or malicious refusal to
comply with the economic provisions of such agreement. Such gross violations do not fall within the jurisdiction of the
Voluntary Arbitrator or panel of Voluntary Arbitrators because they are considered as unfair labor practice (ULP) under
Article 248 thus, cognizable by the Labor Arbiter and the NLRC. (Isalama Machine Works Corporation vs. National Labor
Relations Commission, G.R. No. 100167, March 2, 1995)
Appeals from the Decisions of Voluntary Arbitrator or Panel of Voluntary Arbitrators Court of Appeals
The decisions of a voluntary arbitrator fall within the exclusive appellate jurisdiction of the Court of Appeals.
Indeed, this Court took this decision into consideration in approving the 1997 Rules of Civil Procedure.(Nippon Paint
Employees Union Olalia vs. Court of Appeals, G.R. No. 159010. November 19, 2004)
Strike
Strikeis any temporary stoppage of work by the concerted action of the employees as a result of industrial or labor
dispute. A labor dispute includes any controversy or matter concerning terms or conditions of employment or the
association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and
conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and the
employee. (Bukluran ng ManggagawasaClothman Knitting Corp. Solidarity Unions of the Philippines for Empowerment
and Reform vs. Court of Appeals, G.R. No. 158158, January 17, 2005)
The requisites of a valid strike are mandatory
The requisites for a valid strike are as follows: (a) a notice of strike filed with the DOLE thirty days before the
intended date thereof or fifteen days in case of unfair labor practice; (b) strike vote approved by a majority of the total
union membership in the bargaining unit concerned obtained by secret ballot in a meeting called for that purpose; (c)
notice given to the DOLE of the results of the voting at least seven days before the intended strike. These requirements
are mandatory and failure of a union to comply therewith renders the strike illegal (Piero vs. National Labor Relations
Commission, August 20, 2004)
We explained in National Federation of Labor vs. NLRC (G.R. No. 113466, December 15, 1997, 283 SCRA 275,
287-288)that with the enactment of Republic Act No. 6715 which took effect on March 21, 1989, the rule now is that such
requirements as the filing of a notice of strike, strike vote, and notice given to the Department of Labor are mandatory in
nature. Thus, even if the union acted in good faith in the belief that the company was committing an unfair labor practice,
if no notice of strike and a strike vote were conducted, the said strike is illegal. (SamahangManggagawasaSulpicio
Lines, Inc. NAFLU vs. Sulpicio Lines, Inc. G.R. No. 140992, March 25, 2004)
Assumption of jurisdiction is discretionary
The powers granted to the Secretary under Article 263(g) of the Labor Code have been characterized as an
exercise of the police power of the State, with the aim of promoting public good. When the Secretary exercises these
powers, he is granted great breadth of discretion in order to find a solution to a labor dispute. The most obvious of these
powers is the automatic enjoining of an impending strike or lockout or its lifting if one has already taken place. The
authority of the Secretary to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an
industry indispensable to national interest includes and extends to all questions and controversies arising from such labor
dispute. The power is plenary and discretionary in nature to enable him to effectively and efficiently dispose of the
dispute.(Philcom Employees Union vs. Philippine Global communications, G.R. No. 144315, July 17, 2006 [495 SCRA
214[) attycdduka

14

Strike in violation of arbitration illegal


This Court has held that strikes staged in violation of agreements providing for arbitration are illegal, since these
agreements must be strictly adhered to and respected if their ends are to be achieved. The rationale of the prohibition
under Article 264 is that once jurisdiction over the labor dispute has been properly acquired by competent authority, that
jurisdiction should not be interfered with by the application of the coercive processes of a strike. Indeed it is among the
chief policies of the State to promote and emphasize the primacy of free collective bargaining and negotiations, including
voluntary arbitration, mediation, and conciliation, as modes of settling labor, or industrial disputes. In Alliance of
Government Workers v. Minister of Labor, Chief Justice Fernando declared that the principle behind labor unionism in
private industry is that industrial peace cannot be secured through compulsion by law. Relations between private
employers and their employees rest on an essentially voluntary basis, subject to the minimum requirements of wage laws
and other labor and welfare legislation.(Sukhothai Cuisine and Restaurant vs. Court of Appeals, G.R. No. 150437, Ju ly
1 7, 20 06 )
Mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his
employment, even if a replacement had been hired by the employer during such lawful strike.
In SamahangManggagawasaSulpicio Lines, Inc.-NAFLU v. Sulpicio Lines, Inc. this Court explained that the
effects of such illegal strikes, outlined in Article 264, make a distinction between workers and union officers who
participate therein: an ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must
be proof that he or she committed illegal acts during a strike. In all cases, the striker must be identified. But proof beyond
reasonable doubt is not required. Substantial evidence available under the attendant circumstances, which may justify
the imposition of the penalty of dismissal, may suffice. Liability for prohibited acts is to be determined on an individual
basis. ( Sukhothai Cuisine and Restaurant vs. Court of Appeals, G.R. No. 150437, Ju ly 1 7, 2 00 6 )
Elements of employer employee relationship
The elements to determine the existence of an employment relationship are: (a) the selection and engagement of the
employee (b) the payment of wages (c) the power of dismissal, and (d) the employers power to control. The most important
element is the employers control of the employees conduct, not only as to the result of the work to be done, but also as to the
means and methods to accomplish it. (Murillo vs. Court of Appeals and Associated Broadcasting Corporation, et. el., G.R.
No. 164652, June 8, 2007)
Full backwages
Finally came our ruling in Bustamante which superseded Pines City Educational Center and allowed full recovery
of backwages without deduction and without qualification pursuant to the express provisions of Article 279 (now Art 294)
of the Labor Code, as amended by Rep. Act No. 6715, i.e., without any deduction of income the employee may have
derived from employment elsewhere from the date of his dismissal up to his reinstatement, that is, covering the entirety of
the period of the dismissal.(Equitable Banking Corporation vs. Sadac, G.R. No. 164772, June 8, 2006)
Salary increase not included in the computation of backwages
There was no lawful decree or order supporting his claim, such that his salary increases can be made a
component in the computation of backwages. What is evident is that salary increases are a mere expectancy. They are,
by its nature volatile and are dependent on numerous variables, including the companys fiscal situation and even the
employees future performance on the job, or the employees continued stay in a position subject to management
prerogative to transfer him to another position where his services are needed. In short, there is no vested right to salary
increases. That respondent Sadac may have received salary increases in the past only proves fact of receipt but does not
establish a degree of assuredness that is inherent in backwages. From the foregoing, the plain conclusion is that
respondent Sadacs computation of his full backwages which includes his prospective salary increases cannot be
permitted.(Equitable Banking Corporation vs. Sadac, G.R. No. 164772, June 8, 2006)
Separation pay in lieu of reinstatement
Under the law, an illegally dismissed employee is entitled to reinstatement and backwages, and if reinstatement is
no longer possible, he may be given separation pay in lieu of reinstatement. (Bunagan vs. Sentinel Watchman &
Protective Agency, Inc., G.R. No. 144376, September 13, 2006)attycdduka
Repeated rehiring of project employee
At this time, we wish to allay any fears that this decision unduly burdens an employer by imposing a duty to re-hire
a project employee even after completion of the project for which he was hired. The import of this decision is not to
impose a positive and sweeping obligation upon the employer to re-hire project employees. What this decision merely
accomplishes is a judicial recognition of the employment status of a project or work pool employee in accordance with
what is fait accompli, i.e., the continuous re-hiring by the employer of project or work pool employees who perform tasks

15

necessary or desirable to the employers usual business or trade. (Maraguinot, Jr. vs. National Labor Relations
Commission, G.R. No. 120969, January 22, 1998)
Double probationary period - illegal
The Hotel's system of double probation a transparent scheme to circumvent the plain mandate of the law and
make it easier for it to dismiss its employees even after they shall have already passed probation. The policy of the
Constitution is to give the utmost protection to the working class when subjected to such maneuvers as the one attempted
by the petitioners. This Court is fully committed to that policy and has always been quick to rise in defense of the rights of
labor, as in this case. (Holiday Inn Manila vs. National Labor Relations Commission, G.R. No. 109114, September 14,
1993)
Probationary Period of Private School Teachers
Section 93 of the 1992 Manual of Regulations for Private Schools, provides that full-time teachers who have
satisfactorily completed their probationary period shall be considered regular or permanent. Furthermore, the probationary
period shall not be more than six consecutive regular semesters of satisfactory service for those in the tertiary level. Thus,
the following requisites must concur before a private school teacher acquires permanent status: (1) the teacher is a fulltime teacher; (2) the teacher must have rendered three consecutive years of service; and (3) such service must have
been satisfactory. (Saint Marys University vs. Court of Appeals, G.R. No. 157788, March 08, 2005)
Distinction between a dismissal just cause and a dismissal for authorized cause
The clear-cut distinction between a dismissal for just cause under Article 282 and a dismissal for authorized cause
under Article 283 is further reinforced by the fact that in the first, payment of separation pay, as a rule, is not required,
while in the second, the law requires payment of separation pay. (Jaka Food Processing Corporation vs. Pacot, et. al.,
G.R. No. 151378, March 28, 2005)
Serious Misconduct
In order to constitute serious misconduct which will warrant the dismissal of an employee under paragraph (a) of
Article 282 (now Art. 297) of the Labor Code, it is not sufficient that the act or conduct complained of has violated some
established rules or policies. It is equally important and required that the act or conduct must have been performed with
wrongful intent. (Moreno vs. San Sebastian College Recoletos, Manila, G.R. No. 175283, March 28, 2008)
Willful disobedience
However, willful disobedience of the employers lawful orders, as a just cause for dismissal of an employee,
envisages the concurrence of at least two requisites: (1) the employee's assailed conduct must have been willful, that is,
characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made
known to the employee and must pertain to the duties which he had been engaged to discharge. (Bascon vs. Court of
Appeals, G.R. No. 144899, February 5, 2004)
Abandonment
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of
neglect of duty, hence, a just cause for termination of employment by the employer. For a valid finding of abandonment,
these two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and
(2) a clear intention to sever employer-employee relationship, with the second as the more determinative factor which is
manifested by overt acts from which it may be deduced that the employees has no more intention to work. The intent to
discontinue the employment must be shown by clear proof that it was deliberate and unjustified. (Agabon vs. National
Labor Relations Commission, G.R. No. 158693 November 17, 2004)
Requisites for dismissal due to loss of trust and confidence
Thus, in order to be a valid cause for dismissal, loss of confidence should not be (a) simulated, (b) used as a
subterfuge for causes which are improper, illegal or unjustified, (c) arbitrarily asserted in the face of overwhelming
evidence to the contrary, and (d) a mere afterthought to justify earlier action taken in bad faith. While in the termination of
services of managerial employees for loss of confidence, employers are given wider latitude of discretion, there must,
however, be substantial proof thereof. The employers evidence must clearly and convincingly establish the facts and
incidents upon which the loss of confidence may fairly be made to rest.(Wah Yuen Restaurant, vs. Jayona, G.R. No.
159448, December 16, 2005)
Twin notice requirement
Procedural due process requires the employer to give the employee two notices. The first is to apprise him of the
particular acts or omissions for which his dismissal is sought, and the second is to inform him of the decision to terminate
him.Failure to comply with these mandatory procedural requirements taints the dismissal with illegality and any judgment

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rendered by the employer without compliance therewith can be considered void and inexistent. It should be emphasized
that due process must be observed in effecting an employees dismissal because the dismissal of an employee affects not
only his position but also his means of livelihood and his dependents sustenance. Thus, strict adherence to the
requirements set forth in the Labor Code, as amended, is essential. (Wah Yuen Restaurant, vs. Jayona, G.R. No. 159448,
December 16, 2005)
Suspension beyond 30 days constructive dismissal
Clearly, constructive dismissal had already set in when the suspension went beyond the maximum period allowed
by law. Section 4, Rule XIV, Book V of the Omnibus Rules provides that preventive suspension cannot be more than the
maximum period of 30 days. Hence, after the 30-day period of suspension, the employee must be reinstated to his former
position because suspension beyond this maximum period amounts to constructive dismissal. (Hyatt Taxi Services Inc.
vs. Catinoy, G.R. No. 143204, June 26, 2001)
If dismissal is too harsh suspension can be imposed
We cannot but agree that the extreme penalty of dismissal was too harsh and manifestly disproportionate to the
infraction committed, which appears to have been fully explained, and, in fact, to be not inexcusable under the
circumstances. There was no dishonesty, no demonstration of such moral perverseness as would have justified the
claimed loss of confidence attendant to the job. Perhaps, individual petitioner should first have been given a mere
warning, then a reprimand or even a suspension, but certainly not outright dismissal from employment. One must keep in
mind that a workers employment is property in the constitutional sense, and he cannot be deprived thereof without due
process and unless it was commensurate to his acts and degree of moral depravity. (Coca-Cola Bottlers, Phils., Inc. vs.
Kapisanan ng MalayangManggagawasa Coca- Cola - FFW, G.R. No. 148205, February 28, 2005)
Valid termination due to retrenchment
For a valid termination due to retrenchment, the law requires that written notices of the intended retrenchment be
served by the employer on the worker and on the Department of Labor and Employment at least one (1) month before the
actual date of the retrenchment. The purpose of this requirement is to give employees some time to prepare for the
eventual loss of their jobs, as well as to give DOLE the opportunity to ascertain the verity of the alleged cause of
termination. (EMCO Plywood Corporation vs. Abelgas et. al., G.R. No. 148532, April 14, 2004)
Amount of separation pay
As to the amount of separation pay, this Court has ruled that separation pay may be computed at one (1) month
pay, or one (1/2) month pay for every year of service, whichever is higher. It is noteworthy that the separation pay being
awarded in the instant case is due to illegal dismissal; hence, it is different from the amount of separation pay provided for
in Article 283 in case of retrenchment to prevent losses or in case of closure or cessation of the employers business, in
either of which the separation pay is equivalent to at least one (1) month or one-half (1/2) month pay for every year of
service, whichever is higher. (F.F. Marine Corporation vs. The Honorable Second Division National Labor Relations
Commission, G.R. No. 152039, April 08, 2005)
Disease as a ground for dismissal
The burden of proving the validity of the dismissal rests on the employer. As such, the employer must prove that
the requisites for a valid dismissal due to a disease have been complied with. In the absence of the required certification
by a competent public health authority, this Court has ruled against the validity of the employees dismissal. (Manly
Express Inc. vs. Payong, Jr., G.R. No. 167462, October 25, 2005)
No separation pay upon resignation general rule
The general rule is that an employee who voluntarily resigns from employment is not entitled to separation pay
unless, however, there is a stipulation for payment of such in the employment contract or Collective Bargaining Agreement
(CBA), or payment of the amount is sanctioned by established employer practice or policy.(Travelaire& Tours Corp. vs.
National Labor Relations Commission, G.R. No. 131523, August 20, 1998)
Retirement
Retirement is a different specie of termination of employment from dismissal for just or authorized causes under
Articles 282 and 283 of the Labor Code. While in all three cases, the employee to be terminated may be unwilling to part
from service; there are eminently higher standards to be met by the employer validly exercising the prerogative to dismiss
for just or authorized causes. In those two instances, it is indispensable that the employer establishes the existence of just
or authorized causes for dismissal as spelled out in the Labor Code. Retirement, on the other hand, is the result of a
bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter after
reaching a certain age agrees and/or consents to sever his employment with the former.(Cainta Catholic School vs.
Cainta Catholic School Employees Union, G.R. No.151021, May 4, 2006, 489 SCRA 468[2006])

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Qualification for retirement


In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned
under existing laws and any collective bargaining agreement and other agreements: Provided, however, That an
employees retirement benefits under any collective bargaining and other agreements shall not be less than those
provided herein.
In the absence of a retirement plan or agreement providing for retirement benefits of employees in the
establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which
is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may
retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a
fraction of at least six (6) months being considered as one whole year.
Unless the parties provide for broader inclusions, the term one half (1/2) month salary shall mean fifteen (15) days
plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive
leaves. (Sta. Catalina College vs. National Labor Relations Commission, G.R. No. 144483, November 19, 2003)
Computation of retirement pay
For the purpose of determining the minimum retirement pay due an employee under this Rule, the term one-half
month salary shall include all the following: (a) Fifteen (15) days salary of the employee based on his latest salary rate.
(b) The cash equivalent of not more than five (5) days of service incentive leave; (c) One-twelfth of the 13 th month pay due
an employee; (d) All other benefits that the employer and employee may agree upon that should be included in the
computation of the employees retirement pay. The foregoing rules are clear that the whole 5 days of SIL are included in
the computation of a retiring employees pay. (Enriquez Security Services, Inc. vs. Cabotaje, G.R. No. 147993, July 21,
2006)
Compulsory Retirement
An employer is free to impose a retirement age less than 65 for as long as it has the employees consent. Stated
conversely, employees are free to accept the employers offer to lower the retirement age if they feel they can get a better
deal with the retirement plan presented by the employer. Thus, having terminated petitioner solely on the basis of a
provision of a retirement plan which was not freely assented to by her, respondent was guilty of illegal dismissal. (Jaculbe
vs. Silliman University, G. R. No. 156934, March 16, 2007,Cercado vs. Uniprom, Inc. October 13, 2010)
Employees contribution must be deducted first
Retirement benefits, on the other hand, are intended to help the employee enjoy the remaining years of his life,
releasing him from the burden of worrying for his financial support, and are a form of reward for his loyalty to the
employer.Since the computed amount of her retirement pay is much lower than that provided under the law, she is entitled
to receive the difference between the actual amount of her retirement benefits as required by law and that provided for
under the PERAA. (Sta. Catalina College vs. National Labor Relations Commission, G. R. No. 144483, November 19,
2003)
Retirement of underground miners
On February 26, 1998, Republic Act No. 8558 was signed into law and amended Article 287 of the Labor Code
and provided for the retirement benefits of underground miners.Based on R.A. 8558, n underground mining employee
upon reaching the age of fifty (50) years or more, but not beyond sixty (60) years which is hereby declared the compulsory
retirement age for underground mine workers, who has served at least five (5) years as underground mine worker, may
retire and shall be entitled to all the retirement benefits provided for in this Article.
Prescription
Article 305 Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall
prescribe in three (3) years.
The Labor Code, however, does not contain any provisions on the mode of computation of the three-year
prescriptive period it established.Prescription shall begin to run from the day of the commission of the violation of the law,
and if the same be not known at the time, from the discovery thereof and institution of judicial proceedings for its
investigation and punishment.The term of prescription shall not run when the offender is absent from the Philippine
Archipelago. (People of the Philippines vs. Duque, G.R. No. 100285, August 13, 1992)

Prescription period for money claims

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Article 291 (now Art. 306) of the Labor Code which provides that all money claims arising from employeremployee relationship shall be filed within three (3) years from the time the cause of action accrued. (Central Negros
Electric Cooperative (CENECO), Inc. vs. National Labor Relations Commission, G.R. No. 106246, September 1, 1994)
Prescription for all money claims
What rules on prescription should apply in cases like this one has long been decided by this Court. In illegal
dismissal, it is settled, that the ten-year prescriptive period fixed in Article 1144 of the Civil Code may not be invoked by
petitioners, for the Civil Code is a law of general application, while the prescriptive period fixed in Article 292 of the Labor
Code [now Article 291] is a SPECIAL LAW applicable to claims arising from employee-employer relations.The language of
Art. 291 of the Labor Code does not limit its application only to "money claims specifically recoverable under said Code"
but covers all money claims arising from an employee-employer relations" (Citing Cadalin vs. POEA Administrator, 238
SCRA 721, 764 [1994]; and Uy vs. National Labor Relations Commission, 261 SCRA 505, 515 [1996]). . . .
It should be noted further that Article 291 of the Labor Code is a special law applicable to money claims arising
from employer-employee relations; thus, it necessarily prevails over Article 1144 of the Civil Code, a general law. Basic is
the rule in statutory construction that "where two statutes are of equal theoretical application to a particular case, the one
designed therefore should prevail."
We base our conclusion not on Article 1144 of the Civil Code but on which sets the prescription period at three (3)
years and which governs under this jurisdiction. (Laureano vs. Court of Appeals, G.R. No. 114776, February 2, 2000)
Prescription period for illegal dismissal
Verily, the dismissal without just cause of an employee from his employment constitutes a violation of the Labor
Code and its implementing rules and regulations. Such violation, however, does not amount to an "offense" as understood
under Article 291 of the Labor Code. In its broad sense, an offense is an illegal act which does not amount to a crime as
defined in the penal law, but which by statute carries with it a penalty similar to those imposed by law for the punishment
of a crime.
Indeed there is, merit in the contention of petitioner that the four [4]-year prescriptive period under Article 1146 of
the New Civil Code, applies by way of supplement, in the instant case, to wit: Art. 1146. The following actions must be
instituted within four years. [1] Upon an injury to the lights of the plaintiff.
Clearly then, when one is arbitrarily and unjustly deprived of his job or means of livelihood, the action instituted to
contest the legality of one's dismissal from employment constitutes, in essence, an action predicated "upon an injury to
the rights of the plaintiff," as contemplated under Art. 1146 of the New Civil Code, which must be brought within four [4]
years. (Callanta vs. Carnation Philippines, Inc., G.R. No. 70615 October 28, 1986)
In illegal dismissal cases, the employee concerned is given a period of four years from the time of his dismissal
within which to institute a complaint. This is based on Article 1146 of the New Civil Code which states that actions based
upon an injury to the rights of the plaintiff must be brought within four years. Thus, the four-year prescriptive period shall
be counted and computed from the date of the employee's dismissal up to the date of the filing of complaint for unlawful
termination of employment. (Victory Liner, Inc. vs. Race, G.R. No. 164820, March 28, 2007)
13th month pay for certain types of employees
Presidential Decree No. 851 mandating all employers to pay their rank and file employees regardless of the
nature of their employment and irrespective of the method by which their wages are paid provided they worked for at least
one (1) month during a calendar year. The 13th Month Pay must be given to the employees not later than December 24 of
every year. The 13th Month Pay is computed by dividing the total basic salary earned for the year exclusive of overtime,
holiday, and night shift differential pay divided by 12.
(a) Employees Paid by Results. Employees who are paid on piece work basis are by law entitled to the 13th
month pay.
Employees who are paid a fixed or guaranteed wage plus commission are also entitled to the mandated 13th
month pay, based on their total earnings during the calendar year, i.e., on both their fixed or guaranteed wage and
commission.
(b) Those with Multiple Employers. Government employees working part time in a private enterprise, including
private educational institutions, as well as employees working in two or more private firms, whether on full or part time
basis, are entitled to the required 13th month pay from all their private employers regardless of their total earnings from
each or all their employers.
(c) Private School Teachers. Private school teachers, including faculty members of universities and colleges,
are entitled to the required 13th month pay, regardless of the number of months they teach or are paid within a year, if
they have rendered service for at least one (1) month within a year.
Solo Parent Welfare Act (Republic Act No. 8972)
The employer shall provide for a flexible working schedule for solo parents provided that the same shall not affect
individual and company productivity

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No employer shall discriminate against any solo parent employee with respect to terms and conditions of
employment on account of his/her status. In addition to leave privileges under existing laws, parental leave of not more
than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at
least one (1) year.

Books Authored by Atty. Duka


1. Labor Laws and Social Legislations: A Barristers Companion (Rex Bookstore, 2016)
2. Constitutional Law: A Barristers Companion (Rex Bookstore, 2010)
3. Rizal, His Legacy to the Philippine Society (Anvil Publishing House, 2010)
4. The Struggle for Freedom: A Textbook in Philippine History (Rex Bookstore, 2008)
5. The Law and the Teaching Profession in the Philippines (C and E Publishing, 2008)
6. Philosophy of Education (Rex Bookstore, Inc., 2006, 1999)
7. Reviewer for the Civil Service Examination (Manila Review Institute, Inc., 2001)
8. World Geography (Rex Bookstore, Inc., 2006, 2001)
9. Introduction to Asia: History, Culture and Civilization (Rex Bookstore, 2005)
10. Reviewer for the Licensure Examination for Teachers (MRI, 2006, 1998)
11. Historical, Philosophical and Legal Foundations of Education
(Phoenix Publishing House, 1997)
12. Introduction to Sociology (Anvil Publishing), 2014
Give and it will be given to you. A good measure, pressed down, shaken together and running over, will
be poured into your lap. For with the measure you use, it will be measured to you. (Luke 6:38)
Those who are in possession of this review material have the obligation to share it with others. God bless
you as you take the Bar Examinations Atty. Cecilio D. Duka

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