Академический Документы
Профессиональный Документы
Культура Документы
ii
iii
A. DIRECT HIRING....................................................23
Table of Contents
B. REGULATIONS AND ENFORCEMENT ...................23
I. FUNDAMENTAL PRINCIPLE AND POLICIES .............. 1
B.1. SUSPENSION OR CANCELLATION OF LICENSE
A. CONSTITUTIONAL PROVISIONS ............................. 1 OR AUTHORITY ....................................................23
A.1 ARTICLE II, SECS 9,10,11,13,14,18,20.................... 1 B.2. REGULATORY AND VISITORIAL POWERS OF
A.2 ARTICLE III, SECS 1, 4, 7, 8, 10, 16, 18(2)............. 2 THE DOLE SECRETARY.........................................23
A.3 ARTICLE XIII, SECS1, 2, 3, 13, 14......................... 3 B.3. REMITTANCE OF FOREIGN EXCHANGE
EARNINGS............................................................24
B. CIVIL CODE............................................................ 6
B.4. PROHIBITED ACTIVITIES................................24
B.1 ARTICLE 19 ....................................................... 6
III. LABOR STANDARDS...................................... 27
B.2 ARTICLE 1700................................................... 6
A. COVERAGE .......................................................... 27
B.3. ARTICLE 1702 .................................................. 6
A.1. GOVERNMENT EMPLOYEES........................... 27
C. LABOR CODE......................................................... 7
A.2. MANAGERIAL EMPLOYEES............................ 27
C.1 ARTICLE 3 ......................................................... 7
A.3. FIELD PERSONNEL ........................................28
C.2 ARTICLE 4 ........................................................ 7
A.4. DEPENDENT FAMILY MEMBERS ...................28
C.3 ARTICLE 166 (NOW ARTICLE 172)...................... 8
A.5. DOMESTIC HELPERS .....................................28
C.4 ARTICLE 211 (NOW ARTICLE 217) ...................... 8
A.6. PERSONS IN PERSONAL SERVICE OF
C.5 ARTICLE 212 (NOW ARTICLE 218) ..................... 8 ANOTHER.............................................................29
C.6 ARTICLE 255 (NOW ARTICLE 261) ...................10 A.7. WORKERS PAID BY RESULT ..........................29
C.7 ARTICLE 277 (NOW ARTICLE 283)....................10 B. HOURS OF WORK ................................................29
II. RECRUITMENT AND PLACEMENT....................... 12 B.2. NORMAL HOURS OF WORK ..........................29
A. RECRUITMENT OF LOCAL AND B.3. MEAL BREAK .................................................34
MIGRANT WORKERS ................................................ 12
B.4. WAITING TIME ...............................................36
A.1. ILLEGAL RECRUITMENT ................................. 12
B.5. OVERTIME WORK, OVERTIME PAY ................36
B. ESSENTIAL ELEMENTS OF
ILLEGAL RECRUITMENT ........................................... 13 B.6. NIGHT WORK, NIGHT SHIFT DIFFERENTIAL ..38
i
D.1. WEEKLY REST DAY ........................................ 47 A.1. FOUR-FOLD TEST .......................................... 91
D.2. EMERGENCY REST DAY WORK ..................... 47 A.2. KINDS OF EMPLOYMENT...............................92
E. HOLIDAY PAY/PREMIUM PAY.............................. 47 I. PROBATIONARY ................................................92
E.1. COVERAGE .................................................... 48 II. REGULAR .........................................................94
E.2. TEACHERS, PIECE WORKERS, SEAFARERS, III. PROJECT EMPLOYMENT..................................96
SEASONAL WORKERS, ETC. ................................. 51
IV. SEASONAL ......................................................98
F. LEAVES................................................................ 53
V. CASUAL ............................................................98
F.1. SERVICE INCENTIVE LEAVE PAY .................... 53
VI. FIXED-TERM....................................................99
F.2. MATERNITY LEAVE........................................ 54
A.3. JOB CONTRACTING ..................................... 100
F.3. PATERNITY LEAVE......................................... 55
B. DISMISSAL FROM EMPLOYMENT ...................... 105
F.4. PARENTAL LEAVE ......................................... 56
B.1. JUST CAUSE ................................................. 109
F.5. LEAVES FOR VICTIMS OF VIOLENCE
B.2. AUTHORIZED CAUSE.................................... 114
AGAINST WOMEN ............................................... 57
B.3 OTHER CAUSES............................................. 118
F.6. SPECIAL LEAVE BENEFITS (SLB) FOR WOMEN59
B.4 DUE PROCESS............................................... 119
G. SERVICE CHARGES .............................................. 61
I. TWIN-NOTICE REQUIREMENT ......................... 120
I. SEPARATION PAY................................................. 64
II. HEARING; MEANING OF OPPORTUNITY TO BE
J. RETIREMENT PAY ................................................ 66
HEARD ............................................................... 120
J.1. ELIGIBILITY ..................................................... 66
C. RELIEFS FOR ILLEGAL DISMISSAL ..................... 122
J.2. AMOUNT OF RETIREMENT PAY ..................... 67
C.1. REINSTATEMENT ......................................... 122
J.3. RETIREMENT BENEFITS OF WORKERS WHO
C.2. BACKWAGES ............................................... 124
ARE PAID BY RESULTS ........................................ 68
D. PREVENTIVE SUSPENSION................................ 125
J.4. RETIREMENT BENEFIT OF PART-TIME
WORKERS............................................................ 68 E. CONSTRUCTIVE DISMISSAL ............................... 126
J.5. TAXABILITY.................................................... 68
K. WOMEN WORKERS ............................................. 69 V. MANAGEMENT PREROGATIVE ........................ 126
K.1. PROVISIONS AGAINST DISCRIMINATION ...... 69 A. DISCIPLINE ........................................................ 126
K.2. STIPULATION AGAINST MARRIAGE .............. 70 B. TRANSFER OF EMPLOYEES ................................127
K.3. PROHIBITED ACTS ........................................ 70 C. PRODUCTIVITY STANDARD ............................... 128
K.4. ANTI-SEXUAL HARASSMENT......................... 71 D. GRANT OF BONUS............................................. 128
L. MINOR WORKERS ............................................... 73 E. CHANGE OF WORKING HOURS.......................... 128
M. EMPLOYMENT OF HOUSEHELPERS.................... 75 F. RULES ON MARRIAGE BETWEEN EMPLOYEES OF
COMPETITOR-EMPLOYERS ................................... 129
N. EMPLOYMENT OF HOMEWORKERS.................... 78
G. POST-EMPLOYMENT BAN ................................. 129
O. APPRENTICES AND LEARNERS .......................... 79
VI. SOCIAL WELFARE LEGISLATION ..................... 129
O.1. APPRENTICES ............................................... 79
A. SSS LAW ............................................................ 130
O.2. LEARNERS.................................................... 82
A.1. COVERAGE................................................... 130
P. HANDICAPPED WORKERS DIFFERENTLY-ABLED
WORKERS ............................................................... 84 A.2. EXCLUSIONS FROM COVERAGE.................. 130
IV. TERMINATION OF EMPLOYMENT ..................... 89 A.3. BENEFITS ..................................................... 131
A. EMPLOYER-EMPLOYEE RELATIONSHIP .............. 90 I. MONTHLY PENSION [SEC.12] ............................ 131
ii
II. DEPENDENTS PENSION [SEC. 12-A].................131 VII. LABOR RELATIONS ..................................... 141
III. RETIREMENT BENEFITS [SEC. 12-B] .................131 A. RIGHT TO SELF-ORGANIZATION......................... 141
IV. PERMANENT DISABILITY BENEFITS [SEC. 13-A]132 A.1. WHO MAY UNIONIZE FOR PURPOSES OF
COLLECTIVE BARGAINING? ................................ 142
V. DEATH BENEFITS [SEC. 13] .............................. 132
I. WHO CANNOT FORM, JOIN OR ASSIST LABOR
VI. FUNERAL BENEFITS [13-B] ............................. 132
ORGANIZATIONS ............................................... 143
VII. LOAN ............................................................ 132
A.2. BARGAINING UNIT ...................................... 145
VIII. SICKNESS BENEFITS [SEC. 14] ...................... 133
I. TEST TO DETERMINE THE CONSTITUENCY OF AN
IX. MATERNITY LEAVE BENEFITS [SEC. 14-A] ...... 133 APPROPRIATE BARGAINING UNIT ..................... 146
A.4. BENEFICIARIES............................................ 134 II. VOLUNTARY RECOGNITION ........................... 148
1. PRIMARY ......................................................... 134 III. CERTIFICATION ELECTION............................. 148
2. SECONDARY ................................................... 134 IV. RUN-OFF ELECTION ...................................... 155
3. OTHERS .......................................................... 134 V. RE-RUN ELECTION ......................................... 156
B. GSIS [RA 8291].................................................... 134 VI. CONSENT ELECTION ..................................... 156
B.1. COVERAGE ................................................... 134 VI. AFFILIATION AND DISAFFILIATION OF THE
B.2. EXCLUSIONS FROM COVERAGE .................. 134 LOCAL UNION FROM THE MOTHER UNION........ 156
VIII. UNION DUES AND SPECIAL ASSESSMENTS 158
B.3. BENEFITS..................................................... 134
I. MONTHLY PENSION [SEC. 9] ............................ 134 IX. AGENCY FEES................................................ 159
B. RIGHT TO COLLECTIVE BARGAINING ................. 159
II. RETIREMENT BENEFITS [SEC. 13] .................... 134
III. PERMANENT DISABILITY BENEFITS ............... 135 B.1 DUTY TO BARGAIN COLLECTIVELY ............... 159
I. WHEN THERE IS ABSENCE OF A CBA................ 161
IV. DEATH BENEFITS [SEC. 21]............................. 135
V. FUNERAL BENEFITS [SEC. 23] ......................... 136 II. WHEN THERE IS A CBA .................................... 161
B.2 COLLECTIVE BARGAINING AGREEMENT (CBA)161
VI. LOAN ............................................................. 136
VII. TEMPORARY DISABILITY BENEFITS .............. 136 I. MANDATORY PROVISIONS OF CBA ................. 164
II. DURATION OF
VIII. SEPARATION BENEFITS ............................... 136
COLLECTIVE BARGAINING AGREEMENT .............167
IX. UNEMPLOYMENT BENEFITS [SEC. 11] ............. 136
B.3. UNION SECURITY ........................................ 169
X. SURVIVORSHIP BENEFITS .............................. 136
I. UNION SECURITY CLAUSES; CLOSED SHOP,
XI. LIFE INSURANCE BENEFITS ........................... 137 UNION SHOP, MAINTENANCE OF MEMBERSHIP
B.4. BENEFICIARIES ............................................ 137 SHOP, ETC.......................................................... 169
iii
II. ULP OF EMPLOYERS ....................................... 172 C.1 JURISDICTION (ORIGINAL AND APPELLATE). 193
III. ULP OF LABOR ORGANIZATIONS................... 174 D. NATIONAL CONCILIATION AND MEDIATION
BOARD................................................................... 194
D.1 NATURE OF PROCEEDINGS .......................... 194
C. RIGHT TO PEACEFUL CONCERTED ACTIVITIES... 175
D.2 CONCILIATION VS. MEDIATION .................... 194
C.1. FORMS OF CONCERTED ACTIVITIES............. 175
D.3 PREVENTIVE MEDIATION ............................. 194
C.2 WHO MAY DECLARE A STRIKE OR LOCKOUT?.. 177
E. DOLE REGIONAL DIRECTORS ............................ 194
C.3 REQUISITES FOR A VALID STRIKE .................... 177
E.1 JURISDICTION ............................................... 194
C.4 REQUISITES FOR A VALID LOCKOUT ................ 179
F. DOLE SECRETARY.............................................. 195
C.5 REQUISITES FOR LAWFUL PICKETING ..............181
F.1 VISITORIAL AND ENFORCEMENT POWERS... 195
C.6 ASSUMPTION OF JURISDICTION BY THE DOLE
SECRETARY OR CERTIFICATION OF THE LABOR F.2 POWER TO SUSPEND/EFFECTS OF
DISPUTE TO THE NLRC FOR COMPULSORY TERMINATION.................................................... 196
ARBITRATION......................................................... 182
F.3 ASSUMPTION OF JURISDICTION................... 196
C.7 NATURE OF ASSUMPTION ORDER OR
F.4 APPELLATE JURISDICTION ........................... 196
CERTIFICATION ORDER.......................................... 182
F.5 VOLUNTARY ARBITRATION POWERS........... 196
C.8 EFFECT OF DEFIANCE OF ASSUMPTION OR
CERTIFICATION ORDERS ....................................... 183 G. GRIEVANCE MACHINERY AND VOLUNTARY
ARBITRATION ........................................................ 196
C.9 ILLEGAL STRIKE ............................................... 184
G.1 SUBJECT MATTER OF GRIEVANCE................ 196
I. LIABILITY OF UNION OFFICERS........................ 185
G.2 VOLUNTARY ARBITRATOR........................... 196
II. LIABILITY OF ORDINARY WORKERS................ 186
I. JURISDICTION ................................................. 196
III. LIABILITY OF EMPLOYER ................................ 186
II. PROCEDURE....................................................197
IV. WAIVER OF ILLEGALITY OF STRIKE................ 186
III. REMEDIES ..................................................... 198
C.10 INJUNCTIONS ................................................. 186
H. COURT OF APPEALS.......................................... 198
I. REQUISITES FOR LABOR INJUNCTIONS........... 187
H.1 RULE 65, RULES OF COURT.......................... 198
II. INNOCENT BYSTANDER RULE ..................... 188
I. SUPREME COURT ............................................... 198
VIII. PROCEDURE AND JURISDICTION................... 189
I.1 RULE 45, RULES OF COURT ........................... 199
A. LABOR ARBITER................................................. 189
J. PRESCRIPTION OF ACTIONS .............................. 199
A.1 JURISDICTION ............................................... 189
I. VERSUS REGIONAL DIRECTOR ................... 189
A.2 REINSTATEMENT PENDING APPEAL ............190
A.3 REQUIREMENTS TO PERFECT APPEAL TO
NLRC ..................................................................190
B. NATIONAL LABOR RELATIONS COMMISSION
(NLRC)....................................................................190
B.1 JURISDICTION ...............................................190
B.2 EFFECT OF NLRC REVERSAL OF LABOR
ARBITERS ORDER OF REINSTATEMENT .............191
B.3 REMEDIES......................................................191
B.4 CERTIFIED CASES ......................................... 192
C. BUREAU OF LABOR RELATIONS MED-ARBITERS193
iv
UP LAW BOC LABOR STANDARDS LABOR LAW
1
UP LAW BOC LABOR STANDARDS LABOR LAW
2
UP LAW BOC LABOR STANDARDS LABOR LAW
[Article III, Section 8.] The right of the people, [Article III, Section 18(2).] No involuntary
including those employed in the public and servitude in any form shall exist except as a
private sectors, to form unions, associations, or punishment for a crime whereof the party shall
societies for purposes not contrary to law shall have been duly convicted.
not be abridged.
A.3 ARTICLE XIII, SECS1, 2, 3, 13, 14
The Right to Form Associations [Article XIII, Section 1.] The Congress shall give
The right to form associations shall not be highest priority to the enactment of measures
impaired except through a valid exercise of that protect and enhance the right of all the
police power. [Bernas, The 1987 Philippine people to human dignity, reduce social,
Constitution: a Comprehensive Reviewer] economic, and political inequalities, and
remove cultural inequities by equitably
[Article III, Section 10.] No law impairing the diffusing wealth and political power for the
obligation of contracts shall be passed. common good.
3
UP LAW BOC LABOR STANDARDS LABOR LAW
law. They shall be entitled to security of tenure, the employer. [Phil. Geothermal Inc. vs. NLRC
humane conditions of work, and a living wage. (1994)]
They shall also participate in policy and
decision-making processes affecting their This Court held that the employers right to
rights and benefits as may be provided by law. conduct the affairs of his business according to
its own discretion and judgment, is well-
The State shall promote the principle of shared recognized. An employer has a free reign and
responsibility between workers and employers enjoys wide latitude of discretion to regulate
and the preferential use of voluntary modes in all aspects of employment. This is a
settling disputes, including conciliation, and management prerogative, where the free will
shall enforce their mutual compliance of management to conduct its own affairs to
therewith to foster industrial peace. achieve its purpose takes form. [Torreda vs.
Toshiba (2007)]
The State shall regulate the relations between
workers and employers, recognizing the right Under the doctrine of management
of labor to its just share in the fruits of prerogative, every employer has the inherent
production and the right of enterprises to right to regulate, according to his own
reasonable returns to investments, and to discretion and judgment, all aspects of
expansion and growth. employment, including hiring, work
assignments, working methods, the time,
Participation in Decision-Making Process place and manner of work, work supervision,
Verily, a line must be drawn between transfer of employees, lay-off of workers, and
management prerogatives regarding business discipline, dismissal, and recall of employees.
operations per se and those which affect the The only limitations to the exercise of this
rights of the employees. In treating the latter, prerogative are those imposed by labor laws
management should see to it that its and the principles of equity and substantial
employees are at least properly informed of its justice. [Peckson v Robinsons Supermarket
decisions or modes action. Indeed, industrial Corporation, G.R. No. 198534, July 3, 2013]
peace cannot be achieved if the employees are
denied their just participation in the discussion Limits to Management Prerogative
of matters affecting their rights. [Phil. Airlines (1) Good faith - So long as a companys
Inc. vs. NLRC (1993); also cited in Manila Electric management prerogatives are exercised in
Co. vs. Sec. of Labor Quisumbing (2000)] good faith for the advancement of the
employers interest and not for the purpose of
Management and the Constitution: defeating or circumventing the rights of the
Management Function/Prerogative employees under special laws or under valid
The law in protecting the rights of the agreements, this Court will uphold themEven
employees authorizes neither oppression nor as the law is solicitous of the welfare of the
self-destruction of the employer. It should be employees, it must also protect the right of an
made clear that when the law tilts the scale of employer to exercise what are clearly
justice in favor of labor, it is but a recognition management prerogatives. The free will of
of the inherent economic inequality between management to conduct its own business
labor and management. Never should the affairs to achieve its purpose cannot be denied.
scale be so tilted if the result is an injustice to [Ernesto G. Ymbong vs. ABS-CBN Broadcasting
Corp. (2012)]
4
UP LAW BOC LABOR STANDARDS LABOR LAW
(2) Without grave abuse of discretion - But, like express policy of the law. [Goya, Inc. v. Goya,
other rights, there are limits thereto. The Inc., Employees Union-FFW (2013)]
managerial prerogative to transfer personnel
must be exercised without grave abuse of (5) Equity and/or Substantial Justice The
discretion, bearing in mind the basic elements Court recognized the inherent right of the
of justice and fair play. Having the right should employer to discipline its employees but it
not be confused with the manner in which the should still ensure that the employer exercises
right is exercised. [Tinio vs. CA (2007)] the prerogative to discipline humanely and
considerately, and that the sanction imposed is
(3) Law In one case, a pharmaceutical commensurate to the offense involved and to
company defended its termination of rank and the degree of the infraction. The discipline
file employees during a bargaining deadlock, exacted by the employer should further
as an exercise of management prerogative. consider the employees length of service and
This was after the Labor Secretary had the number of infractions during his
assumed jurisdiction over the dispute and employment. [Dongon v. Rapid Movers and
enjoined the parties from any acts which Forwarders Co., Inc. (2013)]
might exacerbate the situation.
Assumption of jurisdiction by the Secretary of
The Court disagreed with the companys Labor This Court declared that it recognizes
defense, stating that the privilege is not the exercise of management prerogatives and
absolute but subject to limitations imposed by it often declines to interfere with the legitimate
law. In this case, it is limited by Sec. 236(g), business decisions of the employerHowever,
which gives the Secretary the power to assume as expressed in PAL vs. NLRC, the privilege is
jurisdiction and resolve labor disputes not absolute, but subject to exceptions. One of
involving industries indispensable to national these exceptions is when the Secretary of Labor
interest. assumes jurisdiction over labor disputes
involving industries indispensable to the
The companys management prerogatives are national interest under Article 263(g) of the
not being unjustly curtailed but duly tempered Labor Code. [University of Immaculate
by the limitations set by law, taking into Concepcion Inc. vs. Sec. of Labor (2005)]
account its special character and the particular
circumstances in the case at bench. [Metrolab [Article XIII, Section 13.] The State recognizes
Industries, Inc. v. Roldan-Confesor (2013)] the vital role of the youth in nation-building
and shall promote and protect their physical,
(4) Collective Bargaining The CBA provisions moral, spiritual, intellectual, and social well-
agreed upon by the Company and the Union being. It shall inculcate in the youth patriotism
delimit the free exercise of management and nationalism, and encourage their
prerogative. The parties in a CBA may involvement in public and civic affairs.
establish such stipulations, clauses, terms and [Article XIII, Section 14.] The State shall protect
conditions as they may deem convenient working women by providing safe and
provided these are not contrary to law, morals, healthful working conditions, taking into
good customs, public order or public policy. account their maternal functions, and such
Where the CBA is clear and unambiguous, it facilities and opportunities that will enhance
becomes the law between the parties and their welfare and enable them to realize their
compliance therewith is mandated by the full potential in the service of the nation.
5
UP LAW BOC LABOR STANDARDS LABOR LAW
6
UP LAW BOC LABOR STANDARDS LABOR LAW
7
UP LAW BOC LABOR STANDARDS LABOR LAW
C.3 ARTICLE 166 (NOW ARTICLE 172) B. To encourage a truly democratic method of
[Article 166.] Policy. - The State shall promote regulating the relations between the
and develop a tax-exempt employees employers and employees by means of
agreements freely entered into through
compensation program whereby employees
collective bargaining, no court or
and their dependents, in the event of work- administrative agency or official shall have
connected disability or death, may promptly the power to set or fix wages, rates of pay,
secure adequate income benefit and medical hours of work or other terms and conditions
related benefits. of employment, except as otherwise
provided under this Code.
Workmens Compensation Program
This is the general and comprehensive term C.5 ARTICLE 212 (NOW ARTICLE 218)
applied to those laws providing for Article 212.Definitions.
compensation for loss resulting from the injury, (a) Commission means the National Labor
disablement, or death of workmen through Relations Commission or any of its
industrial accident, casualty, or disease. divisions, as the case may be, as provided
under this Code.
[Azucena, The Labor Code with Comments and (b) Bureau means the Bureau of Labor
Cases] Relations and/or the Labor Relations
Divisions in the regional offices established
C.4 ARTICLE 211 (NOW ARTICLE 217) under Presidential Decree No. 1, in the
[Article 211.] Declaration of Policy. Department of Labor.
A. It is the policy of the State: (c) Board means the National Conciliation
and Mediation Board established under
(a) To promote and emphasize the primacy
of free collective bargaining and Executive Order No. 126.
(d) Council means the Tripartite Voluntary
negotiations, including voluntary
arbitration, mediation and conciliation, Arbitration Advisory Council established
under Executive Order No. 126, as
as modes of settling labor or industrial
disputes; amended.
(e) Employer includes any person acting in
(b) To promote free trade unionism as an
instrument for the enhancement of the interest of an employer, directly or
indirectly. The term shall not include any
democracy and the promotion of social
justice and development; labor organization or any of its officers or
agents except when acting as employer.
(c) To foster the free and voluntary
organization of a strong and united (f) Employee includes any person in the
employ of an employer. The term shall not
labor movement;
be limited to the employees of a particular
8
UP LAW BOC LABOR STANDARDS LABOR LAW
employer, unless the Code so explicitly (n) Voluntary Arbitrator means any person
states. It shall include any individual whose accredited by the Board as such or any
work has ceased as a result of or in person named or designated in the
connection with any current labor dispute Collective Bargaining Agreement by the
or because of any unfair labor practice if he parties to act as their Voluntary Arbitrator,
has not obtained any other substantially or one chosen with or without the
equivalent and regular employment. assistance of the National Conciliation and
(g) Labor organization means any union or Mediation Board, pursuant to a selection
association of employees which exists in procedure agreed upon in the Collective
whole or in part for the purpose of Bargaining Agreement, or any official that
collective bargaining or of dealing with may be authorized by the Secretary of
employers concerning terms and Labor and Employment to act as Voluntary
conditions of employment. Arbitrator upon the written request and
(h) Legitimate labor organization means any agreement of the parties to a labor
labor organization duly registered with the dispute.
Department of Labor and Employment, (o) Strike means any temporary stoppage of
and includes any branch or local thereof. work by the concerted action of employees
(i) Company union means any labor as a result of an industrial or labor dispute.
organization whose formation, function or (p) Lockout means any temporary refusal of
administration has been assisted by any an employer to furnish work as a result of
act defined as unfair labor practice by this an industrial or labor dispute.
Code. (q) Internal union dispute includes all
(j) Bargaining representative means a disputes or grievances arising from any
legitimate labor organization whether or violation of or disagreement over any
not employed by the employer. provision of the constitution and by laws of
(k) Unfair labor practice means any unfair a union, including any violation of the
labor practice as expressly defined by the rights and conditions of union membership
Code. provided for in this Code.
(l) Labor dispute includes any controversy (r) Strike-breaker means any person who
or matter concerning terms and conditions obstructs, impedes, or interferes with by
of employment or the association or force, violence, coercion, threats, or
representation of persons in negotiating, intimidation any peaceful picketing
fixing, maintaining, changing or arranging affecting wages, hours or conditions of
the terms and conditions of employment, work or in the exercise of the right of self-
regardless of whether the disputants stand organization or collective bargaining.
in the proximate relation of employer and (s) Strike area means the establishment,
employee. warehouses, depots, plants or offices,
(m) Managerial employee is one who is including the sites or premises used as
vested with the powers or prerogatives to runaway shops, of the employer struck
lay down and execute management against, as well as the immediate vicinity
policies and/or to hire, transfer, suspend, actually used by picketing strikers in
lay-off, recall, discharge, assign or moving to and fro before all points of
discipline employees. Supervisory entrance to and exit from said
employees are those who, in the interest of establishment.
the employer, effectively recommend such
managerial actions if the exercise of such
authority is not merely routinary or clerical
in nature but requires the use of
independent judgment. All employees not
falling within any of the above definitions
are considered rank-and-file employees for
purposes of this Book.
9
UP LAW BOC LABOR STANDARDS LABOR LAW
C.6 ARTICLE 255 (NOW ARTICLE 261) worker whose employment is sought to be
Article 255.Exclusive bargaining representation terminated a written notice containing a
and workers participation in policy and statement of the causes for termination and
decision making. - The labor organization shall afford the latter ample opportunity to be
designated or selected by the majority of the heard and to defend himself with the
employees in an appropriate collective assistance of his representative if he so desires
bargaining unit shall be the exclusive in accordance with company rules and
representative of the employees in such unit regulations promulgated pursuant to
for the purpose of collective bargaining. guidelines set by the Department of Labor and
However, an individual employee or group of Employment. Any decision taken by the
employees shall have the right at any time to employer shall be without prejudice to the
present grievances to their employer. right of the worker to contest the validity or
legality of his dismissal by filing a complaint
Any provision of law to the contrary with the regional branch of the National Labor
notwithstanding, workers shall have the right, Relations Commission. The burden of proving
subject to such rules and regulations as the that the termination was for a valid or
Secretary of Labor and Employment may authorized cause shall rest on the employer.
promulgate, to participate in policy and The Secretary of the Department of Labor and
decision-making processes of the Employment may suspend the effects of the
establishment where they are employed termination pending resolution of the dispute
insofar as said processes will directly affect in the event of a prima facie finding by the
their rights, benefits and welfare. For this appropriate official of the Department of Labor
purpose, workers and employers may form and Employment before whom such dispute is
labor-management councils: Provided, That pending that the termination may cause a
the representatives of the workers in such serious labor dispute or is in implementation of
labor-management councils shall be elected a mass lay-off.
by at least the majority of all employees in said
establishment. (c) Any employee, whether employed for a
definite period or not, shall, beginning on his
C.7 ARTICLE 277 (NOW ARTICLE 283) first day of service, be considered as an
Article 277.Miscellaneous provisions. employee for purposes of membership in any
(a) All unions are authorized to collect labor union.
reasonable membership fees, union dues,
assessments and fines and other contributions (d) No docket fee shall be assessed in labor
for labor education and research, mutual standards disputes. In all other disputes,
death and hospitalization benefits, welfare docket fees may be assessed against the filing
fund, strike fund and credit and cooperative party, provided that in bargaining deadlock,
undertakings. such fees shall be shared equally by the
negotiating parties.
(b) Subject to the constitutional right of
workers to security of tenure and their right to (e) The Minister of Labor and Employment and
be protected against dismissal except for a just the Minister of the Budget shall cause to be
and authorized cause and without prejudice to created or reclassified in accordance with law
the requirement of notice under Article 283 of such positions as may be necessary to carry out
this Code, the employer shall furnish the the objectives of this Code and cause the
10
UP LAW BOC LABOR STANDARDS LABOR LAW
11
UP LAW BOC LABOR STANDARDS LABOR LAW
12
UP LAW BOC LABOR STANDARDS LABOR LAW
13
UP LAW BOC LABOR STANDARDS LABOR LAW
14
UP LAW BOC LABOR STANDARDS LABOR LAW
15
UP LAW BOC LABOR STANDARDS LABOR LAW
16
UP LAW BOC LABOR STANDARDS LABOR LAW
17
UP LAW BOC LABOR STANDARDS LABOR LAW
18
UP LAW BOC LABOR STANDARDS LABOR LAW
E.2 OFFENSE INVOLVING ECONOMIC by other laws. Conversely, conviction for estafa
SABOTAGE (LARGE-SCALE OR BY A under par. 2(a) of Art. 315 of the Revised Penal
SYNDICATE) Code does not bar a conviction for illegal
Illegal recruitment is deemed committed by a recruitment under the Labor Code. It follows
syndicate if carried out by a group of three (3) that one's acquittal of the crime of estafa will
or more persons conspiring or confederating not necessarily result in his acquittal of the
with one another. It is deemed committed in crime of illegal recruitment in large scale, and
large scale if committed against three (3) or vice versa. [People v. Ochoa (2011); People v.
more persons individually or as a group. Ocden (2011)]
19
UP LAW BOC LABOR STANDARDS LABOR LAW
authority and all the permits and privileges E.g. In this case the appellant was both the
granted to such person or entity under this APSC Vice-President-Treasurer and the
Title, and the forfeiture of the cash a nd surety Assistant General Manager. She was a high
bonds in favor of the Overseas Employment corporate officer who had direct
Development Board or the National Seamen participation in the management,
Board, as the case may be, both of which are administration, direction and control of the
authorized to use the same exclusively to business of the corporation, and is thus
promote their objectives. liable under Sec. 6 of RA 8042. The terms
control, management or direction broadly
II. ILLEGAL RECRUITMENT INVOLVING cover all phases of business operation,
MIGRANT WORKERS including the aspects of administration,
[Sec. 7, RA 8042 as amended by RA 10022] marketing and finances, among others.
[People vs. Sagayaga (2004)]
Act Penalty
Illegal 12 years and 1 day (2) Local Employment Agency is solidarily liable
with foreign principal. Severance of relations 11
recruitment Imprisonment 20 years
AND between local agent and foreign principal
P1M Fine P2M does not affect liability of local recruiter.
Illegal Life imprisonment AND Private employment agencies are held
recruitment P2M Fine P5M jointly and severally liable with the foreign-
based employer for any violation of the
constituting
recruitment agreement or contract of
economic Maximum penalty:
employment. This joint and solidary liability
sabotage 1. illegally recruited person
imposed by law against recruitment
below 18 years old OR
agencies and foreign employers is meant to
2. Without license/authority
assure the aggrieved worker of immediate
Prohibited 6 years and 1 day
and sufficient payment of what is due him.
Act/s Imprisonment 12 years AND
[Becmen Service Exporter and Promotion,
P500k Fine P1M
Inc. v. Spouses Cuaresma, G.R. 182978-79,
April 7, 2009]
If the offender is an alien, he or she shall, in
addition to the penalties herein prescribed, be
(3) If the recruitment/placement agency is a
deported without further proceedings.
juridical being, the corporate officers and
directors and partners as the case ma y be,
In every case, conviction shall cause and carry
shall themselves be jointly and solidarily liable
the automatic revocation of the license or
with the corporation or partnership for the
registration of the recruitment/manning
aforesaid claims and damages. [Becmen
agency, lending institutions, training school or
Service Exporter and Promotion, Inc. v.
medical clinic.
Spouses Cuaresma, G.R. 182978-79, April 7,
2009]
Common Rules on Liability
(1) Employees of a company corporation engaged
(4) Foreign employer shall assume joint and
in illegal recruitment may be held liable as
solidary liability with the employer for all
principal, together with his employer , if it is
claims and liabilities which may arise in
shown that he actively and consciously
connection with the implementation of the
participated in illegal recruitment.
20
UP LAW BOC LABOR STANDARDS LABOR LAW
contract, including but not limited to Consequently, notice to the former of any
payment of wages, death and disability violation thereof is notice to the latter.
compensation and repatriation It may be good to note the case of Sunace
International Management Services Inc v
Common Rules on Illegal Recruitment (Local or NLRC, GR No. 161757, January 25, 2006 where
Overseas) the theory of imputed knowledge was
Venue mentioned because it was used to try and
A criminal action arising from illegal make an agency liable. The SC said that the
recruitment shall be filed with the RTC of the argument made was a misapplication of the
province or city: theory of imputed knowledge: The theory of
(1) where the offense was committed or imputed knowledge ascribes the knowledge of
(2) where the offended party actually resides at the agent, Sunace, to the principal, employer
the time of the commission of the offense. Xiong, not the other way around. The
[Sec. 9, R.A. 8042 [this part was not knowledge of the principal-foreign employer
amended by R.A. 10022]]. cannot, therefore, be imputed to its agent
Sunace.
Prescriptive Periods
(1) Simple Illegal Recruitment 5 years Solidary Liability
(2) Illegal Recruitment involving Economic
Sabotage 20 years. (Sec. 12, R.A. 8042 Solidary Liability of Agent and Principal
[this part was not amended by R.A, The written application for a license to operate
10022]). a private employment or manning agency shall
be submitted with, among others, a VERIFIED
Foreign Employer UNDERTAKING stating that the applicant:
Foreign employer shall assume joint and solidary (1) Shall assume full and complete
liability with the employer for all claims and responsibility for
liabilities which may arise in connection with all claims and liabilities which may arise
the implementation of the contract, including in connection with the use of license;
but not limited to payment of wages, death all acts of its officials, employees and
and disability compensation and repatriation representatives done in connection with
recruitment and placement;
Theory of imputed knowledge
This is a doctrine in agency which states that (2) Shall assume joint and solidary liability with
the principal is chargeable with and bound by the employer for all claims and liabilities which
the knowledge of or notice to his agent may arise in connection with the
received while the agent was acting as such. implementation of the contract, including but
Simply put, notice to the agent is notice to the not limited to payment of wages, death and
principal. disability compensation and repatriation;
Since the local employment agency is (3) Shall guarantee compliance with the
considered the agent of the foreign employer, existing labor and social legislations of the
the principal, knowledge of the former of Philippines and of the country of employment
existing labor and social legislation in the of recruited workers [POEA Rules, Book II, Rule
Philippines is binding on the latter. II, Sec. 1 (f) (2-5)]
21
UP LAW BOC LABOR STANDARDS LABOR LAW
22
UP LAW BOC LABOR STANDARDS LABOR LAW
23
UP LAW BOC LABOR STANDARDS LABOR LAW
24
UP LAW BOC LABOR STANDARDS LABOR LAW
actual signing thereof by the parties up to in order to offer him another unless the
and including the periods of expiration of transfer is designed to liberate a worker
the same without the approval of the from oppressive terms and conditions of
Secretary of Labor; employment;
(j) To become an officer or member of the (e) To influence or attempt to influence any
Board of any corporation engaged in travel person or entity not to employ any worker
agency or to be engaged directly or who has not applied for employment
indirectly in the management of a travel through his agency or who has formed,
agency; and joined or supported, or has contacted or is
To withhold or deny travel documents from supported by any union or workers'
applicant workers before departure for organization;
monetary or financial considerations other (f) To engage in the recruitment or placement
than those authorized under this Code and its of workers in jobs harmful to public health
implementing rules and regulations. (Art. 34, or morality or to the dignity of the Republic
LC) of the Philippines;
(g) To fail to submit reports on the status of
Other prohibited acts employment, placement vacancies,
It shall likewise include the following acts, remittance of foreign exchange earnings,
whether committed by any person, whether a separation from jobs, departures and such
non-licensee, non-holder, licensee or holder of other matters or information as may be
authority: required by the Secretary of Labor and
(a) To charge or accept directly or indirectly Employment;
any amount greater than that specified in (h) To substitute or alter to the prejudice of
the schedule of allowable fees prescribed the worker, employment contracts
by the Secretary of Labor and Employment, approved and verified by the Department
or to make a worker pay or acknowledge of Labor and Employment from the time of
any amount greater than that actually actual signing thereof by the parties up to
received by him as a loan or advance; and including the period of the expiration
(b) To furnish or publish any false notice or of the same without the approval of the
information or document in relation to Department of Labor and Employment;
recruitment or employment; (i) For an officer or agent of a recruitment or
(c) To give any false notice, testimony, placement agency to become an officer or
information or document or commit any member of the Board of any corporation
act of misrepresentation for the purpose of engaged in travel agency or to be engaged
securing a license or authority under the directly or indirectly in the management of
Labor Code, or for the purpose of travel agency;
documenting hired workers with the POEA, (j) To withhold or deny travel documents from
which include the act of reprocessing applicant workers before departure for
workers through a job order that pertains monetary or financial considerations, or for
to nonexistent work, work different from any other reasons, other than those
the actual overseas work, or work with a authorized under the Labor Code and its
different employer whether registered or implementing rules and regulations;
not with the POEA; (k) Failure to actually deploy a contracted
(d) To include or attempt to induce a worker worker without valid reason as determined
already employed to quit his employment
25
UP LAW BOC LABOR STANDARDS LABOR LAW
26
UP LAW BOC LABOR STANDARDS LABOR LAW
27
UP LAW BOC LABOR STANDARDS LABOR LAW
28
UP LAW BOC LABOR STANDARDS LABOR LAW
Note: The Kasambahay Law (RA 10361) has Associates, OP Decision No. 0183, cited by
redefined domestic worker or kasambahay: Azucena]
[RA 10361 Art. 1, Sec. 4 (d).] Domestic worker or A.7. WORKERS PAID BY RESULT
Kasambahay refers to any person engaged in [Book 3, Rule 1, Sec. 2 (e), IRR.]
domestic work within an employment Workers who are paid by results, including those
relationship such as but not limited to the who are paid on piece work, takay, pakiao or
following: general househelp, nursemaid or task basis, and other nontime work if their output
yaya, cook, gardener or laundry person but rates are in accordance with the standards
shall exclude any person who performs prescribed under Section 8, Rule VII, Book Three
domestic work only occasionally or of these regulations, or where such rates have
sporadically and not on an occupational basis. been fixed by the Secretary of Labor and
Employment in accordance with the aforesaid
A.6. PERSONS IN PERSONAL SERVICE Section.
OF ANOTHER
Workers under piece-rate employment have no
[Book 3, Rule 1, Sec. 2 (d), IRR]
fixed salaries and their compensation is
Domestic servants and persons in the personal
service of another if they perform such services in computed on the basis of accomplished tasks.
the employers home which are usually necessary That their work output might have been
or desirable for the maintenance and enjoyment affected by the change in their specific work
thereof or minister to the personal comfort assignments does not necessarily imply that
convenience or safety of the employer as well as any resulting reduction in pay is tantamount to
the members of his employers household. constructive dismissal. It is the prerogative of
the management to change their assignments
Exclusivity of function required or to transfer them. [Best Wear Garments v. De
Note that the definition contemplates a Lemos and Ocubillo (2012)]
domestic servant who is employed in the
employers home to minister exclusively to the B. HOURS OF WORK
personal comfort and enjoyment of the
employers family. [Azucena] B.1. COVERAGE/EXCLUSIONS
See previous section (A. Coverage) which deals
Thus, it has been held that the following with the general rules of coverage and
personnel are NOT domestic employees: exclusions for the applicability of the
(1) House personnel hired by a ranking Conditions of Employment provisions in Book
company official but paid by the III of the Labor Code.
company itself to maintain a staff house
provided for the official. [Cadiz v. B.2. NORMAL HOURS OF WORK
Philippine Sinter Corp, NLRC Case No. 7- General Rule: 8-Hour Labor Law
1729, cited by Azucena] The normal hours of work of any employee
(2) A family cook, who is later assigned to shall not exceed eight (8) hours a day. [Art. 83,
work as a watcher and cleaner of the LC]
employers business establishment,
becomes an industrial worker entitled to Note: Article 83 of the Labor Code only set a
receive the wages and benefits flowing maximum of number of hours as "normal
from such status. [Villa v. Zaragosa and hours of work" but did not prohibit work of less
29
UP LAW BOC LABOR STANDARDS LABOR LAW
than eight hours [Legend Hotel v. Realuyo General principles in determining if time is
(2012)] considered as hours worked [Book III, Rule 1,
Sec. 4, IRR]
Exception to the 8-Hour Law: Work Hours of (1) All hours are hours worked which the
Health Personnel employee is required to give his employer,
Health personnel in: regardless of whether or not such hours
(1) Cities and municipalities with a are spent in productive labor or involve
population of at least one million physical or mental exertion.
(1,000,000) OR (2) An employee need not leave the premises
(2) Hospitals and clinics with a bed capacity of the work place in order that his rest
of at least one hundred (100) shall hold period shall not be counted, it being
regular office hours for eight (8) hours a enough that he stops working, may rest
day, for five (5) days a week, exclusive of completely and may leave his work place
time for meals, except where the to go elsewhere, whether within or outside
exigencies of the service require that the premises of his work place.
such personnel work for six (6) days or (3) If the work performed was necessary, or it
forty-eight (48) hours, in which case, they benefited the employer, or the employee
shall be entitled to an additional could not abandon his work at the end of
compensation of at least thirty percent his normal working hours because he had
(30%) of their regular wage for work on no replacement, all time spent for such
the sixth day. work shall be considered as hours worked,
if the work was with the knowledge of his
For purposes of this Article, "health personnel" employer or immediate supervisor.
shall include resident physicians, nurses, (4) The time during which an employee is
nutritionists, dietitians, pharmacists, social inactive by reason of interruptions in his
workers, laboratory technicians, paramedical work beyond his control shall be
technicians, psychologists, midwives, considered working time either:
attendants and all other hospital or clinic (a) If the imminence of the resumption of
personnel. [Art. 83, LC] work requires the employees presence
at the place of work, or
Medical secretaries are also considered clinic (b) If the interval is too brief to be utilized
personnel. [Azucena] effectively and gainfully in the
employees own interest.
Compensable Hours of Work (Art. 84, LC)
Hours worked shall include: Rest period short duration or coffee break
(1) All time during which an employee is Rest periods of short duration during working
required to be on duty or to be at a hours shall be counted as hours worked. [Art.
prescribed workplace; AND 84, par. 2, LC]
(2) All time during which an employee is
suffered or permitted to work. Rest periods or coffee breaks running from five
(5) to twenty (20) minutes shall be considered
as compensable working time. [Book III, Rule 1,
Sec. 7, par. 2, IRR]
30
UP LAW BOC LABOR STANDARDS LABOR LAW
[Book 3, Rule 1, Sec. 4 (b), IRR.] premises; or the employees can use the time
An employee need not leave the premises of effectively for their own interest. In this case,
the work place in order that his rest period the employer may extend the working hours
shall not be counted it being enough that he beyond the regular schedule on that day to
stops working may rest completely and may compensate for the loss of productive man-
leave his work place to go elsewhere whether hours without being liable for overtime pay.
within or outside the premises of his work [Policy Instruction No. 36, May 22, 1978]
place.
Note: The time during which an employee is
On call inactive by reason of work interruptions beyond
An employee who is: his control is considered working time, either if
(1) Required to remain on call in the the imminence of the resumption of work
employers premises or so close thereto requires the employees presence at the place
(2) That he cannot use the time effectively of work or if the interval is too brief to be
and gainfully for his own purpose shall utilized effectively and gainfully in the
be considered as working while on call. employees own interest. [Book III, Rule 1 Sec.
4-c OR]
Book III, Rule 1, Sec. 5(b), IRR. An employee who is
not required to leave word at his home or with Necessary Work After Normal Hours
company officials where he may be reached is If the work performed was necessary, or it
NOT working while on call. benefited the employer, or the employee could
not abandon his work at the end of his normal
Inactive due to work interruptions working hours because he had no
The time during which an employee is inactive replacement, all the time spent for such work
by reason of interruptions in his work beyond shall be considered as hours worked if the work
his control shall be considered working time was with the knowledge of his employer or
either: immediate supervisor. [Book III, Rule 1, Sec. 4(c),
(1) If the imminence of the resumption of IRR]
work requires the employee's presence at
the place of work OR Lectures, meetings, trainings
(2) If the interval is too brief to be utilized Attendance at lectures, meetings, training
effectively and gainfully in the programs, and other similar activities shall not
employee's own interest. [Book III, Rule 1, be counted as working time if ALL of the
Sec. 4(d), IRR] following conditions are met:
(1) Attendance is outside of the employees
Work interruption due to brownouts regular working hours;
Brownouts of short duration, but not exceeding (2) Attendance is in fact voluntary; and
20 minutes, shall be treated as hours worked, (3) The employee does not perform any
whether used productively by the employees or productive work during such attendance.
not. [IRR, Book III, Rule 1, Sec. 6]
31
UP LAW BOC LABOR STANDARDS LABOR LAW
(2) Attendance in CBA negotiations or (2) Travel that is all in the days work Time
grievance meeting is compensable hours spent by an employee in travel from jobsite
worked. to jobsite during the workday, must be
(3) Attendance in hearings in cases filed by counted as hours worked. Where an
the employee is NOT compensable hours employee is required to report at a meeting
worked. place to receive instructions or to perform
other work there, the travel from the
Participation in strikes is NOT compensable designated place to the workplace is part
working time. of the days work.
(3) Travel away from home - Travel that keeps
Idle time an employee away from home overnight is
The idle time that an employee may spend for travel away from home. Travel away from
resting and dining which he may leave the spot home is worktime when it cuts across the
or place of work though not the premises of his employees workday. The time is hours
employer, is not counted as working time only worked not only on regular working hours
where the work is broken or is not continuous. but also during the corresponding hours on
[National Development Co. v. CIR (1962)] non-working days.
A laborer need not leave the premises of the Semestral Break of Private School Teachers
factory, shop or boat in order that his period of Regular full-time teachers are entitled to
rest shall not be counted, it being enough that salary during semestral breaks. These
he "cease to work", may rest completely and semestral breaks are in the nature of work
leave or may leave at his will the spot where he interruptions beyond the employees control.
actually stays while working, to go somewhere As such, these breaks cannot be considered as
else, whether within or outside the premises of absences within the meaning of the law for
said factory, shop or boat. If these requisites are which deductions may be made from monthly
complied with, the period of such rest shall not allowances. [University of the Pangasinan
be counted. [Luzon Stevedoring Co. v. Luzon Faculty Union v. University of Pangasinan
Marine Department Union (1957)] (1984)]
32
UP LAW BOC LABOR STANDARDS LABOR LAW
33
UP LAW BOC LABOR STANDARDS LABOR LAW
beyond eight hours is within threshold to save on energy costs, promote greater work
limits or tolerable levels of exposure, as set efficiency and lower the rate of employee
in the OSHS. absenteeism, among others. Workers favor the
(3) The employer shall notify DOLE, through scheme considering that it would mean
the Regional Office having jurisdiction over savings on the increasing cost of
the workplace, of the adoption of the CWW transportation fares for at least one (1) day a
scheme. The notice shall be in DOLE CWW week; savings on meal and snack expenses;
Report Form attached to this Advisory. longer weekends, or an additional 52 off-days
(DOLE Advisory No. 02-04) a year, that can be devoted to rest, leisure,
family responsibilities, studies and other
Effects of CWW personal matters, and that it will spare them
(1) Unless there is a more favorable practice for at least another day in a week from certain
existing in the firm, work beyond eight inconveniences that are the normal incidents
hours will not be compensable by overtime of employment, such as commuting to and
premium provided the total number of from the workplace, travel time spent,
hours worked per day shall not exceed exposure to dust and motor vehicle fumes,
twelve (12) hours. In any case, any work dressing up for work, etc. Thus, under this
performed beyond 12 hours a day or 48 scheme, the generally observed workweek of
hours a week shall be subject to overtime six (6) days is shortened to five (5) days but
premium. prolonging the working hours from Monday to
(2) Consistent with Art. 85 of the LC, Friday without the employer being obliged for
employees under a CWW scheme are pay overtime premium compensation for work
entitled to meal periods of not less than 60 performed in excess of eight (8) hours on
minutes. There shall be no impairment of weekdays, in exchange for the benefits above
the right of the employees to rest days as cited that will accrue to the employees. [Bisig
well as to holiday pay, rest day pay or Manggagawa sa Tryco v. NLRC, et al. (2008)]
leaves in accordance with law or applicable
collective bargaining agreement or B.3. MEAL BREAK
company practice. General Rule: Subject to such regulations as
(3) Adoption of the CWW scheme shall in no the Secretary of Labor may prescribe, it shall
case result in diminution of existing be the duty of every employer to give his
benefits. Reversion to the normal eight- employees not less than sixty (60) minutes
hour workday shall not constitute a time-off for their regular meals (Art. 85, LC)
diminution of benefits.
Exception:
Rationale Employees may be given a meal period of not
Although the right to overtime pay cannot be less than twenty (20) minutes provided that
waived as per Cruz v. Yee Sing (1959), D.O. No. such shorter meal period is credited as
21 sanctions the waiver of overtime pay in compensable hours worked of the employee:
consideration of the benefits that the (1) Where the work is non-manual work in
employees will derive from the adoption of a nature or does not involve strenuous
compressed workweek scheme, thus: physical exertion;
(2) Where the establishment regularly
The compressed workweek scheme was operates not less than sixteen (16) hours
originally conceived for establishments wishing a day;
34
UP LAW BOC LABOR STANDARDS LABOR LAW
(3) In case of actual or impending The employees themselves may request that
emergencies or there is urgent work to the meal period be shortened so that they can
be performed on machineries, leave work earlier than the previously
equipment or installations to avoid established schedule. [Drilon: Letter to Kodak
serious loss which the employer would Philippines, Nov. 27, 1989; also Cilindro: BWC-
otherwise suffer; and WHSD Opinion No. 197, s. 1998]
(4) Where the work is necessary to prevent
serious loss of perishable goods [Book 3, Conditions for shortened meal breaks upon
Rule 1, Sec. 7 par 1, IRR] employees request .
(1) The employees voluntarily agree in writing
Employees are not prohibited from going out to a shortened meal period of 30 minutes
of the premises as long as they return to their and are willing to waive the overtime pay
posts on time. Nowhere in the law may it be for such shortened meal period;
inferred that employees must take their meals (2) There will be no diminution whatsoever in
within the company premises. [Philippine the salary and other fringe benefits of the
Airlines v. NLRC (1999)] employees existing before the effectivity of
the shortened meal period;
Synthesis of the Rules (3) The work of the employees does not
involve strenuous physical exertion and
General Rule: Meal periods are NOT they are provided with adequate coffee
compensable. breaks in the morning and afternoon.
Exception: (4) The value of the benefits derived by the
It becomes compensable: employees from the proposed work
(1) Where the lunch period or meal time is arrangement is equal to or commensurate
predominantly spent for the employers with the compensation due them for the
benefit. [Azucena citing 31 Am. Jur. 881; shortened meal period as well as the
Duka, Labor Laws and Social Legislation] overtime pay for 30 minutes as determined
(2) Meal periods of 1 hour is deemed by the employees concerned;
compensable when the employee is on (5) The overtime pay of the employees will
continuous shift. (National Development become due and demandable if ever they
Co. v. CIR, G.R. No. L-15422, Nov. 30, 1962) are permitted or made beyond 4:30pm;
(3) Shortened meal period of less than 1 hour and
(say, 30 minutes) must be compensable. (6) The effectivity of the proposed working
(Sec. 7, Rule I, Book III, IRR) time arrangement shall be of temporary
duration as determined by the Secretary of
Note: To shorten meal time to less than 20 Labor.
minutes is not allowed. If the so-called meal
time is less than 20 minutes, it becomes only a
REST PERIOD and is considered working time.
35
UP LAW BOC LABOR STANDARDS LABOR LAW
B.4. WAITING TIME regular wage plus at least twenty five percent
[Book III, Rule I Sec. 5(a), IRR] (25%) thereof.
Waiting time spent by an employee shall be
considered as working time if waiting is an Overtime work on holiday or rest day
integral part of his work or the employee is Art. 87, LC. Work performed beyond eight
required or engaged by the employer to wait. hours on a holiday or rest day shall be paid an
additional compensation equivalent to the rate
[Book 3, Rule 1, Sec. 5(b), IRR] of the first eight hours on a holiday or rest day
An employee who is required to remain on call plus at least thirty percent (30%) thereof.
in the employers premises or so close thereto
that he cannot use the time effectively and Computation of additional compensation
gainfully for his own purpose shall be Art. 90, LC. For purposes of computing
considered as working while on call. overtime and other additional remuneration as
required by this Chapter the "regular wage" of
Legal test: Whether waiting time constitutes an employee shall include the cash wage only
working time depends upon the circumstances without deduction on account of facilities
of each particular case. The facts may show provided by the employer.
that the employer was engaged or was waiting
to be engaged. The controlling factor is Base of Computation: Regular wage means
whether waiting time spent in idleness is so regular base pay; it excludes money received in
spent predominantly for the employers benefit different concepts such as Christmas bonus
or for the employees. [Azucena citing Armour and other fringe benefits. [Bisig ng
v. Wantock] Manggagawa ng Philippine Refining Co. v.
Philippine Refining Co (1981)]
B.5. OVERTIME WORK, OVERTIME PAY
BUT when the overtime work was performed
Overtime compensation is additional pay for
on the employees rest day or on special days or
service or work rendered or performed in
regular holidays (Art. 93 and 94), the premium
excess of eight hours a day by employees or
pay, must be included in the computation of
laborers covered by the Eight-hour Labor Law.
the overtime pay.
[National Shipyard and Steel Corp. v. CIR (1961)]
[SEE: p. 19 of Handbook on Workers
Statutory Monetary Benefits, issued by the
Rationale
There can be no other reason than that he is Bureau of Working Conditions, 2006]
made to work longer than what is
commensurate with his agreed compensation Emergency overtime [Art. 89, LC]
for the statutorily fixed or voluntary agreed Any employee may be required by the
hours of labor he is supposed to do. [PNB v. employer to perform overtime work in any of
PEMA (1982)] the following cases:
(1) When the country is at war or when any
Overtime on ordinary working day other national or local emergency has been
declared by the National Assembly or the
Art. 87, LC. Work may be performed beyond
Chief Executive;
eight (8) hours a day provided that the
(2) When it is necessary to prevent loss of life
employee is paid for the overtime work, an
or property or in case of imminent danger
additional compensation equivalent to his
to public safety due to an actual or
36
UP LAW BOC LABOR STANDARDS LABOR LAW
37
UP LAW BOC LABOR STANDARDS LABOR LAW
them in overtime pay, the waiver MAY be to provide safe and healthful working
permitted. [Meralco Workers Union v. conditions and adequate or reasonable
MERALCO (1959)] facilities such as sleeping or resting quarters in
the establishment and transportation from the
Composite or Package Pay NOT per se illegal work premises to the nearest point of their
Composite or package pay or all-inclusive residence subject to exceptions and guidelines
salary is an arrangement where the to be provided by the DOLE. [Art. 156, RA 10151]
employees salary includes the overtime pay. In
other words, the overtime pay is built-in. Transfer
Night workers who are certified as unfit for
The conditions for validity of the arrangement night work, due to health reasons, shall be
are: transferred to a similar job for which they are
(1) There is a clear written agreement fit to work. If such is not practicable, they shall
knowingly and freely entered by the be granted the same benefits as other workers
employee; and who are unable to work, or to secure
(2) The mathematical result shows that the employment during such period. [Art. 157, RA
agreed legal wage rate and the overtime 1015]
pay, computed separately, are equal to or
higher than the separate amounts legally
due. [Damasco v. NLRC (2000)] Women Night Workers [Art. 158, RA 10151]
Measures shall be taken to ensure that an
B.6. NIGHT WORK, NIGHT SHIFT alternative to night work is available to women
DIFFERENTIAL workers who would otherwise be called upon
Night worker to perform such work:
Any employed person whose work requires (1) Before and after childbirth, for a period of
performance of a substantial number of hours at least sixteen (16) weeks, which shall be
of night work which exceed a specified limit. divided between the time before and after
This limit shall be fixed by the Sec of Labor childbirth;
after consulting the workers (2) For additional periods, in respect of which
representatives/labor organizations and a medical certificate is produced stating
employers. [Art. 154, RA 10151] that said additional periods are necessary
for the health of the mother or child:
Health Assessment (a) During pregnancy;
At the workers request, they shall have the (b) During a specified time beyond the
right to undergo a health assessment without period, after childbirth is fixed
charge and to receive advice on how to reduce pursuant to subparagraph (1) above,
or avoid health problems associated with their the length of which shall be
work. [Art. 155, RA 10151] determined by the DOLE after
consulting the labor organizations and
Mandatory Facilities employers.
Suitable first-aid facilities shall be made
available for workers, including arrangements Night shift differential [Art. 86, LC]
where they, when necessary, can be taken The additional compensation of 10% of an
immediately to a place for appropriate employees regular wage for each hour of work
treatment. The employers are likewise required performed between 10pm and 6am.
38
UP LAW BOC LABOR STANDARDS LABOR LAW
39
UP LAW BOC LABOR STANDARDS LABOR LAW
Fair and reasonable value - shall not include Note: Workers in registered barangay micro
any profit to the employer, or to any person business enterprise are only exempted from
affiliated with the employer. [Art. 97(f), LC] the Minimum Wage Law, not from the Title on
Wages (RA 9178).
No work no pay principle
General Rule: the age old rule governing the C.1. WAGE VS. SALARY
relation between labor and capital or Wages and salary are in essence synonymous.
management and employee is that a "fair day's [Songco v. NLRC (1990)]
wage for a fair day's labor." [Sugue v. Triumph There are slight differences:
International (2009)] Wage Salary
Exception: When the laborer was able, willing Paid for skilled or Paid to white collar
and ready to work but was illegally locked out, unskilled manual labor workers and denote a
suspended or dismissed, or otherwise illegally higher grade of
prevented from working. [Sugue v Triumph employment
International, supra] Not subject to Not exempt from
execution, execution,
Equal Work for Equal Pay Principle garnishment or garnishment or
Employees working in the Philippines, if they attachment except for attachment [Gaa vs.
are performing similar functions and debts related to CA, 1985]
responsibilities under similar working necessities [Art. 1708]
conditions should be paid equally. If an
employer accords employees the same C.2. MINIMUM WAGE
position and rank, the presumption is that
See also: DOLE Bureau of Working Conditions
these employees perform equal work.
Handbook on Workers Statutory Monetary
[International School Alliance of Educators v.
Benefits and Wage Order No. NCR-19
Hon. Quisumbing (2000)]
Definition
Coverage/Exclusions
Statutory minimum wage is the lowest wage
[Art. 98 and Book 3, Rule VII, Sec 3, IRR]
rate fixed by law that an ER can pay his
The Labor Code Title on wages shall not apply
workers. [IRR, RA 6727, (o)]
to the following:
(1) Farm tenancy or leasehold;
Coverage
(2) Household or domestic helpers,
General Rule: The wage increases prescribed
including family drivers and other
under Wage Orders apply to all private sector
persons in the personal service of
workers and employees receiving the daily
another;
minimum wage rates or those receiving up to a
(3) Homeworkers engaged in needlework;
certain daily wage ceiling, where applicable,
(4) Workers in registered cottage industries
regardless of their position, designation, or
who actually work at home;
status, and irrespective of the method by which
(5) Workers in registered cooperatives when
their wages are paid.
so recommended by the Bureau of
Cooperative Development upon approval
Exceptions:
of the Secretary of Labor;
40
UP LAW BOC LABOR STANDARDS LABOR LAW
(1) Domestic Helpers/kasambahay are (3) Cost of living and changes or increases
covered by RA 10361 therein;
(2) Workers of registered barangay micro (4) The needs of workers and their families;
business enterprise with Certificates of (5) The need to induce industries to invest in
Authority issued by the Office of the the countryside;
Municipal or City Treasurer. [RA 9178] (6) Improvements in standards of living;
(3) Learners [RA 602] (7) Prevailing wage levels;
(4) Apprentices [RA 602] (8) Fair return of the capital invested and
(5) Handicapped Worker [RA 602] capacity to pay of employers;
(9) Effects in employment generation and
Exemptions upon Approval family income; and
Upon application with and as determined by (10) Equitable distribution of income and
the Regional Tripartite Wages and Productivity wealth along the imperatives of economic
Board, based on documentation and other and social development. [Art. 124, LC]
requirements in accordance with applicable
rules and regulations issued by the NWPC, the Procedure for Wage Fixing by Regional Board
following may be exempted from the (Art. 123 , LC)
applicability of this Order: (1) Investigate and study pertinent facts,
(1) Distressed establishments; based on criteria set in Art. 124
(2) Retail/Service establishments regularly (2) Conduct public hearings or consultations
employing not more than 10 workers; with notice to employer and employee
(3) Establishments adversely affected by groups, provinces, city, municipal officials
natural calamities. [Sec. 8, Wage Order No. and other interested parties
19, 2014] (3) Decide to ISSUE or NOT TO ISSUE a wage
order
Basis Frequency: Wage orders issued may
The basis of the minimum wage rates not be disturbed for 12 months from
prescribed by law shall be the normal working effective date; this serves as a bar for
hours of 8 hours a day. [Sec 7, IRR of RA 6727] petitions for wage hikes as well
Except: when Congress passes a new
Freedom to bargain law affecting wages or other
Despite the minimum wage order, employees supervening circumstances
are not prevented from bargaining for higher Effectivity: If it decides to ISSUE a wage
wages with their employers. order, the wage order takes effect after
15 days from complete publication in at
Note: Daily minimum wage in NCR applicable least 1 newspaper of general
from Apr. 4, 2015 is now P481 [Wage Order circulation in the region
No. NCR-19] (4) Appeal wage order to Commission within
10 calendar days; mandatory for the
Factors/Criteria in determining regional Commission to decide within 60 calendar
minimum wages: days from filing
(1) Demand for living wages;
(2) Wage adjustment the consumer price Note: Filing of an appeal DOES NOT STAY
index; order unless appellant files an undertaking
with a surety, to guarantee payment of
41
UP LAW BOC LABOR STANDARDS LABOR LAW
employees if the wage order is affirmed (as Note: Learners employed in piece or incentive-
amended by RA 6727) rate jobs during the training period shall be
paid in full for the work done. [Art. 76, LC]
C.3. MINIMUM WAGE OF WORKERS PAID
BY RESULTS The Secretary of Labor and Employment may
authorize the hiring of apprentices without
C.3.I. WORKERS PAID BY RESULTS compensation whose training on the job is
All workers paid by result, including those who required by the school or training program
are paid on piecework, takay, pakyaw or task curriculum or as requisite for graduation or
basis, shall receive not less than the prescribed board examination. [Art. 72, LC]
wage rates per eight (8) hours of work a day, or C.3.III. MINIMUM WAGE OF PERSONS
a proportion thereof for working less than eight WITH DISABILITY
(8) hours. [Art. 124, LC] A qualified disabled employee shall be subject
to the same terms and conditions of
The wage rates of workers who are paid by employment and the same compensation,
results shall continue to be established in privileges, benefits, fringe benefits or
accordance with Art. 101 of the LC, as allowances as a qualified able-bodied persons.
amended, and its IRR. This will be done [Sec 5, RA 7277, The Magna Carta for Disabled
through: Persons]
(1) Time and motion studies.
(2) Consultation with representatives of C.4. COMMISSIONS
ERs and workers organizations in a Commissions have been defined as the
tripartite conference called by the recompense, compensation or reward of an
DOLE Sec. agent, salesman, executor, trustee, receiver,
factor, broker or bailee, when the same is
Request for the conduct of time and motion calculated as a percentage on the amount of
studies, to determine whether the non-time his transactions or on the profit to the
employees in an enterprise are being paid fair principal. [Philippine Duplicators, Inc. v. NLRC
and reasonable wage rates, may be filed with (1993)]
the proper Regional Office.
Commissions as part of minimum wage
Where the output rates established by the The Court held that the definition of wage
employer do not conform to the standards set under Art. 97 (f) of the LC explicitly includes
under the foregoing methods for establishing commissions as part of wages. While
output rates, the employee shall be entitled to commissions are, indeed, incentives or forms of
the difference between the amount he/she is encouragement to inspire employees to put a
entitled to receive and the amount paid by the little more industry on the jobs particularly
employer. assigned to them, still these commissions are
direct remunerations for services rendered.
C.3.II MINIMUM WAGE OF APPRENTICES
AND LEARNERS Likewise, there is no law mandating that
Wages of apprentices and learners shall in no commissions be paid only after the minimum
case be less than 75% of the applicable wage has been paid to the employee. Verily,
minimum wage rates. [Art. 61 & 75, LC] the establishment of a minimum wage only
sets a floor below which an employees
42
UP LAW BOC LABOR STANDARDS LABOR LAW
43
UP LAW BOC LABOR STANDARDS LABOR LAW
44
UP LAW BOC LABOR STANDARDS LABOR LAW
45
UP LAW BOC LABOR STANDARDS LABOR LAW
the statutory requirement (Philippine National case of workers paid on daily basis. (Wellington
Bank vs. PEMA, 1982) Investment Inc. v. Trajano, 1995)
46
UP LAW BOC LABOR STANDARDS LABOR LAW
47
UP LAW BOC LABOR STANDARDS LABOR LAW
48
UP LAW BOC LABOR STANDARDS LABOR LAW
(5) Id-ul-Adha (Hari Raha Haji) which falls on scheduled rest day, if it regular daily wage
the tenth (10th) day of the twelfth (12th) exceeds 8 plus 30% of such
lunar month of Dhul-Hijja. hours/overtime amount) + 30% of
hourly rate on said
Note: Id-ul-Fitr (Eidl Fitr) and Id-ul-Adha (Eidl day.
Adha) have been added to the list of national
Work on special Regular daily wage +
legal holidays.
holiday not exceeding 30% thereof
8 hours
Note: There should be no distinction between
Muslims & non-Muslims as regards to the Work on special Regular daily wage +
payment of benefits for Muslim holidays. holiday 50% thereof
Wages & other emoluments granted bylaw to
the workingman are determined on the basis According to DOLE Memo Circular 1 -04, a
of the criteria laid down by laws & not on special holiday/special day includes the
workers faith. Art. 3(3), PD 1083 states that National Special Days, and declared special
nothing herein shall be construed to operate to days such as Special Non-working Holiday,
the prejudice of a non-Muslim. [San Miguel Special Public Holiday and Special National
Corp vs. CA (2002)] Holiday. Such days are entitled to the rates
prescribed above. These days are not the same
Holiday pay computation (Art. 94 Labor Code, as a special working holiday.
Book III, Rule IV of IRR, RA 9424 and DOLE
Memorandum Circular 1 Series of 2004) A special working holiday is considered an
ordinary working day, so there is no premium
General Rule: An employer may require an pay.
employee to work on any holiday but such
employee shall be paid a compensation Double holiday pay
equivalent to twice his regular rate. [Art. 94(b)] According to DOLE Explanatory Bulletin on
Workers Entitlement to Holiday Pay on 9 April
According to the LC, IRR and Memo: 1993, if two holidays fall on the same day:
Work on any regular (1) If unworked, 200% of basic wage.
holiday, not Computation (2) If worked, 300% of basic wage.
exceeding 8 hours [Azucena]
Work on any regular 200% of regular daily Double Holiday Rule for Monthly-paid
holiday, if it exceeds 8 wage (for the 1st 8 employees
hours/overtime hours) For covered employees whose monthly salaries
+ 30% of hourly rate are computed based on 365 days and for those
on said day other employees who are paid using factor 314,
Work on any regular 200% of regular daily or 262, or any other factor which already
holiday which falls on wage + 30% of such considers the payment for the 11 regular
the scheduled rest day, amount holidays, NO additional payment is due them.
not exceeding 8 hours [BWC-WHSD Opinion No. 053, s. 1998]
Work on any regular Regular holiday-on-
holiday which falls on rest day rate (200% of
49
UP LAW BOC LABOR STANDARDS LABOR LAW
50
UP LAW BOC LABOR STANDARDS LABOR LAW
51
UP LAW BOC LABOR STANDARDS LABOR LAW
Seasonal workers
Seasonal workers who do not work during off-
season are not entitled to pay for the regular
holidays occurring during their off-season.
Workers assigned to skeleton crews that
work during the off-season have the right to be
paid on regular holidays falling in that
duration.
52
UP LAW BOC LABOR STANDARDS LABOR LAW
53
UP LAW BOC LABOR STANDARDS LABOR LAW
54
UP LAW BOC LABOR STANDARDS LABOR LAW
Only 4 maternity leaves available basis). The purpose of this benefit is to allow
The maternity benefits provided under the the husband to lend support to his wife during
Social Security Law shall be paid only for the her period of recovery and/or in nursing her
first four (4) deliveries or miscarriages newborn child. [Sec. 3, RA 8187]
55
UP LAW BOC LABOR STANDARDS LABOR LAW
may be provided by company rules and Any solo parent or individual who is left alone
regulations, or by CBA; and, with the responsibility of parenthood due to:
(5) His wife has given birth or suffered a (1) Giving birth as a result of rape or and other
miscarriage. crimes against chastity even without a final
conviction of the offender: Provided, That
Application for paternity leave the mother keeps and raises the child;
See number 4 under conditions for entitlement. (2) Death of spouse;
(3) Spouse is detained or is serving sentence
In case of miscarriage, prior application for for a criminal conviction for at least one (1)
paternity leave shall not be required. [Sec. 4, year;
IRR, RA 8187] (4) Physical and/or mental incapacity of
spouse as certified by a public medical
Non-conversion to cash practitioner;
In the event that the paternity leave is not (5) Legal separation or de facto separation
availed of, it shall not be convertible to cash from spouse for at least one (1) year:
and shall not be cumulative. [Sec. 7, IRR, RA Provided, that he/she is entrusted with the
8187] custody of the children;
(6) Declaration of nullity or annulment of
Crediting of existing benefits marriage as decreed by a court or by a
(1) If the existing paternity leave benefit under church: Provided, that he/she is entrusted
the CBA, contract, or company policy is with the custody of the children;
greater than 7 calendar days as provided (7) Abandonment of spouse for at least one (1)
for in RA 8187, the greater benefit shall year;
prevail. (8) Unmarried father/mother who has
(2) If the existing paternity leave benefit is less preferred to keep and rear his/her
than that provided in RA 8187, the ER shall child/children, instead of having others
adjust the existing benefit to cover the care for them or give them up to a welfare
difference. institution;
(9) Any other person who solely provides
Where a company policy, contract, or CBA parental care and support to a child or
provides for an emergency or contingency children: Provided, that he/she is duly
leave without specific provisions on paternity licensed as a foster parent by the
leave, the ER shall grant to the employee 7 Department of Social Welfare and
calendar days of paternity leave. [Sec. 9, IRR, Development (DSWD) or duly appointed
RA 8187] legal guardian by the court; and
(10) Any family member who assumes the
F.4. PARENTAL LEAVE responsibility of head of family as a result
[RA 8972 (Solo Parents Welfare Act of 2000)] of the death, abandonment,
Leave benefits granted to a solo parent to disappearance, or prolonged absence of
enable him/her to perform parental duties and the parents or solo parent for at least one
responsibilities where physical presence is (1) year. [Sec. 3 (a), RA 8972]
required. [Sec. 3 (d), RA 8972]
Conditions for entitlement
Coverage A solo parent employee shall be entitled to the
parental leave under the following conditions:
56
UP LAW BOC LABOR STANDARDS LABOR LAW
(1) He/she has rendered at least one (1) year of F.5. LEAVES FOR VICTIMS OF VIOLENCE
service, whether continuous or broken; AGAINST WOMEN
(2) He/she has notified his/her employer that [RA 9262 (Anti-Violence against Women and
he/she will avail himself/herself of it, Their Children Act of 2004)]
within a reasonable period of time; and
(3) He/she has presented to his/her employer Coverage and purpose
a Solo Parent Identification Card, which VAWC leave is granted to women employees
may be obtained from the DSWD office of who are victims of violence, as defined in RA
the city or municipality where he/she 9262. The leave benefit covers the days that
resides. [Sec 19, Art. V, IRR, RA 8972] the women employee has to attend to medical
or legal concerns.
Availment
The parental leave is in addition to leave Definition of Terms
privileges under existing laws with full pay, Violence against women and their children
consisting of basic salary and mandatory refers to any act or a series of acts committed
allowances. It shall not be more than seven (7) by any person against a woman who is his wife,
working days every year. [Sec. 8, RA 8972] former wife, or against a woman with whom
the person has or had a sexual or dating
Grant of flexible work schedule relationship, or with whom he has a common
The employer shall provide for a flexible child, or against her child whether legitimate
working schedule for solo parents: Provided, or illegitimate, within or without the family
That the same shall not affect individual and abode, which result in or is likely to result in
company productivity: Provided, further, That physical, sexual, psychological harm or
any employer may request exemption from the suffering, or economic abuse including threats
above requirements from the DOLE on certain of such acts, battery, assault, coercion,
meritorious grounds. [Sec. 6, RA 8972] harassment or arbitrary deprivation of liberty.
Protection against work discrimination VAWC includes, but is not limited to, the
No employer shall discriminate against any following acts:
solo parent employee with respect to terms (1) Physical Violence" refers to acts that
and conditions of employment on account of include bodily or physical harm;
his/her status. [Sec. 7, RA 8972] (2) "Sexual violence" refers to an act which is
sexual in nature, committed against a
Termination of the benefit woman or her child. It includes, but is not
A change in the status or circumstance of the limited to:
parent claiming the benefit under the law, (a) Rape, sexual harassment, acts of
such that he/she is no longer left alone with lasciviousness, treating a woman or
the responsibility of parenthood, shall her child as a sex object, making
terminate his/her eligibility for these benefits. demeaning and sexually suggestive
[Sec. 3 (a), RA 8972] remarks, physically attacking the
sexual parts of the victim's body,
forcing her/him to watch obscene
publications and indecent shows or
forcing the woman or her child to do
indecent acts and/or make films
57
UP LAW BOC LABOR STANDARDS LABOR LAW
thereof, forcing the wife and (d) Controlling the victims' own money or
mistress/lover to live in the conjugal properties or solely controlling the
home or sleep together in the same conjugal money or properties. [Sec.3,
room with the abuser; RA 9262]
(b) Acts causing or attempting to cause
the victim to engage in any sexual Requirement for entitlement
activity by force, threat of force, To be entitled to the leave benefit, the only
physical or other harm or threat of requirement is for the victim-employee to
physical or other harm or coercion; present to her employer a certification from the
(c) Prostituting the woman or child. barangay chairman or barangay councilor or
(3) "Psychological violence" refers to acts or prosecutor or the Clerk of Court, as the case
omissions causing or likely to cause mental may be, that an action relative to the matter is
or emotional suffering of the victim such as pending.
but not limited to intimidation,
harassment, stalking, damage to property, Benefit
public ridicule or humiliation, repeated In addition to other paid leaves under existing
verbal abuse and mental infidelity. It labor laws, company policies, and/or CBA, the
includes causing or allowing the victim to qualified victim-employee shall be entitled to a
witness the physical, sexual or leave of up to 10 days with full pay, consisting
psychological abuse of a member of the of basic salary and mandatory allowances fixed
family to which the victim belongs, or to by the Regional Wage Board, if any.
witness pornography in any form or to
witness abusive injury to pets or to Usage of the benefit
unlawful or unwanted deprivation of the The usage of the 10-day leave shall be at the
right to custody and/or visitation of option of the woman employee. In the event
common children. that the leave benefit is not availed of, it shall
(4) "Economic abuse" refers to acts that make not be convertible into cash and shall not be
or attempt to make a woman financially cumulative.
dependent which includes, but is not
limited to the following: A victim of VAWC who is employed shall be
(a) Withdrawal of financial support or entitled to a paid leave of up to ten (10) days in
preventing the victim from engaging in addition to other paid leaves under the Labor
any legitimate profession, occupation, Code and Civil Service Rules and Regulations
business or activity, except in cases and other existing laws and company policies:
wherein the other spouse/partner (1) At any time during the application of any
objects on valid, serious and moral protection order, investigation, prosecution
grounds as defined in Article 73 of the and/or trial of the criminal case, extendible
Family Code; when the necessity arises as specified in
(b) Deprivation or threat of deprivation of the protection order.
financial resources and the right to the (2) Upon the issuance of the Punong
use and enjoyment of the conjugal, Barangay/kagawad or prosecutor or the
community or property owned in Clerk of Court, as the case may be, of a
common; certification (at no cost) to the woman that
(c) Destroying household property; such an action is pending, and this is all
58
UP LAW BOC LABOR STANDARDS LABOR LAW
that is required for the employer to comply within the said 12-month period is sufficient to
with the 10- day paid leave. entitle her to avail of the special leave benefit.
(3) For government employees, in addition to
the aforementioned certification, the Employment service
employee concerned must file an Includes absences with pay such as use of
application for leave citing as basis R.A. other mandated leaves, company-granted
9262. [Sec. 42, IRR, RA 8972] leaves and maternity leaves
Special leave benefit for women Conditions for entitlement of special leave
A female employees leave entitlement of two Any female employee, regardless of age and
(2) months with full pay from her employer civil status, shall be entitled to a special leave
based on her gross monthly compensation benefit, provided she has complied with the
following surgery caused by gynecological following conditions:
disorders, provided that she has rendered (1) She has rendered at least 6 months
continuous aggregate employment service of continuous aggregate employment service
at least six (6) months for the last 12 months. for the last 12 months prior to surgery;
(2) She has filed an application for special
Gynecological disorders leave
Disorders that would require surgical (3) She has undergone surgery due to
procedures such as, but not limited to, gynecological disorders as certified by a
dilatation and curettage and those involving competent physician. [Sec. 2, DO 112]
female reproductive organs such as the vagina,
cervix, uterus, fallopian tubes, ovaries, breast, Application for special leave
adnexa and pelvic floor, as certified by a Application before surgery
competent physician. It shall also include The employee shall file her application for
hysterectomy, ovariectomy, and mastectomy. leave with her employer within a reasonable
period of time from the expected date of
Gross monthly compensation surgery, or within such period as may be
The monthly basic pay plus mandatory provided by company rules and regulations or
allowances fixed by the regional wage boards. by CBA.
[Sec. 7, Rule II, IRR, RA 9710]
Application after surgery
At least six months continuous aggregate Prior application for leave shall not be
employment service for the last 12 months prior necessary in cases requiring emergency
to surgery surgical procedure, provided that the employer
The woman employee should have been with shall be notified verbally or in written form
the company for 12 months prior to surgery. An within a reasonable period of time and
aggregate service of at least six (6) months provided further that after the surgery or
appropriate recuperating period, the female
59
UP LAW BOC LABOR STANDARDS LABOR LAW
employee shall immediately file her victims of VAWC, Parental leave for solo
application using the prescribed form. [Sec. 3, parents). The grant of SLB under the law is in
DO 112] recognition of the fact that patients with
gynecological disorder needing surgery require
Period of entitlement a longer period of recovery. The benefit is
The 2 months special leave is the maximum considered an addition to the leave benefits
period of leave with pay that a woman granted under existing laws and should be
employee may avail of under RA 9710. added on top of said statutory leave
entitlements.
For purposes of determining the period of
leave with pay that will be allowed to a female If the SLB has already been exhausted, the
employee, the certification of a competent company leave and other mandated leave
physician as to the required period of benefits may be availed of by the woman
recuperation shall be controlling. [Sec. 4, DO employee. [Sec. 8, DO 112, as amended]
112, as amended]
Special leave benefit vis--vis maternity leave
Availment benefit
The special leave shall be granted to the Where the woman employee had undergone
qualified employee after she has undergone surgery due to gynecological disorder during
surgery. [Sec. 5, DO 112, as amended] her maternity leave, she is entitled only to the
difference between the SLB and maternity
Frequency of availment leave benefit. [Sec. 9, DO 112, as amended]
A woman employee can avail of the SLB for
every instance of surgery due to gynecological Crediting of existing or similar benefits
disorder for a maximum total period of 2 If there are existing or similar benefits under a
months per year. [Sec. 6, DO 112, as amended] company policy, practice or CBA providing
similar or equal benefits to what is mandated
Special leave benefit vis--vis SSS sickness by law, the same shall be considered as
benefit compliance, unless the company policy,
The SLB is different from the SSS sickness practice or CBA provides otherwise.
benefit. The former is granted by the employer
in accordance with RA 9710. In the event the company policy, practice or
CBA provides lesser benefits, the company
It is granted to a woman employee who has shall grant the difference.
undergone surgery due to gynecological
disorder. The SSS sickness benefit, on the More liberal existing or similar benefits cannot
other hand, is administered and given by the be withdrawn or reduced by reason of the
SSS in accordance with RA 1161 as amended by mandate of RA 9710.
RA 8282. [Sec. 7, DO 112, as amended]
The term similar or equal benefits refers to
leave benefits which are of the same nature
Special leave benefit vis--vis existing statutory and purpose as that of the SLB. [Sec. 10, DO
leaves 112, as amended]
The SLB cannot be taken from existing
statutory leaves (i.e. 5-day SIL, leave for
60
UP LAW BOC LABOR STANDARDS LABOR LAW
61
UP LAW BOC LABOR STANDARDS LABOR LAW
in the same manner as the services (2) Employers already paying their employees
charges. (DOLE Handbook on Workers a 13th month pay or more in a calendar
Statutory Monetary Benefits, 2014ed.) year or its equivalent at the time of this
The amount collected is divided between issuance; and
the company (15%) and employees (85%); (3) Employers of those who are paid on purely
It shall be given twice a month with commission, boundary or task basis and
intervals of not more than 15 days; those who are paid a fixed amount for
If discontinued, removed, or stopped, the performing specific work, irrespective of
average share of the employees of their the time consumed in the performance
service charge or tips shall be integrated thereof (except those workers who are paid
with their basic wage. on piece-rate basis, in which case their
employer shall grant them 13 th month pay).
H. THIRTEENTH (13TH) MONTH PAY
Note:
AND OTHER BONUSES Equivalent includes:
(1) Christmas bonus, mid-year bonus, cash
(PD 851 (The 13 th-Month Pay Law) and the bonuses
Revised Guidelines on the Implementation of (2) and other payments amounting to not
the 13th Month Pay Law) less than 1/12 of the basic salary
(3) but shall NOT INCLUDE cash and stock
Rationale dividends, cost of living allowances and
To further protect the level of real wages all other allowances regularly enjoyed
from the ravage of world-wide inflation; by the employee as well a non-
There has been no increase in the legal monetary benefits.
minimum wage rates since 1970;
The Christmas season is an opportune time Workers paid on a piece-rate basis
for society to show its concern for the Those who are paid a standard amount for
plight of the working masses so they may every piece or unit of work produced that is
properly celebrate Christmas and New more or less regularly replicated, without
Year. regard to the time spent in producing the
same.
Coverage
General Rule: ALL EMPLOYERS are hereby Minimum Amount: 1/12 of the total basic
required to pay all their rank and file salary earned by an employee within a
employees a 13th month pay not later than Dec calendar year
24 of every year, Provided that they have
worked for at least one (1) month during a BASE AMOUNT, which is the basic salary shall
calendar year. include:
(1) Cost of living allowances (COLA) integrated
Exempted Employers: into the basic salary of a covered employee
(1) Government, its political subdivisions, pursuant to EO 178.
including GOCCs except those operating (2) All remunerations or earnings paid by this
essentially as private subsidiaries of the employer for services rendered.
Government; (3) But not the allowances and monetary
benefits which are not considered or
62
UP LAW BOC LABOR STANDARDS LABOR LAW
integrated as part of the regular or basic from all their private Employers regardless
salary, such as the cash equivalent of: of their total earnings from each or all their
(a) Unused vacation and sick leave employers. (Revised Guidelines)
credits, (4) Private School Teachers: Private school
(b) Overtime, teachers, including faculty members of
(c) Premium, universities and colleges, are entitled to
(d) Night differential, the required 13th month pay, regardless of
(e) Holiday pay and, and the number of months they teach or are
(f) Cost-of-living allowances. paid within a year, if they have rendered
service for at least one (1) month within a
Time of payment year. (Revised Guidelines)
General Rule: paid not later than Dec 24 of
each year. Overload pay is NOT included in the
computation for 13 th month pay; overload is
Exception: ER may give to his employees half not overtime as it is additional work done
() of the required 13th Month Pay before the within the normal shift [Letran Calamba
opening of the regular school year and the Faculty vs NLRC, (2008)]
other half on or before the 24th of December (1) Resigned or Separated Employee: An
every year. Employee who has resigned or whose
services were terminated at any time
The frequency of payment of this monetary before the time for payment of the 13th
benefit may be the subject of agreement month pay is entitled to this monetary
between the employer and the recognized benefit in proportion to the length of time
CBA of the employees. he worked during the year, reckoned from
the time he started working during the
13th Month Pay in Special Cases calendar year up to the time of his
(1) Paid by Results: Employees who are paid resignation or termination from service.
on piece work basis are, by law, entitled to [Revised Guidelines]
the 13th Month Pay. (Revised Guidelines on (2) Wage Difference: The difference between
the Implementation of the 13 th Month Pay the minimum wage and the actual salary
Law) received by the Employee cannot be
(2) Fixed or Guaranteed Wage: Employees who deemed as his 13 th month pay as such
are paid a fixed or guaranteed wage plus difference is not equivalent to or of the
commission are entitled to 13th month pay same import as the said benefit
(not purely commission); the basis for contemplated by law. [JPL Marketing
computation shall be both their fixed or Promotions vs CA, 2005]
guaranteed wage and commission. (3) Terminated Employees: The payment of the
(Revised Guidelines) 13th month pay may be demanded by the
(3) Those with Multiple Employers: employee upon the cessation of employer-
Government Employees working part time employee relationship. [Archilles
in a private enterprise, including private Manufacturing Corp. vs NLRC, 1995]
educational institutions, as well as
Employees working in two or more private
firms, whether on full or part time bases,
are entitled to the required 13th Month Pay
63
UP LAW BOC LABOR STANDARDS LABOR LAW
64
UP LAW BOC LABOR STANDARDS LABOR LAW
General rule: The rule embodied in the Labor Handbook on Workers Statutory Monetary
Code is that a person dismissed for cause as Benefits, 2014 ed.)
defined therein (see Art. 282, LC) is not
entitled to separation pay. [PLDT vs NLRC One-Month Pay per Year of Service
(1988)] An employee is entitled to separation pay
equivalent to his/her one-month pay for every
Exceptions: Considerations of equity as in the year of service, a fraction of at least 6 months
cases of Filipro, Inc. v. NLRC, Metro Drug being considered as one whole year, if his/her
Corp. v. NLRC, Engineering Equipment, Inc. v. separation from service is due to any of the
NLRC, San Miguel Corp v. NLRC. [PLDT vs following:
NLRC (1988)] (1) Installation by employer of labor-saving
devices;
An employee who voluntarily resigns is not (2) Redundancy, as when the position of the
entitled to separation pay unless stipulated in employee has been found to be excessive
the employment contract, or the collective or unnecessary in the operation of the
bargaining agreement, or is sanctioned by enterprise;
established practice or policy of the employer. (3) Impossible reinstatement of the employee
[Phimco Industries vs NLRC (1997); Hinatuan to his/her former position or to a
Mining Corp vs NLRC (1997) cited in JPL substantially equivalent position for
Marketing Promotions v. CA (2005)] reasons not attributable to the fault of the
employer, as when the reinstatement
Amount ordered by a competent authority cannot
One-Half (1/2) Month Pay per Year of Service be implemented due to closure of
An employee is entitled to receive separation cessation of operations of the
pay equivalent to month pay for every year establishment/employer, or the position to
of service, a fraction of at least six (6) months which he/she is to be reinstated no longer
being considered as one whole year, if his/her exists and there is no substantially
separation from the service is due to any of the equivalent position in the establishment to
following authorized causes: which he/she can be assigned. [Gaco vs
(1) Retrenchment to prevent losses (i.e. NLRC (1994)]
reduction of personnel effected by
management to prevent losses); Notice of Termination
(2) Closure or cessation of operation of an The employer may terminate the employment
establishment not due to serious losses or of any employee due to the above-mentioned
financial reverses; and, authorized causes by serving a written notice
(3) When the EE is suffering from a disease on the employee and the DOLE through its
not curable within a period of six (6) regional office having jurisdiction over the
months and his/her continued place of business at least 1 month before the
employment is prejudicial to his/her health intended date thereof.
or to the health of his/her co-employees
In no case will an employee get less than one Basis of Separation Pay
(1) month separation pay if the separation is The computation of separation pay of an
due to the above stated causes and he/she employee shall be based on his/her latest
has served for at least six (6) months. (DOLE salary rate. [DOLE Handbook on Workers
Statutory Monetary Benefits, 2014 ed.]
65
UP LAW BOC LABOR STANDARDS LABOR LAW
Inclusion of Regular Allowance in the Retirement - the result of a bilateral act of the
Computation parties, a voluntary agreement between the
In the computation of separation pay, it would employer and the employee whereby the latter,
be error not to integrate the allowance with after reaching a certain age agrees to sever his
the basic salary. The salary base properly used or her employment with the former ... an
in computing the separation pay should employer is free to impose a retirement age
include not just the basic salary but also the less than 65 for as long as it has the
regular allowances that an employee has employees consent having terminated
been receiving. [Planters Products, Inc. vs petitioner solely on the basis of a provision of a
NLRC (1989)] retirement plan which was not freely assented
to by her, respondent was guilty of illegal
J. RETIREMENT PAY dismissal [Jaculbe vs Silliman University, 2007]
[RA 7641 - The Retirement Pay Law]
J.1. ELIGIBILITY
Rationale General Rule: All employees in the private
RA 7641 is undoubtedly a social legislation. sector, regardless of their position,
The law has been enacted as a labor protection designation, or status, and irrespective of the
measure and as a curative statute that absent method by which their wages are paid [Sec. 1,
a retirement plan devised by, an agreement IRR, RA 7641]
with, or a voluntary grant from, an employer
can respond, in part at least, to the financial Exceptions:
well-being of workers during their twilight (1) employees covered by the Civil Service
years soon following their life of labor. There Law;
should be little doubt about the fact that the (2) domestic helpers and persons in the
law can apply to labor contracts still existing at personal service of another, and
the time the statute has taken effect, and that (3) employees in retail, service and
its benefits can be reckoned not only from the agricultural establishments or operations
date of the law's enactment but retroactively to regularly employing not more than ten
the time said employment contracts have employees [Sec. 2, IRR, RA 7641]
started. [Enriquez Security Services, Inc. v.
Cabotaje, 2006] Exclusions from coverage
Pursuant thereto, this Court imposed two (2) R.A. No. 7641, otherwise known as "The
essential requisites in order that R.A. 7641 may Retirement Pay Law," only applies in a
be given retroactive effect: situation where:
(1) the claimant for retirement benefits was (1) there is no collective bargaining
still in the employ of the employer at the agreement or other applicable
time the statute took effect; and employment contract providing for
(2) the claimant had complied with the retirement benefits for an employee; OR
requirements for eligibility for such (2) there is a collective bargaining agreement
retirement benefits under the statute. or other applicable employment contract
[Universal Robina Sugar Milling Corp. vs providing for retirement benefits for an
Caballeda, 2008] employee, but it is below the requirements
set for by law.
The reason for the first situation is to prevent
the absurd situation where an employee, who
66
UP LAW BOC LABOR STANDARDS LABOR LAW
is otherwise deserving, is denied retirement (2) Cash equivalent of five (5) days of service
benefits by the nefarious scheme of employers incentive leave;
in not providing for retirement benefits for their (3) One-twelfth (1/12) of the 13th month pay.
employees. The reason for the second situation (1/12 x 365/12 = .083 x 30.41 = 2.52)
is expressed in the Latin maxim pacta private
juri public derogare non possunt. Private Thus, one-half month salary is equivalent to
contracts cannot derogate from the public law. 22.5 days. [Capitol Wireless, Inc. vs Sec.
[Oxales vs Unilab, 2008] Confessor, 1996; Reyes v NLRC, 2007]
Other benefits may be included in the
Age of retirement computation of the retirement pay upon
In the absence of a retirement plan or agreement of the ER and the EE or if provided
agreement providing for retirement benefits of in the CBA.
employees in the establishment, an employee
upon reaching the age of sixty (60) years or Retirement pay under RA 7641 vis--vis
more, but not beyond sixty-five (65) years retirement benefits under SSS and GSIS laws
which is hereby declared the compulsory RA 7641 mandates payment of retirement
retirement age (and have served the benefits. All private sector employees
establishment for at least 5 years). [Sec. 1, IRR, regardless of their position, designation or
RA 7641] status and irrespective of the method by which
their wages are paid are entitled to retirement
Optional retirement in the absence of a benefits upon compulsory retirement at the
retirement plan or other applicable agreement age of sixty-five (65) or upon optional
providing for retirement benefits of EEs in an retirement at sixty (60) or more but not 65. The
establishment, an EE may retire upon reaching minimum retirement pay due covered
the age of 60 or more if he has served for at employees shall be equivalent to one-half
least 5 years in said establishment. month salary for every year of service, a
fraction of at least six (6) months being
Compulsory retirement in the absence of a considered as one whole year. The benefits
retirement plan or other applicable agreement under this law are other than those granted by
providing for retirement benefits of EEs in an the SSS or the GSIS.
establishment, an EE shall be retired at the
age of 65 years. [Sec. 4, IRR, RA 7641] Retirement Benefits under a CBA or Applicable
Contract
J.2. AMOUNT OF RETIREMENT PAY Any EE may retire or be retired by his/her ER
The minimum retirement pay shall be upon reaching the age established in the CBA
equivalent to one-half (1/2) month salary for or other applicable agreement/contract and
every year of service, a fraction of at least six shall receive the retirement benefits granted
(6) months being considered as one whole therein; provided, however, that such
year. retirement benefits shall not be less than the
retirement pay required under RA 7641, and
For the purpose of computing retirement pay, provided further that if such retirement
one-half month salary shall include all of the benefits under the agreement are less, the ER
following: shall pay the difference.
(1) Fifteen (15) days salary based on the latest
salary rate;
67
UP LAW BOC LABOR STANDARDS LABOR LAW
68
UP LAW BOC LABOR STANDARDS LABOR LAW
Any provision of law to the contrary and employees the earnings and principal of
notwithstanding, the retirement benefits the fund thus accumulated, and wherein it is
received by officials and employees of private provided in said plan that at no time shall any
firms, whether individual or corporate, in part of the corpus or income of the fund be
accordance with a reasonable private benefit used for, or be diverted to, any purpose other
plan maintained by the employer than for the exclusive benefit of the said
(1) shall be exempt from all taxes and officials and employees.
(2) shall not be liable to attachment,
garnishment, levy or seizure by or under K. WOMEN WORKERS
any legal or equitable process whatsoever
[Intercontinental Broadcasting Corp. v The State recognizes the role of women in
Amorilla, 2006] nation-building, and shall ensure the
fundamental equality before the law of women
Exception and men.[Consti Art II Sec 14]
Except to pay a debt of the official or employee
concerned to the private benefit plan or that The State shall protect working women by
arising from liability imposed in a criminal providing safe and healthful working
action: conditions, taking into account their maternal
functions, and such facilities and opportunities
Additional conditions that will enhance their welfare and enable
(a) That the retiring official or employee has them to realize their full potential in the service
been in the service of the same employer of the nation.[Consti Art XIII Sec 14]
for at least ten (10) years and is not less
than fifty years of age at the time of his
General Statement on Coverage. This Rule
retirement;
shall apply to all employers, whether operating
(b) That the retirement benefits shall be
for profit or not, including educational,
availed of by an official or employee only
religious and charitable institutions, except to
once; and,
the Government and to government-owned or
(c) That in case of separation of an official or
controlled corporations and to employers of
employee from the service of the employer
household helpers and persons in their
due to death, sickness or other physical
personal service insofar as such workers are
disability or for any cause beyond the
concerned.[Omnibus Rules Bk III Rule XII Sec 1]
control of the said official or employee, any
amount received by him or by his heirs
K.1. PROVISIONS AGAINST
from the employer as a consequence of
DISCRIMINATION
such separation shall likewise be exempt
as hereinabove provided. It shall be unlawful for any employer to
discriminate against any woman employee
Reasonable private benefit plan - means a with respect to terms and conditions of
pension, gratuity, stock bonus or profit sharing employment solely on account of her sex.
plan maintained by an employer for the benefit The following are acts of discrimination:
of some or all of his officials and employees, (1) Payment of a lesser compensation,
wherein contributions are made by such including wage, salary or other form of
employer or officials and employees, or both, remuneration and fringe benefits, to a
for the purpose of distributing to such officials female employees as against a male
employee, for work of equal value; and
69
UP LAW BOC LABOR STANDARDS LABOR LAW
70
UP LAW BOC LABOR STANDARDS LABOR LAW
71
UP LAW BOC LABOR STANDARDS LABOR LAW
(iii) in the refusal to grant the sexual (2) Any person who directs or induces another
favor results in limiting, segregating to commit any act of sexual harassment as
or classifying the EE which in any herein defined. OR
way would discriminate, deprive or (3) Any person who cooperates in the
diminish employment opportunities commission by another without which it
or otherwise adversely affect said would NOT have been committed, shall
employee; also be held liable under this Act [Sec. 3,
(b) The above acts would either: RA 7877]
(i) impair the employees rights or
privileges under existing labor laws; Role of the employer or Head of Office
or The Employer or Head of Office shall have the
(ii) result in an intimidating, hostile, or duty:
offensive environment for the (1) to prevent the commission of such acts and
employee. (2) to lay down the procedure for the
resolution, settlement or prosecution of
(2) Education or Training environment. In an committed acts. [Sec. 4, RA 7877]
education or training environment, sexual
harassment is committed: He shall be solidarily liable for damages:
(a) Against one who is under the care, custody (1) if he is informed of such acts by the
or supervision of the offender offended party and
(b) Against one whose education, training, (2) no immediate action is taken thereon. [Sec.
apprenticeship or tutorship is entrusted to 5, RA 7877]
the offender;
(c) When the sexual favor is made a condition
Independent Action for Damages
to the giving of a passing grade, or the
The victim of work, education or training-
granting of honors and scholarships, or the
related sexual harassment can institute a
payment of a stipend, allowance or other
separate and independent action for damages
benefits, privileges, or considerations; or
and other affirmative relief. [Sec. 6, RA 7877]
(d) When the sexual advances result in an
intimidating, hostile or offensive
environment for the result, trainee or Sanctions
apprentice. Criminal: imprisonment of 1 month to mos. Or
fine of P10k to P20k or both
Persons who may be liable Prescription of such action is in 3 years.
(1) Any employer, employee, manager,
supervisor, agent of the employer, teacher, Termination
instructor, professor, coach, trainer or any As a managerial employee, petitioner is bound
other person, regardless of whether the by more exacting work ethics. When such
demand, request for requirement for moral perversity is perpetuated against his
submission is accepted by the object of subordinate, he provides a justifiable ground
said act having authority, influence or for his dismissal for lack of trust and
moral ascendancy over another in a work or confidence. It is the right, nay the duty of every
training or education environment, who employer to protect its employees from
demands, requests or otherwise requires oversexed superiors. [Sec. 7, RA 7877] [Libres vs
any sexual favor from another, NLRC, 1999]
72
UP LAW BOC LABOR STANDARDS LABOR LAW
73
UP LAW BOC LABOR STANDARDS LABOR LAW
In the above-exceptional cases where any such prescribed primary and/or secondary
child may be employed, the employer shall first education; [Sec. 12 of RA 7610 as
secure, before engaging such child, a work amended by RA 7658]
permit from the Department of Labor and
Employment which shall ensure observance of (2) childs employment or participation in
the above requirements. public entertainment or information
through cinema, theater, radio or television
For purposes of this Article, the term "child" is essential, provided that [Sec. 12 of RA
shall apply to all persons under eighteen (18) 7610 as amended by RA 7658]:
years of age.[Sec 2, RA 9231] (a) employment does NOT involve ads or
commercials promoting alcohol,
Child - refers to any person under 18 years of tobacco and its by-products or violence
age [Sec. 14, RA 7610]
(b) the employment contract is concluded
Child labor - refers to any work or economic by the childs parents or guardian, and
activity performed by a child that subjects approved by DOLE
him/her to any form of exploitation or is (c) The ER shall ensure the protection,
harmful to his/her health and safety or health, safety and morals of the child
physical, mental or psychosocial development (d) The ER shall institute measures to
prevent the childs exploitation or
Working child - refers to any child engaged as discrimination taking into account the
follows: system and level of remuneration, and
(1) when the child is below eighteen (18) years the duration and arrangement of
of age, in work or economic activity that is working time
not child labor as defined in the (e) The ER shall formulate and
immediately preceding subparagraph; and implement, subject to the approval
(2) when the child is below fifteen (15) years of and supervision of competent
age, in work where he/she is directly under authorities, a continuing program for
the responsibility of his/her parents or training and skills acquisition of the
legal guardian and where only members of child. [Sec. 12 of RA 7610 as amended
the childs family are employed; or in by RA 7658]
public entertainment or information. [SEC
3, DO 65-04] Employment of Children from 15 to 18
Employment is allowed but restricted to non-
Exceptions hazardous work.
(1) Child works directly under the sole
responsibility of his parents or legal Non-hazardous work shall mean any work or
guardian and where only members of the activity in which the EE is not exposed to any
ERs family are employed, provided: risk which constitutes an imminent danger to
(a) his employment does NOT endanger his safety and health. [Sec. 3, Rule XII, Book III,
his life, safety, health and morals, IRR of LC]
(b) nor impairs his normal development,
and The Secretary of Labor shall from time to time
(c) the parent or legal guardian shall publish a list of hazardous work and activities
provide the said minor child with the in which persons 18 years of age and below
74
UP LAW BOC LABOR STANDARDS LABOR LAW
cannot be employed [Sec. 3, Rule XII, Book III, nursemaid or yaya, cook, gardener, or
IRR of LC] laundry person. [Sec 4(D). RA 10361]
The term domestic worker or kasambahay
The following are HAZARDOUS workplaces: excludes any person who performs domestic
(1) Nature of the work exposes the workers to work only occasionally or sporadically and not
dangerous environmental elements, on an occupational basis. [Sec.4(D), RA 10361]
contaminants or working conditions;
(2) construction work, logging, fire-fighting, Rights and Privileges
mining, quarrying, blasting, stevedoring, (a) Minimum wage
dock work, deep sea fishing, and The minimum wage of domestic workers shall
mechanized farming; not be less than the following:
(3) manufacture or handling of explosives and i. P2,500 a month for those employed in
other pyrotechnic products; NCR
ii. P2,000 a month for those employed in
(4) exposure to or use of heavy power-driven
chartered cities and first class
machinery or equipment; municipalities
(5) exposure to or use of power-driven tools iii. P1,500 a month for those employed in
other municipalities
Working Hours of a Child Within one year from the effectivity of the Act,
and periodically thereafter, the Regional
Quantity Tripartite and Productivity Wage Boards shall
Age Bracket Daily Max Weekly Max review, and if proper, determine and adjust the
Below 15 y 4 hrs 20 hrs minimum wage rates of domestic workers.
15 to below 18 8hrs. 40 hrs [Sec. 24, RA 10361]
Night work prohibition
Age Bracket Prohibited Hours SECTION 1. Subparagraphs (1), (2) and (3),
Below 15 y 8 pm to 6 am (10 hrs.) Article 143 of Presidential Decree No. 442, as
15 to below 18 10 pm to 6 am (8 hrs.) amended, otherwise known as the "Labor Code
of the Philippines" are hereby amended to read
as follows:
M. EMPLOYMENT OF
HOUSEHELPERS ART. 143. Minimum wage. (a) Househelpers
shall be paid the following minimum wage
Relevant Law: RA 10361 (Batas Kasambahay or rates;
Domestic Workers Act) (1) Eight hundred pesos (P800.00) a
Note: RA 10361 has expressly repealed Chapter month for househelpers in Manila,
III, Employment of Househelpers, Title III of Quezon, Pasay and Caloocan cities
Book III of the Labor Code and municipalities of Makati, San
Juan, Mandaluyong, Muntinlupa,
Domestic work - This refers to work performed Navotas, Malabon, Paraaque, Las
in or for a household or households. [Sec 4(C). Pias, Pasig, Marikina, Valenzuela,
RA 10361] Taguig and Pateros in Metro Manila
and in highly urbanized cities;
Domestic worker or Kasambahay - Refers to (6) Six hundred fifty pesos (P650.00) a
any person engaged in domestic work within month for those in other chartered
an employment relationship such as, but not cities and first class municipalities;
limited to, the following: general househelp,
75
UP LAW BOC LABOR STANDARDS LABOR LAW
76
UP LAW BOC LABOR STANDARDS LABOR LAW
The cost of the foregoing shall be borne by the employer or any member of the
prospective employer or agency, as the case household;
may be. [Sec. 12, RA 10361] (c) Commission of a crime or offense
against the domestic worker by the
employer or any member of the
Time and Manner of Payment : Payment of household;
wages shall be made on time directly to the (d) Violation by the employer of the terms
domestic worker in cash at least once a month and conditions of the employment
and unless allowed by the domestic worker contract and other standards set forth
through a written consent, employer shall under this law;
make no deductions from the wages other than (e) Any disease prejudicial to the health of
the domestic worker, the employer, or
that which is mandated by law. [Sec. 25, RA
member/s of the household; and
10361] (f) Other causes analogous to the
foregoing. [Sec. 33, RA 10361]
Right against assignment to non-household
work at a wage rate lower than that mandated (2) Initiated by the employer
for agricultural or non-agricultural enterprises An employer may terminate the services of the
depending on the case. [Sec. 22, RA 10361] domestic worker at any time before the
expiration of the contract, for any of the
Employment Age of Domestic Workers: following causes:
Unlawful to employ any person below fifteen (a) Misconduct or willful disobedience by
(15) years of age as a domestic worker [Sec. 16, the domestic worker of the lawful order
RA 10361] of the employer in connection with the
Persons between 15-18 years old should only formers work;
(b) Gross or habitual neglect or
be employed in non-hazardous work. [DO 4-99
inefficiency by the domestic worker in
Sec. 4] the performance of duties;
Daily Rest Period: Aggregate of eight (8) hours (c) Fraud or willful breach of the trust
per day. [Sec. 20, RA 10361] reposed by the employer on the
domestic worker;
Employment Certification: ER shall give the (d) Commission of a crime or offense by
househelper a written statement of the nature the domestic worker against the
person of the employer or any
and duration of the service and his or her work immediate member of the employers
performance as househelper upon severance. family;
[Sec. 35, RA 10361] (e) Violation by the domestic worker of the
terms and conditions of the
Termination employment contract and other
(1) Initiated by the domestic worker standards set forth under this law;
(f) Any disease prejudicial to the health of
The domestic worker may terminate the
the domestic worker, the employer, or
employment relationship at any time before member/s of the household; and
the expiration of the employment contract for (g) Other causes analogous to the
any of the following causes: foregoing. [Sec. 34, RA 10361]
(a) Verbal or emotional abuse of the
domestic worker by the employer or
any member of the household;
(b) Inhuman treatment including physical
abuse of the domestic worker by the
77
UP LAW BOC LABOR STANDARDS LABOR LAW
78
UP LAW BOC LABOR STANDARDS LABOR LAW
79
UP LAW BOC LABOR STANDARDS LABOR LAW
instantaneously give rise to an employer- The employer shall formulate and implement,
apprentice relationship. It must be duly subject to the approval and supervision of
approved by the Minister of Labor and competent authorities, a continuing
Employment. Hence, since the apprenticeship program for training and skills acquisition
agreement between petitioner and respondent of the child.
has no force and effect, respondent's assertion In the above exceptional cases where any such
that he was hired not as an apprentice but as a child may be employed, the employer shall first
delivery boy deserves credence. (Nitto secure, before engaging child, a work permit
Enterprises vs. NLRC, 1995) from the Department of Labor and
Employment which shall ensure observance of
Conditions under which children below 15 may the above requirements.
be employed The Department of Labor and Employment
Children below fifteen (15) years of age shall shall promulgate rules and regulations
not be employed except: necessary for the effective implementation of
(1) When a child works directly under the sole this Section. [RA 7160, Sec. 12 as amended by
responsibility of his parents or legal RA 7658, Sec. 1]
guardian and where only members of the
employer's family are employed: Provided, Qualifications of apprentice
however, That his employment neither (a) Be at least 14 years of age;
endangers his life, safety, health and (b) Possess vocational aptitude and capacity
morals, nor impairs his normal for appropriate tests; and
development: Provided, further, That the (c) Possess the ability to comprehend and
parent or legal guardian shall provide the follow oral and written instructions.
said minor child with the prescribed Trade and industry associations may
primary and/or secondary education; or recommend to the Secretary of Labor
(2) Where a child's employment or appropriate educational requirements for
participation in public entertainment or different occupations. [Art. 59, LC]
information through cinema, theater, radio
or television is essential: Provided, The Integrating both the abovementioned
employment contract is concluded by the provisions then the qualifications of an
child's parents or legal guardian, with the apprentice are as follows:
express agreement of the child concerned, (1) At least 15 years of age [as amended by
R.A. 7610] , provided that if he is below 18
if possible, and approval of the years, he shall not be eligible for
Department of Labor and Employment: hazardous occupation;
and Provided, That the following (2) Possess vocational aptitude and capacity
requirements in all instances are strictly for appropriate tests;
complied with: (3) Possess the ability to comprehend and
The employer shall ensure the protection, follow oral and written instructions. [Art.
health, safety, morals and normal 59 of the LC, as amended by R.A. 7610]
development of the child; (4) Physically fit for occupation
The employer institute measures to prevent
the child's exploitation or discrimination Allowed employment
taking into account the system and level of SEE: RA 7769, Sec. 4 (m) above
remuneration and the duration and
arrangement of working time; and
80
UP LAW BOC LABOR STANDARDS LABOR LAW
81
UP LAW BOC LABOR STANDARDS LABOR LAW
82
UP LAW BOC LABOR STANDARDS LABOR LAW
83
UP LAW BOC LABOR STANDARDS LABOR LAW
84
UP LAW BOC LABOR STANDARDS LABOR LAW
85
UP LAW BOC LABOR STANDARDS LABOR LAW
the rights of qualified able-bodied persons, (f) At least 20% discount on fare for domestic
they are thus covered by Article 280 of the air and sea travel for the exclusive use or
Labor Code. In the present case, the handicap enjoyment of persons with disability;
of petitioners (deaf-mutes) is NOT a hindrance (g) At least 20% discount in public railways,
to their work. The eloquent proof of this skyways, and bus fare for the exclusive use
statement is the repeated renewal of their and enjoyment of persons with disability.
employment contracts. (Bernardo v. NLRC, (h) Educational assistance to persons with
1999) disability, for them to pursue primary,
secondary, tertiary, post tertiary, as well as
Discounts and other privileges vocational or technical education, in both
Persons with disability shall be entitled to the public and private schools, through the
following: provision of scholarships, grants, financial
(a) At least 20% discount from all aids, subsidies and other incentives to
establishments relative to the utilization of qualified persons with disability, including
all services in hotels and similar lodging support for books, learning materials and
establishments; restaurants and recreation uniform allowance to the extent feasible;
centers for the exclusive use or enjoyment Provided, That persons with disability shall
of persons with disability; meet minimum admission requirements;
(b) A minimum of 20% discount on admission (i) To the extent practicable and feasible, the
fees charged by theaters, cinema houses, continuance of the same benefits and
concert halls, circuses, carnivals and other privileges given by the GSIS, SSS, and
places of culture, leisure and amusement PAG-IBIG, as the case may be, as are
for the exclusive use or enjoyment of enjoyed by those in actual service;
persons with disability; (j) To the extent possible, the government
(c) At least 20% discount for the purchase of may grant special discounts in special
medicines in all drugstores for the programs for persons with disability on
exclusive use or enjoyment of persons with purchase of basic commodities, subject to
disability; guidelines to be issued for the purpose by
(d) At least 20% discount on medical and the DTI and the DA; and
dental services including diagnostic and (k) Provision of express lanes for persons with
laboratory fees such as, but not limited to, disability in all commercial and
x-rays, computerized tomography scans government establishments; in the
and blood tests, in all government absence thereof, priority shall be given to
facilities, subject to guidelines to be issued them. [Sec 32, RA 7277, as amended by RA
by the DOH in coordination with the 9442]
PHILHEALTH.
(e) At least 20% discount on medical and Conditions for entitlement
dental services including diagnostic and (1) Persons with disability who are Filipino
laboratory fees and professional fees of citizens upon submission of any of the
attending doctors in all private hospitals following as proof of his/her entitlement
and medical facilities, in accordance with thereto:
the rules and regulations to be issued by (a) An identification card issued by the city
the DOH, in coordination with or municipal mayor or the barangay
PHILHEALTH; captain of the place where the persons
with disability reside;
86
UP LAW BOC LABOR STANDARDS LABOR LAW
(b) The passport of the persons with qualified disabled employee, by reason
disability concerned; or of his disability, than the amount to
(c) Transportation discount fare ID issued which a non-disabled person
by the National Council for the Welfare performing the same work is entitled;
of Disabled Persons (NCWDP). (e) Favoring a non-disabled employee over
(2) The privileges may not be claimed if the a qualified disabled employee with
persons with disability claim a higher respect to promotion, training
discount as may be granted by the opportunities, study and scholarship
commercial establishment and/or under grants, solely on account of the latter's
other existing laws or in combination with disability;
other discount program/s. [Sec 32, RA (f) Re-assigning or transferring a disabled
7277, as amended by RA 9442] employee to a job or position he cannot
perform by reason of his disability;
Other Provisions Against Discrimination (g) Dismissing or terminating the services
(1) Discrimination of Employment of a disabled employee by reason of his
No entity, whether public or private shall disability unless the employer can prove
discriminate against a qualified disabled that he impairs the satisfactory
person by reason of disability in regard to job performance of the work involved to the
application procedures, the hiring, promotion, prejudice of the business entity;
or discharge of employees compensation, job Provided, however, That the employer
training and other terms, conditions and first sought to provide reasonable
privileges of employment. The following accommodations for the disabled
constitute acts of discrimination: persons;
(a) Limiting, segregating or classifying a (h) Failing to select or administer in the
disabled job applicant in such a manner most effective manner employment
that adversely affects his work tests which accurately reflect the skills,
opportunities aptitude or other factor of the disabled
(b) Using qualification standards, applicant or employee that such test
employment tests or other selection purports to measure, rather than the
criteria that screen out or tend to screen impaired sensory, manual or speaking
out a disabled person unless such skills of such applicant or employee, if
standards, tests or other selection any; and
criteria are shown to be related for the (i) Excluding disabled persons from
position in question and are consistent membership in labor unions or similar
with business necessity; organizations. [Sec. 32, RA 7277 as
(c) Utilizing standards, criteria, or methods amended by RA 9442]
of administration that:
(i) have the effect of discrimination (2) Employment Entrance Examination
on the basis of disability; or Upon an offer of employment, a disabled
(ii) perpetuate the discrimination of applicant may be subjected to medical
others who are the subject to examinations, on the following occasions:
common administrative control. (a) all entering employees are subjected to
(d) Providing less compensation, such as such an examination regardless of
salary, wage or other forms of disability;
remuneration and fringe benefits, to
87
UP LAW BOC LABOR STANDARDS LABOR LAW
(b) Information obtained during the Public Ridicule - The act of making fun of or
medical condition or history of the contemptuous imitating or making mockery of
applicant is collected and maintained persons with disability whether in writing, or in
on separate forms and in separate words, or in action due to their impairments.
medical files and is treated as a [Sec. 33, RA 7277, as amended by RA 9442]
confidential medical record; Provided, Vilification includes:
however, That: (1) The utterance of slanderous and abusive
(i) supervisors and managers may statements against a person with
be informed regarding necessary disability; and/or,
restrictions on the work or duties (2) An activity in public which incites hatred
of the employees and necessary towards, serious contempt for, or severe
accommodations: ridicule of persons with disability. [Sec. 41,
(ii) first aid and safety personnel RA 7277, as amended by RA 9442]
may be informed, when
appropriate, if the disability Tax Incentives for Employers/Establishments
might require emergency (1) For employment of disabled persons -
treatment; additional deduction, from their gross
(iii) government officials income, equivalent to 25% of the total
investigating compliance with amount paid as salaries and wages to
this Act shall be provided disabled persons
relevant information on request; (a) Private entities
and (b) Employ disabled persons either as
(iv) the results of such examination regular EEs, apprentice or learner
are used only in accordance with (c) Provided such entities present proof as
this Act. (Sec. 35, RA 7277 as certified by the DOLE and the DOH
amended by RA 9442) [Sec. 8[b], RA 7277]
88
UP LAW BOC LABOR STANDARDS LABOR LAW
(a) The cost of the discount shall be (c) making facilities readily accessible to and
allowed as deduction from gross usable by individuals with disabilities.
income for the same taxable year that [Sec 45, RA 7277]
the discount is granted
(d) The total amount of the claimed tax Penal Clause
deduction net of VAT if applicable, (a) Any person who violates any provision of
shall be included in their gross sales this Act shall suffer the following penalties:
receipts for tax purposes and shall be (i) for the first violation, a fine of not less
subject to proper documentation and than Fifty thousand pesos (P
to the provisions of the National 50,000.00) but not exceeding One
Internal Revenue Code, as amended. hundred thousand pesos
[Sec. 32, RA 7277, as amended by RA (P100,000.00) or imprisonment of
9442] not less than six (6) months but not
more than two (2) years, or both at the
Enforcement discretion of the court; and
Enforcement by the Secretary of Justice (ii) for any subsequent violation, a fine of
(a) Denial of Right not less than One hundred thousand
Duty to Investigate. The Secretary of Justice pesos (P100,000.00) but not
shall investigate alleged violations of this exceeding Two hundred thousand
Act, and shall undertake periodic reviews pesos (P 200,000.00) or
of compliance of covered entities under imprisonment for less than two (2)
this Act. years but not more than six (6) years,
(b) Potential Violations or both at the discretion of the court.
The Secretary of Justice may commence a (b) Any person who abuses the privileges
legal action in any appropriate court if the granted herein shall be punished with
Secretary has reasonable cause to believe imprisonment of not less than six (6)
that months or a fine of not less than Five
(1) any person or group of persons is thousand pesos (P 5,000.00) but not more
engaged in a pattern of practice of than Fifty thousand pesos (P 50,000.00),
discrimination under this Act; or or both, at the discretion of the court.
(2) any person or group of persons has (c) If the violator is a corporation, organization
been discriminated against under or any similar entity, the officials thereof
this Act and such discrimination directly involved shall be liable therefor.
raises and issue of general public (d). If the violator is an alien or a foreigner,
importance. [Sec 44, RA 7277] he shall be deported immediately after
service of sentence without further
Authority of Court. The court may grant any deportation proceedings. [Sec 46, RA
equitable relief that such court considers to be 7277]
appropriate, including, to the extent required
by this Act:
(a) granting temporary, preliminary or
permanent relief;
(b) providing an auxiliary aid or service,
modification of policy, practice or
procedure, or alternative method; and
89
UP LAW BOC LABOR STANDARDS LABOR LAW
Art. 173, LC. As used in this Title, unless the The recognition of the existence of ER-EE
context indicates otherwise: relationship is not dependent upon the
(f) "Employer" means any person, natural or agreement of the parties. The characterization
juridical, employing the services of the of the law prevails over that in the contract. In
employee. this sense, the existence of an EE-ER
relationship is a matter of law. (Tabas et.al. v.
(g) "Employee" means any person compulsorily California Manufacturing Co., et. al., G.R. No.
covered by the GSIS under Commonwealth Act 80680, January 26, 1989).
Numbered One hundred eighty-six, as
amended, including the members of the The conclusion that an EE-ER relationship
Armed Forces of the Philippines, and any depends upon the facts of each case. In this
person employed as casual, emergency, sense, it is a question of fact. (SSS v. CA, G.R.
temporary, substitute or contractual, or any No. 100388, Dec. 14, 2000).
person compulsorily covered by the SSS under
Republic Act Numbered Eleven hundred
sixtyone, as amended.
90
UP LAW BOC LABOR STANDARDS LABOR LAW
91
UP LAW BOC LABOR STANDARDS LABOR LAW
92
UP LAW BOC LABOR STANDARDS LABOR LAW
(b) The employer must make such (Bernardo v. NLRC, G.R. No. 122917, July 12,
communication at the time of the 1999)
probationary employees engagement.
Double probation
If the employer fails to comply with either, the There is no basis for subjecting an employee to
employee is deemed as a regular and not a a new probationary or temporary employment
probationary employee. where he had already become a regular
employee when he was absorbed by a sister
An employer is deemed to have made known company. (A Prime Security Services, Inc. v.
the standards that would qualify a NLRC, G.R. No. 107023, Jan. 19, 2000)
probationary employee to be a regular
employee when it has exerted reasonable
efforts to apprise the employee of what he is Absorbed employees not probationary
expected to do or accomplish during the trial The private respondents could not be
period of probation. This goes without saying considered probationary employees because
that the employee is sufficiently made aware of they were already well-trained in their
his probationary status as well as the length of respective functions. As stressed by the
time of the probation. Solicitor General, while private respondents
were still with the CCAS they were already
The exception to the foregoing is when the job clerks. Respondent Gelig had been a clerk for
is self-descriptive in nature, for instance, in the CCAS for more than ten (10) years, while
case of maids, cooks, drivers, or messengers. respondent Quijano had slightly less than ten
(Abbott Laboratories Phil. et al. v. Alcaraz, G.R. (10) years of service. They were, therefore, not
No. 192571, July 23, 2013) novices in their jobs but experienced workers.
[Cebu Stevedoring Co., Inc. v. Regional
In all cases of probationary employment, the Director, G.R. No. L-54285, Dec. 8, 1988]
employer shall make known to the employee
the standards under which he will qualify as a Private school teachers
regular employee at the time of his Questions respecting a private school teachers
engagement. Where no standards are made entitlement to security of tenure are governed
known to the employee at that time, he shall by the Manual of Regulations for Private
be deemed a regular employee. Conversely, an Schools and not the Labor Code. [Aklan
employer is deemed to substantially comply College v. Guarino, G.R. No. 152949, Aug. 14,
with the rule on notification of standards if he 2007]
apprises the employee that he will be
subjected to a performance evaluation on a The legal requisites, therefore, for acquisition
particular date after his hiring. (Alcira v. NLRC, by a teacher of permanent employment, of
G.R. No. 149859, June 9, 2004) security of tenure are:
(a) A full time teacher;
Regular status after probation (b) Must have rendered three consecutive
When the bank renewed the contract after the years of service; and
lapse of the six-month probationary period, the (c) Service must have been satisfactory. (La
employees thereby became regular employees. Salette of Santiago v. NLRC, G.R. No.
No employer is allowed to determine 82918, Mar. 11, 1991)
indefinitely the fitness of its employees.
93
UP LAW BOC LABOR STANDARDS LABOR LAW
Mere completion of the three-year probation, (3) Failure to qualify as a regular employee in
even with an above-average performance, accordance with reasonable standards
does not guarantee that the employee will made known by the employer to the
automatically acquire a permanent employee at the time of engagement.
employment status. The probationer can only (Robinsons Galleria et al. v Ranchez, G.R.
qualify upon fulfillment of the reasonable No. 177937, Jan. 19, 2011)
standards set for permanent employment as a
member of the teaching personnel. (Herrera- The probationary employee is entitled to
Manaois v. St. Scholasticas College, G.R. No. substantial and procedural due process before
188914, Dec. 11, 2013) termination.
94
UP LAW BOC LABOR STANDARDS LABOR LAW
or where the work or service to be performed is between the particular activity performed by
seasonal in nature and the employment is for the employee in relation to the business or
the duration of the season. trade of the employer. The test is whether the
former is usually necessary or desirable in the
An employment shall be deemed to be casual usual business or trade of the employer. If the
if it is not covered by the preceding paragraph: employee has been performing the job for at
Provided, That any employee who has least one year, even if the performance is not
rendered at least one year of service, whether continuous or merely intermittent, the law
such service is continuous or broken, shall be deems the repeated and continuing need for
considered a regular employee with respect to its performance as sufficient evidence of the
the activity in which he is employed and his necessity, if not indispensability of that activity
employment shall continue while such activity to the business of the employer. Hence, the
exists. employment is also considered regular, but
only with respect to such activity and while
Art. 287, Last sentence, LC: An employee who such activity exists. (Forever Richons Trading
is allowed to work after a probationary period Corp. v. Molina, G.R. No. 206061, Sept. 16,
shall be considered a regular employee. 2013).
95
UP LAW BOC LABOR STANDARDS LABOR LAW
96
UP LAW BOC LABOR STANDARDS LABOR LAW
which has been determined at the time of the the prescribed form on employees
particular employee's engagement. terminations /dismissals/suspensions;
(7) An undertaking in the employment
The decisive factor in the term employment is contract by the employer to pay
the day certain agreed upon by the parties for completion bonus to the project employee
the commencement and termination of their as practiced by most construction
employment relationship, a day certain being companies. (Samson v. NLRC, G.R. No.
understood to be that which must necessarily 11366, Feb. 1, 1996).
come, although it may not be known when.
(Caasi v. Kanlungan Centre Foundation, Inc., Length of time not applicable in construction
G.R. No. 199769, Sept. 11, 2013) industry
Generally, length of service provides a fair
The repeated and successive rehiring of project yardstick for determining when an employee
employees do not qualify them as regular initially hired on a temporary basis becomes a
employees, as length of service is not the permanent one, entitled to the security and
controlling determinant of the employment benefits of regularization. But this standard
tenure of a project employee, but whether the will not be fair, if applied to the construction
employment has been fixed for a specific industry, simply because construction firms
project or undertaking, its completion has been cannot guarantee work and funding for its
determined at the time of the engagement of payrolls beyond the life of each project. And
the employee. (William Uy Construction Corp. getting projects is not a matter of
v. Trinidad, G.R. No. 183250, Mar. 10, 2010) course. (William Uy Construction Corp. v.
Trinidad, G.R. No. 183250, March 12, 2010
Indicators of project employment
(1) The duration of the specific/identified See also: Policy Instructions No. 20 of 1997 and
undertaking for which the worker is D.O. 19 of 1993
engaged is reasonably determinable;
(2) Such duration, as well as the specific Work pool employee
work/service to be performed, is defined in A project employee or a member of a work pool
an employment may acquire the status of a regular employee
(3) agreement and is made clear to the when the following concur:
employee at the time of the hiring; (1) There is a continuous rehiring of project
(4) The work/service to be performed by the employees even after cessation of a
employee is in connection with the project; and
particular project/undertaking for which he (2) The tasks performed by the alleged
is engaged; project employee are vital, necessary,
(5) The employee, while not employed and and indispensable to the usual business or
awaiting engagement, is free to offer his trade of the employer. However, the length
services to any other employer; of time during which the employee was
(6) The termination of his employment in the continuously rehired is not controlling, but
particular project/undertaking is reported merely serves as a badge of regular
to the DOLE Regional Office having employment.
jurisdiction over the workplace following
the date of his separation from work, using A work pool may exist although the workers in
the pool do not receive salaries and are free to
97
UP LAW BOC LABOR STANDARDS LABOR LAW
98
UP LAW BOC LABOR STANDARDS LABOR LAW
99
UP LAW BOC LABOR STANDARDS LABOR LAW
No implied renewal of employment contract The Secretary of Labor and Employment may,
It is a settled rule that seafarers are considered by appropriate regulations, restrict or prohibit
contractual employees. Their employment is the contracting-out of labor to protect the
governed by the contracts they sign everytime rights of workers established under this Code.
they are rehired and their employment is In so prohibiting or restricting, he may make
terminated when the contract expires. Their appropriate distinctions between labor-only
employment is contractually fixed for a certain contracting and job contracting as well as
period of time. Thus, when a contract ends, the differentiations within these types of
employment is deemed automatically contracting and determine who among the
terminated, there being no mutually-agreed parties involved shall be considered the
renewal or extension of the expired contract. employer for purposes of this Code, to prevent
(Unica v. Anscor Swire Ship Management any violation or circumvention of any provision
Corp., G.R. No. 184318, Feb. 12, 2014) of this Code.
As long as the Brent School v. Zamora There is "labor-only" contracting where the
guidelines are satisfied, the court will person supplying workers to an employer does
recognize the validity of the fixed-term not have substantial capital or investment in
contract, especially if they were informed of the form of tools, equipment, machineries,
that their engagement was for a specific work premises, among others, and the workers
period. The Brent doctrine is only applicable in recruited and placed by such person are
a few special cases wherein the employer and performing activities which are directly related
employee are on more or less in equal footing to the principal business of such employer. In
in entering into the contract (Fuji Television such cases, the person or intermediary shall be
Network Inc v. Espiritu, G.R. No. 204944-45, considered merely as an agent of the employer
December 03, 2014). who shall be responsible to the workers in the
same manner and extent as if the latter were
A.3. JOB CONTRACTING directly employed by him.
I. ARTICLES 106 109
Art. 106, LC: Contractor or subcontractor. Art. 107, LC: Indirect employer. The provisions
Whenever an employer enters into a contract of the immediately preceding article shall
with another person for the performance of the likewise apply to any person, partnership,
formers work, the employees of the contractor association or corporation which, not being an
and of the latters subcontractor, if any, shall employer, contracts with an independent
be paid in accordance with the provisions of contractor for the performance of any work,
this Code. task, job or project.
In the event that the contractor or Art. 108, LC: Posting of bond. An employer or
subcontractor fails to pay the wages of his indirect employer may require the contractor or
employees in accordance with this Code, the subcontractor to furnish a bond equal to the
employer shall be jointly and severally liable cost of labor under contract, on condition that
with his contractor or subcontractor to such the bond will answer for the wages due the
employees to the extent of the work performed employees should the contractor or
under the contract, in the same manner and subcontractor, as the case may be, fail to pay
extent that he is liable to employees directly the same.
employed by him.
100
UP LAW BOC LABOR STANDARDS LABOR LAW
Art. 109, LC: Solidary liability. The provisions of organization, cooperative or any entity,
existing laws to the contrary notwithstanding, supplies workers to an employer, with or
every employer or indirect employer shall be without any monetary or other consideration,
held responsible with his contractor or whether in the capacity of an agent of the
subcontractor for any violation of any provision employer or as an ostensible independent
of this Code. For purposes of determining the contractor.
extent of their civil liability under this Chapter,
they shall be considered as direct employers. Legitimate contracting or subcontracting
Contracting or subcontracting shall be
II. D.O. NO. 18-A-11: RULES legitimate if all the following circumstances
IMPLEMENTING ARTICLES 106 TO 109 occur:
OF THE LC, AS AMENDED (1) The contractor must be registered in
Coverage accordance with these rules and carries a
This shall apply to: distinct and independent business
(1) all parties of contracting and (2) The contractor undertakes to perform the
subcontracting arrangements where ER- job, work or service on its own
EE relationships exist responsibility, according to its own manner
(2) cooperatives engaging in contracting or and method, and free from control and
subcontracting arrangements direction of the principal in all matters
connected with the performance of the
Contractors and subcontractors referred to in work except as to the results thereof;
these rules are prohibited from engaging in (3) The contractor has substantial capital
recruitment and placement activities as and/or investment; and
defined in Art. 13(b) of the LC whether for local (4) The Service Agreement ensures
or overseas employment. compliance with all the rights and benefits
under Labor laws.
Contracting or subcontracting refers to an
arrangement whereby a principal agrees to put Rights of contractors employees
out or farm out with a contractor the All contractors employees, whether deployed
performance or completion of a specific job, or assigned as reliever, seasonal, week-ender,
work or service within a definite or temporary, or promo jobbers, shall be entitled
predetermined period, regardless of whether to all the rights and privileges as provided for
such job, work or service is to be performed or in the LC, as amended.
completed within or outside the premises of
the principal. Security of tenure of contractors employees
It is understood that all contractors employees
Service agreement refers to the contract enjoy security of tenure regardless of whether
between the principal and contractor the contract of employment is co-terminus
containing the terms and conditions governing with the service agreement, or for a specific
the performance or completion of a specific job, work, or service, or phase thereof.
job, work or service being farmed out for a
definite or predetermined period.
101
UP LAW BOC LABOR STANDARDS LABOR LAW
102
UP LAW BOC LABOR STANDARDS LABOR LAW
103
UP LAW BOC LABOR STANDARDS LABOR LAW
104
UP LAW BOC LABOR STANDARDS LABOR LAW
Coverage:
General rule: All establishments (Art. 284, LC)
Exception: Government, and its political
subdivisions, including GOCCs without original
Contractor er-ee
Contractor's charter. (Book VI, Rule 1, Sec. 1. IRR)
Employee
Security of Tenure
Art. 285, LC: Security of Tenure. In case of
There are three parties involved: regular employment, the employer shall not
(1) Principal refers to any employer, whether a terminate the services of an employee except
person or entity, including government for a just cause or when authorized by this Tile.
agencies and GOCCs, who/which puts out An employee who is unjustly dismissed from
or farms out a job, service or work to a work shall be entitled to reinstatement without
contractor. loss of seniority rights and other privileges and
(2) Contractor refers to any person or entity, to his full backwages, inclusive of allowances,
including a cooperative, engaged in a and to his other benefits or their monetary
legitimate contracting or subcontracting equivalent computed from the time his
arrangement providing either services, compensation was withheld from him up to the
skilled worker, temporary workers or a time of his actual reinstatement.
combination of services to a principal
under a Service Agreement. Security of Tenure
(3) Contractors employee includes one Right not be removed from ones job without
employed by a contractor to perform or valid cause and valid procedure. (Kiamco v.
complete a job, work, or service pursuant NLRC, G.R. No. 129449, June 29, 1999)
to a Service Agreement with a principal
It shall also refer to regular employees of While probationary employees do not enjoy
the contractor whose functions are not permanent status, nonetheless, they were still
dependent on the performance or entitled to the constitutional protection of
completion of a specific job, work or service security of tenure. (Espina v. Court of Appeals,
within a definite period of time i.e. G.R. No. 164582, March 28, 2007)
administrative staff.
Contract Employees
Relationships that exist in a legitimate Limited extent; secured during the period their
contracting or subcontracting: respective contracts of employment remain in
(1) An employer-employee relationship effect. (Labajo v. Alejandro, G.R. No. L-80383,
between the contractor and the employees September 26, 1988)
it engaged to perform the specific job, work
or service being contracted; and
105
UP LAW BOC LABOR STANDARDS LABOR LAW
106
UP LAW BOC LABOR STANDARDS LABOR LAW
107
UP LAW BOC LABOR STANDARDS LABOR LAW
108
UP LAW BOC LABOR STANDARDS LABOR LAW
Performance of Military or Civic Duty confidence in him. (Yabut v. Meralco, G.R. No.
Art. 292, LC: When Employment Not Deemed 190436, January 16, 2012)
Terminated: The bona fide suspension of the
operation of a business or undertaking for a Employers right to dismiss vis--vis employees
period not exceeding six (6) months, or the right to security of tenure
fulfillment by the employee of a military or The managerial prerogative to transfer
civic duty shall not terminate employment. In personnel must be exercised without grave
all such cases the employer shall reinstate the abuse of discretion, bearing in mind the basic
employee to his former position without loss of elements of justice and fair play. Having the
seniority rights if he indicates his desire to right should not be confused with the manner
resume his work not later than one (1) month in which that right is exercised. Thus, it cannot
from the resumption of operations of his be used as a subterfuge by the employer to rid
employer or from his relief from the military or himself of an undesirable worker. In particular,
civic duty the employer must be able to show that the
transfer is not unreasonable, inconvenient or
B.1. JUST CAUSE prejudicial to the employee; nor does it involve
Art. 288, LC: Termination by Employer. An a demotion in rank or a diminution of his
employer may terminate an employment for salaries, privileges and other benefits. (Alert
any of the following causes: Security and Investigation Agency, Inc. v.
(a) Serious misconduct or willful disobedience Pasawilan, G.R. No. 182397, September 14,
by the employee of the lawful orders of his 2011)
employer or representative in connection with
his work; The right of employers to shape their own work
force is recognize; however, this management
(b) Gross and habitual neglect by the employee prerogative must not curtail the basic right of
of his duties; employees to security of tenure. There must be
a valid and lawful reason for terminating the
(c) Fraud or willful breach by the employee of employment of a worker. Otherwise, it is illegal
the trust reposed in him by his employer or and would be dealt with by the courts
duly authorized representative; accordingly. (Alert Security and Investigation
Agency, Inc. v. Pasawilan, G.R. No. 182397,
(d) Commission of a crime or offense by the September 14, 2011)
employee against the person of his employer
or any immediate member of his family or his Serious Misconduct
duly authorized representatives; and ELEMENTS OF SERIOUS MISCONDUCT:
a) There must be misconduct;
(e) Other causes analogous to the foregoing. b) The misconduct must be of such grave
and aggravated character;
Basis c) It must relate to the performance of
As a measure of self-protection against acts the employees duties; and
inimical to its interest, a company has the right d) There must be showing that the
to dismiss its erring employees. An employer employee becomes unfit to continue
cannot be compelled to continue employing an working for the employer.
employee guilty of acts inimical to the
employer's interest, justifying loss of
109
UP LAW BOC LABOR STANDARDS LABOR LAW
110
UP LAW BOC LABOR STANDARDS LABOR LAW
trust is the essence of the offense for which an (d) The loss of trust and confidence should not
employee is penalized. (Villanueva, Jr. v. NLRC, be simulated;
G.R. No. 176893, June 13, 2012) (e) It should not be used as a subterfuge for
causes which are improper, illegal, or
The loss of trust and confidence must be based unjustified; and
not on ordinary breach by the employee of the (f) It must be genuine and not a mere
trust reposed in him by the employer, but, in afterthought to justify an earlier action
the language of Article 282 (c) of the Labor taken in bad faith (China City Restaurant
Code, on willful breach. A breach is willful if it Corp. v. NLRC, 217 SCRA 443; Midas Touch
is done intentionally, knowingly and purposely, v. NLRC, G.R. No. 111639, 29 July 1996)
without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly, Loss of trust and confidence to be a valid cause
heedlessly or inadvertently. It must rest on for dismissal must be based on a willful breach
substantial grounds and not on the employer's of trust and founded on clearly established
arbitrariness, whims, caprices or suspicion; facts. The basis for the dismissal must be
otherwise, the employee would eternally clearly and convincingly established but proof
remain at the mercy of the employer. beyond reasonable doubt is not necessary.
(Johansen World Group Corp. v. Gonzales III, (Prudential Guarantee and Assurance
G.R. No. 198733, October 10, 2012) Employee Labor Union v. NLRC, G.R. No.
185335, June 13, 2012)
Guidelines for the application of the doctrine of
loss of confidence Positions of trust and confidence:
(1) Loss of confidence should not be (1) Managerial employees - those vested with
simulated; the powers or prerogatives to lay down
(2) It should not be used as a subterfuge for management policies and to hire, transfer,
causes which are improper, illegal or suspend, lay-off, recall, discharge, assign or
unjustified; discipline employees or effectively recommend
(3) It may not be arbitrarily asserted in the such managerial actions.
face of overwhelming evidence to the (2) Fiduciary Rank and file - those who in the
contrary; and normal and routine exercise of their functions,
(4) It must be genuine, not a mere regularly handle significant amounts of money
afterthought to justify earlier action taken or property. Examples are cashiers, auditors,
in bad faith (Nokom v. NLRC, G.R. No. property custodians, etc. (Prudential
140043, July 18, 2000) Guarantee and Assurance Employee Labor
Union v. NLRC, G.R. No. 185335, June 13, 2012)
ELEMENTS OF LOSS OF TRUST AND
CONFIDENCE: Managerial Fiduciary rank-and-file
(a) There must be an act, omission, or
concealment Mere existence of a Proof of involvement in
(b) The act, omission or concealment justifies basis for the belief ofthe alleged events in
the loss of trust and confidence of the employees guilt question required;
employer to the employee; (Grand Asian Shipping mere uncorroborated
(c) The employee concerned must be holding Lines, Inc. v. Galvez, assertions and
a position of trust and confidence; G.R. No. 178184, accusations
January 29, 2014) are not enough
111
UP LAW BOC LABOR STANDARDS LABOR LAW
112
UP LAW BOC LABOR STANDARDS LABOR LAW
113
UP LAW BOC LABOR STANDARDS LABOR LAW
114
UP LAW BOC LABOR STANDARDS LABOR LAW
pay or at least one-half (1/2) month pay for (2) The losses are actual or reasonably
every year of service, whichever is higher, a imminent;
fraction of at least six months being (3) The retrenchment is reasonably necessary
considered as one whole year (Samson, and is likely to be effective in preventing
2004) the expected losses; and
(4) The alleged losses, if already incurred, or
Retrenchment the expected imminent losses sought to be
ELEMENTS OF RETRENCHMENT: forestalled, are proven by sufficient and
(a) That retrenchment is reasonably necessary convincing evidence (Sanoh Fulton Phils.,
and likely to prevent business losses which, Inc. v. Bernardo, G.R. No. 187214, August
if already incurred, are not merely de 14, 2013)
minimis, but substantial, serious, actual
and real, or if only expected, are Redundancy
reasonably imminent as perceived Redundancy exists when the service capability
objectively and in good faith by the of the workforce is in excess of what is
employer; reasonably needed to meet the demands of the
(b) That the employer served written notice business enterprise. A position is redundant
both to the employees and to the when it is superfluous, and superfluity of a
Department of Labor and Employment at position or positions could be the result of a
least one month prior to the intended date number of factors, such as the overhiring of
of retrenchment; workers, a decrease in the volume of business
(c) The employer pays the retrenched or the dropping of a particular line or service
employees separation pay equivalent to previously manufactured or undertaken by the
one (1) month pay or at least one-half (1/2) enterprise. (Morales v. Metrobank, G.R. No.
month pay for every year of service, 182475, November 21, 2012)
whichever is higher;
(d) That the employer exercises its prerogative For the implementation of a redundancy
to retrench employees in good faith for the program to be valid, however, the employer
advancement of its interest and not to must comply with the following requisites:
defeat or circumvent the employees' right (a) Written notice served on both the
to security of tenure; and, employees and the DOLE at least one
(e) That the employer uses fair and reasonable month prior to the intended date of
criteria in ascertaining who would be termination of employment;
dismissed and who would be retained (b) Payment of separation pay equivalent to at
among the employees, such as status, least one month pay for every year of
efficiency, seniority, physical fitness, age, service;
and financial hardship for certain workers. (c) Good faith in abolishing the redundant
(Flight Attendants and Stewards Ass'n of positions; and
the Philippines v. PAL, Inc., G.R. No. (d) Fair and reasonable criteria in ascertaining
178083, October 2, 2009) what positions are to be declared
redundant and accordingly
Standards for losses abolished. (Morales v. Metrobank, G.R. No.
(1) The losses incurred are substantial and 182475, November 21, 2012)
not de minimis;
115
UP LAW BOC LABOR STANDARDS LABOR LAW
To exhibit its good faith and that there was a allegation in order to avoid the payment of
fair and reasonable criteria in ascertaining separation pay. Otherwise, the affected
redundant positions, a company claiming to be employees are entitled to separation pay.
over manned must produce adequate proof of (5) The burden of proving compliance with all
the same. Such proof includes but is not the above-stated falls upon the employer.
limited to the new staffing pattern, feasibility (Manila Polo Club Employees' Union v.
studies/proposals on the viability of the newly Manila Polo Club, Inc., G.R. No. 172846,
created positions, job description and the July 24, 2013)
approval by the management of the
restructuring. (General Milling Corporation v Closure of Department
Violeta L. Viajar, G.R. No. 181738, January 30, The closure of a department or division of a
2013) company constitutes retrenchment by, and not
closure of, the company itself. (Waterfront
Closure of Business Cebu City Hotel v. Jimenez, G.R. No. 174214,
Guidelines in Closure June 13, 2012)
(1) Closure or cessation of operations of
establishment or undertaking may either Corporate acquisitions
be partial or total Asset Sales Stock Sales
(2) Closure or cessation of operations of
establishment or undertaking may or may Sale
not be due to serious business losses or Corporate entity sells In stock sales, the
financial servicereverses. However, in both all or substantially all individual or corporate
instances, proof must be shown that: of its assets to another shareholders sell a
(a) it was done in good faith to entity. controlling block of
advance the employer's interest stock to new or
and not for the purpose of existing shareholders.
defeating or circumventing the
rights of employees under the law Obligation of Seller
or a valid agreement; and
(b) Written notice on the affected Seller in good faith is A shift in the
employees and the DOLE is served authorized to dismiss composition of its
at least one month before the the affected shareholders will not
intended date of termination of employees, but is affect its existence and
employment. liable for the payment continuity.
(3) The employer can lawfully close shop even of separation pay Notwithstanding the
if not due to serious business losses or under the law. stock sale, the
financial reverses but separation pay, corporation continues
which is equivalent to at least one month to be the employer of
pay as provided for by Article 289 of the its people and
Labor Code, as amended, must be given to continues to be liable
all the affected employees. for the payment of
(4) If the closure or cessation of operations of their just claims.
establishment or undertaking is due to
serious business losses or financial Obligation of Buyer
reverses, the employer must prove such The buyer in good The corporation or its
116
UP LAW BOC LABOR STANDARDS LABOR LAW
117
UP LAW BOC LABOR STANDARDS LABOR LAW
118
UP LAW BOC LABOR STANDARDS LABOR LAW
III. DISMISSAL OF UNION OFFICERS FOR guidelines set by the Department of Labor and
THE CONDUCT OF AN ILLEGAL STRIKE / Employment. Any decision taken by the
DISMISSAL OF UNION MEMBERS FOR employer shall be without prejudice to the
PARTICIPATING IN THE COMMISSION OF right of the worker to contest the validity or
ILLEGAL ACTS legality of his dismissal by filing a complaint
with the regional branch of the National Labor
Art. 270, a, 3 rd par., 2nd sen., LC: Any union
Relations Commission. The burden of proving
officer who knowingly participates in an illegal
that the termination was for a valid or
strike and any worker or union officer who
authorized cause shall rest on the employer.
knowingly participates in the commission of
illegal acts during a strike may be declared to
Requisites for Valid Dismissal
have lost his employment status.
(1) Substantive due process: The dismissal
must be for any of the causes provided for
IV. TERMINATION IN CONFORMITY WITH
in Article 288 290 of the Labor Code; and
EXISTING STATUTE / QUALIFICATION
(2) Procedural due process: The employee
REQUIREMENTS must be afforded an opportunity to be
While the right of workers to security of tenure heard and defend himself. [Fujitsu
is guaranteed by the Constitution, its exercise Computer Products Corporation of the Phil.
may be reasonably regulated pursuant to the v. Court of Appeals, G.R. No. 158232, March
police power of the State to safeguard health, 31, 2005]
morals, peace, education, order, safety, and
the general welfare of the people. Employer may not substitute the required prior
Consequently, persons who desire to engage in notice & opportunity to be heard with the mere
the learned professions requiring scientific or payment of 30 days' salary. [PNB v. Cabansag,
technical knowledge may be required to take G.R. No. 157010, [June 21, 2005]
an examination as a prerequisite to engaging
in their chosen careers. [ St. Lukess Medical Right to Counsel
Center Employees Ass'n-AFW v. NLRC, G.R. The right to counsel, a very basic requirement
No. 162053, March 7, 2007] of substantive due process, has to be observed.
Indeed, the rights to counsel and to due
B.4 DUE PROCESS process of law are two of the fundamental
Art. 283 (b), LC: Subject to the constitutional rights guaranteed by the 1987 Constitution to
right of workers to security of tenure and their any person under investigation, be the
right to be protected against dismissal except proceeding administrative, civil, or criminal.
for a just and authorized cause without [Salaw v. NLRC, G.R. No. 90786, September 27,
prejudice to the requirement of notice under 1991]
Article 283 of this Code, the employer shall
furnish the worker whose employment is Burden of Proof
sought to be terminated a written notice In illegal dismissal cases, the onus of proving
containing a statement of the causes for that the employee was not dismissed or, if
termination and shall afford the latter ample dismissed, that the dismissal was not illegal,
opportunity to be heard and to defend himself rests on the employer, failure to discharge
with the assistance of his representative if he which would mean that the dismissal is not
so desires in accordance with company rules justified and, therefore, illegal. [Macasero v.
and regulations promulgated pursuant to
119
UP LAW BOC LABOR STANDARDS LABOR LAW
I. TWIN-NOTICE REQUIREMENT
The employer has the burden of proving that a An employee may be dismissed only if the
dismissed worker has been served two notices: grounds mentioned in the pre-dismissal notice
(1) The first to inform the employee of the were the ones cited for the termination of
particular acts or omissions for which the employment. [Erector Advertising Sign Group,
employer seeks his dismissal, and Inc. v. Cloma, G.R. No. 167218, July 2, 2010]
(2) The second to inform the employee of his
employer's decision to terminate him. II. HEARING; MEANING OF
OPPORTUNITY TO BE HEARD
(1) Contain the specific causes or In employee dismissal cases, the essence of
grounds for termination against due process is simply an opportunity to be
them, and heard; it is the denial of this opportunity that
(2) Contain a directive that the constitutes violation of due process of law.
employees are given the [Technol Eight Philippines Corporation v. NLRC,
opportunity to submit their G.R. No. 187605, April 13, 2010]
written explanation within a
reasonable period or every kind While a formal hearing or conference is ideal, it
of assistance that management is not an absolute, mandatory or exclusive
must accord to the employees to avenue of due process. [Perez v. PT&T, G.R. No.
enable them to prepare 152048, April 7, 2009]
First adequately for their defense. This
Notice should be construed as a period Guiding principles in hearing requirement
of at least five (5) calendar days (1) "Ample opportunity to be heard" means
from receipt of the notice any meaningful opportunity (verbal or
(3) Contain a detailed narration of written) given to the employee to answer
the facts and circumstances that the charges against him and submit
will serve as basis for the charge evidence in support of his defense, whether
against the employees. in a hearing, conference or some other fair,
(4) Specifically mention which just and reasonable way.
company rules, if any, are (2) A formal hearing or conference becomes
violated and/or which among the mandatory only when requested by the
grounds under Art. 288 is being employee in writing or substantial
charged against the evidentiary disputes exist or a company
120
UP LAW BOC LABOR STANDARDS LABOR LAW
121
UP LAW BOC LABOR STANDARDS LABOR LAW
C. RELIEFS FOR ILLEGAL DISMISSAL (10) When supervening facts have transpired
Art. 285, LC: Security of Tenure. In case of which make execution on that score unjust
regular employment, the employer shall not or inequitable or, to an increasing extent
terminate the services of an employee except (Emeritus Security & Maintenance Systems,
for a just cause or when authorized by this Inc. v. Dailig, G.R. No. 204761, April 2,
Title. An employee who is unjustly dismissed 2014)
from work shall be entitled to reinstatement
without loss of seniority rights and other Prescription Period
privileges and to his full backwages, inclusive An action for reinstatement by reason of
of allowances, and to his other benefits or illegal dismissal is one based on an injury
their monetary equivalent computed from the which may be brought within 4 years from the
time his compensation was withheld from him time of dismissal. [Art. 1146, CC]
up to the time of his actual reinstatement.
I. REINSTATEMENT PENDING APPEAL
C.1. REINSTATEMENT [Art. 229]
Reinstatement means restoration to a state or Art. 229, par. 3 LC: In any event, the decision of
condition from which one had been removed the Labor Arbiter reinstating a dismissed or
or separated. The person reinstated assumes separated employee, insofar as the
the position he had occupied prior to his reinstatement aspect is concerned, shall
dismissal [Asian Terminals, Inc. v. Villanueva, immediately be executory, pending appeal.
G.R. No. 143219, November 28, 2006] The employee shall either be admitted back to
work under the same terms and conditions
General Rule: Reinstatement prevailing prior to his dismissal or separation
or, at the option of the employer, merely
Exceptions: reinstated in the payroll. The posting of a
(1) Separation pay bond by the employer shall not stay the
(2) Closure of business (Retuya v. Hon. execution for reinstatement provided herein.
Dumarpa, G.R. No. 148848, Aug. 5, 2003)
(3) Economic business conditions (Union of If the order of reinstatement of the Labor
Supervisors v. Secretary of Labor, G.R. No. Arbiter is reversed on appeal, it is obligatory
L-39889, November 12, 1981) on the part of the employer to reinstate and
(4) Employees unsuitability (Divine Word High pay the wages of the dismissed employee
School v. NLRC, G.R. No. 72207, August 6, during the period of appeal until reversal by
1986) the higher court. The Labor Arbiter's order of
(5) Employees retirement/ overage (New reinstatement is immediately executory and
Philippine Skylanders, Inc. v. Dakila, G.R. the employer has to either re-admit them to
No. 199547, September 24, 2012) work under the same terms and conditions
(6) Antipathy and antagonism (Wensha Spa prevailing prior to their dismissal, or to
Center v. Yung, G.R. No. 185122, Aug. 16, reinstate them in the payroll, and that failing
2010) to exercise the options in the alternative,
(7) Job with a totally different nature (DUP employer must pay the employee's salaries
Sound Phils. v. CA, G.R. No. 168317m Nov. [Magana v. Medicard Philippines, Inc., G.R. No.
21, 2011) 174833, December 15, 2010]
(8) Long passage of time
(9) Inimical to the employer's interest
122
UP LAW BOC LABOR STANDARDS LABOR LAW
123
UP LAW BOC LABOR STANDARDS LABOR LAW
A dismissed employee who has accepted Awards including salary differentials are not
separation pay is not necessarily estopped allowed [Insular Life Assurance Co. v. NLRC,
from challenging the validity of his or her 1987]
dismissal. Neither does it relieve the employer
of legal obligations. [Anino v. NLRC, G.R. No. The salary base properly used should be the
123226, May 21, 1998] basic salary rate at the time of dismissal plus
the regular allowances; allowances include:
C.2. BACKWAGES
Backwages are earnings lost by a worker due Emergency cost of living allowances (ECOLA),
to his illegal dismissal; a form of relief that transportation allowances, 13 th month pay
restores the income lost by reason of such [Paramount Vinyl Product Corp. v. NLRC, 1990]
unlawful dismissal; it is not private
compensation or damages; nor is it a redress Also included are vacation leaves, service
of a private right but, rather, in the nature of a incentive leaves, and sick leaves
command to the employer to make a public
reparation for illegally dismissing an The effects of extraordinary inflation are not to
employee. [St. Theresa's School of Novaliches be applied without an official declaration
Foundation v. NLRC, G.R. No. 122955, April 15, thereof by competent authorities [Lantion v.
1998] NLRC, 1990]
124
UP LAW BOC LABOR STANDARDS LABOR LAW
amount of backwages to their total equivalent International Corp. (1972)] and attrition and
for three years (depending on the protracted delay in satisfying such award on
circumstances) without deduction or the part of unscrupulous employers who have
qualification. The rationale for the policy was seized upon the further proceedings to
stated in the following words: determine the actual earnings of the
wrongfully dismissed or laid-off employees to
As has been noted, this formula of awarding hold unduly extended hearings for each and
reasonable net backwages without deduction every employee awarded backwages and
or qualification relieves the employees from thereby render practically nugatory such
proving or disproving their earnings during award and compel the employees to agree to
their lay-off and the employers from unconscionable settlements of their
submitting counterproofs, and obviates the backwages award in order to satisfy their dire
twin evils of Idleness on the part of the need. [See La Campana Food Products, Inc. vs.
employee who would "with folded arms, CIR, (1969) and Kaisahan ng Mga
remain inactive in the expectation that a Manggagawa vs. La Campana Food Products,
windfall would come to him" [Itogon Suyoc Inc., (1970)].
Mines, Inc. vs. Sangilo-Itogon Workers Union
(1968), as cited in Diwa ng Pagkakaisa vs. Filtex
Indemnity of Employer
Doctrine in Validity of
Period Liability of ER
effect Dismissal
Prior 1989 Pre-Wenphil Illegal Reinstatement + Backwages
Feb. 1989 1999 Wenphil Valid Dismiss now, indemnity pay later
Jan. 2000 Oct. Serrano Ineffectual Full backwages up to reinstatement/finality of
2004 decision
Nov. 2004 Agabon Valid Nominal damages
present
125
UP LAW BOC LABOR STANDARDS LABOR LAW
126
UP LAW BOC LABOR STANDARDS LABOR LAW
It is obvious that the company overstepped the the consequent transfer of Trycos personnel,
bounds of its management prerogative in the assigned to the Production Department was
dismissal of Mauricio and Camacho. It lost well within the scope of its management
sight of the Principle that management prerogative.
prerogative must be exercised in good faith
and with due regard to the rights of the When the transfer is not unreasonable, or
workers in the spirit of fairness and with justice inconvenient, or prejudicial to the employee,
in mind. [Philbag Industrial Manufacturing and it does not involve a demotion in rank or
Corp. vs. Philbag Workers Union-Lakas at diminution of salaries, benefits, and other
Gabay ng Manggagawang Nagkakaisa, 2012] privileges, the employee may not complain
that it amounts to a constructive dismissal.
Although we recognize the right of employers [Bisig ng Manggagawa sa TRYCO v. NLRC,
to shape their own work force, this 2008]
management prerogative must not curtail the
basic right of employees to security of tenure. It is management prerogative for employers to
[Alert Security & Investigation Agency, Inc. vs. transfer employees on just and valid grounds
Saidali Pasawilan, et. al., 2011] such as genuine business necessity. [William
Barroga vs. Data Center College of the
B. TRANSFER OF EMPLOYEES Philippines, 2011]
An Employees right to security of tenure does Even though transfers or reassignments per se
not give him such a vested right in his position are indeed valid and fall within the ambit of
as would deprive the company of its management prerogatives, the exercise of
prerogative to change his assignment or these rights must remain within the
transfer him where he will be most useful. boundaries of justice and fair play. [Michelle T.
Tuason vs. Bank of Commerce, 2012]
The Employer has the right to transfer or
assign Employees from one area of operation Re-assignments made by management
to another, or one office to another or in pending investigation of irregularities
pursuit of its legitimate business interest, allegedly committed by an employee fall
Provided there is no demotion in rank or within the ambit of management prerogative.
diminution of salary, benefits and other The purpose of reassignments is no different
privileges and not motivated by discrimination from that of preventive suspension which
or made in bad faith, or effected as a form of management could validly impose as a
punishment or demotion without sufficient disciplinary measure for the protection of the
cause. [Westin Phil. Plaza Hotel v. NLRC, 1999] company's property pending investigation of
any alleged malfeasance or misfeasance
This prerogative extends to the managements committed by the employee. [Ruiz v Wendel
right to regulate, according to its own Osaka Realty Corp., 2012]
discretion and judgment, all aspects of
employment, including the freedom to In cases of a transfer of an employee, the rule
transfer and reassign employees from one are is settled that the employer is charged with
to another in order to meet the requirements the burden of proving that its conduct and
of the business is, therefore, not general action are for valid and legitimate grounds
constitutive of constructive dismissal. Thus, such as genuine business necessity and that
127
UP LAW BOC LABOR STANDARDS LABOR LAW
128
UP LAW BOC LABOR STANDARDS LABOR LAW
G. POST-EMPLOYMENT BAN
In cases where an employee assails a contract
containing a provision prohibiting him or her
from accepting competitive employment as
against public policy, the employer has to
adduce evidence to prove that the restriction is
reasonable and not greater than necessary to
protect the employers legitimate business
interests. The restraint may not be unduly
harsh or oppressive in curtailing the
employees legitimate efforts to earn a
livelihood and must be reasonable in light of
sound public policy. [Rivera v Solidbank, 2006]
129
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
130
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
131
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
132
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
VIII. SICKNESS BENEFITS [SEC. 14] only for each day of confinement starting
Eligibility requirements and other conditions from the tenth calendar day immediately
(1) Inability to work due to sickness or injury preceding the date of notification to the
(2) Confined for at least 4 days either in a SSS.
hospital or elsewhere with SSS approval; (3) SSS shall reimburse the employer or pay
(3) At least 3 months of contributions in the 12 the unemployed member only for
month period immediately before the confinement within the one-year period
semester of sickness or injury has been immediately preceding the date the claim
paid; for benefit or reimbursement is received by
(4) All company sick leaves with pay for the the SSS, except confinement in a hospital
current year have been used up; in which case the claim for benefit or
(5) Maximum of 120 days per 1 calendar year reimbursement must be filed within one [1]
[i.e maximum permissible for the same year from the last day of confinement.
sickness and confinement is 240 days for 2
consecutive years]; IX. MATERNITY LEAVE BENEFITS [SEC.
(6) The employer has been notified, or, if a 14-A]
separated, voluntary or self-employed Eligibility Requirements
member, the SSS directly notified within 5 (1) A female member
days of confinement; (2) Paid at least three [3] monthly
(7) Notice to employer or SSS not needed contributions in the twelve-month period
when confinement is in a hospital; notice immediately preceding the semester of her
to employer not required as well when childbirth or miscarriage
Employee became sick or injured while (3) She shall have notified her employer of her
working or within premises of the pregnancy and the probable date of her
employer. childbirth, which notice shall be
transmitted to the SSS in accordance with
Benefit: daily cash allowance paid for the the rules and regulations it may provide;
number of days a member is unable to work
due to sickness or injury equivalent to 90% x Process
[average daily salary credit] The full payment shall be advanced by the
employer within thirty [30] days from the filing
Note: One hundred percent [100%] of the daily of the maternity leave application;
benefits provided in the preceding paragraph
shall be reimbursed by the SSS to said Coverage
employer upon receipt of satisfactory proof of The maternity benefits provided under this
such payment and legality thereof if the section shall be paid only for the first four [4]
following conditions are met: deliveries or miscarriages;
(1) The employer notified the SSS of the
confinement within five calendar days Employers Reimbursement
after receipt of the notification from the That the SSS shall immediately reimburse the
employee member employer of one hundred percent [100%] of
(2) If the notification to the SSS is made by the amount of maternity benefits advanced to
the employer beyond five calendar days the employee by the employer upon receipt of
after receipt of the notification from the satisfactory proof of such payment and legality
employee member, he shall be reimbursed thereof. Note: All of these benefits are tax-exempt.
133
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
134
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
135
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
136
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
SSS GSIS
Enabling law RA 1161 as amended by RA 8282: RA 8291 amending PD 1146
Social Security Act of 1997
Employer any person, natural or juridical, Employer National government, its
domestic or foreign, who carries on in the political subdivisions, branches,
Philippines any trade business, industry, agencies or instrumentalities,
undertaking, and uses the services of including government-owned or
another person who is under his orders as controlled corporations and financial
regards the employment, except those institutions with original charters
considered as employer under the GSIS. A [GOCCs]; constitutional commissions;
self-employed person shall be both and judiciary
employer and employee at the same time.
Employee any person who performs Employee any person receiving
services for an employer in which either or compensation while in service of an
both mental and physical efforts are used employer whether by election or
and who receives compensation for such appointment, irrespective of status of
services, where there is an employer appointment; baranggay officials; and
Definition of employee relationship; also, a self- sangguniang officials
Terms employed person who is both employee and
employer at the same time
Self-employed any person whose income Note: No counterpart for self-
is not derived from employment, including, employed.
but not limited to:
self-employed professionals;
partners and single proprietors of
businesses;
actors, directors, scriptwriters, news
correspondents not considered as
employees under the above definition;
athletes, coaches, trainers, jockeys;
and
individual farmers and fishers.
137
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
138
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
139
UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW
C. LIMITED PORTABILITY LAW [RA (3) An employee over sixty [60] years of age
7699] shall be covered if he had been paying
contributions to the System prior to age
C.1 COVERAGE sixty [60] and has not been compulsorily
retired.
(1) Workers who transfer employment from
(4) An employee who is coverable by both the
one sector to another; or
GSIS and SSS shall be compulsorily
(2) Those employed in both sectors [public
covered by both Systems. [Sec. 2, IRR of
and private].
Title II, Book IV of LC]
(5) Filipinos working abroad in the service of
C.2. PROCESS
an employer as defined in Section 3 hereof
The covered worker shall have his credible
shall be covered by the System, and
services or contributions in both Systems
entitled to the same benefits as are
credited to his service or contribution record in
provided for employees working in the
each of the Systems and shall be totalized for
Philippines. [Sec. 5, IRR of Title II, Book IV
of LC]
purposes of old-age, disability, survivorship
and other benefits in case the covered member
D.2. EFFECTIVITY
does not qualify for such benefits in either or
both systems without totalization: Provided, Coverage of employees shall take effect on the
however, That overlapping periods of first day of employment. [Sec. 6]
membership shall be credited only once for
purposes of totalization [Sec. 3] D.3. WHEN COMPENSABLE
Grounds
Totalization shall refer to the process of (1) For the injury and the resulting disability or
adding up the periods of creditable services or death to be compensable, the injury must
contributions under each of the Systems, for be the result of accident arising out of and
purposes of eligibility and computation of in the course of the employment.
benefits [Sec. 2e]. (2) For the sickness and the resulting disability
or death to be compensable, the sickness
Overlapping periods of membership in case of must be the result of an occupational
those employed in both sectors at once are to disease listed under Annex A of these
be counted only ONCE for purposes of Rules with the conditions set therein
totalization to be able to satisfy eligibility satisfied, otherwise, proof must be shown
requirements of benefits provided for by either that the risk of contracting the disease is
SSS or GSIS. increased by the working conditions.
140
UP LAW BOC LABOR RELATIONS LABOR LAW
VII. Labor Relations the Labor Code. Employees have the right to
form, join or assist labor organizations for the
purpose of collective bargaining or for their
A. RIGHT TO SELF-ORGANIZATION mutual aid and protection. (UST Faculty Union
v Bitonio)
Basis of Right
(1) 1987 Constitution Infringement of the right to self-organization
Art. III Sec. 8. The right of the people, including It shall be unlawful for any person to restrain,
those employed in the public and private coerce, discriminate against or unduly interfere
sectors, to form unions, associations, or with employees and workers in their exercise of
societies for purposes not contrary to law shall the right to self-organization. [] (Art. 252)
not be abridged.
Scope of right to self-organization
Art. XIII Sec. 3. The state shall afford full (1) Right to form, join and assist labor
protection to labor, local and overseas, organizations of their own choosing for the
organized and unorganized, and promote full
purpose of collective bargaining through
employment opportunities for all. It shall
guarantee the rights of all workers to self- representatives (Art. 252);
organization, collective bargaining and (2) Right to engage in lawful concerted
negotiations, and peaceful concerted activities, activities for the same purpose or for their
including the right to strike in accordance with mutual aid and protection (Art. 252)
law. [...] (3) Subsumed in the right to join, affiliate with,
or assist any union is the right NOT to join,
(2) Labor Code affiliate with, or assist any union; or to
Art. 249. All persons employed in commercial, leave a union and join another one.
industrial and agricultural enterprises and in (Heritage Hotel Manila v. PIGLAS-Heritage,
religious, charitable, medical, or educational 2009)
institutions, whether operating for profit or not,
shall have the right to self-organization and to (4) The right of the employees to self-
form, join, or assist labor organizations of their organization is a compelling reason why
own choosing for purposes of collective their withdrawal from the cooperative
bargaining. must be allowed. As pointed out by the
Ambulant, intermittent, and itinerant union, the resignation of the member-
workers, self-employed people, rural workers employees is an expression of their
and those without any definite employers may
preference for union membership over that
form labor organizations for their mutual aid
and protection. of membership in the cooperative. (Central
Negros Electric Cooperative v SOLE, 1991)
Art. 250. Employees of government
corporations established under the corporation
code shall have the right to organize and to
bargain collectively with their respective
employers.
141
UP LAW BOC LABOR RELATIONS LABOR LAW
A.1. WHO MAY UNIONIZE FOR work councils and other forms of workers
PURPOSES OF COLLECTIVE participation schemes to achieve the same
BARGAINING? objectives. (EO 180 2 [1987])
(1) All employees (General Rule)
(2) Employees of the government under the (3) Supervisory Employees
civil service, and government employees of Supervisory employees are those who, in the
corporations created under the Corporation interest of the employer, effectively
Code recommend such managerial actions if the
(3) Supervisory Employees exercise of such authority is not merely
(4) Aliens with valid working permits routinary or clerical in nature but requires the
(5) Security personnel use of independent judgment. (Art. 218 (m))
142
UP LAW BOC LABOR RELATIONS LABOR LAW
On Dec. 1986, President C. Aquino issued EO The two criteria are cumulative, and both must
No. 111 which eliminated the provision which be met if an employee is to be considered a
made security guards ineligible to join any confidential employee that is,
labor organizations. In 1989, Congress passed (1) the confidential relationship must exist
RA 6715 which also did not impose limitations between the employees and his supervisor,
on the ability of security guards to join labor and
organizations. Thus, security guards may now (2) the supervisor must handle the prescribed
freely join a labor organization with the rank- responsibilities relating to labor relations.
and-file or the supervisory union, depending on (San Miguel Supervisors and Exempt Union
their rank.(Manila Electric Co. v. SOLE, 1991) v Laguesma, 1997)
143
UP LAW BOC LABOR RELATIONS LABOR LAW
144
UP LAW BOC LABOR RELATIONS LABOR LAW
145
UP LAW BOC LABOR RELATIONS LABOR LAW
146
UP LAW BOC LABOR RELATIONS LABOR LAW
receiving an over all majority of votes to of work to which they belong, and the unity of
represent all employees, but for the specific employees' interest such as substantial
purpose of permitting the employees in each of similarity of work and duties. (Belyca Corp. v.
the several categories to select the group Calleja, 1988)
which each chooses as a bargaining unit.
(Kapisanan ng mga Manggagawa sa Manila (5) Geography and Location
Road Co. v. Yard Crew Union, 1960) Geography and location only play a significant
role if:
Rationale (1) The separation between the camps and
Highly skilled or specialized technical workers the different kinds of work in each all
may choose to form their own bargaining unit militate in favor of the system of
because they may be in better position to separate bargaining units;
bargain with the employer considering the (2) When the problems and interests of the
market value of their skills. workers are peculiar in each camp or
department;
(2) Community or Mutuality of Interests (3) The system of having one collective
The basic test of an asserted bargaining units bargaining unit in each camp has
ACCEPTABILITY is whether or not it is operated satisfactorily in the past.
fundamentally the combination which will best (Benguet Consolidated Inc. and Balatok
assure to all employees the exercise of their Mining Co. v. Bobok Lumberjack
collective bargaining rights. This is related to Assn.,1958)
the policy of the law in ensuring the right to
collective bargain. (UP v. Ferrer-Calleja, 1992) (6) Policy of avoiding fragmentation of the
bargaining unit
Rationale It bears noting that the goal of the DOLE is
There are greater chances of success for the geared towards "a single employer wide unit
collective bargaining process. The bargaining which is more to the broader and greater
unit is designed to maintain the mutuality of benefit of the employees working force." The
interest among the employees in such unit. philosophy is to avoid fragmentation of the
bargaining unit so as to strengthen the
When the interest between groups has employees bargaining power with the
changed over time, there is reason to dissolve, management. To veer away from such goal
change or expand a certain bargaining unit. would be contrary, inimical and repugnant to
the objectives of a strong and dynamic
(3) Prior Collective Bargaining History unionism. (Phil. Diamond Hotel and Resort Inc v
The existence of prior collective bargaining Manila Diamond Hotel and Employees Union,
history is neither decisive nor conclusive in the 2006)
determination of what constitutes an
appropriate bargaining unit. (San Miguel Corp. Since the confidential employees are very few
v. Laguesma, 1994) in number and are by practice and tradition
identified with the supervisors in their role as
(4) Employment status representatives of management vis--vis the
Among the factors to be considered is the rank and file employees, such identity of
employment status of the employees to be interest has allowed their inclusion in the
affectedthat is the positions and categories bargaining of supervisors for purposes of
147
UP LAW BOC LABOR RELATIONS LABOR LAW
148
UP LAW BOC LABOR RELATIONS LABOR LAW
it while professing its loyalty to labor, or at It is a fundamental postulate that the will of
least that the hopes of labor be not frustrated the majority given expression in an honest
because of its representation by a union that election with freedom on the part of the voters
does not enjoy its approval and support. It is to make their choice, is controlling. (PLUM
therefore sound policy that any doubt Federation of Industrial and Agrarian Workers v
regarding the real representation of the Noriel, 1978)
workers be resolved in favor of the holding of Certification Election Union Election
the certification election. This is preferable to
To determine the Exclusive To elect union
the suppression of the voice of the workers Bargaining Agent officers
through the prissy observance of technical All members of the Only union
rules that will exalt procedure over substantial appropriate bargaining members may
justice. (Port Workers Union of the Philippines v unit may vote. vote.
Laguesma, 1992)
It is a statutory policy. (Belyca Corp. v. Ferrer-
Purpose Calleja, 1998)
The purpose of a certification election is
precisely the ascertainment of the wishes of Implications
the majority of the employees in the Thus it should not be circumvented. There
appropriate bargaining unit: to be or not to be should be no obstacle in conducting the
represented by a labor organization, and in the Certification election. (George & Peter Lines,
affirmative case, by which particular labor Inc. v. Associated Labor Union, 1985)
organization. (Reyes v Trajano, 1992)
Technical rules and objections should not
Nature of proceeding hamper the correct ascertainment of the labor
It is not litigation, but a mere investigation of a union that has the support and confidence of
non-adversary character. The object of the the majority of the workers and is thus entitled
proceedings is merely the determination of to represent them in bargaining for the terms
proper bargaining units and the ascertainment and conditions of their employment. (Port
of the will and choice of the employees in Workers Union v. DOLE, 1992)
respect of the selection of the bargaining
representative. The determination of the Who may vote
proceeding does not entail the entry of All employees whether union members or not,
remedial orders or redress of rights, but as long as they belong to the appropriate
culmination solely in an official designation of bargaining unit can vote.
bargaining units and an affirmation of the
employees expressed choice of bargaining Who may file a petition for certification election
agent. (Young Men Labor Union Stevedores v (1) Legitimate labor organization (registered
CIR, 1965) w/ DOLE)
(2) Unregistered local chapter with charter
It is the most democratic and most efficacious/ certificate from national union or
effective way of determining the will of the federation
bargaining unit. (Samahang Manggagawa sa (3) National union or federation in behalf of its
Permex v Sec. of Labor, 1998) local/chapter
(4) Employer (when requested to bargain
collectively and no existing CBA)
149
UP LAW BOC LABOR RELATIONS LABOR LAW
(1) Legitimate Labor Organization (2) submitting the list of employees during
"Legitimate labor organization" means any the pre-election conference should the
labor organization duly registered with the Med-arbiter act favorably on the petition
Department of Labor and Employment, and (Art 258-A introduced by RA 9481)
includes any branch or local thereof. (Art. 218
(f)) A companys interference in the Certification
Election creates a suspicion that it intends to
(2) Unregistered Chapter with Charter establish a company union. (Oriental Tin Can
certificate Labor Union v. Secretary of Labor, 1998)
A duly registered federation or national union
may directly create a local chapter by issuing a The employer is not a party to a certification
charter certificate indicating the establishment election, which is the sole or exclusive concern
of the local chapter. The chapter shall acquire of the workers. The only instance when the
legal personality only for purposes of filing a employer may be involved in that process is
petition for certification election from the date when it is obliged to file a petition for
it was issued a charter certificate. (Art. 240-A) certification election on its workers request to
bargain collectively pursuant to Art. 258.
(3) National Union/Federation (Hercules Industries, Inc. v Sec. of Labor, 1992)
In any establishment where there is no certified
bargaining agent, a certification election shall The employer is a total stranger in the process
automatically be conducted by the Med- of certification election. The employer has no
Arbiter upon filing of a petition by any standing to file a motion to dismiss. (PT&T v
legitimate labor organization, including a Laguesma, 1993)
national union or federation which has already
issued a charter certificate to its local/chapter Venue for filing the petition
participating in the certification election, or a BLR Regional Office which issued the
local/chapter which has been issued a charter petitioning unions certificate of registration or
certificate by the national union or federation. certificate of creation of chartered local.
In cases where the petition was filed by a
national union or federation, it shall not be CERTIFICATION ELECTION IN AN
required to disclose the names of the local UNORGANIZED ESTABLISHMENT
chapters officers and members. (Art. 263) Procedure
(1) A petition for certification election shall be
(4) Employer filed by a legitimate labor organization.
When requested to bargain collectively, an (2) Upon filing of the petition, the Med- Arbiter
employer may petition the Bureau for an shall automatically conduct a certification
election. (Art. 264) election.
150
UP LAW BOC LABOR RELATIONS LABOR LAW
exclusive bargaining representative. This is one Rule does not apply to Motions for Intervention
way the law encourages union registration.
The requisite written consent representing
Venue substantial support of the workers in the
BLR Regional Office which issued the bargaining unit [as required in Art. 256 applies
petitioning unions certificate of registration or to petitions for certification only, and not to
certificate of creation of chartered local. motions for intervention. (PAFLU v Calleja, 1989)
151
UP LAW BOC LABOR RELATIONS LABOR LAW
152
UP LAW BOC LABOR RELATIONS LABOR LAW
153
UP LAW BOC LABOR RELATIONS LABOR LAW
154
UP LAW BOC LABOR RELATIONS LABOR LAW
155
UP LAW BOC LABOR RELATIONS LABOR LAW
156
UP LAW BOC LABOR RELATIONS LABOR LAW
157
UP LAW BOC LABOR RELATIONS LABOR LAW
the association of the locals into the national VIII. UNION DUES AND SPECIAL
union was in furtherance of the same end. ASSESSMENTS
These associations are consensual entities
capable of entering into such legal relations Union dues
with their member. The essential purpose was Union dues are payments to meet the unions
the affiliation of the local unions into a common general and current obligations. The payment
enterprise to increase by collective action the must be regular, periodic, and uniform.
common bargaining po wer in respect of the (Azucena)
terms and conditions of labor. (Tropical Hut
Employees Union v. Tropical Hut Food Market Every payment of fees, dues or other
Inc., 1990) contributions by a member shall be evidenced
by a receipt signed by the officer or agent
Effect of disaffiliation making the collection and entered into the
A registered independent union retains its record of the organization to be kept and
legal personality while a chartered local loses maintained for the purpose. (Art. 247 (h))
its legal personality unless it registers itself.
Special assessments
SUBSTITUTIONARY DOCT RINE Special assessments are payments for a
The substitutionary doctrine provides that special purpose, especially if required only for
the employees cannot revoke the validly a limited time. (Azucena)
executed collective bargaining contract with
their employer by the simple expedient of No special assessment or other extraordinary
changing their bargaining agent. And it is in fees may be levied upon the members of a
the light of this that the phrase said new labor organization unless authorized by a
agent would have to respect said contract written resolution of a majority of all the
must be understood. It only means that the members of a general membership meeting
employees, thru their new bargaining agent, duly called for the purpose. (Art. 247 (n))
cannot renege on their collective bargaining
contract, except of course to negotiate with Other than for mandatory activities under the
management for the shortening thereof. Code, no special assessments, attorneys fees,
(Benguet Consolidated v. BCI Employees and negotiation fees or any other extraordinary fees
Workers Union-PAFLU, 1998) may be checked off from any amount due to an
employee without an individual written
Conditions: authorization duly signed by the employee.
(1) change of bargaining agent (through The authorization should specifically state the
affiliation, disaffiliation, or other means) amount, purpose and beneficiary of the
(2) existing CBA with the previous bargaining deduction. (Art. 247 (o))
agent
REQUIREMENTS FOR VALIDITY OF SPECIAL
Effects: ASSESSMENT
(1) new bargaining agent cannot revoke and (1) Authorization by written resolution of
must respect the existing CBA majority of ALL the members at the general
(2) it may negotiate with management to membership meeting called for that
shorten the existing CBAs lifetime purpose
158
UP LAW BOC LABOR RELATIONS LABOR LAW
(2) Secretarys record of the minutes of the Requisites for assessment of Agency Fees
meetings attested to by the president. Employees of an appropriate bargaining unit
(3) Individual written authorization for check- who are not members of the recognized
off duly signed by the employees collective bargaining agent may be assessed a
concerned. reasonable fee equivalent to the dues and
other fees paid by members of the recognized
collective bargaining agent, if such non-union
Attorneys fees, negotiation fees, and similar members accept the benefits under the
charges collective bargaining agreement: Provided,
No attorneys fees, negotiation fees or similar that the individual authorization required
charges of any kind arising from any collective under Article 242, paragraph (o) of this Code
bargaining negotiations or conclusion of the shall not apply to the non-members of the
recognized collective bargaining agent. (Art.
collective agreement shall be imposed on
254 (e))
individual member of contracting union.
Provided, however, that attorneys fees may be Requirements:
charged against union funds in an amount to (1) Non-member of SEBA
be agreed upon by the parties. Any contract, (2) Member of Collective Bargaining Unit
agreement or arrangement of any sort to the (3) Reasonable fee equivalent to the dues and
contrary shall be null and void. (Art. 228 (b)) other fees paid by member
159
UP LAW BOC LABOR RELATIONS LABOR LAW
responsible exercise of the right to self- Nature and Purpose of Collective Bargaining
organization and collective bargaining, The institution of collective bargaining is a
either through single enterprise level prime manifestation of industrial democracy at
negotiations or through the creation of a work. The two parties to the relationship, labor
mechanism by which different employers and management, make their own rules by
and recognized certified labor unions in coming to terms to govern themselves in
their establishments bargain collectively. matters that really count. [United Employees
[Book V, Rule XVI, 1] Union of Gelmart Industries v. Noriel, 1975]
160
UP LAW BOC LABOR RELATIONS LABOR LAW
sole and exclusive bargaining representative of [A]t the expiration of the freedom period, the
the employees in the bargaining unit, or within employer shall continue to recognize the
sixty (60) calendar days before the expiration majority status of the incumbent bargaining
of the existing collective bargaining agent where no petition for certification
agreement, or during the collective bargaining election is filed. [Art. 256]
negotiation. [Art. 248 (c)]
B.2 COLLECTIVE BARGAINING
The parties may agree to make available such AGREEMENT (CBA)
up-to-date financial information which is A collective bargaining agreement refers to the
normally submitted to relevant government negotiated contract between a legitimate labor
agencies material and necessary for organization and the employer concerning
meaningful negotiations. They may also agree wages, hours of work and all other terms and
to the condition that the information be kept conditions of employment in a bargaining unit,
confidential. [Book V Rule XVI 2] including mandatory provisions for grievances
and arbitration machineries. [Book V Rule I
I. WHEN THERE IS ABSENCE OF A CBA 1(j)]
In the absence of an agreement or other
voluntary arrangement providing for a more CBA Impressed with Public Policy
expeditious manner of collective bargaining, it A CBA, as a labor contract within the
shall be the duty of employer and the contemplation of Article 1700 Civil Code which
representatives of the employees to bargain governs the relations between labor and
collectively in accordance with the provisions capital, is not merely contractual in nature but
of this Code. (Art. 257) impressed with public interest, thus, it must
yield to the common good. [Davao Integrated
Port Stevedoring Services v. Abarquez, 1993]
II. WHEN THERE IS A CBA
General Rule
The relations between capital and labor are
The duty to bargain collectively shall also
not merely contractual. They are so impressed
mean that neither party shall terminate nor
with public interest that labor contracts must
modify such agreement during its lifetime.
yield to the common good. Therefore such
contracts are subject to the special laws on
Exception labor unions collective bargaining strikes and
In organized establishments, when a verified lockouts closed shop wages working
petition questioning the majority status of the conditions hours of labor and similar subjects.
incumbent bargaining agent is filed before the [Art. 1700 Civil Code]
Department of Labor and Employment within
the sixty-day period before the expiration of
Substandard CBA
the collective bargaining agreement, the Med- A CBA that falls below the minimum standards
Arbiter shall automatically order an election by required by law is prohibited. Nonetheless, RA
secret ballot when the verified petition is 9481 removed substandard CBAs as a ground
supported by the written consent of at least for the cancellation of registration of union
twenty-five percent (25%) of all the employees
registration. Note: A substandard CBA cannot
in the bargaining unit to ascertain the will of
bar a petition for certification election under
the employees in the appropriate bargaining
the contract-bar rule.
unit.
161
UP LAW BOC LABOR RELATIONS LABOR LAW
162
UP LAW BOC LABOR RELATIONS LABOR LAW
iv. Board intervention and conciliation. If Failure to Reply as Indicia of Bad Faith
the dispute is not settled, the Board GMCs failure to make a timely reply to the
shall intervene upon request of either proposal sent by the union is indicative of its
or both parties or at its own initiative utter lack of interest in bargaining with the
and immediately call the parties to union. Its excuse that it felt the union no longer
conciliation meetings. The Board shall represented the workers was mainly dilatory as
have the power to issue subpoenas it turned out to be utterly baseless. GMCs
requiring the attendance of the parties refusal to make a counter-proposal is an
to such meetings. It shall be the duty of indication of its bad faith. Where the employer
the parties to participate fully and did not even bother to submit an answer to the
promptly in the conciliation meetings bargaining proposals of the union, there is a
the Board may call; clear evasion of the duty to bargain
v. Voluntary arbitration. The Board shall collectively. It is guilty of ULP. [General Milling
exert all efforts to settle disputes Corp. v. CA, 2004]
amicably and encourage the parties to
submit their case to a voluntary Conciliation / Preventive Mediation Privileged
arbitrator. Communication
vi. Prohibition against disruptive acts. Information and statements made at
During the conciliation proceedings in conciliation proceedings shall be treated as
the Board, the parties are prohibited privileged communication and shall not be
from doing any act which may disrupt used as evidence in the Commission.
or impede the early settlement of the Conciliators and similar officials shall not
disputes. testify in any court or body regarding any
matters taken up at conciliation proceedings
Period to Reply; Bad Faith conducted by them. [Art. 233]
The period to reply is merely procedural, and
non-compliance cannot be automatically Rationale
deemed to be an Unfair Labor Practice i. a person is entitled to buy his or her
(ULP). [National Union of Restaurant Workers peace without danger of being
vs. CIR, 1964] prejudiced in case his or her efforts fail
ii. offers for compromise are irrelevant
The companys refusal to make a counter- because they are not intended as
proposal to the unions proposed CBA is an admissions by the parties making them
indication of its bad faith. Where the employer [Pentagon Steel v. CA, 2009]
did not even bother to submit an answer to the
bargaining proposals of the union, there is a Mandatory Bargainable Issues
clear evasion of the duty to bargain (1) Wages
collectively. The employers actuations show a (2) Hours of work
lack of sincere desire to negotiate, rendering it (3) All other terms and conditions of
guilty of unfair labor practice. [Colegio de San employment including proposals for
Juan de Letran vs. Association, 2000] adjusting any grievances or questions
arising under such agreement [Art.
252]
163
UP LAW BOC LABOR RELATIONS LABOR LAW
164
UP LAW BOC LABOR RELATIONS LABOR LAW
the CBA establish a machinery to settle same force and effect as if the has been
problems arising from "interpretation or selected by the parties as described above.
implementation of their collective bargaining [Art. 266]
agreement and those arising from the
interpretation or enforcement of company Voluntary Arbitration as a Condition Precedent
personnel policies. [Caltex Refinery Employees The stipulation to refer all future disputes to an
Association v. Brillantes, 1997] arbitrator or to submit an ongoing dispute to
one is valid. Being part of a contract between
Voluntary Arbitration the parties, it is binding and enforceable in
Constitutional Basis court in case one of them neglects, fails or
The State shall promote the principle of shared refuses to arbitrate. Going a step further, in the
responsibility between workers and employers event that they declare their intention to refer
and the preferential use of voluntary modes in their differences to arbitration first before
settling disputes, including conciliation, and taking court action, this constitutes a condition
shall enforce their mutual compliance precedent, such that where a suit has been
therewith to foster industrial peace. [CONST. instituted prematurely, the court shall suspend
Art. XIII Section 3] the same and the parties shall be directed
forthwith to proceed to arbitration. A court
Automatic Referral If Grievance Machinery Fails action may likewise be proper where the
All grievances submitted to the grievance arbitrator has not been selected by the parties.
machinery which are not settled within 7 [Chung Fu Industries v. CA, 1992]
calendar days from the date of its submission
shall automatically be referred to voluntary Arbitrable Issues
arbitration prescribed in the CBA. [Art. 266] 1. interpretation or implementation of the
CBA [Art. 261]
2. interpretation or enforcement of
Provision for Voluntary Arbitration in the CBA
company personnel policies [Art. 261]
(1) Parties to a CBA shall: 3. gross violations of CBA provision
a. Name and designate in advance a (flagrant/malicious refusal to comply
Voluntary Arbitrator or panel of with the economic provisions of the
Voluntary Arbitrators, OR CBA [Art. 261]
b. Include in the agreement a procedure 4. all other labor disputes including ULP
for the selection of such Voluntary and bargaining deadlock, if the parties
Arbitrator or panel of Voluntary agree [Art. 262]
Arbitrators preferably from the listing
of qualified Voluntary Arbitrators duly In general, the arbitrator [VA] is expected to
accredited by the Board. decide those questions expressly stated and
2. In case the parties fail to select a Voluntary limited in the submission agreement.
Arbitrator or panel of Voluntary However, since arbitration is the final resort for
Arbitrators, the Board shall designate the the adjudication of disputes, the arbitrator can
Voluntary Arbitrator or panel of Voluntary assume that he has the power to make a final
Arbitrators, as may be necessary, pursuant settlement. The VA has plenary jurisdiction
to the selection Voluntary Arbitrator or and authority to interpret the CBA and to
panel of Arbitrators procedure agreed determine the scope of his or her own
upon in the CBA, which shall act with the authority. Subject to judicial review, this
165
UP LAW BOC LABOR RELATIONS LABOR LAW
leeway of authority and adequate prerogative he and the panel are comprehended within the
is aimed at accomplishing the rationale of the concept of a "quasi-judicial instrumentality." A
law on voluntary arbitration speedy labor fortiori, the decision or award of the voluntary
justice. [Goya, Inc. vs. Goya, Inc. Employees arbitrator or panel of arbitrators should
Union-FFW, 2013] likewise be appealable to the Court of Appeals.
[Luzon Development Bank v. Assoc of Luzon
Powers of the voluntary arbitrators Devt Employees, 1995]
(1) hold hearings Costs
(2) receive evidence The parties to a Collective Bargaining
(3) take whatever action is necessary to Agreement shall provide therein a
resolve the issue or issues subject of proportionate sharing scheme on the cost of
dispute, including efforts to effect a the voluntary arbitration including the
voluntary settlement between parties Voluntary Arbitrators fee. [] [Art. 262-B]
(4) determine attendance of any third
parties Voluntary Arbitrator's Fee
(5) determine exclusion of any witness [] The fixing of the fee of the Voluntary
(6) issue writ of execution for sheriff of Arbitrators, whether shouldered wholly by the
NLRC or regular courts to execute the parties or subsidized by the special voluntary
final decision, order, or award (Art 268- arbitration fund, shall take into account the
A) following factors:
I. nature of the case
Finality of the final decision, Order, or Award II. time consumed in hearing the case
[T]he award or decision of the Voluntary III. professional standing of the voluntary
Arbitrator [] shall be final and executory after arbitrator
10 calendar days from receipt of the copy of the IV. capacity to pay of the parties. [Art.
award or decision by the parties. [] (268-A) 268-B]
166
80
Secretary of Labor and Employment may day period immediately before the date of the
promulgate, to participate in policy and expiry of such five year term of the Collective
decision-making processes of the Bargaining Agreement. [Contract-bar rule]
establishment where they are employed
insofar as said processes will directly affect CBA Effectivity
their rights, benefits and welfare. For this If it is the first ever CBA, the effectivity date is
purpose, workers and employers may form whatever date the parties agree on.
labor-management councils: Provided, That
the representatives of the workers in such If it is renegotiated CBA, the effectivity date
labor-management councils shall be elected depends upon the duration of conclusion.
by at least the majority of all employees in said i. If it is concluded within 6 months from
establishment. [Art. 255] the expiry date, the new CBA will
retroact to the date following the
II. DURATION OF COLLECTIVE expiry date [Illustration: expiry date:
BARGAINING AGREEMENT December 13; effectivity date:
Any Collective Bargaining Agreement that the December 14].
parties may enter into shall, insofar as the ii. If the renegotiated CBA is concluded
representation aspect is concerned, be for a beyond 6 months from the expiry
term of five (5) years. No petition questioning date, the matter of retroaction and
the majority status of the incumbent effectivity is left with the parties.
bargaining agent shall be entertained and no
certification election shall be conducted by the Art. 253-A serves as the guide in determining
Department of Labor and Employment outside when the CBA at bar is to take effect. It
of the sixty-day period immediately before the provides that the representation aspect of the
date of expiry of such five-year term of the CBA is to be for a term of 5 years. All other
Collective Bargaining Agreement. All other provisions of the CBA shall be renegotiated not
provisions of the Collective Bargaining later than 3 years after its execution. Any
Agreement shall be renegotiated not later agreement on such other provision of the CBA
than three (3) years after its execution. Any entered into within 6 months from the date of
agreement on such other provisions of the expiry of the term of such other provisions as
Collective Bargaining Agreement entered into fixed in such Collective Bargaining Agreement
within six (6) months from the date of expiry of shall retroact to the day immediately following
the term of such other. [Art. 259-A] such date. If such agreement is entered into
beyond 6 months, the parties shall agree on
CBA Duration for economic provisions the duration of the effectivity thereof. If no
3 years. agreement is reached within 6 months from
the expiry date of the 3 years that follow the
CBA Duration for non-economic provisions CBA execution, the law expressly gives the
5 years for representational or political issues. parties not anybody else the discretion to
fix the effectivity of the agreement. The law
CBA Duration: Freedom Period does not specifically cover the situation where
No petition questioning the majority status of 6 months have elapsed but no agreement has
the incumbent bargaining agent shall be been reached with respect to effectivity. In this
entertained and no certification election shall eventuality, any provision of law should then
be conducted by the DOLE outside of the sixty- apply. [Manila Electric Co. v. Quisumbing, 1999]
167
UP LAW BOC LABOR RELATIONS LABOR LAW
168
UP LAW BOC LABOR RELATIONS LABOR LAW
Union security is any form of agreement which Due Process in Termination Under Closed Shop
imposes upon employees the obligation to Provision
acquire or retain union membership as a The requirements laid down by the law in
condition affecting employment. [GMC v. Casio, determining whether or not an employee was
2010] validly terminated must still be followed even
if it is based on a closed-shop provision of a
Purpose CBA, i.e. the substantive as well as the
To safeguard and ensure the existence of the procedural due process requirements. [Del
union and thus, promote unionism in general Monte v. Saldivar, 2007]
as a state policy.
Construction
Limitation The closed shop provision is the most prized
Employees who are already members of achievement of unionism. However it can also
another union at the time of the signing of the be a potent weapon wielded by the union
collective bargaining agreement may not be against the workers whom the union is
compelled by any union security clause to join supposed to protect in the first place. Hence,
any union. [Art. 254 (e)] any doubt as to the existence of a closed shop
provision in the CBA will be resolved in favor of
Types the nonexistence of the closed shop provision.
(1) Closed shop
(2) Maintenance of membership shop
Maintenance of Membership Shop
(3) Union shop There is maintenance of membership shop
(4) Modified union shop when employees, who are union members as
(5) Agency shop of the effective date of the agreement, or who
thereafter become members, must maintain
I. UNION SECURITY CLAUSES; CLOSED union membership as a condition for [their]
SHOP, UNION SHOP, MAINTENANCE OF continued employment until they are
MEMBERSHIP SHOP, ETC. promoted or transferred out of the bargaining
Closed Shop unit or the agreement is terminated. [GMC v.
A closed shop, on the other hand, may be Casio, 2010]
defined as an enterprise in which, by
agreement between the employer and his No employee is compelled to join the union,
employees or their representatives, no person but all present or future members of the union
may be employed in any or certain agreed must, as a condition of employment, remain in
departments of the enterprise unless he or she good standing in the union. [Azucena]
is, becomes, and, for the duration of the
169
UP LAW BOC LABOR RELATIONS LABOR LAW
170
UP LAW BOC LABOR RELATIONS LABOR LAW
171
UP LAW BOC LABOR RELATIONS LABOR LAW
I. NATURE OF ULP
a. inimical to the legitimate interests of Statutory Construction
both labor and management, including The Labor Code does not undertake the
their right to bargain collectively and impossible task of specifying in precise and
otherwise deal with each other in an unmistakable language each incident which
atmosphere of freedom and mutual constitutes an unfair labor practice. Rather, it
respect leaves to the court the work of applying the
b. disrupt industrial peace law's general prohibitory language in light of
c. hinder the promotion of healthy and infinite combinations of events which may be
stable labor-management relations charged as violative of its terms. [HSBC
d. violations of the civil rights of both Employee Union V. NLRC, 1997]
labor and management but are also
criminal offenses [Art. 247] II. ULP OF EMPLOYERS
(1) Interference/ Restraint/ Coercion
An act which restrains, coerces, or interferes
Purpose of the Policy Against ULPs
Protection of right to self-organization and/or with employees in the exercise of their right to
collective bargaining: self-organization is an Unfair Labor Practice.
a) The employee is not only protected
from the employer but also from labor Interrogation
organizations. General rule: employer may interrogate its
b) Employer is also protected from ULP employees regarding their union affiliation for
committed by a labor organization. legitimate purposes and with the assurance
The public is also protected because it has an that no reprisals would be taken against the
interest in continuing industrial peace. unionists.
Parties Not Estopped from Raising ULP by An employer may not send letters containing
Eventual Signing of the CBA promises or benefits, nor of threats of
The eventual signing of the CBA does not obtaining replacements to individual workers
operate to estop the parties from raising unfair while the employees are on strike due to a
labor practice charges against each other. bargaining deadlock. This is tantamount to
[Standard Chartered Bank Union v. Confesor, interference and is not protected by the
2004] Constitution as free speech. [Insular Life
172
UP LAW BOC LABOR RELATIONS LABOR LAW
Examples:
Exception [union security clause]:
1. a representation by the employee that
Nothing in this Code or in any other law shall
he is not a member of a labor
stop the parties from requiring membership in
organization
a recognized collective bargaining agent as a
2. a promise by the employee that he will
condition for employment. [Art. 254 (e)]
not join a union
3. a promise by the employee that upon
Exception to exception:
joining a labor organization, he will quit Those employees who are already members of
his employment another union at the time of the signing of the
collective bargaining agreement. [Art. 254(e)]
3) Contracting Out
General rule: contracting out is not a ULP
6) Testimony
Exception: It is an act of ULP by an employer to dismiss,
a. contracted-out services or functions discharge or otherwise prejudice or
are performed by union members AND discriminate against an employee for having
b. contracting out will interfere with, given or being about to give testimony under
restrain, or coerce employees in the this Code. [Art. 254 (f)]
exercise of their right to self-
organization. [Art. 248 (c)] 7) Violate duty to bargain collectively
Duty to bargain collectively is a continuous
process, non-compliance constitutes ULP.
Collective bargaining does not end with the
execution of an agreement, being a continuous
173
UP LAW BOC LABOR RELATIONS LABOR LAW
Note: The list in Art. 254 is not exhaustive. 6) Violate a collective bargaining agreement
Other acts which are analogous to those Flagrant and/or malicious refusal required
enumerated can be ULPs. Violations of collective bargaining agreements,
except flagrant and/or malicious refusal to
The alleged violation of the CBA, even comply with its economic provisions, shall not
assuming it was malicious and flagrant, is not be considered unfair labor practice and shall
a violation of an economic provision, thus not not be strikeable. [IRR]
an Unfair Labor Practice. [BPI Employees
Union-Davao FUBU v. BPI, 2013]
174
UP LAW BOC LABOR RELATIONS LABOR LAW
175
UP LAW BOC LABOR RELATIONS LABOR LAW
176
UP LAW BOC LABOR RELATIONS LABOR LAW
the strike changed its character from the time C.2 WHO MAY DECLARE A STRIKE OR
the Company refused to reinstate LOCKOUT?
complainants because of their union activities Who may declare a strike
after it had offered to admit all the strikers and 1. The certified or duly recognized
in fact did readmit the others. It was then bargaining representative
converted into an unfair labor practice strike. 2. Any legitimate labor organization in
[Consolidated Labor Assoc. of the Phil. v. the absence of #1, but only on grounds
Marsman and Company, 1964] of ULP [Book V, Rule XXII, 6]
Procedural requirements
1) Effort to bargain
2) Filing and service of notice of strike
3) Observance of cooling-off period
4) Strike vote
5) Strike vote report
6) Observance of the waiting period
177
UP LAW BOC LABOR RELATIONS LABOR LAW
178
UP LAW BOC LABOR RELATIONS LABOR LAW
(4) Strike Vote take a strike vote and report the same within
Requirements for a declaration of a strike in a the statutory cooling-off period. The cooling-
strike vote off and 7-day strike ban provisions of law
1. approval by a majority of the total constitute a valid exercise of police power of
union membership in the bargaining the State. [National Federation of Sugar
nit concerned Workers v. Ovejera, 1982]
2. approval is obtained by secret ballot in
a meeting/referendum called for the Strike-vote Reported within the Cooling-off
purpose Period
When the strike-vote is reported within the
Duration of the Validity of the Strike-Vote cooling-off period, the phrase at least 7 days
[T]he decision shall be valid for the duration of before the intended strike or lockout, subject to
the dispute based on substantially the same the cooling-off period herein provided. in
grounds considered when the strike or lockout Article 269 (f) admits two interpretations:
vote was taken. [][Art. 269 (f)] (1) Mutually exclusive periods (used in the
NCMB Manual). The cooling off period and
the 7-day period are mutually exclusive.
Department of Labor and Employment
intervention Thus, in the case of Capitol Medical Center
[T]he Department may, at its own initiative or v. NLRC, the Court held that when the
upon the request of any affected party, strike vote is conducted within the cooling-
supervise the conduct of the secret balloting. off period, the 7-day requirement shall be
[][Art. 269 (f)] counted from the day following the
expiration of the cooling off period.
(5) Strike Vote Report (2) Coexistent periods. The cooling-off period
[I]n every case, the union or the employer shall and the 7-day requirement may coexist.
furnish the Department the results of the After all, the purpose of the 7-day
voting at least 7 days before the intended requirement is to give time for the DOLE to
strike 1 or lockout, subject to the cooling-off verify if the projected strike is supported by
period herein provided.[Art. 269 (f)] the majority. There is no reason to add it to
the cooling-off period.
179
UP LAW BOC LABOR RELATIONS LABOR LAW
180
UP LAW BOC LABOR RELATIONS LABOR LAW
181
UP LAW BOC LABOR RELATIONS LABOR LAW
182
UP LAW BOC LABOR RELATIONS LABOR LAW
183
UP LAW BOC LABOR RELATIONS LABOR LAW
184
UP LAW BOC LABOR RELATIONS LABOR LAW
A legal strike may turn into an illegal strike If there be in this case a weighing of interests
Even if the strike is valid because its objective in the balance, the ban the law imposes on
or purpose is lawful, the strike may still be unfair labor practices by management that
declared invalid where the means employed could provoke a strike and its requirement that
are illegal. [Phil. Diamond Hotel and Resort, it be conducted peaceably, it would be, to
Inc. v. Manila Diamond Hotel Employees Union, repeat, unjustified, considering all the facts
2006] disclosed, to stamp the strike with illegality. It
is enough that individual liability be incurred
Examples of unlawful means and methods by those guilty of such acts of violence that call
(1) Acts of violence and terrorism for loss of employee status. Such an approach
(2) Destruction of property is reflected in our recent decisions. [Shell Oil
Workers Union v. Shell Co. of the Phils, 1971]
Guidelines and Balancing of Interest
(1) A strike otherwise valid, if violent in (5) Violation of injunction order
character, may be placed beyond the An automatic injunction under Article 263 (g)
pale. or a valid injunction order under the exceptions
(2) Care is to be taken especially where an to Article 254 must be complied with.
unfair labor practice is involved, to Otherwise, the strike becomes illegal.
avoid stamping it with illegality just
because it is tainted by such acts. To
(6) No strike/lockout provisions in the CBA
avoid rendering illusory the recognition A no strike, no lock-out is a valid provision in
of the right to strike, responsibility in the CBA. However, it only applies to economic
such a case should be individual and provisions. It cannot prevent a strike which is
not collective. grounded on unfair labor practice. [Malayang
(3) A different conclusion would be called Samahan ng mga Manggagawa sa Greenfield v.
for if the existence of force while the Ramos, 2000]
strike lasts is pervasive and
widespread, consistently and
I. LIABILITY OF UNION OFFICERS
deliberately resorted to as a matter of
Any union officer who knowingly participates in
policy. It could be reasonably
an illegal strike and any worker or union officer
concluded then that even if justified as
who knowingly participates in the commission
to ends, it becomes illegal because of
of illegal acts during a strike may be declared
the means employed'.
to have lost his employment status.
(4) This is not by any means to condone
the utilization of force by labor to
attain its objectives. It is only to show Note: Mere participation in an illegal strike by a
awareness that in labor conflicts, the union officer is sufficient ground to terminate
tension that fills the air as well as the his employment. In case of a lawful strike, the
feeling of frustration and bitterness union officer must commit illegal acts during a
could break out in sporadic acts of strike for him to be terminated.
violence.
185
UP LAW BOC LABOR RELATIONS LABOR LAW
II. LIABILITY OF ORDINARY WORKERS Truly, it is more logical and reasonable for
General rule: Participation by a worker in a condonation to apply only to strikers who
lawful strike is not ground for termination of signified their intention to return and did
his employment. return to work. The reason is obvious. These
strikers took the initiative in normalizing
Exception: When the worker participated in relations with their employer and thus helped
illegal acts during the strike. promote industrial peace. However, as regards
the strikers who decided to pursue with the
case, [] the employer could not be deemed to
When the strike is or becomes illegal, the
have condoned their strike, because they had
workers who participate in it are not deemed to
not shown any willingness to normalize
have lost their employment status by express
relations with it. [Philippine Inter-Fashion, Inc.
omission in the second sentence of the third
v. NLRC, 1982]
paragraph of Art. 264. Only the union officers
are deemed to have lost their employment
status. However, the mere act of entering into a
compromise agreement cannot be deemed to
be a waiver of the illegality of the strike, unless
III. LIABILITY OF EMPLOYER
it such a waiver is clearly shown in the
Any worker whose employment has been
agreement. The court has emphasized that
terminated as a consequence of any unlawful
[for] a waiver to be valid and effective [it] must
lockout shall be entitled to reinstatement with
be couched in clear and unequivocal terms
full backwages.
which leave no doubt as to the intention of a
party to give up a right or benefit which legally
IV. WAIVER OF ILLEGALITY OF STRIKE pertains to him. [Filcon Manufacturing Corp v.
When defense of illegality of strike is deemed Lakas Manggagawa sa Filcon Lakas
waived Manggagawa Labor Center]
An employer can be deemed to have waived
the defense that a strike is illegal. In one case,
the Court held that: C.10 INJUNCTIONS
No temporary or permanent injunction or
Admitting for the sake of argument that the restraining order in any case involving or
strike was illegal for being premature, this growing out of labor disputes shall be issued
defense was waived by the [Company], when it by any court or other entity, except as
voluntarily agreed to reinstate the radio otherwise provided in Articles 218 and 264 of
operators. [Bisaya Land Transportation Co., this Code. [Art. 260]
Inc. v. CIR, 1957]
General Rule: Injunctions are prohibited.
When defense of illegality of strike is not
deemed waived Exceptions: Those provided under Art. 224
The ruling cited in the Bisaya case that the (referring to the Powers of the NLRC) in
employer waives his defense of illegality of the connection with Art.270 (on Prohibited
strike upon reinstatement of strikers is Activities) under the Labor Code.
applicable only to strikers who signified their
intention to return to work and were accepted
back. []
186
UP LAW BOC LABOR RELATIONS LABOR LAW
I. REQUISITES FOR LABOR INJUNCTIONS shall not constitute sufficient ground for
termination of his employment, even if a
Requisites for injunction to issue (in accordance replacement had been hired by the
with the Powers of the NLRC) employer during such lawful strike.
i. actual or threatened commission of a
prohibited or unlawful act OR (b) No person shall obstruct, impede, or
requirement of performance of a interfere with, by force, violence, coercion,
particular act in a labor dispute threats or intimidation, any peaceful
ii. if unrestrained or unperformed, the act picketing by employees during any labor
will cause grave or irreparable damage controversy or in the exercise of the right to
to any party OR render ineffectual any self-organization or collective bargaining,
decision in favor of such party [Art. 224 or shall aid or abet such obstruction or
(e)] interference.
187
UP LAW BOC LABOR RELATIONS LABOR LAW
Rationale
The right [to picket] may be regulated at the
instance of [] `innocent bystanders' if it
appears that the inevitable result of its exercise
is [1] to create an impression that a labor
dispute with which they have no connection or
interest exists between them and the picketing
union or [2] constitute an invasion of their
rights. [Liwayway Publishing v. Permanent
Concrete Worker's Union, 1981]
188
UP LAW BOC LABOR RELATIONS LABOR LAW
189
UP LAW BOC LABOR RELATIONS LABOR LAW
190
UP LAW BOC LABOR RELATIONS LABOR LAW
191
UP LAW BOC LABOR RELATIONS LABOR LAW
where the appeal was filed, his answer or earliest time possible and with the end in view
reply to appellants memorandum of that its action would not only serve the
appeal, not later than 10 calendar days interests of the parties alone, but would also
from receipt thereof. Failure on the part of have favorable implications to the community
the appellee who was properly furnished and to the economy as a whole. This is the
with a copy of the appeal to file his answer clear intention of the legislative body in
or reply within the said period may be enacting Art. 263 paragraph (g) of the Labor
construed as a waiver on his part to file the Code, as amended by Section 27 of R.A. 6175
same. [Union of Filipino Employees v. NLRC, 1990]
(4) Subject to the provisions of Article 218 of
the Labor Code, once the appeal is Effects of Certification
perfected in accordance with these Rules, 1. Upon certification, the intended or
the Commission shall limit itself to impending strike or lockout is
reviewing and deciding only the specific automatically enjoined, notwithstanding
issues that were elevated on appeal. the filing of any motion for reconsideration
of the certification order nor the non-
B.4 CERTIFIED CASES resolution of any such motion which may
Definition have been duly submitted to the Office of
Certified labor disputes are cases certified to the Secretary of Labor and Employment.
the Commission for compulsory arbitration 2. If a work stoppage has already taken place
under Art. 263 (g) of the Labor Code. [2, The at the time of the certification, all striking
2011 NLRC Rules and Procedures] or locked out employees shall immediately
return to work and the employer shall
immediately resume operations and
When, in his opinion, there exists a labor
readmit all workers under the same terms
dispute causing or likely to cause a strike or
and conditions prevailing before the strike
lockout in an industry indispensable to the
or lockout.
national interest, the Secretary of Labor and
Employment may assume jurisdiction over the 3. All cases between the same parties, except
dispute and decide it or certify the same to the where the certification order specifies
Commission for compulsory arbitration. Such otherwise the issues submitted for
assumption or certification shall have the arbitration which are already filed or may
effect of automatically enjoining the intended be filed, and are relevant to or are proper
or impending strike or lockout as specified in incidents of the certified case, shall be
the assumption or certification order. [Art. 263] considered subsumed or absorbed by the
certified case, and shall be decided by the
appropriate Division of the Commission.
Function of the NLRC 4. The parties to a certified case, under pain
When sitting in a compulsory arbitration
of contempt, shall inform their counsels
certified to by the Secretary of Labor, the NLRC
and the Division concerned of all cases
is not sitting as a judicial court but as an
pending with the Regional Arbitration
administrative body charged with the duty to
Branches and the Voluntary Arbitrators
implement the order of the Secretary. Its
relative or incident to the certified case
function only is to formulate the terms and
before it.
conditions of the CBA and cannot go beyond
5. When a certified labor dispute involves a
the scope of the order. Moreover, the
business entity with several workplaces
Commission is further tasked to act within the
192
UP LAW BOC LABOR RELATIONS LABOR LAW
located in different regions, the Division which shall include the position papers of
having territorial jurisdiction over the the parties and the order of the SOLE
principal office of the company shall denying the motion for reconsideration of
acquire jurisdiction to decide such labor the certification order, if any.
dispute; unless the certification order b. Where a clarificatory hearing is needed, the
provides otherwise. [Section 3, 2011 NLRC Commission shall, within 5 calendar days
Rules and Procedures] from receipt of the records, issue a notice
to be served on the parties through the
Effects of Defiance fastest means available, requiring them to
Non-compliance with the certification order of appear and submit additional evidence, if
the SOLE shall be considered as an illegal act any. All certified cases shall be resolved by
committed in the course of the strike or lockout the Commission within 60 calendar days
and shall authorize the Commission to enforce from receipt of the complete records by the
the same under pain of immediate disciplinary assigned Commissioner.
action, including dismissal or loss of c. No motion for extension or postponement
employment status or payment by the locking- shall be entertained. [Sec. 5, 2011 NLRC
out employer of backwages, damages and/or Rules and Procedures]
other affirmative relief, even criminal
prosecution against the liable parties. Execution of J udgment
Upon issuance of the entry of judgment, the
The Commission may also seek the assistance Commission motu propio or upon motion by
of law enforcement agencies to ensure the proper party, may cause the execution of
compliance and enforcement of its orders and the judgment in the certified case. [Sec. 6, 2011
resolutions. [Sec. 4, 2011 NLRC Rules and NLRC Rules and Procedures]
Procedures]
C. BUREAU OF LABOR RELATIONS
Strict Compliance of Assumption and MED-ARBITERS
Certification Orders
The Secretary's assumption and certification
C.1 JURISDICTION (ORIGINAL AND
orders being executory in character are to be
APPELLATE)
strictly complied with by the parties even
during the pendency of a petition questioning The Bureau of Labor Relations and the Labor
their validity for this extraordinary authority Relations Divisions in the regional offices of
given by law to the Secretary of Labor is the Department of Labor and Employment
"aimed at arriving at a peaceful and speedy shall have original and exclusive authority to
solution to labor disputes, without jeopardizing act, at their own initiative or upon request of
national interests." [Union of Filipro Employees either or both parties, on all inter-union and
v. NLRC, 1990] intra-union conflicts, and all disputes,
grievances or problems arising from or
affecting labor-management relations in all
Procedure in certified cases
a. When there is no need to conduct a workplaces whether agricultural or non-
clarificatory hearing, the Commission shall agricultural, except those arising from the
resolve all certified cases within 30 implementation or interpretation of collective
calendar days from receipt by the assigned bargaining agreements which shall be the
Commissioner of the complete records,
193
UP LAW BOC LABOR RELATIONS LABOR LAW
194
UP LAW BOC LABOR RELATIONS LABOR LAW
Provided, further, That the aggregate money may be necessary to determine violations or
claims of each employee or househelper do not which may aid in the enforcement of this Code
exceed five thousand pesos (P5,000). and of any labor law, wage order or rules and
regulations issued pursuant thereto.
The Regional Director or hearing officer shall
decide or resolve the complaint within thirty Notwithstanding the provisions of Articles 129
(30) calendar days from the date of the filing of and 217 of this Code to the contrary, and in
the same. cases where the relationship of employer-
employee still exists, the Secretary of Labor
Any sum thus recovered on behalf of any and Employment or his duly authorized
employee or househelper pursuant to this representatives shall have the power to issue
Article shall be held in a special deposit compliance orders to give effect to the labor
account by, and shall be paid, on order of the standards provisions of this Code and other
Secretary of Labor and Employment or the labor legislation based on the findings of labor
Regional Director directly to the employee or employment and enforcement officers or
househelper concerned. industrial safety engineers made in the course
of inspection. The Secretary or his duly
Any such sum not paid to the employee or authorized representatives shall issue writs of
househelper, because he cannot be located execution to the appropriate authority for the
after diligent and reasonable effort to locate enforcement of their orders, except in cases
him within a period of three (3) years, shall be where the employer contests the findings of
held as a special fund of the Department of the labor employment and enforcement officer
Labor and Employment to be used exclusively and raises issues supported by documentary
for the amelioration and benefit of workers. proofs which were not considered in the course
** * of inspection. [Art. 128]
The Secretary of Labor and Employment or his
duly authorized representative may supervise The Secretary of Labor or his duly authorized
the payment of unpaid wages and other representatives may, at any time, inspect the
monetary claims and benefits, including legal premises, books of accounts and records of any
interest, found owing to any employee or person or entity covered by this Title, require it
househelper under this Code. [Art. 129] to submit reports regularly on prescribed
forms, and act on violation of any provisions of
F. DOLE SECRETARY this Title. [Art. 37]
F.1 VISITORIAL AND ENFORCEMENT The Secretary of Labor and Employment or his
POWERS duly authorized representative is hereby
The Secretary of Labor and Employment or his empowered to inquire into the financial
duly authorized representatives, including activities of legitimate labor organizations
labor regulation officers, shall have access to upon the filing of a complaint under oath and
employers records and premises at any time of duly supported by the written consent of at
the day or night whenever work is being least twenty percent (20%) of the total
undertaken therein, and the right to copy membership of the labor organization
therefrom, to question any employee and concerned and to examine their books of
investigate any fact, condition or matter which accounts and other records to determine
195
UP LAW BOC LABOR RELATIONS LABOR LAW
196
UP LAW BOC LABOR RELATIONS LABOR LAW
II. PROCEDURE
Note: Gross violations of CBA shall mean [IRR, Book V, Rule XI]
flagrant and/or malicious refusal to comply Hearing
with the economic provisions of such All parties to the dispute shall be entitled to
agreement. attend the arbitration proceedings. The
attendance of any third party or the exclusion
of any witness from the proceedings shall be
The Commission, its Regional Offices and the
determined by the VA or panel of Vas. Hearing
Regional Directors of the DOLE shall not
may be adjourned for cause or upon
entertain disputes, grievances or matters
agreement by the parties.
under the exclusive and original jurisdiction of
the Voluntary Arbitrator or panel of Voluntary
Arbitrators and shall immediately dispose and Days to render an award/decision
Unless the parties agree otherwise, it shall be
refer the same to the grievance machinery or
mandatory for the VA or panel of Vas to render
Voluntary Arbitration provided in the Collective
an award or decision within 20 calendar days
Bargaining Agreement. [Art. 261]
from the date of submission of the dispute to
voluntary arbitration.
Other Labor Disputes
The VA or panel of VAs, upon agreement of the
parties, shall also hear and decide all other
labor disputes including ULP and bargaining Form of award/decision
The award or decision of the VA or panel of
deadlocks. [Art. 268]
VAs must state in clear, concise and definite
terms the facts, the law and/contract upon
Even if the specific issue brought before the which it is based.
arbitrators merely mentioned the question of
whether an employee was discharged for just
Finality
cause, they could reasonably assume that It shall be final and executory after 10 calendar
their powers extended beyond the days from the receipt of the copy of the award
determination thereof to include the power to or decision by the parties.
reinstate the employee or to grant back wages.
In the same vein, if the specific issue brought
Execution of award/decision
before the arbitrators referred to the date of
Upon motion of any interested party, the
regularization of the employee, law and
Voluntary Arbitrator or panel of Voluntary
jurisprudence gave them enough leeway as
Arbitrators or the Labor Arbiter in the region
well as adequate prerogative to determine the
where the movant resides, in case of the
entitlement of the employees to higher
absence or incapacity of the Voluntary
benefits in accordance with the finding of
Arbitrator or panel of Voluntary Arbitrators, for
regularization. [Manila Pavilion Hotel, etc. vs.
any reason, may issue a writ of execution
Henry Delada, 2011]
requiring either the sheriff of the Commission
or regular courts or any public official whom
the parties may designate in the submission
agreement to execute the final decision, order
or award. [Art. 262-A]
197
UP LAW BOC LABOR RELATIONS LABOR LAW
198
UP LAW BOC LABOR RELATIONS LABOR LAW
199
UP LAW BOC LABOR RELATIONS LABOR LAW
200
UP LAW BOC LABOR RELATIONS LABOR LAW
SUPREME COURT
COURT OF APPEALS
Note:
The BLR has jurisdiction over cases involving Federations and National Unions
201involving independently registered unions and chartered
The LRD has jurisdiction over cases
locals.