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MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
LABOR STANDARDS
Exempt:
Government ees
Managerial ees*
Members of the family of the employer dependent on him for support
Domestic Servants
Field personnel if regularly perform duties away from office**
* Managerial employees those whose primary duty is management; customarily and regularly
directing work of two or more ees, with authority to hire; suggestions given particular weight;
includes other officers or members of the managerial staff.
** Field Personnel - non agricultural employees who regularly perform their duties away from
the office and whose actual hours of work cannot be estimated with certainty; this includes in
its scope unsupervised employees (Mercidar Fishing Corporation v. NLRC 297 SCRA 440
(1998)
NOTE:
Those paid by results, piece-work, pakyaw or task basis no longer under the same category
as those above (Labor Congress v. NLRC, 290 SCRA 509)
*Follows output rate prescribed by DOLE or standard used conforms with Dole output rate.
OVERTIME
Premium rate for Overtime:
Normal 25% ON TOP OF HOURLY RATE
Holiday/Rest Day 30%
Special Day 30%
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
MEAL TIME
60 minutes and above: not counted as working time
Less than 60 minutes: counted as working time
* minimum 20 minutes
HOLIDAY PAY
Unworked 100%
Worked 200%
- if also Rest day 260%
NOTE: To avail of Holiday pay, ee should not have been absent without pay on the working
day preceding the holiday
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Government employees
Already enjoying benefit
Domestic Helpers and those in the personal service of another
Already with vacation leave with pay of at least 5 days
Managerial Employees
Field Employees including those in Contract basis
Employed in establishments regularly employing less than 10 employees
WAGE DISTORTIONS
- an increase in prescribed wage rates resulting in the elimination or severe contraction
of intentional quantitative differences in wage or salary rates between and among
employee groups in an establishment as to effectively obliterate the distinctions
embodied in such wage structure based on skills, length of service, or other logical
bases of differentiations
Minimum Amount : Not less than 1/12 of total basic salary earned within a calendar year
BASIC SALARY:
- for purposes of 13th mo. pay shall include all remunerations or earnings paid by his
employer for services rendered
- but does NOT INCLUDE: allowances and monetary benefits which are not considered or
integrated as part of the regular or basic salary such as vacation and sick leave credits,
overtime, premium night differential, holiday pay and COLA UNLESS by individual or
collective agreement or company practice or policy, they are treated as basic salary.
VACATION/SICK LEAVE - not required by law, but must be observed when stipulated in a CBA
Exceptions :
1. Given for a long period of time
2. Consistent & deliberate - Employer continued giving benefit
3. Employer knew he was not required to give benefit
4. Employer realizes profits depends if nature of benefit is dependent on profit
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
NOTE:
Regional Director cannot enforce results of Visitorial Power when:
1. Employer contests the findings
2. Issues raised requires examination of evidentiary matters
3. Such matters are not verifiable in the normal course of inspection
EMPLOYMENT OF WOMEN
Nightwork Prohibition
EXCEPTIONS:
Actual or impending emergencies to prevent loss of life/property or force majeure or
imminent danger to public safety
Urgent work to be performed to avoid serious loss to employer
Necessary to prevent serious loss of perishable goods
Holds a responsible position of managerial or technical nature or engaged to provide
health or welfare service
Nature of work requires the manual skill and dexterity of women workers and the same
cannot be performed with equal efficiency by male workers
Immediate members of the family operating the establishment or undertaking
Other analogous cases
NOTE: Paternity Leave RA 8187 male employee entitled to paternity leave of 7 days with full
pay for the first 4 deliveries of the legitimate spouse with whom he is cohabiting
Discrimination Prohibited
ACTS OF DISCRIMINATION:
Payment of lesser compensation for work of equal value
Favoring over promotion, training opportunities, study and scholarship grants solely on
account of their sexes
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
NOTE:
- Institution of any criminal action under this shall not bar the aggrieved employee from filing
an entirely separate and distinct action for money claims, which may include claims for
damages and other affirmative relief
- Actions authorized shall proceed independently of each other
Prohibited Acts
Deny benefits or discharge any woman employed to avoid giving benefits
Discharge such a woman on account of her pregnancy or while on leave or in confinement
due to her pregnancy
Discharge or refuse the admission of such woman upon returning to her work for fear she
may again be pregnant
Hazardous or Deleterious:
a. exposes workers to dangerous environmental elements, contaminations, or work
conditions including ionizing radiations, chemicals, fire, flammable substances,
noxious components and the like
b. engaged in construction work, logging, fire-fighting, mining, quarrying, blasting,
stevedoring, dock work, deep-sea fishing and mechanized farming
c. engaged in the manufacture or handling of explosives and other pyrotechnic products
d. exposed to or use of heavy or power-driven machinery or equipment
e. use or are exposed to power-driven tools
EMPLOYMENT OF HOUSEHELPERS
engaged in the employer's home, whose services are usually or desirable for the maintenance
and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the
employer's family
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
NOTE: Domestic helper is not one who works for a staff house / rest house; the criteria is that
the helper administers to the comfort of the family of the employer in the home of said
employer. [Apex Mining Company,Inc. v. NLRC 196 SCRA 251 (1991)]
EMPLOYMENT OF HOMEWORKERS
D.O. 5 (1992)
- applies to any person who performs industrial homework for an employer, contractor or
sub-contractor.
Industrial Homeworker
- system of production under which work for an employer or contractor is carried out by a
homeworker at his / her home. Materials may or may not be furnished by the employer or
contractor.
Employer of a Homeworker:
- any person who delivers or causes to be delivered any goods, articles or materials to be
processed or fabricated in or about a home and thereafter to be returned or to be disposed
of or distributed in accordance with his direction; or
- sells goods, articles for the purpose of having such goods or articles processed in or about
a home an d them repurchases them himself or through another after such processing.
1. When Employable
a. necessary to prevent curtailment of employment opportunities AND
b. does not create unfair competition in labor costs or impair working
standards
2. Employment Agreement shall state/include:
c. Names and addresses of the handicapped workers to be employed
d. Rate to be paid not less than 75% of applicable legal minimum wage
e. Duration of employment period
f. Work to be performed by handicapped
- the agreement is always subject to inspection by SOLE or duly authorized
representative
Learners Apprentices
- persons hired as trainees in - practical training on the job
semi-skilled and other supplemented by related
industrial occupations which theoretical instruction; covered by
are non-apprenticeable and a written apprenticeship
which may be learned through agreement with an individual
practical training on the job in employer or of the entities
a relatively short period of recognized in the labor code.
time which shall not exceed 3
months
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
LABOR RELATIONS
SPECIAL RULES:
A. Managerial and Supervisory Employees
Managerial Employee one who is vested with powers or prerogatives to lay down and
execute management policies and/or hire, transfer, suspend, lay-off, recall, discharge,
assign or discipline employees.
Supervisory Employee one who, in the interest of the employer, effectively recommends
such managerial actions if the exercise of such authority is not merely routinary or clerical
in nature but requires the use of independent judgment.
NOTE:
Atlas and Toyota Shaw Cases: supervisors union was not allowed to affiliate itself with the
national federation of rank and file employees, since the SC ruled that such would circumvent
Art. 245. This is true if the supervisors concerned are directly supervising the work of the rank
and file employees and the federation is actively involved in collective bargaining in the
establishment.
B. Confidential Employees
Confidential employees are those who (1) assist or act in a confidential capacity, in regard (2)
to persons who formulate, determine, and effectuate management policies, specifically in the
field of labor relations. The two criteria are cumulative, and both must be met if an employee is
to be considered a confidential employee-that is, the confidential relationship must exist
between the employee and his superior officer; and that officer must handle the prescribed
responsibilities relating to labor relations. [Sugbuanon v. Laguesma, February 2, 2000]
- Confidential employees cannot form, join, or assist unions only if they assist in a
confidential capacity to or have necessary access to confidential matters of,
persons who exercise managerial functions in the field of labor relations.
C. Security Guards
- they are free to join any union as rank and file or supervisors, depending on their
rank.
D. Cooperatives
- collective bargaining is not available to a member of a cooperative who is an
employee and at the same time a member and co-owner thereof. The rationale for
this is that one cannot bargain with himself. Only employees who are not members
or co-owners of the cooperative have the right to self-organization, collective
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
bargaining, and negotiation. It is the fact of ownership / membership, not the level
of involvement (or lack thereof) in actual management that disqualifies a member.
E. Government Employees
- E.O. 180: government employees have the right to organize and bargain
collectively
- However, they cannot bargain for higher wages, as such are fixed by law and
Congressional appropriation.
EO 180:
- Applies to all employees of all branches, subdivisions, instrumentalities and
agencies of the government including employees of GOCCs with original charters
- Can form, join or assist employees organization for furtherance and protection of
interest
NOT Covered:
High-level employees
AFP
Police Officers
Policemen
Firemen
Jailguards
F. International Organizations
- International organizations are immune from legal process thus the DOLE has no
jurisdiction over them; however they have the right to organize for the purpose of
maintaining mutual and beneficial cooperation between management and
employees. [International Catholic Migration v. Ferrer-Calleja, 190 SCRA 130
(1990)]
NOTE: Any employee, whether employed for a definite period or not, shall, beginning on his
first day of service, be considered an employee for purposes of membership in any labor union
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
CHARTERING
- Issuance by Federation of charter certificate to a local/chapter
- copy of which shall be submitted to BLR within 30 days from issuance
- in addition submit CBL and set of officers
- books of accounts are no longer required
Local/Chapter becomes an LLO only upon submission of the ff. to the BLR / Regional Office:
a. a charter certificate (Within 30 days from issuance)
b. CBL and statement of officers
- books of account are no longer required
NOTE:
An independently registered labor organization, on the other hand, becomes an LLO only upon
the issuance of the certificate of registration.
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
NOTE:
From what fund union can check off its attorneys fees: The union should be made to shoulder
the expenses incurred for the services of its lawyers and accordingly, reimbursement should
be charged to the unions general fund or account. No deduction can be made from the
salaries of the concerned employees other than those mandated by law.
D. RIGHT TO BE INFORMED
1. Full and detailed report of all financial transactions
2. All income and revenue evidenced by a record and every expenditure evidenced by a
receipt
3. Treasurer and Officers render a true and correct account of all moneys received and
paid : Since assuming office
Since last accounting
At least once a year w/ in 30 days from close of fiscal year
Other times as required by written resolution of majority
4. Books of account and financial records open to inspection by officer/member during
office hours
5. Duty of labor organization to inform members of contents of CBL, CBA and their rights
and obligations under existing labor laws
INTRA-UNION DISPUTES
General Rule :Relief must first be sought within the union itself in accordance with its
CBL which must be alleged in the petition
Exceptions :
Futility of intra-union remedies
Improper expulsion procedures
Undue delay as to constitute substantial injustice
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
*Requirement for a complaint for Violation of by-laws and rights and conditions of
membership:
Minimum of 30% of the members of the Labor Organization
Except : when such violation directly affects only 1 or 2 members,
then such number would be enough to report the violation and seek redress
with the CIR
VISITORIAL POWER
Who : Sec of DOLE or duly authorized representative
Re : Inquire into Financial Activities of LLO
Cause : Complaint under oath supported by the written consent at least 20%of
LLO's total membership
Prohibited : 1. 60 day freedom period
2. within 30 days immediately preceding election of union officers
DISAFFILIATION, requisites
General Rule : Only during the 60 day freedom period & effected by a
majority of the members of the bargaining unit
Exception : Outside the freedom period but must still be supported by a majority
of the members of the disaffiliating union who must remain bound by the CBA until
the CBA's expiration date.
Substitutionary Doctrine
- employees cannot revoke the validity of a validly executed CBA with their employer by the
simple expedient of changing their collective bargaining agent
- the new agent must respect the subsisting CBA
- employer cannot renege on the CBA, except to negotiate with the management for the
shortening thereof
- Inapplicable to personal undertaking of deposed union; e.g. : no strike stipulation
CLOSED SHOP - only union members can be hired and workers must remain union
Workers/members to retain employment
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
MODIFIED UNION SHOP - employees who are not union members at the time of
the signing of the contract need not join the union, but all workers hired thereafter
should join
AGENCY SHOP - an agreement whereby employees must either join the union or
pay to the union as the exclusive bargaining agent a sum equal to that paid by the
members. This is directed against the "free rider" employees who benefit from union
activities without contributing to union support o prevent a situation of non-union
members enriching themselves at the expense of union members.
GR:: All employees in the bargaining unit covered by the union security clause are subject to
its terms
Exceptions:
Any employee who at the time the agreement takes effect is a bona fide member of a
religious organization which prohibits its members from joining labor unions on religious
grounds
Employees already in the service and already members of a labor union or unions other than
the majority union at the time the agreement took effect
Supervisors ineligible under the Act to join the majority union because of the membership
therein of employees under their supervision
Employees excluded from the agreement by express terms
2 Elements :
1. Employer-employee relationship between the offender and offended
2. Act done is expressly defined in the Labor Code as ULP
REMEDIES:
1. Civil Aspects
- Labor Arbiter who shall resolve within 30 calendar days from submission for decision
- recovery of civil liability in the administrative proceedings shall bar recovery under the
Civil Code
- substantial evidence enough
2. Criminal Aspects
- Must be proved independently from labor case
- Prosecution not possible until after finality of judgment in the labor case
- Admin/civil judgment not evidence of ULP insofar as the criminal case is concerned
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
ULP OF EMPLOYERS
1. Restraint, interference or coercion in their exercise of the right to self-organization;
- tendency to interfere is enough; actual interference need not be proved. [Insular
Life case]
- no excuse that conduct was unintentional and innocent; however good faith can be
a defense by the employer
- Totality of Conduct Doctrine : culpability of employer's remarks were to be evaluated no
only on the basis of their implicit implications, but were to be appraised against the
background of and in conjunction with collateral circumstances (history of employer's
labor relations + anti-union bias)
- Doctrine of Successor-Employer : new company will be treated as a continuation or
successor of the one that closed in the new or take-over company is engaging in the
same business as the closed company or department, or is owned by the same people,
and the "closure" is calculated to defeat the worker's organizational right in which case
the closure may be declared a subterfuge
2. Yellow Dog Contract - contract whereby an employee agrees that during the period of his
employment he will not become a member of a labor union
*Runaway Shop : industrial plant moved by its owners from one location to another
to escape union labor regulations or state laws;
a plant removed to a new location in order to discriminate
against employees at the old plant because of their union
activities
5. Indirect discrimination against someone who has filed charges or for having given or about
to give testimony against the employer under the Labor Code
7. Pay negotiation or attorney's fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute.
9. Initiates, dominates, assists otherwise interferes with the formation or administration of any
labor organization including the giving of financial or other support to its organizers or
officers
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Bargaining unit
- group of employees of a given employer comprised of all or less than all of the entire body
of employees, which the collective interests of all he employees, consistent with equity to
the employer, indicate to be the best suited to serve the reciprocal rights and duties of the
parties under the CBA
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Within 30 days from recognition, the employer representative and union president shall submit
to the Regional Office a joint statement, under oath, attesting to the fact of voluntary
recognition, which shall also include:
a) proof of posting of the joint statement
b) approximate number of employees in the bargaining unit, accompanied by the
names and signatures of at least majority of the members of the bargaining unit
supporting voluntary recognition
c) statement that there is no other legitimate labor organization operating within the
bargaining unit.
Consent Election - election voluntarily agreed upon by the parties to determine issue of
majority representation of all workers in the appropriate collective bargaining unit
- where a petition for CE had been filed and, upon the intercession of the Med-Arbiter, the
parties agree to hold a consent election, the results thereof shall constitute a bar to the
holding of a CE for one year from the holding of such consent election
- where no PCE had been filed but the parties have agreed to hold a consent election, the
results thereof shall not constitute a bar to another CE, unless the winning union had been
voluntary recognized.
Certification Election -process of determining, through secret ballot, the sole and exclusive
bargaining unit for purposes of collective bargaining.
- Requirement for valid election: majority of all eligible voters cast their votes
- Union to be certified: labor union receiving majority of the valid votes cast
NOTE: Determination of organized establishment status should be at the bargaining unit level.
Hence, an establishment may be considered organized insofar as the rank and file unit is
concerned but not organized insofar as the supervisory unit is concerned.
NOTE: even if 25% is not achieved, if Med arbiter feels there is a representation achievement,
Med Arbiter may still order conduct of CE [California Manufacturing v. Laguesma 209 SCRA
606 (1992)]
PROCEDURE:
Petition with decided w/in 20 file appeal with Regional Office 15 days to decide;
Med-Arbiter working days but it is Secretary who decides Decision final &
unappealable
Petition where no CBA : anytime
Except - within 1 yr. From date of issuance of a final certification election result
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Contents of Notice :
1. date of election
2. names of contending parties
3. description of bargaining unit
4. list of eligible voters
NOTE:
Even if there is no winner in an election (no choice received majority of valid votes cast) or the
no union choice won, the election, as long as it is valid (majority of eleigible voters voted) will
be a bar for one year.
2) DEADLOCK BAR
- during the existence of a bargaining deadlock to which an incumbent or certified bargaining
agent is a party and which had been submitted to conciliation or arbitration or had become
the subject of a valid notice of strike or lock-out
3) CONTRACT BAR
- during the existence of CBA; CBA need not be certified, need only to be registered under
Art. 231
- Applies as well after the lapse of the 60 day freedom period when old CBA is extended
until a new one is signed
Exception: within the freedom period
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
4) NEGOTIATIONS BAR -- when the duly recognized or certified union has commenced
negotiations with the employer in accordance with Article 250 of the Labor Code within the
one-year period of a certification year
Bargaining Negotiations:
Request to Bargain by union => Counter-Proposal w/in 10 cal days or reasonable period of
time
NOTE:
There is nothing that says the arbitral awards or renewals of CBAs shall always have
retroactive effect. In the case of Meralco v. Secretary of Labor, (February 2000) the Court
issued the resolution that: where an arbitral award is granted beyond six months after the
expiration of the existing CBA, and there is no agreement between the parties as to the date of
effectivity thereof, the arbitral award shall retroact to the first day after the six month period
following the expiration of the last day of the CBA.
In resolving the motions for reconsideration in this case, the Court took into consideration the
fact that petitioner belongs to an industry imbued with public interest and cannot ignore the
enormous cost in case of full retroaction of the arbitral award. Balancing this with the interests
of social justice; the arbitral award in this case would retroact to the first day after the six-
month period following the expiration of the last day of the CBA. Parenthetically, during the
period between the expiration of the economic provisions and the date of effectivity of the
arbitral award, the hold-over principle shall govern. (Manila Electric Company v. Secretary of
Labor G.R. No. 127598, August 1, 2000).
Internal Union Dispute - includes all disputes or grievances arising from any violation of or
disagreement over any provision of the constitution and by-laws of a union, including any
violation of the rights and conditions of union member ship provided for in this Code
Strike Breaker -- any person who obstructs, impedes, or interferes with by force, violence,
coercion, threats, or intimidation, any peaceful picketing by employees during any labor
controversy affecting wages, hours, and conditions of work or in the exercise of the right of
self-organization or collective bargaining
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Strike Area : -- establishment, warehouses, depots, plants or offices, including the sites or
premises used as run-away shops of the employer struck against as well as the
immediate vicinity actually used by picketing strikers in moving to and fro before all points of
entrance to and exit from said establishment
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
service shall be unhampered and unrestricted as are necessary to insure the proper
and adequate protection of the life and health of its patients most especially
emergency cases for the duration of the strike or lock-out
President of the Philippines : may determine the industries, which are in his opinion
indispensable to national interest. He may intervene at any time and assume jurisdiction over
any such labor dispute in order to settler or terminate the same
*Decision of the President, Secretary of labor, NLRC => final and executory after receipt
thereof by the parties
NOTE:
Before the SOLE may take cognizance of an issue which is merely incidental to the labor
dispute, the same must be involved in the labor dispute itself, or otherwise submitted to him for
resolution. [St. Scholasticas College v. Torres 210 SCRA 565 (1992)]
PROHIBITED ACTIVITIES
1) strike or lock-out without first having bargained collectivelystrike or lock-out without
the necessary notice being filed with the DOLE
2) strike or lock-out without the necessary vote first having been obtained and reported
to the DOLE
3) strike or lock-out after DOLE has assumed jurisdiction or the President or after
certification or submission of dispute to the compulsory arbitration/voluntary
arbitration or during the pendency of cases involving the same grounds for the strike
or lockout
4) knowingly participating in illegal strike/knowingly participates in the commission of
illegal acts during a strike ground for termination of employment
5) obstruct, impede, or interfere with by force, violence, coercion, threats, or
intimidation any peaceful picketing by employees during any labor contriversy or
shall abeit or aid such obstruction or interference
6) employment or use of any strikebreaker/ employed as a strike breaker
7) bringing in, introducing, or escorting by any public officer or employee, including
officers and personnel of the AFP or PNP, or any armed person in any manner of
any individual who seeks to replace strikers in entering or leaving the premises of a
strike area or work in place of strikers
8) commit any act of violence, coercion or intimidaion while engaged in picketing or
obstruct the ingress or egress from the employer's premises for lawful purposes or
obstruct public thoroughfares (must be pervasive and widespread/consistently and
deliberately resorted to as a matter of policy)
**See Sec. 7 (g) of D.O. 10; now Sec. 6 (e) of DO 18 regarding prohibition on
contracting out a job, work or service directly related to the business or operation of the
principal by reason of a strike or lockout whether actual or imminent.
NOTE: If violence is only in small scale, strike is still valid and only perpetrators are
accountable; if violence is in large scale, the strike is rendered illegal.
NOTE: Members of a union cannot be held responsible for an illegal strike on the sole basis of
such membership or even on account of their affirmative vote authorizing the same. They
beome liable only if they actually participated therein.
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
1) elements of the Police Force should first be called upon to render assistance
2) when it is unavailable or inadequate, CAPCOM or METRODISCOM may call upon the
Constabulary to render assistance
3) personnel from the army, Navy, or Air Force only when directed by the President or
personally by the Secretary of National Defense upon consultation with the Secretary of
Labor and Employment or when requested by the latter.
*Personnel related by affinity or consanguinity within the 4 th civil degree to any official/leader of
the parties in the controversy or has any financial or pecuniary interest therein - not allowed to
render services in connection with a strike or lock-out
PEACE-KEEPING DETAIL
personnel detailed shall be in uniform, with proper namecloth at all times, personnel shall
observe strict neutrality in his dealings with both parties to the controversy
stationed such that their presence may deter commission of criminal acts from either side
maintain themselves outside a 50 meter radius from the picket line except if the 50 meter
radius includes a public thoroughfare, they may station themselves in such public
thoroughfares for the purpose of insuring the free flow of traffic
Administrative Jurisdiction
determination of whether a strike, picket or lock-out is legal or not should be left to DOLE
personal escort only upon direction of competent authority
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Socializing/Liaison
discouraged from socializing with any of the parties involved during the pendency
shall not, under any pretext, accept an invitation from either of the parties
liaison established and maintained with representatives of DOLE, mgmt., and union for the
purpose of maintaining peace and order as well as to maintain a continuing peaceful
dialogue
Administrative Action
all complaints/reports leveled against any personnel of the INP/AFP on the occasion of
strike/lock-out shall be acted with dispatch
whenever applicable, and if the evidence so warrants, appropriate disciplinary action shall
be takes against the erring personnel
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
TERMINATION OF EMPLOYMENT
SECURITY OF TENURE
applies to all establishment or undertakings whether for profit or not
CLASSES OF EMPLOYEES
1. REGULAR
- engaged to perform activities which are usually necessary or desirable in the usual
business or trade of the employer
- may be terminated only for just / authorized causes
2. PROBATIONARY
General Rule: Not Exceed 6 mos.
EXCEPT:
a) covered by an apprenticeship agreement stipulating a longer period
b) voluntary agreement of parties (especially when nature of work requires a longer
period)
c) the employer gives the employee a second chance to pass the standards set
*May be terminated:
a) just / authorized causes
b) when he fails to qualify as a regular employee in accordance with reasonable
standards made known by the employer to employee at the time of his engagement
- if allowed to work after the probationary period, he shall be considered a REGULAR
employee
3. PROJECT
- one whose employment has been fixed for a specific project or undertaking the completion
of which has been determined at the time of engagement of the employee (SO EVEN IF
MORE THAN I YR., NOT NECESSARILY REGULAR)
*becomes regular if:
a. Job is usually necessary or desirable in the usual business or trade AND
b. Repeated rehiring - must be for the same or similar tasks; vital and
indispensable to the business (Maraguinot case)
4. SEASONAL
- one whose work or services to be performed is seasonal in nature and the employment is
for the duration of the season
5. CASUAL
- activity performed is not usually necessary or desirable in the usual business or trade of
the employer, not project and not seasonal
- EXCEPT: if he has rendered at least 1 year of service, whether such service is continuous
or broken = considered a REGULAR employee with respect to the activity in which he is
employed and his employment shall continue while such activity exists
- May be terminated with or without just cause
6. FIXED TERM
Allowed if:
- period is agreed upon knowingly and voluntarily by the parties without force, duress, or
improper pressure exerted on the employee
- satisfactorily appears that employer and employee dealt with each other on more or less
equal terms with no moral dominance exercised by the employer on the ee
- term employment is not resorted to defeat the rights of the workers rights
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
TERMINATION
JUST CAUSES
GROUNDS
1. Serious misconduct or willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work (work-related)-It is not merely the
FAILURE to obey, but it MUST be a WILLFULL AFFRONT to the employers authority. The
requisites are:
a.) A lawful order
b.) Employee knows of the order.
c.) Order is work related.
2. Gross and habitual neglect by the employee of his duties-BOTH gross and habitual; must
concur together. Previous infractions by the employee should have been acted upon
appropriately by the employer before terminating the former.
3. Fraud or willful breach by employee of the trust reposed in him by his employer or duly
authorized representative (not mere suspicion)-For rank and file workers, there must be an
OVERT/ACTUAL ACT; furthermore, the worker should have been entrusted with the
custody of money of property by the employer.
For managerial/confidential employees, acts ARE NOT necessary; MERE
CIRCUMSTANCES tending to show loss of confidence are enough.
4. Commission of a crime or offense by the employee against the person of his employer or
any immediate member of his family or duly authorized representative-A criminal
case need not be actually filed. Commission of acts constituting a crime is sufficient.
5. Other causes analogous to the foregoing-Immorality; For private sector employees, it can
only be grounds if it is work related/affects work. For public sector employees, immorality is
sufficient cause for termination.
Sexual Harrasment-Commision of acts constituting such is enough; a criminal case need
not be filed.
NOTE: Sexual harrasment (used in ordinary sense) may still be a ground for termination even
if it will not fall under the restrictive definition of sexual harrasment under 7877.
AUTHORIZED CAUSES
GROUNDS
1. Introduction of labor-saving devices
- view to effecting more economy and efficiency in its method of production
2. Redundancy
- exists where the services of an employee are in excess of what is reasonably demanded
by the actual requirements of the enterprise
- a position has become superfluous as an outcome of a number of factors such as
overhiring of workers, decreased volume of business, dropping of a particular product line
or service activity previously manufactured or undertaken by the enterprise (THUS IT ONLY
REQUIRES SUPERFLUITY NOT DUPLICATION OF WORK)
- The redundancy SHOULD NOT have been created by the EMPLOYER.
3. Retrenchment
- resorted primarily to avoid or minimize business losses
- criteria of who to lay off
(1) less preferred status
(2) efficiency rating
(3) seniority
(4) performance
(5) Last in-first out (optional)
Standards of retrenchment
a. losses expected should be substantial and not merely de minimis in extent
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Substantial is a relative term, depending on the size and overall profitability of the
company. LOSSES are defined a companys NET INCOME in its financial
statements being NEGATIVE.
b. substantial loss apprehended must be reasonably imminent
c. retrenchment must be reasonable necessary and likely to effectively prevent the
expected losses (very difficult to justify retrenching just one person)
d. alleged losses, if already realized, and the expected imminent losses sought to be
forestalled, must be proven by sufficient and convincing evidence
e. The company should have undertaken other cost-cutting means before
retrenchment. I.e., retrenchment is the final option.
Separation Pay:
- Installation of labor-saving devices - 1 month pay or 1 month pay for every
- Redundancy year of service whichever is higher.
- NOTE: 1 month pay for every year is
always higher if the employee has
served for more than 1 year.
- Retrenchment to prevent losses - 1 month pay or at least 1/2 month pay
- closures or cessation of operations for every year of service whichever is
of establishments or undertaking higher
NOT due to serious business
losses or financial reverses
- disease
** A fraction of at least 6 moths shall be considered as one year.
BACKWAGES
- granted on grounds of equity for earnings which a worker has lost due to his illegal
dismissal.
- full backwages are to be awarded to an illegally dismissed employee and should not be
diminished or reduced by earnings derived elsewhere
DUE PROCESS
1. written notice containing a statement of the causes for termination
2. a hearing or conference where the employee, who may be assisted by counsel if he so
desires, is given the opportunity to respond to the charge, present his own evidence, or
rebut evidence against him
3. written notice of termination served on the employee indicating that grounds have been
established to justify his termination based on due consideration of all the
circumstances
4. right to contest the validity or legality of his dismissal by filing a complaint with the
NLRC
5. burden of proof is with the employer
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
2) entitled to full backwages, inclusive of allowances and other benefits or their monetary
equivalent. Back wages are PUNITIVE in relation to the employer. Hence, they must be
paid IN FULL from time of illegal dismissal (there is no longer a maximum period). Back
wages must be paid regardless of whether or not the employee has since found work
elsewhere. Back wages are computed by assuming that there was NEVER ANY
TERMINATION. Hence, it would be as if EE had been working in company all the time.
3) damages
a) Moral-If the dismissal is in bad faith, attended by fraud, is against public policy, good
customs, morals, or is oppressive to labor.
b) Exemplary-If the dismissal is wanton, oppressive, or malevolent.
CONSTRUCTIVE DISMISSAL
a.) No formal dismissal
b.) The employee is placed in a situation by the employer such that his continued employment
has become UNBEARABLE.
FLOATING STATUS
a.) It is legal, such as in the case of security guards who have no assignment.
b.) Such a status should not exceed six-months; if it does, it amounts to a dismissal.
ABANDONMENT
- means the deliberate, unjustified refusal of an employee to resume his/her employment.
- Two elements must be proved:
1) the intention to abandon; and
2) an overt act from which it may be inferred that the employee has no more intent to
resume his/her work.
*this is negated by immediate filing of an action for ILLEGAL DISMISSAL
RESIGNATION
a. WITHOUT JUST CAUSE
1. at least 1 month prior notice
2. employee may be held liable for damages for failure to give notice
b. WITH JUST CAUSE
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
1. GROUNDS
a. serious insult on the honor and person of employee by the employer or his
representative
b. inhumane and unbearable treatment accorded to the employee
c. commission of a crime against person of the employee or any of the immediate
members of his family
d. other causes analogous to the foregoing
2. NOTICE NOT NECESSARY
NOTE: Resigning employee not entitled to separation pay, unless company policy gives it.
Effects : Employer shall reinstate the employee to his former position without loss of seniority
rights IF employee indicates his desire to resume his work not later than 1 month from
resumption of operations of his employer or his relief from the military or civic duty
PREVENTIVE SUSPENSION
- justified where the employees continued employment poses a serious and imminent threat
to the life or property of the employer or of his co-workers (there is a REASONABLE
POSSIBILITY of the employee posing such a threat).
- must not exceed 1 month
- only for the purpose of investigating the offense to determine whether he is to be
dismissed or not. IT IS NOT A PENALTY.
- if more than 1 month, the employee must be actually reinstated or reinstated in the payroll
- officers liable only if with malice and bad faith
B. KINDS:
1. OPTIONAL - 60 years old / 5 years in service (includes authorized
absences/vacations/regular holidays/mandatory military or civic service).
This depends on the stipulations in the CBA, company retirement plan, or
employment contract.
2. COMPULSORY - 65 years old/ regardless or years of service (company not
bound to dismiss employee)
C. BENEFITS: 1/2 month salary per year of service which shall include: (22.5 days)
1. 15-day basic wage, plus
2. 1/12 of the 13 th
month pay, plus
3. 5-day Service incentive leave pay plus
* a fraction of at least 6 mos. considered as one whole year
4. other benefits as maybe agreed upon by er and ee
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
DISPUTE SETTLEMENT
LABOR DISPUTE
~ includes any controversy or matter concerning terms or conditions of employment or
the association or representation of persons in negotiating, fixing, maintaining,
changing or arranging the terms and conditions of employment, regardless of whether
the disputants stand in the proximate relation of employer and employee
1. JURISDICTION
a. Inter-union conflicts
b. Intra-union conflicts
c. All disputes, grievances or problems arising from or affecting labor-management
relations in all workplaces EXCEPT those arising from the implementation or
interpretation of the CBA which shall be the subject of grievance procedure
and/or voluntary arbitration
2. COMPROMISE AGREEMENTS
~ if voluntarily agreed upon by the parties with the assistance of the BLR or the
regional office of DOLE final and binding upon the parties
~ the only time NLRC or any courts can assume jurisdiction over issues involved
therein:
a. in case of non-compliance thereof
b. if there is prima facie evidence that the settlement was obtained
through fraud, misrepresentation or coercion
a. registry of LLO
b. file of all CBA and other related agreements, records of settlement of labor
disputes, copies of orders, and decisions of voluntary arbitrators
~ open and accessible to interested parties under conditions prescribed by the
Secretary of DOLE, provided that no specific information submitted in confidence
shall be disclosed UNLESS authorized by the Secretary OR when it is at issue in
any judicial litigation OR when public interest or national security so requires
~ submitted within 30 days from execution of CBA to the BLR/DOLE for
registration accompanied with verified proofs of its posting in 2 conspicuous places
in the place of work and ratification by the majority of all the workers in the
bargaining unit
5. PRIVILEGED COMMUNICATION
~ information and statements made at conciliation meetings shall NOT be used as
evidence in the NLRC
~ conciliators and similar officials shall not testify in any court or body regarding
any matters taken up at conciliation proceeding conducted by them
6. APPEAL
~ within 10 days to the Secretary
~ GROUNDS: a. grave abuse of discretion
b. gross incompetence
SUMMARY OF JURISDICTION
A. VOLUNTARY ARBITRATORS
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
B. MED-ARBITERS/BLR
Original Jurisdiction: appeal to the Office of the Secretary
Appellate Jurisdiction: appeal to CA on certiorari
1. petition for certification election (Med Arbiter)
2. registration of CBA/ Labor Org
3. inter-union conflicts (representation issue/cancellation of registration) - BLR
4. intra-union conflicts (election of officers/ compliance with CBL) Regional Director;
appeal with BLR
C. POEA
- appeal to Secretary of DOLE within 10 cal days
o cancellation/ revocation/ supervision of license or authority
- appeal to NLRC within 10 cal days
o violation of overseas employment contracts
o disciplinary cases filed against overseas contract workers
- original and exclusive jurisdiction over all claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino overseas workers including
disciplinary cases; and all pre-employment cases which are administrative in character
involving or arising therefrom, or violations of the conditions for issuance of license or
authority to recruit workers
D. LABOR ARBITERS/NLRC
LABOR ARBITERs jurisdiction
1. ULP (priority resolved within 30 cal days from submission for decision)
2. termination disputes
3. claims for wages, rates of pay, hours of work and other terms and conditions of
employment
4. claims for actual, moral, exemplary and other forms of damages arising from employer-
employee relationship
5. cases arising from prohibited activities during strikes, including questions involving the
legality of strikes and lockouts
6. all other claims arising from employer-employee relationship involving an amount
exceeding P5000 regardless of whether accompanied by a claim for reinstatement
except ECC, SSS, Medicare, & maternity benefits
NLRC - EXCLUSIVE appellate jurisdiction over all cases decided by Labor Arbiters
OCULAR INSPECTION by Labor Arbiter & NLRC at any time during working hours
APPEAL
~ WHEN: within 10 calendar days from receipt of decision of LA
~ GROUNDS:
a. prima facie evidence of abuse of discretion on the part of LA
b. the decision, order or award was secured through fraud or coercion including
graft and corruption
c. pure questions of law
d. raised serious errors in the findings of facts which could cause grave or
irreparable damage or injury to the appellant
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
E. REGIONAL DIRECTORS
1. Secretary of DOLE enforcement power (inspection) - no limit to claims
2. adjudicatory power maximum of P5000 total claim/employee
~ summary appeal to NLRC within 5 cd
3. violation of the CBL and right and conditions of membership
PROCEDURE
- the rules of evidence prevailing in courts of law or equity shall not be controlling
- it is the spirit and intention of this Code which shall be used as reasonable means to
ascertain the facts in each case
- without regard to technicalities of law and procedure all in the interest of due process
- parties may be represented by legal counsel but it shall be the duty of the Chairman, any
presiding Commissioner or commissioner or any labor arbiter to exercise compete control
of the proceedings at all stages
B. Attorney's Fees, negotiations fees or similar charges of any kind arising from any collective
bargaining negotiations or conclusion of the collective agreement shall be imposed on any
individual member of the contracting union
- Proceeding for recovery of wages may be assessed against monetary benefits awarded
(10%)
- CBA negotiations charged against union funds in an amount to be agreed upon by parties
attorney's fees may be charged against union funds in an amount to be agreed upon by
the parties
- contract, agreement to the contrary shall be VOID
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Labor-Management Committee
- both management and labor shall have equal voting rights
- representations of labor
organized -- designated by the Collective bargaining agents in the bargaining unit
unorganized -- elected by at least a majority of all rank and file employees who have
rendered at least 6 months of continuous service
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LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
Voluntary:
1. Filipinos recruited by foreign-based
employers for employment abroad
2. Employee separated from employment
3. Self-employed realizes no income
4. Spouse who devotes full time
managing household and family affairs
unless specifically mandatorily covered
By Arrangement:
any foreign government, international
organization or wholly owned
instrumentality employing workers in the
Philippines or employing Filipinos outside
the Philippines may enter agreement with
Philippines for inclusion of such employees
in SSS EXCEPT those already covered by
their respective civil service retirement
system.
Exceptions (from 1. employment purely casual and not for 1. Members of the Armed
coverage) purpose occupation, or business Forces
employer 2. Members of the PNP
2. service performed on or in connection
with alien vessel, if employed when * members of judiciary and
such vessel is outside of Philippines constitutional commissions:
3. employees of Philippine government or life insurance only
instrumentality or agency thereof
4. service performed in the employee of a
foreign government, or international
organizations, of wholly owned
instrumentality employing workers in
the Philippines or employing Filipinos
33
LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
34
LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
II.) Dismissal
-Enumerate and define the various just and authorized causes
-Discuss the twin requirements for a valid dismissal.
-Define the concept of willful disobedience
-When should separation pay be granted as a matter of social justice even if a dismissal is for
cause?
-Enumerate and discuss the five instances when reinstatement is no longer possible.
-Define constructive dismissal.
-Define serious misconduct.
-Enumerate and discuss the various remedies for an illegal dismissal.
-Discuss the rules covering retrenchment.
-Expound on piercing the veil of corporate fiction in relation to illegal dismissal cases.
-Discuss the rule on dismissed employees quit claims.
-Discuss the concept of due process in illegal dismissal cases.
-What are the legal implications of an employee being on floating status.
V.) Strikes
-Differentiate between a legal and illegal strike.
-What is the concept of a strike?
-What are the effects of a strike on an employer-employee relationship?
-What are the provisions on illegal lockout? I.e., when is it committed?
-What are the legal effects of an assumption of jurisdiction order?
-When and under what circumstances can the Secretary of Labor issue an assumption of
jurisdiction order?
35
LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
IX.) Compensation
-What are the rules covering overtime, night shift differential, and holiday pay?
-What is included in the term compensation?
-Discuss the concept of a wage distortion.
-Discuss the concept and rules governing bonus payments.
X.) Others
-Discuss the rules on domestic helpers?
-Discuss the various prescriptive periods for actions relating labor disputes?
-Discuss and differentiate between job only and labor only contracting.
-Discuss the concept of on call.
-Discuss the rules governing women workers.
-Discuss the rules governing recruitment and placement of workers.
-Discuss the rules on handicapped workers?
-Discuss the rules governing employment of foreigners?
-Define unfair labor practice. Give examples.
36