Spectra Notes Labor Relations 2016 - Topic 1-4

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Table of Contents
TOPIC 1: THE APPLICABLE LAWS ...........................................................................................................................12
LAW: PD 442 AS AMENDED BY RA 6715 APPROVED ON MARCH 21, 1989.......................................................12
CONCEPT OF LABOR ..........................................................................................................................................12
FOUR SYSTEMS OF LABOR.................................................................................................................................13
THREE FIELDS OF LABOR LAW (S-R-S)................................................................................................................13
OMNIBUS RULES AS AMENDED.........................................................................................................................14
SUPREME COURT DECISIONS ............................................................................................................................14
BASIS OF ENACTING LABOR LAWS (P-S-P-D) .....................................................................................................14
LIMITATIONS IN THE ENACTMENT OF LABOR LAWS (P-E-N-D-O) .....................................................................15
SOURCES OF LABOR LAWS - LABOR STANDARDS (R-O-L-J) ...............................................................................16
SOURCES OF LABOR LAWS (LABOR RELATIONS) ...............................................................................................16
PROVISIONS ON THE EFFECTIVITY OF LABOR LAWS..........................................................................................16
RULES ON THE IMPLEMENTATION AND INTERPRETATION OF LABOR LAWS....................................................17
PARTIES TO EMPLOYMENT CONTRACT .............................................................................................................17
TRIPARTISM .......................................................................................................................................................17
TOPIC 2: BASIC PRINCIPLES ...................................................................................................................................19
CONSTITUTIONAL AND STATUTORY RIGHTS OF WORKERS IN GENERAL ..........................................................19
SPECIFIC RIGHTS OF WORKERS IN RELATION TO LABOR STANDARDS ..............................................................19
SPECIFIC RIGHTS OF WORKERS IN RELATION TO LABOR RELATIONS ................................................................20
CONCEPT OF EMPLOYER-EMPLOYEE (LABOR STANDARDS) ..............................................................................21
CONCEPT OF EMPLOYER-EMPLOYEE (LABOR RELATIONS)................................................................................21
CONCEPT OF EMPLOYER-EMPLOYEE RELATIONSHIP ........................................................................................22
FOUR-FOLD TEST ...............................................................................................................................................22
ECONOMIC REALITY TEST ..................................................................................................................................24
EMPLOYER-EMPLOYEE VS. PRINCIPAL-AGENT ..................................................................................................24
PRINCIPAL-AGENT RELATIONSHIP .....................................................................................................................24
EMPLOYER-EMPLOYEE VS. PRINCIPAL-CONTRACTOR (DO NO. 9).....................................................................25
PRINCIPAL-INDEPENDENT CONTRACTOR RELATIONSHIP..................................................................................25
CHIEF CHARACTERISTICS OF AN EMPLOYEE ......................................................................................................25
TOPIC 3: RIGHT TO SECURITY OF TENURE .............................................................................................................26
University of San Carlos School of Law and Governance | Based on the Outline of JMM Page 1
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CONSTITUTIONAL BASIS (Art. 13, Sec. 3, 1987 Constitution) ............................................................................26

STATUTORY BASIS..............................................................................................................................................26
CLASSIFICATION OF EMPLOYMENT AND KINDS OF EMPLOYEES.......................................................................26
REGULAR EMPLOYMENT ...................................................................................................................................26
PROBATIONARY EMPLOYMENT.........................................................................................................................27
CASUAL EMPLOYMENT......................................................................................................................................29
OTHER CLASSIFICATION (SPECIAL LAWS) ..........................................................................................................30
CONSTRUCTION INDUSTRY ...............................................................................................................................30
IN PRIVATE EDUCATIONAL INSTITUTIONS.........................................................................................................31
IN HOSPITALS.....................................................................................................................................................32
EXCEPTIONS TO REGULAR EMPLOYMENT.........................................................................................................32
PROJECT EMPLOYMENT ....................................................................................................................................33
SEASONAL EMPLOYMENT .................................................................................................................................34
FIXED TERM EMPLOYMENT...............................................................................................................................35
MEMBERS OF WORK POOL ...............................................................................................................................37
Marquez discussion ..........................................................................................................................................38
TOPIC 4: MANAGEMENT PREROGATIVE................................................................................................................41
CONCEPT ...........................................................................................................................................................41
SCOPE ................................................................................................................................................................41
LIMITATIONS .....................................................................................................................................................41
HIRING ...............................................................................................................................................................41
PROMOTION......................................................................................................................................................42
DEMOTION ........................................................................................................................................................42
TRANSFER ..........................................................................................................................................................43
DISMISSAL .........................................................................................................................................................44
OTHERS..............................................................................................................................................................44
REORGANIZATION AND ABOLITION OF POSITIONS...........................................................................................44
EARLY RETIREMENT PROGRAM.........................................................................................................................44
EMPLOYMENT POLICIES AND STIPULATIONS ....................................................................................................45
BONA FIDE OCCUPATIONAL QUALIFICATION RULE...........................................................................................45
RESTRICTIVE COVENANT CLAUSES (RIVERA VS. SOLIDBANK)............................................................................46
Marquez discussion ..........................................................................................................................................47
TOPIC 5: TERMINATION OF EMPLOYMENT ...........................................................................................................50
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EMPLOYEES RIGHT TO DISCIPLINE; NATURE OF RIGHT ....................................................................................50

ACTUAL AND CONSTRUCTIVE DISMISSAL..........................................................................................................50
GROUNDS FOR TERMINATION ..........................................................................................................................50
JUST CAUSES (LABOR CODE)..............................................................................................................................50
JUST CAUSES FOR ACADEMIC PERSONNEL IN THE TERTIARY LEVEL .................................................................60
JUST CAUSES FOR ACADEMIC PERSONNEL IN BASICEDUCATION .....................................................................61
AUTHORIZED CAUSES ........................................................................................................................................61
INSTALLATION OF LABOR SAVING DEVICE ........................................................................................................62
GUIDELINES ON THE ADOPTION OF FLEXIBLE WORK ARRANGEMENTS (DOLE Dept. Advisory No. 2, s. 2009) 62
REDUNDANCY....................................................................................................................................................63
RETRENCHMENT TO PREVENT LOSSES ..............................................................................................................64
CLOSURE OF BUSINESS ......................................................................................................................................66
ANALOGOUS AUTHORIZED CAUSES ..................................................................................................................67
REQUISITES FOR VALID TERMINATION..............................................................................................................67
FACTORS TO BE CONSIDERED IN TERMINATING ...............................................................................................68
PREVENTIVE SUSPENSION DEFINITION .............................................................................................................68
DO NO. 19 FOR WORKERS IN CONSTRUCTION INDUSTRY ................................................................................68
STATUTORY DUE PROCESS VS. CONSTITUTIONAL DUE PROCESS......................................................................69
PRIOR NOTICE AND HEARING RULE ..................................................................................................................71
PROCEDURAL REQUIREMENT FOR JUST CAUSES ..............................................................................................71
CONSEQUENCES OF COMPLIANCE AND NON COMPLIANCE WITH JUST CAUSE AND PRIOR NOTICE
REQUIREMENT TABLE........................................................................................................................................73
DISCUSSION ON WITH JC BUT WITHOUT PN:....................................................................................................73
PROCEDURAL REQUIREMENT FOR AUTHORIZED CAUSES.................................................................................73
EFFECT OR CONSEQUENCE OF A VALID DISMISSAL...........................................................................................74
JUST CAUSE........................................................................................................................................................74
AUTHORIZED CAUSE..........................................................................................................................................74
EFFECT OR CONSEQUENCE OF AN INVALID DISMISSAL ....................................................................................74
RELIEFS AVAILABLE TO UNJUSTLY DISMISSED EMPLOYEE ................................................................................74
BACKWAGES ......................................................................................................................................................75
REINSTATEMENT OR SEPARATION PAY IN CASE REINSTATEMENT IS NO LONGER FEASIBLE............................75
DISMISSAL FOR FALSE OR NON-EXISTENT CAUSE .............................................................................................77
CORPORATE OFFICERS.......................................................................................................................................77
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DOCTRINES ........................................................................................................................................................79
DOCTRINE OF STRAINED RELATIONSHIP ...........................................................................................................79
TOTALITY OF INFRACTIONS DOCTRINE..............................................................................................................79
HOBSON DOCTRINE...........................................................................................................................................79
TOTALITY OF CONDUCT DOCTRINE ...................................................................................................................79
PAST/PREVIOUS INFRACTION RULE...................................................................................................................79
WENPHIL DOCTRINE..........................................................................................................................................79
BONA FIDE OCCUPATIONAL QUALIFICATION ....................................................................................................79
SUCCESSION EMPLOYER DOCTRINE ..................................................................................................................79
DOCTRINE OF DISCERNING COMPASSION ........................................................................................................79
Atty Marquez Discussion ..................................................................................................................................80
SUSPENSION OF BUSINESS OPERATIONS ..............................................................................................................88
BASIS AND MAXIMUM PERIOD .........................................................................................................................88
REQUISITES OF A VALID/BONA FIDE SUSPENSION OF OPERATIONS:................................................................88
EFFECT ON EMPLOYMENT STATUS....................................................................................................................88
COMPENSATION OF EMPLOYEES DURING THE SIX-MONTH SUSPENSION .......................................................88
EFFECT OF SUSPENSION OF WORK EXCEEDING 6 MONTHS..............................................................................88
EFFECT OF EMPLOYMENT OF THE EMPLOYEE IN OTHER ESTABLISHMENTS DURING 6-MONTH PERIOD ........89
FULFILLMENT OF MILITARY OR CIVIC DUTY ......................................................................................................89
ANALOGOUS SITUATION ...................................................................................................................................89
DISTINGUISH FROM STOPPAGE OF WORK OR SUSPENSION OF OPERATION ...................................................90
What is being inquired in Article 128 is whether or not the employer complies with labor standards laws,
rules and regulations, as well as social legislations. ..........................................................................................90
TEMPORARY OR PERIODIC SHUTDOWN AND TEMPORARY CESSATION OF WORK ..........................................90
Atty Marquez discussion ..................................................................................................................................90
DISEASE AS GROUND FOR TERMINATION .............................................................................................................92
REQUIREMENTS TO TERMINATE EMPLOYMENT ...............................................................................................92
HIV-STATUS AND AIDS.......................................................................................................................................92
SEVERE ACUTE RESPIRATORY SYNDROME ........................................................................................................92
DISABILITY UNDER MAGNA CARTA FOR DISABLES PERSON (RA 7277) .............................................................93
HEPATITIS B STATUS ..........................................................................................................................................93
HEALTH CERTIFICATE REQUIREMENT................................................................................................................93
DISEASES AND ITS PENALTY...............................................................................................................................94
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TOPIC 6: OTHER CAUSES OF SEVERANCE OF EMPLOYMENT RELATION................................................................95

RESIGNATION ....................................................................................................................................................95
DEFINITION........................................................................................................................................................95
BASIS..................................................................................................................................................................95
TYPES OF RESIGNATION ....................................................................................................................................95
VOLUNTARY RESIGNATION ...............................................................................................................................95
INVOLUNTARY RESIGNATION ............................................................................................................................97
EXPRESS RESIGNATION......................................................................................................................................98
IMPLIED RESIGNATION ......................................................................................................................................99
ISSUANCE OF CERTIFICATE OF EMPLOYMENT...................................................................................................99
RETIREMENT......................................................................................................................................................99
DEFINITION........................................................................................................................................................99
BASIS..................................................................................................................................................................99
TYPES OF RETIREMENT....................................................................................................................................100
RETIREMENT AGE AND PAY.............................................................................................................................100
EXEMPTION FROM RETIREMENT LAW ............................................................................................................102
RETROACTIVE EFFECT ......................................................................................................................................103
PRESCRIPTION OF CLAIMS...................................................................................................................................104
TOPIC 7: JURISDICTION OF THE LABOR ARBITER.................................................................................................107
ORIGINAL AND EXCLUSIVE JURISDICTION .......................................................................................................107
LABOR CODE....................................................................................................................................................107
MIGRANT WORKERS AND OVERSEAS FILIPINO ACT (RA 8042, as amended)..................................................108
RULE V, 2011 NLRC RULES OF PROCEDURE.....................................................................................................108
REASONABLE CAUSAL CONNECTION RULE......................................................................................................108
CONCURRENT JURISDICTION OF OTHER AGENCIES ........................................................................................109
DOLE REGIONAL DIRECTORS ...........................................................................................................................109
VOLUNTARY ARBITRATORS .............................................................................................................................109
DOLE SECRETARY.............................................................................................................................................109
LABOR DISPUTES .............................................................................................................................................110
CIVIL DISPUTES ................................................................................................................................................111
INTRA-CORPORATE DISPUTES .........................................................................................................................111
INSTANCES WHERE THE LABOR ARBITER DOES NOT HAVE JURISDICTION .....................................................111
TOPIC 8: THE 2011 NLRC RULES OF PROCEDURE ................................................................................................113
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COMPULSORY ARBITRATION AND VOLUNTARY ARBITRATION.......................................................................113

AGENCIES OF GOVERNMENT EXERCISING COMPULSORY ARBITRATION........................................................114
DOLE REGIONAL OFFICES ................................................................................................................................114
DOLE SECRETARY.............................................................................................................................................115
BUREAU OF LABOR RELATIONS .......................................................................................................................116
NATIONAL LABOR RELATIONS COMMISSION ..................................................................................................116
LABOR ARBITERS .............................................................................................................................................117
GUIDELINES ON THE SINGLE-ENTRY APPROACH PRESCRIBING A 30 DAY MANDATORY CONCIILIATION-
MEDIATION SERVICES FOR ALL LABOR AND EMPLOYMENT AGENCIES (DOLE Department Order No, 107-10,
Series of 2010).................................................................................................................................................117
DOLE RULES OF PROCEDURE OF THE SINGLE ENTRY APPROACH (February 25, 2011) ...................................119
[REPUBLIC ACT NO. 10396] .............................................................................................................................122
COMPLAINT; CAUSE OF ACTION/S; REAL PARTIES-IN-INTEREST; AMENDMENT OF COMPLAINT; CERTIFICATE
OF NON-FORUM..............................................................................................................................................123
SHOPPING........................................................................................................................................................123
SERVICE OF SUMMONS; NATURAL & JURIDICAL PERSON/S; MODE OF SERVICE OF NOTICES, RESOLUTION,
ORDER OF DECISION........................................................................................................................................124
RAFFLE AND ASSIGNMENT OF CASES ..............................................................................................................125
APPEARANCES OF LAWYERS AND NON-LAWYERS ..........................................................................................126
MANDATORY CONCILIATION & MEDIATION CONFERENCE ............................................................................128
COMPROMISE BEFORE REGIONAL DIRECTOR AND LABOR ARBITER...............................................................130
SIMULTANEOUS FILING OF POSITION PAPER; CONTENTS OF POSITION PAPER; REPLY POSITION PAPER &
CONTENTS .......................................................................................................................................................130
CONDUCT OF HEARING OR CLARIFICATORY CONFERENCE .............................................................................131
CONTEMPT ......................................................................................................................................................132
APPEAL PROCEDURE........................................................................................................................................133
FRIVOLOUS OR DILATORY APPEALS.................................................................................................................134
NEW SCHEDULE OF LEGAL FEES (NLRC En Banc Resolution No. 08-07, Series of 2007) .................................134
REQUISITES TO PERFECT APPEAL ....................................................................................................................135
PROHIBITED APPEALS, INTERLOCUTORY ORDER & FINAL ORDER...................................................................136
RULES ON REINSTATEMENT PENDING APPEAL ...............................................................................................137
THE NATIONAL LABOR RELATIONS COMMISSION (NLRC)...............................................................................137
EO No. 204, Series of 2003 DELEGATING TO THE SECRETARY OF LABOR AND EMPLOYMENT THE POWER TO
EXERCISE..........................................................................................................................................................140
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ADMINISTRATIVE SUPERVISION OVER THE NATIONAL LABOR RELATIONS COMMISSION .............................140

POWERS AND FUNCTIONS OF THE NLRC.........................................................................................................140
FINALITY OF NLRC & LABOR ARBITERS DECISION...........................................................................................141
EXECUTION OF JUDGMENT .............................................................................................................................144
NLRC MANUAL ON EXECUTION OF JUDGMENT ..............................................................................................145
PRE-EXECUTION CONFERENCE; ISSUANCE & QUASHAL OF WRIT OF EXECUTION ..........................................148
THIRD PARTY CLAIMS ......................................................................................................................................149
EXTRAORDINARY REMEDIES FROM ORDER OR RESOLUTION OF LABOR ARBITER..........................................149
APPELLATE REMEDIES .....................................................................................................................................151
RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS ...............................................................................151
RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT.........................................................................151
Atty Marquez Discussion ................................................................................................................................153
TOPIC 9: RIGHT TO SELF-ORGANIZATION............................................................................................................164
UNIONISM, POLICY OF STATE, CONSTITUTIONAL GUARANTEE ......................................................................164
SCOPE AND NATURE OF EMPLOYEES RIGHTS ................................................................................................165
CONSTITUTIONAL BASIS ..................................................................................................................................165
STATUTORY BASIS............................................................................................................................................165
TWO CONCEPTS OF RIGHT TO ASSOCIATION..................................................................................................166
UNION SECURITY CLAUSE OR CLOSED SHOP AGREEMENT .............................................................................166
PURPOSE OF EXERCISE OF RIGHT: TWO FOLD PURPOSE/S .............................................................................167
REPUBLIC ACT NO. 9481 .................................................................................................................................167
NON-ABRIDGEMENT OF RIGHT TO SELF-ORGANIZATION ...............................................................................169
UNION MEMBERSHIP AND FORMATION OF UNION: WHO ARE QUALIFIED AND DISQUALIFIED ...................169
DOCTRINE OF NECESSARY IMPLICATION.........................................................................................................173
CASE: SMC Supervisors and Exempt Union vs. Hon. Laguesma ..................................................................173
REGISTRATION OF UNION; JURISDICTION AND PROCEDURE, JURIDICAL PERSONALITY.................................174
JURISDICTION AND PROCEDURE .....................................................................................................................179
RIGHTS OF LEGITIMATE LABOR ORGANIZATION .............................................................................................180
RIGHTS AND DUTIES OF UNION MEMBERS & NON-UNION MEMBERS (ART. 241) AND QUALIFICATIONS.....182
RIGHTS.............................................................................................................................................................183
DUTIES .............................................................................................................................................................185
ELECTION OF UNION OFFICERS AND QUALIFICATIONS...................................................................................185
CHECK- OFF PROVISION (ART. 113(B)).............................................................................................................189
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DISAFFILIATION: MEMBERS & UNION .............................................................................................................189

INTRA- UNION & INTER-UNION DISPUTES: JURISDICTION OF BLR (ART. 226); OTHER MATTERS...................191
CANCELLATION OF UNION REGISTRATION; GROUNDS; JURISDICTION & PROCEDURE ..................................193
INQUIRY INTO UNIONS FINANCIAL ACTIVITIES: VISITORIAL POWER (ART. 274) ............................................198
OTHER POWER OF SECRETARY OF LABOR (ART. 273) .....................................................................................198
OTHER SPECIAL LAWS:.....................................................................................................................................199
RA 7916, CHAP. 4 (SPECIAL ECONOMIC ZONE ACT OF 1995)..........................................................................199
PART I, RULE II, SEC 2.......................................................................................................................................199
PART IX, RULE XXIII, SEC. 1-7 ...........................................................................................................................199
ATTY MARQUEZ DISCUSSION .........................................................................................................................200
TOPIC 10: RIGHTS OF LEGITIMATE LABOR ORGANIZATION ................................................................................208
RIGHTS IN GENERAL (ART. 242, AS AMENDED) ...............................................................................................208
EXCLUSIVE BARGAINING AGENT .....................................................................................................................209
PURPOSE OF AN EXCLUSIVE BARGAINING AGENT ..........................................................................................209
CERTIFICATION PROCESS: CERTIFICATION ELECTION AND VOLUNTARY RECOGNITION.................................209
RULES IN THE CONDUCT OF CERTIFICATION ELECTION (UNDER DO 40-03) ...................................................209
VOLUNTARY RECOGNITION.............................................................................................................................211
CERTIFICATION ELECTION................................................................................................................................212
WHO MAY FILE FOR CERTIFICATION ELECTION...............................................................................................218
PRINCIPLE OF PRECLUSION OR COLLATERAL ATTACK .....................................................................................223
INCLUSION-EXCLUSION PROCEEDINGS ...........................................................................................................223
CONTRACT BAR RULE ......................................................................................................................................224
EXCEPTIONS TO THE CONTRACT BAR RULE.....................................................................................................224
DEADLOCK BAR RULE ......................................................................................................................................224
CERTIFICATION YEAR RULE..............................................................................................................................224
VALID ELECTION AND DOUBLE MAJORITY RULE .............................................................................................225
FAILURE OF ELECTION .....................................................................................................................................225
RUN-OFF ELECTIONS .......................................................................................................................................225
PRINCIPLE OF FAIR REPRESENTATION .............................................................................................................225
SCOPE: BARGAINING UNIT ..............................................................................................................................226
JURISDICTIONAL PRECONDITIONS TO COLLECTIVE BARGAINING ...................................................................226
DUTY TO BARGAIN WITH OR WITHOUT A CBA................................................................................................226
FOUR (4) FORMS OF VIOLATION OF DUTY TO BARGAIN .................................................................................227
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RIGHT TO COLLECTIVE BARGAINING ...............................................................................................................228

SINGLE ENTERPRISE BARGAINING/DECENTRALIZED BARGAINING .................................................................228
MULTI-EMPLOYER BARGAINING/INDUSTRY-WIDE BARGAINING ...................................................................228
WHEN TO BARGAIN .........................................................................................................................................230
CONTENTS OF CBA ..........................................................................................................................................230
GRIEVANCE MACHINERY ..............................................................................................................................230
UNION SECURITY CLAUSE................................................................................................................................233
DRUG-FREE WORKPLACE.................................................................................................................................234
MANDATORY SUBJECTS OF BARGAINING .......................................................................................................234
IMPASSE ..........................................................................................................................................................235
BOULWARISM..................................................................................................................................................235
RATIFICATION OF CBA: WHEN NEEDED?........................................................................................................235
RATIFICATION OF CBA: WHEN NOT NEEDED?................................................................................................235
REGISTRATION OF CBA ....................................................................................................................................236
TERM OF CBA: REPRESENTATION ASPECT.......................................................................................................237
RENEGOTIATION / RETROACTIVITY OF CBA ....................................................................................................237
SUBSTITUTIONARY DOCTRINE.........................................................................................................................238
RIGHT TO FINANCIAL STATEMENTS.................................................................................................................239
RIGHT TO PARTICIPATE IN POLICY AND DECISION MAKING PROCESS ............................................................239
PRINCIPLE OF CO-DETERMINATION ................................................................................................................240
RIGHT TO ENGAGE IN PEACEFUL CONCERTED ACTIVITIES ..............................................................................240
FORMS OF CONCERTED ACTIVITIES.................................................................................................................241
STRIKE AND LOCKOUT .....................................................................................................................................242
CONSTITUTIONAL AND STATUTORY BASIS ......................................................................................................242
KINDS OF STRIKE..............................................................................................................................................244
CATEGORIES OF ILLEGAL STIKE........................................................................................................................244
NCMB MANUAL OF PROCEDURE FOR CONCILIATION AND PREVENTIVE MEDIATION....................................245
STRIKE..............................................................................................................................................................245
FORM NOTICE OF STRIKE AND LOCKOUTS; CONTENTS...................................................................................245
WHERE TO FILE ................................................................................................................................................246
WHO MAY FILE ................................................................................................................................................246
GROUNDS FOR STRIKE AND LOCK-OUT ...........................................................................................................246
VALIDITY OF "NO STRIKE" CLAUSE...................................................................................................................247
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STRIKEABLE ISSUES ..........................................................................................................................................247

NON-STRIKEABLE ISSUES .................................................................................................................................247
ASSUMPTION OF JURISDICITON/SEC./DOLE (ART. 263(G)) .............................................................................248
DO-40-H-13, S. 2013,.......................................................................................................................................248
NATURE OF POWER; SCOPE ............................................................................................................................249
EFFECT OF ASSUMPTION.................................................................................................................................249
APPEAL TO OFFICE OF THE PRESIDENT; WHEN ALLOWED & PROCEDURE......................................................250
PROHIBITED ACTIVITIES...................................................................................................................................252
STRIKE AREA ....................................................................................................................................................252
IMPROVED OFFER BALLOTING ........................................................................................................................253
CONSEQUENCES OF LEGAL AND ILLEGAL STRIKE ............................................................................................253
IN PARI DELICTO RULE .....................................................................................................................................253
ARREST AND DETENTION OF UNION MEMBERS .............................................................................................253
JOINT DOLE-PNP-PEZA GUIDELINES IN THE CONDUCT OF PNP PERSONNEL, ECONOMIC ZONE POLICE AND
SECURITY GUARDS, COMPANY SECURITY GUARDS AND SIMILAR PERSONNEL DURING LABOR DISPUTES ....255
LEGAL REMEDIES OF EMPLOYER & UNION IN CASE OF STRIKE/LOCKOUT......................................................255
JURISDICTION & PROCEDURE BEFORE THE LABOR ARBITER & THE SECRETARY OF LABOR............................255
INNOCENT BY-STANDER RULE .........................................................................................................................256
ANTI-INJUNCTION BAN....................................................................................................................................256
FREEDOM AT WORKPLACE ..............................................................................................................................257
TOPIC 11: REVISED GUIDELINES OF THE NCMB FOR THE CONDUCT OF VOLUNTARY ARBITRATION PROCEEDINGS
.............................................................................................................................................................................262
ART. 260, 261, 262, 262-A, 262-B....................................................................................................................262
DO-40-03 .........................................................................................................................................................263
ART. 211 (G), LABOR CODE & SEC. 3, ART XIII, 1987 CONSTITUTION ..............................................................265
Art. 255 & ART. 277 (G) & (H)..........................................................................................................................265
FRAMEWORK OF ALTERNATIVE DISPUTE RESOLUTION FOR DISPUTE PREVENTION: .....................................267
1. CONCILIATION- MEDIATION ........................................................................................................................267
2. VOLUNTARY ARBITRATION..........................................................................................................................267
3. GRIEVANCE HANDLING................................................................................................................................267
4. WORKPLACE COOPERATION (LABOR- MANAGEMENT COUNCIL) ...............................................................268
5. EMPLOYEE INVOLVEMENT (EI) & EMPLOYMENT PARTICIPATION SCHEMES ..............................................268
6. COLLECTIVE BARGAINING............................................................................................................................269
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STRIKE OR LOCK-OUT INTERVENTION ON THE PART OF DOLE: CONCILIATION/MEDIATION..........................270

A. CONCILIATION/MEDIATION (NCMB),..........................................................................................................270
B. VOLUNTARY (ART. 262) ...............................................................................................................................270
C. COMPULSORY ARBITRATION (ART. 217) .....................................................................................................270
D. ASSUMPTION OF JURISDICTION (ART. 263 (G)) ..........................................................................................270
GRIEVANCE; CONCEPT; & SCOPE.....................................................................................................................271
SUBMISSION AGREEMENT; NOTICE TO ARBITRATE; ARBITRATION CLAUSE...................................................271
GRIEVANCE MACHINERY; UNRESOLVED GRIEVANCES ....................................................................................272
COLLECTIVE BARGAINING AGREEMENT & COMPANY PERSONNEL POLICIES (CONTRACT INTERPRETATION &
ENFORCEMENT DISPUTE) ................................................................................................................................272
DISPUTES INVOLVING PRODUCTIVITY INCENTIVE PROGRAMS UNDER RA 6971 (PRODUCTIVITY INCENTIVES
ACT) .................................................................................................................................................................272
GRIEVANCE PROCEDURE; GRIEVANCE COMMITTEE .......................................................................................272
VOLUNTARY ARBITRATION; DISTINGUISHED FROM COMPULSORY ARBITRATION.........................................273
DESIGNATION OR APPOINTMENT OF VOLUNTARY ARBITRATOR; AD-HOC AND PERMANENT ......................273
JURISDICTION OF VOLUNTARY ARBITRATOR; ORIGINAL AND EXCLUSIVE; & CONCURRENT ..........................274
POWERS AND DUTIES OF VOLUNTARY ARBITRATOR ......................................................................................274
COST OF VOLUNTARY ARBITRATION AND FEES OF ARBITRATOR....................................................................275
NATURE OF PROCEEDINGS; INITIAL CONFERENCE; ARBITRATION ISSUES; GROUND RULES; FILING OF
POSITION PAPERS AND OTHER PLEADINGS; CLARIFICATORY HEARING; RECORDING OF PROCEEDINGS;
ARBITRATION CONFERENCE ............................................................................................................................276
DECISION OF VOLUNTARY ARBITRATOR AND PROHIBITED MOTION; APPEAL PROCEDURE (RULE 43, RULES OF
CIVIL PROCEDURE) AND RULE 45 ....................................................................................................................277
COMPLIANCE OF AND EXECUTION OF DECISIONS OR ORDER OF VOLUNTARY ARBITRATOR.........................277
TOPIC 12: UNFAIR LABOR PRACTICE ...................................................................................................................278
REQUISITES ......................................................................................................................................................278
CONDITIONS: ...................................................................................................................................................278
ACTS OF UNFAIR LABOR PRACTICE: EMPLOYER & UNION ..............................................................................278
TERMS .............................................................................................................................................................280
PRESCRIPTIVE PERIOD .....................................................................................................................................281
PENAL PROVISION ...........................................................................................................................................281
JURISDICTION ..................................................................................................................................................281
PROCEDURE.....................................................................................................................................................281
RELIEF AGAINST UNFAIR LABOR PRACTICES....................................................................................................282
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ANNEX A: LABOR RELATIONS UPDATES..............................................................................................................282

TOPIC 2: - DOLE Labor Advisory No. 04, (Working Conditions in the Movie and Television Industry)...........282
TOPIC 3 RA 108691 (Jobstart Trainee published on July 1, 2016) ................................................................282
TOPIC 3- RA 10917 (Amending RA 9547(RA7323- SPEs Act) published on August 1, 2016) ...........................282
TOPIC 5- DOLE DO No. 147-15, s.2015 published on October 3, 2015............................................................282
TOPIC 6 RA 10757 (Surface Mine Workers) published on April 12, 2016.....................................................282
TOPIC 6- RA 10789, addine new Art 302-A (Racehorse Jockey) published on May 9, 2016............................282
TOPIC 8- DOLE DO No. 151-16, S. 2016 on SeNa Rules;Attorneys Fees and Appearance of Lawyers............282
TOPIC 9 DO No. 40-I-15, s.2015 published on October 3, 2015 ...................................................................282
TOPIC 10- DO No. 40-I-15, s.2015 published on October 3, 2015 on SEBA certification.................................282
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TOPIC 1: THE APPLICABLE LAWS

LAW: PD 442 AS AMENDED BY RA 6715 APPROVED ON MARCH 21, 1989
A DECREE INSTITUTING A LABOR CODE, THERBY REVISING AND CONSOLIDATING LABOR AND SOCIAL LAWS TO
AFFORD PROTECTION TO LABOR, PROMOTE EMPLOYMENT AND HUMAN RESOURCES DEVELOPMENT AND ENSURE
INDUSTRIAL PEACE BASED ON SOCIAL JUSTICE.
Article 1. This Decree shall be known as the Labor Code of the Philippines o May 1,
1974 PD 442 was signed into law
o Took effect Nov. 1, 1974
Article 2. This Code shall take effect Six months after its promulgation RA
6715 Herrera-Veloso Law
Sen. Blas Ople Father of Labor Code
Significance: Before the effectivity of the labor code, there was no provision on the terms and conditions of employment.
Significance of RA 6715:
Computation of Backwages after RA 6715 took effect, the award of backwages from the time compensation was withheld up
to the actual reinstatement; However, Facilities should not be included in the computation of backwages for the reason that
such are given free, to be used only for official tour of duty and not for personal use.
CONCEPT OF LABOR
Ordinary Sense: is understood as the physical toil although it does not necessarily exclude the application of skill, thus, there is skilled and
unskilled labor; work; service
General Sense: it is the exertion of human being by his mental or physical effort towards production of goods or services.
Technical Sense: the working class or workingmen
Skill the familiar knowledge of any art or science, united with readiness and dexterity in the execution or performance of the
application such art or science to practical purposes.
Work it is broader than labor; covers all forms of physical or mental exertion or both combined, for the attainment of some
object other than recreation or amusement per se.
Worker broader than employee; refer to self-employed people and those working in the service and under the control of
another, regardless of rank, title, or nature of work.
Employee a salaried person working for another who controls or supervises the means, manner, or method of doing the work
NOTE: It is the workers or the working class who exerts or labors.
FOUR SYSTEMS OF LABOR

(Sla-Ser-Free-Wage; Slasher Free Wage; S-S-F-W )
Slavery
Refers to the extraction of work or services from any person by means of enticement, violence, intimidation or
threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt
bondage or deception. (DO 65-04 S2004)
The worker is owned by another at his free disposal
Prohibited in the Philippines
Section 18(2) of the Constitution:No involuntary servitude in any form shall exist except as a punishment for a crime whereof the
party shall have been duly convicted.
Article 272, Revised Penal Code:Slavery. The penalty of prision mayor and a fine of not exceeding 10,000 pesos shall be imposed
upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose
of enslaving him.
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Section 4(a) of RA9208:Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit
any of the following acts: (a) To recruit, transport, transfer; harbor, provide, or receive a person by any means, including
those done under the pretext of domestic or overseas employment or training or
apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary
servitude or debt bondage;
Serfdom
Independent-contractorship
Worker, by customary right to his Lord, owes certain service
Enforced labor of serfs on the fields of the landowners, in return for protection and the right to work on their leased fields.
this is not job contracting

Prohibited in the Philippines
Article 274 of the RPC:Services rendered under compulsion in payment of debt. The penalty of arresto mayor in its
maximum period to prision correccional in its minimum period shall be imposed upon any person who, in order to
require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household
servant or farm laborer.
Section 12-D, RA7610 as amended: No child shall be engaged in the worst forms of child labor. The phrase "worst
forms of child labor" shall refer to any of the following: (1) All forms of slavery, as defined under the "Anti-trafficking in
Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom
and forced or compulsory labor, including recruitment of children for use in armed conflict;
Free Artisan
A free person who offers his services to others subject to nobodys will
The same with modern independent contractorship wherein an independent contractor is engaged in a business separately
distinct from the principal, the performed job, work or service, and works according to his own means and methods, free from
the control and direction of the principal except as to the results thereof.
Governed by Article 1713 of the Civil Code
Wage System
A person offers his services to another under an employment contract for which such service is paid by wages. The same
with modern employer-employee system where there is an employee under the control and
supervision of an employer as to the means, manner or method of which the work is to be accomplished including the
result thereof and is paid for the work done in terms of wage.
Covered by the Labor Code
NOTE: Only the Free Artisanship and Wage System of Labor are recognized in the Philippines.
Aim or justification:SOCIAL JUSTICE those who have less in life should have more in law.
Article II, sec. 10 of the constitution
The state shall promote social justice in all phases of national development.
The state affirms labor as a primary social economic force. Therefore, it shall protect the rights of workers and promote their welfare.
THREE FIELDS OF LABOR LAW (S-R-S)
Labor Standards Law

Sets out the minimum terms, conditions, and benefits of employment that employers must provide or comply with
and to which workers are entitled as a matter of legal right;
The minimum requirements prescribed by existing laws, rules and regulations and other issuances relating to wages, hours
of work, cost of living allowances and other monetary and welfare benefits, including those set by occupational safety and
health hazards. (Section 7, Rule I, Rules on the Disposition of Labor Standards Cases September 16, 1987)
Example: wages and hours of work, on safety and health of employees, employment benefits, overtime pay
Labor Relations Law

Defines the status, rights, duties, as well as the institutional mechanism that govern the individual and collective interactions between
employers, employees, and their representatives
Refers to the interactions between the employers and employees or their representatives and the mechanism by which the
employment standards are negotiated, adjusted and enforced.
Marquez: process the terms, benefits and conditions to improve the same through collective bargaining or negotiation.
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Example: unionization, negotiation, dispute settlements

Distinction: Labor standards Law is the material or substance of labor law;Labor Relations Law is the mechanism or the
processes on enforcing the substance.
Labor Legislation or Social or Welfare Legislation

Law governing the employer-employee relation while the latter is not at work due to the hazard arising from employment.
Refers to a broader category of law that protects or promotes the welfare of society or segments of it in furtherance of
social justice.
Intended to substitute income
Example: Social Security Law, Agrarian Reform Law, Law on Migrant Workers, or more recently, the New Tax Relief Law
minimum wage earners are exempted from income tax law
Distinction between Labor Standards and Social Legislation: In LS, the employee is actually at work; In SL, the employee is not at work
or is unable to work.
OMNIBUS RULES AS AMENDED
Have the force and effect of laws. Provided, however, that these rules and issuances will not expand the law or strip the law. Otherwise,
under the rules on statutory construction, these will be considered void.
The DOLE is the lead agency in enforcing labor laws and it possesses rule-making power in the enforcement of the Code.
But a rule or regulation that exceeds the departments rule-making authority is void. The rule-making power is exceeded when
the implementing rule changes, wittingly or unwittingly, the content or meaning of the law which the rule aims to implement. The
implementing rule, on other words, must be subordinate to the law itself.
Example: Policy Instruction No. 54-88 (issued by former Sec. Franklin Drilon) has been declared void by the Supreme Court
because this has expanded Art. 83 of the Labor Code on Employment of Health Personnel by erroneously interpreting that health
employees are entitled to a full weekly wage for 7 days if they have completed the 40-hour/5-day workweek.
SUPREME COURT DECISIONS
A8NCC: Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.
NOTE: Decisions of administrative bodies like the NLRC do not form part of the legal system of the Philippines. Only SC decisions set
legal precedents.
BASIS OF ENACTING LABOR LAWS (P-S-P-D)

POLICE POWER
Inherent power of the state to enact legislations that may interfere with personal liberty or property in order to promote the general welfare
of the people (General Welfare Clause)
Consists of imposition of restraint upon liberty or property and in order to foster the common good.
General welfare clause deemed written into the employment contract.
Power to regulate personal liberty or property rights.
Labor Code contains several provisions that affect life and property.
NOTE: Having a job is a property right
Example:
Article 263 LC: (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the
national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the
Commission for compulsory arbitration
Reason: SOLE may compel the employer to admit the employees and the employees to return to their work.
SOCIAL JUSTICE
The promotion of the welfare of all the people, the adoption by the government of measures calculated to insure economic stability
of all the component elements of society through the maintenance of proper economic and social equilibrium in the interrelation of
the members of the community, constitutionally through the adoption of measures
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legally justifiable, or extra-constitutionally through the exercise of powers, underlying the exercise of all governments
on the time honored principle of salus populi est suprema lex. (Dr. Jose P. Laurel)
The law is geared towards the concern of labor because our legislators realize that social and economic imbalance between the
employer and employee.
Philippines is a signatory of ILO Convention (International Labor Organization)
UN Declaration of Human Rights
All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations
shall be resolved in favor of labor
Examples: Migrant workers act, retirement law, Art. Xix, sec. 19
PROTECTION TO LABOR CLAUSE

Article XIII, Section 3, 1987 Constitution. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.
Reason: Employer stands in a higher footing than the employee because of economic dependence of the employee on the
employer and the greater supply of labor than the demand of it.
Example: Migrant Workers Act
DOCTRINE OF INCORPORATION
Article II, Section 2, Constitution:The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
Cite at least 5 International Labor Organization (ILO) Conventions:

C87 Freedom of Association and Protection of the Right to Organize to Convention (1948)
C99 Minimum Wage Fixing Machinery Convention (1951)
C105 Abolition of Forced Labor Convention (1957)
C17 Workmens Compensation (1925)
C149 Tripartite Consultation Convention (1976)
LIMITATIONS IN THE ENACTMENT OF LABOR LAWS (P-E-N-D-O)
NON-IMPAIRMENT CLAUSE
Article III, Section 10. No law impairing the obligation of contracts shall be passed.
Congress could not pass laws which would impair the obligations of the parties, however, the same can pass laws to regulate the
obligations and contracts.
May be impaired by the exercise of the state of police power.
EQUAL PROTECTION CLAUSE

Article III, Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.
Individuals similarly situated must be treated equally under the3 law.
Equality among equals
PROHIBITION AGAINST INVOLUNTARY SERVITUDE

Article III, Section 18(2). No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party
shall have been duly convicted. (e.g. anti-trafficking in persons act, forced labor, slavery)
DUE PROCESS CLAUSE

Strike, but hear me first.
SOURCES OF LABOR LAWS - LABOR STANDARDS (R-O-L-J)
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The Labor Code , PD 442 as amended

Judicial decisions
Rules and regulations issued by administrative agencies
Omnibus Rules as amended by DO No. 09, Series of 1997 & DO No. 40-03, Series of 2003, as amended by DO Nos. 40-A-03,
40-B-03, 40-C-05
Rules and regulations have the force and effect of law, provided they do not expand the law or strip the law. Otherwise, under the
rules on statutory construction, these will be considered void.
SOURCES OF LABOR LAWS (LABOR RELATIONS)
PRIMARY (C-S-D)
Constitution
Statutes ( NCC, RPC, Special Laws)
Supreme court decisions
SECONDARY (D-R-O-R)
Decisions of foreign courts (where our labor statutes are based or patterned after statutes in foreign jurisdictions, decisions in
the high courts in those jurisdictions construing and interpreting should receive the careful attention of our courts in the
application of our laws)
Reviewers in labor laws/ textbooks
Opinions of labor department or agencies
Rules and regulations issued by DOLE ( department orders)
NOTE:
Labor laws do not only include PD 442 as amended but as well as decisions of the SC interpreting and applying the laws.
Included as well are rules and regulations issued by the appropriate government agencies (e.g. DOLE)
PROVISIONS ON THE EFFECTIVITY OF LABOR LAWS
A5LC: Rules and regulations. - The Department of Labor and other government agencies charged with the administration and
enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and
regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation.
Publication is indispensable. Rules and regulations are still valid even if no publication, however, it is unenforceable.
A2NCC:Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines, unless it is otherwise provided. (As amended by EO 200).
E.O. 292 Administrative Code of the Philippines
Sec. 18. When Laws Take Effect. - Laws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette
or in a newspaper of general circulation, unless it is otherwise provided.
Sec. 19. Prospectivity. - Laws shall have prospective effect unless the contrary is expressly provided.
Sec. 20. Interpretation of Laws and Administrative Issuances. - In the interpretation of a law or administrative issuance promulgated in all the
official languages, the English text shall control, unless otherwise specifically provided. In case of ambiguity, omission or mistake, the other texts
may be consulted.
Sec. 21. No Implied Revival of Repealed Law.- When a law which expressly repeals a prior law itself repealed, the law first repealed shall not be
thereby revived unless expressly so provided.
Sec. 22. Revival of Law Impliedly Repealed. - When a law which impliedly repeals a prior law is itself repealed, the prior law shall thereby be
revived, unless the repealing law provides otherwise.
Sec. 23. Ignorance of the Law. - Ignorance of the law excuses no one from compliance therewith.
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Will not apply unless the people are informed through the required publication
RULES ON THE IMPLEMENTATION AND INTERPRETATION OF LABOR LAWS
Article 4, LC. All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and
regulations, shall be resolved in favor of labor.
Reason: Employer stands in a higher footing than the employees and the State affirms labor as the primary social economic
force
The policy is to apply the code to a greater number of employees to enable them to avail of the benefits under the law, in line
with the States desire to give maximum aid and protection to labor.
It is not always correct to think that the aim of the law is always to favor labor. The mandate under Art 4 is simply to
resolve doubt, if any, in favor of labor. If there is no doubt in implementing and interpreting the law, labor will enjoy no
built-in advantage and the law will have to be applied as it is.
The law in protecting the rights of the laborer, authorizes neither oppression nor self destruction of the employer.
Court decisions adopt a liberal approach that favors the exercise of labor rights.
Article 1700,NCC. The relation between capital and labor are not merely contractual. They are so impressed with public interest that labor
contracts must yield to the common good. Therefore, such contracts are subject to the special Lawson labor unions, collective bargaining,
strikes and lockouts, closed shop, wages, working conditions, hours of labor, and similar subjects.
Labor disputes also affect the state and the public at large if employees are engaged in strike or other concerted
activities.
PARTIES TO EMPLOYMENT CONTRACT

Employer
Employee
State
Public
Article 1701, NCC. Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public.
(PRINCIPLE OF NON-OPPRESSION)
Article 1702, NCC. In case of doubt, all labor legislationsand all labor contracts shall be construed in favor of the safety and decent living of
the laborer.
LABOR AND CHATTEL
Labor is not a chattel nor a commodity, but human, and must be dealt with from the standpoint of human
interest.(Asufrin vs. San Miguel Corporation, G.R. No. 156658. March 10, 2004)
TRIPARTISM
Tripartism refers to the representation of workers and employers sectors in decision and policy making bodies of the
government. Through tripartism, workers and employers on the one hand, representing their respective interests, and the
government on the other hand, representing the interest of the public, help shape labor, social and economic policies and
programs of the government.
Tripartism is in place in government agencies like the the National Labor Relations Commission (NLRC), Employees
Compensation Commission (ECC), National Wages and Productivity Commission (NWPC), Technical Education and Skill
Development Authority (TESDA), Social Security System (SSS), Government Service Insurance System (GSIS), Philippine
Overseas Employment Administration (POEA), Overseas Workers Welfare Administration (OWWA) and Pag-ibig Home
Development Funds (Pag-ibig).
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Art. 275.Tripartism and tripartite conferences. (a) Tripartism in labor relations is hereby declared a State policy. Towards this end, the State
shall encourage the representation of workers and employers in policy-making bodies of the government.
(b)The Secretary of Labor or his duly authorized representatives may from time to time call a national, regional, or industrial tripartite conference
of representatives of government, workers and employers for the consideration and adoption of voluntary codes of principles designed to
promote industrial peace based on social justice or to align labor movement relations with established priorities in economic and social
development. In calling such conference, the Secretary of Labor may consult with accredited representatives of workers and employers.
Reason: Relations between capital and labor are not merely contractual. They are so impressed with public interest that
representations from employer and employee in decision and policy-making bodies of the government are necessary. This is also
in affirmation of the role of the State as the guardian of the peoples rights and the constitutional provision on protection to
labor.
Examples:
Creation of Regional Tripartite Wages and Productivity Board (RTWPB) which is composed of government, employer and
employee representatives.
Composition of NLRC, chairman is government appointed, remaining 2 commissioners from employer and employee
sectors.
Amendatory decree no. 850 (1975) adopted tripartism as a state policy
Tripartism is a representation of three sectors in policy-making bodies of the government
public or the government
employees
workers
Such kind of representation is not ordained, not even by the Constitution. What is provided for, for the private sector is workers
participation in policy and decision-making processes directly affecting their rights, benefits, and welfare.
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TOPIC 2: BASIC PRINCIPLES

CONSTITUTIONAL AND STATUTORY RIGHTS OF WORKERS IN GENERAL
ART XIII, Section 3, par 1
The state shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and
equality of employment opportunities for all.
IN RELATION TO LABOR STANDARDS (Just-Live-Human/H-J-L)

Humane conditions of work.( ART XIII, Sec 3 par 2)
Living wage.( ART XIII, Sec 3 par 2)
Just share in the fruits of production. .( ART XIII, Sec 3 par 4)
IN RELATION TO LABOR RELATIONS (SupremeCourtPSP/S-C-P-S-

P) (ART XIII, Sec 3 par 2)
Self-organization
Collective bargaining and negotiations
Peaceful concerted activities including the right to strike in accordance with law.
Security of tenure
Participate in policy and decision making processes affecting their rights and benefits as maybe provided by law.
SPECIFIC RIGHTS OF WORKERS IN RELATION TO LABOR STANDARDS

Hours of work
Normal working hours of eight hours a day
Meal and rest period: meal break of less than one hour shall be considered compensable working time
Wage and wage related benefits
Minimum Wage
Holiday Pay one day for every regular holiday even if unworked subject to certain conditions
Premium pay for work within 8 hours on:
Special Rest Day - 30% of the basic daily rate

Rest Day falling on a Special Day - plus 50%
Rest day falling on a Regular Holiday - plus 30% of the 200% of the basic daily rate
Overtime pay
Ordinary days: 25% of the basic hourly rate
Special/rest/holiday: 30% of the regular hourly rate on said days

Night shift differential pay
10% of the basic or regular rate between 10pm and 6am
Service incentive leave
5 days with pay per year after one year of service
Service charges
85 % (distribution to rank and file employees); 15% (losses, breakages, distribution to managerial employees)
Separation pay
month pay for every year of service for authorized causes of separation
13th month pay
1/12 of the total basic salary earned within the calendar year
Payment of wages
Shall be paid in cash, legal tender, ator near the place of work
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May be made through a bank upon written petition of majority of the workers in establishments with 25or more employees and
within one kilometer radius to a bank
Shall be made direct to the employees
Shall be given not less than once every 2 weeks or twice within a month at intervals not exceeding 16 days
Labor-only contracting is prohibited and the person acting as contractor is merely an agent of the employer
Preference of workers money claims over government and other creditors in case of bankruptcy or liquidation of
business
Safe and healthful conditions of work and welfare services

Proper illumination and ventilation, fire exits and extinguishers, occupational health personnel services, family welfare or family
planning services at the workplace)
Employment of Young Workers

Minimum employable age is 15 age
A worker below 15 should be directly under the sole responsibility of parents or guardians; work does not interferewith childs
schooling and normal development
No person below eighteen can be employed in hazardous or deleterious undertaking
Employment of Women
Nightwork prohibition unless allowed by the rules:
o Industrial undertaking from 10 pm to 6 am o
Commercial from 12 mn to 6 am
o Agricultural at nighttime unless given not less than 9 consecutive hours of rest
Welfare facilities must be provided in the workplace
Prohibition against discrimination with respect to pay, promotion, training opportunities, study, and scholarship grants
ECC benefits for work-related contingencies
medical benefits for sickness and injuries
disability benefits
rehabilitation
death and funeral
SSS Benefits
maternity
sickness
disability
retirement
death
SPECIFIC RIGHTS OF WORKERS IN RELATION TO LABOR RELATIONS

Security of tenure
Workers cannot be dismissed without just and authorized causes
Workers shall be made regular after 6 months probation unless a different period is agreed upon by the worker and the employee
Self-organization and collective bargaining

Employees can form organizations such as union and welfare committees An
employee can join a union on the very first day of his employment
Collective Bargaining a contract between workers and employers on terms and conditions of employment which are OVER and
ABOVE those mandated by law
Labor education through seminars, dialogues, and information, education and communication materials
Peaceful concerted activities in accordance with law
Participation and policy and decision-making processes affecting their rights and benefits Free
access to the courts and quasi-judicial bodies and speedy disposition of their cases
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CONCEPT OF EMPLOYER-EMPLOYEE (LABOR STANDARDS)
Art 97b. Employer includes any person directly or indirectly in the interest of an employer in relation to an employee and shall include the
Government and all its branches, subdivision and instrumentalities, all government-owned or controlled corporations and institutions, as well as
non-profit private institutions, or organizations.(expanded definition)
Art 97c. Employee includes any individual employed by an employer.
CONCEPT OF EMPLOYER-EMPLOYEE (LABOR RELATIONS)

Art 212e. Employer includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor
organization or any of its officers or agents except when acting as employer.
Art 212f. Employee includes any person in the employ of the employer. The term shall not be limited to the employees of a particular
employer, unless this code so expressly states. It shall include any individual whose work has ceased as a result of or in connection with any
current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular
employment.(expanded definition)
COMMENTS:
EMPLOYER
May be NATURAL OR JURIDICAL, a single proprietorship, a partnership or a corporation.
The Government is an employer within the meaning of the Labor Code in Labor Standards.
So, a government agency with an original charter contracts with a security agency to supply security guards, and this security
agency is unable to pay the wages of its guards.
Q: Is principal government agency considered jointly and severally liable with the security agency? Will Article 106-109, LC apply
to them? Can the guards file with the labor complaint with the nearest arbitration branch of the NLRC and sue both the security
and government agency?
A: YES, the Labor Code will govern. The government agency cannot move for the dismissal of the complaint for lack of jurisdiction
on the part of the Labor Arbiter and say that they are governed by the Civil Service Law Rules and Regulations. The government
agency contracted the services of an independent contractor, so they are considered principals. Therefore the LC will govern
regarding the monetary claims of the security guards.
A motion to dismiss filed by the government agency in the above-cited example will not prosper on the ground that the Labor
Arbiter has no jurisdiction, because the term Employer includes government agencies. It does not make any qualifications
whether it is one with or without original charter.
EMPLOYEE
An employee is always a NATURAL PERSON [may include Filipino citizens or foreigners
Example: Dumon Sari-sari Store (single proprietorship).
Q: Who is considered the employer?

A: Wilbert Dumon will be the employer, because the sari-sari store does not have a separate juridical personality. So, if Dumon is
made a defendant in a labor case, the caption will be - Employee vs. Wilbert Dumon, doing business under the name and style
of Dumon Sari-sari Store.
Hiring of employees
Foreigners Art. 40-42, PD 442 applies
Filipino- there is none. The Constitution and the Labor Code encourage the employment of Filipinos.
Foreign Investment Code
Of those corporations owned by foreigners, if they want to employ alien as their employees, the
following requirements must be complied with:
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Such domestic or foreign companies should obtain a permit form the DOLE ( Alien Employment Permit) at
the nearest regional office
There must be a determination of the non- availability of a person in the Philippines, who is competent, able,
willing at the time of application to perform the services for which the alien is desired.
The purpose of the law is to protect the Filipinos.
CONCEPT OF EMPLOYER-EMPLOYEE RELATIONSHIP
It is in personam, involves the rendition of personal service by the employee, and partakes of master and servant relationship.
FOUR-FOLD TEST
Selection and engagement of employees
Payment of wages
Power of dismissal
Power of control over employees conduct and over the means and methods by which the work is to be accomplished
Tabas vs. California Mfg Co., GR 80680, 01/26/89

QUESTION OF LAW; QUESTION OF FACT
The existence or absence of employer-employee relationship is A QUESTION OF LAW AND A QUESTION OF FACTS, each in its defined sense.
The character of relationship between the parties is not what they call it in their contract but what the law calls it after examination of the facts.
The characterization by law prevails that in the contract. In this case the existence of employer-employee relationship is not a matter of
stipulation; it is a QUESTION OF LAW.
But the conclusion an employer-employee relationship exists depends upon the facts of each case. In one case an employer-employee
relationship may be found to be present, but in another case with different facts, it may be absent. In this sense, the existence of an employer-
employee relationship is a QUESTION OF FACT.
Philippine Fuji Xerox Corp vs. NLRC, GR 111501, 05/05/96

CORE OR NON-CORE JOBS
Depending on the applicability of the tests of employment, an employer-employee relationship may exist regardless of the nature of the
activities involved. In other words, the kind of work is not the definitive test of whether the worker is an employee or not
Sevilla vs. CA, GR 44182-3, 04/15/88

TITLE AS WEAK INDICATORS
The fact that one had been designated branch manager does not make such person an employee. Titles are weak indicators
Encyclopedia Britannica vs. NLRC, GR 87098, 11/04/96

Where a person who works for another does so more or less at his own pleasure and is not subject to definite hours or conditions of work and
in turn is compensated according to the result of his efforts and not the amount thereof, we should not find that the relationship of employer-
employee exists.
Dy Keh Beng vs. ILMUP, GR 100665, 02/13/95

MERE EXISTENCE, NOT ACTUAL EXERCISE
But it should be borne in mind that the control test calls MERELY FOR THE EXISTENCE of the right to control the manner of doing the work, NOT
THE ACTUAL EXERCISE of the right.
Insular Assurance Co. vs. NLRC, GR 119930, 03/12/98

Exclusivity of service to the company, control of assignments and removal of agents, collection of premiums, furnishing of facilities and
materials as well as capital described as unit development fund are HALLMARKS OF A MANAGEMENT SYSTEM where there can be no escaping
the conclusion that one is an employee of the insurance company.
Investment Planning Corp v. SSS [11/18/67]

CONTROL TEST (most important element)
That is, whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but
also as to the means and methods by which the same is to be accomplished
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Domasig vs. NLRC, GR 118101 09/16/96

EVIDENCE OF EMPLOYMENT; ID, VOUCHERS, SSS REGISTRATION, MEMORANDUM
Substantial evidence is sufficient as a basis for judgment on the existence of employer-employee relationship. No particular form of evidence is
required to prove the existence of such relationship.
Flores vs. Nuestra, GR 66890 04/15/88

That the respondent registered the petitioners with SSS is proof that the latter is the formers employees. The coverage of SSS Law is predicated
on the existence of an employer-employee relationship
In a business establishment, an identification card is usually provided not only as a security measure but mainly to identify the holder thereof as
a bona fide of the firm that issues it. Together with the cash vouchers covering the petitioners salaries for the months stated therein, these
matters constitute substantial evidence adequate to support a conclusion that the petitioner was indeed the employee of the respondent.
Philippine FUJI XEROX CORP vs. NLRC, GR111501 03/05/96

Appointment letters or employment contracts, payrolls, organization charts, personnel lists, as well as testimony of co-employees, may also
serve as evidence of employee status.
Opulencia Ice Plant vs. NLRC, GR 98368 12/1593

ABSENCE OF NAME IN THE PAYROLL; TESTIMONIAL EVIDENCE
If only documentary evidence would be required to show that relationship, no scheming employer would ever be brought before the bar of justice, as
no employer would wish to come out with any trace of the illegality he as authored considering that it should take much weightier proof to invalidate a
written instrument. Thus, as in this case where the employer-employee relationship between petitioners and Esita was sufficiently proved by
testimonial evidence, the absence of time sheet, time record or payroll has become inconsequential.
Labor Congress of the Philippines vs. NLRC, GR 123938 05/21/98

MODE OF COMPENSATION NOT A TEST OF EMPLOYMENT STATUS.
The presence or absence of employer-employee relationship is not determined by the basis of the employees compensation. Indeed,
employment relationship is one thing, pay determination is another. The existence of employment relationship depends on whether the four-
fold test is present or not.
Zamudio vs. NLRC, GR 76723 03/25/90

ON PAKIAO BASIS
The nature of their employment i.e pakiao basis, does not make petitioners independent contractors. Pakiao workers are considered
employees as long as the employer exercises control over the means by which such workers are to perform their work. Considering that the
petitioners did their work inside private respondents farm, the latter necessarily exercised control over the work performed by petitioners.
The seasonal nature of petitioners work does not detract from the conclusion that employer-employee relationship exists. Seasonal workers
whose work is not merely for the duration of the season, but who are rehired every working season are considered regular employees.
Q: Why is it important to determine whether the relationship between the parties is that of employer and employee or that of
principal and independent contractor or of principal-agent?
A: To determine what laws will govern the rights and liabilities of the parties, and what tribunal will have jurisdiction over their
disputes.
RelationshIp Governing Tribunal

Laws
Employer- Labor laws Labor
Employee tribunal
Principal- obligations and Regular
Independe nt Contracts [CC] courts
Contractor
Principal- Civil Code Regular

Agent courts
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ECONOMIC REALITY TEST
Francisco v. NLRC, G.R. No. 170087; August 31, 2006

TWO-TIERED APPROACH
The better approach would be to adopt a TWO-TIERED TEST involving (1) the putative employers power to control the employee with respect
to the means and methods by which the work is to be accomplished and (2) the underlying economic realities of the activity or relationship.
This two-tiered test would provide us with a framework of analysis, which would take into consideration the totality of circumstances
surrounding the true relationship between the parties.
This is especially APPROPRIATE in this case where there is no written agreement or terms of reference to base the relationship on; and due to the
complexities of the relationship based on the various positions and responsibilities given to the worker over the period of the latters
employment.
The determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity. The
PROPER STANDARD OF ECONOMIC DEPENDENCE is whether the worker is dependent on the alleged employer for his continued employment in
that line of business.
Under the broader ECONOMIC REALITY TEST, the petitioner can likewise be said to be an employee of respondent corporation because she had
served the company for six years before her dismissal, receiving check vouchers indicating her salaries/ benefits, 13th month pay, bonuses and
allowances as well as deductions and SSS contributions. It is therefore apparent that petitioner is economically dependent on respondent for her
continued employment in the latters line of business.
Q: How to determine that a person is economically dependent?

A:
Number of years in the company
Reported to SSS, good indicator of treating him as an employee.
Registered in the payroll
Identification card
Company uniform
Determine the underlying economic realities of the activity or relationships.
The determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity
The (broad) extent to which the services performed are an integral part of the employers business.
The (limited) extent of the workers investment in the equipment and facilities
The nature (close supervision) and (high) degree of control exercised by the employer
The workers (limited) opportunities for profit and loss
The (small) amount of initiative, skill, judgment or foresight required for the success of the claimed independent
enterprise
The (high degree of) permanency and duration of the relationship between the worker and the employer
The degree of dependency of the worker upon the employer for his continued employment in that line of business.
Note:Unlike employee, independent contractor does not solely depend on the company for continued work as they can pursue
other jobs.
EMPLOYER-EMPLOYEE VS. PRINCIPAL-AGENT
ER-EE governed by the Labor Code

Principal-Agent Civil Code
AGENT (Art. 1868, NCC). By the contract of agency, a person binds himself to render some service or to do something
in representation or on behalf of another with the consent or authority of the latter.
PRINCIPAL-AGENT RELATIONSHIP
Art 1868 NCC:By the contract of agency, a person binds himself to render some service or to do something in representation or on
behalf of another, with the consent or authority of the latter.
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It is the principal who selects the agent. An agent is compensated under the contract of agency of services rendered. He is
disciplined by the principal as in the case of an employee because the agent is under the authority of the principal. The principal
controls the means and methods of the work of an agent. In this relationship, there is only one party. The agent is merely an
extension of the principal. They are regarded as one. So if there is a contractor relationship, it is not among three parties but is
between the principal/agent and the other party.
Thus, to make a distinction between a principal-agent and employer-employee, the four-fold test will not be used because the
agent is selected by the principal and is also compensated by the principal and most oftentimes, the principal substitutes his own
judgment for that of the agent.
Note: To make a distinction between a principal-agent relationship and that of an employer-employee relationship, the four-fold
test will not be used because the 1) agent is selected by the principal 2) compensated by the principal 3) and most oftentimes,
the principal also substitutes his own judgment for that of the agent.
EMPLOYER-EMPLOYEE VS. PRINCIPAL-CONTRACTOR (DO NO. 9)
Carries a distinct and independent business and undertakes to perform the job, work, or service on its own account and under its
own responsibility, according to its own manner and method and free from the control and direction of the principal in all
matters connected with the performance of the work except as to the results thereof.
PRINCIPAL-INDEPENDENT CONTRACTOR RELATIONSHIP
The principal selects the contractor. The contractor is compensated for services rendered. The contractor is not under the
discipline of the principal. The distinction says that aside from engaging in the business separately distinct from the principal, the
performed job, work, or services is according to his own means and methods free from the control and direction of the principal
except as to the results thereof.
The definition says that aside from engaging in a business separately distinct from the principal, to perform job, work or service,
according to his own means and methods, free from control and direction of the principal except as to the results thereof
Contractor may be Individual, Corporate Juridical Entity no need of protection from labor code because they earn better.
ARTICLE 1713, NCC
By contract for a piece of work, the contractor binds himself to execute a piece of work for the
employer, in consideration of a certain price or consideration. The contractor may either employ only his labor,
skill, or also furnishes the materials.
CHIEF CHARACTERISTICS OF AN EMPLOYEE
Economic Dependence by the Worker

Employee cannot bargain the terms and conditions of employment.
Medical doctors, lawyers, dentists, engineers in the exercise of their profession offer special services, the person engaging their
services cannot exercise control over the means and methods of accomplishing the work except the results thereof. They are
considered as independent contractors not needing protection from the Labor Code.
Subordination in Work Relation

Employer exercises control not only the means and methods but also the results thereof.
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TOPIC 3: RIGHT TO SECURITY OF TENURE
Security of Tenure is the right of the employee to continue work until terminated for a just or authorized cause (as provided by
law).
CONSTITUTIONAL BASIS (Art. 13, Sec. 3, 1987 Constitution)
The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of
employment opportunities for all.
It shall guarantee the rights of all workers to self-organizations, and peaceful concerted activities, including the right to strike in accordance
with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-
making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes
in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the
right of enterprises to reasonable returns on investments, and to expansion and growth.
STATUTORY BASIS
ARTICLE 279.Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority
rights and to his backwages computed from the time his compensation was withheld from him up to time of his actual reinstatement. (As amended by
RA 6715)
MARQUEZ: Although Art. 279 starts with In cases of regular employment xxx, jurisprudence will show that security of tenure is
guaranteed not only to regular employees, non-regular employees also enjoy security of tenure, but only to a limited sense.
CLASSIFICATION OF EMPLOYMENT AND KINDS OF EMPLOYEES

ART. 280. Regular and casual employment. - The provisions of written agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or
service to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least
one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is
employed and his employment shall continue while such activity exists.
ART. 281. Probationary employment. - Probationary employment shall not exceed six (6) months from the date the employee started working, unless
it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis
may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the
employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a
regular employee.
MARQUEZ: Do not forget that Art. 280 is NOT the yardstick in determining employer-employee relationship. What is controlling is the
four-fold test and (now) the economic reality test. Art. 280 applies only when the existence of employer-employee relationship is not
in dispute.
REGULAR EMPLOYMENT
An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer.
A Regular Employee may either be

Permanent one who has an indefinite employment, whether passing the probationary stage or not
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Probationary one who is placed in a trial period whose performance is assessed whether satisfactory or not. If
performance is satisfactory, it is followed by a regular employment, if not, the employment is terminated; One who is
on tentative employment during which the employer determines whether he (employee) is qualified for permanent
employment.
i. LC provides that the duration of probation is 6 months. The exceptions are the following (a) xxx unless it
is covered by an apprenticeship agreement stipulating a longer period and (b) the Manual of Regulations
for Private School provides a longer probationary period.
Rationale by MARQUEZ: Education is the grass root of all profession.
Security of tenure is still available to probationary employees, but only for a limited period.
An employer has the prerogative whether to subject the employee with probationary employment or not. Thus, an employee may be considered
as a permanent employee on his first day of work.
Examples of Regular Employees:

Usually necessary: ex. teller of a bank; machine operator of a manufacturing company
Usually Desirable: Janitor, gardener, fireman of a garment factory (Guarin vs NLRC); dispatcher, driver, mechanic of a taxi business;
traffic operator of a telephone company (PLDT vs Montemayor); Gardener, dishwasher of a recreational center or gold club (Baguio vs
NLRC)
Employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular
employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.
i.e., A is engaged as a carpenter in a bank (casual since not usually necessary). A continued to do carpentry works for 1 year so he
becomes a regular employee BUT ONLY with respect to the activity which he is engaged and as such after the completion of the
project, his employment also ceased.
2 Kinds of Regular Employees:

By their nature of work usually necessary or desirable to the trade of the employee
Ex: airline: pilot, maintenance crew, attendants; meter reader; Fast food Chain: service crew, dishwasher employed on day-to-day basis but worked
for ten months,
By the Length of Service those who rendered at least 1 year of service either continuous or broken Ex: Painter
working at La Tondena for more than 1 year
ART. 280 applies where the existence of the employer employee relationship is not contested and It is not a yardstick for determining
the existence of an employment relationship because it merely distinguishes between the 2 kinds of employees-regular and casual for
the purpose of determining the right of an employee to certain benefits, to join or form a union, or to security of tenure.
TEST/STANDARD: to determine a regular employment is the reasonable connection between the particular activity performed by the
employee in relation to the employer; has to be whether the former is usually necessary or desirable to the usual business of the
employer; nature of job and not the contract
BASIC RULE: You CANNOT convert regular employment to another type BUT you can place a regular employee under probation with
the intent to make him permanent
As to security of tenure, regular employee enjoys security of tenure indefinitely. He cannot be removed unless for a just or authorized cause.
While a probationary employee enjoys limited security of tenure only for the period of probation.
Rule is parties are prohibited to stipulate that employee is other than regular if a worker performs job that is necessary and desirable to the
business notwithstanding the written provisions to the contrary.
Exception to the rule above (even though you are performing work that is necessary and desirable to the business of the employer, you are NOT
considered holding regular employment):
Project employee
Seasonal employee
SOME PRINCIPLES OF CASES TO BE REMEMBERED:
Repeated rehiring of a job for a fixed period and the continuing need for his service are sufficient evidence of the necessity and
indispensability of an EEs service to ERs business or trade.
Regular jobs may be contracted out as long as it is (1) done in good faith (2) exigencies of the business.
The primacy standard to determine a regular employment is the reasonable connection between the particular activity
performed by the employee in relation to the business or trade of the employer
(casual to regular) The law does not provide the qualification at the employee must first be issued a regular appointment or
must be declared as such before he can acquire a regular employment status
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PROBATIONARY EMPLOYMENT
GENERAL RULE: employment shall not exceed six months from the date the employee started working
EXCEPTIONS:
where the work for which the employee has been engaged is learnable or apprenticeable in accordance with the standards
prescribed by the DOLE, the period of which shall be limited to the authorized learnership or apprenticeship period
whichever is applicable; - Job may be highly technical which requires longer then 6 months
When it involves academic personnel or those in the teaching/non teaching service
REASON: Sec. 92 of the Manual of Regulation of Private Schools provide for the probation period and it governs academic personnels
Elementary Secondary: not more than 3 consecutive years of satisfactory service

Tertiary: not more than 6 consecutive semesters of satisfactory service
Trimester: not more than 9 consecutive semesters of satisfactory service
May a probationary employment be extended?

General Rule
You CANNOT AGREE TO HAVE PROBATIONARY EMPLOYMENT BEYOND 6MONTHS
Exception
In Mariwasa Manufacturing, Inc. vs. Leogardo (G.R. No 74246, 26 January 1989), the Supreme Court stated that the extension of the
probationary period was ex gratia, an act of liberality on the part of the employer affording the employee a second chance to make
good after having initially failed to prove his worth as an employee. Such an act cannot unjustly be turned against said employers
account to compel it to keep on its payroll one who could not perform according to its work standards. By voluntarily agreeing to an
extension of the probationary period, the employee in effect waived any benefit attaching to the completion of said period if he still
failed to make the grade during the period of extension.
Period of probation is for the benefit of both the employer and employee that is why it cannot be extended or shortened unilaterally. Consent
must be taken. If it was shortened it will prejudice the employee.
Probationary employee becomes regular after the lapse of 6 months except the exceptions; contracts cannot override the mandate of
law; they become regular employees by operation of the law; ex. not required that employee be issued a regular appointment or must
first be declared as such to attain regular status
It is within the exercise of ERs right to select his employees that ER may set or fix a probationary period within which the latter may test and
observe the conduct of the former before hiring them permanently
It must have been expressly agreed upon, if there is no such explicit agreement, the employment is considered regular
If an employee hired allegedly on probationary basis was not informed of the standards that should qualify her as a regular employee, the
employee is deemed to have been hired from day one as a regular employee
Shall Not Exceed six months means that law provides it merely as a ceiling and that the probationary period can be shorter (Central Negros
Electric Corp vs NLRC)employer determines initially
Probation period within which the FITNESS and the QUALIFICATION of the employees are tested
Applying Article 13 of the Civil Code, the probationary period of six (6) months consists of one hundred eighty (180) days. This is
in conformity with paragraph one, Article 13 of the Civil Code, which provides that the months which are not designated by their
names shall be understood as consisting of thirty (30) days each. The number of months in the probationary period, six (6),
should then be multiplied by the number of days within a month, thirty (30); hence, the period of one hundred eighty (180) days.
(Mitsubishi Motors Phls vs. Chrsyler Phls Labor Union)
Start counting 6 months from day one started working unless the contract provide otherwise bec. That will be the start of the assessment.
Important bec. It will be basis when you become regular. Significance: regular has security of tenure while probationary no security of tenure;
benefits given by employer
PROBATIONARY EMPLOYEE IS A REGULAR EMPLOYEE (Art. 280)
Termination of Probationary Employees

The services of an employee who has been engaged on probationary basis may be terminated only for a just or authorized cause,
when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer; means they
have limited tenure and he cannot be removed except for cause during the period of his probation and such cause is provided by law
If unsatisfactory employer has option NOT to hire or to terminate
If satisfactory made regular since it is not an option to terminate unless there is a just or authorized cause
Reasonable standards:
Work initiative
Quality of Work
Discipline
LIMITATIONS TO TERMINATION OF PROBATIONARY EMPLOYEE:
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It must be exercised in accordance with specific requirements of the contract;

If a particular time is prescribed, the termination must be within such time and if formal notice is required, then that form must be used;
the employers dissatisfaction must be real and in good faith, not feigned so as to circumvent the contract or the law
there must be no unlawful discrimination (Manila Hotel Corp vs. NLRC)
INSTANCES WHERE PROBATIONARY EMPLOYEE BECOMES REGULAR:

Probationary employee allowed to continue to work beyond the probationary period.
Employee is NOT informed of the standards required to qualify as regular employee.
Clarion Printing: The hiring of probationary but not informed of the standards: regular since day started working
Employee successfully passes the period of probation
Reason for probation: in order to afford the employer an opportunity to observe the fitness of the probationary employee while at
work and to ascertain where he will become a proper and efficient employee. Probation implies the purpose of term or period and
not the length (International Catholic Commission vs NLRC)
NO successive probations allowed otherwise it would circumvent right to security of tenure

WHEN PROBATION IS PERMISSIBLE
When the work requires special qualifications, skills, training or experience

When the work, job, or position involved is permanent, regular, stable or indefinite, and not merely casual or intermittent When
the work is not intended to circumvent the employees right to security of tenure
When it is necessary or customary for the position or job involved
Peremptorily terminating probationary contract before end considered illegal in 2003 Cebu Marine Beach Resort as fixing of
probation is for the benefit of both parties; see 2005 Mauricio involving valid termination of probationary bank employee who despite
several reminders failed to submit reemployment requirements
CASUAL EMPLOYMENT
An employment shall be deemed to be casual if it is not covered by the preceding paragraph (regular employment); does not have
security of tenure before reaching the one-year period, however, if he has rendered at least one year of service, whether such service
is continuous or broken, he shall be considered a regular employee with respect to the activity in which he is employed and his
employment shall continue while such activity exists. (Art. 280)
Definition:
Where an employee is engaged to perform a job, work or service which is merely incidental to the business of the
employer, and such job, work or service is for a definite period made known to the employee at the time of the
engagement; Sec.5 (b) Rule I Book V
(IRR def) employee engaged to perform a job, work or service which is merely incidental to the business of the
employer, and such job, work or service is for a definite period made known to the employee at the time of the
engagement; provided, that any employee who has rendered at least one year of service, whether such service is
continuous or not, shall be considered a regular employee with respect to the activity in which he is employed
and his employment shall continue while such activity exists
Art 280 stating that an employee who has rendered at least 1 year shall be considered a regular employee, pertains to
causal employees only and not to project or seasonal employees
Casual employment if:

employed to perform work merely incidental to the business of the employer; ex. janitor in a bank; cutter of cogon grass in a
cultured milk company
employment is for a definite period (usually short duration or less than a year)
employment status made known to him at the time of the engagement
If he works for more than a year, he is deemed a regular employee. Continuous or broken he is still considered a regular
employee after 1 year. But only with respect to the activity he is employed and as long as the activity continues to exist.
Being a regular casual is coterminous to the existence of activity after which it may be terminated by operation of law.
The continuous or broken period of 1 year includes authorized absence.
No security of tenure bec.it applies only to regular worker.
Termination of Service once service has been performed ex. painting of a classroom
Pier 8 Arrastre and Stevedoring Services Inc. vs. Boclot
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A casual employee who has not worked for 1 year, whether continuous or broken; Not Regular Employee
PASSI is engaged in providing stevedoring and arrastre services in the port area in Manila. Stevedoring, dock and arrastre operations include, but are
not limited to, the opening and closing of a vessels hatches; discharging of cargoes from ship to truck or dock, lighters and barges, and vice-versa;
movement of cargoes inside vessels, warehouses, terminals and docks; and other related work. In line with this, petitioners hire stevedores who assist
in the loading and unloading of cargoes to and from the vessels.
Petitioners concede that whenever respondent worked as a reliever stevedore due to the absence of a regular stevedore, he performed tasks that are
usually necessary and desirable to their business. Petitioners, however, contend that this in itself does not make him a regular stevedore, postulating
that the hiring of respondent as a reliever is akin to a situation in which a worker goes on vacation leave, sick leave, maternity leave or paternity leave;
and the employer is constrained to hire another worker from outside the establishment to ensure the smooth flow of its operations.
Based on the circumstances of the instant case, this Court agrees. It takes judicial notice that it is an industry practice in port services to hire reliever
stevedores in order to ensure smooth-flowing 24-hour stevedoring and arrastre operations in the port area. No doubt, serving as a stevedore,
respondent performs tasks necessary or desirable to the usual business of petitioners. However, it should be deemed part of the nature of his work that
he can only work as a stevedore in the absence of the employee regularly employed for the very same function. Bearing in mind that respondent
performed services from September 1999 until June 2003 for a period of only 228.5 days in 36 months, or roughly an average of 6.34 days a month;
while a regular stevedore working for petitioners, on the other hand, renders service for an average of 16 days a month, demonstrates that respondents
employment is subject to the availability of work, depending on the absences of the regular stevedores. Moreover, respondent does not contest that he
was well aware that he would only be given work when there are absent or unavailable employees. Respondent also does not allege, nor is there any
showing, that he was disallowed or prevented from offering his services to other cargo handlers in the other piers at the North Harbor other than
petitioners. As aforestated, the situation of respondent is akin to that of a seasonal or project or term employee, albeit on a daily basis.
Anent petitioners contention that respondent is neither a probationary nor a casual employee, this Court again refers to Article 280 of the Labor
Code.
The second paragraph thereof stipulates in unequivocal terms that all other employees who do not fall under the definitions in the first paragraph of
regular, project and seasonal employees, are deemed casual employees. Not qualifying under any of the kinds of employees covered by the first
paragraph of Article 280 of the Labor Code, then respondent is a casual employee under the second paragraph of the same provision.
The same provision, however, provides that a casual employee can be considered as regular employee if said casual employee has rendered at least
one year of service regardless of the fact that such service may be continuous or broken. Section 3, Rule V, Book II of the Implementing Rules and
Regulations of the Labor Code clearly defines the term at least one year of service to mean service within 12 months, whether continuous or broken,
reckoned from the date the employee started working, including authorized absences and paid regular holidays, unless the working days in the
establishment as a matter of practice or policy, or that provided in the employment contract, is less than 12 months, in which case said period shall be
considered one year. If the employee has been performing the job for at least one year, even if the performance is not continuous or merely
intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity, if not indispensability, of
that activity to the business of the employer. Applying the foregoing, respondent, who has performed actual stevedoring services for petitioners only
for an accumulated period of 228.5 days does not fall under the classification of a casual turned regular employee after rendering at least one year of
service, whether continuous or intermittent.
OTHER CLASSIFICATION (SPECIAL LAWS)
CONSTRUCTION INDUSTRY
Project
Non-Project
b.1. probationary
b.2. regular
b.3. casual
Department Order No. 19, Series of 1993

GUIDELINES GOVERNING THE EMPLOYMENT OF WORKERS IN THE CONSTRUCTION INDUSTRY
Section 1. Coverage
This issuance shall apply to all operations and undertakings in the construction industry and its subdivisions, namely: general building construction,
general engineering construction and special trade construction, based on the classification code of the Philippine Construction Accreditation Board of
the Construction Industry Authority of the Philippines; to companies and entities involved in demolition works; and to those falling within the
construction industry as determined by the Secretary of Labor and Employment.
Section 2. Employment Status

Classification of employees. The employees in the construction industry are generally categorized as a) project employee and b) non-project
employees. Project employees are those employed in connection with a particular construction project or phase thereof and whose
employment is co-terminus with each project or phase of the project to which they are assigned.
Non-project employees, on the other hand, are those employed without reference to any particular construction project or phase of a
project.
Indicators of project employment. Either one or more of the following circumstances, among others, may be considered as indicators that an
employee is a project employee.
The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable.
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Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the
employee at the time of hiring.
The work/service performed by the employee is in connection with the particular project/undertaking for which he is engaged.
The employee, while not employed and awaiting engagement, is free to offer his services to any other employer.
The termination of his employment in the particular project/undertaking is reported to the Department of Labor and Employment
(DOLE) Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the
prescribed form on employees terminations/dismissals/suspensions.
An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most
construction companies
Project completion and rehiring of workers.
The employees of a particular project are not separated from work at the same time. Some phases of the project are completed ahead
of others. For this reason, the completion of a phase of the project is considered the completion of the project for an employee
employed in such phase. Meanwhile, those employed in a particular phase of a construction project are also not separated at the same
time. Normally, less and less employees are required as the phase draws closer to completion..
Upon completion of the project or a phase thereof, the project employee may be rehired for another undertaking provided, however,
that such rehiring conforms with the provisions of law and this issuance. In such case, the last day of service with the employer in the
preceding project should be indicated in the employment
Types of non-project employees. Generally there are three (3) types of non-project employees: first, probationary employees; second, regular
employees; and third, casual employees.
Probationary employees are those who, upon the completion of the probationary period, are entitled to regularization. Upon their
engagement, probationary employees should be informed of the reasonable standards under which they will qualify as regular
employees.
Casual employees are those employed to perform work not related to the main line of business of the Employer. Casual employees
who are employed for at least one year, whether continuous or broken, shall be considered regular with respect to the activity in which
they are employed and their employment shall continue for as long as such activity exists, unless the employment is terminated sooner
by the employer for a just or authorized cause, or voluntarily by the employee.
Policy Instruction NO. 20 required the employer to report to the nearest Public Employment Office the fact of termination of a project as a
result of the completion of the project or any phase thereof in which he is employed.
DO No. 19., s. 1993 does not totally dispense with the notice requirement but, instead, makes provisions therefor and considers it one of the
indicators that the worker is a project employee as found in Sec. 2.2(d) of DO 19
Goma vs. Pamplona Plantation Incorporated, G.R. No. 160905, July 4, 2008
Failure To Report To The DOLE The Completion Of The Project Ad Required By DOLE D.O. No. 19 Is Indicative That Employee Is Regular
And Not Project
The principal test used to determine whether employees are project employees as distinguished from regular employees, is whether or not the
employees were assigned to carry out a specific project or undertaking, the duration or scope of which was specified at the time the employees were
engaged for that project. In this case, apart from respondents bare allegation that petitioner was a project employee, it had not shown that petitioner
was informed that he would be assigned to a specific project or undertaking. Neither was it established that he was informed of the duration and
scope of such project or undertaking at the time of his engagement.
Most important of all, based on the records, respondent did not report the termination of petitioners supposed project employment to the
Department of Labor and Employment (DOLE). Department Order No. 19 (as well as the old Policy Instructions No. 20) requires employers to submit a
report of an employees termination to the nearest public employment office every time the employment is terminated due to a completion of a
project. Respondents failure to file termination reports, particularly on the cessation of petitioners employment, was an indication that the petitioner
was not a project but a regular employee.
IN PRIVATE EDUCATIONAL INSTITUTIONS
CHED Memorandum Circular No. 40, s. 2008

Section 39. The Other Institution Officials, Academic Support and Non-Academic Personnel. The officers, including academic personnel, who are
occupying supervisory positions involved in the implementation of the policies of the institution, are classified as other institution officials.
Those who perform certain prescribed academic functions directly supportive of teaching, such as registrars, librarians, guidance councilors,
researchers, and others performing similar functions including institution officials responsible for academic matters and affairs shall be considered
academic support personnel.
The non- academic personnel of an institution shall comprise the rank-and-file employees of the institution engaged in the administrative functions
and maintenance of the insitution, but are not classified under the foregoing paragraphs.
As simply classified by Marquez:
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Academic Personnel a.1.

Academic teaching
a.2. Academic non-teaching (academic support personnel) (ex. The librarian)
Non-Academic Personnel those staff who perform administrative functions but are not involved in academic work
Their employment is NOT covered by the MRPS or by the TVET Manual but by the Labor Code.
LEGAL REQUISITES FOR A TEACHER TO BE PERMANENT
Teacher is a full time teacher

Full time Teacher: (2010 Revised Manual of Regulations for Private Schools in Basic Education. Full time and Part Time
Faculty.)
Section 66. Full-Time and Part-Time School Employment. As a general rule, all private schools shall employ full-time school personnel. An
applicant shall be eligible for a full-time employment in a private school whenever he has the minimum qualifications prescribed in this
Manual, has no other remunerative employment requiring regular working hours elsewhere, and whose services to the extent of at least
eight hours during each working day are available during the entire time the school operates.
A FULL TIME academic personnel or technology teacher is one who meets all the following requirements:
Possesses at least the minimum academic qualification prescribed by the authority under this Manual for all academic
and technology personnel;
Paid monthly or hourly, based on the regular teaching loads as provided for in the policies, rules and standards of the
authority of said school;
Total working day of not more than 8 hours a day is devoted to the school
no other remunerative occupation elsewhere requiring regular hours of work that will conflict with the working hours
in the school;
Not teaching full-time in any other educational institution
All teaching personnel who do not meet the foregoing qualifications are considered part time.
Teacher must have rendered three consecutive years of service

Such service must have been satisfactory (UST vs NLRC)
CASE: Lacuesta vs Ateneo: Court held that based on the above rules, the 3 semesters served as part time lecturer could not
be credited to her computing the number of years she has served to qualify her permanent status.
La Cuesta vs ADMU
A part-time teacher cannot acquire permanent status. Only when one has served as a full-time teacher can he acquire permanent or regular
status. The petitioner was a part-time lecturer before she was appointed as a full-time instructor on probation. As a part-time lecturer, her
employment as such had ended when her contract expired. Thus, the three semesters she served as part-time lecturer could not be credited to
her. Completing the probation period does not automatically qualify her to become a permanent employee of the university. Petitioner could
only qualify to become a permanent employee upon fulfilling the reasonable standards for permanent employment as faculty member.
Consistent with academic freedom and constitutional autonomy, an institution of higher learning has the prerogative to provide standards for its
teachers and determine whether these standards have been met. At the end of the probation period, the decision to re-hire an employee on
probation, belongs to the university as the employer alone. Probationary employees enjoy security of tenure, but only within the period of
probation.
PROBATIONARY PERIOD FOR ACADEMIC PERSONNEL

2010 Revised Manual of Regulations for Private Schools
Section 63. Probationary Period; Regular or Permanent Status. A probationary period of not more than three years in the case of the school
teaching personnel and not more than six months for non-teaching personnel shall be required for employment in all private schools. A school
personnel who has successfully undergone the probationary period herein specified and who is fully qualified under the existing rules and
standards of the school shall be considered permanent.
IN HOSPITALS
Q: Are Resident Physicians considered employees of hospitals?

A: MARQUEZ: It depends. If undergoing training, he is NOT an employee of the hospital. If not undergoing training, he is an
employee, but only on a term basis.
BASIS:
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Omnibus Rules, Book III, Rule X, Sec.15

Residents in training. There is employer-employee relationship between resident physicians and the training hospitals, UNLESS
there is a training agreement between them and

the training program is duly accredited or approved by the appropriate government agency. Xxx
EXCEPTIONS TO REGULAR EMPLOYMENT
IN THE LABOR CODE

Seasonal Employment
Project Employment
Casual Employment
JURISPRUDENCE (Brent School vs. Zamora, February 9, 1990)

Fixed Term/Period Employment an employment that will last only for a definite period, as agreed by the parties. This kind of
employment is not per se illegal or against public policy, even if this kind of employment is not mentioned in Art. 280 of the
Code. Such kind of employment contract may be justified in the Civil Code.
MARQUEZ: Art. 280 does not prohibit agreements voluntarily agreed upon by the employer AND employee, provided that it is
not used to circumvent the right of security of tenure.
He still enjoys security of tenure during the limited time of his employment
The indispensability or desirability of the activity performed by the employee will not preclude the parties
from entering into an otherwise valid fixed term employment agreement; a definite period of employment
does not essentially contradict the nature of the employees duties
PROJECT EMPLOYMENT
One where the employment has been fixed for a specific project or undertaking, the completion or termination of which has been
determined at the time of the engagement of the employee
Elements:
where employment has been fixed for a specific project or undertaking
the completion or termination of which has been determined at the time of the engagement of the employee; Note: if one
element is absent, your employment is not project employment but may be a regular employment
Specific Project/Underdaking: an activity which was NOT commonly or habitually performed or such type of work which is not done
on a daily basis, but only for a specific duration of time until the completion of the project.
Services of project employees are coterminous with the project and may be terminated upon the end or completion of that project
for which they were hired; as compared to regular employees who are legally entitled to remain in service of their employer until
their services are terminated by one or another of the recognized modes of termination of service. At the end of the project, project
employees employment is deemed terminated or ended by operation of the law. (Does a Project employee have security of tenure?)
Length of service of project employee is NOT the controlling test of tenure since the provision on Art 280 that an employee who has
served for at least 1 year shall be considered as a regular employee relates to casual employees and NOT project employees.
NO SUCH THING AS PROBATIONARY PROJECT EMPLOYEE.
TEST: Whether or not the project employees were assigned to carry out a specific project or undertaking, the duration and scope of
which were specified at the time the employees were engaged for the project; there has to be a PREDETERMINATION of the
DURATION OR PERIOD of project employment;
Illustration:
ER hired EE as a fastfood crew and 3 days later after work, ER gives EE a contract as a fixed term employee. HELD: contract NOT
VALID because EE was already a regular employee at onset
Same situation but ER offered 2 months probation. HELD: Not valid since the employee must be informed of the trial period from
the time of his engagement
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Project employees may or may not be members of a work pool since a work pool may either be a project or a regular
employee
Project employees are not entitled to separation pay except if the projects they are working on have not yet been
completed when their services are terminated.
Employer must report to the regional office of DOLE the termination of the project employee or the completion of the
project. If NOT reported, it does NOT mean that he is NOT a project employee but it is a badge of regular employment, that
is NOT conclusive.
Completion of Project Not valid reason to separate a project employee who has become regular
Computing the backwages of project employee who has become regular; the NO Work NO Pay Principle applies
CIRCUMSTANCES THAT MAKE PROJECT EE REGULAR

When there is a continuous rehiring of project employees even after the cessation of a project;
When the task performed by the alleged project employee are vital, necessary and indispensable to the usual business or trade
of the employer
Cosmos case:
These projects are distinct and separate, and are identifiable as such, from its usual business of bottling beverage. Their duration and scope
are made known prior to their undertaking and their specified goal and purpose are fulfilled once the projects are completed. When private
respondent was initially hired for a period of one month and re-hired for another five months, and then subsequently re-hired for another
five months, he was assigned to the petitioner's Maintenance Division tasked with the- installation and dismantling of its annex plant
machines. Evidently, these projects or undertakings, the duration and scope of which had been determined and made known to private
respondent at the time of his employment, can properly be treated as "projects" within the meaning of the "first" kind. Considered as such,
the services rendered by private respondent hired therein for the duration of the projects may lawfully be terminated at the end or
completion of the same.
Clearly, therefore, private respondent being a project employee, or to use the correct term, seasonal employee, considering that his
employment was limited to the installation and dismantling of petitioners annex plant machines after which there was no more work to do,
his employment legally ended upon completion of the project.
Purefoods case
Not Project Employee
In the instant case, the private respondents' activities consisted in the receiving, skinning, loining, packing, and casing-up of tuna fish which
were then exported by the petitioner. Indisputably, they were performing activities which were necessary and desirable in petitioner's
business or trade.
Contrary to petitioner's submission, the private respondents could not be regarded as having been hired for a specific project or
undertaking. The term "specific project or undertaking" under Article 280 of the Labor Code contemplates an activity which is not
commonly or habitually performed or such type of work which is not done on a daily basis but only for a specific duration of time or until
completion; the services employed are then necessary and desirable in the employer's usual business only for the period of time it takes to
complete the project.
The fact that the petitioner repeatedly and continuously hired workers to do the same kind of work as that performed by those whose
contracts had expired negates petitioner's contention that those workers were hired for a specific project or undertaking only.
Alcatel Phils, Inc. vs. Relos

A project employee or a member of a work pool may acquire the status of a regular employee when the following concur:
There is a continuous rehiring of project employees even after the cessation of a project; and
The tasks performed by the alleged project employee are vital, necessary and indispensable to the usual business or trade of the employer.
(Maraguinot, Jr. v. NLRC)
While Relos performed tasks that were clearly vital, necessary and indispensable to the usual business or trade of Alcatel, Relos was not
continuously rehired by Alcatel after the cessation of every project.
2 TYPES OF PROJECT EMPLOYEES

A particular job WITHIN the regular or usual business of the employer company but which is DISTINCT and SEPARATE, and
IDENTIFIABLE as such from the undertakings of the company; ex. construction jobs in a hotel and terminal project;
installation of computers in a school
A particular job NOT WITHIN the regular or usual business of the employer company but which is DISTINCT and SEPARATE, and
IDENTIFIABLE from the ordinary or regular business operations of the employer (cafeteria in a hospital/mall in a school)
TERM OF PROJECT EMPLOYEES

Equipment Technical Services vs. CA
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The Court has consistently held, the service of project employees are coterminous with the project and may be terminated upon the end or
completion of that project or project phase for which they were hired. Regular employees, in contrast, enjoy security of tenure and are entitled to hold
on to their work or position until their services are terminated by any of the modes recognized under the Labor Code.
SEASONAL EMPLOYMENT
Definition
One where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.
Court decisions consider seasonal employees as regular employees, as their employment relationship is never severed but only suspended. (Manila Hotel,
September 30, 1963; Phil. Tobacco Flue-curing, December 10, 1998)
considered as regular employees if called to work from time to time; during off season, they are merely considered as on leave of absence
without pay until they are reemployed
If EE has worked for only one season, he cant be considered a regular employee
Regular seasonal employee is different from regular employees. In one case, SC said that regular seasonal
employees cant automatically be governed by the CBA entered into by the ER and its regular employees due to the
differences and the nature of their work vis--vis the operations of the company.
REQUISITES FOR A SEASONAL UNDERTAKING:

Dependent on climatic or Natural Causes its operations must be limited to a regular, annual, or recurring part or parts of each
year and regularly closes during the remainder of the year due to climatic or other natural causes;
Activity is agricultural where the crops are available only in certain times of the year
Regular Seasonal Employees
Refers to seasonal employees who are hired season after season
Nature of Relationship
During the off season they are temporarily laid off but during the summer season they are reemployed, or when their services may be
needed. They are not strictly speaking separated from service but they are merely considered on leave of absence without pay until
they are re employed. Their employment is never severed but only suspended. (Manila Hotel vs CIR)
Employer Employee Relationship Exists Between Milling Company and its Workers Even during off season; during the
temporary layoff the laborers are considered free to seek other employment is natural since they are not being paid yet and
must find means of support and should not mean starvation of the employees and their families since no compensation is
demanded during the period of the layoff
Upon assumption of the season, employer is obliged to rehire the seasonal employee, he enjoys security of tenure to that extent.
Seasonal employees enjoys security of tenure but only for a limited extent; only within the duration of the season
Philips Semi Conductor

Private Respondent was hired as production operator. According to the appellate court, the petitioner's contention that the respondent's employment
on "as the need arises" (petitioner claims that the hiring of workers for a definite period to supplement the regular work force during the
unpredictable peak loads was the most efficient, just and practical solution to the petitioner's operating needscyclical in nature) basis was illogical.
The fact that the petitioner had rendered more than one year of service at the time of his dismissal only shows that she is performing an activity which
is usually necessary and desirable in private respondent's business or trade. The work of petitioner is hardly "specific" or "seasonal." The petitioner is,
therefore, a regular employee of private respondent, the provisions of their contract of employment notwithstanding. The private respondent's
prepared employment contracts placed petitioner at the mercy of those who crafted the said contract
Hacienda Bino:
Not seasonal employees;
Although they showed that employees performed work seasonal in nature, they failed to prove that the latter worked only for the duration of one
particular season. In fact, petitioners do not deny that these workers have served them for several years already. Hence, they are regular not seasonal-
employees. For respondents to be excluded from those classified as regular employees, it is not enough that they perform work or services that are
seasonal in nature. They must have been employed only for the duration of the season. The evidence proves existence of the first, but not the second
condition. The fact that the respondents repeatedly worked as sugarcane workers for the petitioners for several years, the general rule of regular
employment applies
Philippine Fruits and Vegetable Industries case

Processing of fruits is dependent on the season because it grows in certain parts of the year. But considering that the manufacturing operations is year
in, year out, workers are seasonal employees.
Poseidon Fishing
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Boat Crew; Not A Seasonal Employee

Private respondent occupied the position of Chief Mate, Boat Captain, and Radio Operator. In petitioners' interpretation, however, this act of hiring
and re-hiring actually highlight private respondent's contractual status saying that for every engagement, a fresh contract was entered into by the
parties at the outset as the conditions of employment changed when the private respondent filled in a different position. But to this Court, the act of
hiring and re-hiring in various capacities is a mere gambit employed by petitioner to thwart the tenurial protection of private respondent. Such pattern
of re-hiring and the recurring need for his services are testament to the necessity and indispensability of such services to petitioners' business or trade.
As correctly pointed out by the Court of Appeals, the "activity of catching fish is a continuous process and could hardly be considered as seasonal in
nature
FIXED TERM EMPLOYMENT

Definition
An employee performing work that is usually necessary and desirable in the business of the employer wherein the contract of
employment stipulates the duration or term of employment
Not a regular employee even though performing work that is necessary or desirable in the business of the employer Zamora) Not
permanent but deemed regular in two senses:
the nature of his work is necessary or desirable in the principal business of the employer
he enjoys security of tenure during the limited time of employment as before the end of the agreed period, he cannot be
removed without a valid cause and valid procedure otherwise employer has to pay for the unexpired portion of the term
Brent School vs. Zamora

Fixed Term Employment
Art. 280 does not proscribe or prohibit an employment contract with a fixed period, provided the same is entered into by the parties without any
force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating the consent; contracts of
employment governs the relationship of parties.
Accordingly, and since the entire purpose behind the development of legislation culminating in the present Article 280 of the Labor Code clearly
appears to have been, as already observed, to prevent circumvention of the employee's right to be secure in his tenure, the clause in said article
indiscriminately and completely ruling out all written or oral agreements conflicting with the concept of regular employment as defined therein should
be construed to refer to the substantive evil that the Code itself has singled out: agreements entered into precisely to circumvent security of tenure. It
should have no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily by the parties, without any
force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent, or where it
satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being
exercised by the former over the latter. Unless thus limited in its purview, the law would be made to apply to purposes other than those explicitly
stated by its framers; it thus becomes pointless and arbitrary, unjust in its effects and apt to lead to absurd and unintended consequences.
CRITERIA LAID BY BRENT DOCTRINE: (under which term employment cannot be said to be in circumvention of security of tenure)
must not be entered into merely to circumvent the employees security of tenure
the fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress or
improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent;
It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral
dominance exercised by the former or the latter
NOTE: Doctrine is not followed if it is between construction worker (unschooled, illiterate) and the construction company not in equal
footing
Employment of deans nothing irregular because they have to be hired for a fixed term to give the other teachers the opportunity to
become deans, principals (Brent School vs. Zamora)
Q: Why add fixed term employment?
A: Labor code does not prevent the parties from making an agreement by fixing the term of employment.
Examples: (which a fixed term is an essential and natural appurtenance recognized by Supreme Court)
Overseas Workers considered contractual employees similar to fixed term employment. (e.g. seafarers- because of the
exigencies of their work)
College Deans and Department Heads may be considered as regular as a teacher if agreed upon by school and employee
because he is performing work that is necessary and desirable but NOT regular as a dean even though performing work that
is necessary and desirable because it is employment with a fixed term to give other teachers opportunity to become dean.
Its an Industry practice
Ravago vs. ESSO
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Logically, the decisive determinant in term employment should not be the activities that the employee is called upon to perform, but the day certain
agreed upon by the parties for the commencement and termination of their employment relationship, a day certain being understood to be "that
which must necessarily come, although it may not be known when." Seasonal employment, and employment for a particular project are merely
instances of employment in which a period, were not expressly set down, is necessarily implied.
Some familiar examples may be cited of employment contracts which may be neither for seasonal work nor for specific projects, but to which a fixed
term is an essential and natural appurtenance: overseas employment contracts, for one, to which, whatever the nature of the engagement, the
concept of regular employment with all that it implies does not appear ever to have been applied, Article 280 of the Labor Code notwithstanding; also
appointments to the positions of dean, assistant dean, college secretary, principal, and other administrative offices in educational institutions, which
are by practice or tradition rotated among the faculty members, and where fixed terms are a necessity without which no reasonable rotation would be
possible.
As expounded in the above-mentioned Millares Resolution, an exception is made in the situation of seafarers. The exigencies of their work
necessitates that they be employed on a contractual basis.
Thus, even with the continued re-hiring by respondent company of petitioner to serve as Radio Officer onboard Bergesen's different vessels, this
should be interpreted not as a basis for regularization but rather a series of contract renewals
Pangilinan vs. GMC

We furthered that it does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in the usual
business of the employer, the parties are forbidden from agreeing on a period of time for the performance of such activities. There is thus nothing
essentially contradictory between a definite period of employment and the nature of the employees duties. While the petitioners employment as
chicken dressers is necessary and desirable in the usual business of the respondent, they were employed on a mere temporary basis, since their
employment was limited to a fixed period. As such, they cannot be said to be regular employees, but are merely contractual employees.
Consequently, there was no illegal dismissal when the petitioners services were terminated by reason of the expiration of their contracts. Lack of
notice of termination is of no consequence, because when the contract specifies the period of its duration, it terminates on the expiration of such
period. A contract for employment for a definite period terminates by its own term at the end of such period.
Millares vs. NLRC

Seafarers Cannot be Regular Employees; Contractual
From the foregoing cases, it is clear that seafarers are considered contractual employees. They cannot be considered as regular employees under
Article 280 of the Labor Code. Their employment is governed by the contracts they sign everytime they are rehired and their employment is
terminated when the contract expires. Their employment is contractually fixed for a certain period of time. They fall under the exception of Article 280
whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of
engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the
season. We need not depart from the rulings of the Court in the two aforementioned cases which indeed constitute stare decisis with respect to the
employment status of seafarers.
Petitioners insist that they should be considered regular employees, since they have rendered services which are usually necessary and desirable to
the business of their employer, and that they have rendered more than twenty (20) years of service. While this may be true, the Brent case has,
however, held that there are certain forms of employment which also require the performance of usual and desirable functions and which exceed one
year but do not necessarily attain regular employment status under Article 280. Overseas workers including seafarers fall under this type of
employment which are governed by the mutual agreements of the parties.
In this jurisdiction and as clearly stated in the Coyoca case, Filipino seamen are governed by the Rules and Regulations of the POEA. The Standard
Employment Contract governing the employment of All Filipino seamen on Board Ocean-Going Vessels of the POEA, particularly in Part I, Sec. C
specifically provides that the contract of seamen shall be for a fixed period. And in no case should the contract of seamen be longer than 12 months.
Petitioners make much of the fact that they have been continually re-hired or their contracts renewed before the contracts expired (which has
admittedly been going on for twenty (20) years). By such circumstance they claim to have acquired regular status with all the rights and benefits
appurtenant to it.
Such contention is untenable. Undeniably, this circumstance of continuous re-hiring was dictated by practical considerations that experienced crew
members are more preferred. Petitioners were only given priority or preference because of their experience and qualifications but this does not
detract the fact that herein petitioners are contractual employees. They can not be considered regular employees.
MEMBERS OF WORK POOL
Work pool group of employees from which the company draws its manpower
Status of Employment - PROJECT
Work pool may or may not be created. If there are many projects, most likely there is a work pool.
In Maraguinot, Jr. v. NLRC, the Court ruled that "once a project or work pool employee has been: (1) continuously, as opposed to
intermittently, rehired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and
indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee, pursuant to
Article 280 of the Labor Code and jurisprudence."
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If there is NO project, your EE-ER relationship is suspended, on leave without pay. Employer is obliged to hire these regular work pool
employees if there is a project.
Maraguinot vs. NLRC

A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the
business, provided that the worker shall be available when called to report for a project. Although primarily applicable to regular seasonal workers,
this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. This is beneficial to both the
employer and employee for it prevents the unjust situation of coddling labor at the expense of capital and at the same time enables the workers to
attain the status of regular employees. Clearly, the continuous rehiring of the same set of employees within the framework of the Lao Group of
Companies is strongly indicative that private respondents were an integral part of a work pool from which petitioners drew its workers for its various
projects.
Liganza vs. RBL Shipyard

At this time, we wish to allay any fears that this decision unduly burdens an employer by imposing a duty to re-hire a project employee even after
completion of the project for which he was hired. The import of this decision is not to impose a positive and sweeping obligation upon the employer to
re-hire project employees. What this decision merely accomplishes is a judicial recognition of the employment status of a project or work pool
employee in accordance with what is fait accompli, i.e., the continuous re-hiring by the employer of project or work pool employees who perform
tasks necessary or desirable to the employer's usual business or trade.
Cocomangas Hotel Beach Resort vs. Visca, G.R. No. 167045, August 29, 2008
In the present case, respondents cannot be classified as project employees, since they worked continuously for petitioners from three to twelve years
without any mention of a "project" to which they were specifically assigned. While they had designations as "foreman," "carpenter" and "mason," they
performed work other than carpentry or masonry. They were tasked with the maintenance and repair of the furniture, motor boats, cottages, and
windbreakers and other resort facilities. There is likewise no evidence of the project employment contracts covering respondents' alleged periods of
employment. More importantly, there is no evidence that petitioners reported the termination of respondents' supposed project employment to the
DOLE as project employees. Department Order No. 19, as well as the old Policy Instructions No. 20, requires employers to submit a report of an
employees termination to the nearest public employment office every time his employment is terminated due to a completion of a project.
Petitioners' failure to file termination reports is an indication that the respondents were not project employees but regular employees.
This Court has held that an employment ceases to be coterminous with specific projects when the employee is continuously rehired due to the
demands of employers business and re-engaged for many more projects without interruption.
The Court is not persuaded by petitioners' submission that respondents' services are not necessary or desirable to the usual trade or business of the
resort. The repeated and continuing need for their services is sufficient evidence of the necessity, if not indispensability, of their services to petitioners'
resort business.
Marquez discussion
Under the LC, what are exceptions to regular employee?
Seasonal
Project
Casual
What is regular employment?
Where an employee is engaged to perform activities which are usually necessary or desirable in the usual business of the employer.
In a restaurant business, give an example of a regular employee?
Waiter or Cook
Is a waiter necessary to the business of the employer (restaurant)?
Yes.
Can a restaurant hire a waiter as a regular employee? Yes.
Can a restaurant hire a waiter as a probationary employee? Why?

Yes. Provided that it is within the permissible probations.
What are the factor that will make the waiter qualified?
Depends on the standards set forth and made known to the employee by the employer.
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Can you hire a regular employee and two weeks after make him probationary?
NO.
How long is the period of probation?
Must not be exceeding 6 mos.
Can the employer lessen the probationary period?
Not unilaterally
Under the LC, what is the exception when the probationary period exceeds 6 months?
When employment is covered by an apprenticeship agreement stipulating a longer period.
What is the other exception to the 6 months probationary period?
Academic Personnel under CHED Memo Circular No. 40, s. 2008 and apprenticeship
What are the periods?
Elem Second: 3 consecutive yrs.

Tertiary: 6 consecutive semesters
Trimester: 9 consecutive semesters
What is the reason why the period of probation in private education is longer?
For whose benefit the probationary period is intended for?
Both the employer and employee.
Is it valid to unilaterally shorten the period of probation? No.
Is it valid for employer to fix a period longer than 6 months?
General rule NO. However, as jurisprudence provides, it is justifiable.
Is it valid for employer to extend a probationary period?
Yes. If it is an act of liberality or ex gratia. (jurisprudence)
Would your answer be the same if the employee consented? Yes.
What will happen if the 6 months period is reached?
Depending on whether or not the employee is deemed to have successfully qualified for regularization, he can be absorbed if he qualifies or he can also
be terminated if he fails to qualify.
What are causes that the probationary employee can be terminated?
Art. 281 (LC) authorized causes; or

Failure to qualify in accordance to reasonable standards made known to him by the er
What instances where a probational worker becomes a regular employee?
Works beyond the probationary period

Not informed of the standards to which he is supposed to be judged.
Qualifies for regular
When should the status of probationary period be informed? At the time of engagement.
Give an unreasonable standard.
You must come to work 2 hrs earlier than your shift and you must go home 1 hr later than the usually time out.
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Give an example of a casual employment. i.e Janitor or CarpenterAfter 6 months, will the janitor become regular? No.
After 1 years, will the janitor become a regular janitor? Yes.
What is the tenure of employment of the casual who become regular?
Limited to the extent that the activity still exists.
What if the school tasked now the teachers to clean the school and stop the work of janitors, is it valid?
No.
When will the probationary period that starts Jan 1 ends? July 1
What is the importance in determining the period?
In order to know when he becomes a regular.
3 month probation period (March, April and May) to start at the 1st day of March, when will the period of probation end?
June 1
What is a project employee?
Where employment has been fixed for a specific project of undertaking, the completion of which has been determined at the time of engagement.
What are the two types of activity in a project? Prepare an example.
Job within regular or usual business

Job not within regular or usual business
What is seasonal employment?
Where the work or service to be performed is seasonal in nature and employment is for the duration of the season.
What is seasonal industry? What are the requisites?
Is one whose operation are limited to regular, annual or recurring parts of each year and regularly closes during remainder of the year due to climatic or
natural causes.
Requisites:
Climatic or natural causes

Activity is agriculture
What is fixed term employment?
When an employee performs work that is usually necessary or desirable to the business of the employer wherein a contract of employment
stipulates the duration or term of employment.
Can you hire an employee activity which is necessary or desirable under a fixed term employment? Yes.
What are the requisites of fixed term employment?
Not intended to circumvent security of tenure

Knowingly and voluntarily agreed by the parties
No moral dominance
Give an example of a fixed term employment?
(inyuha na sad uy grabeh na sad mu ka spoon fed kung kami pai muhatag hahahaha)
What are other classification of workers involving construction of worker?
Project those employed in connection with a particular construction project or phase thereof and whose employment is co-terminus with
each project or phase of the project to which they were assigned
Nonproject those employed without any reference to any particular project or phase of a project
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Casual those employed to perform work not related to the main line of business of the ER
Regular
Probationary
Project employees are considered regular employees if aggregate period of continuous employment is at least one year, in
the absence of a day certain agreed upon by the parties for the termination of their relationship
Can it apply by analogy to other industries?
Aside from D.O. 19, are there any other classification?
Personnel in private educational institution
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TOPIC 4: MANAGEMENT PREROGATIVE

CONCEPT
The right of an employer to regulate, generally without restraint, according to its own discretion and judgment, every aspect of its business,
subject to limitations of law
It is an act of the employer to regulate all aspects of his business from hiring to firing has reference to employment It
should be exercised in good faith
The privilege is inherent in the right of employers to control and manage their enterprise effectively
SCOPE
Extent Of Management Prerogative To Proscribe Working Methods, Time, Place, Manner And Other Aspects Of Work
Employers have the freedom and prerogative, according to their discretion and best judgment, to regulate and control all aspects of
employment in their business organizations. Such aspects of employment include, hiring, work assignments, work methods, time,
place, and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of
employees, work supervision, lay off of workers and the discipline, dismissal and recall of workers (PAL vs NLRC, 4 Aug 2000);
SUMMARY:
The right to classify employees
The right to hire
The right to promote
The right to demote
The right to transfer
The right to dismiss
LIMITATIONS
LIMITATIONS ON THE EXERCISE OF MANAGEMENT PREROGATIVES:
Law
CBA
employment contract
employer policy or practice
general principles of fair play and justice
HIRING
Not found in the Labor Code, thus it is inherently a management prerogative and not a statutory right.
NATURE: RIGHT OR PREROGATIVE?

Employer has no right to hire a person as his employee. The matter of selecting a person as ones employee is more appropriately
described as a PREROGATIVE. It is not a right in which you can go to court and enforce the right to hire. One may invoke constitutional
provision against involuntary servitude if one is compelled to be anothers employee. No person can be compelled against his will to
do an act whether legal or illegal. An employer cannot go to court and get an injunction to compel a person to become his employee.
Employer can ONLY exercise prerogative to invite that person and hire him if he so chooses.
EXERCISE OF RIGHT/PREROGATIVE: ABSOLUTE?

The exercise of prerogative to hire is NOT ABSOLUTE. It is REGULATED BY LAW
Police Power: Is the power of the Government to enact laws, within the constitutional limits, to promote the order, safety, health,
morals and general welfare of the society.
The right of every person to pursue a business, occupation or profession is subject to the paramount right of the government as
part of its police power to impose such restrictions and regulations as the protection of the public may require.
The right of reasonable regulation is a modification to the sweeping generalization that every person has a right to pursue lawful calling.
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Example of valid regulation is DO No. 1 series of 1988, temporarily suspending the deployment of female domestic
workers abroad. Petitioners contended that the said DO does not apply to all Filipino workers but only to female domestic
helpers and is violative of right to travel. Court ruled that the classification made which is the preference for female workers
rests on substantial distinctions. Although the DO applies only to female contract workers, it does not make any undue
discrimination between the sexes. Equality before the law does not import a perfect identity of rights among all men and
women. It admit classifications provided that: (1) such classifications rest on substantial distinctions; (2) they are germane
to the purposes of law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the
same class
PROMOTION
DEFINITION
It is the advancement from one position to another with increase in duties and responsibilities which may or may not involve an
increase in salary
Q: What if a clerk is promoted to supervisor without increase in salary; can the clerk sue the employer?
A: NO
Definition of promotion is NOT found in Labor Code
ABSOLUTE?
No.
National Federation of Labor Unions vs NLRC

If there is a subsequent increase in salary, it is entirely non sequitor because that is entirely within the discretion of the
management whether or not to grant such increase. In the absence of company policy and practice, and in the absence of
company agreement, the person promoted cannot demand an increase in salary as a matter of right
ACCEPTANCE OR CONSENT IS REQUIRED (not opportunity to be heard because promotion is in the nature of a gift or
donation thus it requires the acceptance to be valid and binding.
No formalities are required except the notice of promotion and acceptance of employee
There is no law that compels an employee to accept a promotion it being in the nature of a gift or reward which a person has a
right to refuse
There must be an advancement from one position to another or an upward vertical movement of the employees rank or
position
An increase in salary should only be considered as incidental but can never be determinative of whether or not a promotion is
bestowed upon an employee
TRANSFER VS. PROMOTION (Dosch vs NLRC):

Promotion: denotes a scalar assent of a senior officer or employee to another position higher either in duties, rank or status usually
accompanied by increase in salary
Transfer: refers to lateral movement from one position to another of equivalent rank, level or salary
DEMOTION
DEFINITION:
It is a management prerogative on the movement from one position to another which carries with it diminution in duties, rank, status
but may or may not be accompanied by a reduction in salary (Fernando vs Sto. Tomas)
LIMITATIONS OF THE RIGHT TO DEMOTE:

It must not be exercised arbitrarily, capriciously or whimsically
It must be for a valid cause otherwise it would tantamount to a constructive dismissal- cannot be demoted just because of your
personality
It must pass the test of reasonableness, equity and good faith performance related conditions
Due process- employee must be given notice regarding the demotion and the cause or causes thereof and the opportunity to
explain why not to be demoted; Demotion necessitates the issuance of a notice for demotion for cause
CONSTRUCTIVE DISMISSAL
Demotion without a valid cause; coupled with employment that is unbearable and inhuman
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Reliefs available to employee for constructive dismissal:

Reinstatement to his position prior to demotion
Backwages (difference in salary that you earn had you not been demoted) and other benefits he was entitled to receive
Damages- if there is bad faith and fraud
ILLEGAL DEMOTION
Demotion without compliance of due process
Relief:
Reinstatement to former position
NOTE: failure to comply with these requirements may amount to constructive dismissal, as the case may be. It is even more so if the
demotion is not part of the company policy.
TRANSFER
DEFINITION:
It is the lateral movement from one position to another of equivalent rank, level or salary, without break of
service Reason for transfer: to maximize the service of employees
Consent of employee is NOT required; inherent in right to control or manage an enterprise effectively
BASIS:
Since this can be exercised by the management in accordance with the best interest of the company trying to see where a particular employee
can be best maximized.
It is the employers prerogative based on assessment and perception of its employees qualifications, attitudes and competence to
move them around in various areas of its business operations in order to ascertain where they will function with maximum benefit to
the company. (Phil Japan Active Carbon Corporation vs NLRC)
An employees right to security of tenure does not give him the vested right in his position as would deprive the company of its prerogative to
change his assignment or transfer him where he will be most useful (PT&T vs NLRC, 1991)
REQUISITES FOR VALID TRANSFER

Must be reasonable or it must have a sound purpose- if there is a need to augment work force because of a work assignment
(Isabelo vs NLRC)
Not inconvenient to welfare of the employee
Not prejudicial to the employee
Not involve a demotion of rank or status or a diminution of the employees salary, benefits, etc.
must not be motivated by discrimination
must not be made in bad faith
must not be effected as a form of punishment/demotion without sufficient cause (Mendoza vs. Rural Bank)
NOTE: Violation of these requirements amount to constructive dismissal

It is not an absolute right and it must be accompanied by good faith (not intended to harass)
Mere reasons of inconvenience does not justify the refusal to be transferred
Examples of VALID TRANSFER:
Reshuffling of bank personnel to maintain the secrecy of bank deposits- valid transfer bec. It is for
security purposes
o Salesman transferred from one place to another- valid transfer bec. It is the nature of their work
Illegal transfer relief: reinstatement

If constructive dismissal: reinstatement, backwages
Mendoza vs Rural Banck of Lucban

VALID TRANSFER
Reshuffling of its and employees in line with the policy of the bank to familiarize bank employees with the various phases of bank operations and
further strengthen the existing internal control system. Management has the prerogative to transfer or assign employees from one office or area of
operation to another provided:
there is no demotion in rank or diminution of salary, benefits, and other privileges;
action is not motivated by discrimination,
not made in bad faith,
not effected as a form of punishment or demotion without sufficient cause.
PLDT vs Paguio:
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TRANSFER TO FUNCTIONLESS OFFICE IS ABUSE OF MGMT PREROGATIVE

Paguio was reassigned as Head Special Assignment. Paguios transfer could only be caused by the managements negative reception of his comments.
It is prejudicial to Paguio because it left him out for a possible promotion as he was assigned to a functionless position with neither office nor staff.
Norkis Trading
ILLEGAL TRANSFER (no legitimate business reason)
While petitioners invoke management prerogative in the transfer of private respondent to Manila, there is no showing at all of any valid and legitimate
reason for the verbal transfer order, as in fact private respondent was not given work to do, only occasionally and constantly avoided by her superiors.
Her meek and desperate plea to be allowed to return to her former post in Naga City Branch was met with total silence on managements end. Such
insensitivity and disdain pervading her work environment became more intense when her travel allowances were withdrawn and management
demanded for refund of those amounts received by her on the ground that she is not entitled thereto while posted in the main office
Coca-Cola Bottlers Phils vs. Del Villar

TRANSFER RESULTING TO DEMOTION- INVALID
Del Villar was not merely transferred from the position of Transportation Services Manager to the position of Staff Assistant to the Corporate
Purchasing and Materials Control Manager; he was evidently demoted.
Del Villars demotion is readily apparent in his new designation. Formerly, he was the Transportation Services Manager; then he was made a Staff
Assistant a subordinate to another manager
DISMISSAL
PREROGATIVE AND A RIGHT
It is not simply a prerogative but a right because it is found in the Labor Code Termination of employment Art. 282 BASIS:
It isa measure of self protection on the part of the employer against all acts inimical to its interest.
Expiration of Tenure is NOT Dismissal
Seniority Rights NOT inherent: such right is based on contract, a statute or an administrative regulation; seniority rights acquired by an
employee through long time employment are merely contractual and not constitutional
The power to dismiss is NOT ABSOLUTE limited by police power
LIMITATIONS:
o Must not be arbitrary o
Must not be capricious
o Must be in observance of due process
OTHERS
REORGANIZATION AND ABOLITION OF POSITIONS

Takes place when there is an alteration of the structure of the offices or units therein including the likes of control, authority and
responsibility between them. It involves the reduction of personnel, consolidation of offices or abolition thereof by reason of
economy or redundancy of functions
Limitation:
Must be done in good faith
Management prerogative as a cost cutting measure
Right to enjoy security of tenure (the right to continue ones employment until such is severed for just or authorized causes as provided
for by law under art. 279, PD. 442)
EARLY RETIREMENT PROGRAM

Withdrawal from office, public station, business, occupation or public duty. It is a result of a bilateral act of the parties a voluntary
agreement between the employer and the employee whereby the latter after reaching a certain age, agrees and or consents to
severe his employment with the former (Brion vs South Philippine Union Mission of the Seventh Day Adventist Church, 1999)
Title II RETIREMENT FROM THE SERVICE

Art. 287. Retirement. Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other
applicable employment contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective
bargaining agreement and other agreements: Provided, however, That an employees retirement benefits under any collective bargaining and other
agreements shall not be less than those provided therein.
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In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the
age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least
five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every
year of service, a fraction of at least six (6) months being considered as one whole year. (or 22.5 days per year of service)
Unless the parties provide for broader inclusions, the term one-half (1/2) month salary shall mean fifteen (15) days plus one-twelfth (1/12) of the
13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves.
An underground mining employee upon reaching the age of 50 years or more, but not beyond 60 years which is hereby declared the compulsory
retirement age for underground mine workers, who has served at least 5 years as underground mine worker may retire and shall be entitled to all the
benefits provided for in this Article (RA 8558 approved on 2/26/98)
Retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers are exempted from the coverage
of this provision.
Violation of this provision is hereby declared unlawful and subject to the penal provisions under Article 288 of this
Code.
Note: House helpers are entitled to retirement pay.
VOLUNTARY RESIGNATION PROGRAM

(Termination by Employee. Refer to Art 285)
JOB EVALUATION PROGRAM

Realigning the functions of a certain position
Ex. Admin clerk then incorporate other functions
To be valid: reason must be efficiency of the operations -
employer have prerogative to redefine job responsibilities
Ex: from simple job to multi tasking job
EMPLOYMENT POLICIES AND STIPULATIONS
The ER in the exercise of management prerogative may stipulate in the employment contract several stipulations with the EE so long as they are
not contrary to law, public policy, morals.
Must be lawful and reasonable policies
BONA FIDE OCCUPATIONAL QUALIFICATION RULE
Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can
show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide
occupational qualification (BFOQ).
They hold that the absence of such a bona fide occupational qualification invalidates a rule denying employment to one spouse due
to the current employment of the other spouse in the same office.Thus, they rule that unless the employer can prove that the
reasonable demands of the business require a distinction based on marital status and there is no better available or acceptable policy
which would better accomplish the business purpose, an employer may not discriminate against an employee based on the identity of
the employees spouse. This is known as the bona fide occupational qualification exception.
BONA FIDE OCCUPATIONAL QUALIFICATION EXCEPTIONS:

that the employment qualification is reasonably related to the essential operation of the job involved;
that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly
perform the duties of the job.
NO SPOUSE EMPLOYMENT POLICY

A policy prohibiting spouses from being employed in the same company
For the policy to be valid there must be a compelling business necessity for which no alternative exists other than the discriminatory
practice. (Star Paper Corp. vs. Simbol)
Conflict of interest might arise for example the wife works in the HR department and the husband works in a different
department. If the husband could not account for a certain transaction it is the duty of the HR to verify. The wife might
tamper with evidence in order to clear the husbands name. She could inhibit herself from the investigation
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Art 136. LC. Stipulations Against Marriage. It shall be unlawful for an employer to require a condition of employment that a woman
employee shall not get married or to stipulate expressly or tacitly that upon getting married as woman employer shall be deemed resigned
or separated or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.
DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON vs. GLAXO WELLCOME PHILS
Policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company is VALID.
Glaxos policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid exercise of management
prerogative as relationships of that nature might compromise the interests of the company. Glaxo has a right to guard its trade secrets, manufacturing
formulas, marketing strategies and other confidential programs and information from competitors.
The policy being questioned is not a policy against marriage. An employee of the company remains free to marry anyone of his or her choosing. The
policy is not aimed at restricting a personal prerogative that belongs only to the individual. However, an employees personal decision does not detract
the employer from exercising management prerogatives to ensure maximum profit and business success.
Constitutional provision cited to justify right of the employer: right of enterprises to reasonable returns to investments, and to expansion and growth.
PRINCIPLE: LEGAL LIMITATIONS/PROHIBITIONS; PROHIBITION AGAINST STIPULATION OF MARRIAGE; PROHIBITION ON EMPLOYEE

FROM ENGAGING IN RELATIONSHIP WITH AN EMPLOYEE OF A COMPETITOR COMPANY IS A VALID EXERCISE OF MANAGEMENT
PREROGATIVE AND NOT STIPULATION AGAINST MARRIAGE
STAR PAPER CORPORATION, JOSEPHINE ONGSITCO & SEBASTIAN CHUA, Vs.RONALDO D. SIMBOL,WILFREDA N. COMIA & LORNA E.
ESTRELLA
There must be a compelling business necessity for which no alternative exists other than the discriminatory practice.
To justify a bona fide occupational qualification, the employer must prove two factors: (1) that the employment qualification is reasonably related to
the essential operation of the job involved; and, (2) that there is a factual basis for believing that all or substantially all persons meeting the
qualification would be unable to properly perform the duties of the job. We do not find a reasonable business necessity in the case at bar.
Court does not find a reasonable business necessity in the case at. It is significant to note that in the case at bar, respondents were hired after they
were found fit for the job, but were asked to resign when they married a co-employee. Petitioners failed to show how the marriage of Simbol, then a
Sheeting Machine Operator, to Alma Dayrit, then an employee of the Repacking Section, could be detrimental to its business operations. Neither did
petitioners explain how this detriment will happen in the case of Wilfreda Comia, then a Production Helper in the Selecting Department, who married
Howard Comia, then a helper in the cutter-machine. The policy is premised on the mere fear that employees married to each other will be less
efficient. If we uphold the questioned rule without valid justification, the employer can create policies based on an unproven presumption of a
perceived danger at the expense of an employees right to security of tenure.
Petitioners contend that their policy will apply only when one employee marries a co-employee, but they are free to marry persons other than co-
employees. The questioned policy may not facially violate Article 136 of the Labor Code but it creates a disproportionate effect and under the
disparate impact theory, the only way it could pass judicial scrutiny is a showing that it is reasonable despite the discriminatory, albeit
disproportionate, effect. The failure of petitioners to prove a legitimate business concern in imposing the questioned policy cannot prejudice the
employees right to be free from arbitrary discrimination based upon stereotypes of married persons working together in one company.
PRINCIPLE: PROHIBITION/LIMITATION ON HIRING; PROHIBITION AGAINST STIPULATION ON MARRIAGE; BANNING SPOUSES FROM
WORKING IN THE SAME COMPANY ABSENCE REASONABLE BUSINESS NECESSITY IS AN INVALID MANAGEMENT PREROGATIVE.
Situation: If driver fails to remit the boundary, they will be suspended until driver is able to remit
Caong vs. Begualos case
Petitioners' suspension cannot be categorized as dismissal, considering that there was no intent on the part of respondent to sever the employer-
employee relationship between him and petitioners. In fact, it was made clear that petitioners could put an end to the suspension if they only pay
their recent arrears. As it was, the suspension dragged on for years because of petitioners' stubborn refusal to pay. It would have been different if
petitioners complied with the condition and respondent still refused to readmit them to work. Then there would have been a clear act of dismissal. But
such was not the case. Instead of paying, petitioners even filed a complaint for illegal dismissal against respondent.
POSTEMPLOYMENT COMPETITIVE EMPLOYMENT BAN

A policy where EE is prohibited after the separation from joining a competitor
VALID policy. However, this is subject to limitation on duration and place. It should only be for a certain period of time that is
reasonable and the prohibition should only apply in a particular place.
REIMBURSEMENT OF TRAINING COSTS (ALMARIO VS. PAL)

A policy which requires an EE to stay with the company for a period of one year after being given training and that if the EE chooses
to leave he shall reimburse the company for the expenses paid for his training
A valid policy because an ER is entitled to a reasonable return of his investment.
The aspect of requiring the EE to reimburse the company is based on the principle against unjust enrichment
RESTRICTIVE COVENANT CLAUSES (RIVERA VS. SOLIDBANK)
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There are legitimate interests of the employer which might be protected in terms of time, space, and types of activities proscribed
Requirements of a REASONABLE CONTRACT:
whether the covenant protects a legitimate business interest of the employer;
whether the covenant creates an undue burden on the employee;
whether the covenant is injurious to the public welfare;
whether the time and territorial limitations contained in the covenant are reasonable; and
whether the restraint is reasonable from the standpoint of public policy
Restraints on post retirement competitive employment in pension and retirement plans either incorporated in employment contracts,
CBA or separate from said contract. - Valid denial of the right to participate in the retirement plan if he does so engage, not a prohibition
on the employees engaging competitive work.
Anti nepotism policy, wherein an ER prohibits the employment of a relative of an existing EE to a certain degree of consanguinity or
affinity which is a valid policy because there could be certain biases that would prevent you from performing your assigned job properly
-valid if intended to prevent conflict of interest

A. NON COMPETING CLAUSE OR NON-INVOLVEMENT CLAUSE VALID (TIU VS. PLATINUM PLANS)
Stipulation where employer requires employee within 1 year from operation should not join or work with a competing company
That during the employees engagement, and two years after separation form the company, the employee will not engage in
or be involved with any corporation or entity whether directly or indirectly, which is engaged in the same business or belongs
to the same pre- need industry as the employee
Valid as long as there are reasonable limitations as to time, trade, and place.
NO SPOUSE EMPLOYMENT POLICY

(refer above)
NON-SOLICATION CLAUSE
When a duty is imposed on the employee not to approach his former employers customers or prospective customers or
when the employee is prevented from taking customers/clients of his former employer
D. NON-DEALING CLAUSE
Preventing a former employee from the dealing with former clients/customers/suppliers, regardless of which party approached the
other
E. NON-POACHING CLAUSE
When the employee is prevented from enticing his former employers staff away from the business, the aim is to prevent the
employee from taking key employees with him to his new employment or business
Marquez discussion
Promotion is a management prerogative. Can you find a provision in the Labor Code? But can this be exercised by the employer?
No. Yes because it is a management prerogative.
How does this work? What is promotion? (Definition)

It is the advancement from one position to another with an increase in duties and responsibilities which may or may not involve an increase in salary.
Promotion from accounting clerk to?

Accounting supervisor or manager.
Is the job of an accounting clerk the same to a job of an accounting supervisor or manager? No.
So can we safely say that if you are promoted from an accounting clerk to supervisor or manager there is an increase in your responsibilities
or duties? Yes.
Is increase in salary during promotion mandatory? No.
So a person who is promoted cannot demand as a matter of right an increase in salary? No.
Can a promotion be imposed by management on an employee? No.

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CONSTITUTIONAL BASIS (Art. 13, Sec. 3, 1987 Constitution) ............................................................................26

EMPLOYEES RIGHT TO DISCIPLINE; NATURE OF RIGHT ....................................................................................50

TOPIC 6: OTHER CAUSES OF SEVERANCE OF EMPLOYMENT RELATION................................................................95

COMPULSORY ARBITRATION AND VOLUNTARY ARBITRATION.......................................................................113

ADMINISTRATIVE SUPERVISION OVER THE NATIONAL LABOR RELATIONS COMMISSION .............................140

DISAFFILIATION: MEMBERS & UNION .............................................................................................................189

RIGHT TO COLLECTIVE BARGAINING ...............................................................................................................228

STRIKEABLE ISSUES ..........................................................................................................................................247

STRIKE OR LOCK-OUT INTERVENTION ON THE PART OF DOLE: CONCILIATION/MEDIATION..........................270

ANNEX A: LABOR RELATIONS UPDATES..............................................................................................................282

TOPIC 1: THE APPLICABLE LAWS

Sen. Blas Ople Father of Labor Code

NOTE: It is the workers or the working class who exerts or labors.

FOUR SYSTEMS OF LABOR

this is not job contracting

THREE FIELDS OF LABOR LAW (S-R-S)

Labor Standards Law

Labor Relations Law

Example: unionization, negotiation, dispute settlements

Labor Legislation or Social or Welfare Legislation

OMNIBUS RULES AS AMENDED

SUPREME COURT DECISIONS

BASIS OF ENACTING LABOR LAWS (P-S-P-D)

PROTECTION TO LABOR CLAUSE

Example: Migrant Workers Act

Cite at least 5 International Labor Organization (ILO) Conventions:

LIMITATIONS IN THE ENACTMENT OF LABOR LAWS (P-E-N-D-O)

May be impaired by the exercise of the state of police power.

EQUAL PROTECTION CLAUSE

PROHIBITION AGAINST INVOLUNTARY SERVITUDE

DUE PROCESS CLAUSE

SOURCES OF LABOR LAWS - LABOR STANDARDS (R-O-L-J)

The Labor Code , PD 442 as amended

SOURCES OF LABOR LAWS (LABOR RELATIONS)

PROVISIONS ON THE EFFECTIVITY OF LABOR LAWS

E.O. 292 Administrative Code of the Philippines

RULES ON THE IMPLEMENTATION AND INTERPRETATION OF LABOR LAWS

PARTIES TO EMPLOYMENT CONTRACT

LABOR AND CHATTEL

TOPIC 2: BASIC PRINCIPLES

IN RELATION TO LABOR STANDARDS (Just-Live-Human/H-J-L)

IN RELATION TO LABOR RELATIONS (SupremeCourtPSP/S-C-P-S-

SPECIFIC RIGHTS OF WORKERS IN RELATION TO LABOR STANDARDS

Special Rest Day - 30% of the basic daily rate

Special/rest/holiday: 30% of the regular hourly rate on said days

Safe and healthful conditions of work and welfare services

Employment of Young Workers

SPECIFIC RIGHTS OF WORKERS IN RELATION TO LABOR RELATIONS

Self-organization and collective bargaining

CONCEPT OF EMPLOYER-EMPLOYEE (LABOR STANDARDS)

Art 97c. Employee includes any individual employed by an employer.

CONCEPT OF EMPLOYER-EMPLOYEE (LABOR RELATIONS)

Q: Who is considered the employer?

Foreigners Art. 40-42, PD 442 applies

The purpose of the law is to protect the Filipinos.

CONCEPT OF EMPLOYER-EMPLOYEE RELATIONSHIP

Tabas vs. California Mfg Co., GR 80680, 01/26/89

Philippine Fuji Xerox Corp vs. NLRC, GR 111501, 05/05/96

Sevilla vs. CA, GR 44182-3, 04/15/88

Encyclopedia Britannica vs. NLRC, GR 87098, 11/04/96

Dy Keh Beng vs. ILMUP, GR 100665, 02/13/95