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Elements of labor-only contracting
LABOR LAW
- physical or mental exertion or effort; law/rule/regulation that defines the
relationahip between the employer and the employee; the employer having
control over the employee, and the latter being paid his compensation.
LABOR
- manpower; that portion of the population of the state that is capable of
producing goods and services
Four-fold Test
- Selection/engagement of the putative employee
- payment of wages/salaries
- Presence/absence of the power of dismissal
- Presence/absence of the power of control
TN: The most important test is the control test, not only as to the manner but as
to the results thereof. Not every form of control establishes employer-employee
relationship.
TN: In relation to exercise of management prerogative, there is only one test:
the control test. Control includes selection/engagement of the putative employee
as well as the power of dismissal and payment of wages and the power of
dismissal.
Economic Reality Test
- in determining employer-employee relationship, the prevailing economic
circumstances between the employer and the employee such as (a) inclusion of
the worker in the payroll, (b) submission of his name with pertinent agencies of
the government (BIR, SSS, Pag-ibig, Philhealth) etc., although there is no
contract of employment, the law mandates the creation of employer-employee
relationship.
Instances where there is no employment contract but there is an employer-
employee relationship:
1. In the case of a working scholar, he is not an employee of the school,
but if he is given a real opportunity to finish a chosen course, there
exists in law an employer-employee relationship which makes the
working scholar entitled to the benefits under the Labor Code.
2. in the case of labor-only contracting: the employee hired by the labor-only
contractor is a mere agent or intermediary of the principal employer/indirect
employer/statutory employer/owner of the project. Although the labor-only
contractor hires the employee, the hired employee is not an employee of the
hirer (labor-only contractor) but becomes the direct employee of the principal
employer. Because labor-only contracting is against the law and public policy.
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
a. contractor does not have substantial capital/investment in the form of
goods, equipment, machineries, work premises, etc
b. he is a mere supplier of workers (and the supplied workers become the
direct employees of the principal employer)
c. he performs job that is directly related to the principal employer.
TN: However, in permissible job-contracting/independent contractorship –
allowed under the law; the employees hired by the independent contractor are
indeed the employees of the independent contractor. But he has to comply with
the requirements laid down by law. But in the event the independent contractor
fails to pay the wages of its employees, the principal employer is liable in solidum
to pay these wages. But the principal employer can run after the independent
contractor (though his posted bond) for his advances in the form of wages.
TN: If the independent contractor is not registered as such, it shall be treated
only as a mere labor-only contractor.
Instances where there is employer-employee relationship though the control
test:
1. A teacher and a school – the school provides the subject to be taught, where
it shall be taught, when it shall be taught. Thus, there is control and supervision.
2. A jeepney driver on a boundery basis – is an employee of the operator
because he is subject to control and supervision of the operator.
3. A resident physician – there is control and supervision on how the
resident physician should prosecute his job. But there was a
Department Order issued by the DOLE stating that a resident physician
in healthcare industries like the hospital is not an employee of the
hospital, provided, that the training agreement is approved by both the
DOH and PRC.
4. A lawyer in the legal office of SM for example.
5. Stevedores– if the stevedores has to load/unload cargoes to a particular
shipping company, there exists employer-employee relationship. But without
regard to specific shipping company, he is not an employee.
TYPES OF LABOR LAW
1. PROTECTIVE LEGISLATION
- designed to protect certain types of workers (women workers, child workers,
handicapped) from an unfair employment contract.
Examples of Protective Legislation:
a. Anti-Sexual Harassment Law – aimed at protecting employees from
oversexuperious committed not only against women employees but also
to men employees
Types of sexual harassment:
1. Cuit propo – giving something for something; most important
element is a request/sexual favor which is denied resulting to an

adverse tangible action (example: the woman who was requested
sexual act was dismissed from her employment)
2. Hostile work environment – the act or conduct of the superior
officer places an employee in an intimidating, offensive, or hostile
working environment (examples: sexual remarks, utterances,
connotations, physical contact of a sexual nature)
Q: If the superior made several sexual utterances which compelled the
woman employee to resign from her job, can she file a case for
constructive dismissal?
Yes. There are 3 concepts of constructive dismissal: (a) continued employment
has become impossible/reasonable/unlikely/ unbearable under the
circumstances; (b) there is demotion in rank, there is diminution in pay; (c) there
is a disdainful act in the part of the employer that compelled the employee to
resign. In this case, continued employment has become
unbearable/unreasonable under the circumstances brought about by the
repeated sexual remarks uttered by the employer which compelled the employee
to resign.
b. Maternity Leave Law
c. Anti-VAWC Law
d. Anti-Discrimination Law (RA 6725) – discrimination in pay, discrimination
in work opportunity, discrimination in hiring, and discrimination in
dismissal, pregnancy discrimination, and stipulation against marriage
(that in case an employee gets married, she will be dismissed)
Coca Cola Bottlers Co. case:
There was a policy of Coca Cola that the workers watching over the moving
bottles of coca cola in the conveyor were provided with seating facilities but later
on, the company changed its policy and made the workers stand – this was
protested by the union for being discriminatory. In the SC, the High Court
validated the standing position policy of the company, stating that proper seating
facilities are only provided under the Labor code to women workers and not to
male workers.
TN:Hazardous/Deleterious undertaking – affects the physical, mental, moral and
normal development of a child employee; absolutely, child employee is not
allowed.
2. LABOR STANDARDS
- one that provides standards as to hours of work, wages, cost of living
allowances including health, safety, dental, medical and compensation benefits.
- a law that provides economic benefits while the worker is actually working
TN: There are benefits granted to a worker while he is not working (perhaps due
to disease, injury, disability or death) – covered by social or welfare legislation
Q: What are the hazards of employment?
- Occupational disease
- Compensable injury
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
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- Compensable disability
- Compensable death
Occupational Disease
The General Rule is that for a disease to be compensable, it must be listed in
the Table of Occupational Diseases as issued by the Employees Compensation
Commission. However, there are cases considered as Exceptions to this rule
whereinthe liberality of the law still subsists: that in case of doubt, it shall be
resolved in favor of labor. Applying the principle of Construction in favor of Labor
under Art 4 of the Labor Code and the Constitution.
Q: Explain the favored treatment clause
This is the principle of construction in favor of labor. That in case of doubt, it
shall be resolved in favor of labor.
Actual case:
An employee died due to haemorrhaging pancreatitis (bangungot) so the heirs
filed a compensation claim but was denied by the Employees Compensation
Commission on the ground that such disease is not listed in the table of
occupational diseases. However, the Supreme Court granted the claim stating
that haemorrhaging pancreatitis is a disease that is unknown until now. Even
medical experts cannot say with certainty the origin of this disease and this
uncertainty creates doubt, and this doubt must be resolved in favor of labor. The
SC emphasized that it does not mean that if the disease is not listed, it is not
compensable. Because the liberality of the law still subsists, that in case of
doubt, it shall be resolved in favor of labor.
Q: When is a disease considered an occupational disease? Example, a
nurse was assigned to a TB ward for 5 years. Before her assignment,
she was of good health condition. But after 5 years of working in the
TB ward, she was afflicted with TB. Is the disease compensable?
Yes. A disease is considered occupational disease when there is a direct linkage
between the disease and the occupation, which is evident in the case of the
nurse afflicted with TB.
Q: A miner, who is usually exposed to deadly chemicals, was afflicted
with cancer and subsequently died. Is his death compensable?
Yes, because the nature of his occupation has a direct linkage with his disease.
Injury
- sudden change in the human organism
Kinds of injury:
1. on-premise injury – obtained within the company premises
2. off-premise injury –obtained outside company premises

Principles:
a. Peculiar risk – the risk is peculiar to the nature of the job of a worker;
his job requires risk
Ex: a worker who works along the street (he can be sideswiped by a
speeding vehicle)
b. Company-sponsored activity – such as foundation days, during which,
athletic or entertainment activities like ferry’s wheel wherein one
employee rode on it but the ferry’s wheel had a technical problem thus
the employee fell to the ground resulting in his injury and subsequent
death. Such injury/death is compensable.
c. Act of God – employee of a company vessel died because the vessel was
capsized due to a storm
d. Act of ministration – any act that provides or ministers personal comfort
or convenience to the human body resulting in injury or death is
compensable (also known as the Personal Comfort Doctrine)
Q: In the working area, there is no potable water. A worker, in
wanting to quench his thirst, has to cross the street to buy mineral
water. Unfortunately, while crossing the street, he was hit by a
speeding vehicle causing his injury and death. Is his injury/death
compensable?
Yes, because quenching his thirst, he wants to provide personal comfort and
convenience to his human body.
Q: A male worker who works in a company where there is no comfort
room urinated in the corner of the company premises, not knowing
that outside the fence there was a cobra. The cobra attacked him
causing his injury. Is the injury compensable?
Yes because he was providing personal comfort to his human body by urinating
when the unfortunate accident happened.
Disability
Types of Disability:
Temporary Total – 120 days
Permanent Total – 240 days
Permanent Partial – loss of function of an anatomical part of the human body
State Insurance Fund
- the one primarily liable for employee’s compensation.
- a trust fund made up of contributions by the employers based on the salaries of
the workers.
TN: An employee’s compensation case is non-adversarial/non-litigious type of
proceeding. However, once it is denied by the system, it becomes adversarial.
Principle of Limited Liability
- the State Insurance Fund is not liable under the following instances:
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
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1. Injury/death brought about by intoxication (not mere, but extreme
intoxication/drunkenness i.e., entirely out of himself)
2. Self-inflicted injury
General Rule:Suicide is not compensable
Exceptions:
a. insanity
b. uncontrollable impulse
c. employee is already in a state of delirium
3. Notorious negligence (not ordinary/contributory negligence but the type of
negligence where the worker deliberately disregarded his own personal safety)
Coming-and-Going rule
Q: An employee was waiting for a ride in one corner along the street in
going to and returning from his place of work under the usual route.
While waiting for a ride, he was sideswiped by a speeding car resulting
in his death. Is his death compensable?
In the words of the SC in one case, in going to or returning from the place of
work that results in the process injury or death, as a rule, it is not compensable.
If a worker has departed from the place of work riding in a public convenience,
he is exposed to the same danger being experienced by ordinary commuters.
Once a worker departed from the place of work, the employer is not an insurer
of the safety of such worker.
Exceptions:
1. Proximity rule – point of entrance/point of exit (the employee is still
within the vicinity/proximity of the working area when the accident
happened)
2. The employer company provides transport facility to its workers
3. A worker was compelled to perform additional work to be done at home
3. SOCIAL LEGISLATION
Examples: SSS Law, GSIS Law, Philhealth Law, Pag-ibig Law, Retirement Law
4. LABOR RELATIONS
- a law that deals primarily on the concerted actions of the workers arising from
the right of workers to self-organization, collective bargaining, etc.
5. ADMINISTRATIVE LEGISLATION
- type of labor law that provides for the creation of labor bodies for
administrative purposes

6. DIPLOMATIC LEGISLATION
- type of labor law that deals with machineries of settlement
TN: Every CBA should contain a conclusive arbitration clause which should be
complied with by both parties before a notice of strike is filed.
Conclusive Arbitration Clause
- refers to grievance machinery and voluntary arbitration
Q: If a notice of strike is filed by the union with the NCMB, if you are
the lawyer of the employer where the CBA provides for conclusive
arbitration clause, what will you do?
File a case for unfair labor practice with the Labor Arbiter, or file a motion with
the NCMB for the issuance of Preventive Mediation Order (PMO). With the
issuance of the PMO, the notice of strike is deemed dismissed, as if there has
been no notice of strike that has been filed at all. So if there is a PMO but the
union still continues to strike, such strike will be declared illegal.
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Living Wage
– is not a mere subsistence wage but a wage that can provide a worker and his
family to lie in reasonable comfort; the worker and his family is given the
opportunity to enjoy a decent living
Minimum Wage Law
– provides for the minimum/demarcation law line so that wages may not fall from
the minimum; its purpose it to provide a rock bottom; applies to the wage
earners.
TN: The minimum wage or the increase of minimum wage may have been
provided by virtue of a Wage Order issued by the Regional Wage Board. Any
wage order issued in a particular region is intra-regional – cannot be applied to
other regions. If there is a wage distortion brought about by the issuance of a
wage order, the same is also intra-regional.
Doctrine of Double Indemnity

CONSTITUTIONAL BASES OF LABOR LAW - the wage order issued should be complied with by the employers in the region.
Otherwise, they are liable to pay twice the amount of unpaid wages and benefits.
1. Preamble TN: The wage order issued by the RWB should comply with the rules and
2. Distributive Justice regulations issued by the National Tripartite Wages Commission and should be in
3. 3 powers of the State accord with the standards of wage fixing (Memorize the Standards of Wage
4. Art 2 and Art 13 (protection to labor) Fixing)
A wage order is issued which may affect the wage structures of a company,
Q: Why is there a need to protect labor? which structures as between a lower-pay class and a higher-pay class. So there
Because as between Labor and Capital as factors of production, Labor is weak is an increase in wages of the lower-pay class but there is no corresponding
and helpless because of its economic dependence upon Capital. Thus, it needs increase in wages of the higher-pay class which may result to a dissolution of the
protection from the State. In Sevilla v. CA, the SC said that in determining 2 classes and ultimately resulting to a wage distortion problem
employer-employee relationship, there is the economic dependence test. As
between labor and capital, it is well-settled that the worker is dependent
economically upon the employer. And because of this economic dependence, the
employee is weak and helpless. He can be deliberately abused by the employer
having the capital investment while the worker has nothing, being only
economically dependent upon the employer.
Full Employment
– situation where one who is able and willing to work can find work under the
prevailing rates of pay and without any undue difficulty; there are more job
openings than job applicants.

Poverty

–missing much in life; the worker’s family do not enjoy a decent standard of
living/basic necessities of life.
TN:Under Art 13, to alleviate poverty, the Constitution states that the workers
should be provided with the living wage
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
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Settlement of a wage distortion problem: Social Justice

- neither communism nor despotism atomism nor anarchy but humanization of

Determine whether or not the
laws and equalization of the social and economic forces of the State so that
company is unionized justice in its rational and objectively secular conception may at least be
If with a union and the CBA provides approximated.
for a conclusive arbitration clause If no union -promotion of the welfare of all the people, the adoption of the government of
measures calculated to ensure the economic stability of all the component
1. Employer and union are elements of the society, to the maintenance of a proper economic and social
1. Settle amicably
required by law to settle equilibrium in the interrelations of the members of the community
amicably. constitutionally through the adoption of measures legally justifiable or extra-
If they cannot settle, constitutionally to the excesses underlined existence of government and the
If they fail to settle time-honored principle “salus populi est suprema lex”
- the target is the lower class of people so that those who have less in life should
2. The one who will settle
2. Comply with the conclusive have more in law.
is the NCMB
arbitration clause: Grievance
machinery. Underlying principles of Social Justice:
1. Sic utere tu ut alienum non laedas (As you assert your right, do not
impair the rights of other people)
If grievance machinery fails If still failed, 2. Salus populi est suprema lex (the welfare of the people is the supreme
law)
3. Voluntary Arbitration 3. NCMB will transmit it
(Decision of the voluntary for compulsory LAW ON DISMISSAL
arbitrator is subject to a
arbitration
motion for TN: To prove validity of dismissal, it is upon the employer to present clear and
reconsideration within convincing evidence in order to give flesh and blood to the security of tenure
10 days from receipt of clause of the Constitution. However, other divisions of the Court requires
voluntary arbitrator’s substantial evidence as quantum of proof for validity of dismissal.
decision.
Q: If you are a Justice of a court, what will you apply as a prevailing
If the motion for reconsideration is rule/doctrine to prove validity of dismissal? Clear and convincing
denied evidence or substantial evidence?
It should be clear and convincing evidence in order to give flesh and blood to the
4. Petition for review on security of tenure clause of the Constitution.
certiorari with the CA (Rule
43) within 15 days. Types of Due Process

TN: Finally, in non-unionized establishment, the one that has jurisdiction is the
Labor Arbiter whose decision is appealable to the NLRC (Art 224, LC)
Wage Order Exemption
RWB can exempt, but finally, it is the National Tripartite Wages Commission who
decides because the Commission’s rules and regulations should be complied with
before the exemption is issued. So, the RWB which does not comply with the
Commission’s rules, cannot validly issue a wage order exemption.
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
1. Constitutional – as applied against the government
2. Statutory – applied under the Labor Code (substantive and procedural)
3. Contractual – as provided in a company policy (Ex: if the company
provides/issues a policy which provides for the steps for dismissal of an
employee, but the employer himself violated the steps, there is illegal
dismissal known as violation of contractual due process.)
Q: In contractual due process, does it have the same effects of normal
consequences of illegal dismissal as in a statutory dismissal?
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Yes, the employee is likewise entitled to reinstatement, full backwages, LABOR CODE
damages, atty’s fees, 6% legal interest on monetary award.
- systematic codification of all laws in Labor; bill of obligations and human rights
Constitutional Rights of a worker (Art 13) of the workers

1. Right to self-organization
Principle of emancipation of Labor Relations
2. Right to Collective Bargaining
3. Right to Security of Tenure - there is a transformation from the Court of Industrial Relations into a National
4. Right to just and humane conditions of work Labor Relations Commission. Labor bodies are exempted from the application of
5. Right to a living wage rigorous/strict rule of procedure and evidence because the purpose of Labor Law
6. Right to engage in peaceful, concerted activites now is the administration of speedy labor justice.
7. Right to strike in accordance with law
8. Right to participate in policy and decision-making processes (principle of Day 1, Part 2 Lecture (Labor Law)
co-determination/co-sharing/shared responsibility) The jurisdictional foundation Under Art. 6 (Labor Code) of the grant of benefits is
9. Right to profit-sharing benefits the existence of the employer-employee relationship.
CASE: J. Sonsa vs. ABS-CBN
CIVIL CODE PROVISIONS ON LABOR J. Sonsa filed a case of illegal dismissal and this case reached the
Supreme Court. The sole issue of this case is whether or not J. Sonsa is an
1. Principle of non-oppression employee of ABS-CBN. The SC was on a quagmire if what kind of law, rule or
regulation or principle that they are going to apply, because in the Philippines,
– neither capital nor labor shall act oppressively against the other or impair we have no doctrine or principle covering a radio announcer. So the SC was
public interest; the relationship between labor and capital is impressed with compelled to research on foreign jurisprudence and it was found out that a radio
public interest. (Example: if an employee commits an infraction, the proper talent such as a radio announcer, in the USA, is not an employee of the radio
penalty shall be imposed. On the other hand, if an employer unceremoniously company or a TV company, but rather, he is an independent contractor, because
dismisses an employee, the employer is liable under the law for illegal dismissal according to the foreign jurisprudence, a radio talent, when he prosecutes his job
and liable to pay certain benefits under the law/normal consequences for illegal in the process, the company has lesser control and supervision on how a radio
dismissal) talent has to perform his job and since there is a lesser control and supervision
Q: An employee who was validly dismissed filed a case for illegal over him, the he should not be considered or treated as an employee but as a
dismissal which was favored by the Labor Arbiter and ordered his mere independent contractor.
reinstatement despite showing of the evidence that the dismissal was
valid. Is this proper? PREEMPLOYMENT
No. The SC in one case said that the fact that he was validly dismissed then he
should be properly dismissed. Otherwise, if he is reinstated, it is an oppression Most cases here involve Philippine Overseas Employment Administration (POEA)
which will lead to the self-destruction of capital. in relation to recruitment and placement of Overseas Filipino Workers (OFWs).
POEA has been designated to ensure that Filipino workers working abroad should
2. Art 1708; Wage v. Salary be amply protected. That is the reason why any foreign employment contract
should be approved in accord with the standard foreign employment contract
Wage – granted/paid to workers who usually do manual job; lower type of the issued by the POEA.
compensation system
Salary – paid to employees TN: POEA cannot issue warrant of arrest anymore because the power to do so is
vested on regular courts. But the exception is in the case of the warrant of
TN:Laborer’s wages are not subject to execution/garnishment but salaries are arrest issued by the Bureau of Immigration only for purposes of
subject to execution/garnishment. (for purposes of Art 1708 NCC) deportation of an undesirable foreigner or alien. Another exception is in the case
of witnesses who are called upon to witness before Congressional
TN: However, in a case, the SC said that salaries, wages, pay, compensation, investigations being conducted by the Congress or by the Senate, as the case
remuneration, all mean the same thing. It’s only a matter of legal semantics.
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz

maybe. The Senate or Congress can issue a warrant of arrest for the purposes of
compelling the witness to be present during the investigation.
RECRUITMENT AND PLACEMENT
An act of canvassing, transporting etc..(see the definition in the Labor Code) This
is a very comprehensive term and what is defined under the Labor Code is not
limited within the definition of recruitment and placement.
Examples: Even if there is only one person recruited, there is recruitment and
placement (People vs. Panis)
Mere suggestion is also recruitment and placement.
Recommendation is also recruitment and placement.
The promise that he has the ability to deploy overseas workers
although it’s not consummated,
is still recruitment and placement.
Money is not an important element of recruitment and placement.
TN: In recruitment and placement, you can file illegal recruitment simultaneously
with estafa under the Revised Penal Code. You can use the same pieces of
evidence in illegal recruitment and estafa. You can also file a case of illegal
recruitment ahead of estafa and estafa ahead of the former. The SC also said
that the doctrine of double jeopardy does not apply in the case of illegal
recruitment and estafa because the former is malumprohibitum and the latter is
malum in se. The acquittal in the estafa will not prevent the prosecution of illegal
recruitment. The doctrine of double jeopardy, according to the SC will not set in.
PRINCIPLE OF DIRECT HIRING
Direct hiring is prohibited under the law in order to see to it that OFWs are amply
protected of their rights and benefits under the law. The benefits under the
foreign employment contract should be in accord with the standard foreign
employment contract issued by the POEA.
Q: If there is a substitution of the foreign employment contract, is
there a violation?
A: It depends, if the substitution provides for higher benefits, there is no more
requirement for the approval of the POEA. But if there is substitution on lower
benefits, then, there is a violation of the law on recruitment and placement.
Direct hiring is also prohibited in order to ensure that those who are working
overseas have the necessary skills, technical or production know-how (i.e. by
TESDA). In order to have reasonable competition with other foreign workers
abroad, so that they can compete fairly, so to speak in an international labor
market. Filipinos who want to work abroad should undergo rigorous training in
order to preserve the dignity of our nation by way of deploying only those who
have necessary skills, technical know-how or production know-how. By these
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
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measures in the deployment of OFWs, we will be delivered from adverse
comments from other countries.
*international labor market- aggrupation of different workers of different
nationalities assigned or working in that particular country.
4 TYPES OF ILLEGAL RECRUITMENT (People vs. Burdoso et al.)
1. Simple illegal recruitment- committed against 2 persons. Prescriptive
period is 5 years.
2. Large-scale illegal recruitment (or qualified)- committed against 3
or more persons, singly or as a group. This constitutes economic
sabotage. Prescriptive period is 20 years.
*the number of people recruited is important
3. Syndicated illegal recruitment- committed by 3 or more persons in
confederation with one another (conspiracy). This also constitutes
economic sabotage.
4. Non-licensee illegal recruitment – committed without license or
without authority. This is the previous concept of illegal recruitment.
License (recruitment and placement) must be issued either by the POEA
or the DOLE.
(Requirements:
1. Must be Filipino Citizens
2. Capital: 5M pesos
As to inclusion of foreigners: 25% foreigners, 75% Filipinos
3. escrow deposit: 1M pesos
4.Bond requirement: 100,000 pesos
5. Deed of undertaking of solidary liability to be submitted with the
POEA
Q: Who are the parties in an employment contract?
A: Local Agency, Foreign principal of the foreign employer and the OFW
Problem: Assuming the period of deployment overseas is 1 year, upon the
expiration of the said period, without the knowledge of the local agency, by the
agreement of the foreign employer or principal and the OFW, it was extended by
them. The foreign principal violated the extended contract, subsequently, the
OFW returned to the Philippines and filed a case against the foreign employer.
But the Labor Tribunal have no jurisdiction over the person of the foreign
principal. So the OFW also impleaded the local agency, it being solidarily with the
foreign principal.
Q: Is the local agency liable for the extended contract agreed upon
between the parties?

A: No. The local agency is not liable. The extended contract between the OFW
and the foreign employer or foreign principal, although it is an extended
contract, indeed, it is a new contract where the local agency is not even a party
thereof. The knowledge of the foreign principal cannot be ascribed or imputed to
the local agency. However, the knowledge of the local agency can be imputed or
ascribed to the foreign principal under the doctrine of imputed knowledge.
TN: The provisions of the Labor Code under Book 4 apply also to Seamen,
especially on compensation claims (disease, disability, death, injury etc.)
Q: For instance, a seaman is afflicted with a disease, then he returned
to the Philippines. What is the requirement of the law before he can
claim for compensation?
A: Upon arrival here, the law requires him to report to the manning agency
within 3 days, also known as the mandatory 3-day post medical
examination. The said examination is done in order for the company doctor to
determine the decease within that period. If the seaman fails to report, his claim
is forfeited. Unless, in the meantime, he made the communication that he cannot
be present or that he cannot report personally or physically because he is
incapable of doing so (i.e. cannot walk or seriously ill). In this particular case, if
he will report within 3 days, initially, he will be under the 120-day
Rule(temporary total disability).
*For example, the company doctor did not make an assessment, initially, he will
be under 120-day Rule, if after the lapse of 120 days, the company doctor still
did not make an assessment, it will extend beyond 120-day Rule, that is 240-
day Rule(permanent total disability).
KESTREL DOCTRINE:
You have to consider the cutoff date for purposes of filing the monetary
complaint of a seaman. If the monetary complaint was filed before October 6,
2008, the rule that will apply is the 120-day Rule. On the other hand, if you filed
the monetary complaint after October 6, 2008, the rule that will apply is the 240-
day Rule.
Problem: Assuming there is a foreign employment contract of an OFW,
a seaman, while the seaman is onboard a foreign vessel, still sailing at
the middle of Pacific Ocean, his contract expired. What is the
requirement of the law?
A: Generally, if the seaman’s foreign employment contract expired, he has to be
repatriated back to the Philippines right away. But it will be impossible for a
seaman to be repatriated back to the Philippines away if the vessel he is in is still
sailing in the middle of the Pacific Ocean. Under these circumstances, the
seaman is still entitled to the benefits under the law. The SC held that he is still
entitled to his monthly salaries until the vessel reaches the port of destination
(where he will be repatriated back to the Philippines). But these monthly wages
should not exceed 3 months.(BAR QUESTION)
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
P age |8
Tips (how to answer bar questions):
Because of the act of his employer, he was compelled to resign
(involuntary/force resignation). Instead of “It will amount to constructive
dismissal”, use: It will metamorphose to constructive dismissal.
In the case of abandonment, that is the neglect of duty, in abandonment, the
employee has no more intention to return and he has the deliberate intention to
severe the employer-employee relationship. But the fact that he filed a case of
illegal dismissal or constructive dismissal, that will not amount to abandonment.
(use: “That will negate abandonment”)
In the case of sexual harassment (i.e. sexual remarks uttered by her senior
officer) can she file a case for constructive dismissal? Yes. The woman employee
can file a case for constructive dismissal because continued employment had
become unreasonable under the circumstances brought about by the constant
sexual remarks uttered by the superior officer.
You place the very meaning of the legal term in your Bar booklet (i.e. Would you
consider Pablo, a mechanic, as a regular employee in an auto-repair shop? Yes,
Pablo, a mechanic is a regular employee, because he performs job that is
usually necessary and desirable in the usual business of the employer, that of an
auto-repair shop.
The auto-repair shop was devastated by Undoy, it employed the services of a
carpenter. Is the carpenter a regular employee? No. the carpenter is not a
regular employee because he performed job that is not usually necessary and
desirable in the usual business of the employer. Or: A carpenter is not a regular
employee but a casual employee because he only performs incidental work in
relation to the principal activity of the employer.
The auto-repair shop has to be repaired and it occupies a 1-hectare land, but
there was only one carpenter who did the job, so the carpenter was able to
repair it for 10 years. Is the carpenter a regular employee? Yes, the carpenter is
now treated as a regular employee because he has already rendered services for
at least 1 year, in the case at bar, 10 years, therefore, he is a regular employee.
*PENALTIES FOR ILLEGAL RECRUITMENT AND PLACEMENT – just read
Dean Poquiz’ book
BOOK 2 (LABOR CODE)
HUMAN RESOURCES DEVELOPMENT
Book 2 has been practically amended by TESDA Act of 1994, but there are
certain provisions that are still applicable, especially on the special types of
workers (apprentice, learner, handicapped workers)

APPRENTICESHIP
An apprentice is one who is engaged to be trained in an apprenticeable or skilled
occupation. He is trained for a period of not more less than 3 months and not
more than 6 months with theoretical instructions.
*TESDA Circular No. 16 is void because it modifies Article 58-C of the Labor Code
(age requirement)
Q: Upon the expiration of the apprenticeship period, may an apprentice
become a regular employee?
A: Yes. It is settled that an apprenticeship training period is a probationary
period. So after the training period, the apprentice becomes a regular employee.
Although, The Labor Code says that upon expiration of the training period, the
law does not compel an employer to absorb apprentices but there is no
prohibition to absorb, hire or employ them.
TN: In case of pre-termination of apprenticeship contract, an apprentice does
not automatically become a regular employee.
*In case of compensation, if the training company avails of the tax incentive
program of the government, were training expenses are tax deductible, the
company-employer is required to pay the apprentice a full-month pay.
*Qualifications for apprentices are provided
LEARNERSHIP
Upon the expiration of the learnership period, the law requires the training
company to absorb the learners.
*In case of pre-termination of learnership contract, a learner automatically
becomes a regular employee, provided that he has already been trained for 2
months.
*In case of compensation, a learner on piece-rate or incentive rate-basis, is
entitled to full-month pay.
*Qualifications for learners are not provided
Problem: In the case of apprenticeship agreement signed between the
parties, the employer of the training company and the apprentice, what
is the requirement so that the apprenticeship agreement would be
valid?
A: They should be covered by an apprenticeship program approved by TESDA.
Without the said training program (apprenticeship or learnership) approved by
TESDA, the Supreme Court said that the training agreement is not enforceable.
So, if it is not enforceable because there is no training program as approved by
TESDA, then what is the legal consequence of an apprentice covered by a
training agreement but without any training program? The SC said that without a
training program, even though there is a training agreement, an apprentice
becomes an irregular employee.
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
P age |9
DISABLED/HANDICAPPED WORKERS
They are trained either as an apprentice or as a learner. If trained as an
apprentice, then the rules on apprenticeship will apply. On the other hand, if
trained as a learner, then the rules on learnership will apply.
*training agreement is an employment contract
*In case of violation of a training agreement (apprenticeship agreement), does
the Labor Arbiter have jurisdiction (Case of Singapore Airlines)? The SC ruled
that the Labor Arbiter has no jurisdiction because the one that has jurisdiction
initially is the Apprenticeship Plant Committee level, then the Regional Office,
finally, is the Secretary of Labor and Employment.
*under the Labor Code, a disabled worker is not entitled to full-month pay, but
under the PWD Law, a disabled worker is equated with an able-bodied worker.
BOOK 3 (LABOR CODE)
WORKING CONDITIONS
TITLE 1, CHAPTER 1 IN RELATION TO ART. 82 – all employees are covered
except the following:
1. Government employees
- There is a separate law that covers them, the Civil Service Law
- Except: employees of government, subsidiaries or corporate
offsprings. They are employees of GOCCs without original charters
- Cases: Lumantaw v. NLRC, National Service Corp. vs. NLRC
(defining the 2 kind of corporations)
2. Managerial employees
- They are but the extension of the person of the management, they
are the alter-ego of the management. Indeed, a managerial
employee is an employer because from the perspective of a rank
and file employee, he is an employer but from the point of view of
the management, he is an employee. This is a fusion of two
personalities in one person.
- Managerial employees supervise at least two or more people
- They are not subject to rigorous working period of 8 hours
- They exercise independent judgment and discretion – any of their
act is not subject to approval by higher management authorities
- Their recommendation is usually given weight by the employer
3. Officers and members of the managerial staff
- They assist managerial employees in the exercise of independent
judgment and discretion
- Note: the supervisory employees defined under Book 5 of the Labor
Code are now treated as officers and members of the managerial
staff. They are not covered by Art. 82 of the Labor Code.
4. Field personnel
- They work away or in a distant place. The employer has no
supervision on how field personnel has to perform his work.

- Except: when the nature of the work is in the field but the employer
has supervision over him (auto-bus doctrine)
5. Immediate members of the family
- Being a member of the family may give you additional perks or
benefits that may not be given to other ordinary workers.
- They are not covered, otherwise, it will cause family breakups
6. Domestic servants/house helpers
- They are the one who provides personal comfort or convenience to
the immediate members of the family.
- Bar Question: is personal massage part and parcel of providing
personal comfort or convenience to the immediate members of the
family?
7. Those who render personal service to another
- The best example is personal bodyguard or personal nurse. The
service here is personal in nature, not to be done by proxy.
8. Workers paid by results
- Piece-rate workers, pakyaw workers, task workers etc.
- The completion of the work is important regardless of the time and
effort in doing the work
NORMAL WORKING PERIOD OF 8 HOURS
-beyond 8 hours, overtime (25%)
- overtime work is voluntary in nature because the employer cannot compel the
employees to work overtime, except in the following conditions:
1. national or local emergency
2. calamities
3. urgent repairs needed on machines
4. in order to avail on favorable weather conditions
5. in order to comply with the 24-hour work period
6. in order to prevent destruction of perishable goods
OVERTIME
- Undertime is not offset by rendition of overtime work- because it is
against public policy.
- The employer will be exempted from the payment of overtime rate
if undertime can be offset by the rendition of overtime work, that is
why this is against the law and public policy.
- Offsetting will open the flood gates of abuse by the employees,
because they can schedule their own working period at will. The
working period will be dependent upon the workers and not upon
the employers.There will be a shift of management prerogative to
the employees.
- Holiday was offset by ordinary regular working period (against
public policy)
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
P a g e | 10
Q: Can there be a compressed work week scheme under the flexi-time
rule?
A: Yes, for economic and health purposes. This could minimize in the meantime
the economic downfall of the company. There will also be savings of energy, like
electricity and water consumption. This can also be applied in the case of
industries that manufacture chemicals for health purposes. Provided, it will not
exceed 12 hours during the day, or 48 hours during the night.
WORKING PERIOD
It is the compensable working period.
Q: What are the 3 concepts of compensable working period
A: 1. Period when the worker is at the place of work performing his job
2. Period when he is not at the place of work but performing his work for the
benefit of the employer
3. Period when the worker is permitted to work or he has suffered work
CONCEPT OF EXPANDED WORKING PERIOD or COMPENSABLE HOURS
WORK
- It includes the period when the worker is not performing his work
but is still being compensated. Such as where he is a secretary or
clerk who was required by the employer to provide cups of coffee or
drinks to the visitors in the office of the company
- What are these instances under the law od compensable
working period under the expanded meaning?Waiting time is
working time such that of a driver or an IT employee whose
computer needs to be repaired and he needs to wait until it is
repaired. Sleeping/napping time as working time, such as a person
assigned night shift for loading or unloading cargoes. Travelling time
as a working time such as in the case of a messenger.
*on call employees - if he cannot do his chores for his benefit,
compensable. But if he can do his chores without any benefit on him,
not compensable.
*meal period – not compensable, except if the period is 20 minutes
and below.
- 1-hour period of meal can still be compensable, in
the case of a mechanic, if he is required to eat his lunch for one hour,
but he cannot depart from his place of work because there can be an
emergency work anytime (possible BAR Question)
*preliminary and post-liminary activities/before work activities and after-
work activities are still working period, therefore, compensable. (portal
pay)
SERVICE INCENTIVE LEAVE (5 Days Leave credit)
This is convertible into its monetary equivalent if not availed. Except in the case
of kasambahay, because if the latter did not avail of his or her service incentive
leave, the same cannot be converted into its monetary value.

Q: May an employer be exempted from the payment or grant of this
service incentive leave?
A: No. If in the meantime the employers are already granted the benefits in the
form of leaves, say for example, under the CBA employment contract policy, 25
days leave credit, the employer is not required anymore to pay or grant the 5-
day leave credit.
Q: Is service incentive leave, a vacation leave?
A: No. A service incentive leave is not a vacation leave, but when the employee
avails of the service incentive leave, in effect, he is on a vacation.
SERVICES CHARGES
- Are charges collected from guests or customers of a service
establishment like hotel, massage clinic or restaurant
- 85% to be given to the regular rank and file employees and 15%
to the employer – in order to subsidize whatever loses of the
employer in the process (i.e. broken plates, glasses)
Q: Are managerial employees entitled to service charges?
A: No. As a rule, they are not entitled to service charges, however, from the 15%
allocation of the employer, at his own discretion, a part of it can be given to
managerial employees.
Q: Are tips service charges? No
Q: Are tips part of wages? No
Because they are directly given to the service personnel, unlike service charges
that should be turned over to the employer for distribution.
Q: Could these tips be pulled together as a practice of the personnel or the
employees.
A: Yes, it can be put together for purposes of distribution later on. (among
themselves only, not with the employer)
Q: When maybe service charges be collected by the employer?
A: The service establishment can collect service charges only if there is a policy
of such establishment on service charges. So if there is no policy of the
establishment on the collection of service charges, Art. 96 on service charges will
not apply.
HOLIDAY PAY
Holiday – is a day set apart by law in order to commemorate an important
event.
- The employer is compelled to pay payment of holiday pay to a
person although he does not perform his work
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
P a g e | 11
2 Types of Holidays
1. Regular – there are 10 regular holidays and 2 national holidays (Muslim
holidays) under the law, the 2 national holidays are also regular holidays
although they are not termed as such
- You are entitled to 100% of your daily rate if you report to work
during these days
2. Special non-working days – under the law, there are 9 special non-
working days
- You are entitled to 130% if you report to work, but 0 if you do not
report
TOTALITY OF INFRACTIONS RULE
Penalizing the employee for the same offense. Subsequent offense in relation to
the present offense.
Outside of the rules and regulation the SC applies the Principle of charity,
compassion and understanding, compassionate justice, substantial justice,
human consideration on the basis of equity. Equity is justice outside the law.
This is in relation to social justice.
This will apply to the people in the lower bracket of the society, the poor people
etc. Like a janitor, who is a lowly employee who was dismissed. SC did not
confirm the dismissal because he is a lowly employee, his dismissal would include
his family. Principle of charity and understanding will apply, considering the lowly
plight of the poor employee.
INSUBORDINATION
Willful intention to disobey a rule and regulation by the company which is
reasonable, deliberately violated by the employee, in relation to the performance
of the duties of the employees. Example, motorpool in the company. No vehicle
can be taken out without the approval of the company.
Other infraction, total damage of the company car, there is gross neglect of duty.
Being the driver, he should take care of the company property. The dismissal is
valid.
ACTUAL AND WILLFULL BREACH OF TRUST
GROSS AND HABITUAL/ GROSS OR HABITUAL – The SC decided that although
not habitual if it were gross, that would justify dismissal. The conjunction AND is
now interpreted as OR by the recent jurisprudence.

GROSS NEGLIGENCE is the total absence of care in the protection of company
property. In SEVERE AND EXTREME cases would justify dismissal.
TERMINATION ON THE PART OF THE EMPLOYEE
CONSTRUCTIVE DISMISSAL
Quitting from the job because continued employment has become impossible,
unlikely, unreasonable, unbearable under the circumstances. Or any disdainful
act that would compel an employee to resign or voluntary/force resignation
which will metamorphose into a case of a constructive dismissal.
SERIOUS INSULT/UNBEARABLE TREATMENT
Employer wounds the feeling of the employee. Then she resigned. She can file a
case for constructive dismissal. Example he is a Field Chief Engineer but no
people under him. He was relegated to the background. There is a demotion to
Chief Janitor.
There was demotion in rank is constructive dismissal. Diminution in pay is
constructive dismissal. Continued employment has become impossible,
unreasonable, unbearable or unlikely. Any disdainful act of the employer to the
employee will metamorphose to a case of constructive dismissal.
Hurts the feeling of the employee.
ANALOGOUS CASES
PROLONGED ABSENCES, Unauthorized absences
GROSS INEFFICIENCY/NEGLECT OF DUTIES
ABANDONMENT/NEGLECT OF DUTIES
Deliberate or willful intention on the part of the Employee (EE) not to return. To
severe Employer(ER)- Employee (EE) relationship. Overt act of the EE that he
does not want anymore his job. But if he has the intention to return, that will
negate abandonment.
Example Employee (EE) after exhausting his leave of absence did not report
back. After two weeks the EE returned after dismissed by the employer.Punit-
punitang time card is the indication of severing employee and employer (EE-ER)
relationship according to the SC.
That fact that he filed the case of constructive/illegal dismissal will negate
abandonment.
Any disdainful act of the employer will metamorphose into a case of constructive
dismissal if he resigns or quits from the job or forced resignation.
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
P a g e | 12
RESIGNATION as a rule is voluntary in nature. It is an act of the employee
where his personal reason cannot be sacrificed in favour of the exigency of the
service. To validate resignation should be in writing and should be accepted by
the employer in writing.
Q: Can EE withdraw resignation before acceptance.
A: Yes, he can withdraw resignation before acceptance by ER. Once accepted he
cannot withdraw, there is already termination of the EE-ER relationship.
Reinstatement is the mandate of the law. EE can be re-employed by the ER. It is
a discretion of the employer, treated as a new employee (EE).
Q: Can resignation be made verbally?
The SC said there is no prohibition of an employee to resign verbally, once
accepted by the ER in writing the resignation is already FAIT ACCOMPLI, means
consummated or already effective.
TN: Verbal resignation is allowed according to the SC.
Problem: An EE was caught stealing company property, ER about to file the
criminal case in court. The employee (EE) talked to the president of the
company.They made an agreement that the EE will resign first to determine
good faith and a criminal case will not be instituted against him. The agreement
is valid, the EE resigned and the ER did not take criminal action against the EE.
Is the agreement valid?
A: Yes. The SC said the agreement between them is a win-win solution. On the
part of the employer ER, it will not entail protracted litigation, were the company
will have to shell out litigation expenses, on the part of the employee (EE) that
will not taint his employment record which is his passport to a future
employment opportunity. The criminal taint of an employee will foreclose the
employment opportunity of the employee. Therefore, it is valid according to the
Supreme Court.
AUTHORIZED CAUSES
AUTOMATION/ INTRODUCTION OF LABOR SAVING DEVICES
This is the REPLACEMENT OF WORKERS BY THE INTRODUCTION OF MACHINES
WHICH RESULTS IN TECHNOLOGICAL UNEMPLOYMENT, FOR ECONOMIC
REASONS/PURPOSE, the machines may be considered costly but in the final
analysis would redound to the economic welfare of the company.
Replacement of muscles with machines is automation or introduction of labor
saving device.
San Miguel Corporation bought a speed machine that can produce several bottles
of beer in a given moment. It is valid the SC said. As long as it comply with the

requirements of 2 separate notice rule, 30-day notice rule, to justify the
discharge of the employees, notice of dismissal should be inwriting, notice of
dismissal to the individual. There must be a fair and reasonable criteria, last in-
first out rule based on efficiency, skills, age and competence. Must be done in
good faith. If done in bad faith it will metamorphose into a case of constructive
dismissal.
Payment of separation pay - 1 month pay for every year of service.
RETRENCHMENT
It means reduction of company personnel to prevent losses, or downsizing or
delayering the staffing pattern.
In the words of the SC the purpose of retrenchment is to prevent the eventual
economic catastrophe that would lead to the downfall of the employer. The very
purpose is to prevent losses. According to the SC losses means actual,
anticipated and impending losses.
The ER that sooner or later its economy will go down to the drain,
gumawanasiyangparaan para huwagsiyangbumagsak. The ER can embark in a
retrenchment program.
Requirements of a valid retrenchment. Two separate notice rule, fair and
reasonable criteria, good faith, proof of financial losses to be proven financial
statement audited by external independent competent auditor, separation pay
½ month pay for every year of service.
REDUNDANCY
There is no duplication of work. The position is redundant when it is
superfluous, overhiring of workers, surplus workers,closure of particular product
line or economic activity previously made by the employer but it does not mean
there is duplication of work.
Workers are not needed, surplus workers can be validly dismissed or discharged.
Decline of the volume of production. In the words of the SC workers of the
company become redundancy or redundated.
Requirements same as retrenchment.
DISEASE
Separation pay of HALF month pay for every year of service. Medical certification
of a government, public health authority. The ER will prove that the disease
cannot be cured by six months. If curable, leave for 6 months. If cured, he can
REPORT back to work when he is now in his normal health. Otherwise, he can be
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
P a g e | 13
dismissed because it can prejudice the health of the co-workers.Example HIV.
It is a product of sexual adventurism, sexual perversion.
What kind? Contagious or non-contagious. The law does not distinguish what
kind of disease.
CLOSURE OF BUSINESS
Partial and total closure.
Particular department or product line or economic activity. Ground of closure is
serious financial reverses. Partial closure is retrenchment.
Total closure serious financial reverses- no separation pay. But for the heck of it
that law requires pay ½ month pay for every year of service.
Closure of business is brought about by economic loss. Availment of separation
pay.
PROCEDURE
1. 1ST NOTICE- FORMAL and specific charges, ground on the constitutional
mandate the person shall be informed of the charges against him.
Example, serious misconduct should be specific. Sexual intercourse in
company premises. The EE can submit an intelligible and specific
answer.
2. Made a responsive writing to the employer. The ER did not conduct a
hearing or conference. There is no violation of due process. Only ample
opportunity to be heard. Substantial compliance of the rule.
3. Perez doctrine compliance with due the process requirement. If
requested by the EE, there will be a hearing.
4. EE notified of the charges against him and required to submit written
explanation to answer of the charges against him. ER conducted the
hearing or conference. Ample opportunity to be heard.(hearing or
conference)
5. 2nd NOTICE- dismissal. Number 1: The purpose is to inform the
employee (EE) of the decision to dismiss him by the company. Number
2: Give the EE the opportunity to contest the validity of dismissal by
filing the proper case of illegal case in Regional Arbitration Branch of
the NLRC having the territorial jurisdictionover the workplace of the
complainant.
Violation of the substantive aspect and procedural aspect is illegal dismissal.
NORMALCONSEQUENCES
1. Reinstatement- restoration of the dismissed employee to his former position
without loss of seniority rights etc.

Physical/Actual- performance of his job and paid his compensation.
and Payroll Reinstatement- not perform his job but provided or paid his
compensation.
Payroll reinstatement- is there a violation of the principle that a fair days wage
for the fair days labor. Yes thereis a violation, although there is a violation of this
principle should be implemented although it is harsh on the basis of the legal
maxim ”duralexsedlex”.
After the reinstatement- the order it is self –executory. There is no need a need
of a writ of execution.
Is it possible to perform the work and comply with the order of reinstatement
with immediacy. It is immediately self-executory.
Despite the order of reinstatement the ER was abstinate or stubborn in
reinstatement of the employee. What will you do? File the employer in contempt
the ER, motion for thepayment of the monthly salary.
Under rule 211 rules of procedure even without motion the Labor Arbiter can
motuproprioissue a writ of execution only for purpose of reinstatement. If the
employer is stubborn in reinstating the employer.
Reinstatement aspect is immediately executory at the Labor Arbiter level only. As
regards the decision of the NLRC, Court of Appeals and Supreme Court there is
aneedof a motion for execution.
Circumstances:
2.Full backwages
3.Attorneys Fees
4. Damages 6%
5. Monetary award
REINSTATEMENT- restoration to his previous position
Overseas Filipino Workers (OFW) and Disabled Workers please take note of the
principles.
Circumstances that bar reinstatement:
1. Dismissal for a cause.
2. EE does not like to be reinstated. Because of fear of reprisal. She is
imposed with additional functions and duties. Will be assigned to other
work other than his expertise, or assigned in far flung areas, not
anymore see his family and there is fear for his life.
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
P a g e | 14
3. Principle of waiver and laches. Fail to assert the claim and the claim has
been stale for 4 years.
4. Stale claim is laches.
Principle of Strained Relationship - severe antagony to the point
that reconciliation is not possible. The proper remedy, reinstatement is
not anymore feasible. Separation pay as a form of compromise to
reinstatement. If the reinstatement is not possible, in lieu of
reinstatement, payment of separation pay as a form of compromise to
reinstatement.
Position filled up and position abolished. Similar or substantially
equivalent position. The remedy is payment of separation pay as a form
of compromise to reinstatement.
In closure of business, reinstatement, is a legal and physical
impossibility. Resignation pay, retirement pay. Employee has become
over age,payment of separation as a form to compromise to
reinstatement.
Not conducive to working company.
Physical disability of the EE.
Reinstatement is not proper, OFW are employed for a fixed term or
contractual for a specific period. Kasambahay law reinstatement is not
allowed. Kulangot doctrine principle of fiduciary relationship.
FULL BACKWAGES - INCOME earned elsewhere, or other sources or
cannot be deducted from the full backwages.
Illegal dismissal entitled to full back wages, only awarded to one year
backwages. Why the SC declared that full back wages may not be
awarded:
1. Dismissal is too harsh a penalty.
2. The employee is dismissed, employer in good faith in dismissal.
3. There was misapplication of the law applied by the Employer in
admitting the Employee.
The award of backwages, 3-5 or 1 year back wages. Limited back wages
doctrine.
AWARD OF DAMAGES - there is injury in the constitutional right of the
worker. The right to labor is the right to property within the mantle of
constitutional protection.
Dismissal is against law, public policy, moral, conduct.

Exemplary damages is awarded- in oppressive, whimsical, arbitrary,
despotic, or cruel manner
The bases of giving of Moral Damages is exemplary damages.
Factual and Legal basis in the text of the decision itself. So if there is no
discussion, and the award of damages should be deleted.
There is no basis for the award of the attorney’s fees.
DAMAGES/ATTY. FEES
Ordinary and extraordinary cases
6% legal interest on MONETARY AWARD brought about by the Bangko
Central ng Pilipinas.
TYPES OF EMPLOYMENT
REGULAR, casual, probationary, fixed term contractual, season, project,
non- project
REGULAR – two kinds as to nature and years of service
Nature of work- necessary and desirable in the usual business of the ER
Mechanic of auto repair shop
Services of the carpenter-not necessary and desirable in the trade or
industry of the employer. He is a mere casual employee. He performs
job Incidental to the principal business of the ER.
One hectare repair shop in ten years. A regular employee according to
years of service.
Because rendered services for atleast one year. In the case at bar 10
years hence regular employee.
Continuous, intermittent service for atleast one year is a regular
employment.
555 regular. 2 months rehire and 5 months again. A regular employee.
15 months.
CONSTANT REHIRING- successive rehiring, all of the these are badges
ofregular employee or indicators of regular employment
Exception: OFW inclusion a seamen. Fixed period, contractual basis
Millaris case.
Contractual employment is allowed under the law.
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz
P a g e | 15
Fixed term employment- before engagement informs him that his
contract has a fixed period, upon arrival of the day certain, he is
terminated from his services. No more need of notice of termination.
Contractual employment- upon arrival of the day certain the fixed
term employment the contract terminates by itself.
The contract terminates by itself.
Contractual employment is allowed. Endo there is certain establishment
that need contractual employment.
PROBATIONARY EMPLOYMENT
Training period towards regularization
General rule the training period is 6 months. Exception: below 6 months
will agree. It is valid. Can also be beyond 6 mos. It is still valid. There is
no prohibition especially if the nature of the job will require an extensive
training. Example an atomic bomb factory. Probationary for 10 years.
Manual of private education. 3 years full time teacher. Unless assigned
to finish a Masters degree. UE Manawis case. Regularization 3 years full
time satisfactory service. Failed to finish a Masters degree. Not provided
in the employment contract but stated in the manual. Not agreed upon
in the parties. Deemed written in the employment contract. He cannot
attain the regular employment.
APPRENTICESHIP is a probationary period. There is a possibility to be
regular employee- TRAINING PERIOD, LEARNERSHIP UPON expiration
automatic regular employee.
Another One month probationary period will be regular employee.
Double / successive probationary period is not allowed
Probationary employee can be dismissed by the employer at anytime for
2 instances: just or authorized causes
Failed to comply with the standards of the employer which were known
to him prior the employment.
All employee have security of tenure regardless of their status, they are
protected by the constitution.
NO THEREAT, INTIMIDATION, COERCION BY THE EMPLOYER
INORDERTO GIVE His consent on the fixed period of the employment
SEASONAL EMPLOYMENT
An employee is employed for a particular season. If the employee is
hired season to season. performing the same task, he is a regular
seasonal employee.

Employee employed for several seasons. Whether or not the seasonal employee
is covered the SSS law.It was already settled by the Supreme Court. The
employee is employed fromseason to season, performing the same task is a
regular employee and therefore covered by the SSS Law.
Particular season.
PROJECT EMPLOYMENT
Employee performs a specific undertaking or project, upon the completion of the
project automatically there is termination of services of the employee. Project
employee is related to the fixed term employment or contractual employment.
If there is constant rehiring of the project employee the SC said it is a badge of
regular employment. Or an indication of regular employment. Exception: if the
employee of a construction agency/industry, despite completions of several
projects and rehiring in several projects, he will never attain regular employment
according to the Supreme Court.
In the case of project employment the law requires the employer to submit
reports of termination of the project in the nearest DOLE office. Without such
termination reports despite the fact that there are many project terminated, they
are not project employees but regular employees.
None project employees are assigned to perform a work without regard to a
specific project or undertaking:There are 3 types: casual- do only incidental
work, probationary employee-under the law, 6 months duration unless there is a
contrary agreement between the parties and after probationary period
maybecome a regular employee.
A non-project employee who is a member of the workpool and allowed to render
services to others is not a regular employee. But prohibited to render work to
others, he is a regular employee.
RETIREMENT- component parts of the retirement pay:
1. 15 days of Monthly salary times
2. Years of service times
3. 5 days Service Incentive Leave (SIL) times
4. 1/12 of 13th month pay
In the absence of the employment contract, CBA, company practice of any
retirement plan or program of the company the retirement law shall apply. The
retirement plan of the company which provide for better retirement benefits
based on policy, practice, CBA, it shall be applied.
In a case of Statutes of Limitation Book 7
Prescriptive periods:
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P a g e | 16
1. Pure monthly claims-3 years
2. Incremental fees out of tuition fee hikes 3 years
3. Compensationclaims, disability claimsincluding a seaman- 3 years
4. POEA standard employment contact as per regulation seamen OFW-1
year
5. Case voiding the provision of the claim-3 years
6. Criminal cases -3 years
Exception: ULP- 1 year
7. Simple illegal recruitment-5 years
8. Syndicated large scale illegal recruitment-20 years
9. Criminal aspect of SSS law-4 years
10. Illegal dismissal-4 years
11. Damages, fullbackwages and attys fees are normal consequence of
illegal dismissal -4 years (Justice Leonen)
12. SSS claims-10 years
13. GSIS claims-4 years
Eg. Retired government employee, he went to the US to join his family.
Forget about the retirement claim, happy with his grandchildren, after 10
years claim GSIS. Will the claim prosper? Yes the case will prosper. Under
the GSIS law retirement benefits is imprescriptible.
Imprescriptible: retirement and life insurance claim
Book 5
NLRC is a tripartite tri-sectoral body, it sits en banc or in division.en banc for
policy determination and promulgation rules and regulations that will govern its
proceedings. Quasi-judicial functions lodged upon the different divisions. The
presider is coming from the government sector.
Tripartism under the labor relations law. Qualifications: 15 years members of the
bar, 5 years experiencein labormanagement matters. Mindanao CDO, Visayas
Cebu, Manila anyone of the divisions
Labor Arbiter- 10 years in the practice of law,5years experience on labor
management relation matters
Powers of the NLRC
1. Contempt power-protect the dignity against its proceeding, direct and
indirect
2. Injunctive power or TRO in order to prevent irreparable damage to the
claimant and to preserve the status quo or status quo order anti. TRO
has lifespan of 20 days. Hearing must be conducted. The same Labor
Code provides that the NLRC can issue TRO ex parte.
3. Exparte TRO issued without the presence of the other party. It is valid.
Why ? Because it is a mere interlocutory order prior the issuance of a
writ of injunction.
BAR AREA

4. The power to resolve certified case coming from the president or the
Secretary based on a labor dispute of a vital industry indispensable to
the national interest. Assumption power/
preemptive/ extra ordinary power/ an emergency power of the NLRC of
a national interest case.
This is in accord with the police power. Nature of the assumption power
is plenary, full, complete and at the same time discretionary.
eg.Bagoong industry in Pangasinan.
Assumption power by nature is plenary, full, complete and at the same
time discretionary.
Q: The Secretary of Labor issued an assumption order. After the issuance of the
Q: What are those appealable to the NLRC?
assumption order, it can be a resolution, the employer and the union agreed
between themselves for it to be resolved by a group or panel of voluntary
arbitrators. May a voluntary arbitrator resolve a vital industry dispute?
A: YES
TN: The decision of the voluntary arbitrator is subject to a motion for
reconsideration. If it is denied, that is the time that you can file a petition for
review on certiorari under Rule 43. That’s the requirement of (something)
National Colleges Doctrine.
Q: What are the legal effects or legal consequences of an assumption
order?
1. It has the effect of a writ of injunction.
2. The striking workers should return to work. If they fail to return to work,
they can be validly dismissed. Because with their failure to return to
work, that is already treated as a prohibited activity. They should
immediately return to work and the employer should immediately
reinstate them.
■What if before the issuance of an assumption order, the striking
workers committed illegal acts in the process? Can the employer not
reinstate the workers? The employer cannot do that. What is the
mandate of the Labor Code? Once an assumption order is issued, the
striking workers should immediately return to work and the employer
should immediately reinstate them.But upon reinstatement, that’s the
time that a disciplinary action can be taken against them or their
dismissal as the case may be.
■ What if they cannot be reinstated because of some circumstances?
(UST Faculty Union and The Sid Hotel cases) UST hired replacement
teachers, they started teaching. Nagkaroon ng assumption order. The
striking teachers should return to work. But the replacement teachers
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P a g e | 17
already started teaching. Physical reinstatement is not possible. They
should be reinstated in the payroll. Under special circumstances. As an
exception, there could be no actual replacement but only in the payroll.
3. With an assumption order issued, the Secretary of Labor has concurrent
jurisdiction with the Labor Arbiter as to those cognizable by the Labor
Arbiter provided that these are the very issues under assumption order.
Case of illegal dismissal, strike, unfair labor practice, money claims. All
of these are issues under assumption. The Sec. of Labor can resolve
these issues. These are pending cases with the Labor Arbiter. The
Secretary of Labor can takeover these pending cases.
 Decisions of the Labor Arbiter under Art. 224 of the LC; art. 124 on
wage distortion problem; in non-unionized establishment (a company
without a union)
 Decisions of the Labor Arbiter over cases transmittedfor compulsory
arbitration by the Regional Director under Art. 128 on visitorial
inspection & enforcement powers
 TN: Pag compulsory arbitration, labor arbiter. Pag voluntary arbitration,
voluntary arbiter.
 TN: Money claims under Art. 224 exceeding P5000, labor arbiter. But,
what are the two instances where money claims are beyond the
jurisdiction of the labor arbiter? The exercise of visitorialand
enforcement power, regardless of the amount of their claim, under art.
128, the RD has jurisdiction. Another, aggregate amount of money claim
is less than P5000 and there is no claim for reinstatement, exercise of
adjudicatory function is with the RD. Last one, even beyond P5000, the
labor arbiter has no jurisdiction if the money claim was the subject of
voluntary arbitration.

Decisions of the LA on matters involving employees of GOCCs without
original charters

Decisions of the LA concerning OFWs including seamen
Unfair Labor Practices (Art. 224) ㅡ labor arbiter has exclusive and original
jurisdiction
EXCEPTIONS (jurisdiction of the LA over ULP): assumption of jurisdiction (art.
278); voluntary arbitration; visitorial and enforcement powers

May ULP be committed in the absence of employer-employee relationship?
 As a rule, dapatmeron.
 EXCEPTIONS: a) ULP committed by non-employees (agents); b) Yellow
dog contract (committed against an applicant to the job); c) ULP
committed against a non-employer or the doctrine of an innocent
bystander (ex. Strike in an area where several companies are located,
the non-employer who is affected is an innocent bystander)
Explain ULP in one sentence.
 All acts committed by the employer/union which constitute interference
to right of workers to self-organization.
ULP committed by an employer:
a) Requiring as a condition of employment that a person or an employee shall
not join a labor organization or shall withdraw from one to which he belongs;
b) Contracting out services or functions being performed by union members
when such will interfere with, restrain, or coerce employees in the exercise of
their right to self-organization;
c) Discrimination as regards to wages, hours of work, and other terms and
conditions of employment in order to encourage or discourage membership in
any labor organization; and
d) Dismissal, discharge, prejudice or discrimination against an employee for
having given or being about to give testimony under the Labor Code. (Art. 248,
249 of the Labor Code, as amended)
ULP committed by a labor union:
a) Restraint or coercion of employees in the exercise of their right to self-
organization: However, the labor organization shall have the right to prescribe its
own rules with respect to the acquisition or retention of membership; and
b) Causing or attempting to cause an employer to discriminate against an
employee, including discrimination against an employee with respect to whom
membership in such organization has been denied or terminating an employee
on any ground other than the usual terms and conditions under which
membership or continuation of membership is made available to other members.
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P a g e | 18
ULPs committed by both employers and labor organizations:
a) Interference, restraint, or coercion of employees in the exercise of their right
to self-organization;
b) Violation of a collective bargaining agreement, when circumstances warrant;
c) Initiating, dominating, assisting or otherwise interfering with the formation or
administration of any labor organization, including the giving of financial or other
support to it or its organizers or supporters;
d) Violation of the duty to bargain collectively; and
e) Payment by employer of negotiation or attorney’s fees and acceptance by the
union or its officers or agents as part of the settlement of any issue in collective
bargaining or any other dispute (Art. 248, 249 of the Labor Code, as amended).
SWEETHEART CONTRACT
 A contract made through collusion between management
and labor representatives which contains terms beneficial to
management and unfavorable to union workers
ULP – discouraging unionism by physical violence or psychological warfare (ex.
“bayaganyung union leader"; padalhan ng black ribbon to represent death;
padalhan ng red ribbon cake na may nakalagayna condolence, etc.)
 Discrimination per se is not ULP. But if the discriminatory act is designed
to discourage unionism, it is ULP. In terms of promotion, transfer,
retrenchment, rehiring, layoff, dismissal, etc.
Refusal to bargain collectively
 Duty to bargain collectively ㅡ mutual obligation of both the employer
and the union to confer promptly and expeditiously on reasonable terms
and conditions of employment and in good faith, providing in the
process the machineries of settlement (grievance machinery and
voluntary arbitration); and once the parties agree with the terms and
conditions, they reduce this into a collective bargaining agreement for
proper implementation
 Standards of collective bargaining ㅡ mutual bargaining, prompt
expeditious bargaining, reasonable bargaining, good faith bargaining

 Mutual bargaining ㅡ initially, the one that initiates is the collective
bargaining agent or the union by submitting a CBA proposal to the
employer
■ Within 10 days from receipt of the CBA proposal, the employer should
submit a counter proposal. If the employer delays, in the words of the
SC, that is an indication of refusal to bargain which is an unfair labor
practice.
■ Can the employer initiate collective bargaining? Yes. There is no
prohibition.
■ If the employer did not submit at alla counter CBA proposal, there is a
penalty imposed by the SC. The proposal submitted by the union will
now become the governing CBA in the bargaining unit.
■ If the employer submits the counter proposal and tells the union to
take it or leave it (Boulwareism) or injected off tangent matters,
delaying the bargaining process, it is an unfair labor practice. It appears
as if the employer is negotiating when in fact they have no intention of
signing an agreement with the union. (SURFACE BARGAINING)
■ Assuming the union submitted a CBA agreement that contained
exaggerated economic demands that are unreasonable, is the union
liable for unfair labor practice? YES. It is engaged in BLUESKY
BARGAINING.
■ During the bargaining process, the employer wanted to avoid its duty
to bargain so the employer puts up a shop in a faraway area. The
operation of business is transferred, the machinery is transferred, etc.
The purpose is t o runaway from its obligation of bargaining. (RUNAWAY
SHOP)
■ May the union validly stage a strike in a new relocation area? YES
because the Labor Code says a strike area includes runaway shop.
 Company unionㅡ organized by the company; even if it was an active
union but was captivated by the company, it can be a company union.
■ The union is already existing for 4 years but despite existence for 4
years, no CBA has been agreed upon by the parties. That is an
indication of passivity of the union (company unionism).
■ Company union providing negotiation fees ㅡ prohibited to prevent a
sweetheart contract. (ULP on the part of the company)
■ Union accepting negotiation fees from the employer ㅡ prohibited
(ULP on the part of the union)
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P a g e | 19
Gross, flagrant violation of the CBA
-This is a violation of the economic provisions in the CBA. This includes the
agreement on money matters such as an across-the-board wage increase.
ULP on the part of the union
-In case of a ULP on the part of the union, consider the following:
1) Restraint
2) Coercion
3) Discrimination
-There are cases where discrimination can also be permitted by the union.
For example, the union requested the employer:
a) to dismiss an employee who does not want to become a member of
the union
b) not to promote an employee
Other forms of ULP on the part of the union:
Acceptance of Negotiation Fees
Blue-sky Bargaining
Engaging in a Featherbedding activity
-Under the Labor Code, featherbedding activity is committed by the union as
when the union compels the employer to pay for services rendered or not
rendered at all. This is why it is a form of extortion committed by the union
against the employer.
-Q: Simply stated, what is featherbedding?
A: It simply means “to make work,” “to prolong the work for the union to earn
money which is now considered a form of extortion”.
-Examples:
1) The new Board of DVOREF wanted to have a base bid of the different
buildings of DVOREF to be painted anew. The union was hired to paint the
different edifices, the buildings. And so, the union had a meeting to formulate a
strategy on how they can earn money from it. There, the union officers have
agreed to intentionally delay the project by not using high-tech equipment in
painting.
2) Bill payment for services not rendered at all at the expense of the
employer
-This is a violation of the civil law principle of Unjust Enrichment.
All matters involving employer-employee relationship
- Keyword: causal connection
- If there is no employer-employee relationship, go to regular courts. If there is,
go to labor tribunals.
 P a g e | 20

STRIKE
9) Sit-down
Q: What is a strike? This is also a violation of “No Work, No Pay” principle.
A: In the words of the Supreme Court, a strike is the most dangerous lethal
weapon in the arsenal of the employees. 10) Quickie
As the defined by the Labor Code, strike means any temporary stoppage In this type of strike, most of the workers are outside the company
of work by the concerted action of employees as a result of an industrial or labor premises.
dispute.
11) Sympathetic
Q: What is the nature of a strike? Here, there is no employer-employee relationship.
A: It is temporary in nature. There’s no such thing as permanent strike.
12) Economic
Q: What are the types of strike? Here, there is a bargain deadlock because of economic concessions.
A: 1) Authorized Strike There is a standstill deadlock in the bargaining process because of economic
An authorized strike is staged WITH the approval of the union concession.
membership.
Q: How do you determine the approval of the union membership? 13) ULP
A: This is determined through strike-voting. A ULP strike is staged in view of a violation of the right to self-
organization.
2) Unauthorized Strike
An unauthorized strike is staged WITHOUT the approval of the majority 14) Brief and concise
of the union membership. This is also known as “wildcat” strike. This is a “lightning” strike as such has only a short duration. This is
also a violation of “No Work, No Pay” principle.
3) Particular
A particular strike is staged in a particular business establishment. It is 15) Union Recognition Strike
also a form of an ordinary type of strike. Case: PASVIL/Pascual Liner Workers Union-NAFLU vs NLRC and
PASVIL/Pascual Liner, Inc.; G.R. No. 124823 July 28, 1999
4) Ordinary The purpose of this is to compel the employer to recognize the union
as the bargaining agent in the bargaining unit.
5) General Q: Is strike a mode of representation status?
A general strike is a political, sympathetic type of strike that is staged A: No.
against non-employers. This type of strike covers a wider region or territory of a Q: If not, then what are the modes of representation status?
state. It is also known as a political or cause-oriented form of strike. An example A: The following are the modes of representation status:
would be a strike in the transportation industry which covers Regions 6, 7, 8, 9, 1) Sole and Exclusive Bargaining Agent (SEBA) Certification
and 10. Since it covers a wide region, it is considered as a general strike. - This has replaced voluntary recognition.
Another example is the “Welga ng Bayan”. 2) Consent Election
3) Certification Election
6) Political 4) Run-off Election
5) Re-run Election
7) Cause-oriented TN: As you can observe in the enumeration, strike is not one of the
modes of representation status. Thus, it is considered illegal.
8) Slow-down
The purpose of a slow-down strike is to reduce production, violative of 16) Good Faith Strike
the principle in Labor Law termed as “No Work, No Pay” — the employee is there Q: Is good faith strike legal? Explain.
to perform his work but there is a reduction in the production. Hence, this is an A: In the cases of Capitol Medical Center vs NLRC and Grand
unjust enrichment. Boulevard Hotel vs Dacanay, the Supreme Court held that for strike to be valid, it
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz

shall comply with ALL the requirements for staging a lawful strike. Good faith is
not a defense; it is not an excuse in staging a strike.
On the contrary, there were 2-3 cases decided by the SC in which
they held that good faith strike is legal. This happened when the union staged a
strike without compliance with the requirements because they believe in good
faith that the employer was committing an unfair labor practice. Later on, it was
found out that the employer was not committing a ULP. Despite this, the SC still
considered such good faith strike as legal.
HOWEVER, if you will incline with or sustain the decision that good
faith strike is legal, it will open the floodgates of abuse on the part of the union.
Any time at will, they can stage a strike with the belief in good faith that the
employer is committing ULP. This now becomes a dangerous precedent. That’s
why I (Dean Poquiz) am still on the verdict of the SC in Capitol Medical Center
that good faith strike is illegal.
17) Legal
This is one called for a valid purpose and conducted through means
allowed by law.
18) Illegal
This is one staged for a purpose not recognized by law, or if for a valid
purpose, conducted through means not sanctioned by law.
 However, in actual setting, there are only 2 types such as legal and
illegal strike.
Requirements for staging a lawful strike:
1. There must be a Collective Bargaining.
2. Approval of the union membership
3. It shall be declared on strikeable issues — economic and ULP.
4. Filing of the Notice of Strike
5. Compliance with the 24-hour Notice Rule
6. Strike-voting
7. Submission of the strike-vote report seven (7) days prior to the strike
(also known as the 7-day mandatory strike ban or the 7-day waiting
period)
8. In case of strikes in medical institutions, hospitals, and clinics, there
must be an establishment of an effective skeletal workforce of medical
and health personnel. The purpose of which is to prevent any death
while the strike is being staged.
9. Compliance with the Doctrine of Means and Purposes
Note:
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P a g e | 21
The following principles can be applied to resolve an impending strike
during the cooling-off period:
1) Prinicple of Improved Offer Balloting
For instance, the union filed a Notice of Strike, submitted it to the NCMB.
The employer received the notice. Upon receipt, he contemplated on either to
negotiate with the union or grant their pleas and requests. After which, the
employer made an improved offer to the union. This improved offer is subject to
a referendum or secret balloting to be conducted by the National Conciliation and
Mediation Board (NCMB). In the process, the union accepted the improved offer
made by the employer. The union will now forego its intention to strike and thus,
return to work.
2) Principle of Reduced Offer Balloting
The employer submitted a Notice of Lockout to the NCMB and furnished
the union a copy thereof. The union made a reduced offer to the employer. This
reduced offer is subject to referendum and secret balloting to be conducted by
the NCMB. It was accepted by the employer. The employer will now forego its
intention to lockout.
During the cooling-off period, union busting was committed such as when the
employer dismissed the responsible officer (e.g. President) of the union.
Q: Can the union immediately stage a strike because of union busting?
A: No. The SC held that if there is union busting during the cooling-off period,
the union cannot immediately stage a strike because the union still has to
observe the 7-day mandatory strike ban period or 7-day waiting period.
Note: You can do away with the cooling-off period but you can never dispense
with the said 7-day mandatory strike ban period.
Q: During the cooling-off period, can you submit the strike-vote report?
A: Yes, provided that the union had complied with the 24-hour notice rule.
Q: What is the 24-hour notice rule?
A: Within 24 hours, the union shall notify the NCMB and the employer of its
intention to conduct a strike-voting. The purpose of which is for the NCMB to
send a representative to observe the strike-voting and for the employer to send a
representative to maintain peace and order during strike-voting.
After the 24-hour notice rule, strike-voting may now be conducted by the union.
If the union conducts a strike-voting without complying with the 24-hour notice
rule, the SC held in the case of Capitol Medical Center (READ THIS VERY
INFORMATIVE CASE ON STRIKE ALONG WITH GRAND BOULEVARD HOTEL VS.
DACANAY) that the strike will be held illegal.

After the strike-voting, the union membership won. With this, a strike-vote report
shall be submitted 7 days prior to the strike.
Q: Can this strike-vote report be submitted during the cooling-off
period?
A: Yes. According to the SC, the strike-vote report may be submitted during the
cooling-off period.
For example, on February 1, the Notice of Strike was filed. For economic strike,
there is a 30-day cooling-off period while for ULP strike, there is a 15-day
cooling-off period. On January 28, the union complied with the 24-hour prior
notice rule. On January 29, a strike-voting was conducted. In the said voting, the
majority of the union membership won. On January 31, the strike-vote report
has not yet been submitted; instead, they submitted such report on February 1.
Hence, the strike-vote report was simultaneously submitted with the Notice of
Strike. This is ALLOWED OR VALID.
Strike in Hospitals
There must be an effective skeletal workforce in order to prevent any
untimely deaths.
Doctrine of Means and Purposes
This provides that in order to be a legal strike, the purpose of the strike must
be legal and the means used in attaining the purpose must also be legal.
For example, after having complied with all the requirements for staging a lawful
strike, the strike is considered legal. However, during the picketing period, illegal
acts were committed. There was no peace; there was widespread violence; there
were terroristic acts committed by the union against the employer. Thus, the
strike shall be declared illegal.
ILLEGAL ACTS WHICH RESULT TO THE DECLARATION OF STRIKE AS ILLEGAL
— For instance, there was a strike in a bus company. The union destroyed
windshields. They punctured the tires. They torched one of the buses. What
happened was this bus was stopped by the strikers while it was en route to
Baguio. The driver was killed by the strikers; they set fire to the bus. Here, the
means used in attaining the purpose is illegal. Hence, it is considered illegal.
—Also, it shall be declared illegal if there is no compliance with the requirements
for staging a lawful strike such as in the following instances:
- There was an assumption order but the union still pushed through with the
strike.
- There was a preventive mediation order issued by the NCMB but the union
still pushed through with the strike.
—Illegal acts were committed because prohibited practices were committed such
as:
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P a g e | 22
1. When the strikers blocked the only gateway in the premises by
cementing it. Note that the law says that the union shall not block the
only gateway of the premises — ingress and egress.
2. Within the vicinity of the company, the union placed some container
vans which caused several problems, such as traffic, in the public area
near the company premises.
3. When the President of the company was coming out from the company
premises, he was stopped by a group of big-bodies strikers at the exit
point. The car was elevated by these strikers. He was taken out of the
windshield. He was injured. This is a criminal act. Hence, the strike is
considered illegal.
4. When the President of the company was driving his car, coming out of
the company premises with his beautiful secretary, the Union President
used a megaphone to announce to the strikers and others who were
present that there goes the company president together with his
beautiful secretary and speculates the latter to be his mistress with
whom he is alleged to engage in sexual acts. This is an illegal strike.
Principle involved: The use of libelous, slanderous, or scurrilous
words —vulgar, profane language— will make the strike illegal.
In case of declaration of illegality of strike, the officers of the union are liable for
dismissal because the knowingly participate in an illegal strike. They have
committed illegal acts. As for ordinary strikers, as a rule, they are not liable for
the said dismissal, unless they participated actively in the commission of illegal
acts.
Q: Under what doctrine is it provided that the officers of the union are
usually dismissible in case of an illegal strike?
A: This is under the doctrine of vicarious liability.
Other forms of concerted activities:
1. Boycott
a) Primary Boycott — usually legal
b) Secondary Boycott — no employer-employee relationship; thus, it is
illegal.
Note: In order to have an effective strike, there must be an effective picketing.
There can be no strike without picketing, but there can be picketing without a
strike. This is because picketing is a part of freedom of expression guaranteed by
the Constitution. (Thornhill vs. Alabama)
Q: Are they entitled to reinstatement?
A: Yes, provided these are economic and ULP strikes, unless they committed
illegal acts in which case they may not be reinstated.
 P a g e | 23

Q: Are there instances when strikers committed illegal acts but they 3) In case of the exercise of management prerogatives by high-level
were reinstated by the employer? employees
A: Yes, there are two instances such as the following: Reminders:
1. Brokering by the Secretary of Labor and Employment Read on the right to self-organization and collective bargaining
- The strikers committed illegal acts which make them not entitled to Steps in filing the case for illegal dismissal until it reaches the Supreme Court
reinstatement. (Note: Reinstatement is different from assumption of jurisdiction.) Requirements for Appeal
However, in one case, the SC validated the reinstatement even if illegal acts McBurnie Doctrine (McBurnie vs Ganzon)
were committed. Here, the reinstatement of the striking workers who committed Just read everything! ☺️
illegal acts was brokered by the Secretary of Labor and Employment with the
employer.
1. Voluntary reinstatement by the employer

Q: Are strikers entitled to economic benefits?

A: Except in the case of backwages, strikers are entitled to economic benefits
under the following conditions:
1. The strikers were discriminatorily dismissed.
2. The strikers illegally locked out by the employer.
3. The strikers unconditionally offered to return to work but the offer was
rejected by the employer. Under such instance, they are entitled to
backwages. (Note: The requirement is that the offer to return to work
must be unconditional, as per decision of the SC.

Striking Government Employees

As a rule, government employees cannot stage a strike. The strike of
government employees is prohibited because it is a form of insurrection against
public authority in the light of the principle of state sovereignty. With the strike
against the government, it affects the delivery of vital and basic services to the
people. Hence, the strike of government employees is a civil service offense,
violative of the Civil Service Law.
In the case of GOCCs with original charters, the employees therein cannot
also stage a strike. However, in GOCCs without original charters, they can
bargain collectively; therefore, they can stage a strike.
As a rule, government employees cannot stage a strike. They have the right
to self-organization and the right to unionism but they do not have the right to
collective bargaining. What is given them under the Constitution is the right to
collective negotiation. While the private sector has a Collective Bargaining
Agreement (CBA), the government sector has a Collective Negotiation Agreement
(CNA).

Q: What are those that cannot be subject to collective negotiations

between a government agency and a government employees’ union?
A: 1) Those that are fixed by law.
2) Those that pertain to appropriation.
This is because of the constitutional prohibition that “No money shall be
paid out from the National Treasury except in pursuance to an appropriation
made by law.”
“The secret to successful lawyering is being humble. There is no substitute to humility.” – Dean Salvador Poquiz