Labor Law
What is a night worker?
Any employed person whose work covers the period from 10 o'clock in the evening to 6 o'clock the following morning, provided that the worker performs no less than 7 consecutive hours of work.
As a rule, when is retirement due?
Art. 302 provides for two types of retirement: a. Optional retirement - which may be availed of by an employee reaching the age of 60 years; b. Compulsory retirement - which may be availed of by an employee upon reaching the age of 65 years. In both instances, the law imposes the minimum service requirement of 5 years with the establishment.
Who is required to execute the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC)?
As part of a seafarer's deployment for overseas work, he/she and the vessel owner or its representative local manning agency are required to execute the POEA-SEC. Containing the standard terms and conditions of seafarers' employment, the POEA-SEC is deemed included in their contracts of employment in foreign ocean-going vessels. (Sharpe Sea Personnel Inc. v. Mabunay, G.R. No. 206113, [November 6, 2017])
Differentiate conciliation from mediation.
Both refer to a process where a third person called a Conciliator/Mediator intervenes in a dispute to reconcile differences or persuade them to adjust or settle their dispute. Conciliation facilitates disputants to keep things calm and delivers messages back and forth between the parties. Mediation assists parties to voluntarily reach mutually acceptable settlement.
Who are those included in the compulsory coverage of the self-employed in the SSS?
Coverage in the SSS shall also be compulsory upon such self-employed persons as may be determined by the Commission under such rules and regulations as it may prescribe, including, but not limited to, the following: (a) All self-employed professionals; (b) Partners and single proprietors of businesses; (c) Actors and actresses, directors, scriptwriters and news correspondents who do not fall within the definition of the term "employee" in Section 8 (d) of this Act; (d) Professional athletes, coaches, trainers and jockeys; and (e) Individual farmers and fishermen. Unless otherwise specified herein, all provisions of this Act applicable to covered employees shall also be applicable to the covered self-employed persons. [Sec. 9-A, RA No. 11199]
Fill-in-the-blank. Coverage in the SSS shall be compulsory upon all sea-based and land-based OFWs as defined under Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act No. 10022: Provided, That they are not over __________ years of age.
Coverage in the SSS shall be compulsory upon all sea-based and land-based OFWs as defined under Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act No. 10022: Provided, That they are not over sixty (60) years of age. All benefit provisions under this Act shall apply to all covered OFWs. The benefits include, among others, retirement, death, disability, funeral, sickness and maternity. [Sec. 9-B (a), RA No. 11199]
There are instances when a certification election is mandatory. What is the rationale for such a legal mandate?
According to the Labor Code, in any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. In the above-described situation, a certification election is made mandatory because if there is no certified bargaining agent as determined by a certification election, there could be no collective bargaining in the said unorganized establishment.
Do alien employees have the right to self-organization? Explain.
Alien employees with valid work permits may exercise the right to self- organization on the basis of parity or reciprocity, that is, if Filipino workers in the aliens' country are given the same right. (Art. 283, Labor Code)
Who are covered under the Limited Portability Law?
All worker‐members of the Government Service Insurance System (GSIS) and/or Social Security System (SSS) who transfer from one sector to another, and who wish to retain their membership in both Systems
What are the requirements to perfect appeal to the NLRC?
An appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from. In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than ten (10) calendar days from receipt thereof. [Art. 229, Labor Code]
What are the just causes for termination by employer?
An employer may terminate an employment for any of the following causes: (1) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representatives in connection with his work; (2) Gross and habitual neglect by the employee of his duties; (3) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (4) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and (5) Other causes analogous to the foregoing. [Art. 297]
How long does the Bureau of Labor Relations have to act on the labor cases before it?
The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by agreement of the parties. [Art. 232, Labor Code]
Who shall have exclusive appellate jurisdiction over all cases decided by the Labor Arbiter?
The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. [Art. 224 (b), Labor Code]
What is a "labor-only" contract?
"Labor-only" contract is a contract between an employer and a person who supplies workers to such employer where the person supplying workers does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer.
What are the elements of wage distortion?
(1) Existing hierarchy of positions with corresponding salary rates; (2) A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one (must be caused by a wage order) (3) The elimination of the distinction between the two levels; and (4) The existence of the distortion in the same region of the country.
What are the positions of trust and confidence?
(1) Managerial employees - vested with powers or prerogatives to lay down management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. (2) Fiduciary Rank and File - those who in the normal and routine exercise of their functions, regularly handle significant amounts of money or property. Ex. cashiers, auditors, property custodians
What are the essential elements of illegal recruitment?
(1) The offender is a licensee/non-licensee or holder/non-holder of authority engaged in the recruitment and placement of workers; and (2) The offender undertakes wither any recruitment activities defined under Art. 13(b), or any prohibited practices enumerated under Art. 34
What are the rights of the tenant under the CARP Law?
(1) The tenant shall be free to work elsewhere whenever the nature of his farm obligation warrants his temporary absence from his holdings. (2) The tenant shall, aside from his labor, have the right to provide any of the contributions for production whenever he can do so adequately and on time subject to the provisions of section fourteen of this Act. (3) The tenant shall have the right to demand for a home lot suitable for dwelling with an area of not more than 3 per cent of the area of his landholding provided that it does not exceed one thousand square meters and that it shall be located at a convenient and suitable place within the land of the landholder to be designated by the later where the tenant shall construct his dwelling and may raise vegetables, poultry, pigs and other animals and engage in minor industries, the products of which shall accrue to the tenant exclusively. The Tenant's dwelling shall not be removed from the lot already assigned to him by the landholder, except as provided in section twenty-six unless there is a severance of the tenancy relationship between them as provided under section nine, or unless the tenant is ejected for cause, and only after the expiration of forty-five days following such severance of relationship or dismissal for cause. [Sec. 22, RA No. 1199]
What cases does the DOLE Secretary have jurisdiction over?
(a) Petition to assume jurisdiction over labor disputes (b) Petition to certify national interest cases to NLRC for compulsory arbitration (c) Petition to suspend effects of termination (d) Administrative Intervention for Dispute Avoidance (e) Voluntary arbitration cases (f) Contempt cases
In the absence of primary beneficiaries, who are the secondary beneficiaries of a GSIS member?
1. Dependent parents 2. Legitimate descendants (excluding dependent children)
What are the benefits under the SSS Law?
1. Monthly pension 2. Dependents' pension 3. Retirement benefits 4. Permanent disability benefits 5. Death benefits 6. Funeral benefits 7. Loan 8. Sickness benefits 9. Maternity leave benefits 10. Unemployment insurance or involuntary separation benefits
What cases does the Labor Arbiter have original and exclusive jurisdiction to hear and decide?
1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer- employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. [Art. 224 (a), Labor Code]
Differentiate a Private Employment Agency and a Private Recruitment Entity.
A Private Employment Agency is any person or entity engaged in recruitment and placement of workers for a fee which is charged, directly or indirectly, from the workers or employers or both. It requires a license. A Private Recruitment Entity is any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee. It requires authority.
What damages can an illegally dismissed employee collect from his employer?
An illegally dismissed employee may collect from his employer ACTUAL and COMPENSATORY damages, MORAL damages and EXEMPLARY damages, as well as attorney's fees as damages.
What is a compressed work week?
A compressed work week refers to one where the normal work week is reduced to less than 6 days but the total number of work hours of 48 hours per week shall remain. Under the compressed work week scheme, the normal workday goes beyond eight hours but not exceed 12 hours, without the corresponding overtime premium.
What is the special leave benefit for women?
A female employee's leave entitlement of two (2) months with full pay from her employer based on her gross monthly compensation following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at least six (6) months for the last 12 months.
How does the jurisdiction of the Labor Arbiter differ from that of the Regional Director as regards money claims?
A money claim arising from employer-employee relations, except SSS, ECC/Medicare [PhilHealth] claims, is within the jurisdiction of a Labor Arbiter if: a. The claim, regardless of amount, is accompanied with a claim of reinstatement; or b. The claim exceeds P5,000, whether or not there is a claim for reinstatement. The Regional Director has jurisdiction if: a. Money claims arising out of employer-employee relationships; b. The money claim is not accompanied by a claim for reinstatement; AND c. The claim does not exceed P5,000, whether or not claims do arise from employer-employee relationships.
Distinguish the liabilities of an employer who engages the services of a bona fide "independent contractor" from one who engages a "labor-only" contractor?
A person who engages the services of a bona fide "Independent contractor" for the performance of any work, task, job or project is the indirect employer of the employees who have been hired by the independent contractor to perform said work, task, job or project. In the event that the independent contractor fails to pay the wages of his employees, an indirect employer, in the same manner and extent that he is liable to employees directly employed by him, is jointly and severally liable with the independent contractor to the employees of the latter to the extent of the work performed under the contract. As for the person who engages the services of a "labor only" contractor, the latter is considered merely as an agent of the former who shall be responsible to the workers hired by the "labor only" contractor in the same manner and extent as if he directly employed such workers.
How is a project worker different from a casual or contractual worker?
A project worker is employed for a specific project or undertaking the completion or termination of which is determined at the time of his engagement. His work need not be incidental to the business of the employer. His employment may exceed 1 year without necessarily making him a regular employee. A casual employee is engaged to perform a job, work, or service which is incidental to the business of the employer; moreover, the definite period of his employment is made known to him at the time of his engagement. His continued employment after the lapse of one year makes him a regular employee. Under the Social Security Law, employment that is purely casual and not for the purpose of occupation or business of the employer is not under the coverage of the aforesaid law. A "project worker", on the other hand, is a specific term used to designate workers in the construction industry hired to perform a specific undertaking for a fixed period which is co-terminus with a project or phase thereof determined at the time of the engagement of the employee (Policy Instruction No, 19. DOLE), and it is mandatorily required that a termination report be submitted to the nearest public employment office upon the completion of the construction project (Aurora Land Projects Corp. v. NLRC. 266 SCRA 48 [1997]). There is no such requirement for an ordinary contractual worker.
What is wage distortion/rectification?
A situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation
Who are covered by 13 month pay? Who are exempted?
ALL EMPLOYERS are hereby required to pay all their rank and file employees a 13th month pay not later than Dec 24 of every year, Provided that they have worked for at least one (1) month during a calendar year. Managerial employees are not legally entitled to 13th month pay. Exempted Employers: (1) Government, its political subdivisions, including GOCCs except those operating essentially as private subsidiaries of the Government; (2) Employers already paying their employees a 13th month pay or more in a calendar year or its equivalent at the time of this issuance; and (3) Employers of those who are paid on purely commission, boundary or task basis and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof (except those workers who are paid on piece-rate basis, in which case their employer shall grant them 13th month pay)
Discuss briefly the instances when noncompliance by the employer with a reinstatement order of an illegally dismissed employee is allowed.
Despite a reinstatement order, an employer may not reinstate an employee in the following instances: a. When the position or any substantial equivalent thereof no longer exists; b. When reinstatement has been rendered moot and academic by supervening events, such as insolvency of the employer as declared by the court or closure of the business; c. The existence of strained relations between the employer and the illegally dismissed employee, provided the matter is raised before the Labor Arbiter. In the event that reinstatement is no longer feasible, or if the employee chooses not to be reinstated, the employer shall pay him separation pay in lieu of reinstatement pending appeal. (Art. 223 [now 229], Labor Code)
Distinguish between dismissal of an employee for just cause and termination of employment for authorized cause. Enumerate examples of just cause and authorized cause.
Dismissal for a just cause is founded on faults or misdeeds of the employee. Separation pay, as a rule, will not be paid. Examples: Serious misconduct, willful disobedience, commission of crime, gross and habitual neglect, fraud and other causes analogous to the foregoing. (Art. 297, Labor Code) Termination for authorized causes are based on business exigencies or measures adopted by the employer, not constituting faults of the employee. Payment of separation pay at varying amounts is required. Examples: Redundancy, closure, retrenchment, installation of labor- saving device and authorized cause. (Art. 298-299, Labor Code)
Define, explain or distinguish bona fide occupational qualifications
Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide occupational qualification (BFOQ). (Armando Yrasuegui v. PAL, G.R. No. 168081, Oct. 17, 2008)
Do employees of non-stock, non-profit organizations have the right to self-organization? Explain.
Even employees of non-stock non-profit organizations have the right to self- organization. This is explicitly provided for in Art. 253 of the Labor Code. A possible exception, however, are employee members of non-stock, non-profit cooperatives.
What is the prescriptive period for illegal recruitment cases?
For simple illegal recruitment cases, the prescriptive period is 5 years. For illegal recruitment cases involving economic sabotage, the prescriptive period is 20 years.
What is the ban on direct hiring? What are the exemptions?
General Rule: No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. No employer shall directly hire an Overseas Filipino Worker for overseas employment Exceptions: (a) Members of the diplomatic corps; (b) International organizations; (c) Heads of state and government officials with the rank of at least deputy minister; (d) Other employers as may be allowed by the Secretary of Labor and Employment, such as: 1. Those provided in (a), (b) and (c) who bear a lesser rank, if endorsed by the POLO, or Head of Mission in the absence of the POLO; 2. Professionals and skilled workers with duly executed/authenticated contracts containing terms and conditions over and above the standards set by the POEA. The number of professional and skilled Overseas Filipino Workers hired for the first time by the employer shall not exceed five (5). For the purpose of determining the number, workers hired as a group shall be counted as one; 3. Workers hired by a relative/family member who is a permanent resident of the host country.
What is holiday pay?
Holiday pay is a one-day pay given by law to an employee even if he does not work on a regular holiday. This gift of a day's pay is limited to each of the 12 regular holidays.
An accidental fire gutted the ABC factory in Caloocan. JKL decided to suspend operations and requested its employees to stop reporting for work. After six (6) months, JKL resumed operations but hired a new set of employees. The old set of employees filed a case for illegal dismissal. If you were the Labor Arbiter, how would you decide the case?
I will rule in favor of the employees. JKL factory merely suspended its operations as a result of the fire that gutted its factory. Art. 301 of the Labor Code states that anemployer may bona fide suspend the operation of its business for a period not exceeding six (6) months. In such a case, there would be no termination of the employment of the employees, but only a temporary displacement. Since, the suspension of work lasted more than six months, there is now constructive dismissal. (Sebuguero v. NLRC, 245 SCRA 532 [1995])
A carpenter is employed by a private university in Manila. Is the carpenter a regular or a casual employee? Discuss fully.
If the employment of the carpenter is sporadic and brief in nature or occasional, his employment is casual especially because the work he is performing is not in the usual course of the school's trade or business. However, if the carpenter has rendered services for at least one year, whether continuous or broken, he becomes a regular employee by operation by law, with respect to the activity in which he is employed and his employment shall continue while such activity exists. (Art. 295, Labor Code)
What are the requisites for the prohibition against elimination or diminution of benefits (diminution of wages)
If the following are met, then the employer cannot remove or reduce benefits (1) Ripened company policy: Benefit is founded on a policy which has ripened into a practice over a long period (2) Practice is consistent and deliberate and (3) Not due to error in the construction or application of a doubtful or difficult question of law. (4) The diminution or discontinuance is done unilaterally by the employer.
What is illegal recruitment?
Illegal Recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Art. 13(f) of the Labor Code of the Philippines:Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged
When is illegal recruitment considered economic sabotage?
Illegal recruitment is considered economic sabotage when the commission thereof is attended by the ff. qualifying circumstances: (1) By a syndicate - if carried out by a group of 3 or more persons conspiring and confederating with one another; (2) In large scale - if committed against 3 or more persons individually or as a group
What requisites must a Union comply with before it can validly impose special assessments against its members for incidental expenses, attorney's fees, representation expenses and the like?
In order that the special assessment may be upheld as valid, the following requisites must be compiled with: (1) Authorization by a written resolution of the majority of all the members at the general membership meeting duly called for the purpose; (2) Secretary's record of the meeting; and (3) Individual written authorization for the check-off duly signed by the employee concerned. (ABS-CBN Supervisors Employees Union Members v. ABS-CBN Broadcasting Corp, and Union Officers, G.R. No. 106518, March 11, 1999; Art. 241[n] and [o] [now 250], Labor Code)
How is preventive mediation initiated?
It can be initiated by: 1. By filing a notice or request of preventive mediation; or 2. By conversion of the notice of strike/lockout into a preventive mediation case.
Can management change the working hours of its employees?
Management retains the prerogative, whenever exigencies of the service so require, to change the working hours of its employees. So long as such prerogative is exercised in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold such exercise. [Sime Darby Pilipinas Inc. v. NLRC, G.R. No. 119205 (1998)]
What is a managerial employee?
Managerial employees refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof and to other officers or members of the managerial staff.
What is the prescription period for a money claim?
No claim for compensation shall be given due course unless said claim is filed with the System within three (3) years from the time the cause of action accrued. [Art. 207, Labor Code] All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. All money claims accruing prior to the effectivity of this Code shall be filed with the appropriate entities established under this Code within one (1) year from the date of effectivity, and shall be processed or determined in accordance with the implementing rules and regulations of the Code; otherwise, they shall be forever barred. [Art. 306, Labor Code]
Who are field personnel?
Non-agricultural employees: (1) Who regularly perform their duties away from the principal or place of business or branch office of the employerAND; (2) Whose actual hours of work in the field cannot be determined with reasonable certainty
What is premium pay?
Premium pay refers to the additional compensation for work performed within 8 hours on non-work days, such as rest days and special days.
What is redundancy?
Redundancy exists when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the business enterprise. A position is redundant when it is superfluous and superfluity of a position or positions could be the result of a number of factors such the overhiring of workers, a decrease in the volume of business or dropping of a particular line or service previously manufactured or undertaken by the enterprise. [Morales v. Metrobank, GR No. 182475 (2012)]
What is a working child?
Refers to any child engaged as follows: (1) When the child is below eighteen (18) years of age, in work or economic activity that is not child labor as defined in the immediately preceding subparagraph; and (2) When the child is below fifteen (15) years of age, in work where he/she is directly under the responsibility of his/her parents or legal guardian and where only members of the child's family are employed; or in public entertainment or information
What is the difference between resignation and constructive dismissal?
Resignation is at the instance of the employee, whereas constructive dismissal is at the instance of the employer. Resignation is voluntary, whereas in constructive dismissal there is vitiated consent. Resignation means no separation pay, whereas constructive dismissal means payment of separation pay and damages. Resignation must be at least with 30 days' notice on the part of the employee, whereas in constructive dismissal the employee can leave anytime.
Define, explain or distinguish seasonal and project employees
Seasonal employees are those who are called to work from time to time according to the occurrence of varying need during a season, and the employment is only for the duration of said season. They are laid off after completion of the required phase of work for the season. Project employees are those who are assigned to carry out a specific project or undertaking, the duration and scope of which were specified at the time the employees were engaged for the project, hence, the services of the project employees are coterminous with the project for which they were hired. (Art. 295, Labor Code)
Are spouses who devote full time to managing the household and family affairs covered by the SSS?
Spouses who devote full time to managing the household and family affairs, unless they are also engaged in other vocation or employment which is subject to mandatory coverage, may be covered by the SSS on a voluntary basis. [Sec. 9 (b), RA No. 11199]
Define, explain or distinguish strikes and lockouts
Strikes are any temporary stoppage of work by the concerted action of employees as a result of an industrial labor dispute; whereas, lockouts are the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. (Art. 219 [formerly 212], par. o and p, Labor Code)
Give the procedure to be observed for validly terminating the services of an employee based on a just cause?
Termination of an employee based on just causes requires compliance with the twin-notice requirement. First, a notice should be served on the employee specifying the grounds for termination. The employee should be given reasonable opportunity to explain his side. Second, a notice should be served on the employee indicating the termination of his services.
What limitations, if any, do the law and jurisprudence impose on an employer's right to terminate the services of a probationary employee?
The Labor Code (Art. 296) provides that the services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. If the probationary employee is being terminated for just cause, he must, of course, be given due process before his termination.
What are the accepted tests to determine the existence of an employer-employee relationship?
The accepted tests to determine the existence of an employer-employee relationship are the four-fold test and the economic reality test. The four-fold test requires the following requisites: (a) the power to hire employees; (b) the power of dismissal; (c) payment of wages; (d) power to control employee's conduct, which is the most important requisite. The economic reality test examines the economic realities prevailing within the activity or between the parties, taking into consideration the totality of circumstances surrounding the true nature of the relationship between the parties.
How long does an aggrieved party have to file a motion for reconsideration from the decision of the SOLE?
The aggrieved party from a decision of the SOLE may file one motion for reconsideration within ten (10) days from receipt thereof. If the motion for reconsideration is denied, the party may appeal via Rule 65 to the CA 60 days from receipt of the denial. Upon denial, the party may proceed via Rule 45 to the SC. (Rule 65, ROC; St. Martin Funeral Home v. NLRC, G.R. No. 130866, [September 16, 1998])
A was working as a medical representative of RX pharmaceutical company when he met and fell in love with B, a marketing strategist for Delta Drug Company, a competitor of RC. On several occasions, the management of RX called A's attention to the stipulation in his employment contract that requires him to disclose any relationship by consanguinity or affinity with co-employees or employees of competing companies in light of a possible conflict of interest. A seeks your advice on the validity of the company policy. What would be your advice?
The company policy is valid. However, it does not apply to A. As A and B are not yet married, no relationship by consanguinity or affinity exists between them. The case of Duncan v. Glaxo Wellcome (438 SCRA 343 [2004]) does not apply in the present case.
When resolving a case of unfair labor practice (ULP) filed by a union, what should be the critical point of analysis to determine if an act constitutes ULP?
The critical point of analysis is the violation of the rights of workers to self-organization, characterized by interference, coercion, restraint by the employer to discourage unionism and refusal to bargain a collective bargaining agreement.
Is the decision of a Voluntary Arbitrator appealable?
The decision of a Voluntary Arbitrator or panel of Voluntary Arbitrators is appealable by ordinary appeal under Rule 43 of the Rules of Civil Procedure directly to the Court of Appeals. (AMA Computer College-Santiago City, Inc. v. Nacino, G.R. No. 162739, [February 12, 2008])
Who are the primary beneficiaries of the SSS member?
The dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally adopted, and illegitimate children, who shall be the primary beneficiaries of the member: Provided, That the dependent illegitimate children shall be entitled to fifty percent (50%) of the share of the legitimate, legitimated or legally adopted children: Provided, further, That in the absence of the dependent legitimate, legitimated or legally adopted children of the member, his/her dependent illegitimate children shall be entitled to one hundred percent (100%) of the benefits. In their absence, the dependent parents who shall be the secondary beneficiaries of the member. In the absence of all the foregoing, any other person designated by the member as his/her secondary beneficiary. [Sec. 8 (k), RA No. 11199]
What are the authorized causes for termination by employer?
The employer may terminate the employment of any employee due to: (1) The installation of labor saving devices, (2) Redundancy, (3)Retrenchment to prevent losses or (4) The closing or cessation of operation of the establishment or undertaking not due to serious loss [Art. 298]
The labor sector has been loudly agitating for the end of labor-only contracting, as distinguished from job contracting. Explain these two kinds of labor contracting, and give the effect of a finding that one is a labor-only contractor. Explain your answers.
There is job contracting if a contractor carries on a distinct and independent business free from the control of the principal in all matters except as to the results thereof; and has substantial capital or investment. There is labor-only contracting when the principal retains the power to control the contracted employees; or when the contractor has insufficient capital and performs activities directly related to the business of the principal. A finding that there is labor-only contracting makes the principal the direct employer of the contracted employees and is solidarily liable with the contractor for the wages and other benefits of the contracted employees.
Do workers have a right not to join a labor organization?
YES. The constitutional right to self-organization has two aspects, the right to join or form labor organizations and the right not to join said organization (Victoriano v. Elizalde Rope Worker's Union, G.R. No. L-25246, Sept. 12, 1974). Moreover, if they are members of a religious group whose doctrine forbids union membership, their right not to be compelled to become union members has been upheld. However, if the worker is not a "religious objector" and there is a union security clause, he may be required to join the union if he belongs to the bargaining unit. (Reyes v. Trajano, G.R. No. 84433, June 2, 1992)
How does the government employees' right to self-organization differ from that of the employees in the private sector?
There is no substantial difference of the right of self-organization between workers in the private sector and those in the public sector. In the public sector, Executive Order No. 180, the purpose of self-organization is stated as "for the furtherance and protection of their interest." In the private sector, Art. 253 of the Labor Code states, "for the purpose of collective bargaining", and "for the purpose of enhancing and defending their interests and for their mutual aid and protection." Furthermore, no less than the Constitution itself guarantees that ALL workers have the right to self- organization. (Sec. 3, Art. 13, 1987 Constitution)
What is the doctrine of imputed knowledge?
This is a doctrine in agency which states that the principal is chargeable with and bound by the knowledge of or notice to his agent received while the agent was acting as such. Simply put, notice to the agent is notice to the principal. Since the local employment agency is considered the agent of the foreign employer, the principal, knowledge of the former of existing labor and social legislation in the Philippines is binding on the latter. Consequently, notice to the former of any violation thereof is notice to the latter. However, notice to the principal is not notice to the agent.
True or False. The decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal.
True. In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. xxx [Art. 229, Labor Code]
What is the difference between the shares of the beneficiaries under the SSS Law and the GSIS Law?
Unlike the SSS law, the GSIS law does not distinguish between the share of legitimate and illegitimate children.
Given that the liability for an illegal strike is individual, not collective, state when the participating union officers and members may be terminated from employment because of the illegal strike. Explain your answer.
When a strike is declared illegal because of non-compliance with statutory or contractual requirements or because of the use of unlawful means, the consequence is loss of employment status of the officers of the union who knowingly participated in the illegal strike. Ordinary union members will lose their employment status only if they participated in the commission of illegal acts during the strike, thus, mere union membership does not result in automatic loss of employment as a result of an illegal strike. (Arts. 263-264 [now Arts. 278-279], Labor Code; Pepsi-Cola Labor Union v. NLRC, G.R. No. L-58341, June 29, 1982; Solidbank Corp. v. Solidbank Union, G.R. No. 159461, Nov. 15, 2010)
When an employee under compulsory coverage is separated from employment, what happens to his employer's contribution on his account?
When an employee under compulsory coverage is separated from employment, his employer's contribution on his account and his obligation to pay contributions arising from that employment shall cease at the end of the month of separation, but said employee shall be credited with all contributions paid on his behalf and entitled to benefits according to the provisions of this Act. He may, however, continue to pay the total contributions to maintain his right to full benefit. [Sec. 11, RA No. 11199]
May the two unions be affiliated with the same Union Federation?
YES. Art. 255, as amended by R.A. 9481, allows a rank-and-file union and a supervisors' union operating within the same establishment to join one and the same federation or national union as affiliates thereof.
Can one convicted for illegal recruitment be convicted of estafa, as well?
Yes. A person who commits illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estafa under par. 2(a) of Art. 315 of the Revised Penal Code. The offense of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction. Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other laws.
Lito was anticipating the bonus he would receive for 2013. Aside from the 13th month pay, the company has been awarding him and his other co-employees a two to three months bonus for the last 10 years. However, because of poor over-all sales performance for the year, the company unilaterally decided to pay only a one month bonus in 2013. Is Lito's employer legally allowed to reduce the bonus?
Yes. A bonus is an act of generosity granted by an enlightened employer to spur the employee to greater efforts for the success of the business and realization of bigger profits. The granting of a bonus is a management prerogative, something given in addition to what is ordinarily received by or strictly due the recipient. Thus, a bonus is not a demandable and enforceable obligation, except when it is made part of the wage, salary or compensation of the employee. It may, therefore, be withdrawn, unless they have been made a part of the wage or salary or compensation of the employees, a matter which is not in the facts of the case. (American Wire and Cable Daily Rated Employees Union v. American Wire and Cable Co., Inc. and the Court of Appeals, G.R. No. 155059, April 29, 2005)
What cases do the DOLE Regional Directors have original and exclusive jurisdiction over?
a. Labor standards enforcement cases under Art. 128; Note: as the duly authorized representative of the SOLE b. Small money claims from labor standards violations not exceeding P5,000 and not accompanied with a claim for reinstatement under Art. 129 c. Operational safety and health conditions (can order stoppage or suspension of operations [Art. 128; Bk. IV, Rule II, Sec. 8]; d. Registration of unions and cancellations thereof, cases filed against unions and other labor relations related cases [Sec. 4, Rule XI (renumbered, D.O. 40-F-03] Note: only if against an independent labor union, chartered local or workers' association e. Complaints against private recruitment and placement agencies (PRPAs) for local employment [Secs. 45/46, D.O. 141-14]; and f. Cases submitted to voluntary arbitration in their capacity as Ex Officio Voluntary Arbiters under D.O 83-07 (2007)
