LABOR LAW (Ateneo Pre-week)

33/ What is the process to be observed in the dismissal of a rank-and-file employee for loss of confidence?

33/ 1. Loss of confidence should not be simulated; 2. It should not be used as subterfuge for causes which are improper, illegal or unjustified; 3. It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and 4. It must be genuine, not mere afterthought to justify their action. (Nokom v. NLRC, G.R. No. 140034, July 18, 2000)

17/ Who are not included in a Wage Order?

17/ Household or domestic helpers and persons employed in the personal service of another, including family drivers, from its coverage (Sec. 4(c), R.A. No. 6727). Exempt upon application: 1. Distressed establishments 2. New business enterprises 3. Retail/Service establishments employing not more than 10 workers and 4. Establishments adversely affected by natural calamities (Section 2, NWPC Guidelines No. 2, s. 2007).

30/ What is security of tenure?

30/ It is a constitutionally protected right and applies to all workers (PHIL. CONST. art. XIII, Sec. 3) Security of tenure is the constitutional right granted to the employee, that the employer shall not terminate the services of the employee except for just cause or when authorized by law. It extends to regular (permanent) as well as non-regular (temporary) employment. (Kiamco v. NLRC, G.R. No. 129449, 1999)

32/What are the elements of fraud or willful breach of trust?

32/1. There must be an act, omission, or concealment; 2. The act, omission or concealment involves a breach of legal duty, trust, or confidence justly reposed; 3. It must be committed against the employer or his/her representative; and 4. It must be in connection with the employees' work. (D.O. No. 147-15, Sec. 5.2[d])

32/ What are the elements of gross and habitual neglect?

32/1. There must be neglect of duty; and 2. The negligence must be both gross and habitual in character. (D.O. No. 147-15)

49/Do employees have a right NOT to join a labor organization?

49/Yes. What the Constitution guarantees is the right to form or join organizations. It is the employee who should decide for himself whether he should join or not in an association. The right to join a union includes the right to abstain from joining any union. (Victoriano v. Elizalde Rope Workers' Union, G.R. L-25246, 1974).

50/What is the Globe Doctrine?

50/The Globe Doctrine, as is enunciated in the Globe Machine & Stamping Company case (3 NLRB 294, 1937), refers to the method of determining the will or desire of the employees which is an important factor in determining the appropriate bargaining unit. The best way to determine such preference is through referendum or plebiscite.

10/ Is there overtime work for hospital and clinic personnel?

10/ Yes. Hospital and clinic personnel may be scheduled to work for more than 5 days or 40 hours in a week, if they are paid overtime. (+ at least 30% regular rate. (Labor Code, Art. 83)

4/ What are the prohibited activities under the Overseas Filipinos and Migrant Workers Act, as amended?

4/ Illegal recruitment shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority (SHOW-FROG-IN-DISC) 1. Substituting or altering DOLE-approved employment contracts 2. Recruiting workers in jobs that are Harmful to public health or morality of the Philippines 3. Becoming an Officer or member of the Board of a travel agency or to be engaged directly or indirectly in the management of a travel agency 4. Withholding or denying travel documents from applicant workers before departure for unauthorized monetary or financial considerations 5. Furnishing or publishing any false notice or information or document in relation to recruitment or employment 6. In case of non-deployment, failing to Reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment 7. Obstructing or attempting to obstruct inspection by the Secretary of Labor or by his duly authorized representatives 8. Giving any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code 9. Inducing or attempting to induce a worker to quit his employment in place of another UNLESS the transfer is designed to liberate the worker from oppressive terms and conditions of employment 10. Allowing a Non-Filipino citizen to head or manage a licensed recruitment/manning agency 11. Failing to actually Deploy without valid reason as determined by DOLE. 12. Influencing or attempting to influence any person or entity not to employ any worker who has not applied for employment through his agency 13. Failing to file reports on the Status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor 14. Charging or accepting, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts: (8-LR2A2I) • Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan; • Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a Loan only from specifically designated institutions, entities or persons; • Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own; • For a suspended recruitment/manning agency to engage in any kind of Recruitment activity including the processing of pending workers' applications • Impose a compulsory and exclusive Arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; • Impose a compulsory and exclusive Arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; and • For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of Insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage.

60/What are the requisites for lawful picketing?

60/ Lawful purpose AND lawful means. (Azucena, Volume II)

7/ What is the reason for said rule?

7/ The reason for the ban is to ensure full regulation of employment in order to avoid exploitation.

8/ Who are covered by the provisions on Working Conditions and Rest Periods?

8/ All employees in all establishments and undertakings, whether for profit or not. Labor Code, Art. 82)

1/ How does the concept of due process work in illegal dismissal cases?

1/ Due process under the Labor Code, like Constitutional due process, has two aspects: substantive, i.e., the valid and authorized causes of employment termination under the Labor Code; and procedural. Breaches of these due process requirements violate the Labor Code. Therefore, statutory due process should be differentiated from failure to comply with constitutional due process. On the other hand, constitutional due process protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing. (Agabon v. NLRC, G.R. No. 158693, 2004)

1/ What are the constitutional provisions on Bill of Rights relevant to Labor?

1/ Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Sec. 18(2). No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

1/ What are the State Policies declared in the 1987 Constitution relevant to Labor?

1/ Sec. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. Sec. 10. The State shall promote social justice in all phases of national development. Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Sec. 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

1/ What is the principle of co-determination?

1/ The principle of co-determination refers to the right of workers to participate in the policy and decision making processes directly affecting their rights and benefits, without intruding into matters pertaining to management prerogative. (PAL v. NLRC, G.R. No. 85985, 1993).

1/ What are the rights of employees under the 1987 Constitution? (WHOSE-CD)

1/ The rights granted to employees are the rights: 1. To a living wage; 2. To humane working conditions; 3. To organize; 4. To security of tenure; 5. To engage in peaceful concerted activities, which includes the right to strike, in accordance with law; 6. To conduct collective bargaining or negotiation with management; 7. To participate in policy and decision- making processes affecting their rights and benefits as may be provided by law (Article XIII, Sec. 3)

10/ What is a Compressed Work Week?

10/ A compressed work week scheme is one wherein the normal 6-day workweek is compressed to 5 days, which may result in more than an 8-hour workday. No overtime pay would be paid for the excess. (Department Order No. 21- 90/ DOLE Advisory No. 2-09 and No. 02-04)

10/ What standards must be met for a valid compressed work week?

10/ According to the Department Advisory Opinion No. 32-2004, CWW schemes must: 1. Result from an express and voluntary agreement of the majority of the covered employees. 2. In firms using substances and processes that prolonged exposure to which may pose hazards to the employee's health or safety, there must be certification that work beyond 8 hours is within the threshold limits to exposure. 3. Employer must notify DOLE, through the regional office, of the CWW scheme. This must follow the CWW Report Form of DOLE.

10/ When is Meal Break compensable?

10/ General Rule: Not less than 1-hour time-off for regular meals - non-compensable Exception: Meal period of not less than 20 minutes in the following cases are compensable hours worked: 1. Where the work is non-manual work in nature or does not involve strenuous physical exertion; 2. Where the establishment regularly operates not less than 16 hours a day; 3. In case of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; and 4. Where the work is necessary to prevent serious loss of perishable goods (IRR Labor Code, Sec. 7, Rule I Book III)

10/ What are the regular work hours of hospital and clinic personnel?

10/ Hospital and clinic personnel can start and end work at any hour on any day but would not work for more than 8 hours in a day, nor more than 40 hours in one week. (Labor Code, Art. 83)

10/ What are the rules governing compensability during power interruptions (brownout)?

10/ If a worker's work is interrupted due to brownout and - 1. Brownout does not exceed 20 minutes, it will be treated as hours worked 2. Brownout exceeds 20 minutes and the employees can leave freely, it will not be compensable 3. Brownout exceeds 20 minutes and the employees can use the time however they want, it will not be compensable In each case, the employer may extend the working hours of his employees outside the regular schedules to compensate for the loss of productive hours without paying overtime. (Durabuilt Recapping Plant & Co. vs. NLRC, G.R. No. 76746, July 27, 1987)

10/ What standards must be met for a valid reduction of work hours pursuant to a compressed work week?

10/ While financial losses must be shown to reduce the work hours of employees, no guidelines have been set to determine the sufficiency of losses to justify the reduction. In the case of Linton Commercial vs. Hellera (G.R. No. 163147, 2007), the SC applied the standards for suspension of work [not to exceed 60 days] and retrenchment: 1. The losses incurred are substantial and not de minimis; 2. The losses are actual or reasonably imminent; 3. The retrenchment is reasonably necessary and is likely to be effective in preventing the expected losses; and 4. The alleged losses, if already incurred, or the expected imminent losses sought to be forestalled, are proven by sufficient and convincing evidence

11/ Is Emergency OT work allowed? (P2W2IM)

11/ General Rule: Employees cannot be compelled to render overtime work against their will. Exceptions: 1. Country at War/National or Local Emergency 2. Completion of work started before the 8th hour and is necessary to prevent serious obstruction or prejudice to the business 3. Urgent work to be performed on Machines to avoid serious loss or damage to employer 4. Necessary to Prevent loss of life/property or Imminent danger to public safety 5. Necessary to prevent loss or damage to Perishable goods 6. Necessary to avail of favorable Weather or environmental condition (Labor Code, Art. 89)

11/ Is Composite or Package Pay illegal per se?

11/ No. Composite or "package pay" or "all- inclusive salary" is an arrangement where the overtime pay is already built-in. (Trans-Asia Phils. Employees Association v. NLRC, G.R. No. 118289, 1999.)

11/ Can the right to claim overtime pay be waived?

11/ No. The right to claim overtime pay is governed by law and not merely by the agreement of the parties. (Manila Terminal v. CIR, G.R. No. L-4148, 1952)

11/ May under-time be offset by overtime?

11/ No. Under-time work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation. (Labor Code, Art. 88)

11/ How much is an employee entitled to for overtime?

11/ Regular wage rate + at least 25% (Labor Code, Art. 87)

11/ When is waiting time considered working time?

11/ Waiting time spent by an employee shall be considered as working time if: 1. Waiting is an integral part of his work; or 2. The employee is required or engaged by the employer to wait. (IRR Labor Code, Sec. 5[a], Rule 1, Book III)

11/ Is there an exception?

11/ YES. If the waiver is done in exchange for certain valuable privileges which compensate for such work, the waiver may be valid. If there is a stipulation regarding built-in overtime pay, duly approved by DOLE, then the non-payment of overtime is valid. (Bisig Manggagawa sa Tryco v. NLRC, G.R. No. 151309, 2008)

11/How much is an employee entitled to for night shift differential?

11/Regular wage rate + at least 10%. (10pm-6am) (Labor Code, Art. 86)

11/What if someone is certified unfit for nightwork?

11/They should be transferred, whenever practicable, to another job similar to their old one. If not practicable, these workers they should be granted the same benefits as other workers unfit for work. If the unfitness is temporary, he enjoys the same protection against dismissal or notice as other workers prevented for work by reason of health. (R.A. No. 10151)

12/When are pregnant women allowed to work at night?

12/ Only if a competent physician other than the company physician shall certify their fitness to render night work, and specify the period of the pregnancy that they can safely work. (RA 10151)

12/ What are the different rates of premium pay for holidays?

12/ REGULAR HOLIDAYS -Falling on regular work day -Worked -First 8 hours 200% -Excess = + 30% hourly rate *Unworked -100% except in retail and service establishments employing less than 10 workers -Falling on rest day -Worked -First 8 hours + 30% of 200% -Excess =+ 30% of hourly rate -Unworked 100% SPECIAL (NON-WORKING) HOLIDAYS -Unworked No pay, company unless practice or there's CBA -Worked -First 8 hours +30% hourly rate -Excess +30% hourly rate SPECIAL WORKING HOLIDAYS (ONLY BASIC RATE)

12/ What if a woman is pregnant?

12/ The amendment by R.A. 10151 dictates that measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work - 1. Before or after childbirth, for a period of at least 16 weeks, which shall be divided between the time before and after childbirth; 2. For additional periods in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or the child - a. During pregnancy b. Determined by DOLE after consultation with employer and labor representatives

12/ What are the Regular Holidays?

12/ The following regular holidays for the year 2019 shall be observed in the country: *New Year's Day-1 January *Araw ng Kagitingan -9 April *Maundy Thursday-18 April *Good Friday-19 April *Labor Day-1 May *Independence Day-12 June *National Heroes Day August - (Last Monday of August) *Bonifacio Day - 30 November *Christmas Day - 25 December *Rizal Day-30 December *Eidul Fitr -To be determined *Eidul Adha-To be determined (Proclamation No. 50, s. 2016; Proclamation No. 555, August 15, 2018)

12/ What are the Special Non-Working Days?

12/ The following special days for the year 2019 shall be observed in the country: *Chinese New Year- 5 February *EDSA People Power Revolution Anniversary- 25 February *Black Saturday - 20 April *Ninoy Aquino Day - 21 August *All Saints' Day - 1 November *Feast of the Immaculate Conception of Mary - 8 December *Last Day of the Year - 31 December *Additional Special (Non-working) Days - 2 November, 24 December (Proclamation No. 555, August 15, 2018)

13/ What is a double holiday pay?

13/ 1. If unworked - employee entitled to 200% of basic wage, provided he was present or on leave with pay on the preceding work day 2. If worked - employee entitled to 300% of basic wage. Only an employee who works on the day immediately preceding or after a regular holiday shall be entitled to the holiday pay. A paid legal holiday occurring during the scheduled vacation leave will result in holiday payment in addition to normal vacation pay but will not entitle the employee to another vacation leave. (Asian Transmission v. CA, GR No. 144664, March 15, 2004)

16/ What is the rule on prohibition regarding wages?

16/ As a general rule, an employer, by himself or through his representative, is prohibited from making any deductions from the wages of his employees. The employer is not allowed to make unnecessary deductions without the knowledge or authorization of the employees. (Galvadores v. Trajano, G.R. No. L-70067, 1986)

13/ What is the remuneration of an employee working on a rest day?

13/ SCENARIO -Where employee is made or permitted to work on his scheduled rest day -Nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled -Work performed on any special holiday -Where the CBA or other applicable employment contract stipulates payment of a higher premium REMUNERATION + at least 30% of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day. + at least 30% of his regular wage for work performed on Sundays and holidays + at least 30% of the regular wage of the employee. Where such holidays falls on the employee's scheduled rest day, + at least 50% of his regular wage Employer shall pay such higher rate.

13/ When is work on a rest day authorized? (UAAP FAN)

13/ Work on a rest day is authorized: 1. In case of Urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer 2. In case of Actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety 3. In the event of Abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures 4. To Prevent serious loss of perishable goods 5. When the work is necessary to avail of Favorable weather conditions where performance or quality of work is dependent thereon 6. Under other Analogous or similar circumstances 7. Where the Nature of the work is such that the employees have to work continuously for 7 days a week or more as in the case of crew members of a vessel to complete a voyage and in other similar cases (Labor Code, Art. 92)

13/Can an employee volunteer to work on his rest day?

13/ Yes. This must, however, be in writing, subject to payment of additional compensation. (Sec. 6, Rule III, Book Three, IRR Labor Code)

14/ What are the rules on distribution of service charges?

14/ 1. 85% distributed equally among the covered employees 2. 15% for the disposition by management to answer for losses and breakages and distribution to managerial employees at the discretion of the management in the latter case o Distributed and paid to the employees not less than once every 2 weeks or twice a month at intervals not exceeding 16 days. 3. Supervisors share in the 15%. Labor Code speaks of "management" and not "managerial employee." (Labor Code, Art. 96)

14/ Who are entitled to claim 13th month pay and other bonuses?

14/ All employers are required to pay all their rank- and-file employees, a 13th month pay not later than December 24 of every year. (P.D. No. 851)

14/ Who are the employers not required to give the 13th month pay and other bonuses?

14/ The following are excluded: 1. Government and any of its political subdivisions, including GOCCs, except those corporations operating essentially as private subsidiaries of the Government; 2. Employers already paying their employees 13th month pay or more in a calendar year or its equivalent at the time of issuance of PD 851 NOTE: "Its equivalent" - includes Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 1/12 of the basic salary but shall not include cash and stock dividends, COLA and all other allowances regularly enjoyed by the employee as well as non-monetary benefits. 3. Employers of persons in the personal service of another in relation to such workers 4. Employers of those who are paid on commission, boundary, or task basis, and those who are paid a fixed amount for performance of a specific work, irrespective of the time consumed in the performance thereof EXCEPTION: where the workers are paid on a piece-rate basis, in which case the employer shall grant the required 13th month pay to such workers. 5. Distressed employers, such as (1) those which are currently incurring substantial losses or (2) in the case of non-profit institutions and organizations, where their income, whether from donations, contributions, grants and other earnings from any source, has consistently declined by more than forty (40%) percent of their normal income for the last two (2) years, subject to the provision of Section 7 of this issuance (IRR, Section 3(a) P.D. No. 851).

14/ Can an employer and an employee enter into an agreement reducing or increasing the minimum percentage provided for night differential pay, overtime pay, and premium pay?

14/ While as a general rule, the parties may enter into any kind of stipulation in a contract and the same shall be considered as the law between them, however, it must be emphasized that a labor contract is not an ordinary contract since it is impressed with public interest. Thus, the parties are prohibited to enter into any stipulation which may result in the reduction of any employee benefits. (Labor Code, Art. 100; Republic Planters Bank v. NLRC, G.R. 117460, 1997). However, the same may not be said on the matter of increasing said benefits. The employer and the employee are not prohibited under the law to enter into an agreement for the increase of whatever benefit being mandated by law for the simple reason that any such increase certainly redounds to the benefit of the employee. Thus, the employer and the employee may legally and validly agree to increase the minimum percentage provided for night differential pay, overtime pay, and premium pay. (Republic Planters Bank v. NLRC, G.R. 117460, 1997).

15/Differentiate Facilities from Supplements.

15/ FACILITIES What it is *Necessary items of expense, articles, or services Who Benefits *For the benefit of the employee and his family; for their existence and subsistence Deductibility from wage *Part of the wage Deductible from the wage Deductible from the wage SUPPLEMENTS What it is *Extra remuneration or special privileges/ benefits/ articles or services / tools of the trade Who Benefits *For the benefit or convenience of the employer Deductibility from wage *Independent of the wage Not wage deductible Not wage deductible (State Marine v. Cebu, G.R. No. L-12444, 1963)

16/ Is a bonus demandable and enforceable?

16/ From a legal point of view, a bonus is not demandable. It becomes so when it is made part of the wage or salary or compensation. In that case, the latter would be a fixed amount and the former would be a contingent one dependent upon the realization of profits. Without profit, no bonus. (Luzon Stevedoring v. CIR, G.R. L-17411, 1965).

15/ When is payment through automated teller machine (ATM) of banks allowed?

15/ It is allowed when the following conditions are met: 1. The ATM system of payment is with the written consent of the employees concerned; 2. The employees are given reasonable time to withdraw their wages from the bank facility which time, if done during working hours, shall be considered compensable hours worked; 3. The system shall allow workers to receive their wages within the period or frequency and in the amount prescribed under the Labor Code, as amended; 4. There is a bank or ATM facility within a radius of one kilometer to the place of work; 5. Upon request of the concerned employee/s, the employer shall issue a record of payment of wages, benefits, and deduction for a particular period; 6. There shall be no additional expenses and no diminution of benefits and privileges as a result of the ATM system of payment; 7. The employer shall assume responsibility in case the wage provisions of law and regulation are not complied with under the arrangement. (Labor Advisory on Payment of Salaries thru Automated Teller Machine (ATM), 1996 November 25)

15/ What "benefits" are covered by Article 100?

15/ The term "benefits" mentioned in the non- diminution rule refers to monetary benefits or privileges given to the employee with monetary equivalents. This removed the chairs provided to the employees from the purview of Article 100 of the Labor Code. (Royal Plant Workers Union vs. Coca-Cola Bottlers Philippines, Inc.-Cebu Plant, G.R. 198783, 2013).

15/ Differentiate Wage from Salary.

15/ WAGE Paid for skilled or unskilled manual labor Not subject to execution, garnishment or attachment except for debts related to necessities (Art. 1708, Civil Code) SALARY Paid to white collar workers and denote a higher grade of employment Not exempt from execution, garnishment or attachment. (Gaa v. CA, G.R. No. L-44169, 1985)

15/What are the allowable forms of Payment of wages?

15/General Rule: No employer shall pay the wages of an employee by any other means other than legal tender, even when expressly requested by the employee. (Congson v. NLRC, G.R. No. 114250, April 5, 1995) Exception: Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary, or as stipulated in a CBA. (Labor Code, Art. 102)

16/ What deductions are allowed under Article 113?

16/ 1. In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium for the insurance; 2. For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by said worker; 3. In cases where the employer is authorized by law or regulations issued by the SOLE.

16/ What is the rule regarding non-diminution of benefits?

16/ General Rule: Nothing in the Labor Code shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of the Labor Code. Benefits being given to employees shall not be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, written or unwritten. (Labor Code, Art. 100) Exception: To correct an error, otherwise, if the error is left uncorrected for a reasonable period of time, it ripens into a company policy and employees can demand for it as a matter of right. The non-diminution principle is applicable if it is shown that: 1. The practice is consistent and deliberate (Metrobank v. NLRC, G.R. No. 152928, 2009) 2. The diminution or discontinuance is done unilaterally by the employer (Steel Corporation v. Nagkakaisang Manggagawang Supreme Independent Union, G.R. No. 185556, 2011); 3. The grant of the benefit is founded on a policy or has ripened into a practice over a long period (Phil. Appliance Corp. v. CA, G.R. No. 149434, 2004); and 4. The practice is not due to error in the construction or application of a doubtful or difficult question of law (Vergara, Jr., v. Coca Cola, G.R. No. 176985, 2013)

16/ What are the other deductions allowed?

16/ The Labor Code and other laws provide for other allowable deductions: (DUMP-LAW-CAT) 1. In cases where the employee is indebted to employer, where such indebtedness has become Due and demandable 2. Union dues 3. Deductions for value of Meals and other facilities 4. In court awards, Wages may be the subject of execution or attachment, but only for debts incurred for food, shelter, clothing, and medical attendance 5. SSS, Medicare, Pag-IBIG Premiums 6. Deductions for Loss or damage 7. Agency fee 8. Salary deductions of a legally established Cooperative 9. Deductions for payment to 3rd persons, upon written Authorization of the employee 10. Withholding Tax (Azucena, Volume I)

16/ When is there a diminution of benefits?

16/ There is diminution of benefits when it is shown that: 1. The grant or benefit is founded on a policy or has ripened into a practice over a long period of time 2. The practice is consistent and deliberate 3. The practice is not due to error in the construction or application of a doubtful or difficult question of law 4. Diminution or discontinuance is done unilaterally by the employer. (Supreme Steel v. Nagkakaisang Manggagawa, G.R. No. 185556, 2011).

17/ What is a wage distortion?

17/ A wage distortion is a situation where an increase in the 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. (Labor Code, Art. 124)

17/ What is a wage order?

17/ An order issued by the Regional Board whenever the conditions in the region so warrant after studying and investigating and studying all pertinent facts and based on the standards and criteria prescribed by the Labor Code. (Labor Code, Art. 123) A wage order adjusts the minimum level but not the levels above the minimum. It does not mandate across the board salary increase.

17/ Is a union prohibited from offering and agreeing to reduce wages and benefits of the employees?

17/ NO. The Labor Code prohibits elimination or diminution of benefits already being enjoyed at the time of its promulgation. It does not prohibit a union from offering and agreeing to reduce wages and benefits of the employees during CBA negotiations. (Insular Hotel Employees Union v. Waterfront, G.R. 174040-41, 2010). The term "benefits" mentioned in the non- diminution rule refers to monetary benefits or privileges given to the employee with monetary equivalents. This removed the chairs provided to the employees from the purview of Article 100 of the Labor Code. (Royal Plant Workers Union vs. Coca-Cola Bottlers Philippines, Inc.-Cebu Plant, G.R. 198783, 2013).

17/ What are the elements of a wage distortion? (HCEE)

17/ The elements are: 1. An 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; 3. The elimination of the distinction between the two levels; and 4. The existence of the distortion in the same region of the country. (Bankard Employees Union-Workers Alliance v. NLRC, 423 SCRA 148, 2004).

17/ How would one correct a wage distortion? (VACAC)

17/ The following are valid ways for correcting a wage distortion: 1. By voluntary arbitration after prior referral to grievance machinery. (Labor Code, art. 124). 2. By compulsory arbitration after prior referral to NCMB conciliation. (Labor Code, art. 124); or 3. By provisions in the CBA, which re- establishes the wage gap, or a unilateral grant by the employer which also restores said gap are valid wage distortion schemes. (National Federation of Labor v. NLRC, 234 SCRA 311, 1994).

18/ Who are covered by the Service Incentive Leave (SIL)? (Go-MaMa-FiA-5-10)

18/ Every employee who has rendered at least 1 year of service shall be entitled to a yearly SIL of 5 days with pay. EXCEPT: 1. Government employees, whether employed by the National Government or any of its political subdivisions, including those employed in GOCCs with original charters or created under special laws; 2. House helpers and persons in the personal service of another 3. Managerial employees, if they meet all of conditions provided for 4. Officers or members of a managerial staff if they perform duties and responsibilities enumerated 5. Field personnel and those whose time and performance is unsupervised by the employer; 6. Those already enjoying this benefit; 7. Those enjoying vacation leave with pay of at least five (5) days; and 8. Those employed in establishments regularly employing less than ten (10) employees. (Labor Code, Art. 95; Section 2, Rule V, Book III of the Omnibus Rules)

23/ Who are covered by the provisions on night work?

23/ All persons who shall be employed or permitted or suffered to work at night. (Labor Code, Art. 154)

23/ Who is a Homeworker?

23/ Any person who performs industrial homework for an employer, contractor or sub-contractor. (Labor Code, Art. 153)

18/ Summarize the principles on wage distortion.

18/ The concept of wage distortion assumes an existing grouping or classification of employees which establishes distinctions among such employees on some relevant or legitimate basis. This classification is reflected in a differing wage rate for each of the existing classes of employees. Wage distortions have often been the result of government-decreed increases in minimum wages. There are, however, other causes of wage distortions (such as merger). Should a wage distortion exist, there is no legal requirement that the gap which had been previously existed be restored in precisely the same amount. Correction of a wage distortion may be done by re-establishing a substantial or significant gap (as distinguished from the historical gap) between the wage rages of the differing classes of employees. The re-establishment of a significant wage difference may be done through the grievance procedure or collective bargaining negotiations.

18/What is the formula for wage distortion?

18/ [Minimum Wage / Actual Salary] = % * Prescribed Increase = Distortion Adjustment (Metropolitan Bank & Trust Company Employees Union v. NLRC, G.R. No. 102636, 1993)

18/ What is a Maternity Leave?

18/A female member who has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth/miscarriage shall be paid a daily maternity benefit equivalent to 100% of her average daily salary credit for 60 days (in case of normal delivery) or 78 days (in case of caesarian delivery). (R.A. No. 9282, Sec. 14-A) The maternity leave benefits shall be paid only for the first 4 deliveries/miscarriages.

19/ What are the conditions for entitlement of Paternity Leave? (MAC-BG)

19/ 1. A married male employee at the time of delivery of his child; 2. Cohabiting with his spouse at the time she gives birth or suffers a miscarriage; 3. Applied for paternity leave within a reasonable period from the expected date of delivery or within such period as may be provided by company rules or by CBA; prior application is not required in case of miscarriage; 4. Wife has given birth or suffered a miscarriage. 5. Where a male employee is already enjoying the paternity leave benefits by reason of contract, company policy or CBA, the greater benefit prevails.

19/How can Maternity Leave be availed of?

19/ 1. Employee shall have Notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS. 2. Full payment shall be Advanced by the employer within 30 days from the filing of the maternity leave. 3. Payment of daily maternity benefits shall be a Bar to the recovery of sickness benefits provided by the SSS Law for the same period for which daily maternity benefits have been received. 4. The maternity benefits provided under this section shall be paid only for the first 4 deliveries/miscarriages. 5. The SSS shall immediately Reimburse the employer of 100% of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof; 6. If an employee member should give birth or suffer miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS Damages equivalent to the benefits which said employee member would otherwise have been entitled to (R.A. No. 9282, Sec. 14-A)

25/ What are the requisites for a valid apprenticeship?

25/ The following are the requisites for a valid apprenticeship: 1. Qualifications of apprentice are met 2. The apprentice earns not less than 75% of the prescribed minimum salary 3. Apprenticeship agreement duly executed and signed 4. Apprenticeship program approved by the Secretary of Labor; otherwise, the apprentice shall be deemed as a regular employee 5. Period of apprenticeship not exceed 6 months At the termination of the apprenticeship, the employer is not required to continue the employment.

19/ What is a solo parent's leave and how can it be availed?

19/ A parental leave of not more than 7 working days every year shall be granted to any solo parent employee who has rendered service of at least 1 year. Conditions for Entitlement: (1NI) 1. Has rendered at least 1 year of service, whether continuous or broken; 2. Has notified the employer within a reasonable period 3. Has presented a Solo Parent ID to the employer which may be obtained from the DSWD office of the city or municipality where the employee resides (R.A. No. 8972)

19/ What is a Paternity Leave?

19/ Paternity Leave refers to the benefits granted to a married male employee allowing him not to report for work for seven (7) days but continues to earn the compensation therefor, on the condition that his spouse has delivered a child or suffered a miscarriage for purposes of enabling him to effectively lend support to his wife in her period of recovery and/or in the nursing of the newly-born child. (R.A. No. 8187, Sec. 3) Every married male employee in the private and public sectors shall be entitled to paternity leave of seven (7) days with full pay for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting. (R.A. No. 8972)

2/ What are the Civil Code provisions relevant to Labor?

2/ Article 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects. Article 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. Article 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid.

20/ What are special leave benefits under the Magna Carta for Women?

20/ Gynecological Leave benefits of two (2) months with full pay based on gross monthly compensation, for women employees who undergo surgery caused by gynecological disorders, provided that they have rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months. The certification of a competent physician as required period for recuperation shall be controlling. Conditions for Entitlement: 1. A woman employee must have rendered continuous aggregate employment service of at least six (6) months for the twelve (12) months immediately prior to the surgery 2. She has filed an application for special leave with her employer within a reasonable period of time from the expected date of surgery or within such period as may be provided by company rules and regulations or collective bargaining agreement; and 3. She has undergone surgery due to gynecological disorders as certified by a competent physician.

2/ What are the constitutional provisions on Social Justice and Human Rights relevant to Labor?

2/ Sec. 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the right of all workers to self- organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision- making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Sec. 13. The State shall establish a special agency for disabled person for their rehabilitation, self- development, and self-reliance, and their integration into the mainstream of society. Sec. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.

2/ Under the Labor Code, what are the requirements for the lawful dismissal of an employee?

2/ To constitute valid dismissal from employment, two requisites must concur: (1) dismissal must be for a just or authorized cause; and (2) employee must be afforded an opportunity to be heard and defend himself. (Nacague v. Sulpicio Lines, G.R. No. 172589, 2010)

20/ What are considered acts of discrimination?

20/ 1. Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value 2. Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes a. Person guilty of committing these acts are criminally liable under Arts. 288-289 of the Labor Code b. That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. 3. Favoring a male applicant with respect to hiring where the particular job can equally be handled by a woman; and 4. Favoring a male employee over a female employee with respect to dismissal of personnel

22/ What are the hazardous workplaces?

22/ • Exposure to dangerous environmental elements, contaminants • Construction work, deep sea fishing and mechanized farming • Handling of explosives and other pyrotechnic products • Exposure to use of heavy power-driven machinery • Exposure to or use of power-driven tools (sec. 12-D, R.A. 7610, as amended)

20/ What is the rule against discrimination?

20/ It is unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex (Labor Code, Art. 135)

20/ What are the leave benefits for Women Workers under the VAWC Law?

20/ Under R.A. 9710 or the Magna Carta for Women, Women who qualify under R.A. No. 9710 are entitled to a special leave benefit of two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders. Under R.A. 9262 or the Anti-Violence Against Women and their Children Act of 2004, victims of violence may apply for the issuance of a protection order. If such victim is an employee, she is entitled to a paid leave of up to 10 days in addition to other paid leaves under the Labor Code, other laws and company policies. Conditions to entitlement 1. The employee has to submit a certification from the Punong Barangay or Kagawad or prosecutor or Clerk of Court that an action under RA 9262 has been filed and is pending. 2. The use of the 10-day leave is at the option of the employee 3. It shall be used for the days that she need to attend to medical and legal concerns. 4. Leaves not availed of are non-cumulative and not convertible to cash. Availment Leave of up to ten (10) days in addition to other paid leaves under the Labor Code, or other laws. (Sec. 43, RA 9262) NOTE: The VAWC leave may be extended beyond 10 days. It is extendible when the necessity arises as specified in the protection order. (R.A. No. 9262, Sec. 43)

21/ What are the prohibited acts under Art. 137?

21/ Art. 137 Prohibited Acts (DEP-R-TeC) It is unlawful for any employer: 1. To Deny any woman the benefits provided for under the Code 2. To discharge any woman employed by him for the purpose of preventing such woman from Enjoying the maternity leave, facilities and other benefits provided under the Code 3. To discharge such woman employee on account of her Pregnancy, or while on leave or in confinement due to her pregnancy (Del Monte v. Velasco, G.R. No. 153477 (March 6, 2007). 4. To discharge or refuse the admission of such woman upon Returning to her work for fear that she may be pregnant 5. To discharge any woman or child or any other employee for having filed a complaint or having Testified or being about to testify under the Code 6. To require as a Condition for a continuation of employment that a woman employee shall not get married or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage

21/ When is a rule against marriage valid? When is it not valid?

21/ As a general rule, the Labor Code considers as an unlawful act of the employer to require as a condition for or continuation of employment that a woman employee shall not get married or stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated. In Duncan v. Glaxo Welcome, where the stipulation prohibits an employee from having a relationship with another employee from a competitor company, this stipulation is a valid exercise of management prerogative. n laying down the assailed company policy, the employer only aims to protect its interests against the possibility that a competitor company will gain access to its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information. (G.R. No. 162994, 2004) However, in PT&T v. NLRC, a company policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the right against discrimination afforded all women workers by our labor laws and by no less than the Constitution. (G.R. No. 118978, 1997)

21/ Who commits sexual harassment?

21/ When a person demands, requests, or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the latter. It is not necessary that a demand, request or requirement of sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from acts of the offender. (Domingo v. Rayala, G.R. No. 155831 February 18, 2008). It is committed by one having authority, influence, moral ascendancy in a work, education, training- related environment. (AIM-WET) (R.A. 7877)

22/ What are the maximum working hours and night work prohibition for minors?

22/ AGE-BELOW 15 DAY- Not more than 4 hours WEEK-Not more than 20 hours PROHIBITION -8pm to 6am of the following day AGE-15 AND BELOW 18 DAY- Not more than 8 hours WEEK-Not more than 40 hours PROHIBITION -10pm to 6am of the following day

22/ What are the conditions in order that a child below 15 years of age is allowed to work? (SH- 20-4-8-6)

22/ The following conditions must be met: 1. Must be directly under the sole supervision of his parents or guardian (Labor Code, art. 139) 2. Cannot be made to work for more than 20 hours a week 3. Work shall not be more than 4 hours per day 4. Should not work between 8pm and 6am 5. Work is not hazardous or deleterious to the child's health or morals (R.A. 9231, Sec. 3)

22/ What are the rights and privileges of a Kasambahay? (ANPACE)

22/ a. The domestic worker shall not be subjected to any kind of Abuse or any form of physical violence or harassment or any act tending to degrade his or her dignity. b. The employer shall provide for the basic Necessities of the domestic worker to include at least three (3) adequate meals a day and humane sleeping arrangements that ensure safety. c. Respect for the Privacy of the domestic worker shall be guaranteed at all times and shall extend to all forms of communication and personal effects. d. The employer shall grant the domestic worker Access to outside communication during free time. e. All communication and information pertaining to the employer or members of the household shall be treated as privileged and Confidential, and shall not be publicly disclosed by the domestic worker during and after employment. f. The employer shall afford the domestic worker the opportunity to finish basic Education and may allow access to alternative learning systems and, as far as practicable, higher education or technical and vocational training. (R.A. 10361 - Kasambahay Law)

23/ Who is a night worker?

23/ A night worker is any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. (Labor Code, Art. 154)

23/ May a Kasambahay be assigned to work in commercial, industrial or agricultural enterprise?

23/ As a general rule, the employer shall not assign the Kasambahay to work, whether in full or part- time, in a commercial, industrial, or agricultural enterprise at a wage rate lower than that provided for agricultural or non-agricultural workers. The mere fact that the househelper or domestic servant is working within the premises of the business of the employer and in relation to or in connection with its business, as in its staffhouses for its guests or even for its officers and employees, warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee of the employer and not as a mere family househelper or domestic servant as contemplated in Rule XIII, Section 1(b), Book 3 of the Labor Code, as amended. (Apex Mining Co., Inc. v. National Labor Relations Commission, G.R. No. 94951, April 22, 1991)

23/ Who are excluded from the provisions on night work?

23/ Those employed in 1. agriculture, 2. stock raising, 3. fishing, 4. maritime transport and inland navigation, during a period of not less than 7 consecutive hours, including the interval from midnight until 5am, to be determined by the SOLE after consulting the workers' representatives and employers. (Labor Code, Art. 154)

23/ What are night workers entitled to?

23/ Under R.A. 10151, the new law on night work, they are entitled to - 1. A health assessment, at their request, without charge, and to receive advice on how to reduce health problems associated with their work a. Before taking up assignment as a night worker, or b. At regular intervals during such assignment, or c. If they experience health problems during such an assignment which are not caused by factors other than the performance of nightwork. 2. Mandatory facilities a. Suitable first aid facilities b. Arrangements where workers, when necessary, can be immediately taken to a place for appropriate treatment c. Safe and healthful working conditions d. Resting quarters e. Transportation to and from work to nearest point to residence. f. These are subject to guidelines and exceptions by DOLE

24/ Differentiate between apprentices and learners.

24/ LEARNERS 1. Persons hired as trainees in semi- skilled and 2 other industrial occupations 3 2. Non- apprenticeable 3. May be learned through practical training on the 5 job in a relatively short period of time 6 4. Shall not exceed 3 months APPRENTICES . Practical training on the job . Supplemented by related . theoretical . instruction . Covered by a . Written apprenticeship agreement with an individual employer or entity Needs DOLE approval . Shall not exceed 6 months

25/ What is the meaning of equal opportunity for employment?

25/ No disabled person shall be denied access to opportunities for suitable employment. Qualified disabled employees shall be subject to same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able- bodied person.

25/ Define persons with disability under R.A. 7277 as amended by R.A. 9442 vis-a-vis Impairment and Disability.

25/ Persons with Disability are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being.

25/ What are handicapped workers?

25/ Those whose earning capacity is impaired by age or physical or mental deficiency or injury, disease or illness. (Labor Code, Art. 78) There must be a link between the deficiency and the work which entitles the employer to lessen the worker's wage. If the disability of the person is not in any way related to the work for which he was hired, he should not be so considered as a handicapped worker.

25/ What are the rights of PWDs?

25/ Under the law, PWDs are entitled to equal opportunity for employment. Consequently, no PWD shall be denied access to opportunities for suitable employment. A qualified employee with disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able- bodied person.

26/ What is the rule against discrimination on employment?

26/ No entity, whether public or private, shall discriminate against a qualified PWD by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment. (R.A. No. 7277, Sec. 32)

26/ How do you determine the existence of an employer-employee relationship?

26/ Through the four-fold test. The elements are: 1. The selection and engagement of the employee; 2. The payment of wages; 3. The power of dismissal; and 4. The power to control the employee's conduct (Means and Methods)

26/ What is the most important element of the four-fold test?

26/(DEL CASTILLO) The most determinative factor in ascertaining the existence of employer- employee relationship is the "right of control test". It is deemed to be such an important factor that the other requisites may even be disregarded. This holds true where the issues to be resolved is whether a person who performs work for another is the latter's employee or is an independent contractor, as in this case. For where the person for whom the services are performed reserves the right to control not only the end to be achieved, but also the means by which such end is reached, EER is deemed to exist (Royale Homes Marketing Corp v. Alcantara, G.R. No. 195190, 2014) HOWEVER: Not every form of control that a hiring party imposes on the hired party is indicative of employee-employer relationship. Rules and regulations that merely serve as guidelines towards the achievement of a mutually desired result without dictating the means and methods of accomplishing it do not establish employer- employee relationship (Royale Homes Marketing Corp v. Alcantara, G.R. No. 195190, 2014) NOTE: There is a secondary test - The Economic Reality/Dependence Test Existing economic conditions between the parties are used to determine whether EER exists. This is resorted to when there is serious doubt as to the relationship of the employee with the employer. (Francisco v. NLRC, G.R. 170087, 2006) The standard of "economic dependence" of the employee is whether the worker is dependent on the alleged employer for his continued employment in that line of business. (Orozco v. CA, G. R. No. 155207, 2008) Thus, the determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity, such as: 1. The extent to which the services performed are an integral part of the employer's business; 2. The extent of the worker's investment in equipment and facilities; 3. The nature and degree of control exercised by the employer; 4. The worker's opportunity for profit and loss; 5. The amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise; 6. The permanency and duration of the relationship between the worker and the employer; and 7. The degree of dependency of the worker upon the employer for his continued employment in that line of business. (Francisco v. NLRC, G.R. No. 170087, 2006)

3/ What constitutes recruitment and placement activities?

3/ Art. 13(b) of the Labor Code defines "recruitment and placement" activity as referring to any act of: 1. Canvassing; 2. Enlisting; 3. Contracting; 4. Transporting; 5. Utilizing; 6. Or Hiring or procuring workers. It also includes: 1. Referrals; 2. Contract services; 3. Promising; or 4. Advertising for employment, locally or abroad, whether for profit or not.

26/What are incentives for employers that employ disabled persons?

26/Private entities that employ disabled persons who met the required skills or qualifications, either as regular employee, apprentice or learner, shall be entitled to an additional deduction, from their gross income, equivalent to 25% of the total amount paid as salaries and wages to disabled persons. Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to 50% of the direct costs of the improvements or modifications.

27/ What are the different kinds of employment?

27/ 1. Probationary - one who is on trial by an employer during which the employer determines whether or not he is qualified for permanent employment. (Labor Code, Art. 296) General Rule: Not to exceed 6 months Exceptions: a. Covered by an apprenticeship agreement stipulating a longer period b. Voluntary agreement of parties (especially when nature of work requires a longer period) c. The employer gives the employee a second chance to pass the standards set d. When a longer period is required and established by company policy The employer and employee may extend by agreement the probationary period of employment beyond 6 months, but it cannot be ad infinitum. (Mariwasa Manufacturing v. Leogardo, G.R. No. 74246, 1989) 2. Regular Regular employment is an arrangement where the employee: 1. Has been engaged to perform tasks usually necessary or desirable to the usual trade or business of the employer; 2. Has rendered at least 1 year of service, whether such service is continuous or broken, with respect to the activity in which he is employed; or 3. When an employee is allowed to work after a probationary period (Labor Code, Art. 295) The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee to the usual trade or business of the employer. (Lopez v. MWSS, G.R. No. 154472, 2005) 3. Project employment - One whose employment has been fixed for a specific project or undertaking, the completion of which has been determined at the time of engagement of the employee. (Labor Code, Art. 295) (DEL CASTILLO) Project-based employment contracts are valid where the employees knowingly and voluntarily entered into, without vices of consent, and regardless of whether the activities for which they were hired are directly related to the main contract (Herma Shipyard v. Oliveros, G.R. No. 208936, April 17, 2017) 4. Seasonal - Work or services to be performed is seasonal in nature and the employment is for the duration of the season (Labor Code, Art. 295) 5. Casual General Rule: Activity performed is not usually necessary or desirable in the usual business or trade of the employer, not project and not seasonal Exception: If he has rendered at least 1 year of service, whether such service is continuous or broken, he is considered a REGULAR employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. (Labor Code, Art. 295) 6. Fixed-term Fixed-term employment was repealed by Labor Code. But the Civil Code, a general law, allows fixed-term employment. (Brent School, Inc. v. Zamora, G.R. No. 48494, 1990) The elements of a valid fixed-term employment are the following: 1. The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; 2. It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter.

28/ What limitations, if any, do law and jurisprudence impose on an employer's right to terminate the services of a probationary employee?

28/ A probationary employee may be terminated at any time but only for just and authorized causes. Termination is also valid, according to Article 281 of the Labor Code, when such employee 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. In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at the time he shall be deemed a regular employee. (Aberdeen Court vs. Agustin, G.R. 149371, 2005). Double or successive probation is not allowed. The evil sought to be prevented is to discourage scheming employers from using the system to circumvent the mandate of the law on regularization and make it easier for them to terminate their employees. (Holiday Inn Manila vs. NLRC, G.R. No. 109114, 1993) The determination of "adequate performance" is not, in all cases, measurable by quantitative specification. It is also hinged on the qualitative assessment of the employee's work; by its nature, this largely rests on the reasonable exercise of the employer's management prerogative. A good example would be the case of probationary employees whose tasks involve the application of discretion and intellect, such as - to name a few - lawyers, artists, and journalists. (Abbott v. Alcaraz, G.R. No. 192571, 2014) (DEL CASTILLO) The fixed-term character of employment essentially refers to the period agreed upon between the employer and the employee; employment exists only for the duration of the term and ends on its own when the term expires. In a sense, employment on probationary status also refers to a period because of the technical meaning "probation" carries in Philippine labor law - a maximum period of six months, or in the academe, a period of three years for those engaged in teaching jobs. Their similarity ends there, however, because of the overriding meaning that being "on probation" connotes, i.e., a process of testing and observing the character or abilities of a person who is new to a role or job. (Colegio del Santissimo Rosario vs. Rojo, G.R. 170388, September 3, 2013) NOTE: For teachers on probationary employment, in which case a fixed term contract is not specifically used for the fixed term it offers, it is incumbent upon the school to have not only set reasonable standards to be followed by said teachers in determining qualification for regular employment, the same must have also been communicated to the teachers at the start of the probationary period, or at the very least, at the start of the period when they were to be applied. These terms, in addition to those expressly provided by the Labor Code, would serve as the just cause for termination of the probationary contract. The specific details of this finding of just cause must be communicated to the affected teachers as a matter of due process. Corollarily, should the teachers not have been apprised of such reasonable standards at the time specified above, they shall be deemed regular employees. (Colegio del Santissimo Rosario vs. Rojo, G.R. 170388, Sep. 3, 2013)

28/ Does the DOLE Secretary have the power to decide whether or not an employer-employee relationship exists?

28/ Yes. DOLE now has the authority to determine the existence of an employer-employee relationship. Under Article 128(b) of the Labor Code, as amended by RA 7330, the DOLE is fully empowered to make a determination as to the exercise of an employer-employee relationship in the exercise of its visitorial and enforcement power, subject to judicial review, not review by the NLRC (see People's Broadcasting Service v. Secretary of Labor, G.R. 179652, 2012)

29/ Differentiate legitimate contracting from labor-only contracting?

29/ JOB CONTRACTING Has sufficient substantial capital OR investment in machinery, tools or equipment directly or intended to be related to the job contracted Carries an independent business different from the employer's Undertakes to perform the job under its own account and responsibility, FREE from the principal's control NO EER except when the contractor or subcontractor fails to pay the employees' wages. LIMITED liability (principal solidarily liable with contractor or subcontractor only when latter fails to comply with requirements as tounpaid wages and other labor standards violations. PERMISSIBLE LABOR-ONLY CONTRACTING Has NO substantial capital OR investment in the form of machinery, tools or equipment Has no independent business Performs activities directly related to the main business of the principal Principal treated as direct employer of the person recruited in all instances (contractor is deemed agent of the principal) Principal's liability extends to all rights, duties and liabilities under labor standard laws including the right to self-organization PROHIBITED

29/ How does one determine whether or not there is labor-only contracting?

29/ (DEL CASTILLO) To determine whether a contractor is engaged in labor-only contracting or permissible job contracting, "the totality of the facts and the surrounding circumstances of the case are to be considered." The law presumes a contractor to be a labor- only contractor and the employees are not expected to prove the negative fact that the contractor is a labor-only contractor. As held in Alilin v. Petron Corporation, "where the principal is the one claiming that the contractor is a legitimate contractor, the burden of proving the supposed status of the contractor rests on the principal."(Petron v. Caberte, G.R. No. 182255, June 15, 2015)

29/ What are the rules on students who are allowed to work in their schools in exchange for a free education (is there an employer- employee relationship)?

29/ There is no EER between the student and the school, college or university, where the student work for the latter in exchange for the privilege to study free of charge, provided the student is given real opportunity, including such facilities as may be reasonable, necessary to finish their chosen courses under such arrangement. (IRR Labor Code, Sec. 14, Rule X, Book III)

29/ What are the elements in labor-only contracting?

29/The elements are as follows - 1. The contractor does NOT a. have substantial capital - or - b. have investments in the form of tools, equipment, machineries, supervision, work premises among others, and 2. The contractor's or subcontractor's employees recruited and placed are performing activities which are directly related to the main business operation of the principal; or 3. The contractor or subcontractor does not exercise the right of control over the work of the employee (D.O. No. 174-17, Sec. 5) Performing activities directly related to the principal business of the employer is only one of the two indicators that "labor-only" contracting exists; the other is lack of substantial capital or investment. Labor-only contracting exists when any of the two elements is present. (Quintanar, et al. v. Coca-Cola, G.R. No. 210565, 2016)

3/ What are the prohibited activities under the Labor Code?

3/ It shall be unlawful for any individual, entity, licensee, or holder of authority: 1. To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance; 2. To furnish or publish any false notice or information or document in relation to recruitment or employment; 3. To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code. 4. To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; 5. To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; 6. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; 7. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; 8. To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor. 9. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; 10. To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and 11. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. (Labor Code, Art. 34; PERT/CPM Manpower v. Vinuya, G.R. No. 197528, 2012)

3/ What are the elements of simple illegal recruitment for local workers under the Labor Cde?

3/ The following elements must concur: 1. That the offender undertakes any activity within the meaning of "recruitment and placement" defined under Article 13(b), or any prohibited practices enumerated under Article 34 of the Labor Code. 2. That the offender has no valid license or authority required by law to enable him to lawfully engage in the recruitment and placement of workers, and (Ritualo v. People, 591 SCRA 24, 2009).

3/ What are the elements of simple illegal recruitment for migrant workers under the Migrant Workers Act?

3/ To constitute illegal recruitment for migrant workers, the following must concur: 1. Person charged commits any of the enumerated acts under Sec. 6 of R.A. 8042, as amended by R.A. 10022; 2. It is immaterial whether he is a holder or not of any license or authority.

30/ What is the liability of a principal in a labor only contracting agreement?

30/ 1. Liable directly as an employer for all money claims including those punitive in nature 2. Liable to pay employees of supposed contractor the same rate for regular employees performing similar functions, because they are deemed employees of the principal now 3. Liable for salary differentials The labor-only contractor is solidarily liable with the principal. Thus, releases, waivers, and quitclaims in favor of the contractor redounds to the benefit of the principal. (Labor Code, Arts. 106- 109)

30/ What is constructive dismissal?

30/ It exists when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment. In the case of Bañares vs. TAWTRASCO (694 SCRA 312, 2013), the SC found that by not providing proper office space, office supplies, or a living allowance after being transferred to the province, there was a clear case of constructive dismissal.

30/ What is a trilateral relationship in job contracting?

30/ It refers to a job contracting or subcontracting arrangement where there is a contract for a specific job, work or service between the principal and the contractor, and a contract of employment between the contractor and its workers. Three parties involved in contracting or subcontracting arrangements: 1. Principal - who decides to farm out the job, work or service to a contractor 2. Contractor - who has the capacity to independently undertake the performance of the job, work or service 3. Workers - who are engaged by the contractor to accomplish the job, work or service

30/What are the effects of labor-only contracting?

30/Worker supplied by agency (contractor) becomes employee of the client company. Client company is liable to the worker as if he/she had been directly employed. (PBCom v. NLRC, G.R. No. 66598, 1986). Furthermore, agency-hired employee becomes entitled to benefits under the CBA of client company. (Tabas, et al. v. California Manufacturing Company, Inc., G.R. No. 80680, 1999).

31/ When is constructive dismissal considered an involuntary resignation?

31/ 1. Continued employment becomes impossible, unreasonable, or unlikely; 2. There is a demotion in rank or diminution in pay; or 3. Clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee. (Leonardo v. NLRC, G.R. No. 125303, June 16, 2000)

31/What are the legal implications of an employee being on "floating status?"

31/ Being placed on floating status is legal. It means "waiting to be posted." However, this status must not exceed 6 months. Otherwise, it would amount to constructive dismissal. (Reyes vs. RP Guardians Security Agency, Inc., 695 SCRA 620, 2013).

31/ When is there Constructive Dismissal despite voluntary resignation?

31/ Constructive dismissal exists when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment. (McMer v. NLRC, G.R. No. 193421, 2014)

31/ What are the various just causes for termination?

31/ Just causes: (SoMe WiD GAN FWeT CO) 1. Serious Misconduct or Willful Disobedience by the employee of the lawful orders of his employer or representative in connection with his work (work-related) 2. Gross And habitual Neglect by the employee of his duties 3. Fraud or Willful breach by employee of the Trust reposed in him by his employer or duly authorized representative (not mere suspicion) 4. Commission of a Crime or offense by the employee against the person of his employer or any immediate member of his family or duly authorized representative 5. Other analogous cases (Labor Code, Art. 297)

31/Is theft of company property a serious misconduct?

31/(DEL CASTILLO) YES. Jurisprudence has classified theft of company property as a serious misconduct and denied the award of separation pay to the erring employee. The employee in this case attempted to steal the property of her long- time employer. (Reno Foods v. Nagkakaisang Lakas ng Manggagawa-Katipunan, G.R. No. 164016, March 15, 2010)

31/What are the elements of serious misconduct?

31/1. There must be misconduct; 2. The misconduct must be of such grave and aggravated character; 3. Relates to the performance of the employee's duties; and 4. A showing that the employee becomes unfit to continue working for the employer. (D.O. No. 147-15, Sec. 5.2[a])

31/What is the 'totality of infractions' doctrine?

31/The totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct and ability separate and independent of each other. While it may be true that petitioner was penalized for his previous infractions, this does not and should not mean that his employment record would be wiped clean of his infractions. After all, the record of an employee is a relevant consideration in determining the penalty that should be meted out since an employee's past misconduct and present behavior must be taken together in determining the proper imposable penalty. (Merin v. NLRC, G.R. No. 171790)

32/ What are the elements of willful disobedience?

32/ 1. There must be disobedience or insubordination; 2. The disobedience or insubordination must be willful or intentional characterized by a wrongful and perverse attitude; 3. The order violated must be reasonable, lawful, and made known to the employee; and 4. The order must pertain to the duties which he has been engaged to discharge. (D.O. No. 147-15)

32/ Distinguish between managerial employees and fiduciary rank-and-file employees.

32/ Managerial employees: Those vested with the 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. Fiduciary Rank and File: Those who in the normal and routine exercise of their functions, regularly handle significant amounts of money or property. Examples are cashiers, auditors, property custodians, etc. (Prudential Guarantee and Assurance Employee Labor Union v. NLRC, G.R. No. 185335, 2012) MANAGERIAL Mere existence of a basis for the belief of employee's guilt (Grand Asian Shipping Lines v. Galvez, G.R. No. 178184, 2014) Employment for a long time is counted against the employee (Salvador v. Philippine Mining Service Corp., G.R. No. 148766, 2003) FIDUCIARY RANK- AND-FILE Proof of involvement in the alleged events in question required; mere uncorroborated assertions and accusations are not enough (Etcuban v. Sulpicio Lines, G.R. No. 148410, 2005) Confidential employees are those charged with custody and protection of employer's property like a cashier (this is different from the "confidential employees" in labor relations)

32/Is the existence of a pregnancy out of wedlock a disgraceful or immoral conduct?

32/ Pre-marital sexual relations between two consenting adults who have no impediment to marry each other, and, consequently, conceiving a child out of wedlock, gauged from a purely public and secular view of morality, does not amount to a disgraceful or immoral conduct. (Leus v. St. Scholastica, G.R. No. 187226, 2015)

32/What are the elements of 'loss of confidence?'

32/1. There must be an act, omission or concealment; 2. The act, omission or concealment justifies the loss of trust and confidence of the employer to the employee; 3. The employee concerned must be holding a position of trust and confidence; 4. The loss of trust and confidence should not be simulated; 5. It should not be used as a subterfuge for causes which are improper, illegal, or unjustified; and 6. It must be genuine and not a mere afterthought to justify an earlier action taken in bad faith. (D.O. No. 147-15, Sec. 5.2[e])

33/ In what instances are the procedural and substantive requirements of due process in the termination of an employee based on loss of trust and confidence deemed violated?

33/ For the procedural aspect, there is a violation when the employee was not given notice nor an opportunity to face the accusations against him. For the substantive aspect, there is a violation when the purported loss of trust and confidence was inexistent at the time the employee received his notice of termination. The employer is held liable for full backwages, separation pay and attorney's fees. (Mega-Pro International Resources, Inc v Maximo Domingo, GR No. 213146, November 12, 2014)

33/ What is the Bona Fide Occupational Qualification (BFOQ)?

33/ General Rule: Where the job itself necessarily requires a particular qualification, then the job applicant or worker who does not possess it may be disqualified on that basis and such will not be considered unlawful discrimination. Exception: To justify a BFOQ, the employer must prove that: 1. The employment qualification is reasonably related to the essential operation of the job involved; and 2. There is factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job (Star Paper Corporation, et. al. vs. Simbol, et. al., G.R. No. 164774, 2006).

33/ What are the elements of 'commission of a crime or offense?'

33/There must be an act or omission punishable/ prohibited by law; and The act or omission must be voluntary and/or willful on the part of the employees. (D.O. No. 147-15, Sec. 5.2[f]) Conviction or prosecution of the employee is not necessary. A criminal case need not be actually filed. Commission of acts constituting a crime is sufficient. (Nicolas v. NLRC, G.R. No. 113948, 1996) Previous offenses may be used as justification for dismissal from work only if the past infractions are related to the subsequent offense upon which the basis of termination is decreed. (Salas v. Aboitiz One Inc., G.R. No. 178236, 2008)

34/ What are the Authorized causes for termination? (RRLCD)

34/ 1. Redundancy 2. Retrenchment 3. Introduction of labor-saving devices 4. Cessation or Closure of Establishment of Operation of the Establishment or Undertaking 5. Disease

34/ What are the elements of 'retrenchment?'

34/ 1. The retrenchment must be reasonably necessary and likely to prevent business losses; 2. The losses, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent. 3. The expected or actual losses must be proved sufficient and convincing evidence such as financial statements (audited by an independent firm) over a span of several years OR a some reasonable period of time, and not merely the actual year of business loss; 4. The retrenchment must be in good faith for the advancement of its interest and not to defeat or circumvent the employees' right to security of tenure; and 5. There must be fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers. (D.O. No. 147-15, Sec. 5.4[c])

34/What are the elements of 'analogous causes?'

34/ 1. There must be an act or omission similar to those specified just causes; 2. The act or omission must be voluntary and/or willful on the part of the employees (D.O. No. 147-15, Sec. 5.2[g]) NOTE: No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies.

34/How is the "last in first out" policy to be effected in a retrenchment or redundancy program?

34/ The decisions of the Supreme Court only posits the rule that seniority need not be strictly followed in effecting a retrenchment or redundancy program and should be included in the fair and reasonable criteria along with a) less-preferred status (i.e. temporary employees); and b) efficiency rating. (Asiaworld v. Ople, G. R. No. 56398, 1987) In Philippine Tuberculosis Society vs. National Labor Union, (G.R. No. 115414, 1998), the Supreme Court held a retrenchment invalid for failing to consider the seniority factor in choosing those to be retrenched, a failure which, to their mind, should invalidate the retrenchment, as the omission immediately makes the selection process unfair and unreasonable.

34/ What are the elements of 'redundancy?'

34/ The elements are the following: 1. There must be superfluous positions or services of employees; 2. The positions or services are in excess of what is reasonably demanded by the actual requirements of the enterprise to operate in an economical and efficient manner; 3. There must be good faith in abolishing redundant positions; 4. There must be fair and reasonable criteria in selecting the employees to be terminated; and 5. There must be an adequate proof of redundancy such as but not limited to the new staffing pattern, feasibility studies/ proposal, on the viability of the newly created positions, job description and the approval by the management of the restructuring. (DO 147-15)

34/What are the requisites for an employer to justify or effect a valid redundancy program?

34/1. A written notice served on both the employees and the DOLE at least one month prior to the intended date of retrenchment; 2. Payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher; 3. Good faith in abolishing the redundant positions; and 4. Fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. (DAP v. CA, G.R. 165811, 2005).

35/ When is retrenchment justified?

35/ Management cannot be denied recourse to retrenchment if it can successfully prove the existence of the following: 1. Substantial losses which are not merely de minimis in extent; 2. Imminence of such substantial losses; 3. Retrenchment would effectively prevent the expected additional losses; and 4. Alleged losses and expected losses must be proven by sufficient and convincing evidence Financial documents, which are audited by the CA, are the normal and reliable method of proof of the profit and loss performance of a GOCC. (NDC- GUTHRIE Plantations vs. NLRC, G.R. 110740, 2001).

35/ What does "prevent losses" mean?

35/ The phrase "to prevent losses" means that retrenchment or termination from the service of some employees is authorized to be undertaken by the employer sometime before the losses anticipated are actually sustained or realized. Actual losses need not set in prior to retrenchment (Cajucom VII v. TPI Phil. Cement Corp., G.R. No. 149090, 2005)

39/What are the instances when reinstatement is no longer possible?

39/1. In case establishment has closed or ceased operations 2. Company has been declared insolvent 3. Former position no longer exists for reasons not attributable to the employer 4. Where the employee does not want to be reinstated (Book VI, Rule 1, Section 4 (b), Rule I, IRR) Additional: 1. When employer-employee relationship has already been strained 2. Where a considerable time has lapsed between the dismissal and the resolution of the case (Manila Jockey Club v. Trajano, 2013)

39/What is the effect if reinstatement is no longer possible?

39/According to the SC, "in lieu of reinstatement, petitioner is entitled to separation pay equivalent to one (1) month salary for every year of service reckoned from the time he commenced his employment with TAWTRASCO until finality of this Decision." (Bañares vs. TAWTRASCO, 694 SCRA 312, 2013).

35/What are the guidelines to follow in closure?

35/1. Closure or cessation of operations of establishment or undertaking may either be partial or total. 2. Closure or cessation of operations of establishment or undertaking may or may not be due to serious business losses or financial reverses. However, in both instances, proof must be shown that: a. It was done in good faith to advance the employer's interest and not for the purpose of defeating or circumventing the rights of employees under the law or a valid agreement; and b. A written notice on the affected employees and the DOLE is served at least one month before the intended date of termination of employment. 3. The employer can lawfully close shop even if not due to serious business losses or financial reverses but separation pay, which is equivalent to at least one month pay as provided for by the Labor Code as amended, must be given to all the affected employees. 4. If the closure or cessation of operations of establishment or undertaking is due to serious business losses or financial reverses, the employer must prove such allegation in order to avoid the payment of separation pay. Otherwise, the affected employees are entitled to separation pay. 5. The burden of proving compliance with all the above-stated falls upon the employer. (Manila Polo Club Employees' Union v. Manila Polo Club, Inc., G.R. No. 172846, 2013)

35/ What are the elements of 'closure or cessation of business operations?'

35/1. There must be a decision to close or cease operation of the enterprise by the management; 2. The decision was made in good faith; and 3. There is no other opinion available to the employer except to close or cease operations. (DO No. 147-15)

35/What are the elements of a valid termination based on 'installation of labor-saving devices?'

35/1. There must be introduction of machinery, equipment or other devices; 2. The introduction must be done in good faith; 3. The purpose for such introduction must be valid such as to save on cost, enhance efficiency and other justifiable economic reasons; 4. There is no other option available to the employer than the introduction of machinery, equipment or device and the consequent termination of employment of those affected thereby; and 5. There must be fair and reasonable criteria in selecting employees to be terminated. (D.O. No. 147-15)

36/ Does a temporary closure / bona fide suspension of business operators terminate employment?

36/ A bona fide suspension of business operations for not more than 6 months does not terminate employment. After 6 months, the employee may be recalled to work or be permanently laid off. (SKM Art Craft Corp v. Bauca, G.R. No. 171282, 183484, 2013)

36/ Differentiate Redundancy, Retrenchment, and Closure.

36/ Retrenchment Reduction of personnel usually due to poor financial returns so as to cut down on costs of operations in terms of salaries and wages Resorted to primarily to avoid or minimize business losses Employee is entitled to separation pay of 1 month pay or 1/2 month pay per year of service, whichever is higher Redundancy The service of an Employee is in excess of what is required by an enterprise To save production costs Employee is entitled to separation pay of 1 month pay or 1 month pay per year of service, whichever is higher Closure The reversal of the fortune of the employer whereby there is a complete cessation of business operations and/or actual locking-up of the doors of the establishment, usually due to financial losses Aims to prevent further financial drain upon the Employer In case of closure of business not due to serious business losses, the employer pays the employees terminated separation pay of 1 month pay or 1/2 month pay per year of service, whichever is higher

36/Does the closure of a department or division constitute retrenchment or closure?

36/The closure of a department or division of a company constitutes retrenchment by, and not closure of, the company itself. (Waterfront Cebu City Hotel v. Jimenez, G.R. No. 174214, 2012)

37/ What should the employer do after the first notice?

37/ After serving the first notice, the employer should schedule and conduct a hearing or conference wherein the employee will be given the opportunity to: 1. explain and clarify his defenses to the charge/s against him; 2. present evidence in support of his defenses; and 3. rebut the evidence presented against him by the management. (Unilever v. Rivera, G.R. No. 201701, 2013)

37/What are the elements of 'termination due to ailment or disease?'

37/1. An employee has been found to be suffering from any disease, whether contagious or not; 2. His continued employment is prohibited by law or prejudicial to his health, or to the health of his co-employees; 3. A competent public health authority certifies that the disease is of such nature or at such a stage that it cannot be cured within a period of six months even with proper medical treatment; and 4. Payment of separation pay equivalent to at least one month salary or to one-half month salary for every year of service, whichever is greater, a fraction of at least six months being considered as one whole year.

37/What is the twin-notice requirement?

37/The employer has the burden of proving that a dismissed worker has been served two notices: 1. First written notice: served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side. 2. Second written notice: served upon the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

37/The Labor Code is silent on the requirement of procedural due process due to disease. Must the two-notice rule be followed?

37/YES. The Labor Code and its IRR are silent on the procedural due process required in terminations due to disease. Despite the seeming gap in the law, Section 2, Rule 1, Book VI of the IRR expressly states that the employee should be afforded procedural due process in all cases of dismissals. (Deoferio v. Intel Technology, G.R. No. 202996, 2014) FIRST NOTICE 1. Contain specific causes or grounds for termination as provided under Art. 297 and company policies, if any; 2. Contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. (general description of the charge will not suffice); and 3. Contain a directive that the employee is given the opportunity to submit his written explanation within the reasonable period of FIVE (5) CALENDAR DAYS from receipt of the notice: a. to enable him to prepare adequately for his defense; b. to study the accusation against him; c. to consult a union official or lawyer; d. to gather data and evidence; and e. to decide on the defenses he will raise against the complaint. (DO No. 147-15) SECOND NOTICE After determining that termination of employment is justified, the employer shall serve the employees a written notice of termination indicating that: 1. all circumstances involving the charge/s against the employee have been considered; and 2. grounds have been established to justify the severance of his employment.

39/What are the four kinds of separation pay?

39/1. Statutory separation pay, in authorized causes (Labor Code, Arts. 288-299) 2. Separation pay as financial assistance 3. Separation pay in lieu of reinstatement where reinstatement is not feasible; and 4. Separation pay as a benefit in the CBA or company policy

38/ Distinguish the procedural requirements in termination cases.

38/ JUST CAUSES First Notice specifying the grounds for which dismissal is sought Hearing or opportunity to be heard Second Notice of the decision to dismiss AUTHORIZED CAUSES Notice to the following: - Employee; and - DOLE At least 1 month prior to effectivity of the separation NOTE: For Notice in Authorized Causes: 1. Notice is not needed when Employee consented to the retrenchment or voluntarily applied for one (Int'l Hardware v. NLRC, G.R. No. 80770, 1989) 2. Notice must be individual, and not collective (Shoppers Gain Supermart v. NLRC, G.R. No. 110731, 1996) 3. Voluntary Arbitration satisfies notice requirement for authorized causes (Revidad v. NLRC, G.R. No. 111105, 1995)

38/ What are the guiding principles with respect to the hearing requirement?

38/ "Ample opportunity to be heard" means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way. A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it. The "ample opportunity to be heard" standard in the Labor Code prevails over the "hearing or conference" requirement in the implementing rules and regulations (Perez v. PT&T, G.R. No. 152048, 2009)

38/ What are the various remedies for an illegal dismissal?

38/ An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances and to his other benefits or their monetary allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (Section 34, R.A. No. 6715)

38/ What are the consequences for non- compliance with the due process requirements?

38/ Consequences for Non-Compliance of Procedural Due Process Just or Authorized Cause Exists + Due Process 1. Valid Dismissal 2. Employer is not liable; but pays separation pay only in authorized causes. Just or Authorized Cause + No Due Process 1. Valid Dismissal 2. Employer is liable for damages due to procedural infirmities. 3. Employer pays separation pay if for authorized causes. No Just or Authorized Cause + Due Process 1. Illegal Dismissal 2. Employer is liable to reinstate employee or pay separation pay. 3. If reinstatement is not possible, pay full backwages. No Just or Authorized Cause + No Due Process 1. Illegal Dismissal 2. Employer is liable to reinstate employee or pay separation pay. 3. If reinstatement is not possible, pay full backwages.

39/May reinstatement and backwages be awarded together?

39/General Rule: Yes, reinstatement and backwages may be awarded together. Exceptions: • Separation pay • Closure of business (Retuya v. Hon. Dumarpa, G.R. No. 148848, 2003) • Economic Business Conditions (Union of Supervisors v. Secretary of Labor, G.R. No. L- 39889, 1981) • Employee's unsuitability (Divine Word High School v. NLRC, G.R. No 72207, 1986) • Employee's retirement / overage (New Phil. Skylanders v. Dekila, G.R. No. 199547, 2012) • Antipathy and antagonism (Wensha Spa Center v. Yung, G.R. No. 185122, 2010) • Job with a totally different nature (DUP Sound Phils. v. CA, G.R. No. 168317, 2011) • Long passage of time • Inimical to the employer's interest • Supervening facts have transpired which make execution unjust or inequitable, to an increasing extent (Emeritus Security v. Dailig, G.R. No. 204761, 2014)

39/What is Reinstatement?

39/Reinstatement restores the employee who was unjustly dismissed to the position from which he was removed, that it, to his status quo ante dismissal, while the grant of backwages allows the same employee to recover from the employer that which he had lost by way of wages as a result of his dismissal. (Santos v. NLRC, 238 Phil 161 [1987])

39/When may separation pay as financial assistance be awarded?

39/Separation pay may be awarded, in the name of compassionate justice, to an employee dismissed for a "just cause", except in the following: 1. Serious misconduct; or 2. Other offenses reflecting on his moral character (PLDT v. NLRC, G.R. No. 80609, 1988) However: In the Toyota case, the Supreme Court ruled that if the dismissal is based on any of the just causes in Art. 297 of the Labor Code - No financial assistance can be granted, except perhaps under "analogous causes." (Toyota Motor Phil. Corp. Workers Ass'n. v. NLRC, G.R. No. 158786, 2007) But note: In the International School case, the Supreme Court granted "separation pay" of ½ month per year of service while upholding the teacher's dismissal on the ground of "gross inefficiency" resulting from the lack of skills, thereby failing to meet the standards of the employer of the school. (International School v. International School Alliance, 2014)

40/What economic components constitute backwages for a rank-and-file employee? Are these components equally applicable to a managerial employee?

40/An employee illegally dismissed is entitled to full backwages and reinstatement pursuant to Article 279 of the Labor Code, as amended by RA. 6715: 1. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (Labor Code, art. 279). 2. An unqualified award of backwages means that the employee is paid at the wage rate at the time of his dismissal. The base figure to be used in the computation of backwages due to the employee should include not just the basic salary, but also the regular allowances that he had been receiving such as the emergency living allowances and the 13th month pay mandated under the law. (Paramount Vinyl Product Corporation v. NLRC, et. al., G.R. 81200, 1999). 3. Backwages to be awarded to an illegally dismissed employee should not, as a general rule, be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal. (Bustamante, et. al. v. NLRC and Evergreen Farms, G.R. No. 111651, 1996). 4. A salary increase cannot be interpreted to mean an allowance or a benefit. Salary increases are not akin to allowances or benefits. Allowances and benefits are granted to the employee apart or separate from the wage or salary. In contrast, salary increases are amounts which are added to the employee's salary as an increment thereto. (Equitable Bank v. Sadac, G.R. No. 164772, 2006). 5. Once there is a finding of illegal dismissal, the components constituting the award of backwages is the same for managerial and other employees. Art. 294 of the Labor Code speaks of "employees". Where the law does not distinguish, one must not also distinguish. Labor Code, Art. 294) 6. As a general rule, the normal consequences of a finding that an employee has been illegally dismissed are, firstly, that the employee becomes entitled to reinstatement without loss of seniority rights; and secondly, the payment of backwages corresponding to the period from his illegal dismissal up to his actual reinstatement. The two forms of relief are, however, distinct and separate from each other. Though the grant of reinstatement commonly carries with it an award of backwages, the appropriateness or non- availability of one does not carry with it the inappropriateness or non-availability of the other. In accordance with Moreno v. San Sebastian College (G.R. 175283, 2008), the Court may not only mitigate, but also absolve entirely, the liability of the employer to pay backwages where good faith is evident. Likewise, backwages may be withheld from a dismissed employee where exceptional circumstances are availing.

40/What is the rule on dismissed employees' quitclaims?

40/Quitclaims do not estop employees from pursuing their claim arising from ULP. That the employee has signed a satisfaction receipt does not result in a waiver, the law does not consider as valid any agreement to receive less compensation than what a worker is entitled to recover. A deed of release cannot bar an employee from demanding benefits to which he is legally entitled. Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered in to and represented as reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. (Alfaro vs. CA, G.R. 140812, 2001).

41/Differentiate the reliefs of local workers versus those of migrant workers?

41/Art. 279, LC (LOCAL WORKERS) Reinstatement Full backwages from the time his compensation was withheld from him up to the time of his actual reinstatement Sec. 10, RA 8042 (MIGRANT WORKERS) Full reimbursement of his placement fee with interest of 12% per annum Salaries for the unexpired portion of his employment contract.

41/What damages can an illegally dismissed employee collect from his employer?

41/Moral, exemplary and nominal damages. 1. Moral damages are recoverable only where the dismissal of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy. (PAL vs. NLRC, G.R. 132805, 1999). An award of moral damages cannot be justified solely upon the premise (otherwise sufficient for redress under the Labor Code) that the employer fired his employee without just cause or due process. Additional facts must be pleaded and proven to warrant the grant of moral damages under the Civil Code (Primero vs. IAC, 56 SCRA 435, 1987). 2. Exemplary damages may be awarded only if the dismissal was shown to have been effected in a wanton, oppressive or malevolent manner. (Cocoland Development Corp. vs. NLRC, G.R. No. 98458, 1996). Exemplary damages, however, may not be recovered where the party involved is not entitled to moral or compensatory damages. (Dee Hua Liong vs. Reyes, G.R. No. 72182, 1986). 3. Nominal damages may be granted only if the dismissal is for an authorized or just cause yet effected without procedural due process excluding illegal dismissal. (Agabon vs. NLRC, G.R. No. 158693, 2004) (DEL CASTILLO)

41/ Does the filing of a criminal case against an employee have the effect of suspending or interrupting the running of the prescriptive period for the filing of an action for illegal dismissal?

41/No. The filing of the criminal case against an employee does not have the effect of suspending or interrupting the prescriptive period for the filing of an action for illegal dismissal. Such an action is an administrative case which is entirely separate and distinct from a criminal action. Each may proceed independently of the other. (Pepsi Cola Bottling Company vs. Guanzon, G.R. 81612, 1989)

41/When is separation pay allowed as a measure of social justice?

41/Only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. A series of misconducts, when put together, may constitute a serious misconduct. (PLDT v. NLRC, G.R. Np. 80609, 1988)

41/What is "payroll reinstatement" and when does it apply?

41/Payroll reinstatement is a form of reinstatement which an employer may opt to exercise in lie of an actual reinstatement. Here, the illegally dismissed employee is to receive his basic pay without the obligation of rending any service to the employer. This occurs when a Labor Arbiter decides that an employee was illegally dismissed and as a consequence awards reinstatement, pursuant to Article 279. Such award of reinstatement is immediately executor even pending appeal, pursuant to Article 223. (Maranaw Hotel v. NLRC, G.R. No. 110027, 1994)

42/ What must the nature of the employees' acceptance be of early retirement age?

42/ Acceptance by the employees of an early retirement age option must be explicit, voluntary, free, and uncompelled. (Cercado v. Uniprom, Inc., G.R. No. 188154, 2010, cited in Laya, Jr. v. CA, G.R. No. 205813, January 10, 2018)

42/ Who are eligible to the Retirement Pay Law?

42/ All employees in the private sector, regardless of their position, designation or status and irrespective of the method by which their wages are paid. The only exceptions are [CDR-SA10] 1. Employees covered by the Civil Service Law 2. Domestic helpers and persons in the personal service of another 3. Employees in retail, service and agricultural establishments or operations regularly employing not more than 10 employees. (IRR R.A. No. 7641, Sec. 2)

43/Is an employee who was terminated for authorized causes (redundancy), also entitled to avail of early retirement benefits? Otherwise stated, may an employee be paid both retirement and separation pay benefits?

43/(DEL CASTILLO) YES, as a general rule. Exception: When there is an explicit provision in the company rules prohibiting the availment of both. Employees are legally entitled to recover both separation pay and retirement benefits in the absence of a specific prohibition in the Retirement Plan or CBA. In such an instance where both the company rules or CBA and the retirement plan are silent, an employee is not barred from claiming his early retirement benefits, even if he/she had already received his retrenchment pay, and has executed a Quitclaim to that effect. This must be so because he is legally entitled thereto as a general rule. (Goodyear vs. Marina Angus, G.R. No. 185499, November 14, 2014)

42/What are the applicable rules pertaining to 'employer's indemnity?'

42/ Nov. 2004 to Present (Agabon Doctrine) • Dismissal is valid • Employer's liability: Nominal damages Jaka Food v. Pacot, G.R. No. 151378, 2005 If the dismissal is based on a just cause but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the employee. If the dismissal is based on an authorized cause but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal was initiated by the employer's exercise of management prerogative. Industrial Timber v. Ababan, G.R. No. 164518, 2006 (Distinction of Authorized Causes) If the authorized cause that terminates employment arises from losses, the penalty to the employer who disregarded due process may be lighter than if the authorized cause has no relation to losses. HSBC Employees Union v. NLRC, G.R. No. 156635, 2016 A dismissal lacking in valid cause or valid procedure is "illegal." In a dismissal based on just or authorized cause, but effected without due process, the employee remains dismissed, but the employer must pay nominal damages.

42/ When is Preventive suspension be imposed?

42/ Preventive suspension may be imposed upon an employee who is under investigation for certain serious offenses. As its purpose is to prevent harm from befalling the company/business/other workers, this can only be resorted to when an employee's continued presence poses a serious and imminent threat to the life or property of the employer. (Sec. 3, Rule XIV, Omnibus Rules Implementing the Labor Code)

42/What is the age of retirement?

42/1. Where there is a CBA or other applicable employment contract (or retirement plan): any employee may be retired upon reaching the retirement age established therein 2. Where there is no CBA/retirement plan: a. Optional retirement: an employee upon reaching the age of 60 or more (but not beyond 65) who has served at least 5 years in said establishment, may retire b. Compulsory retirement: upon reaching the age of 65. (Labor Code, Art. 302)

42/May the optional and compulsory retirement ages be lowered?

42/1. Written policy - such as in the CBA (Pantranco North Express v. NLRC & U. Suniga, G.R. No. 95940, 1996); or 2. Assented to by the employees (Jaculbe v. Silliman University, G.R. No. 156934, 2007)

43/What are the jurisprudential guidelines on the transfer of employees?

43/(DEL CASTILLO) 1. A transfer is a movement from one position to another of equivalent rank, level or salary without break in the service or a lateral movement from one position to another of equivalent rank or salary; 2. The employer has the inherent right to transfer or reassign an employee for legitimate business purposes; 3. A transfer becomes unlawful where it is motivated by discrimination or bad faith or is effected as a form of punishment or is a demotion without sufficient cause; 4. The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee. (ICT Marketing Services v. Mariphil Sales, G.R. 202090, September 9, 2015)

44/What is the rule regarding marriage between employees of competitor-employers?

44/It is unlawful for an employer to require as a condition of employment or continuation of employment that: 1. A woman employee shall not get married, or 2. To stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated; or 3. To actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. (Labor Code, Art. 136)

43/What is the extent of the employer's right to discipline?

43/Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, process to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay - off workers and the discipline, dismissal and recall of work. (NLU v. Insular La Yebana Co., G.R. No. L-15363, July 31, 1961)

43/What are other allowable exercises of management prerogative?

43/In the case of Republic Planter's Bank v. NLRC (G.R. No. 117460, 1997), the Court ruled that it was valid for an employer to establish as policy that once an employee is found guilty of an administrative charge, he shall forfeit his bonus in favor of the employer. However, as enunciated in Sime-Darby Pilipinas vs. NLRC (G.R. 119205, 1998), management retains the prerogative to change the working hours of its employees whenever exigencies of the service so require.

43/What is the extent of the right of the employer to transfer its employees?

43/It is the prerogative of the company to promote, transfer or even demote its employees to other positions when the interests of the company reasonably demand it. Unless there are instances which directly point to interference by the company with the employee's right to self - organization, the transfer of an employee should be considered within the bounds allowed by law. (Rubberworld v. NLRC, G.R. No. 75704, 1989)

43/ When is retirement due for underground miners?

43/Optional retirement is due for underground miners upon reaching the age of 50 years or more and compulsory retirement at age 60 provided he has served at least 5 years as such. (R.A. No. 8558)

44/May the employer change the working hours?

44/Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and discipline, dismissal and recall of workers. (San Miguel Brewery Sales v. Ople, G.R. No. L- 53515, 1989)

44/What factors does the Court consider in deciding the validity of a Post-employment ban?

44/In determining whether the contract is reasonable or not, the trial court should consider the following factors: (a) whether the covenant protects a legitimate business interest of the employer; (b) whether the covenant creates an undue burden on the employee; (c) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy. (Rivera v. Solidbank, G.R. No. 163269, 2006)

44/ Can an employer be forced to distribute bonuses even when it can no longer afford to pay?

44/No. The granting of bonus is a management prerogative, something given in addition to what is ordinarily received by or strictly due the recipient. (Producers Bank of the Philippines v. NLRC, 355 SCRA 489, 2001; 2002 and 2003 Bar)

44/Is the imposition of productivity standards an allowable practice?

44/The SC said, in the case of Leonardo v. NLRC (G.R. Not. 125303, 2000), that this arrangement appears to be an allowable exercise of company rights. An employer is entitled to impose productivity standards for its workers and non- compliance may be visited with a penalty even more severe than demotion.

45/What are the coverage and exclusions of the SSS and GSIS Law?

45/ SSS ACT 1. Employer - any person, natural or judicial, domestic or foreign who carries on in the Philippines any trade, business, industry undertaking, or activity of any kind and uses the services of another person who is under his orders as regards employment. *EXCEPT: Government and any of its political subdivisions, branches and instrumentality, including GOCCs, i.e., those under GSIS. 2. Employee - any person who performs services for an employer who receives compensation for such services, where there is an employer- employee relationship. 3. Self-Employed - considered both employer and employee. GSIS ACT 1. Employer - the national government, its political subdivisions, branches, agencies or instrumentalities, including GOCCs, and financial institutions with original charters, the constitutional commissions and the judiciary 2. Employee - any person receiving compensation while in service of an employer as defined herein, whether by election or appointment

45/Who has the burden of proof to show the validity of the exercise of management prerogatives?

45/It is the Employer. HOWEVER: The employee initially has the burden to prove that he is an employee of the company (Javier v. CA, G.R. No. 192558, February 15, 2012) (DEL CASTILLO): The burden of proof rests upon the party who asserts the affirmative of an issue'." Since it is Valencia here who is claiming to be an employee of Classique Vinyl, it is thus incumbent upon him to proffer evidence to prove the existence of employer-employee relationship between them. He "needs to show by substantial evidence that he was indeed an employee of the company against which he claims illegal dismissal." Corollary, the burden to prove the elements of an employer-employee relationship, viz.: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power of control, lies upon Valencia. (Valencia v. Classique Vinyl, G.R. No. 206390, January 30, 2017)

46/Who are considered as beneficiaries?

46/ PRIMARY SSS ACT 1. Dependent Spouse, until remarriage; AND 2. Dependent Legitimate or Legitimated or Legally Adopted and Illegitimate Children. GSIS ACT 1. Legal Dependent Spouse until remarriage ; AND 2. Dependent Children SECONDARY 1. Dependent Parents 2. Absent primary and secondary beneficiaries, any other person designated by member as secondary beneficiary 1. Dependent Parents AND 2. Legitimate descendants, subject to restrictions on dependent children OTHERS As to BENEFITS, beneficiary under the Act, benefits shall be paid to Legal Heirs in accordance with Law of Succession DEATH if no qualifies

46/What are the exclusions from coverage?

46/SSS ACT 1. Employment purely casual and not for the purpose of occupation, or business of the employer 2. Service performed on or in connection with alien vessel, if employed when such vessel is outside of Philippines 3. Employees of Philippine government or instrumentality or agency thereof 4. Service performed in the employ of a foreign government, or international organizations, or wholly owned instrumentality employing workers in the Philippines or employing Filipinos outside of the Philippines 5. Services performed by temporary employees and other employees excluded by SSS regulation; employees of bona fide independent contractors shall not be deemed employees of the employer engaging the services of an independent contractor GSIS ACT 1. Members of the AFP and PNP, subject to the condition that they must settle first their financial obligation with the GSIS; 2. Contractual employees, who have no employer- employee relationship with the agencies they serve; 3. Uniformed personnel of the Bureau of Fire Protection (BFP); 4. Uniformed personnel of the Bureau of Jail Management and Penology (BJMP); 5. Barangay and Sanggunian Officials who are not receiving fixed monthly compensation; 6. Employees who do not have monthly regular hours of work and are not receiving fixed monthly compensation (IRR of R.A. No. 8291, Rule II, Sec 3, Par. 2)

46/Who are considered as dependents under the SSS and GSIS Law?

46/Under both laws, the following shall be considered as dependents: 1. Legal spouse entitled for support; 2. Child, whether legitimate, legitimated, legally 3. Parents receiving regular support from the member.

47/ What are the benefits under the SSS and GSIS Law?

47/ SSS ACT 1. Monthly Pension 2. Dependents Pension 3. Retirement 4. Death 5. Permanent Disability 6. Funeral 7. Sickness 8. Maternity (ONLY 1ST FOUR DELIVERIES OR MISCARRIAGES) 9. Loan Grant GSIS ACT 1. ALL MEMBERS A. Life Insurance B. Retirement C. Disability D. Survivorship E. Separation F. Unemploym ent 2. JUDICIARY a. Life Insurance ONLY - ALL TAX EXEMPT

47/Who are covered under the ECC Law?

47/1. Every employer 2. Every employee not over 60 years old 3. Any employee over 60 years of age if he had been paying contributions prior to age 60 and has not been compulsorily retired. 4. An employee who is coverable by both the GSIS and SSS shall be compulsorily covered by both systems. (Sec. 2, Rule I, Amended Rules on Employees' Compensation, implementing Title II, Book IV of the Labor Code.) 5. Filipinos working abroad in the service of an employer as defined in Section 3 hereof shall be covered by the System, and entitled to the same benefits as are provided for employees working in the Philippines. (Sec. 5, Rule I)

47/ What are the grounds for compensability under the ECC law?

47/1. For the injury and the resulting disability or death to be compensable, the injury must be the result of accident arising out of and in the course of the employment. For the sickness and the resulting disability or death to be compensable, the sickness must be the result of an occupational disease listed under the Annex of the IR dealing with occupational diseases with the conditions set therein satisfied. Otherwise, proof must be shown that the risk of contracting the disease is increased by the working conditions

47/What does the Right to self-organization include?

47/The right includes: • Forming, joining, or assisting labor organizations for the purpose of collective bargaining through representatives of their own choosing. • To engage in lawful concerted activities for the purpose of collective bargaining or for their mutual aid and protection. (Labor Code, Art. 257)

47/Do government employees have the right to self-organization?

47/Yes. The right to self-organization applies to all employees of all branches, subdivisions, instrumentalities and agencies of the government including GOCCs with original charters. It does not cover members of the AFP, police officers, policemen, firemen and jail guards. The government employees' right to organize is limited to the formation of unions or associations WITHOUT the right to strike. (Gesite v. Court of Appeals, 444 SCRA 51, 2004)

47/Can security guards form, join and assist labor organizations for purposes of collective bargaining?

47/Yes. Under RA 6715, security guards may freely join a labor organization of the rank and file or that of the supervisory union, depending on their rank.

48/Who are prohibited to form, join and assist labor organizations for the purpose of collective bargaining?

48/1. Managerial employees - refers to an employee who is vested with powers or prerogatives to lay down and execute management policies or to hire, transfer, suspend, layoff, recall, discharge, assign or discipline employees. (Art. 255 LABOR CODE) 2. Confidential employees - Confidential employees are those who (1) assist or act in a confidential capacity, (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The prohibition is based on the DOCTRINE OF NECESSARY IMPLICATION wherein the reason behind disqualifying managerial employees to form unions can be similarly applied to confidential employees (NATU v. Torres, G.R. No. 93468, 1994) 3. Member-Owner of Cooperatives - An owner cannot bargain with himself or his co-owners. Employees who are neither members nor co- owners of the cooperative are entitled to exercise the rights to self-organization, collective bargaining and negotiation (Benguet v. Ferrer-Calleja, G.R. No. 79025, 1989) 4. Employees of International Organizations which have been granted diplomatic immunity cannot unionize EXCEPT if the international organizations expressly waived their immunity (ICMC v. Calleja, G.R. No. 85750, 1990)

48/Are positions with access to salary and compensation excluded from the bargaining unit?

48/No. In SMFI vs. SMC Supervisors and Exempt Union (G.R. No. 146206, 2011), Confidential employees are those who (1) assist or act in a confidential capacity, in regard (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. They should be excluded from the bargaining unit, as their access to confidential information may become the source of undue advantage. The Payroll Master and employees with access to salary and compensation data are not considered confidential employees, because their positions do not involve dealing with confidential labor relations information.

48/What is the minimum membership requirement for an independent union to be valid?

48/The Labor Code merely requires a 20% minimum membership during the application for union registration. It does not mandate that a union must maintain the 20% minimum membership requirement all throughout its existence. (NAGA- PEMA vs. NASECO, G.R. No. 165442, 2010)

48/ Do employees of non-stock, non-profit organizations or alien employees have the right to self-organization?

48/Yes. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self- employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (Labor Code, Art. 253)

48/Do alien employees have the right to self- organization and join or assist labor unions for purposes of collective bargaining?

48/Yes. The following requisites must be present: a. The alien employee must have a valid working permit issued by DOLE; and b. The alien employee must be a national of a country which grants the same or similar rights to Filipino workers, as certified by DFA or which has ratified either ILO Convention No. 87 or ILO Convention No. 98. (Labor Code, Art. 284)

49/May the company file a petition for cancellation of union registration?

49/DEL CASTILLO) Yes, the company may be considered a party-in-interest and file a petition for cancellation of union registration where it appears that the Union members are managerial employees, and hence, absolutely prohibited from forming a union (AIM v. AIM Faculty Association, G.R. No. 207971, January 23, 2017)

49/What is the relationship between the local union and the federation?

49/Mere affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. It only gives rise to a contract of agency, where the former acts in representation of the latter. (Insular Hotel Employees v. Waterfront Insular Hotel, G.R. No. 174040-41, Sept. 22, 2010)

49/May managerial employees join a labor organization?

49/No. Managerial employees are not eligible to join, assist or form any labor organization (Labor Code, Art. 255)

49/What is the effect of inclusion of members outside of the bargaining unit?

49/Said employees are automatically deemed removed from the list of membership of said union. (Labor Code, Art. 256)

49/What is the relationship between the union and its members?

49/The relationship of the union and the member is fiduciary in nature. The union may be considered the agent of its members for the purpose of securing for them fair and just wages and good working conditions and is subject to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted to it. (Heirs of Teodolo Cruz v. CIR, G.R. No. L-23331-32, Dec. 27, 1969)

49/What is the Doctrine of Necessary Implication?

49/While Art. 255 of the Labor Code singles out managerial employees as ineligible to join, assist or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified. This doctrine states that what is implied in a statute is as much a part thereof as that which is expressed. (NATU v. Republic Planters Bank, G.R. No. 93468, Dec. 29, 1994)

49/ May Supervisors join a labor organization?

49/Yes. HOWEVER, Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own (Labor Code, Art. 255

5/ When is illegal recruitment considered economic sabotage?

5/ Illegal recruitment is considered economic sabotage in two (2) instances. 1. Committed by a syndicate: where 3 or more persons conspire with one another in carrying out any unlawful or illegal transaction or scheme 2. Committed in large scale: where committed against 3 or more persons individually or as a group

5/ What are the differences between prohibited acts under the Labor Code (Art. 34)and Migrant Workers Act (Sec.6)?

5/ LABOR CODE -Illegal recruitment may only be committed by a non- licensee (Labor Code, Art. 34). If the recruiter is licensed, it may commit a prohibited activity (Labor Code, Art. 38) -11 enumerated acts MIGRANT WORKERS ACT It is committed by either licensee or non- licensee (RA No. 8042, Sec. 6) 14 enumerated acts considered as illegal recruitment, including the following • Failure to actually deploy a contracted worker without valid reason; • Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purpose of deployment, in case of non-deployment; • To allow a Non- Filipino citizen to head or manage a licensed recruitment/manning agency. Plus, 7 additional prohibited acts.

5/ What are the types of illegal recruitment?

5/ There are four (4) types of illegal recruitment under the Labor Code: 1. Recruitment by non-licensee 2. Simple illegal recruitment (not economic sabotage) 3. Large scale or qualified illegal recruitment (economic sabotage) 4. Syndicated illegal recruitment (economic sabotage) (R.A. 8042 as amended by R.A. 10022)

50/What is substitutionary doctrine?

50/A new collective bargaining agency cannot repudiate an existing collective bargaining agreement, because the existing collective bargaining agreement must be honored by a new exclusive bargaining representative because of the policy of stability in labor relations between an employer and the workers. (General Maritime v. South Sea Shipping Line, G.R. No. L-14689, July 26, 1960; 2010 Bar)

50/What is the Community of Interest Rule?

50/According to the case of San Miguel Corporation vs. Laguesma (G.R. 100485, 1994), the Community of Interest Rule states that the employees within an appropriate bargaining unit must have commonality of collective bargaining interests in the terms of employment and working conditions as evidenced by the type of work they perform. NOTE: (DEL CASTILLO) The labor organization's charter certificate need not be certified under oath in order for it to be considered a legitimate labor organization (Samahang Manggagawa sa Charter Chemical v. Charter Chemical, G.R. No. 169717, March 16, 2011)

50/ How is the CBU determined?

50/There are 4 factors considered in determining the appropriate bargaining unit: 1. The will of the employees (Globe Doctrine) 2. Affinity and unity of the employees' interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (Substantial Mutual Interests Rule) 3. Prior collective bargaining history; and 4. Similarity of employment status. (International School Alliance of Educators v. Quisumbing, G.R. No. 128845, 2000)

50/What is Disaffiliation and when may it be exercised?

51/ It is a right granted to affiliates to disassociate from the mother union. General Rule: a labor union may disaffiliate from the mother union to form a local or independent union ONLY during the 60 day freedom period immediately preceding expiration of CBA. Exception: Shift of allegiance of majority. In such a case, however, the CBA continues to bind members of the new or disaffiliated and independent union up to the CBA's expiration date. (Tanduay Distillery Labor Union v. NLRC, G.R. No. 75037, April 30, 1987) Either way, any disaffiliation must be supported by the majority. Otherwise, the act may constitute disloyalty.

51/How can a legitimate labor organization become the Exclusive Bargaining Representative/Agent?

51/It has to be certified as such through either: 1. Sole and exclusive bargaining agent (SEBA) Certification proceeding - applies to an unorganized establishment with only one LLO 2. Certification Election - the process of determining, through secret ballot, the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of collective bargaining. 3. Consent Election - one that is voluntarily agreed upon by the parties, with or without the intervention by the DOLE, in determining the sole and exclusive bargaining representative of the employees in an appropriate bargaining unit. (D.O. No. 40-1-15.)

51/ What are the instances when certification election is mandatory? What is the rational for the legal mandate of making some instances of certification election mandatory?

51/The Labor Code lists Articles 256, 257, 258 which prescribe a mandatory certification election. • Article 256 - In organized establishments, a petition for certification election can be filed, questioning the majority status of the incumbent bargaining agent • Article 257 - In unorganized establishments, a petition for certification election can be filed and it shall automatically be conducted by the Med-Arbiter • Article 258 - When requested to bargain collectively, an employer may file a petition for certification election • DO 40-I-15 - If the Regional Director finds the establishment unorganized with more than one (1) legitimate organization, he/she shall refer the same to the election officer for the conduct of certification election. The purpose of certification election, as enunciated in the case of DHL Philippines Corporation United Rank and File Association - Federation of Free Workers v. Buklod ng Manggagawa ng DHL Philippines Corporation (G.R. 152094, 2004) is precisely to ascertain the majority of the employees' choice of an appropriate bargaining unit - to be or not to be represented by a labor organization and, in the affirmative case, by which one. The rationale for the conduct of certification elections is to provide democratic space to everyone in the bargaining unit, and to ensure that the union has the support of the majority.

51/How are the terms "certification election," "consent election," "SEBA certification," and "run-off election" defined?

51/The following are the distinctions: • Certification Election - process of determining through secret ballot, the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of collective bargaining (Sec. 1 (x), Rule I, Book V, Rules & Regulations Implementing the Labor Code) • Run-off Election - an election between the labor unions receiving the 2 highest number of votes in a certification or consent election with 3 or more choices, where such a certified or consent results in none of the 3 or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least 50% of the number of votes cast (DO 40-03) • Consent Election - election voluntarily agreed upon by the parties, with or without the intervention of the DOLE, to determine the issue of majority representation of all the workers in the appropriate bargaining unit (Rule I, D.O. No. 9, as amended by D.O. No. 40-03) • SEBA Certification - process by which a legitimate labor union is recognized by the employer as the Sole and Exclusive Bargaining Agent in a bargaining unit upon Request of a Legitimate Labor Organization. It may be done in an either an organized or unorganized establishment. Unlike the repealed voluntary recognition, SEBA certification is allowed even when there are more than 1 legitimate labor organizations in an unorganized establishment.

52/Who may file Petition for Certification Election?

52/1. Legitimate Labor Organization 2. The Federation of behalf of its chapter (Arts. 268, 269, LC; 2012 Bar); or 3. The employer, when requested to bargain collectively. (Art. 270, LABOR CODE)

52/What are the grounds for denying a Petition for Certification Election?

52/1. Non-registration in the DOLE 2. Non-submission of the Charter Certificate upon filing of the PCE 3. Contract Bar/Election Bar - Filing the petition before or after the freedom period of a duly registered CBA; provided that the 60-day period based on the original CBA shall not be affected by any amendment, extension or renewal of the CBA; 4. Certification Year Bar/ 12-Month Bar - Filing a petition within one (1) year from the date of recording of SEBA certification, or within the same period from a valid certification, consent or run-off election where no appeal on the results is pending; 5. Where a duly certified union has commenced and sustained negotiations with the employer within the one-year period (Negotiation Bar) or where there exists a bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout where an incumbent or certified bargaining agent is a party (Deadlock Bar); 6. In an organized establishment, the failure to submit the 25% signature requirement to support the filing of the PCE 7. Non-appearance of the petitioner for 2 consecutive scheduled conferences before the mediator-arbiter despite due notice; and 8. Absence of ER-EE relationship between all the members of the petitioning union and the establishment where the proposed bargaining unit is sought to be represented (D.O. No. 40- F-03, 2008)

52/When may a Petition for CE be filed in an unorganized establishment?

52/General Rule: Anytime. (Labor Code, Art. 269) Exceptions: 1. When SEBA has been entered, or a valid certification, consent or run-off election has been conducted within 1 year prior to the filing. 2. Sustained negotiations in good faith with the employer 3. Bargaining deadlock had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. 4. Registered CBA 5. May file only within 60 days prior to the expiration of the CBA's representational aspect. (Rule VIII, Sec. 3, D.O. 40-03)

52/Can a "no-union" win in a certification election?

52/Yes. "No Union" is always a choice in a certification election. This proceeds from the premise that the right to join a union carries with it the concomitant right not to join a union. Hence, in a certification election, the voter is required to put a cross or check mark in the square opposite the name of the union of his choice or "No Union" if he does not want to be represented by any union. Where majority of the valid votes cast results in "No Union" obtaining the majority, the Med-Arbiter shall declare such fact in the order, as prescribed by Sec. 20, Rule IX, Book V, Implementing Rules of the Labor Code, as amended by DO 40-03) But in a run-off election, "No Union" shall not be a choice. (Sec I, Rule X, Book V, Implementing Rules of the Labor Code)

52/Is a certification election held by a labor union, whose validity was being contested, valid?

52/Yes. The court applied Legends International vs. Kilusang Mangagawa (G.R. No. 169754, 2011) the established rule correctly followed by the public respondent that an order to hold a certification election is proper despite the pendency of the petition for cancellation of the registration certificate of the respondent union. The rationale for this is that at the time the respondent union filed its petition, it still had the legal personality to perform such act absent an order directing the cancellation."

53/What are the election mechanics?

53/1. Preliminary Conference The Med-Arbiter shall conduct a preliminary conference and hearing within 10 days from the receipt of the petition to determine the following: a. The bargaining unit to be represented; b. Contending labor unions; c. Possibility of consent elections; d. Existence of any of the bars to certification election; and e. Such other matters as may be relevant for the final disposition of the case. 2. Order/Decision on the Petition Within 10 days from the date of the last hearing, the Med-Arbiter shall issue a formal order granting or denying the petition. In organized establishments, no order or decision shall be issued during the freedom period. The order granting the petition shall state the following: a. Name of the employer or establishment b. Description of the bargaining unit c. Statement that none of the grounds for dismissal exists d. Names of contending labor unions e. Directive to an unregistered local/chapter or a federation/national union representing an unregistered local/chapter to personally submit to the Election Officer its certificate of creation at least 5 working days before theactual conduct of the certification election. Non-submission of this requirement as certified by the Election Officer shall disqualify the local/chapter from participating in the certification election f. Directive upon the employer and the contending union(s) to submit within 10 days from receipt of the order, the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit of at least 3 months prior to the issuance of the order. (Labor Code IRR)

54/Who are qualified to vote in a certification/consent election?

54/All employees who are members of the appropriate bargaining unit 3 MONTHS PRIOR to the PCE shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election. (D.O. No. 40- 1-15.)

53/How is a protest done?

53/1. Record the protest in the minutes of the election proceedings; AND 2. Formalize and perfect the protest within five (5) days after the close of the election proceedings, formalize the protest with specific grounds, arguments before the Med- Arbiter. (Sec. 12, Rule IX, Book V)

53/What are the requirements for validity of a certification election?

53/1. The union should be legitimate which means that it is duly registered and listed in the registry of legitimate labor unions of the BLR or that its legal personality has not been revoked or cancelled with finality. 2. In case of organized establishments, the petition for certification election is filed during (and not before or after) the 60-day freedom period of a duly registered CBA. 3. In case of organized establishments, the petition complied with the 25% written support of the members of the bargaining unit. 4. The petition is filed not in violation of any of the four (4) bar rules (See above discussion thereof). (D.O. No. 40-1-15.)

53/Who may file and on what ground may a protest arising from the conduct of certification be filed?

53/Any party-in-interest and on a ground based on the conduct or mechanics of election. (Sec. 12, Rule IX, Book V)

53/What is the "automatic renewal clause" in a collective bargaining agreement?

53/Automatic renewal clause means that at the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60- day period and/or until a new agreement is reached by the parties. (Labor Code, Art. 264)

53/What is the difference between "contract bar rule" and "deadlock bar rule?"

53/In contract bar rule, no petition for certification election may be filed where there is an existing CBA which has been duly registered. A petition for certification election may on be filed within the last 60 days of the fifth year of the CBA. On the other hand, in deadlock bar rule, no certification election may be held if there is a pending bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout. (Labor Code, Art. 268; Capitol Medical v. Laguesma, G.R. No. 118915, 1997)

54/When are run-off and re-run elections conducted?

54/A run-off election refers to an election between the labor unions receiving the 2 highest number of votes in a certification or consent election: a. When such certification or consent election provides for 3 or more choices (including "no union") b. Results in none of the contending unions receiving a MAJORITY of the valid votes cast, and c. There are no objections or challenges which if sustained can materially alter the results, d. Provided, that the total number of votes for all contending unions is at least 50% percent of the number of votes cast. e. "No Union" shall not be a choice in the run-off election. A re-run election occurs when a certification, consent or run-off election results to a TIE between the 2 choices, The choice receiving the highest votes cast during the re-run election shall be declared the winner and shall be certified accordingly. (D.O. No. 40-1-15.)

54/What is the "double majority rule"?

54/For there to be a valid certification election, majority of the bargaining unit must have voted AND the winning union must have garnered majority of the valid votes cast. (National Union of Workers In Hotels, Restaurant and Allied Industries-Manila Pavilion Hotel Chapter v. Secretary of Labor, G.R. No. 181531, 2009)

54/Can probationary employees vote in a certification/consent election?

54/Yes. All employees in the appropriate bargaining unit, whether probationary or permanent are entitled to vote. (National Union of Workers In Hotels, Restaurant and Allied Industries-Manila Pavilion Hotel Chapter v. Secretary of Labor, July 31, 2009)

54/Is a certification election held by a labor union, whose validity was being contested, valid?

54/Yes. An order to hold a certification election is proper despite the pendency of the petition for cancellation of the registration certificate of the respondent union. The rationale for this is that at the time the respondent union filed its petition, it still had the legal personality to perform such act absent an order directing the cancellation. (Legends International vs. Kilusang Mangagawa, G.R. No. 169754, 2011)

55/What are the rules on levying assessments and collecting dues from union members?

55/1. Rule on Levy: Article 241, par. (o) of the Labor Code provides that no special assessment or extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president. 2. Rule on Collection: Article 241, par (n) of the Labor Code provides that other than for mandatory activities under the Code, no special assessments, attorney's fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction. A valid collection presupposes a valid levy.

55/What is a Collective Bargaining Unit (CBU)?

55/A CBU is a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupation or geographical grouping within such employer unit. (Rule I, § 1(d), Omnibus Rules)

55/When can Special Assessments and Extraordinary Fees be (a) levied and (b) checked off?

55/A special assessment or extraordinary fee may be levied when authorized by a WRITTEN resolution of a MAJORITY of all the members in a general membership meeting duly called for the purpose. The Secretary of the organization shall record the minutes of the meeting including the (a) list of all members present, (b) votes cast, (c) purpose of the special assessment or fees and (d) recipient of such assessment or fees. The record shall be attested to by the president. (Labor Code, Art. 249) A check-off is a process whereby the employer, on agreement with the EBR, deducts union dues or agency fees from the latter's wages and remits them directly to the union. No special assessments, attorney's fees, negotiation fees or any other extraordinary fees may be may be checked off from any amount due to an employee without a. An INDIVIDUAL WRITTEN authorization duly signed by the employee b. The authorization should specifically state the (1) amount, (2) purpose and (3) Beneficiary of the deduction. (Labor Code, Art. 249)

55/What is an agency fee?

55/This is an amount, equivalent to union dues, which a nonunion member pays to the union because he benefits from the CBA negotiated by the union. It is an agency fee because in negotiation the CBA, the union served as the employees' agent. (Labor Code, Art. 259)

56/ What are the mandatory subjects of the CBA?

56/ 1. Wages 2. Hours of Work 3. Other Terms and Conditions of Employment 4. Grievance procedure (Labor Code, Art. 263) Where the subject of the dispute is a mandatory bargaining subject, either party may bargain to an impasse as long as he bargains in good faith. Where the subject is non-mandatory, a party may not insist on bargaining to the point of impasse. His insistence may be construed as evasion of the duty to bargain.

56/ What is a Collective Bargaining Agreement or CBA?

56/ A CBA is executed upon the request of either the employer or the exclusive bargaining representative incorporating into the agreement reached after negotiations with respect to wages, hours of work, and all other terms and conditions of employment, including the mandatory provisions for grievance and arbitration machineries. (Davao Integrated Stevedoring Services v. Abarquez, G.R. 102132, 1993).

56/Would an agreement that effectively abrogates the right of workers to self- organization and collective bargaining be void for being unconstitutional and against public policy?

56/ Generally, YES, however in Rivera vs. Espiritu (G.R. No. 135547, 2002), the Court ruled that the assailed PAL-PALEA agreement was the result of voluntary collective bargaining negotiations undertaken in the light of the severe financial situation faced by the employer, with the peculiar and unique intention of not merely promoting industrial peace at PAL, but preventing the latter's closure. It was PALEA, as the exclusive bargaining agent of PAL's ground employees that voluntarily entered into the CBA with PAL. It was also PALEA that voluntarily opted for the 10-year suspension of the CBA. Either case was the union's exercise of its right to collective bargaining. The right to free collective bargaining, after all, includes the right to suspend it.

56/ What is the difference between Surface Bargaining and Blue-Sky Bargaining?

56/ Surface Bargaining means conducting a negotiation process without any intent to conclude a CBA. Such intent can be derived from the totality of the party's words and actions either during or outside the actual bargaining process. Blue-Sky Bargaining refers to unrealistic and unreasonable demands in negotiations by either or both labor and management, where neither concedes anything and demands the impossible. (Standard Chartered Bank Employees Union v. Confesor, 432 SCRA 308, 2004)

56/Does the Union have the authority to compromise individual rights?

56/No. Absent a showing of the Union's special authority to compromise the individual claims of private respondents for reinstatement and backwages, there is no valid waiver of the aforesaid rights. (Golden Donuts vs. NLRC, G.R. No. 113666-68, 2000)

56/How is the 'duty to bargain collectively' defined?

56/The performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or questions arising under such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concessions. (Labor Code, Art. 263)

56/What are the jurisdictional requirements to trigger the duty to bargain collectively?

56/[MPD] 1. Possession of the status of Majority representation of the employees' representative 2. Proof of majority representation 3. Demand to bargain (Kiok Loy vs. NLRC, G.R. No. L-54334, 22 January 1986)

57/Can the commission of unfair labor practices of an employer be subjected to criminal action?

57/Generally, no. ULPs are also criminal offenses against the State which shall be subject to prosecution and punishment. However, no criminal prosecution may be made without a prior final judgment in such administrative case shall neither be binding on the criminal case, nor be considered as evidence of guilt. At best, it would only serve as proof compliance of the requirement set forth in Article 247. (Labor Code, Art. 260)

57/When is the reckoning period for the CBA arbitral awards of the Secretary of Labor?

57/In general, a CBA negotiated within 6 months after the expiration of the existing CBA retroacts to the day immediately following such date and if agreed thereafter, the effectivity depends on the agreement of the parties. CBA arbitral awards granted after 6 months from the expiration of the last CBA shall retroact to such time agreed upon by both employer and the employees or their union. Absent such an agreement as to retroactivity, the award shall retroact to the first day after the six- month period following the expiration of the last day of the CBA should there be one. In the absence of a CBA, the Secretary's determination of the date of retroactivity as part of his discretionary powers over arbitral awards shall control. Where the arbitral award was made to retroact to the first day after the six-month period following the expiration of the last day of the CBA because of the enormous cost that the petitioner (MERALCO) will have to bear as a consequence of the full retroaction of the arbitral award to the date of expiry of the CBA. (MERALCO v. Quisumbing, G.R. No. 127598, 2001)

57/What are the acts which constitute ULP by employers?

57/Rundown of Acts Constituting Unfair Labor Practice of Employers (YIP-C2-D2-V2) 1. Interference 2. Yellow dog condition 3. Contracting out 4. Company unionism 5. Discrimination for or against union membership 6. Discrimination because of testimony 7. Violation of duty to bargain 8. Paid negotiation 9. Violation of CBA

57/What is unfair labor practice?

57/Unfair labor practices (hereinafter "ULP") violate the constitutional right of workers and employers to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect. (Arizala v. CA, G.R. Nos. 43633-34, 1990)

57/What does the hold-over principle in CBA mean?

57/Until a new agreement is reached by the parties, both parties shall keep the status quo and continue to abide with the provisions of the CBA, even after its expiration. The automatic renewal shall only apply to economic provisions of the CBA and does not include the representation aspect of the CBA. (Picop Resources Inc., v. Dequilla, G.R. No. 172666, 2011)

58/What are the statutory requirements for a valid strike?

58/1. Status of the striking union - For a ULP strike or bargaining deadlock, on lay a duly certified or recognized bargaining representative may declare such strike 2. Procedural requirements a. Notice of strike - file notice of intent to strike with the NCMB b. Cooling-off Period must be observed o ULP 15 days before intended strike o Bargaining deadlock 30 days 3. Strike vote and filing of the same with the NCMB 4. 7-day strike ban must be observed 5. Cause - a labor or industrial dispute (Labor Code, Art. 279) Compliance with all the legal requirements, as stated by National Federation of Sugar Workers vs. Ovajera) G.R. L-59743, 1982), are meant to be and should be mandatory. Necessarily, a strike must comply with the purpose and means test which means that both the purpose and the means to carry out the strike must be legal. The purpose must be based solely on bargaining deadlock (economic) and/or unfair labor practice (political). The means to carry out the strike should also be legal where there should be no illegal acts committed in the course of the strike.

58/What are the acts which are ULP by Labor Organizations?

58/1. To restrain or coerce employees in the exercise of their right to self-organization. 2. To attempt to or cause an employer to discriminate against an employee to whom membership in the labor organization was denied or to terminate 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. 3. To refuse to bargain collectively with the employer, if it is the representative of the employee. 4. To attempt to or cause the employer to pay money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed. This includes fees for union negotiations. 5. To ask or accept negotiations or attorney's fees from employers as part of the settlement in any dispute. 6. Violation of CBA. (Labor Code, Art. 260)

58/What is a yellow-dog contract?

58/A yellow-dog contract is an agreement between an employer and an employee in which the employee agrees, as a condition of employment, not to be a member of a labor union. (Labor Code, Art. 260)

58/Is a profit-sharing scheme implemented only for managers and supervisors a form of discrimination against rank and file employees?

58/No. The Court in Wise and Co vs. Wise and Co Union (G.R. No. 87672, 1989), ruled that there could be no discrimination committed by petitioner as the situation of the union employees is different and distinct from the non-union employees. Discrimination per se is not unlawful.

58/What is the successor-employer doctrine?

58/The rule is that unless expressly assumed, labor contracts such as employment contracts and collecting bargaining agreements are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between the parties. A labor contract merely creates an action in personam and does not create any real right that should be respected by their parties. This conclusion draws its force from the right of an employer to select his employees and to decide when to engage them as protected under our constitution, and the same can only be restricted by law through the exercise of the police power. As a general rule, there is no law requiring a bona fide purchaser of assets of an ongoing concern to absorb in its employ to employees of the latter. However, although the purchaser of the assets or enterprise is not legally bound to absorb the employees of the seller of such assets or enterprise, the parties are liable to the employees if the transaction between the parties is colored with bad faith. (Sundowner Development Corp. v. NLRC, 180 SCRA 14, 1989).

59/What are the different kinds of strike?

59/1. LEGAL STRIKE - one called for a valid purpose and conducted through means allowed by law. 2. ILLEGAL STRIKE - one staged for a purpose not recognized by law, or if for a valid purpose, conducted through means not sanctioned by law 3. ECONOMIC STRIKE - one staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant (Consolidated Labor Association of the Phil. vs. Marsman and Company, 11 SCRA 589) 4. ULP STRIKE - one called to protest against the employer's acts of unfair labor practice enumerated in the Labor Code 5. SLOWDOWN STRIKE - one staged without the workers quitting their work but merely slackening or by reducing their normal work output 6. WILD-CAT STRIKE - one declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent. 7. SIT DOWN STRIKE - one where the workers stop working but do not leave their place

59/What comprises a strike?

59/A strike comprises not only concerted work stoppages but also slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage plant equipment. The fact that the conventional term "strike" isn't used is of no moment. (Solidbank v. Gamier, G.R. No. 159460, 2010)

59/What is a good faith strike?

59/As a general rule, where a union believes that an employer committed ULP and the surrounding circumstances warranted such belief in good faith, the resulting strike may be considered legal although, subsequently, such allegations of unfair labor practices were found to be groundless. (Hotel Enterprises v. Samahan Manggagawa ng Hyatt, G.R. No. 165756, 2009).

59/What are the effects of a strike on an employer-employee relationship?

59/Strikers remain as employees while they are on strike; the effects of employment are merely suspended during that time. Mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. Even if declared illegal, the strike need not have been attended with such a drastic consequence as termination of employment of relationship. (Labor Code, Art. 279)

59/What is the difference between a sympathy strike and a general strike?

59/Workers go on a sympathy strike to show their sympathy for certain workers who are on strike. In a general strike, workers in the country or in a region, province, or city, or municipality go on a strike to publicly protest a certain policy or action taken by the government. (Azucena, Volume II)

59/Is the act of not showing up for work considered a form of strike?

59/Yes. The Court held in Toyota vs. NLRC (G.R. 158786, 2007) that the strikes were illegal because they were in reality temporary stoppages of work perpetrated through the concerted action of the employees who deliberately failed to report for work. Apart from the fact that they defied the assumption order of the Secretary of DOLE, it was apparent that the ultimate goal of the union members was to coerce Toyota to acknowledge them as the sole bargaining agent of the company.

6/ What are the differences between illegal recruitment and estafa?

6/ ILLEGAL RECRUITMENT -It is malum prohibitum. -The criminal intent of the accused is not necessary. -Penalized under the Labor Code. -Limited in scope ESTAFA -It is mala in se. -The criminal intent is imperative. -Penalized under the Revised Penal Code. -Wider in scope and covers deceits whether related or not to recruitment activities.

6/ What kind of liability does the foreign employer and recruitment agency share?

6/ They are solidarily liable with each other. This is imposed by law against recruitment agencies and foreign employers as a means to assure the aggrieved worker of immediate and sufficient payment of what is due him. This is in line with the policy of the State to protect and alleviate the plight of the working class. (P.I. Manpower Placements, Inc. v. NLRC, 276 SCRA 451, 1997).

6/ What are the elements of illegal recruitment by a syndicate?

6/ To constitute illegal recruitment by a syndicate, the following must concur: 1. The offender undertakes either any activity within the meaning of "recruitment and placement" defined under Art. 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code; 2. He has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and 3. The illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating with one another. (People v. Gallo, G.R. No. 187730, 2010)

6/ What are the elements of illegal recruitment in large scale?

6/ To constitute illegal recruitment in large scale, three elements must concur: 1. The offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; 2. The offender undertakes any of the activities within the meaning of "recruitment and placement" under Article 13(b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the same Code (now Section 6 of Republic Act No. 8042); and, 3. The offender committed the same against three (3) or more persons, individually or as a group (People v. Cagalingan, G.R. No. 198664, November 23, 2016).

6/ Can a person guilty of illegal recruitment be similarly guilty or estafa?

6/ Yes. It is well-established in jurisprudence that a person may be charged and convicted for both illegal recruitment and estafa. Illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is mala in se and such intent is imperative. (People v. Chua, 680 SCRA 575, 2012).

62/ Is there a need to issue a return-to-work order after the issuance of an assumption of jurisdiction order?

62/ No. The moment the Secretary of Labor assumes jurisdiction over a labor dispute in an industry indispensable to national interest, such assumption shall have the effect of automatically enjoining the intended or impending strike. It was not even necessary for the Secretary of Labor to issue another order directing them to return to work. (Telefunken Semiconductors Union v. CA, G.R. 143013-14, 2000).

60/What are the differences between a legal and illegal strike?

60/ ILLEGAL STRIKE Contrary to a specific prohibition of law, such as strike by government employees; or Violates a specific requirement of law (failure to comply with the procedural requirements set by law); or Is declared for an unlawful purpose, such as inducing the employer to commit a ULP against non-union employees; or Employs unlawful means in the pursuit of its objectives, such as widespread terrorism of non-strikers; or Declared in violation of an existing injunction; or Contrary to an existing agreement, such as no-strike clause or conclusive arbitration clause LEGAL STRIKE Not contrary to a specific prohibition of law (government employees do not have the right to strike) Observes the procedural requirements, which are mandatory, and non- observance makes strikes illegal i. notice of strike ii. cooling-off period iii. strike vote iv. strike vote report Conducted for a lawful purpose. The only two strikeable grounds that may validly support a strike are: i. collective bargaining deadlock; and/or ii. employer's unfair labor practice Pursued within the bounds of law or means employed within the bounds of law. Does not commit any of the following activities i. act of violence, coercion, or intimidation ii. obstruct the free ingress to or egress from the employer's premises for lawful purposes iii. obstruct public thoroughfares Strike is not committed in violation of an injunction Under Article 264 (o) of the Labor Code, the holding of a strike or lock-out after assumption of jurisdiction of the President or the Secretary of Labor or after certification or arbitration Not contrary to a valid agreement between the parties

60/Can the issue of wage distortion be raised in a notice of strike?

60/ No, a strike is illegal if based on alleged salary distortion. It is specifically provided in the law that "any issue involving wage distortion shall not be a ground for a strike/lockout." Wage distortions should be sought by voluntary negotiation or arbitration. (IBM v. NLRC, G.R. No. 91980, 1991)

60/ What is picketing?

60/This involves the presence of striking workers or their union brothers who pace back and forth before the place of business of an employer considered "unfair to organized labor." The purpose of such act is to peacefully persuade other workers not to work in the establishment, and customers not to do business there. (Azucena)

60/Is picketing legal if non-employees of the strike-bound employer participate in the activity?

60/Yes. Peaceful picketing may be legally carried out even in the absence of employer-employee relationship for it is guaranteed under the freedom of speech and of the press under the Constitution. (PAFLU v. Coribel, G.R. No. L-25878, 1969)

61/What are the provisions on illegal lockout? i.e., when is it committed?

61/1. Art. 263 (b): The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter- union and intra-union disputes. 2. Art. 263 (c): In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. 3. Art. 263 (e): During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. 4. Art. 263 (f): A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. D.O. No. 40-03 as amended by D.O. No. 40A-03 A strike or lock-out may be declared in cases of bargaining deadlocks and ULP. Violations of CBAs, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered ULP and shall not be strikeable. No strike or lock-out may be declared on grounds involving inter-union and intra-union disputes or without first having filed a notice of strike or lock- out or without the necessary strike or lock-out vote having been obtained and reported to the Board. Neither will a strike, or lock-out be declared after assumption of jurisdiction by the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lock-out. (Rule XXII, Sec. 5)

61/What are the requisites for a lawful lockout?

61/A lock-out is proper only when the following requisites are met: 1. Notice of intention to declare a lock-out has been filed with the DOLE; 2. At least thirty days has elapsed since the filing of the notice before lock-out is declared; 3. An impasse has resulted in the negotiations; and 4. The lock-out is not discriminatory (San Pablo Oil Factory v. CIR, G.R. 147749, 2006).

61/What is the Innocent Bystander Rule?

61/Innocent bystander: They are third parties whose enjoyment of their premises is adversely affected by activities of the union in picketing. They are neutral to the labor dispute between the union and the employer. The right of the union to picket may be regulated: - if such would result to create an impression that an "innocent by-stander" is included in the labor dispute or - if the picketing activity constitute to an invasion of the rights of the "innocent by- stander"(PAFLU v. Coribel, G.R. No. L-25878, 1969)

61/Can picketing activity be curtailed when illegal acts are committed by the picketing workers in the course of the activity?

61/The picketing must be peaceful as the law provides that "no person engaged in picketing shall commit any act of violence, coercion or intimidation, or obstruct the free ingress to or egress from the employer's premises for lawful purposes, or obstruct public thoroughfares. (Labor Code, Art. 264 (e)) While the law provides that police force should be kept out of the picket lines, a proviso provides that nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order.

61/If the picketing is peaceful and moving, can it still be declared as an illegal strike?

61/Yes. Despite the validity of the purpose of a strike and compliance with the procedural requirements, a strike may still be held illegal where the means employed are illegal. Protected picketing does not extend to blocking ingress to and egress from the company premises. That the picket was moving, was peaceful and was not attended by actual violence may not free it from taints of illegality if the picket effectively blocked entry to and exit from the company premises. (Phinco Industries, Inc. vs. PILA, 628 SCRA 119, 2010)

62/ When and under what circumstances can the Secretary of Labor issue an assumption of jurisdiction order?

62/ The Secretary of Labor may issue an assumption of jurisdiction order when in his opinion there exists a labor dispute causing or likely to cause a strike or lock-out in an industry indispensable to the national interest. (Labor Code, Art. 278) (DEL CASTILLO) The impending strike in Philtranco, a public transportation company whose business is imbued with public interest, required that the Secretary of Labor assume jurisdiction n over the case, which in fact, he did. (Philtranco Service Enterprises v. Philtranco Workers, G.R. No. 180692, February 16, 2014)

62/ What are the legal effects of an assumption of jurisdiction order?

62/ The legal effects are the following: Automatically enjoins the intended or impending strike or lock-out; and If one has already taken place, all striking or locked-out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lock-out. (Labor Code, Art. 278)

62/ Requirements of a Valid Assumption Order or Certification Order

62/1. There exist a labor dispute causing or likely to cause a strike or lockout; and 2. That the labor dispute is in an industry indispensable to the national interest. (Labor Code, Art. 278[g])

62/ What is the Nature of an Assumption Order?

62/The power to issue assumption or certification orders is an extraordinary authority granted to the President and to his alter ego, the DOLE Secretary, the exercise of which is strictly limited to national interest cases. (Tabangao Shell Refinery Employees Association v. Pilipinas Shell Petroleum Corp., G.R. No. 170007, 2014)

63/ Are retrenched employees excluded from the coverage of a return-to-work order?

63/ No, in YSS Employees Union vs. YSS Laboratories (G.R. 155125, 2009), the primary reason why the strike was conducted in the first place was to protest the implementation of the retrenchment program. The determination of who among the strikers could be admitted back to work cannot be made to depend upon the discretion of employer, Accordingly, when the Secretary of Labor directed YSS Laboratories to accept all the striking workers back to work, the Secretary did not exceed his jurisdiction, or gravely abuse the same, said the Supreme Court.

63/ What happens upon defiance of the assumption or certification order?

63/ Non-compliance shall be considered as an illegal act committed in the course of strike or lockout. (Union of Filipro Employees v. Nestle Phils., Inc., G.R. Nos. 88710-13, 1990). Thus, they may be subject to: 1. Immediate disciplinary action 2. Dismissal / loss of employment status 3. Criminal prosecution (San Juan De Dios Educational Foundation Employees Union- Alliance of Filipino Workers v. San Juan De Dios Educational Foundation, Inc., G.R. No. 143341, May 28, 2004)

63/ What are 'national interest' industries?

63/ The NLRC vests the President of the Philippines and the Secretary of Labor almost unlimited discretion to determine what industries may be considered as indispensable to the national interest. Industries Indispensable to the National Interest 1. Hospital Sector 2. Electric Power Industry 3. Water Supply Services, to exclude small water supply such as bottling and refilling stations 4. Air traffic control 5. Such other industries as maybe recommended by the National Tripartite Peace Council (TIPC) (DO No.40-H-13) Examples of "National Interest" disputes: 1. Nestle Philippines, Inc. is engaged in an undertaking affected with public interest being one of the largest manufacturers of food products. (Union of Filipro v. NLRC,G.R. No. 91025, 1990 ) 2. Academic institutions (Philippine School of Business Administration v. Noriel, G.R. No. 80648, 1988) 3. A company supplying the sulfate requirements of MWSS 4. Banking is expressly classified by the General Banking Law as an industry indispensable to the national interest. 5. However, the Court ruled that the production of telephone directories is not an industry affecting the national interest. (GTE Directories Corp v. Sanchez, G.R. No. 76219, 1991)

63/ What are the objectives of the Secretary of Labor in certifying a labor dispute to the NLRC?

63/ While the assumption by the Secretary of Labor of jurisdiction over the labor dispute has, for its main purpose, the resumption of the employer's operations so essential to national interest or to the right of the patients to life and health, the referral by the Secretary of Labor of the labor dispute to the NLRC for compulsory arbitration was in recognition of the intense need to settle the nagging dispute between the parties so that the national interest could be enhanced by lasting and enduring industrial peace in the employer's establishment. (Marcopper Mining Corporation v. Brillantes, G.R. 119381, 1996)

64/Is the termination of a higher management officer "Assistant VP" "Executive VP" or simply "VP" a Labor Case or Intra-Corporate Controversy cognizable by the SEC?

64/ DEL CASTILLO) It is a LABOR CASE. The better policy to be followed in determining jurisdiction over a case should be to consider concurrent factors such as the status or relationship of the parties or the nature of the question that is subject of their controversy. In the absence of any of those factors, the SEC will NOT have jurisdiction. For the courts to try such cases, two elements must concur: (a) the status or relationship of the parties, and (b) the nature of the question that is the subject of their controversy. In this case, the fact alone that petitioner is a stockholder and director of respondent corporation automatically classifies this case as an intra-corporate controversy. Not all conflicts between the stockholders and the corporation are classified as intra-corporate. There are other factors to consider in determining whether the dispute involves corporate matters as to consider them as intra- corporate controversies. (Real v. Sangu Philippines, G.R. No. 168757, January 19, 2011)

64/ May non-lawyers appear before the NLRC or Labor Arbiter and may they charge attorney's fees for such appearance provided it is charged against union funds and in an amount freely agreed upon by the parties?

64/ Yes, non-lawyers may appear before the Commission or any Labor Arbiter only: 1. if they represent themselves; or 2. if they represent their own legitimate labor organization or members thereof; or 3. if they are duly accredited by a Legal Aid Office which is DOJ or IBP recognized. Non-lawyers may not charge attorney's fees though charged against the union funds and agreed upon. Attorney's fees presuppose the existence of an attorney-client relationship. (PAFLU vs. BISCOM, G.R. L-18782, 1963).

64/Where do you go from a decision, award, or order of the Labor Arbiter?

64/ You appeal to the NLRC within 10 CALENDAR days from the receipt of the decision on the grounds of grave abuse of discretion, fraud and coercion, on pure questions of law and/or serious, erroneous factual findings causing grave or irreparable damage. (NLRC RULE, Rule VI, Sec. 1-2).

64/ What is the difference between the jurisdiction of the Labor Arbiter and the regular RTC in relation to damage claims filed by employees?

64/The Labor Arbiter has jurisdiction over claims for actual, moral, exemplary, and other forms of damages arising from employer-employee relations., Art. 217 (a) (4) Labor Code) Hence, a claim for liquidated damages for breach of contractual obligation which is intrinsically a civil dispute (Singapore Airlines Ltd. Vs. Pano, G.R. No. L-47739, 1983) and a cause of action based on quasi-delict or tort which has no reasonable connection with any of the claims enumerated in Art. 217 of the Labor Code are beyond the jurisdiction of the Labor Arbiter and within the jurisdiction of the regular courts. (Ocheda v. CAG.R. 85517, 1992)

64/What is the jurisdiction over the civil and criminal aspects of a case involving an unfair labor practice for which a charge is pending with the Department of Labor and Employment?

64/• Jurisdiction over the civil aspect - Labor Arbiters (Labor Code, Art. 258) • No criminal prosecution can be instituted without final judgment that an unfair labor practice has in fact been committed. The administrative findings are neither binding in the criminal case nor available as evidence of guilt, but merely prove procedural compliance. (Labor Code, Art. 258) • In a labor dispute involving national interest, the Secretary of Labor under Art. 278 (g) may take cognizance of the civil or administrative aspect of the labor case, depriving the Labor Arbiter from taking cognizance of the unfair labor practice case. • Jurisdiction over the criminal aspect - Regular Courts (Labor Code, Art. 258)

65/ May the NLRC of the courts take jurisdictional cognizance over compromise agreements/settlements involving Labor matters?

65/ Art. 227 provides that any compromise agreement involving labor matters entered into by the parties with the assistance of the DOLE shall be final and binding upon the parties, except in cases of non-compliance or, if based on fraud, when misrepresentation or coercion is present.

65/ May a decision of the Labor Arbiter which has become final and executory be novated through a compromise agreement of the parties?

65/ Compromise agreement is encouraged and authorized by law. Hence, they may be made even when the judgment is final and executor. The validity of the agreement is determined by the compliance with the requisites and principles of contract, and not by the time it was entered into as provided by the law on contracts, a valid compromise must have the following elements: 1. The consent of the parties to the compromise; 2. An objects certain that is the subject matter of the compromise; 3. The cause of the obligation that is established.

65/What are the requirements to appeal the LA's decision?

65/Appeal from the decision of the Labor Arbiter is brought by ordinary appeal to the NLRC within 10 calendar days from receipt of the decision. (Vir-jen Shipping and Marine Services v. NLRC, G.R. No. 58011-12, 1982) The 10-day period is reckoned from receipt by counsel of the final decision, order or award. This applies to both appeals from the LA to NLRC and NLRC to CA. (Sy. v. Fairland Knitcraft, G.R. No. 182915, 2011) This 10-day period is both mandatory and jurisdictional in nature. (Charter Chemical & Coating Corp v. Tan, G.R. No. 163891, 2009) NOTE: There is no appeal from the decision of the NLRC. The only way to elevate the case to the CA is by way of special civil action of certiorari under Rule 65, Rules of Court. From the ruling of the Court of the Appeals, it may be elevated to the SC by petition for review on certiorari under Rule 45 of the Rules of Civil Procedure. (St. Martin Funeral Home v. NLRC, et al., G.R. No. 130866, 1998)

65/Does the SOLE have the power to give arbitral awards in the exercise of his authority to assume jurisdiction over labor dispute?

65/Yes. The arbitral award given by the Secretary of Labor can be considered as an approximation of a collective bargaining agreement. While the award cannot per se be categorized as an agreement between the parties (because of the Secretary's interference), it still has the force and effect of a valid contract obligation between the parties, as is stated in (Cirtek Employees vs. Cirtek Electronics, G.R. 190515, 2011).

66/ What are the requisites for perfection of appeal?

66/ 1. Filed within the reglementary period 2. Memorandum of Appeal under oath 3. Appeal fee 4. Cash, property, or surety bond, if judgment involves monetary award 5. Proof of service to the adverse party

66/What are the grounds for appeal?

66/ 1. Prima facie evidence of abuse of discretion on the part of LA. 2. The decision, order or award was secured through fraud or coercion including graft and corruption 3. Pure questions of law 4. Raised serious errors in the findings of facts which could cause grave or irreparable damage or injury to the appellant Additional Requirement: in case of judgment involving a monetary award, employer (appellant) may perfect the appeal of the LA's decision only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the NLRC in the amount equivalent to the monetary award in the judgment appealed from.

66/ What is the effect of self-executing order of reinstatement on back wages?

66/ The law intends the award of backwages and similar benefits to accumulate past the date of the Labor Arbiter's decision until the dismissed employee is actually reinstated. (Siemens Philippines v. Domingo, G.R. No. 150488, 2008) However, if reinstatement is no longer possible, backwages shall be computed from the time of illegal dismissal until the date the decision becomes final. (Javellana v. Belen, G.R. No. 181913 and 182158, 2010) Note: If there was implementation of reinstatement pending appeal, either through actual or payroll reinstatement, and the employee received his/her salary for the period of such reinstatement, the said amount received shall be deducted from the total amount of backwages due the employee, assuming the final decision of the case awarded backwages to the employee. An employee who was dismissed on the ground of AWOL due to incarceration, is entitled to reinstatement and under the principle of "no work, no pay", his full backwages shall only commence from the time he is refused work after acquittal. (Standard Electric v. Standard Electric employees Union, G.R. No. 166111, 2005)

66/ How is the Employer's Liability Determined After the Finality of the Case?

66/After finality of the case, the records will have to be remanded to the Labor Arbiter to determine the actual liability of the employer to each and every employee. Both parties will have a chance to submit further proof and argument in support of their respective proposed computations. For the guidance of the labor arbiter, as well as the parties, this court lays down the following yardsticks in the computation of the final amount of liability: 1. Employees who have been re - employed without loss of seniority rights shall be paid backwages but only up to actual reinstatement; 2. Employees who have been re - employed as new hires shall be restored their seniority and other preferential rights. However, their backwages shall be computed only to date of actual re- hiring; 3. Employees who shall have reached compulsory age of retirement shall receive backwages up to their retirement only. The same is true as regards the heirs of those who have passed away; 4. Employees who have not been reemployed plus those who have executed quitclaims and received separation pay of financial assistance shall be reinstated without loss of seniority rights and paid full backwages, after deduction of whatever amounts already received; and 5. Employees who had obtained substantially equivalent or even more lucrative employment elsewhere in 1998 or thereafter are deemed to have severed their employment with their previous employer, and shall be entitled to full backwages from the date of their retrenchment only up to the date they found gainful employment elsewhere. (FASAP v. PAL, G.R. No. 172013, 2009)

67/ What is the procedure for the perfection of appeal?

67/1. File Memorandum of Appeal within 10 calendar days, counted from receipt of decision 2. Other party can file an Answer within 10 calendar days from receipt of Memorandum of Appeal 3. NLRC decides within 20 calendar years 4. NLRC decision becomes final and executory 10 days after it is rendered. (subject to MR) Appeal By Employer Involving Monetary Award A bond equivalent to monetary award should be posted within the 10-day period for filing of appeal. If no bond is filed, appeal is not perfected. (see Catubay v. NLRC, G.R. No. 119289, 2000) Remedy in case of failure to post bond, remedy is to file a motion to dismiss.

67/What are the Justifications for Non-Posting of Bond?

67/1. No monetary award (Aba v. NLRC, G.R. No. 122627, 1999); 2. Monetary award is not specified in the decision (Orozco v. CA, G.R. No. 155207, 2005); 3. In case of conflict between body and fallo of the decision, the latter should prevail (Mendoza Jr. v. San Miguel Foods, G.R. No. 158684, 2005)

67/What are the McBurnie v. Ganzon Guidelines in Reduction of Appeal Bond?

67/1. The filing of a motion to reduce appeal bond shall be entertained by the NLRC subject to the following conditions: o There is meritorious ground; and o A bond in a reasonable amount is posted; 2. For purposes of compliance with the second condition - bond in reasonable amount - a motion shall be accompanied by the posting of a provisional cash or surety bond equivalent to (10%) of the monetary award subject of the appeal, exclusive of damages and attorney's fees; 3. Compliance with the foregoing conditions shall suffice to suspend the running of the 10-day reglementary period to perfect an appeal from the labor arbiter's decision to the NLRC; 4. The NLRC retains its authority and duty to resolve the motion to reduce bond and determine the final amount of bond that shall be posted by the appellant, still in accordance with the standards of meritorious grounds and reasonable amount; and 5. In the event that the NLRC denies the motion to reduce bond, or requires a bond that exceeds the amount of the provisional bond, the appellant shall be given a fresh period of 10 days from notice of the NLRC order within which to perfect the appeal by posting the required appeal bond. Note: A substantial monetary award, even if it runs into millions, does not necessarily give the employer- appellant a 'meritorious case' and does not automatically warrant a reduction of the appeal bond. (Calabash Garments v. NLRC, G.R. No. 110827, 1996) (DEL CASTILLO) The right to appeal is neither a natural right nor a component of due process, and it must be exercised in the manner prescribed by law. Financial difficulties may not be invoked as a valid ground to reduce bond. At any rate, it was not substantiated by proof. (Turks Shawarma v. Pajaron, G.R. No. 207156, January 16, 2017)

67/Does the Motion to Reduce Bond Toll the Running of the Period to Perfect an Appeal?

67/General Rule: Motion to reduce bond does not toll the running of the period to perfect appeal. Exception: See below (McBurnie v. Ganzon, G.R. Nos. 178034 & 178117, 2013)

67/ If there is no monetary award, is an appeal bond required?

67/No. If LA's decision does not provide for a computation of the monetary award, no appeal bond is required to be filed.

68/What are examples of meritorious grounds?

68/1. Fundamental consideration of substantial justice; 2. Prevention of miscarriage of justice or of unjust enrichment; or 3. Special circumstances of the case combined with its legal merits and the amount and issue involved (Garcia v. KJ Commercial, G.R. No. 196830, 2012) NOTE: 10% Appeal Bond is Provisional The 10% requirement pertains to the reasonable amount which the NLRC would accept as the minimum of the bond that should accompany the motion to reduce bond in order to suspend the period to perfect an appeal under the NLRC rules. The 10% is based on the judgment award and should in no case be construed as the minimum amount of bond to be posted in order to perfect appeal. There is no room for a different interpretation when it was made clear that the percentage of bond set is provisional. (Sara Lee v. Macatlang, G.R. No. 180147, 2015) Enforcement Any law enforcement agency may be deputized by the DOLE Secretary or the NLRC. Issuance of writ of execution on a judgment within 5 years from date it becomes final and executory motu proprio or in motion of any interested party.

68/What are the rules on reinstatement pending appeal?

68/If reinstatement is ordered in an illegal dismissal case, it is immediately executory even pending appeal. This means that the perfection of an appeal shall stay the execution of the decision of the Labor Arbiter except execution of the reinstatement pending appeal. Self-executing with no need for a writ of execution - only applicable to order issued by Labor Arbiter. Writ of execution required when reinstatement is ordered by NLRC on appeal, or subsequently by the court of appeals or Supreme Court, as the case may be. Either admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or merely reinstated in the payroll (at the option of the employer, i.e. confidential employee, but the choice must be communicated to the employee by the employer) Posting of a bond shall not stay the execution of reinstatement. The unjustified refusal of the employer to reinstate an illegally dismissed employee entitles the employee to payment of his salaries. Reinstatement Pending Appeal (Art. 229) vs. Order of Reinstatement (Art. 294) ART. 229 Order of reinstatement by the LA is immediately executory pending appeal. It is similar to a return- to-work order. Issued by the Labor Arbiter Generally, no need for the issuance of a writ of execution. ART.294 The order of reinstatement presupposes the award thereof is pursuant to a final and executory judgment, and not while the case for illegal dismissal is pending on appeal. Issued by the NLRC, CA, or SC Requires the issuance of a writ of execution. NOTE: Jurisprudence On Writ of Execution If despite several writs of execution, the employer still refuses to reinstate the employee, the remedy is not the grant of additional backwages to serve as damages but to file a motion to cite the employer for contempt. (Christian Literature Crusade v. NLRC, G.R. No. 79106, 1989) LA upheld the validity of the dismissal; NLRC reversed. CA held that dismissal was valid. Held: The employer is liable to pay for the salary of the employee previously ordered reinstated by the NLRC although later on, the dismissal of the employee was held not to be illegal. (Roquero v. PAL, G.R. No. 152329, 2003) An order for reinstatement entitles an employee to receive his accrued backwages from the moment the reinstatement order was issued up to the date when the same was reversed by a higher court without fear of refunding what he had received. (Garcia v. Philippine Airlines, Inc., G.R. No.164856, 2009)

70/ May the amount of an appeal bond be reduced despite it being fixed by law?

70/ While it has been settled that the posting of a cash or surety bond is indispensable to the perfection of an appeal in cases involving monetary awards from the decision of the LA, the Rules of Procedure of the NLRC nonetheless allows the reduction of the bond upon a showing of (a) the existence of a meritorious ground for reduction, and (b) the posting of a bond in a reasonable amount in relation to the monetary award. (Philippine Touristers, Inc. and/or Alejandro R. Yague, Jr. v. Mas Transit Workers Union-Anglo-Kmu and its members, G.R. No. 201237, 2014).

69/ Who has the jurisdiction to hear cases over company-owned property, the Labor Arbiter or the NLRC?

69/ Both, although the Labor Arbiter has primary jurisdiction. In Yupangco Cotton vs. CA (G.R. 126322, 16 January 16, 2002), the Court held a third party whose property has been levied upon by a sheriff to enforce a decision against a judgment debtor is afforded with several alternative remedies to protect its interests. The third party may avail himself of alternative remedies cumulatively, and one will not preclude the third party from availing himself of the other alternative remedies in the event he failed in the remedy first availed of. Thus, a third party may avail himself of the following alternative remedies: (a) File a third party claim with the sheriff of the Labor Arbiter, and (b) If the third party claim is denied, the third party may appeal the denial to the NLRC. Even if a third party claim was denied, a third party may still file a proper action with a competent court to recover ownership of the property illegally seized by the sheriff.

69/What is the requisite before filing a petition for review under Rule 65?

69/A Motion for Reconsideration must have been filed before the DOLE Secretary, NLRC, or BLR Director, as the case may be. This is mandatory and jurisdictional. A motion for reconsideration should be filed even though it is not required or even prohibited by the concerned government office. This was the rule enunciated in the 2014 case of Philtranco Service Enterprises, Inc. v. PWU-AGLO (G.R. No. 180962, 2014). Thus, while a government office may prohibit altogether the filing of a motion for reconsideration with respect to its decisions or orders, the fact remains that certiorari inherently requires the filing of a motion for reconsideration which is the tangible representation of the opportunity given to the office to correct itself. Simply put, regardless of the proscription against the filing of a motion for reconsideration, the same may be filed on the assumption that rectification of the decision or order must be obtained and before a petition for certiorari may be instituted.

69/What are the only instances when a petition for certiorari under Rule 65 be brought to the Court of Appeals?

69/If the labor case was decided by: 1. the DOLE Secretary, in his appellate jurisdiction; 2. the Commission (NLRC); and 3. the Director of the Bureau of Labor Relations (BLR) in cases decided by him in his appellate jurisdiction (as distinguished from those he decides in his original jurisdiction which are appealable to the DOLE Secretary). The remedy of ordinary appeal to the Court of Appeals is not available from their decisions, orders or awards. The reason for this rule is that their decisions, orders or awards are final and executory and therefore unappealable. (Chan Robles, Labor Code)

69/Are decisions of a VA appealable to the CA?

69/Yes, via a petition for review under Rule 43. A petition for certiorari is the wrong remedy, which may result in outright dismissal.

7/ What are the entities authorized to engage in recruitment and placement?

7/ 1. Public employment offices 2. Philippine Overseas Employment Administration (POEA) 3. Private recruitment entities 4. Private employment agencies 5. Shipping or manning agents or representatives 6. Such other persons as may be authorized by the DOLE Secretary 7. Construction contractors

7/ What is the general rule as regards ban on direct hiring?

7/ GR: No employer may hire a Filipino worker for overseas employment except through the boards and entities authorized by the Secretary of Labor. EXC: 1. Members of the diplomatic corps; 2. International organizations; and 3. Such other employers as may be allowed by the Secretary of Labor is exempted from this provision. (Labor Code, Art. 18) 4. Name hires - those individuals who are able to secure contracts for overseas employment on their own efforts and representation without the assistance or participation of any agency. Their hiring, nonetheless, has to be processed through the POEA. (Part III, Rule III of the POEA Rules Governing Employment as amended in 2002)

7/ What is the effect of the pre-termination of the contract of a migrant worker?

7/ In case of termination of overseas employment without just, valid, or authorized cause as defined by law or contract, the workers shall be entitled to full reimbursement of his placement fee with interest at 12% per annum plus his salaries for the unexpired portion of his employment contract. (Serrano v. Gallant, G.R. No. 167614, 2009) As to other money claims (e.g. salary for the unexpired portion) under RA 8042 based on a final judgment after July 1, 2013 and there was no stipulation as to the applicable interest rate in the contract, it shall be subject to the 6% interest per annum per BSP Circular 799. (Sameer v. Cabiles, G.R. No. 170139, 2014)

7/ How does the theory of imputed knowledge apply to foreign employers and the recruitment agency?

7/ The theory of imputed knowledge ascribes the knowledge of the agent or recruitment agency to the principal and not the other way around. The knowledge of the principal-foreign employer cannot, therefore, be imputed to its agent or recruitment agency. (Sunace International Management Services, Inc. v. National Labor Relations Commission, 480 SCRA 146, 2006).

7/ Can a foreign employer and an OFW enter into a contract that allows termination without cause provided there is prior notice?

7/ Yes, stipulations providing that either party may terminate a contract even without cause are legitimate if exercised in good faith. Thus, while either party has the right to terminate the contract at will, it cannot not act purposely to injure the other. The monetary award provided in Section 10 of R.A. 8042 applies only to an illegally dismissed overseas contract worker or a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract. It finds no application to cases in which the OFW was not illegally dismissed. (GBMLT Manpower Services vs Malinao, G.R. No. 189262, 2015)

70/What is the jurisdiction of the BLR?

70/BUREAU OF LABOR RELATIONS (BLR) ORIGINAL JURISDICTION 1. Union registration of federations, national unions, or workers' associations operating in more than one region 2. Change of name or merger or consolidation of federation or national 1 union 3. Direct or indirect contempt for acts committed against BLR Director 4. Petition for certification election by an employer who was requested to bargain collectively 5. Petitions for conduct of election of union officers of federations, national or industry unions and trade union centers 6. Requests or complaint for accounts examination of federations or national unions and trade union centers pursuant to Art. 289 7. Inter/intra-union and other labor relations disputes involving federations, national or industry unions, trade union centers and their chartered locals, affiliates or member organixations, except those arising from implementation and interpretation of CBA 8. Complaint or petition alleging mishandling, misappropriation or non- accounting of funds of federations or national unions and trade union centers, in violation of Art. 250 (treated as an intra-union dispute) Petitions and applications for cancellation of registration of federations, national or industry unions and trade union centers APPELLATE JURISDICTION A. All disputes from the Labor Relations Division B. Med-Artbitration Unit (Med-Arbiter) 1. Accounts examination of independent unions, chartered locals, and worker's associations pursuant to Art. 289 2. Other inter-intra-union and labor relations disputes of independent unions, chartered locals, and workers' association not under RD's jurisdiction and not arising from implementation and interpretation of CBA 3. Complaint or petition alleging mishandling, misappropriation or non- accounting of funds of independent unions, chartered locals, or workers' associations, in violation of Art. 250 C. All decisions of the Regional Director 1. Conciliation vs. Mediation NATIONAL CONCILIATION AND MEDIATION BOARD (CONCILIATORS- MEDIATORS) ORIGINAL JURISDICTION 1. Notice of strike or lockout (treated as a preventive mediation case) 2. Conduct, upon request or on its own initiative, of the secret balloting for strike or lockout vote 3. Conduct, upon request or on its own initiative, referendum by secret balloting on improved offer of the employer or reduced offer of union 4. Conciliation-mediation services to labor disputes other than strikes or lockouts, upon request or on its own initiative 5. Disciplinary action against voluntary arbitrator who failed to render a decision, resolution, order or award within prescribed period CONCURRENT JURISDICTION With the voluntary arbitrator 1. Intervention upon request or on its own initiatives, in disputes arising from differences in CBA proposals With the Labor Arbiter 1. Wage distortion disputes in unorganized establishments that were not voluntarily settled by the parties and not resolved by NCMB after 10 calendar days

70/May the Labor Arbiter, NLRC or Court of Appeals validly award attorney's fees in favor of a complainant even if not claimed or proven in the proceedings?

70/Yes. The provision on attorney's fees in Article 111 envisions a situation where there is a judicial or administrative proceeding for recovery of wages. Upon the termination of the proceedings, the law allows a deduction for attorney's fees of 10% from the total amount due to the winning party. (Vengco v. Trajano, G.R. 74453, 1989). Hence, even if there is no claim and proof, attorney's fees not more than 10% of the amount entitled may be awarded. The court has also a liberty of decreasing it if the questions involved in the litigation are neither novel nor difficult. (D.M. Consunji v. NLRC, G.R. No. 71459, 1986).

70/Is the simultaneous filing of motion to reduce bond and posting of the reduced amount substantial compliance with Article 223 of the Labor Code?

70/Yes. While the bond requirement on appeals involving a monetary award has been relaxed in certain cases, this can only be done where there was substantial compliance with the rules or where the appellants, at the very least, exhibited willingness to pay by posting a partial bond. (Magdala Multipurpose v. KMLMS, G.R. 191138- 39, 2011).

72/ What labor cases are covered by preventive mediation?

72/ Labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB (NCMB Manual of Procedures, section 1(24).

72/ Who may request for preventive mediation?

72/ Only a certified or duly recognized bargaining agent may file a notice or request for preventive mediation. In the case of (Insular Hotel Employees Union- NFL v. Waterfront Insular Hotel Davor, G.R. No. 174040-41), the Court ruled that the NCMB has no jurisdiction to entertain any notice filed by the federation in behalf of individual union members of its local.

72/Requisites for Regional Director to Decide Small Money Claims

72/1. Claim is presented by an employee, or a person employed in domestic or household service, or employer; 2. The claim arises from an EER; 3. The claimant does not seek reinstatement; and 4. The aggregate money claim of each claimant does not exceed PhP 5,000 Notes: In the absence of any of the above requisites, the Labor Arbiter will have jurisdiction over the case, pursuant to ART. 224. The claimant need not be an employee at the time the complaint has been filed; it is enough that the claim arises from employment Appeal from the Regional Director's Decision The Complainant may appeal to the NLRC within 10 calendar days from a receipt of a copy of the Regional Director's decision / resolution.

72/When is it appropriate to file a money claim before the DOLE Regional Director?

72/The DOLE Regional Director has original jurisdiction over small money claims cases arising from labor standards violations in the amount not exceeding P5,000.00 and not accompanied with a claim for reinstatement under Article 129 of the Labor Code. Article 129 contemplates the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or domestic worker or kasambahay, arising from employer- employee relations provided the claim does not exceed P5,000.00.

72/What are the requisites for the valid exercise of jurisdiction by the DOLE Regional Director?

72/The following requisites must all concur, to wit: 1. The claim is presented by an employee or domestic worker or kasambahay; 2. The claimant, no longer being employed, does not seek reinstatement; and 3. The aggregate money claim of the employee or domestic worker or kasambahay does not exceed P5,000.00. (Labor Code, Art. 129)

73/May an inferior court issue a TRO against the enforcement orders of the Secretary in line with his regulatory and visitorial powers?

73/"No inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article." (Labor Code, Art. 128)

73/Does the SOLE generally have jurisdiction over appeals?

73/No. In The Heritage Hotel vs. National Union of Workers (G.R. 178296, 2011), "jurisdiction remained with the BLR despite the BLR Director's inhibition. When the DOLE Secretary resolved the appeal, she merely stepped into the shoes of the BLR Director and performed a function that the latter could not himself perform. She did so pursuant to her power of supervision and control over the BLR."

73/Under what conditions may the Secretary of Labor or his duly authorized representative inquire into the financial activities of legitimate labor organizations?

73/The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least 20% of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non- compliance with the law and to prosecute any violations of the law and the union constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the 60-day freedom period nor within the 30 days immediately preceding the date of election of union officials. (Labor Code, Art. 289)

73/ What are the visitorial and enforcement powers of the DOLE Secretary?

73/The Secretary of Labor and Employment or his duly authorized representatives have the power to: 1. Access to employer's records and premises at any time of the day or night whenever work is being undertaken therein, and 2. the right to copy therefrom, 3. to question any employee and investigate matters which may be (1) necessary to determine violations or (2) which may aid in the enforcement of labor laws or rules. 4. to issue compliance orders to give effect to the labor standards 5. issue writs of execution, except in cases where the employer (1) contests the findings and (2) raises issues supported by documentary proofs which were not considered in the course of inspection. 6. (limited to the Secretary) order stoppage of work due to non-compliance with the law or IRR that poses grave and imminent danger to the health and safety of workers in the workplace. (a hearing within 24 hours shall determine if the suspension should be lifted or not.) In case the violation is attributable to the employer, he shall pay the employees' salaries during suspension. 7. (limited to the Secretary) by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers. (Labor Code, Art. 128)

74/ May the Secretary of Labor and Employment issue search and arrest warrants when it initiates actions against alleged illegal recruiters?

74/No, the Secretary of DOLE, not being a judge, cannot issue search or arrest warrants. Under Art. III, sec. 2 of the 1987 Constitution, it is only the judge, and no other, who may issue warrants of arrest and search. (Salazar vs. Achacoso, G.R. 81510, 1990) NOTE: The Secretary of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (Labor Code, Art. 292[b])

74/ What power does the SOLE have with regard to arbitral awards?

74/The SOLE has the power to give arbitral awards in the exercise of his authority to assume jurisdiction over labor dispute. The arbitral award given by the Secretary of Labor can be considered as an approximation of a collective bargaining agreement. While the award cannot per se be categorized as an agreement between the parties (because of the Secretary's interference), it still has the force and effect of a valid contract obligation between the parties, as is stated in (Cirtek Employees vs. Cirtek Electronics, G.R. No. 190515, 2011). Decisions of the DOLE Secretary are appealable to the NLRC within 5 calendar days.

74/Under what conditions may the Secretary of Labor or his duly authorized representative inquire into the financial activities of legitimate labor organizations?

74/The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least 20% of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non- compliance with the law and to prosecute any violations of the law and the union constitution and by-laws: Provided, That such inquiry or examination shall not be conducted during the 60-day freedom period nor within the 30 days immediately preceding the date of election of union officials. (Labor Code, Art. 289) NOTE: Secretary of Labor generally has NO jurisdiction over appeals In The Heritage Hotel vs. National Union of Workers (G.R. 178296, 2011), the Supreme Court ruled that jurisdiction remained with the BLR despite the BLR Director's inhibition. "When the DOLE Secretary resolved the appeal, she merely stepped into the shoes of the BLR Director and performed a function that the latter could not himself perform."

74/ Does the SOLE have the power to give arbitral awards in the exercise of his authority to assume jurisdiction over labor dispute?

74/Yes. The arbitral award given by the Secretary of Labor can be considered as an approximation of a collective bargaining agreement. While the award cannot per se be categorized as an agreement between the parties (because of the Secretary's interference), it still has the force and effect of a valid contract obligation between the parties, as is stated in (Cirtek Employees vs. Cirtek Electronics, G.R. 190515, 2011).

75/ Remedy where no EER exists

75/Where no employer-employee relation exists between the parties and no issue is involved which may be resolved by reference to the Labor Code, other labor statutes, or any collective bargaining agreement, it is the RTC that has jurisdiction. The RTC has jurisdiction over the claim of an independent contractor to adjust the contractor's fee. (Urbanes v. Secretary of Labor, G.R. No. 122791, 2003)

8/ What labor standards covered by the provisions of the Labor Code on Book Three Title I: Working Conditions and Rest Periods? (RROR-NWACSS)

8/ 1. Regular working hours 2. Regular working days 3. Overtime work 4. Regular meal period 5. Night shift differential pay 6. Weekly rest periods 7. Additional compensation on scheduled rest day, Sunday, or special holiday work 8. Compensation for holiday work 9. Service incentive leave/service incentive leave pay 10. Share in the collected service charges

8/ Who has the power to suspend or cancel a license or authority?

8/ Power to suspend or cancel any license or authority to recruit employees for overseas employment is concurrently vested with the POEA and the Secretary of Labor. (Art. 35, LABOR CODE)

8/ What is included in the visitorial powers of the Secretary of Labor?

8/ The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violations of any provisions of this Title. (Labor Code, Art. 37)

8/What is included in the regulatory and rule- making powers of the Secretary of Labor under Art. 36 of the Labor Code?

8/ The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title. (Labor Code, Art. 36)

8/ Who are excluded from the provisions on Working Conditions and Rest Periods? (Go- Ma-FiFa-DoPeR)

8/ There are seven (7) classifications of employees excluded from the provisions: 1. Governmental employees 2. Managerial employees 3. Field personnel 4. Members of the family of the employer who are dependent on him for support 5. Domestic helpers 6. Persons in the personal service of another 7. Workers who are paid by result (Labor Code, Art. 82)

9/ What are the principles in determining hours worked?

9/ 1. All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. 2. An employee need not leave the premises of the workplace in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his workplace. 3. If the work performed was necessary or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent or such work shall be considered as hours worked, if the work was with the knowledge of his employer or immediate supervisor. 4. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either if: a. The imminence of the resumption of work requires the employee's presence at the place of work; or b. The interval is too brief to be utilized effectively and gainfully in the employee's own interest. (IRR of Labor Code, Sec. 4, Book III, Rule I)

9/ Who are field personnel?

9/ Field personnel are non-agricultural employees who regularly perform their duties away from the principal place of business or branch office and whose actual hours of work in the field cannot be determined with reasonable certainty. (Autobus Transport v. Bautista, G.R. No. 156367, 2005)

9/ For purposes of the exclusion, what is meant by the term "managerial employees"?

9/ Managerial employees are those who meet all the following conditions: (a) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof. (b) They customarily and regularly direct the work of two or more employees therein. (c) They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight. (IRR Labor Code, Book III, Rule I, Sec. 1; Penaranda v. Baganga Plywood Corp., G.R. 159577, 2006) This definition is only for purposes of the exemption and is different from the definition under the Labor Code.

9/ What are the normal hours of work?

9/ Normal work hours shall not exceed 8 hours a day. Anything beyond 8 hours is considered overtime work. (Labor Code, Art. 83)

9/ What are the duties and responsibilities of managerial staff?

9/ These help determine whether an employee is part of the managerial staff, excluded from the coverage of the provisions on hours of work (PODATS-20) 1. The primary duty consists of the performance of work directly related to management policies of the employer; 2. Managerial staff customarily and regularly exercise discretion and independent judgment; 3. They regularly and directly assist a proprietor/managerial employee, whose primary duty consists of the management of the establishment, or execute under general supervision work along specialized or technical lines requiring special training, experience or knowledge, or execute under general supervision special assignments and tasks; 4. Managerial staff do not devote more than 20% of their work hours in a week to activities which are not directly and closely related to management of the establishment. (Penaranda v. Baganga Plywood Corp., G.R. 159577, 2006).