labor law - pre week atty. duka

8/16/2019 Labor Law - Pre Week Atty. Duka

http://slidepdf.com/reader/full/labor-law-pre-week-atty-duka 1/22

2015 Pre – Week NotesLabor Laws and Social Legislations

Atty. Cecilio D. Dka! "d.D.

Labor Standards Laws Labor standards refers to the minimum requirements prescribed by existing laws, rules and

regulations relating to wages, hours of work, cost of living allowance and other monetary and welfarebenefits, including occupational, safety and health standards. (Section 7, Rule 1, Rules on the Dispositionof Labor Standards Cases in the Regional Office, dated September 16, 197 cited in !atong !uha" #old $ines, %nc&, 's& Dela Serna, et& al&, #&R& o& 696), *ugust 6, 1999+ They are covered by Books I to I of the Labor !ode.

Social LegislationsSocial legislations are laws, rules, and regulations that promote welfare of all sectors of society.

Social Legislation includes laws that provide particular kinds of protection or benefits to the society, infurtherance of social "ustice. #ot all social legislations are labor laws. Labor las directly affectemployment they directly govern effects of employment. $ll labor laws are social legislations. But not allsocial legislations are labor laws.

License and at#ority $ license is a document issued by the %epartment of Labor and &mployment '%(L&) authori*ing

a person or entity to operate a private employment agency, while an at#ority is a document issued bythe %(L& authori*ing a person or association to engage in recruitment and placement activities as aprivate recruitment entity.

$llegal %ecrit&ent Illegal recruitment is committed when two elements concur, namely+ ') the offender has no valid

license or authority required by law to enable one to lawfully engage in recruitment and placement of workers+ and '-) he undertakes either any activity within the meaning of recruitment and placement/defined under $rticle 0'b), or any of the prohibited practices enumerated under $rticle 01 of the Labor !ode. (-eople 's& #utierre., /00 SCR* )0+

"cono&ic sabotageIllegal recruitment when committed by a syndicate or in large scale shall be considered as

offense involving economic sabotage.Illegal recruitment is deemed committed in large scale if committed against three or more persons

individually or as a group. In this case, five complainants testified against appellant2s acts of illegalrecruitment, thereby rendering his acts tantamount to economic sabotage. 3nder 4ection 5 'b) of 6$ #o.781-, the penalty of life imprisonment and a fine of not less than 9:88,888.88 nor more than9,888.888.88 shall be imposed if illegal recruitment constitutes economic sabotage. (-eople 's&#asacao, #& R& o& 16//, o'ember 11, 022+

Syndicated $llegal %ecrit&entIllegal recruitment is deemed committed by a syndicate when carried out by a group of three '0)

or more persons conspiring or confederating with one another. 'Section (! %e)blic Act No. *0+2,

Large Scale $llegal %ecrit&ent It is deemed committed in large scale if committed against three '0) or more persons individually

or as a group. (Section 6, Republic *ct o& 2/0+Illegal recruitment in large scale is committed when a person ;'a) undertakes any recruitment

activity defined under $rticle 0 'b) or any prohibited practice enumerated under $rticle 01 of the Labor !ode+ 'b) does not have a license or authority to lawfully engage in the recruitment and placement of workers+ and 'c) commits the same against three or more persons, individually or as a group. (-eople of the -hilippines 's& Calon.o, #&R& os& 11123, September 07, 1996+

1



Penalties -or $llegal %ecrit&entThe penalties for illegal recruitment today are the ones provided by Section 6, Republic *ct o&

12200 hich amended Republic *ct o& 2/0 which provided for higher penalties on illegal recruitment

than what are provided by $rticle 0< of the Labor !ode. Thus=

Si&)le illegal recrit&ent > imprisonment of - years and day to -8 years and a fine of million to- million pesos.

$llegal recrit&ent dee&ed as econo&ic sabotage > life imprisonment and a fine of - million to :

?illion pesos.

The maximum penalty shall be imposed if the person illegally recruited is less than eighteen '7)

years of age or committed by a non>licensee or non>holder of authority

Conseences o- Con/iction -or $llegal %ecrit&ent

. automatic revocation of the license or authority (*rt& )94e5++-. forfeiture of the cash and surety bonds (*rt& )94e5++

0. conviction for the crime of estafa, if found guilty therefor. (-eople of the -hilippines 's&Calon.o, #&R& os& 11123, September 07, 1996+

Prescri)tion o- action -or illegal recrit&ent Illegal recruitment cases under this $ct shall prescribe in five ':) years= 9rovided, however, That

illegal recruitment cases involving economic sabotage as defined herein shall prescribe in twenty '-8)years. (Section 10, Republic *ct 2/0+

A))rentice $n apprentice is a worker who is undergoing training for an approved apprenticeable occupation

covered by a written apprenticeship agreement with an individual employer.

A))renticeable cc)ation $n apprenticeable occupation means any trade, form of employment or occupation which

requires more than three '0) months of practical training on the "ob supplemented by related theoreticalinstruction.

%eire&ents -or an a))rentice. ?ust at least be : years old as 4ection - @ $ of 6epublic $ct #o. <-0 prohibits the

employment of minor below : years old, except those employed in entertainment business where anecessary permit is issued by the %epartment of Labor and &mployment.

-. ?ust have the vocational aptitude and capacity for appropriate tests+0. ?ust possess the ability to comprehend or follow oral and written instructions.

eatres o- A))rentices#i) raining . The apprentice must be paid not less than 5:A of the prescribed minimum salary-. There must be approval from %(L& 4ecretary for an apprenticeship program 'without such

one shall be deemed a regular employee)0. The employer is not compelled to continue one2s employment attycddka1.(ne>half '-) of the value of labor training expenses incurred for developing the productivity

and efficiency of apprentices of the training cost is deducted from the employer2s income tax but it shallnot exceed ten percent '8A) of direct labor wage.

:. If the apprenticeship training is part of the school curriculum, a requirement for graduation, or board examination, the employer may not pay any wage.

2



Working sc#olarsThere is no employer>employee relationship between students on one hand, and schools,

colleges or universities on the other, where there is written agreement between them under which theformer agree to work for the latter in exchange for the privilege to study free of charge, provided thestudents are given real opportunities, including such facilities as may be reasonable and necessary tofinish their chosen courses under such agreement. (Section 1/, Rule , %mplementing Rules and Regulations of !oo %%%, 8he Labor Code+

Learners Learners refers to persons hired as trainees in semi>skilled and other industrial occupations which

are non>apprenticeable. Learnership programs must be approved by the Technical &ducation and 4kills%evelopment $uthority based on the provisions of 6epublic $ct #o. 55<C.

eatres o- Learners#i). The duration of the learnership period, which shall not exceed three '0) months+-. If the learnership of 0 months is completed, the employer can be compelled to continue with

the services of the learner as a regular employee0. There is a commitment from the employer to employ the learners if they so desire, as regular

employees upon completion of the learnership

1. If the learner is dismissed from the service without "ust and valid cause and without dueprocess after - months of service, he will be deemed as regular employee

:. The wages or salary rates of the learners which shall begin at not less than seventy> fivepercent '5:A) of the applicable minimum wage+ and

Disabled )ersons Disabled persons are those suffering from restriction or different abilities, as result of a mental,

physical or sensory impairment, to perform an activity in the manner or within the range considerednormal for a human being.

S)er/isory "&)loyees are dee&ed &anagerial e&)loyees in /iew o- Article *2 (fficers or members of a managerial staff if they perform the following duties and responsibilities=') The primary duty consists of the performance of work directly related to management policies

of their employer+ '-) !ustomarily and regularly exercise discretion and independent "udgment+ and '0) 'i)6egularly and directly assist a proprietor or a managerial employee whose primary duty consists of themanagement of the establishment in which he is employed or subdivision thereof+ or 'ii) execute under general supervision work along speciali*ed or technical lines requiring special training, experience, or knowledge+ or 'iii) execute, under general supervision, special assignments and tasks+ and '1) Dho donot devote more than -8 percent of their hours worked in a work week to activities which are not directlyand closely related to the performance of the work described in paragraphs '), '-) and '0) above. (Rule %,Section 0(c+, Labor Code %mplementing Rules and Regulation, !oo %%%+

3s Dri/ers and Condctors are not ield Personnel The driver is under constant supervision while in the performance of this work. Ee cannot be

considered field personnel. (*uto !us 8ransport S"stems, %nc& 's& !autista, #&R& o& 16)67, $a" 16,022+

4ors workedThe following shall be considered as compensable hours worked='a) $ll time during which an employee is required to be on duty or to be at the employerFs

premises or to be at a prescribed work place+ and'b) $ll time during which an employee is suffered or permitted to work. (Section ), Rule %, Labor

Code %mplementing Rules and Regulation, !oo %%%+

3



Working w#ile slee)ing 4leeping while on duty is compensable if the nature of the employee2s work allows sleeping

without interrupting or pre"udicing work or when there is an agreement between the employee and hisemployer to that effect. Gor example, a truck helper may sleep after performing his task and while histruck is traveling on its way to its assignment. But of course, the same may not be done by the driver.

Working w#ile on call is compensable if the employee is required to remain on call in theemployer2s premises or so close thereto that he cannot use the time effectively and gainfully for his ownpurpose.

%les on &eal )eriods6est periods or coffee breaks running from five ':) to twenty '-8) minutes shall be considered as

compensable working time. Thus, the eight>hour work period does not include the meal break. #owherein the law may it be inferred that employees must take their meals within the company premises.&mployees are not prohibited from going out of the premises as long as they return to their posts on time.9rivate respondentFs act, therefore, of going home to take his dinner does not constitute abandonment.(-hilippine *ir Lines, %nc& 's& ational Labor Relations Commission, #&R& o& 1)02, ebruar" 0, 1999+

Nig#t s#i-t di--erential #ight shift differential is the amount which every employee is entitled to receive which is

equivalent to ten percent '8A) of his regular wage for every hour he has worked between 8 pm to Cam. (Section 0 Rule %%, %mplementing Rules and Regulation, !oo %%%+

Those who are assigned to work on the so @ called graveyard shift are entitled to night shiftdifferential pay.

/erti&e )ay /erti&e )ay means the additional compensation for work performed beyond 7 hours.Pre&i& )ay means the additional compensation required by law for work performed within 7

hours on non>working days, such as rest days and special days.

"ntitle&ent to o/erti&e )ay &st be )ro/en#otwithstanding the foregoing discussion, petitioner failed to show his entitlement to overtime and

rest day pay due, to the lack of sufficient evidence as to the number of days and hours when he rendered

overtime and rest day work. &ntitlement to overtime pay must first be established by proof that saidovertime work was actually performed, before an employee may avail of said benefit. To support hisallegations, petitioner submitted in evidence minutes of meetings wherein he was assigned to work onweekends and holidays at !ityland2s housing pro"ects. 4uffice it to say that said minutes do not prove thatpetitioner actually worked on said dates. It is a basic rule in evidence that each party must prove hisaffirmative allegations. (Lagatic 's& ational Labor Relations Commission, #&R& o& 10122/, :anuar" 0,199+

/erti&e )ay o- sea&enThe correct criterion in determining whether or not sailors are entitled to overtime pay is not,

therefore, whether they were on board and can not leave ship beyond the regular eight working hours aday, but whether they actually rendered service in excess of said number of hours. '&mphasis supplied)(Legahi 's& ational Labor Relations Commission, #&R& o& 1000/2, o'ember 1, 1999+ attycdduka

o be entitled to two '2, days sccessi/e #olidays. (ne must be present on the day immediately preceding the first holiday+ or -. (ne is on leave with pay

6ont#ly )aid e&)loyees are not entitled to #oliday )ay ?onthly paid employees are not entitled to the holiday pay if their total annal inco&e is

di/ided by 7(5 days resulting in a wage which is beyond the minimum wage per day because they areconsidered paid every day of the year including holidays, rest days and other non>working days. The 0C:days are as follows=

4



%eisites -or t#e "n8oy&ent o- Ser/ice $ncenti/e Lea/e. $ total of : days leave in one year with pay-. The employee must have been in the service for at least year whether broken or continuous0. If unused the : days are paid their cash equivalent at the end of the year 1. It covers all employees except the general exceptions and establishments already giving sick

leavesvacation leaves with pay for at least : days

Service chargeIf the establishments like hotel, motels, restaurants and the likes collect service charges andor

the customers give tips for their services the following rules must be observed=. 4ervices>charges or compensation for service rendered-. Tips are for the recognition for satisfactory or efficient service0. The service charges must be pooled1. The amount collected is divided between the company ':A) and employees '7:A):. It shall be given twice a month with intervals of not more than : daysC. If discontinued, removed, or stopped, the average, share of the employees of their service

charge or tips shall be integrated with their basic wage

acilities are dedctible -ro& wages

acilities are items of expense necessary for the laborerFs and his familyFs existence andsubsistence so that by express provision of law they form part of the wage and when furnished by theemployer are deductible therefrom, since if they are not so furnished, the laborer would spend and pay for them "ust the same. They shall include all articles or services for the benefit of the employee or his familybut shall not include tools of the trade or articles or services, primarily for the benefit of the employer or necessary to the conduct of the employer2s business. They form part of the wage and deductible from thewage. ($abe.a 's& ational Labor Relations Commission, #&R& o& 1126, *pril 1, 1997 (071 SCR*672+

S))le&ents are not dedctible -ro& wages4upplements constitute extra remuneration or special privileges or benefits given to or received

by the laborers over and above their ordinary earnings or wages. They are independent of the wage andnot wage deductible. ?ore significantly, the food and lodging, or the electricity and water consumed by

the petitioner were not facilities but supplements. $ benefit or privilege granted to an employee for theconvenience of the employer is not a facility. ' $abe.a 's& ational Labor Relations Commission, #&R&o& 1126, *pril 1, 1997+

A co&)any )ractice -a/oring e&)loyees cannot be wit##eld nilaterally by t#e e&)loyer $ company practice favorable to the employees had indeed been established and the payments

made pursuant thereto, ripened into benefits en"oyed by them. $nd any benefit and supplement beingen"oyed by the employees cannot be reduced, diminished, discontinued or eliminated by the employer, byvirtue of 4ec. 8 of the 6ules and 6egulations Implementing 9.%. #o. 7:, and $rt. 88 of the Labor !odeof the 9hilippines which prohibit the diminution or elimination by the employer of the employees2 existingbenefits. (Se'illa 8rading Co& 's& Semana, #&R& o& 10/6, *pril 0, 022/+

i&e o- )ay&ent o- wages

'a) Dages shall be paid not less than once every two '-) weeks or twice a month at intervals notexceeding sixteen 'C) days, unless payment cannot be made with such regularity due to force ma"eureor circumstances beyond the employerFs control in which case the employer shall pay the wagesimmediately after such force ma"eure or circumstances have ceased. 'b) In case of payment of wages byresults involving work which cannot be finished in two '-) weeks, payment shall be made at intervals notexceeding sixteen days in proportion to the amount of work completed. Ginal settlement shall be madeimmediately upon completion of the work. (Section ), Rule ;%%%, %mplementing Rules and Regulations of !oo %%% of the Labor Code+

5



9ob contracting 4pecifically, there is ;"ob contracting; where ') the contractor carries on an independent business

and undertakes the contract work on his own account under his own responsibility according to his ownmanner and method, free from the control and direction of his employer or principal in all mattersconnected with the performance of the work except as to the results thereof+ and '-) the contractor hassubstantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of his business. (!aguio, et& al& 's& ational Labor RelationsCommission, #&R& o& 7922/32, October /, 1991+

"le&ents o- labor – only contracting 3nder the Labor !ode, two '-) elements must exist for a finding of labor>only contracting= 'a) the

person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and 'b) the workers recruited and placed bysuch persons are performing activities directly related to the principal business of such employer.(ilipinas S"nthetic iber Corporation (%LS<+ 's& ational Labor Relations Commission, #&R& o&11))/7, :une 1/, 1996+

College Pro-essors are not inde)endent contractorsThis !ourt takes "udicial notice that a university controls the work of the members of its faculty+

that a university prescribes the courses or sub"ects that professors teach, and when and where to teach+that the professorsF work is characteri*ed by regularity and continuity for a fixed duration+ that professorsare compensated for their services by wages and salaries, rather than by profits+ that the professorsandor instructors cannot substitute others to do their work without the consent of the university+ and thatthe professors can be laid off if their work is found not satisfactory. $ll these indicate that the universityhas control over their work+ and professors are, therefore, employees and not independent contractors.There are authorities in support of this view. (=*8% >ni'ersit" 's& ?on& :ose !autista, #&R& o& L30107, December 07, 1966+

Wage DistortionThe term @age distortion@, under the 6ules Implementing 6epublic $ct C5-5, is defined, thus=Dage %istortion means a situation where an increase in prescribed wage rates results in the

elimination or severe contradiction of intentional quantitative differences in wage or salary rates between

and among employee groups in an establishment as to effectively obliterate the distinctions embodied insuch wage structure based on skills, length of service, or other logical bases of differentiation.($etropolitan !an A 8rust Compan" =mplo"ees >nion3*L> B 8>C-, 's& ational Labor RelationsCommission, #&R& o& 1206)6, September 12, 199)+

Wage Distortion is a non : strikable isse The solution to the problem of wage distortions shall be sought by voluntary negotiation or

arbitration, and not by strikes, lockouts, or other concerted activities of the employees or management.; *n" issue in'ol'ing age distortion shall not be a ground for a strielocout . (%la *t !ulod g $anggagaa (%!$+ 's& ational Labor Relations Commission, #&R& o& 9192, :une 07, 1991+

A))eal -ro& t#e orders o- DL" %egional Director nder Art 12* The order of the 6egional %irector shall be final and executory unless appealed to the 4ecretary

of Labor and &mployment within ten '8) calendar days from receipt thereof. (Section 1, Rule %;, Ruleson the Disposition of Labor Standards Cases in the Regional Offices+

9risdiction o- t#e DL" %egional Director nder Art. 12;3nder $rticle -<, the 6egional %irector or any of the duly authori*ed hearing officers of %(L&

has "urisdiction over claims for recovery of wages, simple money claims and other benefits, provided thatthe claim is filed by an employee or person employed in domestic or household service or househelper and the following must concur=

. the claim must arise from employer>employee relationship+-. the claimant is no longer employed and does not seek reinstatement+

6



0. the aggregate money claim of each employee does not exceed 9:,888.88.In the absence of any of the three '0) requisites, the Labor $rbiters have exclusive original

"urisdiction over all claims arising from employer>employee relations, other than claims for employeeFscompensation, social security, medicare and maternity benefits. (!roenshire $emorial ?ospital, %nc&, 's&$inister of Labor and =mplo"ment, et& al&, #&R& o& 7/601, ebruar" 7, 1992+

9risdiction o- DL" %egional Director i- t#e a&ont e<ceeds P5000 But even if the amount of the claim exceeds 9:,888.88, the claim is not on that account

necessary removed from the 6egional %irectorFs competence. In respect thereof, he may still exercise thevisitorial and enforcement powers vested in him by $rticle -7 of the Labor !ode, as amended, supra+that is to say, he may still direct his labor regulations officers or industrial safety engineers to inspect theemployerFs premises and examine his records. (!roenshire $emorial ?ospital, %nc&, 's& $inister of Labor and =mplo"ment, et& al&, #&R& o& 7/601, ebruar" 7, 1992+

9risdiction o- DL" %egional Director i- t#e e&)loyer contests t#e orderThe ad"udicatory power provided by $rticle -< to the %(L& 6egional %irector may not be

exercised by him where the employer contests the labor regulation officersF findings and raises issueswhich cannot be resolved without considering evidentiary matters not verifiable in the normal course of inspection. In such an event, the case will have to be referred to the corresponding Labor $rbiter for ad"udication, since it falls within the latterFs exclusive original "urisdiction. (!roenshire $emorial ?ospital,

%nc&, 's& $inister of Labor and =mplo"ment, et& al&, #&R& o& 7/601, ebruar" 7, 1992+

Period to -ile t#e clai&s $ll money claims arising from employer>employee relations accruing during the effectivity of this

!ode shall be filed within three '0) years from the time the cause of action accrued+ otherwise they shallbe forever barred. (*rticle 091, Labor Code+

The Anti – Sexual Harassment Law4exual harassment abounds in all sick societies. It is reprehensible enough but more so when

inflicted by those with moral ascendancy over their victims. De rule that it is a valid cause for separationfrom service. (;illarama 's& ational Labor Relations Commission, #&R& o& 126)/1, September 0, 199/4-uno5+

6ere casal bss on t#e c#eek is not a se<al condct or -a/or De have reviewed carefully the records of this case and found no convincing evidence to sustain

complainant2s charges. Dhat we perceive to have been committed by respondent "udge are casualgestures of friendship and camaraderie, nothing more, nothing less. In kissing complainant, we find noindication that respondent was motivated by malice or lewd design. &vidently, she misunderstood hisactuations and construed them as work>related sexual harassment under 6.$. 5755. (*tt"& Susan $&

*uino 's& ?on& =rnesto D& *costa, -residing :udge, Court of 8aE *ppeals, *& $& o& C8*32131, *pril 0,0220+

6aternity Lea/e nder %e)blic Act No. *2*2 'SSS Law, $ female member who #as )aid at least t#ree '7, &ont#ly contribtions in the twelve>month

period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternitybenefit equivalent to one hundred percent '88A) of her average daily salary credit for si<ty '(0, days or

se/enty:eig#t '=*, days in case o- caesarean deli/ery.

Paternity 3ene-it '%.A. *1*=,This benefit shall apply to the first four deliveries or miscarriage of the employee2s lawful wife with

whom he is cohabiting. Gor this purpose, cohabiting refers to the obligation of the husband and wife to livetogether. Dhere the spouses are not physically living together because of the work station or occupation,the male employee is still entitled to the paternity leave benefit.

The leave shall be for seven '5) days, with full pay, consisting of basic salary and mandatoryallowances fixed by the 6egional Dage Board, if any, provided that his pay shall not be less than themandated minimum wage.

7



$vailment of the paternity leave may be after the delivery, without pre"udice to an employer2spolicy of allowing the employee to avail of the benefit before or during the delivery, provided that the totalnumber of days shall not be more than seven '5) days for each covered delivery. (?andboo on ForersG Statutor" $onetar" !enefits, p&)+

A )olicy )ro#ibiting an e&)loyee -ro& #a/ing a relations#i) wit# an e&)loyee o- a co&)etitor co&)any is a /alid e<ercise o- &anage&ent )rerogati/e

Hlaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies andother confidential programs and information from competitors, especially so that it and $stra are rivalcompanies in the highly competitive pharmaceutical industry.

The prohibition against personal or marital relationships with employees of competitor companiesupon Hlaxo2s employees is reasonable under the circumstances because relationships of that naturemight compromise the interests of the company. In laying down the assailed company policy, Hlaxo onlyaims to protect its interests against the possibility that a competitor company will gain access to itssecrets and procedures. (Duncan *ssociation of Detailman3-8#FO 's& #laEo Fellcome -hilippines,%nc&, #&R& o& 16099/, September 17, 022/+

%e)blic Act ;=10 – 6agna Carta o- Wo&en&xpulsion and non>readmission of women faculty, due to pregnancy outside of marriage shall be

outlawed.

#o school shall turn out or refuse admission to a female student, solely on the account of her having contracted pregnancy outside of marriage during her term in school. 4ection 0 'c)J

$ woman employee having rendered continuous aggregate employment service of at least six 'C)months for the last twelve '-) months shall be entitled to a special leave benefit of two '-) months withfull pay based on her gross monthly compensation following surgery caused by gynecological disorders.(Section 1+

Republic Act No. 100! – "romotion o# $reast#ee%ingIt is hereby mandated that all health and non>health facilities, establishments or institutions shall

establish lactation stations. The lactation stations shall be adequately provided with the necessaryequipment and facilities. The lactation station shall not be located in the toilet.

"&)loy&ent o- C#ildren

!hildren below fifteen ':) years of age shall not be employed except when a child works directlyunder the sole responsibility of hisher parents or legal guardian and where only members of hisher family are employed provided that hisher employment neither endangers hisher life, safety, health, andmorals, nor impairs hisher normal development, provided further that the parent or legal guardian shallprovide the said child with the prescribed primary andor secondary education. Gor purposes of this

$rticle, the term ;child; shall apply to all persons under eighteen '7) years of age. (Section 0, Republic *ct o& 90)1+

4ors o- Work o- a Working C#ild ') $ child below fifteen ':) years of age may be allowed to work for not more than twenty '-8)

hours a week provided that the work shall not be more than four '1) hours at any given day+ '-) $ childfifteen ':) years of age but below eighteen '7) shall not be allowed to work for more than eight '7) hoursa day, and in no case beyond forty '18) hours a week+ '0) #o child below fifteen ':) years of age shall be

allowed to work between eight oFclock in the evening and six oFclock in the morning of the following dayand no child fifteen ':) years of age but below eighteen '7) shall be allowed to work between tenoFclock in the evening and six oFclock in the morning of the following day. (Section ), Republic *ct o&90)1+

%e)blic Act No. 107(1 – 3atas >asa&ba#ayKanuary 7, -80. $ll articles or provisions of !hapter III of 9residential %ecree #o. 11-, as amended

and renumbered by 6epublic $ct #o. 8: are hereby expressly repealed. '4ec. 11). This law governsthe working conditions of all kasambahay.

8



The term ;househelper; as used herein is synonymous to the term ;domestic servant; and shallrefer to any person, whether male or female, who renders services in and about the employerFs home andwhich services are usually necessary or desirable for the maintenance and en"oyment thereof, andministers exclusively to the personal comfort and en"oyment of the employerFs family. (Section 1, Rule

%%%, %mplementing Rules and Regulation of !oo %%%, of the Labor Code+

%e)blic Act No. 10151 – t#e nig#t workers law It repealed $rticles 08 and 0 of the Labor !ode The new provisions in the Labor !ode covering

$rticles :1 to C are brought about by 6epublic $ct #o. 8: which was approved on Kune -, -8.This law also repealed $rticles 08 and 0 of the Labor !ode and abolished the provisions of law whichprohibits night work for women.

Labor %elations Law Labor relations las are the laws, rules and regulations which govern the relationship between

employees and their employers, promote the right of the employees to self>organi*ation and collectivebargaining, penali*e unfair labor practice, and provide modes for the settlement of labor disputes such asconciliation, mediation, grievance machinery, voluntary arbitration and compulsory arbitration. They arecovered by Books @ II of the Labor !ode.

Co&)osition o- t#e NL%C based on %. A. ;7+=

The #ational Labor 6elations !ommission shall be composed of eight '7) divisions with threemembers which shall be chosen only from among the nominees of the orers and emplo"ersorgani.ations, respectively.

The !hairman and the seven '5) members shall come from the public sector, with the latter to bechosen preferably from among the incumbent labor arbiters.

The !ommission may sit en banc or in eight '7) divisions, each composed of three '0) members.The !ommission shall sit en banc only for purposes of promulgating rules and regulations

governing the hearing and disposition of cases before any of its divisions and regional branches andformulating policies affecting its administration and operations.

(f the eight '7) divisions, the first, second, third, fourth, fifth and siEth di'isions shall handle casescoming from the ational Capital Region and other parts of Lu.on, the se'enth and eighth di'isions,cases from ;isa"as and $indanao, respectively

The divisions of the !ommission shall have exclusive appellate "urisdiction over cases within their

respective territorial "urisdiction.

A))ointees to NL%C not sb8ect to con-ir&ation o- t#e Co&&ission on A))oint&ents%eciding on what laws to pass is a legislative prerogative. %etermining their constitutionality is a

"udicial function. The !ourt respects the laudable intention of the legislature. 6egretfully, however, theconstitutional infirmity of 4ec. 0 of 6$ C5: amending $rt. -: of the Labor !ode, insofar as it requiresconfirmation of the !ommission on $ppointments over appointments of the !hairman and ?ember of the#ational Labor 6elations !ommission '#L6!) is, as we see it, beyond redemption if we are to render fealty to the mandate of the !onstitution in 4ec. C, $rt. II thereof. (Calderon 's& Carale, #&R& o&916)6, *pril 0), 1990+

9risdiction o- t#e Labor Arbiters. 3nfair labor practice cases+

-. Termination disputes+0. If accompanied with a claim for reinstatement, those cases that workers may file involvingwages, rates of pay, hours of work and other terms and conditions of employment+

1. !laims for actual, moral, exemplary and other forms of damages arising from the employer>employee relations+

:. !ases arising from any violation of $rticle -C1 of this !ode, including questions involving thelegality of strikes and lockouts+ and

C. &xcept claims for &mployees !ompensation, 4ocial 4ecurity, ?edicare and maternity benefits,all other claims arising from employer>employee relations, including those of persons in domestic or

9



household service, involving an amount exceeding five thousand pesos '9:,888.88) regardless of whether accompanied with a claim for reinstatement.

5. !ases arising from the interpretation or implementation of collective bargaining agreementsand those arising from the interpretation or enforcement of company personnel policies

9risdiction o/er /erseas ili)ino WorkersThe Labor $rbiter has original and exclusive "urisdiction over claims arising out of an employer>

employee relationship or by virtue of any law or contract involving ilipino orers for o'erseasemplo"ment including claims for actual, moral, exemplary and other forms of damages.

?eneThe venue is the 6egional $rbitration Branch where the complainant resides or where the

principal office of the respondent's) employer is situated, at the option of the complainant ' Sec& 14e5, 8he022 Re'ised Rules of -rocedure of the ational Labor Relations Commission+

6oney Clai&s o- W@s88A reimbursement of placement fees plus -A interest per annum plus the salaries for the

unexpired portion of the contract. (Sameer O'erseas -lacement *genc" 's& Cabiles, *ug& , 021/,Serrano 's& #allant $aritime Ser'ices, %nc&, $arch 0/, 0229+

9risdiction o- t#e 3L% . &'nter(union %isputes) or &representation %isputes/ which refer to cases involving petition

for certification election filed by a duly registered labor organi*ation which is seeking to be recogni*ed asthe sole and exclusive bargaining agent of the rank>and>file employees in the appropriate bargaining unitof a company, firm or establishment.

-. &'ntra(union %isputes) or &internal union %isputes) which refer to disputes or grievancesarising from any violation of or disagreement over any provision of the constitution and by>laws of theunion, including any violation of the rights and conditions of union membership provided for in the Labor !ode.

#e NC63The !onciliation, mediation and voluntary arbitration functions of the Bureau of Labor 6elations

'BL6) shall be absorbed by #!?B. It is an attached agency under the administrative supervision of the

4ecretary of Labor and &mployment. It is headed by an $dministrator and - %eputy $dministrators. The#!?B has "urisdiction over conciliation, mediation and voluntary arbitration cases.

Personality o- Labor nion not sb8ect to collateral attack De rule, however, that such legal personality may not be sub"ect to a collateral attack but only

through a separate action instituted particularly for the purpose of assailing it. This is categoricallyprescribed by 4ection :, 6ule of the Implementing 6ules of Book . (Laguna *utoparts $anufacturing Corporation 's& Office of the Secretar", Department of Labor and =mplo"ment #&R& o& 171/6& *pril 09,022+

(nce a labor union attains the status of a legitimate labor organi*ation, it continues as such untilits certificate of registration is cancelled or revoked in an independent action for cancellation. In addition,the legal personality of a labor organi*ation cannot be collaterally attacked. Thus, when the personality of the labor organi*ation is questioned in the same manner the veil of corporate fiction is pierced, the action

partakes the nature of a collateral attack. Eence, in the absence of any independent action for cancellation of registration against either $94(T&3 or $L3, and unless and until their registrations arecancelled, each continues to possess a separate legal personality. ( Coastal Subic !a" 8erminal %nc& 's&Department of Labor and =mplo"ment B Office of the Secretar", #&R& o& 17117, o'ember 02, 0226+

%e)blic Act No. 107;( ;$6T. --7. ?andatory !onciliation and &ndorsement of !ases. @'a) &xcept as provided in Title II>$, Book of this !ode, as amended, or as may be excepted by

the 4ecretary of Labor and &mployment, all issues arising from labor and employment shall be sub"ect to

10



mandatory conciliation>mediation. The labor arbiter or the appropriate %(L& agency or office that has "urisdiction over the dispute shall entertain only endorsed or referred cases by the duly authori*ed officer.

;'b) $ny or both parties involved in the dispute may pre>terminate the conciliation>mediationproceedings and request referral or endorsement to the appropriate %(L& agency or office which has

"urisdiction over the dispute, or if both parties so agree, refer the unresolved issues to voluntaryarbitration.;

Bronds -or cancellation o- nion registration'a) ?isrepresentation, false statement or fraud in connection with the adoption or ratification of

the constitution and by>laws or amendments thereto, the minutes of ratification, and the list of memberswho took part in the ratification+

'b) ?isrepresentation, false statements or fraud in connection with the election of officers,minutes of the election of officers, and the list of voters+

'c) oluntary dissolution by the members (Republic *ct o& 9/1, $a" 0, 0227+Republic *ct o& 9/1 which lapsed into law on ?ay -:, -885 has effectively reduced to "ust

three '0) the grounds for the cancellation of registration of a legitimate labor organi*ation. 3nder the oldprovisions of $rticle -0<, there were ten grounds for the cancellation of union registration.

6i<tre o- e&)loyees in one nion is not a grond -or cancellation o- its registration!learly then, for the purpose of de>certifying a union, it is not enough to establish that the rank>

and>file union includes ineligible employees in its membership. 9ursuant to $rticle -0< 'a) and 'c) of theLabor !ode, it must be shown that there was misrepresentation, false statement or fraud in connectionwith the adoption or ratification of the constitution and by>laws or amendments thereto, the minutes of ratification, or in connection with the election of officers, minutes of the election of officers, the list of voters, or failure to submit these documents together with the list of the newly elected>appointed officersand their postal addresses to the BL6. (*ir -hilippines Corporation 's& !ureau of Labor Relations, #&R&o& 1)9 :une 00, 0226+

%eisites -or t#e /alidity o- t#e s)ecial assess&ent) authori*ation by a written resolution of the ma"ority of all the members at the general

membership meeting called for the purpose+-) secretaryFs record of the minutes of the meeting+ and0) individual written authori*ation for check off duly signed by the employees concerned. '#abriel

's& Secretar" of Labor and =mplo"ment, #&R& o& 119/9 $arch 16, 0222+&

"&)loyees w#o do not #a/e t#e rig#t to sel-:organiationThe following are the groups of people whose right to self>organi*ation is restricted by the labor

laws= high ranking government employees, employees of international organi*ations en"oying immunityform suits, managerial employees, members of the $G9, 9#9, firemen, "ail guards, confidential employeesand employees of the cooperative who are members of that same cooperative.

Secrity Bards@ %ig#t to Sel- rganiationThe security guards and other personnel employed by the security service contractor shall have

the right to form, "oin or assist in the formation of a labor organi*ation of their own choosing for purposesof collective bargaining and to engage in concerted activities which are not contrary to law including theright to strike. (Section 12, Department Order 2& 1/ Series of 0221, December 1, 0221+

Bo/ern&ent e&)loyees do not #a/e t#e rig#t to strikeThe !ourt can concede hypothetically that the protest rally and gathering in question did not

involve some specific material demand. But then the absence of such economic>related demand, even if true, did not, under the premises, make such mass action less of a prohibited concerted activity. Gor, asarticulated earlier, any collective activity undertaken by government employees with the intent of effectingwork stoppage or service disruption in order to reali*e their demands or force concessions, economic or otherwise, is a prohibited concerted mass action and doubtless actionable administratively . xxx 4i5n theabsence of statute, public emplo"ees do not ha'e the right to engage in concerted or stoppages for

11



an" purpose (#o'ernment Ser'ice %nsurance S"stem 's& Hapisanan ng mga $anggagaa sa #S%S, #&R&o& 1721)0, December 6, 0226+

n-air labor )ractice3nfair labor practice refers to acts that violate the workers2 right to organi*e. The prohibited acts

are related to the workers2 right to self>organi*ation and to the observance of a !ollective Bargaining $greement. Dithout that element, the acts, no matter how unfair, are not unfair labor practices. (-hilcom=mplo"ees >nion 's& -hilippine #lobal Communications, #&R& o& 1//)1, :ul" 17, 0226+

Dis&issal de to nion secrity claseIt has been the "urisprudential rule for quite sometime that the employer is not considered guilty of

unfair labor practice if it merely complied in good faith with the request of the certified union for thedismissal of employees expelled from the union pursuant to the union security clause in the !B$ (Soriano'& *tien.a, #&R& o& 6619, $arch 16, 199, 171 SCR* 0/, 093092+& Eence, the company may not beordered to grant either backwages or financial assistance in the form of separation pay as a form of penalty. Thus, where reinstatement is ad"udged, the award of backwages and other benefits continuesbeyond the date of the Labor $rbiter2s decision ordering reinstatement and extends up to the time saidorder of reinstatement is actually carried out. (Ol'ido, et& al& 's& Court of *ppeals, #& R& os& 1/1166 B 67,October 1, 0227+ 9risdictional )reconditions in bargaining

')9ossession of the status of ma"ority representation by the employeesF representative inaccordance with any of the means of selection andor designation provided for by the Labor !ode+ '-)proof of ma"ority representation+ and '0) a demand to bargain under $rticle -:, paragraph 'a), of the #ewLabor !ode. (*ssociated Labor >nions (*L>+ 's& errer BCalleIa, #&R& o& L37700, $a" , 199+

3olwaris&In negotiation, Boulwarism is an offer or counter>offer that is not meant to be negotiated. This is a

take it or lea/e it strategy named after Le&el 3olware a former vice president of Heneral &lectric.

Contract 3ar %leDhen there is an existing !B$, neither the employer nor the union may terminate nor modif" the

!ollective Bargaining $greement during its lifetime. The parties are mandated by law to keep the statusquo and to continue with full force and effect the terms and conditions of the existing !B$. This is known

as the contract bar rule @ the existence of the !B$ 'a contract between the employer and the union) barsthe modification or termination of the !B$ except during the freedom period&

reedo& Period The freedom period refers to the sixty 'C8) days span prior to the expiration of the !B$. It is the

time when the parties may terminate or modify the terms and conditions of the !B$.

Ato&atic %enewal Clase $rticle -:0 provides that the !B$ shall remain effective and enforceable even after the expiration

of the period fixed by the parties as long as no new agreement is reached by them and no petition for certification election is filed.

Li-eti&e o- t#e C3A

The representation issue or the status of the union who entered into the !ollective Bargaining $greement has a lifetime of five ':) years from the time of its effectivity. Dhile the other provisions'economic) shall be effective for a period of three '0) years from its execution.

C3A e<tended to ten years : /alid De also do not agree that the agreement violates the five>year representation limit mandated by

$rticle -:0>$. 3nder said article, the representation limit for the exclusive bargaining agent applies onlywhen there is an extant !B$ in full force and effect. In the instant case, the parties agreed to suspend the!B$ and put in abeyance the limit on the representation period. In sum, we are of the view that the 9$L>9$L&$ agreement dated 4eptember -5, <<7, is a valid exercise of the freedom to contract. 3nder the

12



principle of inviolability of contracts guaranteed by the !onstitution, the contract must be upheld. (Ri'era,et& al& 's& =spiritu, #&R& o& 1)/7, :anuar" 0), 0220+

#e "<clsi/e 3argaining Stats Cannot Bo 3eyond i/e EearsIn the event however, that the parties, by mutual agreement, enter into a renegotiated contract

with a term of three '0) years or one which does not coincide with the said five>year term and saidagreement is ratified by ma"ority of the members in the bargaining unit, the sub"ect contract is valid andlegal and therefore, binds the contracting parties. The same will however not adversely affect the right of another union to challenge the ma"ority status of the incumbent bargaining agent within sixty 'C8) daysbefore the lapse of the original five ':) year term of the !B$. (;C Labor >nion3-hilippine 8ransport and #eneral Forers Organi.ation 's& Sama3Samang agaaisang $anggagaa Sa ;C3Solidarit" Of %ndependent and #eneral Labor Organi.ations, #&R& o& 1760/9, o'ember 07, 0229+

Sbstittionary doctrine4tated otherwise, the ;substitutionary; doctrine only provides that the employees cannot revoke

the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. $nd it is in the light of this that the phrase ;said new agent would have torespect said contract; must be understood. It only means that the employees, thru their new bargainingagent, cannot renege on their collective bargaining contract, except of course to negotiate withmanagement for the shortening thereof.

3argaining nit $ bargaining unit is ;a group of employees of a given employer, comprised of all or less than all of

the entire body of employees, consistent with equity to the employer, indicate to be the best suited toserve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law./(%nternational School *lliance of =ducators 's& Juisumbing, #&R& o& 10/, :une 1, 0222+

est in deter&ining t#e a))ro)riate bargaining nit In order to determine the appropriate bargaining unit the 4upreme !ourt has time and again

applied the four tests to wit=') will of the employees 'Hlobe %octrine)+'-) affinity and unit of employees2 interest, such as substantial similarity of work and duties, or

similarity of compensation and working conditions+

'0) prior collective bargaining history+ and'1) employment status, such as temporary, seasonal and probationary employees. (>ni'ersit" of

the -hilippines 's& ?on& -ura errer3CalleIa, #&R& o& 9619 :ul" 1/, 1990+

Certi-ication electionCertification election refers to the process of determining through secret ballot the sole and

exclusive representative of the employees in an appropriate bargaining unit for purposes of collectivebargaining or negotiation. $ certification election is ordered by the %epartment of Labor and &mployment(Department Order /2 B 2), Rule %, Section 1 4h5+

6e&bers o- religios gro)s w#o do not want to 8oin nions &ay /ote in a certi-ication electionThat the I#! employees, as employees in the same bargaining unit in the true sense of the term,

do have the right of self>organi*ation, is also in truth beyond question, as well as the fact that when they

voted that the employees in their bargaining unit should be represented by ;#( 3#I(#,; they weresimply exercising that right of self>organi*ation, albeit in its negative aspect. #o law, administrative rule or precedent prescribes forfeiture of the right to vote by reason of neglect to exercise the right in pastcertification elections. In denying the petitionersF right to vote upon these egregiously fallacious grounds,the public respondents exercised their discretion whimsically, capriciously and oppressively and gravelyabused the same. (Re"es 's& 8raIano, #&R& o& //)), :une 0, 1990+

Deadlock bar rle

13



The %eadlock Bar 6ule simply provides that a petition for certification election can only beentertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or hadbecome the sub"ect of a valid notice of strike or lockout. The principal purpose is to ensure stability in therelationship of the workers and the management (ational Congress of >nions in the Sugar %ndustr" of the -hilippines (*C>S%-+ B 8>C- 's& 8raIano, #&R& o& L367/, *pril 12, 1990+

ne – year bar rle "lection year bar $ certification election cannot be held within one ') year from the date of issuance of declaration

of a final certification election result. The one year bar rule also applies in cases of consent election, run @off election and voluntary recognition. (R& 8ransport Corporation 's& Laguesma, #&R& o& 126)2,o'ember 16, 199)+

Negotiation 3ar %le (nce the negotiation for a new !B$ has been commenced pursuant to $rticle -:8, a petition for

certification election may no longer be validly entertained by the %epartment of Labor and &mployment.

A))eal bar rleThe filing of the memorandum of appeal from the order or decision of the ?ed>$rbiter stays the

holding of any certification election (Department Order o& /2 B 2), Rule ;%%%, Section 01+

%n – -- electionRun3off =lection refers to an election between the labor unions receiving the two '-) highest

number of votes in a certification or consent election with three '0) or more choices, where such acertified or consent results in none of the three '0) or more choices receiving the ma"ority of the validvotes cast+ provided that the total number of votes for all contending unions is at least fifty percent ':8A)of the number of votes cast. (Section 1(ss+, Rule %, Department Order /2 B 2)+

?olntary %ecognition;oluntar" Recognition refers to the process by which a legitimate labor union is recogni*ed by the

employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the6egional (ffice in accordance with 6ule II, 4ection -, %epartment (rder 18 @ 80 (Department Order /2

B 2), Rule %, Section 1 4bbb5+

Brie/ance#rie'ance refers to any question by either the employer or the union regarding the interpretation

or implementation of any provision of the collective bargaining agreement or interpretation or enforcementof company personnel policies. (Department Order o& /2 B 2), Rule %, Section 14u5+

?olntary arbitration;oluntar" arbitration refers to the mode of settling labor>management disputes by which the

parties select a competent, trained and impartial third person who shall decide on the merits of the caseand whose decision is final and executory. (C$! Re'ised -rocedural #uidelines in the Conduct of ;oluntar" *rbitration -roceedings, Section 1 4d5, Rule %% 4Oct& 1, 022/5+

Bross ?iolations o- Collecti/e 3argaining Agree&ent is LP Hross violations of !ollective Bargaining $greement under $rticle -C means flagrant andor

malicious refusal to comply with the economic provisions of such agreement. 4uch gross violations do notfall within the "urisdiction of the oluntary $rbitrator or panel of oluntary $rbitrators because they areconsidered as unfair labor practice '3L9) under $rticle -17 thus, cogni*able by the Labor $rbiter and the#L6!. (%salama $achine Fors Corporation 's& ational Labor Relations Commission, #&R& o& 122167,$arch 0, 199+

A))eals -ro& t#e Decisions o- ?olntary Arbitrator or Panel o- ?olntary Arbitrators – Cort o- A))eals

14



The decisions of a voluntary arbitrator fall within the exclusive appellate "urisdiction of the !ourt of $ppeals. Indeed, this !ourt took this decision into consideration in approving the <<5 6ules of !ivil9rocedure. (ippon -aint =mplo"ees >nion B Olalia 's& Court of *ppeals, #&R& o& 19212& o'ember 19, 022/+

StrikeStrie is any temporary stoppage of work by the concerted action of the employees as a result of

industrial or labor dispute. $ labor dispute includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing,maintaining, changing or arranging the terms and conditions of employment, regardless of whether thedisputants stand in the proximate relation of employer and the employee. (!uluran ng $anggagaa saClothman Hnitting Corp& B Solidarit" >nions of the -hilippines for =mpoerment and Reform 's& Court of

*ppeals, #&R& o& 11, :anuar" 17, 022+

#e reisites o- a /alid strike are &andatory The requisites for a valid strike are as follows= 'a) a notice of strike filed with the %(L& thirty days

before the intended date thereof or fifteen days in case of unfair labor practice+ 'b) strike vote approved bya ma"ority of the total union membership in the bargaining unit concerned obtained by secret ballot in ameeting called for that purpose+ 'c) notice given to the %(L& of the results of the voting at least sevendays before the intended strike. These requirements are mandatory and failure of a union to comply

therewith renders the strike illegal (-iKero 's& ational Labor Relations Commission, #&R& o&1/9612, *ugust 02, 022/+

De explained in ational ederation of Labor 's& LRC (#&R& o& 11)/66, December 1, 1997,0) SCR* 07, 0730+ that with the enactment of 6epublic $ct #o. C5: which took effect on ?arch-, <7<, the rule now is that such requirements as the filing of a notice of strike, strike vote, and noticegiven to the %epartment of Labor are mandatory in nature. Thus, even if the union acted in good faith inthe belief that the company was committing an unfair labor practice, if no notice of strike and a strike votewere conducted, the said strike is illegal./ (Samahang $anggagaa sa Sulpicio Lines, %nc& B *L> 's&Sulpicio Lines, %nc& #&R& o& 1/2990, $arch 0, 022/+

Ass&)tion o- 8risdiction is discretionary The powers granted to the 4ecretary under $rticle -C0'g) of the Labor !ode have been

characteri*ed as an exercise of the police power of the 4tate, with the aim of promoting public good.

Dhen the 4ecretary exercises these powers, he is granted great breadth of discretion/ in order to find asolution to a labor dispute. The most obvious of these powers is the automatic en"oining of an impendingstrike or lockout or its lifting if one has already taken place. The authority of the 4ecretary to assume

"urisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensableto national interest includes and extends to all questions and controversies arising from such labor dispute. The power is plenary and discretionary in nature to enable him to effectively and efficientlydispose of the dispute. (-hilcom =mplo"ees >nion 's& -hilippine #lobal communications, #&R& o&1//)1, :ul" 17, 0226 4/9 SCR* 01/4+attycdduka

Strike in /iolation o- arbitration – illegalThis !ourt has held that strikes staged in violation of agreements providing for arbitration are

illegal, since these agreements must be strictly adhered to and respected if their ends are to be achieved.

The rationale of the prohibition under $rticle -C1 is that once "urisdiction over the labor dispute has beenproperly acquired by competent authority, that "urisdiction should not be interfered with by the applicationof the coercive processes of a strike. Indeed it is among the chief policies of the 4tate to promote andemphasi*e the primacy of free collective bargaining and negotiations, including voluntary arbitration,mediation, and conciliation, as modes of settling labor, or industrial disputes. In $lliance of HovernmentDorkers v. ?inister of Labor, !hief Kustice Gernando declared that the principle behind labor unionism inprivate industry is that industrial peace cannot be secured through compulsion by law. 6elations betweenprivate employers and their employees rest on an essentially voluntary basis, sub"ect to the minimumrequirements of wage laws and other labor and welfare legislation. (Suhothai Cuisine and Restaurant 's& Court of *ppeals, #&R& o& 12/)7, :ul" 17, 0226+

15

http://www.supremecourt.gov.ph/jurisprudence/1997/dec1997/113466.HTM





6ere )artici)ation o- a worker in a law-l strike s#all not constitte s--icient grond -or ter&ination o- #is e&)loy&ent! e/en i- a re)lace&ent #ad been #ired by t#e e&)loyer dring sc#law-l strike.

In Samahang $anggagaa sa Sulpicio Lines, %nc&3*L> '& Sulpicio Lines, %nc& this !ourtexplained that the effects of such illegal strikes, outlined in $rticle -C1, make a distinction betweenworkers and union officers who participate therein= an ordinary striking worker cannot be terminated for mere participation in an illegal strike. There must be proof that he or she committed illegal acts during astrike. In all cases, the striker must be identified. But proof beyond reasonable doubt is not required.4ubstantial evidence available under the attendant circumstances, which may "ustify the imposition of thepenalty of dismissal, may suffice. Liability for prohibited acts is to be determined on an individual basis.(Suhothai Cuisine and Restaurant 's& Court of *ppeals, #&R& o& 12/)7, :ul " 17, 022 6+

"le&ents o- e&)loyer – e&)loyee relations#i)The elements to determine the existence of an employment relationship are= 'a) the selection and

engagement of the employee 'b) the payment of wages 'c) the power of dismissal, and 'd) the employer2spower to control. The most important element is the employer2s control of the employee2s conduct, not only asto the result of the work to be done, but also as to the means and methods to accomplish it. ($urillo 's& Court of *ppeals and *ssociated !roadcasting Corporation, et& el&, #&R& o& 16/60, :une , 0227+

ll backwagesGinally came our ruling in !ustamante which superseded -ines Cit" =ducational Center and

allowed full recovery of backwages without deduction and without qualification pursuant to the expressprovisions of $rticle -5< of the Labor !ode, as amended by 6ep. $ct #o. C5:, i .e., without anydeduction of income the employee may have derived from employment elsewhere from the date of hisdismissal up to his reinstatement, that is, covering the entirety of the period of the dismissal. (=uitable!aning Corporation 's& Sadac, #&R& o& 16/770, :une , 0226+

Salary increase not inclded in t#e co&)tation o- backwagesThere was no lawful decree or order supporting his claim, such that his salary increases can be

made a component in the computation of backwages. Dhat is evident is that salary increases are a mereexpectancy. They are, by its nature volatile and are dependent on numerous variables, including thecompany2s fiscal situation and even the employee2s future performance on the "ob, or the employee2s

continued stay in a position sub"ect to management prerogative to transfer him to another position wherehis services are needed. In short, there is no vested right to salary increases. That respondent 4adacmay have received salary increases in the past only proves fact of receipt but does not establish a degreeof assuredness that is inherent in backwages. Grom the foregoing, the plain conclusion is that respondent4adac2s computation of his full backwages which includes his prospective salary increases cannot bepermitted. (=uitable !aning Corporation 's& Sadac, #&R& o& 16/770, :une , 0226+

Se)aration )ay in lie o- reinstate&ent 3nder the law, an illegally dismissed employee is entitled to reinstatement and backwages, and if

reinstatement is no longer possible, he may be given separation pay in lieu of reinstatement. (!unagan's& Sentinel Fatchman A -rotecti'e *genc", %nc&, #&R& o& 1//)76, September 1), 0226+ attycddka

%e)eated re#iring o- )ro8ect e&)loyee

$t this time, we wish to allay any fears that this decision unduly burdens an employer by imposinga duty to re>hire a pro"ect employee even after completion of the pro"ect for which he was hired. Theimport of this decision is not to impose a positive and sweeping obligation upon the employer to re>hirepro"ect employees. Dhat this decision merely accomplishes is a "udicial recognition of the employmentstatus of a pro"ect or work pool employee in accordance with what is fait accompli , i&e&, the continuous re>hiring by the employer of pro"ect or work pool employees who perform tasks necessary or desirable to theemployer2s usual business or trade. ($araguinot, :r& 's& ational Labor Relations Commission, #&R& o&102969, :anuar" 00, 199+

Doble )robationary )eriod : illegal

16



The EotelFs system of double probation a transparent scheme to circumvent the plain mandate of the law and make it easier for it to dismiss its employees even after they shall have already passedprobation. The policy of the !onstitution is to give the utmost protection to the working class whensub"ected to such maneuvers as the one attempted by the petitioners. This !ourt is fully committed to thatpolicy and has always been quick to rise in defense of the rights of labor, as in this case. (?olida" %nn$anila 's& ational Labor Relations Commission, #&R& o& 12911/, September 1/, 199)+

Probationary Period o- Pri/ate Sc#ool eac#ers4ection <0 of the <<- ?anual of 6egulations for 9rivate 4chools, provides that full>time teachers

who have satisfactorily completed their probationary period shall be considered regular or permanent.Gurthermore, the probationary period shall not be more than six consecutive regular semesters of satisfactory service for those in the tertiary level. Thus, the following requisites must concur before aprivate school teacher acquires permanent status= ') the teacher is a full>time teacher+ '-) the teacher must have rendered three consecutive years of service+ and '0) such service must have been satisfactory.(Saint $ar"Gs >ni'ersit" 's& Court of *ppeals, #&R& o& 177, $arch 2, 022+

Distinction between a dis&issal 8st case and a dis&issal -or at#oried caseThe clear>cut distinction between a dismissal for "ust cause under $rticle -7- and a dismissal for

authori*ed cause under $rticle -70 is further reinforced by the fact that in the first, payment of separationpay, as a rule, is not required, while in the second, the law requires payment of separation pay. (:aa

ood -rocessing Corporation 's& -acot, et& al&, #&R& o& 11)7, $arch 0, 022+

Serios 6iscondctIn order to constitute serious misconduct which will warrant the dismissal of an employee under

paragraph 'a) of $rticle -7- of the Labor !ode, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent. ($oreno 's& San Sebastian College BRecoletos, $anila, #&R& o& 170), $arch 0, 022+

Will-l disobedienceEowever, willful disobedience of the employer2s lawful orders, as a "ust cause for dismissal of an

employee, envisages the concurrence of at least two requisites= ') the employeeFs assailed conduct musthave been willful, that is, characteri*ed by a wrongful and perverse attitude+ and '-) the order violated

must have been reasonable, lawful, made known to the employee and must pertain to the duties which hehad been engaged to discharge. (!ascon 's& Court of *ppeals, #&R& o& 1//99, ebruar" , 022/+att"cddua

Abandon&ent $bandonment is the deliberate and un"ustified refusal of an employee to resume his employment.

It is a form of neglect of duty, hence, a "ust cause for termination of employment by the employer. Gor avalid finding of abandonment, these two factors should be present= ') the failure to report for work or absence without valid or "ustifiable reason+ and '-) a clear intention to sever employer>employeerelationship, with the second as the more determinative factor which is manifested by overt acts fromwhich it may be deduced that the employees has no more intention to work. The intent to discontinue theemployment must be shown by clear proof that it was deliberate and un"ustified. (*gabon 's& ational Labor Relations Commission, #&R& o& 169) o'ember 17, 022/+

%eisites -or dis&issal de to loss o- trst and con-idenceThus, in order to be a valid cause for dismissal, loss of confidence should not be 'a) simulated,

'b) used as a subterfuge for causes which are improper, illegal or un"ustified, 'c) arbitrarily asserted in theface of overwhelming evidence to the contrary, and 'd) a mere afterthought to "ustify earlier action taken inbad faith. Dhile in the termination of services of managerial employees for loss of confidence, employersare given wider latitude of discretion, there must, however, be substantial proof thereof. The employer2sevidence must clearly and convincingly establish the facts and incidents upon which the loss of confidence may fairly be made to rest. ' Fah <uen Restaurant, 's& :a"ona, #&R& o& 19//, December 16, 022+

17



win notice reire&ent 9rocedural due process requires the employer to give the employee two notices. The first is to

apprise him of the particular acts or omissions for which his dismissal is sought, and the second is toinform him of the decision to terminate him. Gailure to comply with these mandatory proceduralrequirements taints the dismissal with illegality and any "udgment rendered by the employer withoutcompliance therewith can be considered void and inexistent. It should be emphasi*ed that due processmust be observed in effecting an employee2s dismissal because the dismissal of an employee affects notonly his position but also his means of livelihood and his dependents2 sustenance. Thus, strict adherenceto the requirements set forth in the Labor !ode, as amended, is essential. (Fah <uen Restaurant, 's&:a"ona, #&R& o& 19//, December 16, 022+

Ss)ension beyond 70 days – constrcti/e dis&issal !learly, constructive dismissal had already set in when the suspension went beyond the

maximum period allowed by law. 4ection 1, 6ule I, Book of the (mnibus 6ules provides thatpreventive suspension cannot be more than the maximum period of 08 days. Eence, after the 08>dayperiod of suspension, the employee must be reinstated to his former position because suspension beyondthis maximum period amounts to constructive dismissal. (?"att 8aEi Ser'ices %nc& 's& Catino", #&R& o&1/)02/, :une 06, 0221+

$- dis&issal is too #ars# ss)ension can be i&)osed De cannot but agree that the extreme penalty of dismissal was too harsh and manifestly

disproportionate to the infraction committed, which appears to have been fully explained, and, in fact, tobe not inexcusable under the circumstances. There was no dishonesty, no demonstration of such moralperverseness as would have "ustified the claimed loss of confidence attendant to the "ob. 9erhaps,individual petitioner should first have been given a mere warning, then a reprimand or even a suspension,but certainly not outright dismissal from employment. (ne must keep in mind that a worker2s employmentis property in the constitutional sense, and he cannot be deprived thereof without due process and unlessit was commensurate to his acts and degree of moral depravity. (Coca3Cola !ottlers, -hils&, %nc& 's&Hapisanan ng $ala"ang $anggagaa sa Coca3 Cola 3 F, #&R& o& 1/02, ebruar" 0, 022+

?alid ter&ination de to retrenc#&ent Gor a valid termination due to retrenchment, the law requires that written notices of the intended

retrenchment be served by the employer on the worker and on the %epartment of Labor and &mploymentat least one ') month before the actual date of the retrenchment. The purpose of this requirement is togive employees some time to prepare for the eventual loss of their "obs, as well as to give %(L& theopportunity to ascertain the verity of the alleged cause of termination. (=$CO -l"ood Corporation 's&

*belgas et& al&, #&R& o& 1/)0, *pril 1/, 022/+

A&ont o- se)aration )ay $s to the amount of separation pay, this !ourt has ruled that separation pay may be computed at

one ') month pay, or one '-) month pay for every year of service, whichever is higher. It is noteworthythat the separation pay being awarded in the instant case is due to illegal dismissal+ hence, it is differentfrom the amount of separation pay provided for in $rticle -70 in case of retrenchment to prevent losses or in case of closure or cessation of the employer2s business, in either of which the separation pay isequivalent to at least one ') month or one>half '-) month pay for every year of service, whichever is

higher. (&& $arine Corporation 's& 8he ?onorable Second Di'ision ational Labor RelationsCommission, #&R& o& 102)9, *pril 2, 022+

Disease as a grond -or dis&issal

18



The burden of proving the validity of the dismissal rests on the employer. $s such, the employer must prove that the requisites for a valid dismissal due to a disease have been complied with. In theabsence of the required certification by a competent public health authority, this !ourt has ruled againstthe validity of the employee2s dismissal. ($anl" =Epress %nc& 's& -a"ong, :r&, #&R& o& 167/60, October 0, 022+

No se)aration )ay )on resignation – general rleThe general rule is that an employee who voluntarily resigns from employment is not entitled to

separation pay unless, however, there is a stipulation for payment of such in the employment contract or !ollective Bargaining $greement '!B$), or pa"ment of the amount is sanctioned b" established emplo"er

practice or polic"& (8ra'elaire A 8ours Corp& 's& ational Labor Relations Commission, #&R& o& 1)10), *ugust 02, 199+

%etire&ent 6etirement is a different specie of termination of employment from dismissal for "ust or authori*ed

causes under $rticles -7- and -70 of the Labor !ode. Dhile in all three cases, the employee to beterminated may be unwilling to part from service+ there are eminently higher standards to be met by theemployer validly exercising the prerogative to dismiss for "ust or authori*ed causes. In those twoinstances, it is indispensable that the employer establishes the existence of "ust or authori*ed causes for dismissal as spelled out in the Labor !ode. 6etirement, on the other hand, is the result of a bilateral act of

the parties, a voluntary agreement between the employer and the employee whereby the latter after reaching a certain age agrees andor consents to sever his employment with the former. (Cainta Catholic School 's& Cainta Catholic School =mplo"ees >nion, #&R& o&11201, $a" /, 0226, /9 SCR*/6402265+

Fali-ication -or retire&ent In case of retirement, the employee shall be entitled to receive such retirement benefits as he

may have earned under existing laws and any collective bargaining agreement and other agreements=9rovided, however, That an employee2s retirement benefits under any collective bargaining and other agreements shall not be less than those provided herein.

In the absence of a retirement plan or agreement providing for retirement benefits of employeesin the establishment, an employee upon reaching the age of sixty 'C8) years or more, but not beyondsixty>five 'C:) years which is hereby declared the compulsory retirement age, who has served at least five

':) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at leastone>half '-) month salary for every year of service, a fraction of at least six 'C) months being consideredas one whole year.

3nless the parties provide for broader inclusions, the term one half '-) month salary shall meanfifteen ':) days plus one>twelfth '-) of the 0 th month pay and the cash equivalent of not more thanfive ':) days of service incentive leaves. (Sta& Catalina College 's& ational Labor Relations Commission,#&R& o& 1///), o'ember 19, 022)+

Co&)tation o- retire&ent )ay Gor the purpose of determining the minimum retirement pay due an employee under this 6ule,

the term one>half month salary/ shall include all the following= 'a) Gifteen ':) days salary of theemployee based on his latest salary rate. 'b) The cash equivalent of not more than five ':) days of serviceincentive leave+ 'c) (ne>twelfth of the 0th month pay due an employee+ 'd) $ll other benefits that the

employer and employee may agree upon that should be included in the computation of the employee2sretirement pay. The foregoing rules are clear that the whole : days of 4IL are included in the computationof a retiring employees2 pay. (=nriue. Securit" Ser'ices, %nc& 's& CabotaIe, #&R& o& 1/799), :ul" 01,0226+

%etire&ent o- ndergrond &iners(n Gebruary -C, <<7, Republic *ct o& was signed into law and amended $rticle -75 of

the Labor !ode and provided for the retirement benefits of underground miners. Based on 6.$. 7::7, nunderground mining employee upon reaching the age of fifty ':8) years or more, but not beyond sixty 'C8)years which is hereby declared the compulsory retirement age for underground mine workers, who has

19



served at least five ':) years as underground mine worker, may retire and shall be entitled to all theretirement benefits provided for in this $rticle.

Prescri)tion $rticle -<8 (ffenses penali*ed under this !ode and the rules and regulations issued pursuant

thereto shall prescribe in three '0) years. The Labor !ode, however, does not contain any provisions on the mode of computation of the

three>year prescriptive period it established.9rescription shall begin to run from the day of the commission of the violation of the law, and if

the same be not known at the time, from the discovery thereof and institution of "udicial proceedings for itsinvestigation and punishment.

It is relevant to note that the same result would be reached by giving supplemental effect toprovisions of the 6evised 9enal !ode in the application of $rticle -<8 of the Labor !ode. $rticle < of the6evised 9enal !ode reads as follows=

$rt. <. Computation of the prescription of offenses. The period of prescription shall commenceto run from the da" on hich the crime is disco'ered by the offended party, the authorities, or their agents,and shall be interrupted b" the filing of the complaint or information , and shall commence to run againwhen such proceedings terminate without the accused being convicted or acquitted, or are un"ustifiablystopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the 9hilippine $rchipelago.

(-eople of the -hilippines 's& Duue, #&R& o& 1220, *ugust 1), 1990+

Prescri)tion )eriod -or &oney clai&s $rticle -< of the Labor !ode which provides that all money claims arising from employer>

employee relationship shall be filed within three '0) years from the time the cause of action accrued.(Central egros =lectric Cooperati'e (C==CO+, %nc& 's& ational Labor Relations Commission, #&R& o&1260/6, September 1, 199/+

Prescri)tion -or all &oney clai&sDhat rules on prescription should apply in cases like this one has long been decided by this

!ourt. In illegal dismissal, it is settled, that the ten>year prescriptive period fixed in $rticle 11 of the !ivil!ode ma" not be invoked by petitioners, for the !ivil !ode is a law of general application, while theprescriptive period fixed in $rticle -<- of the Labor !ode now $rticle -<J is a 49&!I$L L$D applicable

to claims arising from employee>employer relations. The language of $rt. -< of the Labor !ode does notlimit its application only to ;money claims specifically recoverable under said !ode; but covers all moneyclaims arising from an employee>employer relations; '!iting !adalin vs. 9(&$ $dministrator, -07 4!6$5-, 5C1 <<1J+ and 3y vs. #ational Labor 6elations !ommission, -C 4!6$ :8:, :: <<CJ). . . .

It should be noted further that $rticle -< of the Labor !ode is a special law applicable to moneyclaims arising from employer>employee relations+ thus, it necessarily prevails over $rticle 11 of the !ivil!ode, a general law. Basic is the rule in statutory construction that ;where two statutes are of equaltheoretical application to a particular case, the one designed therefore should prevail.;

De base our conclusion not on $rticle 11 of the !ivil !ode but on which sets the prescriptionperiod at three '0) years and which governs under this "urisdiction. (Laureano 's& Court of *ppeals, #&R&o& 11/776, ebruar" 0, 0222+

Prescri)tion )eriod -or illegal dis&issal

erily, the dismissal without "ust cause of an employee from his employment constitutes aviolation of the Labor !ode and its implementing rules and regulations. 4uch violation, however, does notamount to an ;offense; as understood under $rticle -< of the Labor !ode. In its broad sense, an offenseis an illegal act which does not amount to a crime as defined in the penal law, but which by statute carrieswith it a penalty similar to those imposed by law for the punishment of a crime.

Indeed there is, merit in the contention of petitioner that the four 1J>year prescriptive period under $rticle 1C of the #ew !ivil !ode, applies by way of supplement, in the instant case, to wit= $rt. 1C.The following actions must be instituted within four years. J >pon an inIur" to the lights of the plaintiff&

!learly then, when one is arbitrarily and un"ustly deprived of his "ob or means of livelihood, theaction instituted to contest the legality of oneFs dismissal from employment constitutes, in essence, an

20



action predicated ;upon an in"ury to the rights of the plaintiff,; as contemplated under $rt. 1C of the #ew!ivil !ode, which must be brought within four 1J years. (Callanta 's& Carnation -hilippines, %nc&, #&R& o&7261 October 0, 196+

In illegal dismissal cases, the employee concerned is given a period of four years from the time of his dismissal within which to institute a complaint. This is based on $rticle 1C of the #ew !ivil !odewhich states that actions based upon an in"ury to the rights of the plaintiff must be brought within four years. !learly then, when one is arbitrarily and un"ustly deprived of his "ob or means of livelihood, theaction instituted to contest the legality of oneFs dismissal from employment constitutes, in essence, anaction predicated ;upon an in"ury to the rights of the plaintiff,; as contemplated under $rt. 1C of the #ew!ivil !ode, which must be brought within four years. The four>year prescriptive period shall commence torun only upon the accrual of a cause of action of the worker. It is settled that in illegal dismissal cases, thecause of action accrues from the time the employment of the worker was un"ustly terminated. Thus, thefour>year prescriptive period shall be counted and computed from the date of the employeeFs dismissal upto the date of the filing of complaint for unlawful termination of employment. (;ictor" Liner, %nc& 's& Race,#&R& o& 16/02, $arch 0, 0227+

17t# &ont# )ay -or certain ty)es o- e&)loyees9residential %ecree #o. 7: mandating all employers to pay their rank and file employees

regardless of the nature of their employment and irrespective of the method by which their wages are paidprovided they worked for at least one ') month during a calendar year. The 0th ?onth 9ay must be

given to the employees not later than %ecember -1 of every year. The 0 th ?onth 9ay is computed bydividing the total basic salary earned for the year exclusive of overtime, holiday, and night shift differentialpay divided by -.

'a) &mployees 9aid by 6esults. M &mployees who are paid on piece work basis are by lawentitled to the 0th month pay.

&mployees who are paid a fixed or guaranteed wage plus commission are also entitled to themandated 0th month pay, based on their total earnings during the calendar year, i.e., on both their fixedor guaranteed wage and commission.

'b) Those with ?ultiple &mployers. M Hovernment employees working part time in a privateenterprise, including private educational institutions, as well as employees working in two or more privatefirms, whether on full or part time basis, are entitled to the required 0th month pay from all their privateemployers regardless of their total earnings from each or all their employers.

'c) 9rivate 4chool Teachers. M 9rivate school teachers, including faculty members of

universities and colleges, are entitled to the required 0th month pay, regardless of the number of monthsthey teach or are paid within a year, if they have rendered service for at least one ') month within a year.attycddka

Solo Parent Wel-are Act '%e)blic Act No. *;=2,The employer shall provide for a flexible working schedule for solo parents provided that the

same shall not affect individual and company productivity#o employer shall discriminate against any solo parent employee with respect to terms and

conditions of employment on account of hisher status. In addition to leave privileges under existing laws,parental leave of not more than seven '5) working days every year shall be granted to any solo parentemployee who has rendered service of at least one ') year.

$oo*s Authore% b+ Att+. ,u*a

1. Labor Laws and Social Legislations A 3arrister@s Co&)anion '6ex Bookstore, -8) 2. Constittional Law A 3arrister@s Co&)anion '6ex Bookstore, -88)

7. %$GAL! 4is Legacy to t#e P#ili))ine Society '$nvil 9ublishing Eouse, -88) +. #e Strggle -or reedo& A e<tbook in P#ili))ine 4istory '6ex Bookstore, -887) 5. #e Law and t#e eac#ing Pro-ession in t#e P#ili))ines '! and & 9ublishing, -887) (. P#iloso)#y o- "dcation '6ex Bookstore, Inc., -88C, <<<) =. %e/iewer -or t#e Ci/il Ser/ice "<a&ination '?anila 6eview Institute, Inc., -88) *. World Beogra)#y '6ex Bookstore, Inc., -88C, -88) ;. $ntrodction to Asia 4istory! Cltre and Ci/iliation '6ex Bookstore, -88:)

21



10. %e/iewer -or t#e Licensre "<a&ination -or eac#ers '?6I, -88C, <<7) 11. 4istorical! P#iloso)#ical and Legal ondations o- "dcation

'9hoenix 9ublishing Eouse, <<5)

Bi/e and it will be gi/en to yo. A good &easre! )ressed down! s#aken toget#er and rnning o/er! will be )ored into yor la). or wit# t#e &easre yo se! it will be &easred to

yo. 'Lke (7*,#ose w#o are in )ossession o- t#is re/iew &aterial #a/e t#e obligation to s#are it wit#

ot#ers. Bod bless yo as yo take t#e 3ar "<a&inations – Atty. Cecilio D. Dka

22

labor law - pre week atty. duka

Documents