Summary - Atty Alcantara Labor Review

LABOR LAW REVIEW

Chapters: Asuncion 1-14, Ortiguerra 15, 18-21, Punzalan 16, Piccio 17 1

CHAPTER 1 GENERAL PRINCIPLES Matters which fall under the term Labor Law

1. Statutes passed by the s tate to promote the wel fare of

workers and employees and regulate their relations with their employers .

2. Judicial decisions applying and interpreting the afore sa id s tatutes .

3. Rules and regulations issued by adminis trative agencies within their legal competence, to implement labor statutes.

Purpose - Regulate labor-capital or employer-employee relationship,

pursuant to the police power of the State and in accordance with the consti tutional pol icy of socia l justice.

Labor Statutes: 1. Labor s tandard laws – those that provide for the pay and

other legal benefi ts to which the worker, whi le at work, i s enti tled to receive from his employer. Ex. Minimum rates of pay

2. Welfare legislation – those that require payment of benefi t s of government agencies to the worker or his family when and whi le he cannot work, by reason of s ickness , disabi l i ty, old age, death and s imi lar hazards . Ex. SSS Law

3. Labor relations laws – those intended to stabilize the relations of employees and their employers, adjust differences between them thru collective bargaining, and s ettle labor disputes

through conciliation, mediation and arbitration. Ex. Book V, LC

Labor relations laws and labor standards laws mutually exclusive? – No. LR provides for rights and procedures by which workers may be able to obtain from their employers benefi ts which are over and above the minimum terms and conditions of employment set by labor s tandard laws. Social Legislation

- Laws passed by the State to promote publ ic wel fare. Even when there i s no employer-employee relationship. Ex. Agrarian reform laws

Labor and Social Legislation

- Enacted pursuant to police power of state –promote order, safety, health, morals and genera l wel fare of society.

- Not violative of due process and freedom to contract of employers, resisting the expansion of the socia l rights of employees and workers i s essentia l ly capita l i s tic,

conservative, reactionary and sel fi sh. Employer

- One for whom employees work in consideration of wages

or sa laries . Natura l or Juridica l person.

Employee - One who works for an employer; a person working for

sa lary or wages; any person in the service of another under

a contract for hi re, express or impl ied, ora l or wri tten. Always a natura l person.

Employee-Employer Relationship

- Contractual in character; by agreement.

- Impressed with public interest; labor contracts yield to the common good.

- Subject to special laws on labor unions , col lective bargaining, s trikes and lockouts, closed shop, wages and working conditions, hours of labor and s imi lar subjects .

- Parties enjoined not to act oppressively against each other or impair the interest or convenience of the publ ic.

- In personam, involves the rendition of personal service of employee; partakes of master and servant relationship.

Property right of employee in E-E relationship

- Upon establishment, employee acquires right to continue in his employment until he is deprived thereof in accordance with the requirements of substantive and procedura l due

process . Reason: employees means of l ivel ihood. - Worker’s right to labor. Right to his job, means of livelihood

Elements of E-E relationship

1. the selection and engagement of the employee 2. the payment of wages 3. the power of dismissa l 4. the employer’s power to control the employee with respect

to the means and methods by which the work i s to be accompl ished (Control Test)

o Most important index of exis tence of E-E relationship.

Importance of determining if E-E relationship exists

- Law & Tribunal . To determine what law wi l l govern the rights and liabilities of the parties , and what tribunal or

court wi l l have jurisdiction over the dispute. - If E-E relationship exists – Labor Arbiter. If none – ordinary

courts .

Specific Evidence required to prove existence of E-E relationship

- None. Any competent and relevant evidence to prove the relationship may be admitted.

Purchaser of Assets of an employer corporation NOT considered successor employer of latter’s employees – Unless express ly

assumed or colored or cl othed in bad fa i th, labor contracts not enforceable against a transferee of an enterprise, labor contracts

being in personam. LABOR Provisions of the 1987 Constitution

Sec3 ArtXIII Section 3. The State shall afford full protection to labor, local and ove rseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights 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.

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Note: State may regulate the relations between workers and employers . However this does not include the workers ’ right to

participate in the management of the enterprise; this i s employer’s prerogative. Sec 18 Art II Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

Sec 8 Art III Section 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.

Sec2b Art IXB Sec14 AXIII Section 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.

In 1987 Constitution, Social Justice envisions – equitable diffusion of wealth and political power for the common good, regulation of the acquisition, ownership, use and dispos i tion of property and i ts increments ; and creation of economic opportunities based on freedom of ini tiative and sel f-rel iance (Sec. 1&2, AXIII). Social Justice as a guiding principle in labor law may be so used by

courts in sympathy with the working man if it collides with the equal protection clause of the Constitution. – As i t insures equal i ty

between labor and capital. Labor is in weaker posi tion than capita l , thereby providing equal protection.

Definition and Relevance of “Compassionate Justice” - Disregarding of rigid rules and giving due weight to a l l the

equities of the case. Relevant in dismissa l of workers .

Social Justice - Cala lang vs . Wi l l iams –

“Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to ensure economic stability of all the component elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est supremo lex.”

- It guarantees equality of opportunity, equal i ty of pol i tica l

rights , equality before the law, equality of va lues given and received, equitable sharing of the social and material goods

and basis of efforts exerted in their production. Does no t champion divis ion of property or equal i ty of economic s tatus . Cannot be used to trample rights of others .

- Not intended to countenance the wrongdoings by the underprivileged. May mitigate penalty but not condone offense.

Why must the State afford protection to Labor?

- Labor, by reason of its economic dependence upon capita l , i s deemed the weaker of the two and needs the protection

of the State. Three Aggregates of power against which the individual employee needs protection

1. Col lective Labor

2. Col lective Ca pita l 3. Union

Protection of labor means destruction of employer – No. Latter i s

a lso a component of society which must be respected. Laissez-Faire principle cannot be invoked by an employer to resist

State regulation of E-E relationship – Never found full acceptance in this jurisdiction. General welfare pursued through government action.

Construction of labor and social legislation

- Being remedial in character, should be l iberally construed in order to further their purposes .

- Article 1702 CC – Incase of doubt, all labor legislations and a l l labor contracts shall be construed in favor of the safety and decent l iving of the laborer.

- Article 4 LC – Construction in favor of labor May employee waive any right conferred by labor statutes or acquired by him under a labor contract? Binding only i f:

1. Supported by adequate and va luable cons ideration

2. Not in contravention of law, morals, good customs or public pol icy.

3. Voluntari ly entered into. - Burden of establishing voluntariness of waiver is incumbent

upon the employer.

“Dire Necessity” not a ground to annul waivers or releases executed by workers. – Only i f workers were forced to execute them of that the considerations for the quitclaims are unconscionably low or the

workers were tricked in accepting them. Property Rights of Employer - Management prerogatives. These

must be exercised in good faith, without discrimination and without abuse of discretion. Rights to:

- to select workers to be hired and to discharge them for just and va l id cause

- to promulgate and enforce re asonable employment rules

and regulations and to modify or amend or revoke the same - to des ignate the work as wel l as the employee or

employees to perform i t - to transfer and promote employees - to schedule, direct, curtail or control company operations - to introduce and insta l l new or improved money saving

methods , faci l i ties or devices - to create, merge, divide, reclassify and abolish departments

or pos i tions in the company

- to sel l or close the bus iness Prerogative to select employees NOT absolute. – Subject to

consti tutional or s tatutory l imitations . Cons ider equal i ty requirements .

Bona Fide Occupational Qualification Exception

LABOR LAW REVIEW


- when employer can prove that the reasonable demands of the bus iness require a distinction and there is no better available

or accepta ble pol icy which would better accompl ish the bus iness purpose.

Increase in salary is a management prerogative. Promotion does not automatically entitle employee to increase in salary. – Increase

dependent upon the employer in the absence of contractual s tipulation or establ ished company pol icy. Code of discipline. – Employer has obl igation to share with i ts

employees i ts prerogative of formulating a code of discipl ine. Management prerogatives are not considered boundless. If i t a ffects the rights of empl oyees and have repercuss ions on the rights to

securi ty of tenure, employees must be informed.

Prerogative to transfer and reassign employees. – Must be for va l id reasons and according to the requirement of the bus iness . There must not be any demotion in rank or diminution of his salary, benefits and other privi leges . Promotion, as a result of transfer, should still be with employees consent. – No law which compels employee to accept promotion for the reason that a promotion is in the nature of a gift or reward, which a person has a right to refuse. Relevance of Management Prerogatives to the in personam character of the E-E relationship. – Purchaser of business cannot be

compelled to continue services of employees of sel ler. Workers cannot be compel led to work for him ei ther against their wi l l .

CHAPTER II THE LABOR CODE Enactment – May 1, 1974 Effectivity – November 1, 1974 (6months after enactment) Reasons for enactment – to afford protection to labor, promote employment and human resources development and insure industrial peace based on socia l justice. Concept of liberal approach in interpreting the Labor Code and its IRR in favor of labor.

- Being remedial in character, must be accorded the broadest

scope and most beneficial interpretation. Strict adherence to the letter of labor laws i s not a l lowed, the spiri t thereof

prevails and must be given effect. All doubts must be resolved in favor of labor.

Books in the Labor Code Book I – 12 to 42, Pre-employment Book II – 43 to 81, Human resources Development Program Book III – 82 to 155, Conditions of Employment Book IV – 156 to 210, Health, Safety and Social Welfare Benefits Book V – 211 to 277, Labor Relations Book VI – 278 to 287, Post Employment Book VII – 288 to 302, Penal Provisions, Prescriptions, Transitory and Final Provisions

Scope of Power of DOLE and other government agencies in the administration and enforcement of the LC and promulgation of necessary implementing rules and regulations. Limited to promulgation of rules and regulations to effectuate the policies of the

Code. Must conform to the terms and s tandards prescribed in the s tatute. (Art5) Rulemaking is not Lawmaking.

Application to employment contracts already existing at the time of enactment of LC. – remedial in character, otherwise, i t wi l l be sel f-defeating.

Main Objectives of Labor Code (accdg. to Pres. Marcos who promulgated LC)

1. Industrial Peace based on socia l justice and maximum protection of the rights of labor

2. Industrial Development based on trisectoral cooperation of labor, management and government

3. Promotion of interests and wel fare of labor

Basic Policy of State (in labor code)

Article 3 ART. 3. Declaration of basic policy. - The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.

Article 12 POLICY OF STATE ON PRE-EMPLOYMENT ART. 12. Statement of objectives. - It is the policy of the State: a) To promote and maintain a state of full employment through improved manpower training, allocation and utilization; b) To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of employment; c) To facilitate a free choice of available employment by persons seeking work in conformity with the national interest; d) To facilitate and regulate the movement of workers in conformity with the national interest; e) To regulate the employment of aliens, including the establishment of a registration and/or work permit system; f) To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives; g) To insure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippines abroad.

Article 43 POLICY OF STATE ON HUMAN RESOURCES ART. 43. Statement of objective. - It is the objective of this Title to develop human resources, establish training institutions, and formulate such plans and programs as will ensure efficient allocation, development and utilization of the nation’s manpower and thereby promote employment and accelerate economic and social growth.

Article 57 POLICY OF STATE ON APPRENTICESHIP ART. 57. Statement of objectives. - This Title aims: (1) To help meet the demand of the economy for trained manpower; (2) To establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies; and (3) To establish apprenticeship standards for the protection of apprentices.

Article 166 POLICY OF STATE ON EMPLOYEES COMPENSATION PROGRAM ART. 166. Policy. - The State shall promote and develop a tax-exempt employees’ compensation program whereby employees and their dependents, in the event of work-connected disability or death, may promptly secure adequate income benefit and medical related benefits.

Article 211 POLICY OF STATE ON COLLECTIVE BARGAINING, TRADE UNIONISM and OTHER MATTERS CONCERNING LABOR RELATIONS

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ART. 211. Declaration of Policy. - A. It is the policy of the State: (a) To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes; (b) To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development; (c) To foster the free and voluntary organization of a strong and united labor movement; (d) To promote the enlightenment of workers concerning their rights and obligations as union members and as employees; (e) To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes; (f) To ensure a stable but dynamic and just industrial peace; a nd (g) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. B. To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreeme nts freely entered into through collective bargaining, no court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as otherwise provided under this Code. (As amended by Section 3, Republic Act No. 6715, March 21, 1989).

Article 263 (SAME) Article 275 ART. 275. Tripartism and tripartite conferences. - (a) Tripartism in labor relations is hereby declared a State policy. Towards this end, workers and employers shall, as far as practicable, be represented in decision and policy-making bodies of the government. (b) The Secretary of Labor and Employment or his duly authorized representatives may, from time to time, call a national, regional, or industria l tripartite conference of representatives of government, workers and employers for the consideration and adoption of voluntary codes of principles designed to promote industrial peace based on social justice or to align labor movement relations with established priorities in economic and social development. In calling such conference, the Secretary of Labor and Employment may consult with accredited representatives of workers and employers. (As amended by Section 32, Republic Act No. 6715, March 21, 1989).

Workers entitled to rights and benefits under the Labor Code. Article6. Applicability – xxx a l l workers, whether agricul tura l or non-agricul tura l .

Tripartism in Labor Relations

- State, Employee and Employer resolving a labor dispute. Cons ideration of la bor disputes as having far reaching developmental repercussions. NLRC, National Manpower and

Youth Council, Employees Compensation Commiss ion and Socia l Securi ty Commiss ion.

Compensation of Government Employees NOT covered by LC

- Congress determines compensation (Sec5, ArtIX-B, Consti ) - This includes GOCCs with origina l charters . (SSS, DBP,

PAGCOR, PNRC, Water Dis tricts , etc.) - No Origina l Charters – PNB, NHA,

Classes of Workers mentioned in the labor Code 1. Agricul tura l and non-agricul tura l workers 2. Apprentice, Learners and Handicapped workers provided

(Art. 59 to 81) 3. Manageria l employees (Art. 82 and 212)

4. Workers pa id by results (Art. 82 and 101)

5. Women, minors, househelpers and homeworkers (Art. 130 to 155)

6. Regular, casual and probationary employees (Art.280 and 281)

Classification of employments covered by the Labor Code

1. Nature of activi ties

a . Agricul tura l b. Non-agricul tura l (A6)

2. Nature of worker’s respons ibi l i ties a . Manageria l

b. Supervisory c. Rank-and-fi le (A82,212)

3. Method of determining the worker’s wages

a . Paid on time-bas is b. Paid by results (A97, 99, 101)

4. Importance of workers ’ functions to the bus iness or undertaking of the employer

a . Regular b. Casual (A280)

5. Period of employment a . for an indefini te period b. for a fixed term c. Project d. Speci fic undertaking e. Particular Season (A280) f. Probationary (A281)

Agricultural or Farm Worker - Is one employed in an agricul tura l or farm enterprise and

assigned to perform tasks which are di rectly related to the agricultural activities of the employer, such as cul tivation and ti l lage of the soi l , da irying, growing and harvesting of any

agricul tura l and horticul tura l commodities , the ra is ing of l ivestock or poultry and any activi ties performed by a farmer on a farm as an incident to or in conjunction with such farming operations .

Seasonal

1. Work Seasonal 2. Only for one season

Regular 1. Usually necessary or desirable in the usual business 2. Indefinite period of time

Casual 1. Not usually necessary or desirable in the business

Project Employment 1. Specific, particular project

Probationary 1. Stated in Contract or expressed that they are probationary

employee

Relationship of parties NOT determined solely on the terms of

agreement in Contract. – Also on the basis of the nature of the work peti tioner has been ca l led upon to perform.

Program Employees - Those whose skills, ta lents or services are engaged by the

s tation for a particular or specific program or undertaking and who are not required to observe normal working hours such that on some days they work for less than 8 hours and on other days beyond the normal work hours observed by s tation

LABOR LAW REVIEW


employees and are a l lowed to enter into employment contracts with other persons, stations, advertising agencies or

sponsoring companies . Should be under wri tten contract. “Work Pool” Employees

- Employees from which a company draws workers for deployment to i ts different projects. May be regular or project

employees .

“At least one year of service” in Art. 280 - Service within 12 months , continuous or broken, reckoned

from the date the employee s tarted working, including authorized absences and paid regular hol idays , unless the working days in the establishment as a matter of practice or

pol icy or that provided in the contract is less than 12 months , in which case sa id period shal l be cons idered one year.

- Performance of a job for at l east one year, even i f not continuous or intermittent, law deems as sufficient evidence of the necessity, i f not indispensability, of that activi ty to the bus iness of the employer.

Regular employees by nature of work

Regular employees by years of service

Performs activi ties which are necessary or des i rable in the

usual bus iness or trade of the employer regardless of their length of service.

Have been performing the job, not usual ly necessary or

des irable in the usual business or trade of the employer for at least a year.

Employment for an indefini te period.

Only as long as the activi ty they are engaged actual ly exis ts .

Probationary Employment

- Temporary employment s tatus . Employee terminable

anytime as long as such termination is made before the expiration of the 6-month probationary period.

- May only be terminated if: 1. For a just cause 2. When the employee fa i l s to qual i fy as a regular

employee in accordance with the reasonable standards made known to him by the employer at the start of his employment.

- Power to terminate subject to following conditions: 1. Exercised in accordance with specific requirements of

the contract

2. Dissatisfaction on the part of the employer must be rea l and in good faith, not prejudicial so as to violate the contract or the law

3. There must be no unlawful discrimination in the dismissa l .

- Burden of proof with the employer. Managerial, Supervisory and Rank-and-file Employees

Managerial Supervisory Rank-and-File

On who is vested

with powers or prerogatives to lay

down and execute management policies and/or hire, transfer,

suspend, lay-off,

Those, who in the

interest of the employer, effectively

recommend such managerial actions i f the exercise of such

authori ty i s not

Al l other employees.

reca l l , discharge, assign or discipl ine

employees .

merely routinary or clerical in nature but

requires the sue of independent

judgment. Has no right to sel f-

organization for purposes of col lective bargaining.

Has right. Has right.

CHAPTER III RECRUITMENT AND PLACEMENT OF

WORKERS

Recruitment and Placement - Any act of canvassing, enl i s ting, contracting, transporting,

uti l izing, hiring, procuring workers , and includes referra ls . Contact services, promising or advertis ing for employment, loca lly or abroad, whether for profit or not; provided, that any

person or entity which, in any manner, offers or promises for a fee employment to two or more persons shal l be deemed engaged in recrui tment and placement. (Art. 13(b))

- Number of persons dealt with is not an essentia l ingredient.

Even i f only one. - I l lega l i f no l icense.

Who can undertake recruitment and placement? - Only individuals or enti ties who have been issued the

appropriate “authori ty” or “l icense” can engage in or undertake recrui tment and placement.

Authority – document issued by the Secretary of DOLE authorizing a persons or association to engage in recrui tment and placement

activi ties as a private recrui tment enti ty. License – document issued to a person or entity to operate a private employment agency. Terms: Overseas or Migrant Filipino Workers – any person, 18 yars of age or above, as provided by RA 8042, who is to be engaged, or i s engaged,

or has been engaged in a remunerated activi ty in a s tate of which the worker i s not a lega l res ident.

Licensed Manning Agency – any person, partnership or corporati on duly l icensed by the Secretary to recrui t and deploy seafarers for mari time employment.

Placement Fee – amount charged by a private employment agency from a worker for i ts recrui tment and placement services , as prescribed by the Secretary.

- Shall not be charged unti l the employee has obta ined employment through the latter’s efforts or has actual ly

commenced employment. (Art32) Service Fee – amount charged by a licensee from i ts foreign principa l as payment for actual services rendered in relation to the recruitment and employment of workers .

Overseas Employment – employment of a Filipino worker outside the Phi l ippines , covered by a va l id contract. Valid Employment Contract – individual written agreement between

the principa l/employer and the worker based o n the master employment contract as approved by the POEA.

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Citizenship requirement for a person or entity engaged in the recruitment and placement of workers.

- Art. 27. Only Fi lipino ci tizens or corporations, partnerships or enti ties at least 75% of the authorized and voting capita l s tock of which is owned and controlled by Filipino ci ti zens .

Qualifications for overseas employment program

1. Fi l ipino ci tizens or corporations, partnerships or enti ties at least 75% of the authorized and voting capita l s tock of which i s owned and control led by Fi l ipino ci ti zens

2. Minimum capita l i zation P2M in case of a s ingle

proprietorship or partnership and a minimum paid -up capita l of P2M in case of corporations .

3. Those otherwise not disqualified by law or guidel ines to

engage in the recruitment or placement of workers abroad.

Not qualified to participate in recruitment and placement of workers abroad Section 2, Rule I, Part I I, Amended Rules and Regulation on Overseas Employment.

a . Travel agencies and sa les agencies of a i rl ine companies ; b. Officers or members of the Board of any corporation or

members in a partnership engaged in the business of a travel agency

c. Corporations and partnerships , when any of i ts officers , members of the board or partners, is also an officer, member of the board of partner of a corporation or partnership engaged in the bus iness of a travel agency;

d. Persons, partnerships or corporations which have derogatory records such as, but not limited to overcharging of placement

or documentation fees , fa lse documenta tion, i l lega l recrui tment and swindl ing or estafa , or those convicted of crimes involving moral turpi tude;

e. Persons employed in the Department or in other government offices directly involved in the overseas employment program, and their relatives within the fourth degree of consanguini ty or affini ty; and

f. Persons , partners , officers and Directors of corporations whose license has been previously cancel led or revoked for violation of the Labor Code, or i ts implementing rules, or other

relevant laws, decrees, rules and regulations, and issuances .

Philippine Overseas Employment Administration - Establ ished May 1, 1982, EO 797 - Charged with the implementation and enforcement of the

laws on recrui tment and placement. - Proceedings: Nonlitiguous and technica l i ties o f law and

procedure and the rules obtaining in the courts of law are not appl icable. Summary Nature of proceedings .

Direct Hiring of foreign employers of Filipinos banned.

- Article 18, LC. No employer may be hire a Fi l ipino worker for overseas employment except through the Boards or enti ties authorized by the Secretary of Labor. Direct hi ring

by members of the diplomatic organizations, international organizations and such other employers as may be allowed by the Secretary of Labor i s exempted from this provis ion.

Reasons for ban on Direct-Hiring:

1. Fi l ipino employee may not be assured of the best poss ible terms and conditions of employment.

2. Foreign employer must a lso be protected. Only hi res qual i fied Fi l ipinos .

3. Mandatory requirements for remittance to the Philippines of a portion of the worker’s foreign exchange earnings can eas i ly be evaded by a worker who is di rectly hi red.

Overseas Worker cannot refuse to remit his earnings to his

dependents and deposit the same in the country where he works to gain more interests. – Mandatory for OFW to remit a portion of their foreign exchange earnings to their dependents and/or beneficiaries in the country in accordance with the rules and regulations prescribed

by the Secretary of DOLE. Minimum requirements for contracts of employment of alnd-based

workers. 1. Guaranteed wages for regular work hours and overtime pay

2. Free transportation to and from the worksite or offsetting benefi t.

3. Free food and accommodations or offsetting benefi t. 4. Just/authorized causes for termination of the contract or of

the services of the workers taking into cons ideration the customs, traditions , norms, mores , practices , company pol icies and the labor laws and social legislations of the host country.

Nature of liability of the recruitment and placement agency and its principal.

- Jointly and severally liable with the principa l or foreign -

based employer for any of the violations of recrui tment agreement and contracts of employment.

Desertion

1. Seaman’s abandonment of duty by quitting ship, not only

without leave or permission but without justifiable cause, before termination of employment

2. With the intent of not returning to ship’s duty. o Penalties : dismissed by master for desertion;

Suspended by POEA for 3 years as a minimum penalty or Del is ted as a ma ximum penalty.

NLRC has jurisdiction over claims of overseas Filipino workers. – original and exclusive jurisdiction to hear case after 90 days from

fi l ing. Repatriation of Overseas Filipino Workers – primary responsibility of

the agency which recrui ted or deployed the worker overseas .

Amount and Form of remittance Seamen and mariners 80% bas ic sa lary

Workers of Fil ipino contractors and construction companies

70% bas ic sa lary

Doctors , engineers , teachers , nurses and other profess ional workers whose employment

contracts provide for free board and lodging

70% bas ic sa lary

Al l other profess ionals whose employment contracts do not provide free board and lodging

50% bas ic sa lary

Domestic and other service 50% bas ic sa lary

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workers

Al l other workers not fa l l ing under the aforementioned categories

50% bas ic sa lary

Prohibited practices Article 34 of the LC Illegal recruitment considered a crime of economic sabotage

- When committed by a syndicate or in a large sca le. - By a syndicate i f: carried out by a group of 3 or more

persons conspiring or confederating with one another in carrying out any unlawful or i llegal transaction, enterprise or scheme defined in Art38.

- In a Large Scale if: committed against 3 or more persons individual ly or as a group.

Illegal recruitment as a criminal offense

- (1) offender non-l icensee or non-holder of authori ty to lawful ly engage in the recrui tment and placement of workers ; and (2) offender undertakes any recrui tment activi ty defined in Art 13b of LC.

Purpose of surety bond required of recruitment agencies by the LC (Art. 31): Protection of Filipino ci tizens who are engaged in overseas

employment by foreign corporations . If rights violated, recourse would s ti l l be ava i lable to them.

Duration of License to recruit - Val id for 4 years from date of i s suance unless sooner

cancelled, revoked or suspended for violation of applicable Phi l ippine Law, rules and regulations and other pertinent i ssuances or i ts implementing rules and regulations .

(Sec6RuleIIPartIi , IRR) Transferability of license or authority

- Not a l lowed.

Enforcement of monetary award of the POEA

- Ini tially enforced against the cash and surety bonds fi led

with the POEA. - Appeal bond required in case of appeal to further insure

payment of the monetary award in favor of the employee. Amount of indemnity in case of pretermination of the employment

contract of the OFW - Ful l reimbursement of placement fee with interest at 12%

per annum plus sa laries for unexpired portion of his employment contract or for 3 months for every year of the unexpired term.

Employment of Aliens - Not prohibi ted - Prohibi ted only by Anti -Dummy Law (CA 108 aa PD 715)

when the employment of a l iens in establ ishements or

enti ties which have under their name or control a right, franchise, privilege, property, or bus iness the exercise or

enjoyment of which i s express ly reserved by the Consti tution or the laws to ci tizens of the Philippines or to corporations or associations at least 60% of the capita l i s

owned by such ci ti zens (national ized activi ties ).

Exceptions to prohibition against employment of aliens in entities engaged in nationalized activities.

1. Where secretary of Justice speci fica l ly authorizes the employment of technica l personnel

2. Where the aliens are elected members of the board of di rectors or governing body of corporations or associations in proportion to their allowable participation in the capita l

of such enti ties . Employment permit for non-resident aliens (NRA) (Article 40, LC)

1. May be issued upon determination of: The non-availability

of a person in the Philippines who is competent, able and wi l ling at the time of application to perform the services for which the a l ien i s des i red.

- For an enterprise regis tered in preferred areas of investment, permit may be issued upon recommendation of

the government agency charged with the supervis ion of sa id regis tered enterprise.

2. Non-resident a lien must bind themselves to tra in at least 2 Fi l ipino understudies for a period to be determined by the Secretary of DOLE. Understudies are hi red as regular employees to ensure actual transfer of technology.

Duration of employment permit Sec 7 Rule XIV Book I, IRR – subject to renewal showing good cause, sha ll be va lid for a minimum of 1 year s tarting from date of issuance, unless sooner revoked.

Reason: to protect local employment opportunities from invas ion of

foreigners .

CHAPTER IV HUMAN RESOURCE DEVELOPMENT Human Resource Development

- Refers to the process by which the actual and potentia l labor force i s made systematically to acquire greater knowledge, ski lls and capabilities for the nation’s sustained economic and socia l growth.

- Important because this wi l l produce ski l led and capable workers which have better opportunities fro employment. With such, industries can operate efficiently and continuously,

thus economic and socia l growth is assured. - Not l imited to tra ining workers to serve employers .

Entrepreneurship a lso covered.

Manpower – portion of population which has actual or potentia l

capability to contribute to the production of goods and services . How Manpower Development achieved?

- Primari ly through tra ining programs conducted by the Technica l Education and Ski l l s Development Board or by

private employers (learnership and apprenticeship), associations or civic groups .

TESDA

- Created by RA 7796. Replacing National Ma npower and Youth

Counci l, Bureau of Technical and Vocational Education and personnel and functions pertaining to technica l -vocational education offered by DECS and DOLE.

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Dual System Training – refers to system of qual i ty tehnica l and vocational education which requires tra ining to be carried out

a l ternately in 2 venues: School (theoretical) and in Production Plants (practica l ). Apprenticeship

- means practical training on the job supplemented by related

theoretical instruction involving apprenticiable occu pations and trades as may be approved by the Secretary of Labor.

Apprenticiable Occupations

- Officially Endorsed by a triparti te body and approved for apprenticeship by the TESDA.

1. requires for proficiency more than 3 months of practica l

tra ining on the job supplemented by theoretical instruction 2. only in highly technica l industries

Highly Technical Industries – engaged in appl ication of advanced technology. Compulsory? GR: Voluntary undertaking of employers EXPN:

1. when national security or particular requirements of economic development so demands, the Pres may require compulsory tra ining apprentices in certain trades or occupations , jobs or employment levels where shortage of tra ined manpower i s deemed cri tica l as determined by the DOLE Sec.

2. where services of a foreign technician are uti l i zed by private companies in apprenticiable trades, said companies required to

set-up apprenticeship programs. Incentives to employer

1. al lowed to pay apprentice 75% of minimum wage 2. al lowed additional deduction from taxable income of ½ of

the va lue of labor training expenses incurred for developing the productivi ty of apprentices .

- PROVIDED: (1) apprenticeship program recognized by the DOLE. (2) sa id deduction shal l not exceed 10% of di rect labor wage. (3) employer pays apprentices the minimum

wage. Apprentice without compensation

- If required by school or tra ining program curriculum or as a requis i te for graduation or board examinations .

Qualifications of an apprentice: 1. Be at least 15 years of age. Provided if 15 years of age but

below 18, may be eligible for apprenticeship only in non -hazardous occupations ;

2. Be phys ically fi t for the occupation he desires to be trained; 3. Possess vocational aptitude and capacity for the particular

occupation as established through appropriate tests ; and 4. Possess ability to comprehend and follow oral and wri tten

instructions .

Period: Sha l l not exceed 6 months .

Cause of Dismissal - After Probationary period of 1 month, the apprenticeship agreement may be terminated only for the fol lowing

causes : Sec25 Rule VI BookII, Implementing Rules

By the employer — (a) Habitual absenteeism in on-the-job tra ining and related

theoretica l instructions ; (b) Wi llful disobedience of company rules or insubordination to lawful order of a superior; (c) Poor phys ical condition, permanent disability or prolonged i llness which incapaci tates the apprentice from working;

(d) Theft or mal icious destruction of company property and/or equipment; (e) Poor efficiency or performance on the job or in the classroom for a prolonged period despite warnings duly given to the apprentice; and

(f) Engaging in violence or other forms of gross misconduct inside the employer's premises . By the apprentice —

(a) Substandard or deleterious working conditions within the employer's premises :

(b) Repeated violations by the employer of the terms of the apprenticeship agreement; (c) Cruel or inhuman treatment by the employer or his subordinates ; (d) Personal problems which in the opinion of the apprentice shal l prevent him from a satis factory performance of his job; and (e) Bad health or continuing i l lness . Hours of work of apprentice: sha l l not exceed the max number of hours of work prescribed by law, if any, for a worker of his age and sex. Entitlement to increase: Increase based on graduated scale of wages

included in the written program in the apprenticeship agreement. If there i s increase in statutory minimum wage, change shall l ikewise be

made in the wages of apprentices . Obligation of employer to employ after apprenticeship period:

None. Unless , apprenticeship agreement s tipulates otherwise. Learners

- Persons hired as trainees in semi-skilled and other industria l

occupations which are non-apprenticiable and which may be learned through practical tra ining on the job in relatively sh ort period of time which shal l not exceed 3 months (Art73,LC)

- Necessary to prevent curta i lment of employment opportunities and the employment does not create unfa ir

competition in terms of labor costs or impair or lower working s tandards .

- Must be approved by TESDA.

Apprenticeship Learnership

Must be approved by TESDA.

Apprentice/Learner may be paid wages 75% of applicable minimum wage.

- Duration may exceed 3 months - Duration may not exceed 3 months.

- No commitment to employ apprentices.

- Employer must make commitment to employ learners.

- Integrated circuit assembler, general maintenance mechanic

- Candle maker, office secretary, waiter

Handicapped Workers

- Those whose earning capacity is impaired by age or physical or mental deficiency or injury.

- One whose efficiency or quality of work i s impaired by his

disabi l i ty in relation to the work performed.

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- Disability must render them unqual i fied or unfi t for the tasks ass igned to them, otherwise qual i fied disabled

workers . - Determined by nature of work performed and not by

s tipulations in contract.

CHAPTER V HOURS OF WORK, REST PERIODS, HOLIDAY PAY, LEAVES and SERVICE CHARGES

Normal Hours of Work ART. 83. Normal hours of work. - The normal hours of work of any employee shall not exceed eight (8) hours a day. Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, "health personnel" shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologi sts, midwives, attendants and all other hospital or clinic personnel.

- Employers may reduce normal hours of work.

Hours Worked

- Compensable hours worked includes: (a) a ll time during which an employee is required to be on duty or to be at a prescribed workplace, and (b) a l l time during which an employee is

suffered or permitted to work. (Art.84) - Rest periods of short duration during working hours shal l be

counted as hours worked.

General Principles Sec 4 Rule I Book 3 IRR (a) Al l hours are hours worked which the employee is required to give his employer, regardless of whether or not such hours are spent in

productive labor or involve phys ica l or mental exertion. (b) An employee need not leave the premises of the work place in

order that his rest period shall not be counted, it being enough that he s tops working, may rest completely and may leave his work place, to go elsewhere, whether within or outside the premises of his work

place. (c) If the work performed was necessary, or i t benefi ted the

employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, a l l time spent for such work shall be considered as hours worked, i f the work was with the knowledge of his employer or immediate supervisor. (d) The time during which an employee is inactive by reason of interruptions in his work beyond his control sha l l be cons idered working time ei ther i f the imminence of the resumption of work

requires the employee's presence at the place of work or i f the interval is too brief to be uti l i zed effectively and ga inful ly in the employee's own interest.

Waiting Time Sec 5 Rule I Book II I , IRR

(a) Waiting time spent by an employee shall be considered as working time i f waiting i s an integra l part of his work or th e employee is

required or engaged by the employer to wait. (b) An employee who is required to remain on call in the employer's premises or so close thereto that he cannot use the time effectively

and gainfully for his own purpose shal l be cons idered as wo rking

whi le on call. An employee who is not required to leave word at his home or with company officia ls where he may be reached is not

working whi le on ca l l . Overtime Work and Compensation

- It i s work rendered in excess of and in addition to eight (8) hours on ordinary working days .

- An additional compensation equiva lent to an employees regular wage plus 25% thereof given for overtime work on an ordinary day. If overtime was done on a rest day or a hol iday, the additional compensation is equiva lent to the rate of the

fi rs t 8 hours plus at least 30% thereof. Overtime Pay vs. Premium Pay

Overtime Pay Premium Pay

Additional compensation for work done beyond the normal work hours on ordinary working

days .

Additional compensation for work rendered by the empl oyee on days normally he should not

be working such as specia l hol idays or rest days . Pay for excess of 8hours on such days

cons idered overtime pay. Reasons: Discourages employer from requiring such work and thus protect the health and wel l -being of the workers . Also tends to

remedy unemployment by encouraging employers to employ other workers to do what cannot be accomplished during normal working hours .

May an employee be compelled to render overtime pay?

GR: No. EXPNS: ARTICLE 89, LC – Emergency Overtime Work

(a) When the country i s at war or when any other national or loca l

emergency has been declared by the National Assembly or the Chief Executive; (b) When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending

emergency in the locality caused by serious accidents , fi re, flood, typhoon, earthquake, epidemic, or other disaster or ca lamity; (c) When there i s urgent work to be performed on machines ,

instal lations , or equipment, i n order to avoid serious loss or damage to the employer or some other cause of s imi lar nature;

(d) When the work i s necessary to prevent loss or damage to perishable goods ; and (e) Where the completion or continuation of the work s tarted

before the eighth hour is necessary to prevent serious obstruction or prejudice to the bus iness or operations of the employer.

Employees NOT entitled to Overtime Pay

1. Government Employees 2. Manageria l employees 3. Non-agricul tura l field personnel 4. Members of the family of the employer who ae dependent

upon him for support

5. Domestic helpers and persons in the personal service of another

6. Workers who are paid by results, such as piece-rate or task-basis.

Managerial Employees – employed by reason of their special training, expertise or knowledge and for posi tionz requiring the exercise of

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discretion and independent judgment. Va lue of work cannot be measured in terms of hours .

- Conditions : 1. Primary duty consists of management of the establishment

in which they are employed of a department or subdivision thereof

2. Customari ly and regularly di rect the work of 2 or more

employees . 3. Have the authority to hire or fi re other employees of lower

rank.

Field Personnel – employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined

with reasonable certa inty. Ex. Sa lesmen, col lector or credit investigators .

May undertime be offset by overtime work?

- No. The law express ly prohibi ts offsetting of undertime work and overtime work because employees in this case are not pa id the extra compensation they should be receiving for their overtime work. Art 88.

“Compressed Workweek”

- Generally observed work week of 6 days may be shortened to 5 days but prolonging the working hours from Monday to Friday without employer being obliged to pay overtimepay for work performed in excess of 8 hours on weekdays in

exchange of personal benefi ts . - Conditions :

1. Employees voluntari ly agree to work more than 8 hours a day but not more than the normal weekly hours of work prior to the adoption of the compressed

workweek. 2. No diminution of weekly or monthly take home pay

and fringe benefi ts . 3. Al l such work shall be compensated under the LC or

appl icable CBA. 4. Appropriate waivers with respect to overtime premium

pay for work performed in excess of 8 hours may be

devised. 5. Effectivity of the arrangement shall be by agreement of

the parties . - Report submitted to DOLE or nearest Regional Office not

later than 10 days of adoption of scheme.

Meal Periods

- Obl igation of employer to give employee not less than 60 minutes time for regular meals. Not compensable. Employees may leave company premises during meal periods .

Coffee Breaks – rest periods running from 5 to 20 minutes are included. Cons idered compensable working time. Meal period may be shortened to less than 1 hour:

1. Where work i s non-manual in nature or does not involve s trenuous phys ica l exertion

2. Where the establishment regularly operates not less than

16 hours a da y 3. In cases of actual or impending emergencies or there i s

urgent work to be performed on machineries, equipment or

installations to avoid serious loss which the employer would otherwise suffer

4. Where work i s necessary to prevent serious loss of perishable goods .

Night Shift Differential

- It i s that additional compensation of not less than 10% of an

employee’s regular wage for every hour worked done between 10:00pm to 6:00am, whether or not such period is part of the worker’s regular shi ft. (Art.86)

Employees NOT entitled to night shift differential 1. Government and any of its political subdivisions including

GOCCs

2. Those of reta i l and service establ ishments regularly employing not more than 5 workers

3. Domestic helpers and those in the personal service of another

4. Manageria l employees 5. Field personnel and other employees whose time and

performance are unsupervised by employer (contract basis, purely commission basis, paid fixed amount for performing work i rrespective of time consumed in the performance thereof).

Retail or Service Establishment Retail – one open to the genera l consuming publ ic for the sa le of goods that are commonly bought by end -users for personal or

household use. Service – predominantly in the sale of service to individuals for their

own or household use. Rest Day

- It i s a rest period of not less than 24 hours after every s ix consecutive normal work days. Obligation of employer to provide and schedule.

Employee may be required to work on his rest day:

Art 92 LC, Sec 6 Rule III Book III, IRR (a) In case of actual or impending emergencies caused by serious accident, fi re, flood, typhoon, earthquake, epidemic or other

disaster or ca lamity, to prevent loss of l ife or property, or in cases of force majeure or imminent danger to publ ic safety;

(b) In ca se of urgent work to be performed on machineries , equipment or installations to avoid serious loss which the employer would otherwise suffer;

(c) In the event of abnormal pressure of work due to specia l ci rcumstances, where the employer cannot ordinarily be expected

to resort to other measures ; (d) To prevent serious loss of perishable goods ; (e) Where the nature of the work i s such that the employees have to work continuously for seven (7) days in a week or more, as in the case of the crew members of a vessel to complete a voyage and in other s imi lar cases ; and (f) When the work is necessary to ava i l of favorable weather or

environmental conditions where performance or quality of work i s dependent thereon.

Additional Compensation if required to work on Rest day Rest day: Regular wage for the day + 30% thereof

Rest day & Special Non-Working Holiday: RW for the day + 50% thereof

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Rest day& Regular Holiday: 200% of RW for the day + 30% thereof

Regular Holidays - These hol idays are compensable whether worked or

unworked. (RA 9492) New Year’s Day – January 1 Maundy Thursday – Movable Date

Good Friday – Movable Date Eidul Fitr – Movable Date Araw ng Kagitingan – Monday nearest Apri l 9 Labor Day – Monday nearest May 1

Independence Day – Monday nearest June 12 National Heroes Day – Last Sunday of August Boni facio Day – Monday nearest November 30

Chris tmas Day – December 25 Riza l Day – Monday nearest December 30

Special Holidays Al l Sa ints ’ Day – November 1 Last Day of the Year – December 31 Ninoy Aquino Day – August 21 (R.A. 9256) Employees not entitled to Holiday Pay

1. Government and any of its political subdivisions including GOCCs

2. Those of reta i l and service establ ishments regularly employing less than 10 workers

3. Domestic helpers and those in the personal service of

another 4. Manageria l employees

5. Field personnel and other employees whose time and performance are unsupervised by employer (contract basis, purely commission basis, paid fixed amount for performing

work i rrespective of time consumed in the performance thereof).

1. What are the effects of absences on holiday pay? a. If an employee is on leave of absence with pay, he i s

enti tled to hol iday pay. b. If an employee is on leave of absence without pay on the

day immediately preceding the regular hol iday, he i s not

enti tled to hol iday pay. c. If the day immediately preceding the hol iday i s a non -

working day or the scheduled rest day of an employee, he is not cons idered to be on leave of absence on that day, in which case he shal l be enti tled to hol iday pay i f the

employee should work on the day immediately preceding the non-working day or rest day.

Service Incentive Leave

- The Labor Code provides a five -day service incentive leave with pay for employees who have rendered at least one year of service, continuous or broken. The SIL may be used as vacation or sick leave. If unused at the end of the year, this benefi t i s convertible to i ts cash equiva lent.

- A grant of vacation and s ick leave may be considered as the substi tute for SIL.

- Cause of action to recover SIL accrues from the moment the

employer refuses to remunerate its monetary equiva lent. - Avai lable to employees who have rendered at least one

year of service.

Employees not entitled to SIL 1. Government and any of its political subdivisions including

GOCCs 2. Those employed in establishments regularly employing less

than 10 workers 3. Domestic helpers and those in the personal service of

another

4. Manageria l employees 5. Field personnel and other employees whose time and

performance are unsupervised by employer (contract basis, purely commission basis, paid fixed amount for performing

work i rrespective of time consumed in the performance thereof).

6. Those who are a l ready enjoying the benefi t provided

7. Those enjoying vacation leave with pay of at least 5 days

When workers engaged on task or contract basis or paid purely on commission, entitled to SIL, if performance is supervised by employer and not considered field personnel. For purposes of SIL entitlement “at least one year of service” means

- Service within 12 months, continuous or broken, reckoned from the date the employee s tarted working, including authorized absences and paid regular holidays , unless the working days in the establishment as a matter of practice or pol icy or that provided in the contract i s less than 12 months, in which case said period shall be cons idered one year.

Vacation and Sick Leave Benefits cumulative and commutative

- Unless otherwise stipulated, leaves must be cla imed and enjoyed by the employee within the year; otherwise cons idered waived and forfei ted.

- General ly not convertible to cash. Nature of Sick Leave, Maternity Leave and Vacation Leave Benefits

- Replacements for regular income which otherwise would be earned because an employee is not working during the

period of said leaves . May be given in conjunction with other benefi ts .

Paternity Leave - Refers to benefits granting married male employees 7 days

leave with full pay on the condition that his spouse has del ivered a child or suffered miscarriage for purposes of enabling him to effectively lend support to hi s wi fe in her

period of recovery and/or in the nursing of the newly-born chi ld. If paternity leave is not availed of, i t is not convertible

to cash. Paternity leave may be availed of for each del ivery for the fi rs t 4 del iveries of his legi timate wife.

- May be ava iled of within 60 days from the del ivery of the wife.

Parental Leave

- Republic Act No. 8972 (An Act Providing for Benefi ts and

Privi leges to Solo Parents and Their Children, Appropriating Funds Therefor and for Other Purposes), otherwise known as “The Solo Parents ’ Welfare Act of 2000,” approved on

November 7, 2000 grants parental leave of not more than seven (7) days every year to any employee who has

rendered service of at least one (1) year. (Sec. 8, R.A. 8972)

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- Needs Solo Parents ID Card. If same i s provided by employer, considered parenta l leave. Not convertible to

cash. Note: Piece rate workers entitled to Night Shift Differentia l , Hol iday Pay, SIL and 13th month pay benefits. Not one of those prohibi ted.

Entitlement of employees to Service Charge Distributed as follows: 85% for a ll employees & 15% dispos i tion of management to answer for losses or breakages and dis tribution to manageria l employees at the discretion of manaegement.

- If abolished shall be deemed integrated to the wages of employees . Forms part of backwages of employees .

Service Charge – col lected by management from customers TIPS – voluntary payments made by the customers to the employees

for excel lent service.

CHAPTER VI WAGES Wage

a. i t i s the remuneration or earnings, however designated, for work done or to be done or for services rendered or to be rendered;

b. i t i s capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commiss ion bas is , or other method of ca lculating the same;

c. i t i s payable by an employer to an employee under a wri tten or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered; and

d. i t includes the fair and reasonable value, as determined by the Secretary of Labor and Employment, of board, lodging, or other

faci lities customarily furnished by the employer to the employee. “Fair and reasonable value” shal l not include any profi t to the employer, or to any person affi l iated with the employer.

Salary

- Recompense or cons ideration made to a person for his pains or industry in another man’s bus iness .

- May be agreed upon but must not be below minimum wage.

Basic Salary

- Rae of pay for a s tandard work period excus ive of such

additional payment as bonuses and overtime.

Gratuity pay – given to a beneficiary for the past service or favor given purely out of the generos i ty of the giver. Salary –payment for actual work rendered.

A fair day’s wage for a fair day’s labor

- Unless specifically required by law, contract or establ i shed pol icy, the employer is not bound to pay wages to a worker

who has nt actually rendered any service. Absent or only for a portion of the day.

- However, if employee is able, willing and ready to work but was illegally locked out, suspended or dismissed or illega l ly prevented from working, employer l iable to pay.

Purpose of Fixing Minimum Wage

- Benefits wage earners by providing a rock bottom wage to be paid to them by employers. Protection against swet shop

operators . - Protection to the employers who without legal compuls ion

pays a decent wage to his workers against the competi tion of the employer who pays his workers inadequate wages and thus operates at a lower cost or sel l his products at

lower price. Regional Tripartite Wages and Productivity Board

- Has power to fix minimum wage rates in their region,

provinces or industries therein and to i ssue wage orders subject to the guidelines issued by the National Wages and Productivi ty Commiss ion.

- May issue wage orders ordering the payment of wages above the mi nimum. REA 6727 a l lowed the Board to be

creative in resolving wage dis tortions . - If wage order without prior public hearing and consultations

and not publ ished, order nul l and void. Employers exempt from minimum wage law

- A duly regis tered Barangay Micro Bus iness Enterprise (BMBE). Tota l assets shall not be more than 3 mi l l ion. RA 9178)

Agricultural Employees 2 aspects

- Agricul tura l workers have di fferent minimum wage, so class i fication important.

Primary – purely agricul tura l

Secondary – practices performed by a farmer on a farm as an incident to or in conjunction with the farming operations .

Fixed Salary above minimum wage cannot be decreased even if decrease does not go below the minimum wage – this would resukt

to diminution of a benefi t that employer has voluntari ly given. Employers are prohibited from eliminating or diminishing benefi ts of supplements being enjoyed by his employee. (Art 100)

Facilities - “Facilities” shall include articles or services for the benefi t

of the employee or his family but shall not include tools of

the trade or articles or services primarily for the benefi t of the employer or necessary to the conduct of the employer’s

bus iness . - Value – Secretary of Labor from time to time fixes fa i r and

reasonable va lue of board, lodging, and o ther faci l i ties

customarily furnished by an employer to his employees both in agricul tura l and non-agricul tura l enterprise.

- Requirements: a. Must be customari ly furnished by the trade b. Employee voluntari ly accepts in wri ting c. Value is fa i r and reasonable

Examples: Meals, housing, fuel including electricity, water gas for the non-commercial use of employee; transportation; school ; medica l

and denta l service Not facilities: emergency denta l and medica l ; cost/ renta l and/or

laundry of uniform; shares of capital s tock, pa id vacation, s ick and maternity leaves, tools of trade or articles or services primarily for the

benefi t of the employer

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Supplements - “Supplements” means extra remuneration or specia l

privi leges or benefits given to or received by the laborers over and above their ordinary earnings or wages .

Supplements Facilities

Remuneration or special benefits given to employee

Items of necessary expense necessary for the laborer’s and his fami ly’s exis tence and

subs is tence. Not part of wage, thus cannot be

deducted.

Part of wages and are thus

deductible therefrom if they are not furnished.

Granted for the convenience of the employer.

Once given cannot be eliminated or diminished

Bonus

- Bonus” i s an amount granted and paid ex gratia to the

employee for his industry or loya l ty which contributed to the success of the employer’s business and made poss ible the rea l ization of profi ts .

- Hence, generally not demandable or enforceable. If there is no profi t, there may be no bonus. If profit is reduced, bonus

should likewise be reduced, absent any agreement making such bonus part of the compensation of the employees .

- However, may become part of regular compensation by

reason of i ts long and regular concess ion.

Amount of Bonus may be reduced - If grant is entirely dependent on profi ts . May not be given i f not employer cannot afford. Part of wage – GR: Gratuity or act of liberality which recipient has no right to demand. XPN: Part of wage i f employer promised without conditions for grant. Emergency Cost of Living Allowance (ECOLA) – now forms part of

regular wage under EO 178. 13th Month Pay

- PD 851 requires an employer to pay its employees receiving bas ic sa lary of not more than P1000, regardless of the

nature of the employment, a 13th month pay not later than December 24, every year, provided they have worked for at

least one month during the ca lendar year. “Thirteenth-month pay” shal l mean one-twel fth (1/12) of the basic salary of an employee within a ca lendar year.

- The “basic salary” of an employee for the purpos e of computing the 13th-month pay shal l include a l l remunerations or earnings pa id by the employer for services rendered but does not include a l lowances and monetary benefits which are not considered or integrated as part of the regular or bas ic sa lary, su ch as the cash

equiva lent of unused vacation and s ick leave credits ,

overtime, premium, night differential and holiday pay and cost-of-l iving a l lowances . However, these salary-related

benefits should be included as part of the basic salary in the computation of the 13th-month pay if by individual or collective agreement, company practice or policy, the same

are treated as part of the basic salary of the employees.

- To be paid only to rank and fi le employees . - Employers paying their employees a 13th month pay or i ts

equiva lent are not covered by PD851. Rule on Voluntary Grants

- Whatever the employer has granted to his employees as benefits and enjoyed by the latter for a considerable period

of time, cannot be unilaterally withdrawn by the employer. (Art. 100) They become part of the terms and conditions of employment and may only be withdrawn mutual ly.

Monthly-paid – one paid everyday of the month a l though he does not regularly work on his rest day or Sundays and/or regular holidays and specia l hol idays

Daily-paid – pa id on days he actual ly worked.

Wages of an employee paid by results - Should receive not less than the appl icable wage rates

provided for 8hours work a day. - Must be based on speci fic wage rates provided by the

Secretary of labor.

Piece Work Task Work

The s tress is placed on the unit of work produced, or the quanti ty

thereof; a uni form amount i s pa id per unit accompl ished.

Emphasis i s on the task i tsel f; payment i s not reckoned in

terms of the unit produced, but in terms of completion of the work.

Contracting and Subcontracting

- refers to arrangement whereby an employer known as the “principa l” agrees to putour or farm out with a contractor or subcontractor the performance or completion of a specific job, work,

service within a defini te or prede termined period, regardless of whether such job, work or service is to be performed or completed within or outs ide the premises of the principa l .

Labor-Only and Job Contractors Job Contracting - provides services

- Has substantia l capita l or investment i n the form of tools , equipment, machineries , work premises , among others , and the

workers recruited and placed perform activities directly related to the principa l bus iness of the employer.

- Job Contracting – Article 106 – Contractor/subcontractor

and principal shall be jointly and severally liable for unpaid wages .

- Deemed “indirect employer” - No E-E relationship between employee and principa l . - Tri lateral relationship – contractor, principa l , employee

Labor Only Contracting - provides manpower - Prohibited because gives rise to confus ion as to who are the rea l

employers of the employees . Deprives workers from being regularized and to acquire securi ty of tenure.

Presumption of Labor-Only Contracting - There i s presumption that i t i s labor-contracting i f i t does not

overcome the burden of proving i t has substantia l capitak, investment, tools and the l ike.

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Labor Only Job

Prohibi ted Legal ly recognized

Contractor does not have substantial capital or investment

Contractor has substantial capital and investment in the form of equipment, machinery nd work premises

Employees employed by principal Employee are i ts own.

Joint and several liability in job contracting - Not dependent on insolvency or unwillingness to pay. This is

to ensure ample protection to labor. Stipulations of non-existence of E-E relationship and relief liability clauses – val id i f employee hired not subject to principa l ’s control . Rights of contractual employees

a. Safe and healthful working conditions

b. Labor s tandards c. Socia l securi ty and wel fare benefi ts d. Sel f-organization, col lective bargaining and

peaceful concerted action; and e. Securi ty of tenure

Termination of Contractual Employee

Prior to expiration of contract – governed by termination of employment laws. Expiration of Contract – no payment of separation pay.

Workers preference for unpaid wages under Art 110 - Human beings must be treated above chattel, machineries ,

etc. - Condition: a declaration of bankruptcy or a judicia l

l iquidation must be present before the workers’ preference under Art 110 of the LC may be enforced. Employees have preferentia l right of credit.

- Does not create a l ien. - Only in cases of bankruptcy or judicia l l iquidation of the

employer. Form of wages

- Under the Labor Code and i ts implementing rules, as a general rule, wages shall be paid in legal tender and the use of tokens, promissory

notes, vouchers, coupons or any other form alleged to represent legal tender is prohibited even when expressly requested by the employee. (Art. 102) Goods as payment - Employer cannot be compelled by i ts employees to pay wages in goods. It has right to discharge wages in forms a l lowed by law.

Employee’s freedom to dispose of his wages should not be l imited. Employer cannot compel or obl ige his employees to purchase merchandise, commodities or other property from the employer.

(Art112)

Payments by checks, postal checks, money order 1. Bank facility within a radius of 1 ki lometer from bus iness 2. Employer receives no pecuniary benefi t from the

arrangement 3. Employees given reasonable time to withdra w during

banking hours

4. With wri tten consent of employees concerned i f no CBA - employer should have at least 25 employees .

How often paid

- GR: at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. No employer shall make payment with less frequency than once a month. The

exception to above rule i s when payment cannot be made with such regularity due to force majeure or ci rcumstances beyond the employer’s control, in which case, the employer shall pay the wages immediately after such force majeure or

ci rcumstances have ceased (Art. 103). Where paid

- GR, the place of payment shall be at or near the place of undertaking.

- The exceptions to this rule are: a . When payment cannot be effected at or near the place of

work by reason of the deterioration of peace and order conditions, or by reason of actual or impending emergencies caused by fi re, flood, epidemic or other ca lamity rendering payment thereat imposs ible;

b. When the employer provides free transportation to the employees back and forth; and

c. Under any other analogous circumstances, provided that the time spent by the employees in col lecting their wages shal l be cons idered as compensable hours worked. (Sec. 4 (a) Rule VIII Book III, Rules to Implement the Labor Code)

- Payment of wages in bars, massage clinics or nightclubs i s

prohibi ted except in the case of employees thereof. - Payment through banks are allowed in businesses and other

enti ties with twenty five (25) or more employees and located within one (1) kilometer radius to a commercia l , savings or rural bank. Written permission of the majori ty of

the employees i s a lso a requirement. Payment to be made to:

- GR: di rectly to the employee entitled thereto and to nobody else. (Art. 105)

- The exceptions to this rule are: a . Where the employer is authorized in writing by the employee

to pay his wages to a member of his fami ly;

b. Where payment to another person of any part of the employee’s wages i s authorized by existing law, including payments

for the insurance premiums of the employee and union dues where the right to check-off has been recognized by the employer in accordance with a collective agreement or authorized in wri ting by

the individual employees concerned; or c. In case of death of the employee, in which case, the same shall

be pa id to his heirs without necessity of intestate proceedings. Payrolls and time records

- Documents to be kept and maintained for three years from date of last entry by the employer in connection with the payment of wages

Claims for unpaid wages may be adjudicated by the DOLE regional director – provided summary proceeding and amount of wages to be recovered does not exceed P5,000 for each worker and no cla im for

reinstatement.

Wage Distortion

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- A s i tuation where an increase ing the prescribed rates results in the el imination 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 dis tinctions embodied in such wage structure based on ski l l s , length of service, or other logica l bases of di fferentiation.

- El imination of wage rate di fferentia l enough to show exis tence of wage dis tortion.

Correction of Wage Distortions

- Correction does not require return of the same di fferen ce. - Employer and Union wi l l negotiate. If there i s dispute,

resolved by a grievance procedure under the CBA. If

unresolved, voluntary arbi tration.

Burden of proving payment of monetary claims of employees rests with Employer - a l l documents are with him

CHAPTER VII Working Women and Minors WOMEN Rules governing nightwork of women employees Article 130, LC Art. 130. Nightwork prohibition. No woman, regardless of age, sha l l

be employed or permitted or suffered to work, with or without compensation:

a . In any industrial undertaking or branch thereof between ten

o’clock at night and s ix o’clock in the morning of the fol lowing day; or

b. In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and s ix o’clock in the morning of the fol lowing day; or

c. In any agricultural undertaking at nighttime unless she i s given a period of rest of not less than nine (9) consecutive hours .

Exceptions: Sec 5 Rule XI, Book II I Facilities Employers may be required to provide Article 132, LC

Art. 132. Facilities for women. The Secretary of Labor and Employment shall establish s tandards that will ensure the safety and

health of women employees . In appropriate cases , he shal l , by regulations , require any employer to:

a . Provide seats proper for women and permit them to use such

seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency;

b. To establish separate toilet rooms and lavatories for men and

women and provide at least a dress ing room for women; c. To establish a nursery in a workplace for the benefi t of the

women employees therein; and d. To determine appropriate minimum age and other standards

for reti rement or termination in special occupations such as

those of fl ight attendants and the l ike. Q: Are employers required to give maternity leave benefi ts to

employees?

A: No. Maternity leave benefi ts are to be paid to the SSS. The employers are obliged to contribute to SSS. However, i f by voluntary

practice or policy, the employer may bind i tsel f to give maternity leave benefi ts in addition to that provided by the SSS. Population Control Art. 134. Family planning services; incentives for family planning.

a . Establishments which are required by law to mai nta in a cl inic or infirmary shall provide free family planning services to their employees which shall include, but not be l imited to, the appl ication or use of contraceptive pi l l s and

intrauterine devices ; b. In coordination with other agencies of the gove rnment

engaged in the promotion of fami ly planning, the

Department of Labor and Employment shal l develop and prescribe incentive bonus schemes to encourage fami ly

planning among female workers in any establ ishment or enterprise.

Acts of employer discriminatory against women employees. Art. 135. Discrimination prohibited. It sha l l be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. The fol lowing are acts of discrimination:

a . 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 va lue; and

b. Favoring a male employee over a female employee with

respect to promotion, tra ining opportunities , s tudy and scholarship grants solely on account of their sexes .

Criminal liability for the willful commiss ion of any unlawful act as

provided in this Article or any violation of the rules and regulations i s sued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the insti tution of any criminal action under this provision shal l not bar the aggrieved

employee from filing an enti rely separate and dis tinct action for money claims, which may include cla ims for damages and other affi rmative reliefs . The actions hereby authorized shal l proceed

independently of each other. (As amended by Republic Act No. 6725, May 12, 1989)

Stipulation Against Marriage Art. 136. Stipulation against marriage. It sha l l be unlawful for an

employer to require as a condition of employment or continuation of employment that a woman employee shal l not get married, or to

s tipulate expressly or taci tly that upon getting married, a woman employee shall be deemed res igned or separated, or to actual ly dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. Reason: to give va l idi ty to such undertaking wi l l drive women employees to enter relationships without the benefi t of marriage.

Unmarried women who are pregnant may not be dismissed. Art. 137. Prohibited acts.

a . It sha l l be unlawful for any employer:

1. To deny any woman employee the benefits provided for in this Chapter or to discharge a ny woman employed by him

for the purpose of preventing her from enjoying any of the benefi ts provided under this Code.

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2. To discharge such woman on account of her pregnancy, or whi le on leave or in confinement due to her pregnancy;

3. To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.

+ If dismissal of women according to school pol icy not because of

there sex, dismissa l may be va l id. Ex. Al l -gi rl s school – protection of s tudents from unwholeso me influences .

Chua Qua vs. Judge Clave – If employee did not use her pos i tion to take advantage of her student for them to marry, Not va lid dismissa l .

- If the two fell in love despite the disparity in their ages ad

academic levels, this only lends substance to the truism that the heart has reasons of i ts own which reason does not

know. Yielding to this gentle and universal emotion is not to be casually equated with immorality. The deviation of the ci rcumstances of their marriage from the usual societa l pattern cannot be cons idered as a sdefiance of contemporary socia l mores .

Duncan Association of Detailmen-PTGWO et al vs. Glaxo Wellcome Phils. (2004) - Marriage between an employee and an employee of a competitor company may be ground of dismissa l . Cons id ers trade secrets, confidential programs and information from competi tors .

- Protection of economic interests of a bus iness in Consti tution.

Classification of certain women workers – cons idered employees

despite conditions in work Art. 138. Classification of certain women workers. Any woman who is permitted or suffered to work, with or without compensation, in

any night club, cockta i l lounge, massage cl inic, bar or s imi lar establishments under the effective control or supervis ion of the employer for a substa ntia l period of time as determined by the Secretary of Labor and Employment, sha l l be cons idered as an

employee of such establishment for purposes of labor and socia l legis lation.

Battered women employees are entitled to leave benefits Sec. 43, RA 9262 – victims under the law are entitled to paid leave of

absence of up to 10 days in addition to other paid leaves, extendible when the necess i ty arises as speci fied in the protection order.

Sexual Harrassment RA 7877 Sexual Harassment Act of 1995 Acts Constituting Sexual Harassment

Section 3. Work, Education or Training-Related, Sexual Harassment Defined. - Work, education or tra ining-related sexual harassment i s committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, tra inor, or any other person who, having authority, influence or moral ascendancy over another in a work or tra ining or education environment, demands, requests or otherwise requires any sexual favor from the

other, regardless of whether the demand, request or requirement for submiss ion is accepted by the object of sa id act.

(a ) In a work-related or employment environment, sexual

harassment i s committed when: (1) The sexual favor i s made as a condition in the

hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual

favorable compensation, terms of conditions, promotions , or privi leges; or the refusal to grant the sexual favor results

in l imiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect sa id employee;

(2) The above acts would impair the employee's

rights or privi leges under exis ting labor laws; or (3) The above acts would result in an intimidating,

hosti le, or offens ive environment for the employee. (b) In an education or tra ining environment, sexual

harassment i s committed: (1) Against one who is under the care, custody or

supervis ion of the offender;

(2) Against one whose education, tra ining, apprenticeship or tutorship i s entrusted to the offender;

(3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a s tipend, a l lowance or other benefi ts , privi leges , or cons ideration; or

(4) When the sexual advances result in an intimidating, hosti le or offens ive environment for the s tudent, tra inee or apprentice.

Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which i t would not have been committed, sha l l a lso be held l iable under this Act.

Q: Sexual Harassment a Sexual Offense? A: No. It i s an offense of dominance. Lewd designs of the offender i s

not required. Sexual Favor

- Act done or privi lege granted by the offended party by reason of his sex or her sex.

+ Discrimination against women employees not violation of Anti -

Sexual Harassment Act but a viol ation of Article 135, LC. + Sexual Harassment may be a ground for suspens ion .

Duties of the employer relative to the prevention or deterrence of

the commission of acts of sexual harassment Sec. 4, RA 7877

Q: May an employee be preventively suspended for sexual harassment cases pursuant to rules and regulations of the employer

which have not been publ ished? A: No. RA 7877 requires the publ ication of admin rules and regulations for their effectivi ty. Liabilities of an employer for sexual harassment (RA 7877) Section 5. Liability of the Employer, Head of Office, Educational or Tra ining Institution. - The employer or head of office, educational or

tra ining institution shall be solidarily liable for damages aris ing from the acts of sexual harassment committe d in the employment, education or training environment i f the employer or head of office,

educational or tra ining institution is informed of such acts by the offended party and no immediate action i s taken.

Section 6. Independent Action for Damages . - Nothing in this Act shall preclude the victim of work, education or training-related sexual

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harassment from instituting a separate and independent action for damages and other affi rmative rel ief.

Section 7. Penalties. - Any person who violates the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than Ten thousand pesos (P10,000) nor more than Twenty thousand pesos (P20,000), or both such fine and i mprisonment at the

discretion of the court. Any action arising from the violation of the provisions of this Act shall prescribe in three (3) years .

+ Secretary of Labor and Employment has the authori ty to approve pol icies fixing minimum age and other s ta ndards for reti rement or termination in special occupations such as those of flight attendants

and the l ike.

CHILDREN Conditions for the employment Section 12. Employment of Children. – Chi ldren below fi fteen (15) years of age may be employed except:

(1) When a child works directly under the sole respons ibi l i ty of his parents or lega l guardian and where only members of the employer's fami ly are employed: Provided, however, That his employment neither endangers his life, safety and health and morals, nor impairs his normal development: Provided, further, That the parent or legal guardian shall provide the said minor chi ld with the prescribed primary and/or secondary education; or

(2) When a chi ld's employment or participation in publ ic &

entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract concluded

by the chi ld's parent or guardian, with the express agreement of the chi ld concerned, i f possible, and the approval of the Department of Labor and Employment: Provided, That the following requirements in

a l l instances are s trictly compl ied with: (a) The employer shall ensure the protection, health, safety and

morals of the chi ld; (b) the employer shall institute measures to prevent the chi ld's

exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and;

(c) The employer shall formulate and implement, subject to the approval and supervis ion of competent authori ties , a continuing

program for tra ining and ski l l acquis i tion of the chi ld. In the above exceptional cases where any such chi ld may be

employed, the employer shall first secure, before engaging such child,

a work permit from the Department of Labor and Employment which shal l ensure observance of the above requirement.

The Department of Labor Employment shal l promulgate rules and regulations necessary for the effective implementation of this Section. Conditions for the employment of children below 15 years old und er RA 7658

1. When a chi ld works di rectly under the sole

responsibility of his parents or legal guardian and where only members of the employer’s family are employed…………….

Hours of Work of a working child

1. Chi ld below 15 – 20 hours / week; not a l lowed to work between 8 pm to 6 am

2. Chi ld 15, below 18 – 8 hours/day,max40 hours/week; not a l lowed to work between 10 pm to 6 am.

CHAPTER VIII HOUSEHELPERS AND HOMEWORKERS

Domestic or Household Service

- Service in the employer’s home which is usual ly necessary

or des irable for the maintenance and enjoyment thereof and includes minis tering to the personal comfort and convenience of the members of the employer’s household, including services of fami ly drivers . (Art.141)

Maximum period of contract of domestic service – 2 years (A142), may be renewed.

+ Househelpers should not be a llowed or suffered to work for more than 10 hours a day (A1695, Civi l Code)

Minimum Wage for Househelpers (Art. 143, LC RA 7655) Art. 143. Minimum wage.

a . Househelpers shall be paid the fol lowing minimum wage

rates : 1. Eight hundred pesos (P800.00) a month for

househelpers in Mani la , Quezon, Pasay, and

Caloocan cities and municipalities of Makati , San Juan, Mandaluyong, Muntinlupa, Navotas ,

Malabon, Parañaque, Las Piñas, Pas ig, Marikina, Va lenzuela, Taguig and Pateros in Metro Mani la and in highly urbanized ci ties ;

2. Six hundred fi fty pesos (P650.00) a month for those in other chartered ci ties and fi rs t-class

municipa l i ties ; and 3. Five hundred fi fty pesos (P550.00) a month for

those in other municipa l i ti es . Provided, That the employers shall review the employment

contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof.

Provided, further, That those househelpers who are

receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be enti tled to a l l the benefi ts provided thereunder. (As amended by Republic Act No. 7655, August

19, 1993)

Art. 144. Minimum cash wage. The minimum wage rates prescribe d under this Chapter shall be the basic cash wages which shall be pa id to the househelpers in addition to lodging, food and medica l attendance.

Other rights of a househelper Art. 146. Opportunity for education. If the househelper i s under the age of eighteen (18) years , the employer shal l give him or her an opportunity for at least elementary education. The cost of education

shall be part of the househelper’s compensation, unless there i s a stipulation to the contrary. Art. 147. Treatment of househelpers. The employer shal l treat the

househelper in a just and humane manner. In no case shal l phys ica l violence be used upon the househelper.

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Art. 148. Board, lodging, and medical attendance. The employer shall furnish the househelper, free of charge, suitable and sanitary l iving

quarters as wel l as adequate food and medica l attendance. Art. 149. Indemnity for unjust termination of services. If the period of household service i s fixed, nei ther the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed,

he or she shall be paid the compensation already earned plus that for fi fteen (15) days by way of indemnity. If the househelper leaves without justifiable reason, he or she shall forfei t any unpaid salary due him or her not exceeding fi fteen (15)

days . Q: May relationship be terminated without just cause?

A: Yes . But i t should be with notice within 5 days before intended termination.

Househelpers vs. Homeowrkers

- HH minis ters to the personal needs and confort of his employer in the latter’s home. HW performs in or about his own home any process ing or fabrication of goods or materials, in whole or in part, which have been furnished directly or indirectly, by an employer and thereafter sold or returned to the latter. (Art. 155)

Employers of Homeworkers Art. 155. Distribution of homework. For purposes of this Chapter, the "employer" of homeworkers includes any person, natural or artificia l

who, for his account or benefit, or on behalf of any person res iding outs ide the country, di rectly or indirectly, or through an employee,

agent contractor, sub-contractor or any other person: 1. Del ivers, or causes to be delivered, any goods , articles or

materials to be processed or fabricated in or about a home

and thereafter to be returned or to be disposed of or dis tributed in accordance with his di rections ; or

2. Sel ls any goods, articles or materia ls to be processed or fabricated in or about a home and then rebuys them after

such processing or fabrication, either by himself or through some other person.

CHAPTER IX MEDICAL AND DENTAL SERVICES AND OCCUPATIONAL: SAFETY

Q: Is the employer obliged to furnish his employees free medicines

and equipments as well as free medica l and denta l services and faci l i ties? A: Art. 165, LC

- Intended to provide immediate and necessary treatment in case of injury or sudden illness of the worker, whether the

same is work-connected or not before a more extens ive medica l and/or denta l treatment can be secured.

- Employers not obl iged to provide and spend for i ts continued or follow-up treatment unless i t has bound i tsel f

by contract or establ ished practice or pol icy. Free emergency medical, dental services and facilities

SECTION 4. Emergency medical and dental services. — Any employer covered by this Rule shall provide his employees medical and denta l

services and faci l i ties in the fol lowing cases and manner:

(a ) 10 to 50 workers - graduate first-aider shall be provided who may be one of the workers in the work place and who has immediate

access to the first-aid medicines prescribed in Section 3 of this Rule. (b) exceeds 50 but not more than 200 – the services of a ful l -time registered nurse shall be provided. However, if the work place is non -hazardous, the services of a full-time first-aider may be provided i f a nurse i s not ava i lable.

(c) exceeds 200 but not more than 300, the services of a ful l -time registered nurse, a part-time physician and a part-time dentis t, and an emergency cl inic shall be provided, regardless of the nature of the undertaking therein. The physician and dentist engaged for such work

place shal l s tay in the premises for at least two (2) hours a day; Provided, However, that where the establishment has more than one (1) work shift a day, the required two-hour s tay shal l be devoted to

the work shift which has the biggest number of workers and they shall, in addition to the requirements of this Rule, be subject to call at

any time during the other work shifts to attend to emergency cases . (d) Where the number of workers in a hazardous work place exceeds 300, the services of a full-time nurse, a full-time physician, a full-time dentist, a dental cl inic and an infirmary or emergency hospita l with one-bed capaci ty for every 100 workers shal l b e provided. The phys ician and dentist shall s tay in the premises of the work place for at least eight (8) hours a day; Provided, However, that where the work place has more than one (1) work shift a day, they shal l be at work place during the work shift which has the biggest number of workers and they shall be subject to call at anytime during the other work shifts to attend to emergency cases. Where the undertaking in such a work place is non-hazardous in nature, the employer may

engage the services of a part-time physician and a part-time dentis t who shall have the same responsibilities as those provided in sub -

section (c) of this Section, and shall engage the services of a full -time regis tered nurse. (e) In a ll work places where there are more than one (1) work shift in

a day, the employer shall, in addition to the requirements of this Rule, provide the services of a full-time first-aider for each workshift. (Rule I, Book IV, IRR)

Factors that make a workplace hazardous (a) Where the nature of the work e xposes the workers to dangerous environmental elements , contaminations or work conditions

including ionizing radiations, chemicals, fire, flammable substances , noxious components and the l ike.

(b) Where the workers are engaged in construction work, loggin g, fi re-fighting, mining, quarrying, blasting, s tevedoring, dock work, deep-sea fi shing and mechanized farming.

(c) Where the workers are engaged in the manufacture or handling of explos ives and other pyrotechnic products .

(d) Where the workers use or are exposed to heavy or power-driven machinery or equipment. (e) Where the workers use or are exposed to power-driven tools . (Sec. 8, Rule I, Book IV, IRR) When emergency hospital ot dental clinic not applicable SECTION 5. Emergency hospital. — An employer need not put up an

emergency hospital or dental clinic in the work place as required in these regulations where there i s a hospital or denta l cl inic which i s not more than five (5) ki lometers away from the work place i f

s i tuated in any urban area or which can be reached by motor vehicle in twenty-five (25) minutes of travel, if situated in a rural area and the

employer has facilities readily available for transporting a worker to the hospita l or cl inic in case of emergency: Provided, That the

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employer shall enter into a wri tten contract with the hospita l or dental clinic for the use thereof in the treatment of workers in case of

emergency. (Rule I, Book IV, IRR) Other duties of Doctor (a) Conduct pre-employment medical examination, free of charge, for the proper selection and placement of workers ;

(b) Conduct free of charge annual phys ica l examination of the workers ; (c) Col laborate closely with the safety and technical personnel of the establishment to assure selection and placement of workers from the

s tandpoint of phys ica l , mental , phys iologica l and psychologica l sui tability, including investigation of accidents where the probable causes are exposure to occupational health hazards ; and

(d) Develop and implement a comprehens ive occupational health program for the employees of the establishment. A report shal l be

submitted annually to the Bureau of Working Conditions describing the program established and the implementation thereof. (Sec. 9, Rule I, Book IV, IRR) Other obligations of employer in connection with health and safety of his employees

- The employer i s obliged to keep and maintain his workplace free from hazards that are causing or l ikely to cause phys ica l harm to the workers or damage to property. He must comply with the provisions of the Occupational Health and Safety Code. (Rule VI, Book IV, IRR)

Administration and enforcement of occupational safety and health laws

Art. 165. Administration of safety and health laws. a . The Department of Labor and Employment shal l be solely

respons ible for the a dminis tration and enforcement of

occupational safety and health laws, regulations and s tandards in a ll establishments and workplaces wherever they may be located; however, chartered ci ties may be a l lowed to conduct industrial safety inspections of establ is hments within their

respective jurisdictions where they have adequate facilities and competent personnel for the purpose as determined by the Department of Labor and Employment and subject to national

s tandards establ ished by the latter. b. The Secretary of Labor and Employment may, through

appropriate regulations , col lect reasonable fees for the inspection of s team boilers, pressure vessels and pipings and electrical installations , the test and approval for safe use of

materials, equipment and other safety de vices and the approval of plans for such materials, equipment and devices . The fee so

col lected shall be deposited in the national treasury to the credit of the occupational safety and health fund and shal l be expended exclusively for the administration and enforcement of safety and other labor laws administered by the Department of Labor and Employment.

CHAPTER X EMPLOYEES’ COMPENSATION PROGRAM AND STATE INSURANCE FUND

Employees’ Compensation Program - Fund establ ished through premium payments exacted f rom

employers and from which employees and their dependents in the

event of work-connected disabi l i ty or death, may promptly secure adequate income benefi ts and medica l or related benefi ts .

Characteristics of the ECP San Miguel Corporation vs . NLRC 1988

1. tax exempt; 2. des igned to ensure promptitude in cases of work-connected

disabi l i ty or death; 3. funded by monthly contributions of all covered employers ; 4. compulsory on a ll employers and their employees not over

60 years of age;

5. the benefits are exclusive and in place of a ll other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to receive damages on behal f of the

employee or his dependents ; 6. having i ts own adjudication machinery with origina l

exclusive jurisdiction to settle any dispute with respect to coverage, entitlement to benefits, collection and payments of contribution and penalties thereon, or any other matter related thereto, independent of other tribunals except the Supreme Court.

Subject to coverage

- Employers and their employees not over 60 years of age. - Employer and employees may be of the private sector or

the publ ic sector. Coverage takes effect

Employer – takes effect on the fi rs t day of operation Employee – takes effect on the fi rs t day of employment

Injury

- any harmful change in the human organism from any

accident arising out of and in the course of employment. (A167(k), LC)

Sickness

- i l lness definitely accepted as an occupational disease lis ted by the Commission or any i llness caused by employment, subject to proof that the ri sk of contracting the same is

increased by working conditions .

Occupational Disease - one which develops as a result of hazards peculiar to certain

occupations, due to toxic substances (as in the organic

solvents industry), radiation (a s in televis ion repairmen) repeated mechanica l injury, emotional s tra in, etc.

- Justi fication: every plant of the same industry i s a l ike constantly exposed to the danger of contracting a particular occupational disease.

Q: May a disease not l i s ted with the Employees Compensation Commiss ion as an occupational disease be compensable? A: Yes , as long as it can be established that the ri sk of contracting the

same is increased by working conditions . Theory of Increased Risk

- The risk of contracting the i l lness i s increased by working conditions .

- Requirement: Reasonable work-connection; Probabi l i ty not certa inty.

LABOR LAW REVIEW


Q: What defenses may be interposed by the State Insurance Fund

against a claim for compensation made by a covered employee or his dependents? A: The fol lowing defenses may be set up:

1. The injury i s not work-related or the s ickness is not occupational. 2. The disabi l i ty or death was occas ioned by the employee’s

intoxication, willful intention to injure or kill himself or another, of his notorious negl igence. (A172, LC)

3. No notice of sickness, injury or death was given to the employer. (A206, LC)

4. The claim was filed beyond 3 years from the time the cause of action accrued. (A201, LC)

Notorious Negligence - Is equivalent to gross negligence; i t i s something more than

carelessness or lack of foresight; it falls under the designation of evident and manifest negligence; i t signifies a deliberate act of the employee to dis regard his own personal safety.

Q: Can an injured worker or his heirs who opted and actual ly col lected from the State Insurance Fund, can they s ti l l mainta in as action for damages against the employer? A: No. The cla imant i s precluded from pursuing the a l ternative remedy, at least until the prior claim is rejected by the Compensation Commiss ion. Going and Coming Rule

- Is that in the absence of special circumstances, an employee injured while going to or coming from his place of work i s

excluded form the benefits of workmen’s compensation act. Exceptions:

1. where the employee is proceeding to or from hi s work on

the premises of his employer. 2. where the employee is about to enter or about to leave the

premises of his employer by way of the exclus ive or customary means of ingress or egress (proximity rule);

3. where the employee is charged, while on his way to or from his place of employment or at his home, or during this employment with some duty or specia l errand connected

with his employment; 4. where the employer as an incident of the employment

provides the means of transportation to and from the place of employment.

Persons entitled to benefits under the employees’ compensation program

- The covered employee, his dependents, and in case of his death, his beneficiaries .

Dependents

- means the legi timate, legi timated, lega l ly adopted or acknowledged natural child who is unmarried, not gainful ly employed, and not over 21 years of age or over 21 years of

age provided he is incapaci tated and incapable of sel f -support due to physical or mental defect which is congental or acquired during minority; the legi timate spous e l iving

with the employee wholly dependent upon him for regular support. (A167, LC)

Beneficiaries

- "Dependent" means the legitimate, legitimated or lega l ly adopted or acknowledged natura l chi ld who is unmarried, not

ga infully employed, and not over twenty-one (21) years of age or over twenty-one (21) years of age provided he is incapaci tated and incapable of self-support due to a physical or mental defect which i s congenital or acquired during minority; the legitimate spouse l iving with the employee and the parents of sa id employee whol ly

dependent upon him for regular support. Rules governing payment of death benefits to the beneficiaries Priority

1. Primary beneficiaries . They exclude others . 2. Secondary beneficiaries 3. No beneficiaries, death benefits shall accrue to the ECFund

Benefits Payable

- Primary - Enti tled to a monthly income benefit. Secondary – monthly benefit not to exceed 60 months and shall not be less than P15,000. (Rule XV of the ECC Rules ) Classification of benefits which may be enjoyed under the State Insurance Fund

1. Medica l Benefi ts 2. Disabi l i ty Benefi ts 3. Death Benefi ts 4. Funera l Benefi ts

Medical Benefits

Art. 185. Medical services. Immediately after an employee contracts s ickness or sustains an injury, he shal l be provided by the System

during the subsequent period of his disabi l i ty with such medica l services and appliances as the nature of his s ickness or injury and progress of his recovery may require, subject to the expense

l imitation prescribed by the Commiss ion. Art. 190. Rehabilitation services.

a . The System shall, as soon as practicable, establish a continuing program, for the rehabilitation of injured and handicapped

employees who shall be entitled to rehabi l i tation services , which shall consist of medical, surgical or hospital treatment, including appliances if they have been handicapped by the

injury, to help them become phys ica l ly independent. b. As soon as practicable, the System shal l es tabl ish centers

equipped and s taffed to provide a ba lanced program of remedial treatment, vocational assessment and preparation des igned to meet the individual needs of each handicapped

employee to restore him to suitable employment, including ass is tance as may be within i ts resources , to help each

rehabi l i tee to develop his mental , vocational or socia l potentia l .

Conditions of Entitlement to Medical Services

1. He has been duly reported to the System (SSS or GSIS) 2. He sustains a permanent disability as a result of an injury or

s ickness ; and

3. The System has been notified of the injury or s ickness which caused his disabi l i ty.

Disability Benefits - they are benefi ts in case of temporary tota l disabi l i ty,

permanent total disability and permanent partial disabi l i ty.

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Income Benefits Injury or

sickness resulting

in:

Daily

Income Benefit

Number of

Days

Temporary tota l

disabi l i ty

90% of average

dai ly salary; not less than P10 nor more

than P90

120 days except

where injury or s ickness s ti l l

requires medica l attendance

beyond 120 days but

not to exceed 240 from onset of disabi l i ty.

Permanent tota l disabi l i ty

Amount equal to monthly income benefi ts , plus 10% thereof for

each dependent

chi ld but not exceeding 5

from the youngest without substitution

.

Monthly income benefi t guaranteed for 5 years and shal l be

suspended i f the

employee is gainful ly employed

or recovers from his permanent tota l

disabi l i ty, or fa i l s to present

himsel f for examinatio

n at least once a year notice by

the System, except as

otherwise provided.

Permanent tota l disabi l i ty

Equal to permanent tota l disabi l i ty.

Total and permanent Disability Temporary total disability lasting continuously for more than 120 days except as otherwise provided by the Rules :

Complete loss of s ight of both eyes ; Loss of 2 l imbs at or above the ankle or wris t;

Permanent complete para lys is of 2 l imbs; Bra in injury resulting in incurable imbecility or insanity; and

Such cases as determined byt the Medica l Director of the System and approved by the Commiss ion. (Art. 192 (c), LC)

How long may the permanent partial disability income benefit be enjoyed? Art. 193 (b), LC The benefit shall be paid for not more than the period designated in

the fol lowing schedules : Complete and permanent No. of Months

loss of the use of

One thumb – 10 One index finger – 8 One middle finger – 6

One ring finger – 5 One little finger – 3

One big toe – 6 One toe – 3 One arm – 50

One hand – 39 One foot – 31

One leg – 46 One ear – 10 Both ears – 20

Hearing of one ear – 10 Hearing of both ears – 50 Sight of one eye - 25

Q: Permanent partia l disabi l i ty be converted to permanent tota l disabi l i ty after the employee’s reti rement? A: Yes . In line with the social justice provis ion in the Consti tution. Death Benefits Art. 194. Death.

a . Under such regulations as the Commission may approve, the System shall pay to the primary beneficiaries upon the death

of the covered employee under this Ti tle, an amount equivalent to his monthly income benefi t, plus ten percent

thereof for each dependent chi ld, but not exceeding five, beginning with the youngest and without substitution, except as provided for in paragraph (j) of Article 167 hereof:

Provided, however, That the monthly income benefit shal l be guaranteed for five years: Provided, further, That if he has no primary beneficiary, the System shal l pay to his secondary beneficiaries the monthly income benefi t but not to exceed

s ixty months : Provided, fina l ly, That the minimum death benefit shall not be less than fi fteen thousand pesos . (As amended by Section 4, Pres identia l Decree No. 1921)

b. Under such regulations as the Commission may approve, the System shall pay to the primary beneficiaries upon the death

of a covered employee who is under permanent tota l disabi l i ty under this Ti tle, eighty percent of the monthly income benefi t and his dependents to the dependents ’

pension: Provided, That the marriage must have been va l idly subsisting at the time of disability: Provided, further, That if he

has no primary beneficiary, the System shal l pay to his secondary beneficiaries the monthly pens ion excluding the dependents’ pension, of the remaining ba lance of the five -year guaranteed period: Provided, finally, That the minimum death benefit shall not be less than fifteen thousand pesos . (As amended by Section 4, Pres identia l Decree No. 1921)

c. The monthly income benefit provided herein shall be the new

amount of the monthly income benefi t for the surviving

LABOR LAW REVIEW


beneficiaries upon the approval of this decree. (As amended by Section 8, Pres identia l Decree No. 1368)

Conditions for entitlement to Death Benefits

1. The employee has duly reported to the System. 2. He died as a result of an injury or s ickness ; 3. The System has been duly notified of his death, as wel l as

the injury or s ickness which caused his death. How long are primary beneficiaries entitled to death benefits?

1. dependent spouse unti l he or she remarries ;

2. dependent children until they get married, or find ga inful employment, or reach 21 years of age;

3. in case of child suffering from phys ica l or mental defect,

when defect disappears .

+ If employee suffers disabi l i ty or di es before he i s reported, the employer wi l l be l iable for the benefi ts . Funeral Benefits.

- A funeral benefit of P10,000 shall be paid upon the death of a covered employee or permanently tota l ly disabled pens ioner.

When employer l iable to pay pena lty to State Insurance Fund Art. 200. Safety devices. In case the employee’s injury or death was due to the failure of the employer to comply with any law or to install and maintain safety devices or to take other precautions for the

prevention of injury, said employer shall pay the State Insurance Fund a penalty of twenty-five percent (25%) of the lump sum equivalent of

the income benefi t payable by the System to the employee. Al l employers, specially those who should have been paying a rate of contribution higher than required of them under this Ti tle, are

enjoined to undertake and strengthen measures for the occupational health and safety of their employees . Who are required to make contributions to the State Insurance

Fund? Contributions under this Title shall be pa id in their enti rety by the employer and any contract or device for the deductions of any

portion thereof from the wages or salaries of the employees shal l be nul l and void. (Art. 183, (c))

Art. 184. Government guarantee. The Republ ic of the Phi l ippine s guarantees the benefi ts prescribed under this Ti tle, and accepts general responsibility for the solvency of the State Insurance Fund. In

case of any deficiency, the same shall be covered by supplemental appropriations from the national government.

+ Jurisdiction over disputes under the ECP with respect to coverage, enti tlement to benefits, collection and payment of contributions and penalties or any other matter related thereto. Art. 180. Settlement of claims. The System shal l have origina l and exclusive jurisdiction to settle any dispute arising from this Title with respect to coverage, entitlement to benefits, collection and payment

of contributions and penalties thereon, or any other matter related thereto, subject to appeal to the Commiss ion, which sh al l decide appealed cases within twenty (20) working days from the submission

of the evidence. Rule 43, Section 1,3,4, 1997, Civ Pro

Section 1. Scope. — This Rule shall apply to appeals from judgments or fina l orders of the Court of Tax Appeals and from aw ards ,

judgments, final orders or resolutions of or authorized by any quas i -judicia l agency in the exercise of i ts quas i -judicia l functions .

Section 2. Cases not covered. — This Rule shal l not apply to judgments or fina l orders i ssued under the Labor Code of the Phi l ippines . (n) Section 3. Where to appeal. — An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner

herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. (n) Section 4. Period of appeal. — The appeal sha l l be taken within fi fteen (15) days from notice of the award, judgment, fina l order or

resolution, or from the date of its last publication, i f publ ication is required by law for i ts effectivi ty, or of the denia l of peti tioner's motion for new trial or reconsideration duly filed in accordance with

the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the

payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to fi le the peti tion for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fi fteen (15) days . (n) Q: When does right to compensation or benefi t for loss or impairment of an employee’s earning capaci ty due to work -related i l lness or injury arise? A: Arises or accrues upon, and not before, the happening of the

contingency.

Q: Does recovery from the State Insurance Fund bar a cla im for benefi ts under the SSS Law? Why?

- No. As express ly provided for in Article 173 of the LC,

payment under the State Insurance Fund does not bar recovery from SSS.

- Benefits under the SIF accrue to the employees concerned due to hazards involved and are made a burden on the

employment i tsel f. On the other hand, socia l securi ty benefi ts are pa id to SSS Members by reason of their membership therein for which they contribute their money

to a genera l fund. (Ma -ao Sugar Centra l vs . CA, 1990)

Note: Liberal attitude should be adopted in favor of the employee.

CHAPTER XI RIGHT TO SELF-ORGANIZATION Right to Self-Organization

- The right to form, join, or ass is t labor organi zations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection (Art. 246, LC)

Purpose: In a union there i s s trength. Orga nization of col lective

s trength for the protection of workers against the unjust exactions of the employer and for securing to i ts members fair and just wages and good working conditions .

Labor Organization - i s a union or association of employees which exists in whole or in

part for the purpose of col lective bargaining or deal ing with

LABOR LAW REVIEW


employers concerning terms and conditions of employment. (Art. 212 (e))

- “legitimate labor organization” if duly registered with the DOLE (Art. 212 (f))

Workers ’ Association - an association of workers for the mutual a id and protection of its

members or for any legitimate purpose other than col lective bargaining. (IR)

Independent Union

- labor organization operating at the enterprise level whose lega l personal i ty i s derived through an independent action for regis tration prescribed under Art. 234, LC. (IR)

Chartered Local

- Labor organization in the private sector operating at the enterprise level that acquired lega l personal i ty through the i ssuance of a charter certificate by a duly registered federation or national union, and reported to the Regional Office (IR)

Affiliate - refers to an independent union affi l iated with a federation,

national union or a chartered loca l , which was subsequently granted independent registration but did not disaffiliate from its federation, reported to the Regional Office and the Bureau.

National Union/Federation

- a group of legitimate labor unions in a private establ ishment organized for collective bargaining or for dealing with employees

concerning terms and conditions of employment for their member unions or for participating in the formulation of socia l employment policies, standards and programs, regis tered with

the Bureau (IR). Who are entitled to exercise right to self-organization Art. 243. Coverage and employees’ right to self-organization.

1. Al l persons employed in commercia l , industria l and agricultural enterprises and in religious, charitable, medical, or educational insti tutions , sha l l have the right to sel f -

organization and to form, join, or a ssist labor organizations of their own choos ing for purposes of col lective bargaining.

2. Ambulant, intermittent and itinerant workers, self-employed people, rura l workers and those without any defini te employers may form labor organizations for their mutual a id

and protection. (As amended by Batas Pambansa Bi lang 70, May 1, 1980)

Government Employees Sec. 8, Art. I I I and Sec. 2 (5), Art. Ix-b of the Consti tution. EO 180: Sec. 2. Al l govt employees can form, join or ass is t employees ’ organizations of their own choos ing for the furtherance and protection of their interests. They can a lso form, in conjunction with

appropriate govt authorities, labor-management committees , work counci ls and other forms of workers’ participation schemes to achieve the same objectives .

Sec. 3. High-level employees whose functions are normal ly cons idered as policy-making or managerial or whose duties are highly

confidential in nature shall not be eligible to join the organization of rank-and-fi le govt employees .

Sec. 4. This EO shall not apply to the members of the AFP, including pol ice officers , pol icemen, fi remen and ja i l guards .

Managerial and Supervisory Personnel Managerial – are not eligible to join, ass is t or form any LO. (A245) Supervisory – may join, assist or form LO of their own but not eligible for membership in a labor organization of the rank -and fi le

employees . Should managerial employees be entitled to form unions of their own?

- Yes . Al l workers have the right to sel f-organization. (Sec. 8, Article 3, Consti). Manageria l employees not disqual i fied by Consti from exercise of the right to sel f-organization.

IS Art 245 constitutional?

- No. Right to form unions should be only for purposes not contrary to law. In Art.245, there is rational basis for prohibi ting manageria l employees from forming labor organizations . – Evident confl ict of interest.

Managerial Supervisory

- vested with powers of prerogatives to lay down and execute management pol icies and/or hi re, transfer, suspend, lay-off, recall,

discharge, ass ign or dis cipline employees .

- those, who, in the interest of the employer, effectively recommend such management actions i f the exercise of such

authority is not merely routinary or clerica l in

nature but requires the use of independent judgment.

Note: case to case bas is . See i f “manager’s” or “supervisor’s” functions fi t the dis tinctions above.

Confidential Employees - One entrusted with confidence on delicate matters, or with

custody, handling, or care and protection of the employer’s

property. - Under the DOCTRINE OF NECESSARY IMPLICATION,

confidential employees are s imilarly disqualified. (NATU vs . Torres , 1994)

- Qual i fy: Confidentia l employees WITH ACCESS to labor

relations documents. (SMC supervisors and Exempt Union vs . Laguesma, 1997)

Shop Steward

- Appointed by the union in a shop, department, or plant and serves as representative of the union, charged with negotiating and adjustment of grievances of employees with the supervisor of the employer.

- Part of continuous process of grievance resolution designed

to preserve and maintain peace among the employees and their employer.

Q: May a l iens join labor unions in the Phi l ippines? A: General Rule: No, they are prohibi ted under Art. 269 of the LC.

However, under the same article as amended by 6715, a liens working in the Philippines with va lid permits issued by the DOLE may exercise

LABOR LAW REVIEW


the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining; provided,

that said a liens are nationals of a country which grants the same or s imi lar rights to Fi l ipino workers . Trade Union Activities

a. "Trade union activi ties" shal l mean:

1. organization, formation and adminis tration of labor organization;

2. negotiation and adminis tration of col l ective bargaining agreements ;

3. al l forms of concerted union action; 4. organizing, managing, or assisting union conventions, meetings ,

ra l l ies , referenda, teach-ins , seminars , conferences and

insti tutes ; 5. any form of participation or involvement in representation

proceedings, representation elections, consent elections , union elections ; and

6. other activities or actions analogous to the foregoing. (Art. 270) + Employees of a Cooperative may join labor unions , except employees who are members of the cooperative. Members are cons idered owners and an owner cannot bargain with himsel f or his co-owners . Features of the Labor Code that protect and strengthen labor unions Provisions on:

a. unfa ir labor practice (A248)

b. right of labor organizations to prescribe their own rules with respect to the acquisition or retention of membership therein

(A249) c. recognizing the validity of closed shop, union shop and other

union securi ty arrangements (A248(e))

d. authorizing deductions or check-offs from the wages of an employee for union dues (A113(e))

e. al lowing the impos ition of an agency fee (A248(e)) f. prohibiting abridgment of the right to self-organization (A246)

Legal Personality Labor Organization - Upon issuance of the certificate of regis tration

(Art. 234, LC) Chapter/Local of a federation or national union – becomes a

legitimate labor organization upon submiss ion to the BLR of i ts charter certificate, constitution and by-laws, a statement on the set of officers and the books of accounts .

Purpose of registration

- A condition s ine qua non for the acquis i tion of lega l personality by labor organizations, association or unions , and the possession of the rights and privi leges granted by law to legi timate labor organizations .

- To protect labor and publ ic from those who pose as organizers , a l though not truly accredited agents of the union they purport to represent.

Requirements for the registration of Independent Union and of Federation and National Union

(Sec 2, Rule II I , Book V, IRR. As amended by DO 40-03)

Chapter – No minimum

Independent Union – 20%. (def: does not depe nd on a charter; regis tered for and by employees themselves)

Requirements for chartering/creation of a local chapter (Art. 234-A, LC as amended by RA 9481) Trade Union Center

- any group of regis tered national unions or federations organized for the mutual a id and protection of its members; for assisting such members in collective bargaining; or for participating in the formulation of socia l and economic

pol icies, standards, and programs and is duly regis tered with the DOLE.

- Under LC IRR and RA 9481, effective June 14, 2007, a trade

union is not among those that can charter a chapter or loca l .

Union registration requirements Formal requirements

- must be strictly complied with; otherwise no personal i ty. - Consti tution, by-laws and list of members must be attested

to by union pres ident - Accounting books must be submitted

Reason for Strict Compliance

- because legi timate labor organizations are enti tled to specific rights under the LC and are involved in activi ties di rectly affecting matters of publ ic interest. (ri ght to be

certi fied as the exclus ive representative of a l l the employees in an appropriate bargaining unit; right to fi le

peti tion for certification election; - these depend on a labor organization atta ining the s tatus of LLO)

+ Legal personality of LO ca nnot be subject of collatera l attack. Only through a separate action instituted particularly for the purpose of assa i l ing sa id lega l personal i ty.

Principles relative to the right of a local union to disaffiliate from its mother federation - Being a separate and voluntary association, is free to disaffiliate

when ci rcumstances warrant. This right i s cons is tent with the consti tutional guarantee of freedom of association.

- Technical rules to disaffiliate cannot rise above the fundamental right to sel f-organizati on.

- Generally, 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 the expiration of the

CBA. Exception: before onset of freedom period (and despite close-shop provision in the CBA between the mother-union and the mgmt) disaffiliation may be carried out, but such must be effected by a majority of the members in the bargaining unit. This happens when there is a substantial shi ft in a l legiance on the part of the majority or the members of the union. In such a case, CBA s till binds the members of the new or disaffiliated and

independent union up to the CBA’s expiration date. Essence of Affiliation

- to increase, by collective action, the common bargaining power of local unions for the effective enhancement and

protection of their interests. (Philippine Skylanders , Inc. vs . NLRC, 2002)

LABOR LAW REVIEW


+ Rank and file union and supervisors ’ union may join the same

federation or national union. (Art. 245 as amended by 9481.) Effect of the registration of a Labor Organization a. To act as the representative of i ts members for the purpose of col lective bargaining;

b. To be certi fied as the exclusive representative of a ll the employees in an appropriate bargaining unit for purposes of col lective bargaining; c. To be furnished by the employer, upon wri tten request, with i ts

annual audited financial s tatements, including the balance sheet and the profit and loss statement, within thi rty (30) ca lendar days from the date of receipt of the request, a fter the union has been duly

recognized by the employer or certi fied as the sole and exclus ive bargaining representative of the employees in the bargaining unit, or

within sixty (60) ca lendar days before the expiration of the exis ting col lective bargaining agreement, or during the collective bargaining negotiation; d. To own property, real or personal, for the use and benefi t of the labor organization and i ts members ; e. To sue and be sued in i ts regis tered name; and f. To undertake a l l other activi ties des igned to benefi t the organization and i ts members , including cooperative, hous ing, wel fare and other projects not contrary to law. g. To be free with respect to i ts income and the properties of legitimate labor organizations, including grants, endowments , gi fts , donations and contributions they may receive from fraternal and

s imilar organizations, local or foreign, which are actually, di rectly and exclusively used for their lawful purposes, sha l l be free from taxes ,

duties and other assessments. (As amended by Section 17, Republ ic Act No. 6715, March 21, 1989). h. To fi le a notice of s trike in behal f of i ts members on grounds of

unfa ir labor practices, in the absence oa a duly certified or recognized bargaining representative. (Art. 263, LC) i . To col lect reasonable membership fees, union dues , assessments and fines and other contributions for labor education and research,

mutual death and hospitalization benefits, welfare fund, s trike fund and credit and cooperative undertakings. (As amended by Section 33, Republ ic Act No. 6715, March 21, 1989).

Q: May an employee be compel led to be a member of a labor

organization? A: No. right to self-organization includes the freedom not to join a union. EXCPT: closed-shop clause in CBA.

Q: May an employer as a condition for employment that the applicant

shal l not join a labor organization? A: No. Such is in the nature of a “yellow dog contract” and constitutes unfa ir labor practice. Interference on the right to sel f-organization. Rights of membership in a labor organization Magna Carta of Employees against a Union (a) Right against imposition of arbitrary or excessive ini tiation fees ,

fine and forfei ture be imposed; (b) Right to ful l and deta i led reports from their officers and representatives of all financial transactions as provided for in the

consti tution and by-laws of the organization; (c) Right to directly elect their officers, including those of the national

union or federation, to which they or their union is a ffi l iated, by secret ba l lot at interva ls of five (5) years .

(d) The members shal l determine by secret ba l lot, a fter due del iberation, any question of major pol icy affecting the enti re

membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractica l , in which case, the board of directors of the organization may make the decis ion in behal f of the genera l membership; (e) Right to inspect during office hours the books of accounts and

other records of the financia l activi ties of the organization. (f) Right to be informed about the provis ions of the organization’s consti tution and by-laws, col lective bargaining agreement, the prevailing labor relation systems, as well as rights and obl igations

under exis ting labor laws. (g) Right to report to the Bureau of Labor Relations any violation of the rights and conditions of membership.

Q: Expulsion of union officers for violation of 242. Instead of deciding

the case, the med-arbiter ordered holding of referendum among union members to decide issue of expuls ion. Is med-arbiter action correct? A: No. Q: What i f offices sought to be expel led get re -elected? A: The re-election indicates that the members have dis regarded or have forgiven their faul ts or misconduct. Check-off

- process or device whereby the employer, on agreement with the union recognized as the proper bargaining

representative, or on prior authorization from i ts employees, deducts unions dues or agency fees from the

latter’s wages and remits them directly to the union. - When a l lowed, LO is assured of continuous funding.

General Rule: Fees and assessments due the union cannot be deducted from his wages or other amounts due him without his individuals wri tten authorization. Exceptions:

1. for union dues in case where the right to set-off has been recognized by the employer

2. for reasonable assessments in connection with mandatory

activi ties such as labor education and research and labor relations . (Art. 241 (o))

Union Service Fee – payment for appearances in labor proceedings . Al lowed to be col lected.

Note however: Article 222, Article 111 Art 222 - No attorney’s fees, negotiation fees or similar charges of any

kind aris ing from any col lective bargaining agreement shal l be imposed on any individual member of the contracting union: Provided, However, that attorney’s fees may be charged against union funds in an amount to be agreed upon by the parties . Any contract, agreement or arrangement of any sort to the contrary shal l be null and void. (As amended by Presidential Decree No. 1691, May 1, 1980)

Art. 111. Attorney’s fees. a . In cases of unlawful withholding of wages , the culpable

party may be assessed attorney’s fees equiva lent to ten

percent of the amount of wages recovered. b. It shall be unlawful for any person to demand or accept, in

any judicial or administrative proceedings for the recovery

LABOR LAW REVIEW


of wages, attorney’s fees which exceed ten percent of the amount of wages recovered.

Rules in collection and disbursement of funds of a labor organization g. No officer, agent or member of a labor organization shall col lect

any fees, dues, or other contributions in i ts behal f or make any disbursement of its money or funds unless he is duly authorized pursuant to i ts consti tution and by-laws;

h. Every payment of fees, dues or other contributions by a member

shall be evidenced by a receipt s igned by the officer or agent making the col lection and entered into the record of the organization to be kept and mainta ined for the purpose;

i . The funds of the organization shal l not be appl ied for any purpose or object other than those express ly provided by i ts

consti tution and by-laws or those express ly authorized by wri tten resolution adopted by the majority of the members at a genera l meeting duly ca l led for the purpose;

j. Every income or revenue of the organization shall be evidenced by a record showing i ts source, and every expenditure of i ts funds shall be evidenced by a receipt from the person to whom the payment i s made, which shal l s tate the date, place and purpose of such payment. Such record or receipt shall form part of the financia l records of the organization.

k. Any action involving the funds of the organization shall prescribe after three (3) years from the date of submission of the annual financial report to the Department of Labor and Employment or

from the date the same should have been submitted as required by law, whichever comes earlier: Provided, That this provis ion

shall apply only to a legitimate labor organization which has submitted the financial report requirements under this Code: Provided, further, that fa i lure of any labor organization to

comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder s ix (6) months after the effectivi ty of this Act shall automatically result in the cancel lation of uni on regis tration of such labor

organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989)

l . The treasurer of any labor organization and every officer thereof

who is responsible for the account of such organization or for the col lection, management, disbursement, custody or control of

the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of a l l moneys received and paid by him s ince he

assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the

organization entrusted to his custody or under his control . The rendering of such account shal l be made: 1. At least once a year within thirty (30) days after the close of i ts fi sca l year;

2. At such other times as may be required by a resolution of the majori ty of the members of the organization; and 3. Upon vacating his office.

The account shall be duly audited and verified by affidavit and a copy thereof shal l be furnished the Secretary of Labor.

Special Assessments Requis i tes :

1. authorization by a wri tten resolution of the majori ty of a l l members at the general membership meeting duly ca l led

for the purpose. 2. secretary’s record of the minutes of the meeting; 3. individual wri tten authorization for check-off duly s igned by

the employee’s concerned.

Note: Specia l Assessments vs . Union Dues Technical Requirements or formalities in relation to election of union officers does not invalidate election – as long as i t does not

appear that such failure resulted in the deprivation of any substantial right or prerogative of anyone, or caused the perpetration of fraud or other serious anomaly, or preclude the expression and ascertainment

of the popular wi l l in the choice of officers .

Constitution and by-laws of labor unions - Trade unions have the right to adopt constitutions , rules or by-

laws within the scope of their lawful purposes , and bind their members thereby. To be va lid, the provisions in the constitution and by-laws must be reasonable, uni form and not contrary to publ ic pol icy or the law of the land.

- Consti tute a contract between the union and i ts members . - Must be ratified by the majority of the members at the time of

i ts adoption. - Must contain a definite procedure for settling internal disputes Binding effect of the union’s constitution and by-laws on union

member - on joining a union, the constitution and the by-laws become part

of the member’s contract of membership under which he agrees to become bound by the Constitution and governing rules of the union so far as i t not inconsistent with controlling principles of

law. Q: May a union be compel led to admit a person as a member? A: No person has an absolute right to membership in a trade union;

genera l ly, a union has the right to select i ts members . + A union can sue on behalf of i ts members for their individual money

cla ims. It would be an impairment of the right to sel f-organization through the formation of labor associations i f thereafter such

col lective entities would be barred from insti tuting actions in their representative capaci ty. (La Carlota Sugar Centra l vs CIR, 1975)

+ An action brought through a labor union on behal f of a number of employees should not be dismissed on the ground that the labor

union has lost interest to pursue the case. The labor union has not so great material interest in the controversy as would prejudice it in the event of dismissa l . (La Campana Food Products vs . CIR, 1969) + Waiver of the right of the union member to reinstatement pursuant to an NLRC decision i s a personal right which must be exercised personal ly by the workers themselves . (Jag vs NLRC, 1995)

Q: When may employee’s money cla ims against the employer be settled through the union?

A: individual consent of the employee concerned should fi rs t be procured. Because personal right which must be protected.

Right of union to sue in representative capacity/ Representative Suit

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(Art. 242, (e))

+ Liberty Manufacturing Workers Union vs. CFI (1972) – Art 242 authorizes a union to file a “representative suit” for the benefit of i ts members in the interest of avoiding an otherwise cumbersome procedure of joining all union members in the complaint, even if they number by the hundreds .

Grounds for Cancellation of Union Registration (a) Misrepresentation, false statement or fraud in connection with the adoption or rati fication of the consti tution and by-laws or

amendments thereto, the minutes of rati fication and the l i s t of members who took part in the rati fication; (b) Misrepresentation, false s tatements or fraud in connection with

the election of officers, minutes of the election of officers, the l i s t of voters .

(c) Voluntary dissolution by the members . Q: May the union cancel i ts regis tration? A: Yes . Art. 239-A of LC provides: the registration of a legitimate labor organization may be cancelled by the organization i tsel f: Provided, that at least 2/3 of i ts general membership votes, in a meeting duly ca l led for that purpose to dissolve the organization: Provided, fu rther, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the pres ident thereof. + Inclusion as union member employees outside the bargaining unit not a ground to cancel the union’s regis tra tion – No. Under 245-A,

such members are merely automatica l ly removed from the l i s t of membership of sa id union. To prevent di latory purposes .

Q: Who may order cancellation of union’s certificate of regis tration? A: Regional director (Chartered local) or Bureau Director (federations,

national or industry unions and trade union centers ) subject to requirements of notice and due process upon filing of an independent compla int or peti tion for cancel lation.

Effect of cancellation of registration - i t loses rights under the Labor Code.

Grounds for expulsion of union members 1. For causes specified in the union’s constitution and by-laws

provided the same are not arbi trary, unreasonable or contrary to law or public policy and the member i s accorded a fa i r hearing. (Note: Must be for some just and serious

grounds). 2. Participation in any i rregulari ty in the approval of a

resolution authorizing payment of compensation to union officers .

Q: As of what time is an individual cons idered an amployee for purposes of membershi p in a labor union? A: Art. 277 (c) of LC: (c) Any employee, whether employed for a defini te period or not,

sha ll, beginning on his fi rs t day of service, be cons idered as an employee for purposes of membership in any labor union. (As amended by Section 33, Republ ic Act No. 6715).

Union Loyalty

- Loyalty i s necessary to obta in the ful l extent the union’s cohesion and integri ty. As an act of loya l ty a union may

certa inly require its members not to affiliate with any other labor union and to consider i ts infringement as a reasonable

cause for separation. (Ang Tibay). Right to self-preservation. Donations, Assistance, etc. given by foreign individuals, orgs and entities for support of trade union activities - Labor orgs, employers or employers’ orgs cannot receive directly

or indirectly any donations, grants or other forms of ass is tance given by foreign individual, organization or enti ty in relation to or in support of trade union activities without prior permiss ion from the DOLE (A270).

Industrial Peace – respons ibi l i ty of both employer and labor organization

Labor Management Committees – may be formed voluntari ly by

workers and employers for the purpose of promoting industrial peace (A277 (h), LC) Visitorial Power of Secretary of Labor and Employment ART. 274. Visitorial power. - 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 fi l ing of a complaint under oath and duly supported by the wri tten consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compl iance or non -compl iance with the law and to prosecute any violations of the law

and the union constitution and by-laws: Provided, That such inquiry or examination shal l not be conducted during the s ixty (60) -day

freedom period nor within the thirty (30) days immediately preceding the date of election of union officia ls . (As amended by Section 31, Republ ic Act No. 6715, March 21, 1989).

Inter-union and Intra-union Conflicts – Art. 226 provides that BLR and the Labor Relations Divisions in the regional office have origina l and exclus ive jurisdiction

GR: Rule on exhaustion of adminis trative remedies . XPN:

1. Violation of due process 2. No charge prior to indefini te suspens ion.

Powers of Bureau of Labor Relations

1. May exercise vis i toria l power in A274 i f the matters of

examination of union accounts i s endorsed to ti by the DOLE Secretary.

2. Independent of delegation, BLR can conduct examination of union accounts under Sec 16, Chapter 4, Ti tle VII, Book IV of Admin Code – set policies, s tandards and procedures on the examination of financia l records of accounts of labor organizations .

3. Art.226 of LC, a l lows BLR to decide intra-union disputes.(ex. Examination of the financia l records of the union)

Authority of BLR over union litigation expenses

- Clothed with authori ty to rule, motu propio, on the

propriety of litigation expenses a l leged ly incurred by a union.

Procedure for registration of unions of government employees

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EO 180, Sec. 7 and 8

CHAPTER XII CERTIFICATION ELECTION

Certification Election - Refers to the process of determining through secret ba l lot the

sole and exclus ive repres entative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation.

- Different from Consent Elections . Certi fication Elections i s ordered by DOLE. Consent Election is voluntary agreed upon by

the parties, with or without the intervention by the Department. (Sec. 1 (h), Rule I, Book V, IRR)

Nature of Certification Elections - fa i rest and most effective way of determining which labor

organization can truly represent the working force. - Not a l i tigation in the sense i n which this term is commonly

understood; it i s a mere investigation of non -adversary fact-finding character in which the Bureau of Labor Relations of DOLE plays the part of a disinterested investigator seeking merely to ascertain the desi res of the employees as to matter of their representation.(Airl ine Pi lots Association v. CIR, 1977)

Who may file Petition for Certification Election?

- A legitimate labor organization (A257, LC), or an employer when requested to bargain col lectively (A258, LC).

Where Filed - With the Regional Office which issued the peti tioning union’s

certi ficate of registration/certi ficate of creation of chartered loca l .

- Peti tion shal l be heard and resolved by the Med -Arbiter - When two or more petitions are filed with the same Regional

Office – automatically consolidated with the fi rs t Med-Arbiter who fi rs t acquired jurisdiction

- When peti tions are fi led in di fferent Regional Offices , the Regional Office in which the fi rst petition i s fi led, excludes a l l others ; in which case the latter will i ndorse the peti tion to the former for consol idation. (Sec. 2, Rule VIII , Book V, IR)

When may a certification election be automatically called?

1. Art. 257 of LC, any establishment where there i s no certi fied bargaining agent, a certification election shall be automatica l ly

conducted by the Med-Arbiter upon the filing of a peti tion by a legi timate labor organization.

2. In an organized established, when a verified petition questioning

the majority of the incumbent bargaining agent if filed within the 60-day period before the expiration of a col lective bargaining agreement, the Med-Arbiter shal l automatica l ly order an election by secret ballot when the verified petition is supported

by the wri tten consent of at least 25% of a l l employees of the bargaining unit.

Conditions when the Med-Arbiter may automatically order a certification election by secret ballot in an organized establishment

1. That a peti tion questioning the majori ty s tatus of the incumbent bargaining agent i f filed before the DOLE within the 60-day period;

2. That such peti tion i s veri fied;

3. That the petition is supported by the written consent of at least 25% of a l l employees in the bargaining unit.

When may a petition for certification be filed? ***Sec 3, Rule VIII , Book V, IR as amended by DOLE DO 40-03 Purpose of 1 year – give opportunity to negotiate and poss ibly

conclude a CBA. Organized Establishment - It i s an enterprise where there exists a recognized or certi fied

exclusive bargaining agent. (Section 1 (II), Rule I, Book V, IR) Petition for certification election contains:

SECTION 4. Procedure. — Upon receipt of the complaint, the Regional Director shall immediately assign the case to a Med-Arbiter. The Med-

Arbiter shall have twenty (20) working days within which to settle or decide the case. The decision of the Med-Arbiter shall s tate the facts and the reliefs granted, if any. If the conflicts involve a violation of the rights and conditions of the membership enumerated under Article 242 of the Code, the Med-Arbiter shall order the cancellation of the registration certificate of the erring union or the expuls ion of the gui lty party from the union, whichever i s appropriate. (Sec 4, Rule VIII , Book V, IR) Local or Chapter of a Federation – may fi le a petition for certification election provided i t i s a legi timate labor organization. Mother Federation – being merely an agent of the loca l or chapter,

may fi le a petition for certification election in behalf of the latter who is considered the principal. The local or chapter must however be a

legitimate labor organization; i t cannot merely rely on the legi timate s tatus of the mother federation (Progress ive Development Corporation vs . DOLE Sec, 1992).

Q: May a peti tion for certi fication election fi led by a national federation for a loca l chapter not duly regis tered be granted? A: No. It should be dismissed. Local Chapter, as principa l , must be

duly regis tered. Q: May a national union or federation or local chapter file a peti tion

for certi fication election in organized establ ishments? A: Yes . Art. 256 of the LC, provides that in the organized

establishment, the verified petition questioning the majority s tatus of the incumbent bargaining agent may be filed by any legitimate labor organization including a national union or federation which has

a l ready i ssued a charter to i ts loca l chapter participating in the certi fication election or a loca l chapter which has been issued a

charter certificate by the national union or federation, and that in cases where the petition is filed by the national union or federation, it shall not be required to disclose the names of the loca l chapter’s officers and members . Reason why Certification Election outside freedom period prohibited

- To ensure industria l peace between the employer and i ts employees during the exis tence of the CBA.

- Peti tion would be premature and should be dismissed.

+ Certi fication Election is the best and appropriate means of

ascerta ining the wi l l of the employees as to their choice of an

LABOR LAW REVIEW


exclusive bargaining representative. (George & Peter Lines , Inc. v. ALU, 1985)

+ Certi fication Election may s ti l l be ca l led by the Med -Arbiter a l though the 25% statutory requirement has not been complied with. Med Arbiter i s still empowered to order certification elections for the purpose of ascertaining which of the contending labor organizations

shal l be the exclus ive bargaining agent. The requirement then is relevant only when it becomes mandatory to conduct a certification elections. In a ll other instances, the discretion ought to be ordinari ly exercised in favor of a petition for certification elections . (Ca l i fornia

Manufacturing Corp. v. Undersecretary, 1992) + Art 251, LC, mandates that a certi fication election shal l

automatically be conducted by the Med-Arbiter upon the fi l ing of a peti tion by a legitimate labor union. Nothing i s sa id that prohibi ts

automatic conduct of certi fication election. Contract Bar Rule - Exis tence of a collective bargaining agreement duly fi led with

and submitted to the DOLE, in compliance with the requirements and s tandards of the said office, between the employer and a legitimate labor organization, bars a certification election in the col lective bargaining unit except within 60 days prior to the expiration of the l i fe of such contract.

- Purpose: Assure industria l peace and s tabi l i ty. + Contract bar rule still applies if petition for certification election is

fi led despite lapse of the formal effectivi ty of the CBA. The law sti l l cons iders the CBA the same as continuing in force and effect unti l a

new CBA shall have been va lidly executed. (Colegio de San Juan de Letran v. Association of Employees and Faculty of Letran, 2000)

+ No peti tion filed within the freedom period, employer obl iged to continue recognizing the majority s tatus of the incumbent bargaining agent. (Art. 256, 2

nd par., LC)

Deadlock Bar Rule - This rule provides that a petition for certi fication election can

only be entertained i f there i s no pending bargaining deadlock

submitted to conciliation or arbitration or which has become the subject of a va l id notice of s trike or locko ut.

- Purpose: Ensure s tability in the relationship of the workers and the management.

Art. 232. Prohibition on certification election. The Bureau shal l not

entertain any petition for certification election or any other action which may disturb the adminis tration of duly regis tered exis ting

col lective bargaining agreements affecting the parties except under Articles 253, 253-A and 256 of this Code. (As amended by Section 15, Republ ic Act No. 6715, March 21, 1989) + No certi fication election may be held within one year from the date of i s suance of a final certification election result. (Sec. 3, Rule V, Book V, IR)

Final Certification Election Result - There was an actual conduct of election, i .e. ballots were cast and

there was a counting of votes .

Q: What kind of Collective Bargaining Agreement may bar a certification election

- The col lective bargaining agreement must provide for substantial benefits to the employees . One which s imply

grants benefi ts a l ready enjoyed by the workers under exis ting laws (Sweetheart Contract) wi l l not bar a certi fication election; otherwise, the workers right to seek better terms and conditions of employment wi l l be emasculated.

Nature of Certification Election – not a l i tigation, not covered by technical rules of evidence. Pre sentation of the Xerox copy of the certi ficate of registration instead of the origina l certi ficate i s not a

fata l defect and does not in any way affect the union’s legi timate status .

Explain the role of employer in Certification Election - CE is sole concern of employees. The only exception is where the

employer has to file a petition for certification election because i t i s requested to bargain collectively. After this , he becomes a mere by-s tander. No s tanding to question a CE. - Art. 258-A, LC

Appropriate Bargaining Unit

- A group of employees of a given employer, comprised of all or less than a ll of the entire body of employees , which the col lective interest of a l l the employees , cons is tent with equity to the employer, indicate the best suited to serve the reciprocal rights and duties of the parties under the col lective bargaining provis ions of the law.

Factors in determining the appropriateness of a bargaining unit

1. Wil l of the employees (Globe Doctrine); 2. Affini ty and unity of employees ’ interests ; 3. Prior col lective bargaining his tory; and

4. Employment s tatus , such as temporary, seasonal and probationary employees .

Employer Unit

- An appropriate bargaining unit consisting of rank-and-fi le employees of the employer. Term “employer” indicates scope of the unit.

- Ex. Transportation company

“Plant” Unit vs. “Craft” Unit Plant Craft

Bargaining unit

composed of employees in a

particular plant of the company. Ex. Cebu Plant, I locos Plant

Bargaining unit

composed of employees of the

company with the same occupation. Ex. Pi lots , ground personnel

Geographica l Occupational

Jurisprudence: + Non-academic personnel have different interests with academic personnel of school. Thus, not one appropriate organizational unit.

(UP vs . Ca l leja , 1992) + One company engaged in business of poultry ra is ing, piggery and

agriculture and operating supermarkets . Agricul tura l employees

LABOR LAW REVIEW


should be in a separate unit from those employees in the supermarkets . (BELYCA Corp. v. Ca l leja , 1988)

+ Employees in two plants in one company performing s ame l ine of work may form a single bargaining unit. (SMC Supervisors and Exempt Union v. Laguesma, 1997) + Foremen (are supervisory) and legal secretaries (are confidentia l ) may not be members of the rank-and-fi le bargaining unit. Pier 8

Arrastre and Stevedoring vs . Roldan-Confessor, 1995) Purpose why formation of several bargaining units in one company recognized: To s implify and expedite the collective bargaining process

and to facilitate the execution of a collective bargaining agreement. Employees with different interests may make col lective bargaining process tedious and cumbersome.

“One Union, One Company” Policy

- Employees have one yet potent voice in CB. Employees bargaining power i s s trengthened thereby.

Exceptions: “For compelling reasons”

1. Right to employees to form unions or associations for purposes not contrary to law

2. Right to sel f-organization 3. Right to enter into col lective bargaining

Who are entitled to vote in a certification election

- All employees in the appropriate bargaining unit are enti tled to vote in a certification election. Members or not

of a labor organization.

+ Payrol l must be uti l i zed to determine the number and el igible voters . In i ts absence, SSS l i s t may be used.

Vote necessary to make a union win in a certification election - Majori ty of the va l id votes cast. Spoi led ba l lots are not

counted in determining the majori ty. - However, to have a VALID election, at least a majority of al l

el igible voters in the unit must vote. Run-off Election

- when an election which provides for 3 or more choices results in no choice receiving a majori ty of the va l id votes

cast, a run-off election shall be conducted between the 2 labor unions receiving the highest number of votes ; provided that the total number of votes for all contending

unions i s at least 50% of the number of votes cast.

Direct Certification - No longer allowed as a method of selecting a bargaining

agent. Even if no opposition to a peti tion for certi fication election, there can be no direct certi fication.

Requirements for voluntary recognition SECTION 1. Chal lenging of votes. — (a ) Any vote may be chal lenged

for a va l id cause by any observer before the voter has depos i ted his vote in the bal lot box. (b) If a ballot i s challenged on va lid grounds, the Representation

Officer shall segregate it from the unchallenged ballots and seal i t in an envelope. The Representation Officer shal l indicate on the

envelope the name of the challenger and the ground of the challenge.

SECTION 2. Run-off election. — When an election which provides for three (3) or more choices results in no choice receiving a majori ty of

the va l id votes cast, and no objections or chal lenges have been presented which i f susta ined might change the results , the representation officer shall motu proprio conduct a run -off election within five (5) ca lendar days from the close of the election between the labor unions receiving the two highest number of votes; Provided,

that the total number of votes for all contending unions i s at least fi fty (50%) percent of the number of votes cast. The ballots in the run-off election shal l provide for two choices receiving the highest and the second highest number of the votes

cast. (Sec 1 and 2 Rule VII, Book V, IR) Effect of Voluntary Recognition

- The recognized labor union shall enjoy the rights, privileges and obl igations of an existing bargaining agent of a ll the employees

in the bargaining unit. - Entry of voluntary recognition shall bar the filing of a petition for

certi fication election by any labor organization for a period of 1 year from the date of entry of voluntary recognition. (Sec. 4, Rule VII, Book V, IR)

Q: Is a collective bargaining agreement entered into by and between the employer and the union representing majority of the employees va l id and binding on all the employees of the said employer, whether or not they are union members? Why? A: The agreement is valid and binding on all rank-and-file employees in the appropriate bargaining unit, whether or not they belong to the

union concluding the agreement. They consti tute the unit represented by the union. They are deemed the principa l and they

are bound by the actions of their agents . Selection of the sole and exclusive representatives of government

employees (EO 180, Sec. 9-12) Sec. 9. The appropriate organizational unit shall be the employers unit cons isting of rank-and-file employees unless circumstances otherwise require.

Sec. 10. The duly regis tered employees ' organization having the support of the majori ty of the employees in the appropriate organizational unit shall be des ignated as the sole and exclus ive

representative of the employees . Sec. 11. A duly registered employees' organization shall be accorded

voluntary recognition upon a showing that no other employees ' organization is registered or i s seeking registration, based on records of the Bureau of Labor Relations, and that the said organizations has

the majori ty support of the rank-and-fi le employees in the organizational unit.

Sec. 12. Where there are two or more duly regis tered employees ' organizations in the appropriate organizational unit, the Bureau of Labor Relations shal l , upon peti tion, order the conduct of a certi fication election and shal l certi fy the winner as the exclus ive representative of the rank-and-file employees in sa id organization unit.

Q: Does BLR have jurisdiction over a petition for CE fi led by a union of employees of the Court of Appeals? A: Yes . The BLR has the expertise, machinery and experience in this

particular activi ty. Civil Service Commission, has none of these. And the separation of powers does not require the Supreme Court to

supervise the details of sel f-organization activi ties in the courts . (ACAE va. Ferrer-Cal leja , 1991)

LABOR LAW REVIEW


+ Orders of Med-Arbiter appealable directly to the Secretary of Labor

and Employment on the ground that the rules and regulations for the conduct of the election have been violated. (Art. 259, LC)

- Decision of the Secretary of DOLE on appeal sha l l be fina l and executory. Upon finality, the entire records of the case shall be remanded to the office of origin for implementation

of the Decision, unless restrained by an appropriate court. - Remedy to decision of Secretary: MR (precondition to any

subsequent remedy), then seasonably fi le a specia l civi l action for certiorari under Rule 65, ROC. No, MR fi led

seasonable, Secretary’s decis ion becomes fina l and executory. (SMC QUArry 2 Workers vs . Ti tan Megabags Ind. Inc., 2004)

CHAPTER XIII COLLECTIVE BARGAINING AND COLLECTIVE BARGAINING AGREEMENTS

Collective Bargaining

- Process of negotiation between an employer or employers and employees organization or union to reach an agreement on the terms and conditions of employment for a speci fied period.

- Covers the enti re range of organizaed relationships between employers and employees represented by unions ;

this includes the negotiation, administration, interpretation or appl ication of the labor contract.

Collective Bargaining Agreement - Negotiated contract between a legi timate labor

organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a

bargaining unit, including mandatory provis ions for grievance and arbi tration machineries .

- Covers whole employment relationship and prescribes the rights and duties of the parties .

- If terms of a CBA are clear a nd have no doubt upon the

intention of the contracting parties, the litera l meaning of the provis ions shal l prevai l . Construed l ibera l ly.

Employment Contract vs. CBA

Employment Contract CBA Establ ishes E-E

relationship

Presupposes the

exis tence of such relationship

Between the employer an individual employee

Between employer and a union in representation of a

group of workers . Ends or terminates when the period fixed therein expires

Continues to be binding and effective as long as no new CBA

is entered into Important Aims of CB

a. to establish industrial peace by anabling capital and labor to resolve their disputes and controversies on terms mutual ly

acceptable and satis factory to themselves . b. To enhance industrial efficiency through speedy resolution

of labor disputes concerning the fixing of wages , working hours and other terms and conditions of employment, the execution of contracts incorporating such agreements, and the adjustment or settlement of any grievance aris ing thereunder.

c. To establish benefits for labor higher or greater than those fixed by law.

Various Aspects of CB

a. duty of the parties to bargain, negotiate on proposals

concerning wages , working hours and other terms and conditions of employment;

b. duty of the parties to adhere to the statutory s tandards of good fa i th, promptness and expeditious actions ;

c. duty to refra in from unilateral changes concerning matters

subject to bargaining; and d. In case there is an existing collective contract, the duty to

adhere faithfully to i ts terms and not terminate or modify the same during i ts period of effectivi ty.

Duty to bargain collectively Art. 252. Meaning of duty to bargain collectively. The duty to bargain

col lectively means the performance of a mutual obl igation 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 a l l other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such

agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to

agree to a proposal or to make any concess ion. Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement. When there i s a col lective bargaining agreement, the duty to bargain col lectively shal l a lso mean that nei ther party shall terminate nor modify such agreement during i ts l i fetime. However, ei ther party can serve a wri tten notice to terminate or modify the agreement at least sixty (60) days prior to i ts

expiration date. It shall be the duty of both parties to keep the s tatus quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or unti l a

new agreement i s reached by the parties .

Most important factor that will assure free Collective Bargaining

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- Free and genuine CB can exis t only i f the parties are of equal s trength. If one is dominated by another it becomes a

farce. Procedure in Collective Bargaining Art 250, LC

Multi-employer Bargaining Sec5-7, Rule XVI, Book V, IR, as amended by DO 40-03 Effect of violation of duty to bargain

- Consti tutes unfa ir labor practice on the part of the employer (A248 (g)) or the labor organization selected as repres entative of the employees (A249(c))

“Collective Bargaining is a Continuous Process”

- CB does not end with the execution of a col lective bargaining agreement. Also includes grievance procedure. (Republ ic Savings Bank v. CIR, 1967)

Usual Provisions, Stipulations, or clauses in a CBA

1. Defini tion of Bargaining Unit 2. Union Security Clause – intended to maintain the s trength

of the union during the life of the agreementand safeguard i t against the perfidy or fickleness of its own members and incurs ions of employer.

3. Check-off Provis ion – deduction of wages 4. Management Prerogatives Clause – rights of company

5. Economic Benefits – increases , vacation and s ick leaves 6. Provis ion on Adminis tration of Agreement

7. Voluntary Arbitration Clause – (A260) 8. No Strike-No Lockout Clause – during the term of CBA 9. Completeness of Agreement

10. Provis ions on Family Planning, Participation in sports , etc. 11. Provis ion against drug use in workplace 12. Duration of Agreement

Closed shop Agreement – Agreement whereby employer binds himself to hire only members of the contracting union who must continue to remain members of the union in good s tanding for the

duration of the agreement as a condition for continued employment. (Art. 248 (e))

Union Shop Agreement – One whereby the employer is permitted to employ a non-union worker, but to retain employment such worker

must become a union member after some period and mainta in his membership therein in good s tanding for the duration of the

agreement. Maintenance of membership clause does not require non -

members to join the union but provides that those who do join most maintain their membership for the duration of the union contract, under the penalty of discharge.

Closed-Shop Union-shop

Employer cant hi re worker who is not a member of the

contracting union

Employer may hire worker who is not a member, but employee

must become a member after

Membership i s a condition for

Membership i s a condition for retention

employment and retention

Preferential Shop Agreement recognizes the right of the employer to select his employees but requires him to give preference to members of the contracting union who are qual i fied.

+ A union shop clause in a CBA is enforeceable and operative even i f not yet certi fied (registered) by the BLR. Becomes effective as to the parties (Liberty Flour Mi lls Employees v. Liberty Flour Mi l l s , 1989).

Importance of Union Security Clause - Intended to s trengthen the contracting union and to

protect i t from the fickleness or perfidy of i ts own

members . Without such safeguard, group sol idari ty becomes uncerta inty. (Ca l tex Refinery EE Assoc. v.

Bri l l iantes , 1997) + Agency fee may be collected from those non-members who benefi t from the CBA. No need for authorization Substitutionary Doctrine - Even during the effectivity of a CBA executed between the Employer and the employees thru their agent, the employees can change sa id agent but the contract continues to bind them up to i ts expiration date. They may bargain for the shortening of the period. - Serves as a compromise solution when there occurs a sh i ft in employees’ union allegiance after the execution of the bargaining

contract with their employer.

Q: Under the doctrine, i s new agent bound by the personal undertakings of the former agent? A: No. It would violate maxim of res inter a l ios acta .

+ CBA should be submitted to BLR for registration within 30 days from execution thereof. (Art.231)

+ Employees who received benefits, cannot claim invalidity of the CBA after (Planters Products vs . NLRC, 1989)

Freedom Period - It i s the 60-day period immediately preceding the expiration

of the representation period of 5 years in the CBA. A CE can be held in this period.

+ At expiration, provisions be maintained until there is new CBA Art. 253. Duty to bargain collectively when there exists a collective

bargaining agreement. When there i s a col lective bargaining agreement, the duty to bargain col lectively shal l a lso mean that nei ther party shall terminate nor modify such agreement during i ts l i fetime. However, ei ther party can serve a wri tten notice to terminate or modify the agreement at least sixty (60) days prior to i ts expiration date. It shall be the duty of both parties to keep the s tatus quo and to continue in full force and effect the terms and conditions

of the existing agreement during the 60-day period and/or unti l a new agreement i s reached by the parties .

Q: IS renegotiation of the CBA during i ts l i fetime required? A: Art. 253-A. Terms of a collective bargaining agreement. Any

Col lective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect i s concerned, be for a term of

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five (5) years. No peti tion questioning the majori ty s tatus of the incumbent bargaining agent shall be entertained and no certification

election shal l be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five -year term of the Col lective Bargaining Agreement. Al l other provis ions of the Col lective Bargaining Agreement shall be renegotiated not later than three (3) years after

i ts execution. Any agreement on such other provis ions of the Col lective Bargaining Agreement entered into within s ix (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, sha l l retroact to the day

immediately following such date. If any such agreement i s entered into beyond six months, the parties shal l agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the

Col lective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republ ic Act No. 6715,

March 21, 1989) + Renegotiated contract may be for a period exceeding the remainder of the origina l 5-year term in the CBA Effect of unjustified refusal to renegotiate the CBA as required by Art253-A of the LC.

- Unfair Labor Practice - Having violated i ts duty to bargain col lectively, lost i ts

s tatutory right to negotiate or renegotiate the terms and conditions of the draft CBA proposed by the union (General Mi l l ing Corporation v. CA, 2004)

+ Parties may agree on the suspens ion of their CBA for a certa in

period Purpose: promote industria l Stabi l i ty and predictabi l i ty.

+ A CBA is a contractual obligation dis tinct from those obl igations imposed by law. Q: May the parties be required by the Sec of DOLE to execute a CBA

embodying terms and conditions which he may determine? A: Yes . This is pursuant to the power of compulsory arbitration vested in the Sec. by Article 263(g) LC, to settle a labor dispute i n an industry

indispensable to the national interest.

CHAPTER XIV STRIKES AND LOCKOUTS Strike

- temporary s toppage of work by the concerted action of employees as a result of an industrial or labor dispute (Art. 212(o), LC)

- Must be pursued within the bounds of law. Lockout

- temporary refusal of an employer to furnish work as a result

of an industria l or labor dispute.

Scope of term “Labor or Industrial Dispute” - Any controversy or matter concerning terms or conditions

of employment or the association or representation or

persons in negotiating, fixing, mainta ining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants s tand in the

proximate relation of employers and employees . (Art. 212(l ), LC)

Slowdown

- It i s a s trike on the insta l lment plan. It i s a wi l l ful repudiation to work by concerted action of workers for the purpose of restricting the output of the employer in relation

to a labor dispute; i t is an activity by which workers, without a complete s toppage of work, retard production or their performance of duties and function to compel management to grant their demands .

Common concerted activities

1. Strike – temporary s toppage of work as a result of an

industria l or labor dispute. 2. Picketing – the marching to and fro at the employer’s

premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute.

3. Boycotts – the concerted refusal to patronize an employer’s goods or services and to persuade others to l ike refusa l .

Boycotts are lawful - As long as they act through peaceful and honest means Statutory Recognition of workers’ right to strike and employers’ right to lockout. The Secretary of Labor and Employment, the Commiss ion or the

voluntary arbitrator shall decide or resolve the dispute, as the case may be. The decision of the Pres ident, the Secretary of Labor and

Employment, the Commission or the voluntary arbitrator shall be final and executory ten (10) ca lendar days after receipt thereof by the parties. (As amended by Section 27, Republic Act No. 6715, March 21,

1989) + Right to Strike or to Lockout NOT Absolute subject to police power.

Who may declare a strike or lockout Strike – any certi fied or duly recognized bargaining representative may declare a s trike in case of barga ining deadlocks and ULP.

- in the absence of a duly recognized or certified bargaining representative, any LLO in the establishment may declare a s trike.

Lockout – the employer in the same cases National Conciliation and Mediation Board

- Body created under EO 126, on January 30, 1987, which absorbed the conci l iation, mediation and voluntary

arbi tration of the BLR. Grounds for Strike

1. Bargaining Deadlocks 2. ULP

+ Violation of CBA, except flagrant and/or malicious refusal to comply

with i ts economic provis ions , sha l l not be cons idered ULP. + No s trike or lockout

1. Grounds involving inter-union and intra -union disputes

2. Without fi rs t having fi led a notice of s trike or lockout 3. Without the necessary s trike or lockout vote having been

obta ined and reported to the Board 4. After assumption of Secretary of Jurisdiction

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5. After Certi fication or submiss ion of the dispute to compulsory or voluntary arbi tration

6. During pendency of cases involving the same grounds for the s trike or lockout. (IR)

Deadlock in Bargaining

- arises when there i s an impasse which presupposes

reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties .

+ Thus , no deadlock if employer refuses to bargain in th e fi rs t place Requisites of Lawful Strike or Lockout

1. must be based on serious or substantial grounds involving bargaining deadlock and/or ULP and theses have not been

brought to voluntary or compulsory arbi tration. 2. Notice of strike or lockout, as the case may be, must be filed

with the NCMB at least 30 days (bargaining deadlocks) or 15 days (ULP) before the intended date thereof.

3. Notice of s trike must be fi led by the certi fied or duly recognized bargaining rep but in cases of ULP and in the absence of a duly certi fied or recognized bargaining representative, the notice may be filed by any LLO in behalf of i ts members .

4. decision to s trike must be approved by a majori ty of the tota l union membership in the bargaining unit concerned obta ined by secret ballot in meetings or referenda; and the

decision to declare a lockout must be approved by a maj of the board of directors of the employer corporation or of the

partners in a partnership obta ined by secret ba l lot in a meeting ca l led for the purpose.

5. A report of the s trike must be filed with the NCMB at least 7

days before the intended s trike or lockout. 6. the cooling off period of 30 days and 15 days has lapsed and

the dispute remains unsettled despite efforts at mediation and conciliation. XPN: in union busting, 15 day period does

not apply. Union may take action immediately. 7. Union declaring the strike or the employer declaring the

lockout must have been complied with i ts duty to bargain

col lectively. 8. the s trike must be s taged and conducted by peaceful

means . Importance of Strike Voting and Prior Notice of the date to the

NCMB - Notice - To give NCMB a chance to supervise the s trike vote

i f i t decides to exercise power of supervis ion - Notice - To allow NCMB to conduct conference to explore

poss ibi l i ties of amicable settlement - Strike Vote – to ensure that the decision to s trike broadly

rests with the majority of the union members in genera l and not with a mere minori ty, and at the same time discourage wi ldcat s trikes , union boss ism and even

corruption. - Cool ing-off period – des igned to afford parties the

opportunity to amicably resolve the dispute with the

ass is tance of the NCMB conci l iator/mediator. - 7-day Strike Ban – intended to give the DOLE an opportunity

to veri fy whether the projected s trike rea l ly carries the imprima tur of the majori ty of the union members .

+ Capitol Medical Center v. NLRC, 2005: Importance of notice:

a. inform NCMB of the intent of the union to conduct a s trike vote,

b. give the NCMB ample time to decide on whether or not there i s a need to supervise the conduct of the s trike vote to prevent any acts of violence and/or i rregulari ties

attendant thereto; and c. should the NCMB decide on its own ini tiative or upon the

request of an interested party including the employer, to supervise the s trike vote, to give i t ample time to prepare

for the deployment of the requisi te personnel , including peace officers i f need be.

Contents of Notice to strike or lockout 1. names and addresses of employer and union involved

2. nature of the industry to which the employer belongs 3. number of union members and workers in the bargaining

unit 4. brief s tatement of a l l pending labor disputes 5. BD - unresolved issues , wri tten proposals of the union,

counter-proposals of the employer and proof of request for conference to settle di fferences

6. ULP – s tate acts complained of and efforts taken to resolve them

+ If notice does not conform with the requirements the regional branch of the NCMB shal l inform concerned party.

Duty of NCMB - to exert a ll efforts at mediation anc conciliation to enable

the parties to settle the disputes amicably. “Cooling-off” and “Waiting” Periods are mandatory

- Cool ing- off period intended to provide opportunity for mediation and conciliation. Waiting period is intended to provide opportunity to the members of the union or the management to take the appropriate remedy in case of

s trike or lockout vote i s fa lse or inaccurate, and the intended strike or lockout turns out to be merely the idea of a minority group. Thus, mandatory. (Gold Ci ty Integrated vs.

NLRC; National Federation of Labor Unions vs . NLRC)

“Union Busting” may dispense with the “cooling-off” period 1. the dismissa l from employment of the union officers duly

elected in accordance with the union constitution and by-laws

2. exis tence of the union must be threatened by such dismissa l .

+ Promotion not dismissal (PILTEA vs. NLRC, 2007) Improved Offer or Reduced Offer Ba l loting Art. 265. Improved offer balloting. In an effort to settle a s trike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the s trike. When at least a majority of the union members

vote to accept the improved offer the s triking workers shal l immediately return to work and the employer shal l thereupon readmit them upon the s igning of the agreement.

In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret bal loting on the reduced

offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners

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holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shal l immediately return to

work and the employer shal l thereupon readmit them upon the s igning of the agreement. (Incorporated by Section 28, Republ ic Act No. 6715, March 21, 1989) + Strikes attended with violence

- If violence sporadic and not pervasive, liability i s individual and not collective. (Feati Faculty Club v. Faeti Univ., 1974)

- If s trike with force, coercion, intimidation, violence and the use of slanderous and obscene language or epithets , i t i s

i l lega l . - If violence on both sides, s trike cannot be declared i l lega l .

Pervasive and Widespread Violence in Strike – Employees hi jacked 29 buses which resulted in injuries and panic to employees and

commuters, barricading of the bus terminal; puncturing ti res; theft of expensive fuel injections worth 30K each; throwing of Molotov bombs in the company compound. (First Ci ty Interlink Transportation Co. vs . Confessor, 1997) Union Recognition Strike

- Calculated to compel the employer to recognize one’s union, and no the other contending group, as the employees’ bargaining representative despite the s triking union’s doubtful majori ty s tatus to meri t voluntary recognition and lack of formal certification as the exclus ive representative in the bargaining unit. (Assoc. of

Independent Unions of the Phi ls . V. NLRC, 1999)

Strike in Good Faith may be legal - when the union believed that the company committed ULP

and the ci rcumstances warranted such belief in good fa i th,

even i f ULP later proved non-existent. (PICEWO v. People’s industria l and Commercia l Corporation, 1982)

Strike in Good Faith But without prior filing of notice of strike and

strike vote not legal – RA 6715 makes these requirements mandatory.

Cla ims for 13th month pay not consti tutive of ULP based on the Implementing Rules of PD 851. Nonpayment of 13th month pay

cons idered money cla ims cases . Pari-Delicto Rule applicable in strikes and lockouts

- When the parties, the employees having s taged an i l lega l s trike and the employer having declared an illegal lockout –

such s ituation warrants the restoration of the s tatus quo ante and bringing the parties back to their respective pos itions before the i llegal s trike and i llegal lockout through the reinstatement, without backwages of the dismissed employees (Phi l -Inter fashion v. NLRC, 1982).

Effect of Illegal Strike Upon employment status

To Officers - Officer who participates may be declared to have lost their employment s tatus (Art. 264) To Union members not officers – Does not lose employment s tatus

unless he commits illegal acts in the course of the s trike. They are mere followers. This must be established by substantia l evidence.

+ Insubordination by employees of officers orders not i l lega l act.

+ If employer refuses to reinstate s trikers despite order of DOLE,

Strikers entitled to full backwages from the date of the return to work order unti l reinstatement. + Article 1704 is the bas is of a company’s action for damages i f because of i l lega l s trike in violation of CBA

Article 1704. In collective bargaining, the labor union or members of the board or committee signing the contract shall be l iable for non -ful fi l lment thereof.

Illegal Strikes - Strike staged despite no s trike no lockout clause in CBA and

absence of ULP

- Violates 263 and 264

Premature Strike - strike declared on the basis of grievances which have not been

submitted to the grievance committee as stipulated in the CBA of the parties i s premature and i l lega l . (Phi lcom Employees Union vs . Phi l ippine Global Comm, 2006)

Peaceful Picketing - guaranteed by right to free speech - involves people marching to and fro with placards to acquaint

the public with the facts of a labor dispute. It is not i llegal even in the absence of E-E relationship. May be carried out in the premises of the employer, in places where employer’s products

have been brought and are dis tributed as a means to ci rcumvent, defeat or minimize the adverse effects of picketing

conducted at the employer’s plants and offices . (ALU v. Borromeo, 1968)

Peaceful Picketing still subject to regulation by the instance of thi rd parties or “Innocent bystanders” i f i t appears that the inevi table result of its existence is to create an impression that a labor dispute with which they have no connection or interest exists between them

and the picketing union, or consti tutes invas ion of their rights . + If two companies in the same premises, other company who are not

the employers of the s trikers may fi le injunction to s top s trikers . (Republ ic Flour Mi l l s Workers Association vs . Reyes , 1966)

Acts Specifically prohibited by the law in connection with picketing Art. 264. Prohibited activities.

b.No person shal l obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by

employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference. e.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 publ ic thoroughfares. (As amended by Batas Pambansa Bi lang 227, June 1,

1982) May a strike or lockout be enjoined

Art. 254. Injunction prohibited. No temporary or permanent injunction or restraining order in any case involving or growing out of

labor disputes shall be issued by any court or other enti ty, except as

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otherwise provided in Articles 218 and 264 of this Code. (As amended by Batas Pambansa Bi lang 227, June 1, 1982)

Reason: to give effect to the policy of free collective bargaining. The parties must be free to use the economic weapons that the law has given them. Exceptions:

1. Article 263 (g) – on labor disputes caus ing or l ikely to cause s trikes or lockouts in an industry indispensable to the national interest.

2. Article 218 (e), on the power of the NLRC to restrain commission

of prohibi ted or unlawful acts in labor dispute. Note: Article 263 (g)

(g) When, in his opinion, there exists a labor dispute causing or l ikely to cause a s trike or lockout in an industry indispensable to the

national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certi fication shal l have the effect of automatica l ly enjoining the intended or impending s trike or lockout as speci fied in the assumption or certification order. If one has a l ready taken place at the time of assumption or certi fication, a l l s triking or locked out employees shall immediately return-to-work and the employer shal l immediately resume operations and readmit a l l workers under the same terms and conditions prevailing before the s trike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compl iance

with this provision as well as with such orders as he may issue to enforce the same.

In l ine with the national concern for and the highest respect accorded to the right of patients to l i fe and health, s trikes and lockouts in hospitals, clinics and similar medical institutions shal l , to

every extent possible, be avoided, and a ll serious efforts, not only by labor and management but government as wel l , be exhausted to substantially minimize, if not prevent, their adverse effects on such l i fe and health, through the exercise, however legitimate, by labor of

i ts right to s trike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, cl inics or medical institutions, i t shall be the duty of the s triking union or

locking-out employer to provide and maintain an effective skele ta l workforce of medical and other health personnel, whose movement

and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of i ts patients, most especially emergency cases, for the duration of the

s trike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours

from knowledge of the occurrence of such a s trike or lockout, jurisdiction over the same or certi fy i t to the Commiss ion for compulsory arbitration. For this purpose, the contending parties are s trictly enjoined to comply with such orders , prohibi tions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pa in of immediate discipl inary action, including dismissal or loss of employment s tatus or payment by the

locking-out employer of backwages, damages and other affi rmative rel ief, even criminal prosecution against ei ther or both of them. The foregoing notwithstanding, the Pres ident of the

Phi l ippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and

from intervening at any time and assuming jurisdiction over any such

labor dispute in order to settle or terminate the same.

Article 263 – gives power to Secrtary of DOLE the power to assume jurisdiction over and decide a labor dispute or certify the same to the NLRC for compulsory arbi tration – Not an undue delegation of legislative power. Power i s limited to “labor disputes “ caus ing or l ikely to cause strikes or lockouts adversely affecting the national

interest. Sufficient s tandard. + In application it may be unconstitutional if it violates worker’s right to self-organization, collective bargaining, security of tenure, just and humane conditions of work; or is repugnant to the protection to labor

mandate of the Consti tution. + Exercise of power must be in accordance with the law. Secretary must fol low law.

Industries Indispensable to National interest

1. Publ ic Uti l i ties 2. Companies engaged in generation or dis tribution of energy 3. banks 4. schools 5. hospita ls 6. export oriented industries

+ If not indispensable to national interest, Secrtary of labor has no power to intervene. Return-to-work order

- by i ts very nature i t i s a provis ional measure - non-compliance therewith will not necessarily authorize the

permanent replacement of the reca lci trant workers . Any order for the replacement of s triking employees i s not a

final determination of their right to go back to work or for the new recrui ts to continue thereon as permanent employees .

Economic Strike

- One which is to force wage or other concess ion from the employer which he i s not required by law to grant.

No Strike Clause on CBA

- only applies to economic s trike and not to s trike on the

ground of ULP.

Q: May Sec in the exercise of his jurisdiction under Art. 263 (g) of LC, take cognizance of an i ssue which is merely incidental to labor dispute over which he has assumed jurisdiction.

A: Yes , provided the said issue is involved in the labor dispute i tself or otherwise submitted to him for resolution.

+ Authori ty to assume jurisdiction over the said labor dispute must include and extend to a l l questions and controvers ies aris ing therefrom. The power is plenary and discretionary in nature to enable him to effectively and efficiently dispose of the dispute. Secretary may certify cases to the NLRC - Jurisdiction: has concomitantly empowered to resolve a l l

questions and controversies arising therefrom including cases otherwise belonging origina l ly and exclus ively to the Labor Arbiter. (263(g)) This is despite of Art217 of LC which provide for

exclus ive jurisdiction of Sec., because of phrase, except as otherwise provided by law.

Assumption and certification orders

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- Executory in character and are to be s trictly compl ied with by the parties even during the pendency of any petition questioning

their va lidity. Aimed at arriving at a peaceful and speedy solution to labor disputes , without jeopardizing national intere sts .

+ If a worker defies return-to-work order, deemed to have abandoned his job. It is a l ready participating in an i l lega l act. Also, a s trike

undertaken despite the Secretary’s i s suance of assumption and certi fication order becomes a prohibited activi ty, and thus , i l lega l . Judicial Review of Secretary’s arbitral award

- Not l imited to determination of grave abuse in the manner of the secretary’s exercise of his s tatutory powers . Court may review the substance of the Secretary’s award when grave of

abuse of discretion is alleged to exis t in the award, i .e. in the appreciation of and the conclusions the Secretary drew from the

evidence presented. - Standard of reasonableness should be appl ied. Middle Ground approach of settling wage dispute is NOT necessarily the best method

- May lead to the danger that nei ther of the parties wi l l engage in principled bargaining; the company may keep i ts pos i tion arti ficia l ly low whi le the union presents an arti ficially high pos i tion, on the fear that a “Solomonic” solution cannot be avoided. Than encourage agreement, i t encourages a “Play safe” atti tude that leads to more deadlocks than to success ful ly negotiated CBA’s .

Payroll Reinstatement

- as an exception to actual reinstatement required by a return to work order, may be a l lowed, pending fina l resolution of the va lidi ty of their dismissa l , in view of a

“superseding ci rcumstance” i .e. the fina l decis ion of the panel of arbitrations as to the confidentia l nature of their pos itions (Univ of Immaculate Concepcion vs . Sec, 2005)

NLRC has powers to issue injunctions or restra ining orders in labor disputes – Art. 218 (e) (e) To enjoin or restrain any actual or threatened commiss ion of any

or a l l prohibited or unlawful acts or to require the performance of a particular act in any l abor dispute which, i f not restra ined or

performed forthwith, may cause grave or i rreparable damage to any party or render ineffectual any decis ion in favor of such party: Provided, That no temporary or permanent injunction in any case

involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses , with

opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, i f offered, and only after a finding of fact by the Commiss ion, to the effect: 1. That prohibited or unlawful acts have been threatened and wi l l

be committed and will be continued unless restra ined, but no injunction or temporary restra ining order shal l be i ssue d on

account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actual ly

authorizing or ratifying the same after actual knowledge thereof; 2. That substantial and i rreparable injury to complainant’s property

wil l fol low;

3. That as to each item of relief to be granted, greater injury wi ll be inflicted upon complainant by the denial of rel ief than wi l l be

infl icted upon defendants by the granting of rel ief; 4. That compla inant has no adequate remedy at law; and 5. That the publ ic officers charged with the duty to protect

compla inant’s property are unable or unwi l l ing to furnish adequate protection.

Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commiss ion shal l di rect, to a ll known persons against whom relief i s sought, and also to the Chief Executive and other public officia ls of the province or ci ty

within which the unlawful acts have been threatened or committed, charged with the duty to protect complainant’s property: Provided, however, that i f a compla inant shal l a lso a l lege that, unless a

temporary restra ining order shal l be i ssued without notice, a substantial and i rreparable injury to complainant’s property wi l l be

unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, i f susta ined, to justi fy the Commission in issuing a temporary injunction upon hearing after notice. Such a temporary restraining order shal l be effective for no longer than twenty (20) days and shall become void at the expiration of sa id twenty (20) days . No such temporary restra ining order or temporary injunction shal l be i ssued except on condition that complainant shall first file an undertaking with adequate securi ty in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss , expense or damage caused by the improvident or erroneous i ssuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s

fee, and expense of defense against the order or against the granting of any injunctive rel ief sought in the same proceeding and

subsequently denied by the Commiss ion. The undertaking herein mentioned shall be understood to constitute an agreement entered into by the compla inant and the

surety upon which an order may be rendered in the same sui t or proceeding against said complainant and surety, upon a hearing to assess damages, of which hearing, complainant and surety shall have reasonable notice, the sa id compla inant and surety submitting

themselves to the jurisdiction of the Commiss ion for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to

pursue his ordinary remedy by sui t at law or in equity: Provided, further, That the reception of evidence for the application of a writ of

injunction may be delegated by the Commiss ion to any of i ts Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and

shall submit thereafter his recommendation to the Commiss ion. (As amended by Section 10, Republ ic Act No. 6715, March 21, 1989)

Ex Parte Temporary Restraining Order may be issued by the NLRC

- However, must be characterized by care and caution for the law requires that it be clearly justified by considerations of extreme necessity i .e. when the commiss ion of unlawful acts i s causing substantial and i rreparable injury to company properties and company is , for the moment, bereft of an

adequate remedy at law. Article 18 (e) allows NLRC to issue injunction

- However, necessary to establish that the commission of the i l legal acts will cause grave or i rreparable damage to the

party seeking the injunctive relief or render ineffectual any decis ion in favor of such party.

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Injunction may be had if:

1. Company is in an industry indispensable to national interest 2. There is actual or threatened commission of proh ibi ted or

unlawful acts which, i f not restrained forthwith, may cause grave or i rreparable damage to it or render ineefectual any decis ion in favor of such party.

+ NLRC has no power to order s trikers to return to work i f case not certi fied to them by the Secretary (Art 263 (g)). It may however restra in strikers from blocking the means of egress from and ingress

to the plant. Remedies to lockout

Fi le with Secretary a request that he assumes jurisdiction over the labor dispute or cedrti fy the same to the NLRC for compulsory

arbi tration on the ground that the intended lockout is in an industry indispensable to national interest. Assumption of jurisdiction or certi fication has the effect of automatically enjoining the impending lockout., (Art 263) Consequence of lockout notwithstanding certification Art. 264 (a), LC, any worker whose employment has been terminated as a consequence of a lockout is entitled to reinstatement with ful l backwages . Illegal Acts

1. violation of 264 (e) – violence, coercion or intimidation

2. Commission of crimes and other unlawful acts in carryin out the s trike

3. violation of any order, prohibition, or injunction issued by the DOLE Sec. or NLRC in connection with the assumption of jurisdiction/certi fication order

Return to Work Order Served, when

- copies of the same were left by the Sheriff with the strikers at the picket line, although they refused to acknowledge

receipt thereof, another copy left at their counsel ’s office. Strike Breaker

- any person who obstructs, impeded or interferes wi th by force, violence, coercion, threats or intimidation any

peaceful picketing by employees during any labor controversy affecting wages, hours or conditions of work or in theexercise of the right of self-organization or col lective

bargaining. (Art. 212 (r) LC) - Not a l lowed. Art. 264 (c))

Strike Area

- Establ ishment, warehouse, depots , plants or offices , including the sites or presmises used as run-away shops of the employer s truck against, as wel l as the immediate vicinity actually used by picketing strikers in moving to and fro before a l l points of entrance to and from sa id

establ ishment. Runaway Shop

- Industrial plant moved by i ts owners from one location to another to escape union labor regulations or s tate laws. It

may a lso refer to a plant removed from i ts present location

in order to discriminate against employees at the old plant because of their union activi ties .

- Move to another location or temporarily closes i ts business for anti -union purpose.

Wildcat Strike

- Strike not authorized by the union representing the strikers

Sympathy Strike

- A Strike by body of workers for the purpose of supporting a cause of another group of s trikers .

Prohibition against the use of police or armed escorts during strike Art 264 (d) No public officia l or employee, includi ng officers and

personnel of the New Armed Forces of the Phi l ippines or the Integrated National Police, or armed person, shall bring in, introduce

or escort in any manner, any individual who seeks to replace s trikers in entering or leaving the premises of a strike area, or work in place of the s trikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect l i fe and property, and/or enforce the law and lega l order. + An employer who knowingly readmits to work the s trikers who committed illega l acts during the s trike, may no longer seek the dismissal of the employee by reason of such acts . Condonation of i l lega l acts .

Strikers entitled to backwages during period of strike

- GR: No backwages, employer should get equivalent day of work for what he pays his employees . - XPN: When strikers abandon s trike and apply for reinstatement and

employer refuses to reinstate or imposes new conditions for reinstatement which consti tute ULP. Jurisprudential Exceptions

6. employees i l lega l ly locked out 7. when employer i s guil ty of the grossest form of

ULP

8. When there i s discrimination in the rehiring of s trikers

9. when workers who s taged a voluntary ULP offered to return to work unconditionally but the employer refused to reinstate them (Phi l .

Diamond Hotel v. Mani la Diamond Hotel Employees Union, 2006)

+ Employees who are unable to work by reason of a lockout va l idly declared by employer NOT entitled to wages corresponding to the period of the lockout. No work-no pay. + No Work-No Pay. A fa i r days wage for a fa i r day’s labor.

Q: May employees of the government go on strike and may the latter declare a lockout? A: No. They are governed by Civi l Service Laws (Art. 276, LC)

Right of govt employees to strike under the 1987 Constitution

Sec 3 Art XIII . Recognizes right to organize but s i lent on the right to s trike.

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+ Manila Public School Teachers Association v. Laguio, 1991 – There

was a concerted and unauthorized s toppage of, or absence from, work which teachers’ duty to perform, undertaken for essentia l ly economic reasons .

CHAPTER XV UNFAIR LABOR PRACTICES Concept of Unfair Labor Practice (ART. 247):

- Violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of

both labor and management, including their right to bargain col lectively and otherwise deal with eah othe r in an

atmosphere of freedom and mutual respect, dis rupt industrial peace and hinder the promotion of healthy and s table labor management relations .

- Not only violations of the civi l rights of both labor and management but are also criminal offesnses again st the

State which shall be subject to prosecution and punishment as herein provided.

Prior to the enactment of the Labor Code ULPs are mere adminis trative offenses , this fact made i t easy for

employers to commit such acts with impunity because of l ight consequence.

The administrative proceedings and criminal prosecution for ULP may not be insti tuted s imultaneous ly.

o A Final judgment of the labor arbiter (LA) , finding that an ULP was committed, must fi rs t be obta ined before a criminal prosecution for the same can bbe commenced.

o To prevent parties from uti l i zing the criminal action as a means for harassment.

o Final judgment rendered by the LA is not binding in the criminal case nor can the same be ccons idered as evidence of guilt. Because of the

di fference in the quantum of evidence to sustain a judgment.

WHO MAY COMMIT ULP:

1. Employer

2. Labor Organization WHO MAY BE CRIMINALLY LIABLE:

- those who have actual ly participated in, authorized or rati fied the ULP

Employer: 1. Officers

2. Agents of the corporations, associ ations or partnerships Labor Organization:

1. Officers 2. Members of governing boards

3. representatives

4. agents 5. members

EMPLOYER ULP (ART. 248):

1. To interfere with, restra in or coerce employees in the

exercise of their right to sel f-organization;

2. To require as a condition of employment that a person or

an employee shall not join a labor organization or shal l withdraw from one to which he belongs ;

3. To contract out services or functions being performed by union members when such will interfere with, restra in or coerce employees in the exercise of their rights to sel f-

organization; 4. To ini tiate, dominate, assist or otherwise interfere with the

formation or adminis tration of any labor organization, including the giving of financial or other support to i t or i ts

organizers or supporters ; 5. To discriminate in regard to wages, hours of work and other

terms and conditions of employment in order to encourage

or discourage membership in any labor organization. Nothing in this Code or in any other law shal l s top the

parties from requiring membership in a recognized col lective bargaining agent as a condition for employment, except those employees who are a l ready members of another union at the time of the s igning of the col lective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized col lective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, i f such non -union members accept the benefi ts under the col lective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of

this Code shal l not apply to the non -members of the recognized col lective bargaining agent;

chanroblesvi rtua l lawl ibrary 6. To dismiss, discharge or otherwise prejudice or discriminate

against an employee for having given or being about to give

testimony under this Code; 7. To violate the duty to bargain collectively as prescribed by

this Code; 8. To pay negotiation or attorney’s fees to the union or i ts

officers or agents as part of the settlement of any i ssue in col lective bargaining or any other dispute; or

9. To violate a col lective bargaining agreement.

LABOR ORGANIZATION ULP: 1. To restrain or coerce employees in the exercise of thei r

right to self-organization. However, a labor organization

shall have the right to prescribe i ts own rules with respect to the acquis i tion or retention of membership;

chanroblesvi rtua l lawl ibrary 2. To cause or attempt to cause an employer to discriminate

aga inst an employee, including discrimination against an employee with respect to whom membership in such organization has been 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 avai lable to other members ; 3. To violate the duty, or refuse to bargain col lectively with

the employer, provided i t i s the representative of the

employees ; 4. To cause or attempt to cause an employer to pay or del iver

or agree to pay or del iver any money or other things of va lue, in the nature of an exaction, for services which are

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not performed or not to be performed, including the demand for fee for union negotiations ;

5. o ask for or accept negotiation or attorney’s fees from employers as pa rt of the settlement of any i ssue in col lective bargaining or any other dispute; or

6. To violate a col lective bargaining agreement.

Refusal of a school to renew the contracts of teachers who have been with the school for periods ranging from 6 to 20 years , for fear that they will instigate a s trike is held to have been an ULP. (Riza l Memoria l Col leges Faculty Union v. NLRC)

Union busting – interference with the formation of a union.

The re-opening of a high school after only one year from i ts supposed closure has been held to be an ULP as the same

was in bad faith and for the purpose of ci rcumventing the Union’s right to collective bargaining and i ts members ’ to securi ty of tenure. (St. John Col leges , Inc. v. St. John Academy Faculty and Employee’s Union)

The his tory of the employer’s past conduct and l ike cons iderations , coupled wth and intimate connection

between the employer’s action and the union affiliations or activi ties of the particular employee or employees taken as a whole ra ise a suspicion as to the motivation for the

employer’s action, the failure of the employer to ascribe a val id reason therefor may justi fy an inference that his

unexplained conduct in respect of the particular employee or employees was inspired by the latter’s union membership or activi ties .

Survei llance by an employer of the meetings and activi ties of a union consti tute as ULP.

o It becomes i l lega l because i t indicates the

employer’s oppos i tion to unionism.The law resasons that when an employer either engages in surveillance or takes steps leading his employees

to think that it is going on, they are under threat of economic coercion and reta l iation.

The employer has the prerogative of promulgating rules to maintain discipl ine and enhance production within i ts premises during work hours . Therefore, as long as such pol icies are enforced without discrimination, the prohibition against an employee from engaging in union membership solicitation and distribution of union literature

during work hours i s NOT ULP.

The terms of a CBA cannot be unilatera l ly dis regarded by the parties theresto. A s tatement of management

prerogatives couched in genera l terms is not sufficient.

Statements made in defense of the interest of the employees that a union officer represents are privileged, a va l id exercise of his freedom of expression and his right to self-organization. (Union Supervisors (RB) NATU v. The Sec. of Labor)

The wri ting of a letter-charge against a company pres ident

demanding for the latter’s res ignation, done by 8 employees is considered as a concerted activi ty for their

mutual aid and protection. This i s a part of their right of self-organization, interference with which consti tute ULP.

(Republ ic Savings Bank v. CIR) Yellow dog contract – a promise exacted from workers as a condition

of employment that they not to belong to, or attempt to foster a union during their period of employment.

The ULP covered by Art. 248 (b) may be committed agains a prospective employee. The provis ion uses the phrase

“person or an employee.”

The mere questioning of employees, s tanding alone, i s not ULP, and before inquiries by an employer as to union matter can be held to be ULP they must be shown to have some relation to coercion or restraint of the employees in their right of sel f-organization.

As a general rule, an employer may predict unfavorable consequences of unionization without committing ULP i f he can do so in a manner which contains no threat. HOWEVER, when s tatements as to consequences which might fol low employees’ adherence to a union are ma de by one who is part of company management and who can affect pol icies regarding employment, such statement whether couched in languages of probability or certainty, tend to impede and

coerce employees in their right of sel f-organization, therefore may consti tute ULP.

An employer may be gui l ty of ULP for interfering with employees’ right to self-organization even before the union has been registered as where employees are dismissed because of their refusa l to divulge the names of the

organizers and members of the union. Granting of substantia l increases in benefi ts so as to

prevent the unionization of the employees is considered as interference in the exercise by latter of their right to sel f-organization. It interferes with their freedom of choice for

or aga inst unionization. Interference may be in the form of a l lurements .

The refusal of the company to acknowledge the receipt of a letter-request of union officers and members to attend a

hearing for certi fication election and preventively suspending the same is considered as ULP, i t is cons idered

as interference with the employees ’ right to sel f -organization.

Moral damages may be awarded under Art. 2220 of the NCC providing for damages for breaches of contract where

the defendant acted fraudulently or in bad faith. Exemplary damages may also be granted pursuant to Art. 2229, 2231

and/ror 2232.

Where all the retrenched employees were members of a

particular union, there being no satis factory explanation

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why sa id employees were s ingled out, the conclus ion is inevitable that the employer had discriminated against

membership in the sa id union.

The a lleged dissolution of the corporation in order to effect the dismissal of workers because of their union activi ties i s

cons idered ULP. (Aronson & Co., Inc. v. As sociated Labor Union)

A letter sent by the company pres ident and manager to

s triking employees offering reinstatement and other benefits tends to undermine the concerted activi ty. It i s

equiva lent to an attempt to break the s trike, thus ULP.

Discriminatory acts under Art. 248 (e) need not be against

specific employee or against a group of employees, for said acts are not limited to hiring or tenure but extend to terms

and conditions of employment. Discrimination can be in favor or aga inst a union i tsel f.

Refusa l of an employer to negotiate with a union contending that the latter was disauthorized by the employees consti tute ULP. It i s not for the employer to

question which group is the bargaining representative of i ts workers .

Retaliatory Measures (ART. 118) – i t sha l l be unlawful for an employer to refuse to pay or reduce the wages and benefi ts , discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Ti tle or i s about to testi fy in s uch proceedings .

Art 248 should be s trictly construed being penal in character. Not all acts of discrimination of the employer

constitute ULP. Only such act as would interfere with the employees ’ right to sel f-organization, encourage or discourage membership in a labor organization or discriminate against an employee for having given or being about to give testimony under the Code.

The act of compell ing employees to s ign an instrument indicating that the employer observed labor s tandards provisions of law when he might have not, together with the act terminating or coercing those who refuse to cooperate with the employer’s scheme consti tutes ULP.

(Mabeza v. NLRC)

An employer violates its duty to bargain collectively when i t fa i led without va l id reasons to give counter-proposals within 10 days from receipt of the union’s proposals .

The mere filing of a petition for certification election does

not ipso facto justify the suspension of negotiation by the employer. The peti tion must fi rs t comply with the

requirements for a va l id peti tion.

The vei l of corporate fiction may be pierced in case a corporation is a mere a l ter ego or bus iness conduit of another person. The act of a corporation in engaging in a

scheme of terminating the services of securi ty guards provided by a corporation set-up as i ts mere a l ter ego posted at the premises of the “mother-company” and bust

their newly-organized union which was then beginning to

become active in demanding the company’s compl iance with labor s tandard laws is ULP.

Surface Bargaining – going through the motions of negotiating without any lega l intent to reach an agreement.

- It involves the question of whether an employer’s conduct demonstrates an unwillingness to bargain in good faith or is

merely hard bargaining.

The duty to bargain does not compel etiher party to agree to a proposal or require the making of a concess ion. Therefore, the parties’ failure to agree does not amount to ULP for violation of the duty to bargain.

The refusal to furnish requested information in connection with an on-going bargaining i s cons idered ULP and a lso supports the inference of surface bargaining . However, fa i lure to put such request in writing as required by law may

excuse the non-compl iance with such request.

The refusal of an employe e to re-admit an employee who participated in an i l lega l s trike i s justi fied.

The employer i s not considered gui l i ty of ULP i f i t merley compl ied in good fa i th with the request of the certi fied union for the dismissa l of employees expel led from the union pursuant to the union securi ty clause in the CBA.

The grant of profit sharing to employees not covered by the CBA is an exercise in good fa i th of management prerogatives. There is no discrimination as the s i tuation of the union employees i s di fferent fro m the non-union

employees .

The dismissa l by the employer upon the request of the mother federation of employees who were exercising their freedom to disaffiliate is ULP. However, the liabi l i ty of the employer i s limited to the immediate reinstatement of the dismissed employees .

The mere act of the employees in seeking help from another union cannot constitute disloyalty. At most, i t was an act of self-preservation of desperate workers. The hasty dismissa l of employees pursuant to the union securi ty clause lends credence that there was connivance with the

union and the company, therefore, the company shall a lso be held l iable for ULP.

The act of the union in arbi trari ly refus ing to a l low a member, who was cri tical to of how the union was being run, to withdraw his resignation while insisting that he be dismissed from his work by reason of a closed -shop

agreement i s ULP.

As a genera l rule, the s tate may not compel a union to admit or readmit thereto any given individual , because membership therein may be a ccorded or withheld as a

matter of privilege. However, the rule i s qualified in respect of labor unions holding a monopoly in the supply of labor. In such a case, admission requirements and adminis tration

become affected with publ ic interest.

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The employer who was reluctant in dismissing an employee

by reason of the insistence of the union to dismiss the latter pursuant to a closed shop agreement i s cannot be

cons idered gui l ty of ULP.

Before a labor organization may be declared to have violated the duty to bargain col lectively, i t must fi rs t be established that the former is the bargaining representative

of the employees. A union that has not been selected as the representative of the employees has no obl igation to

col lectively bargain with the employer.

The employer’s refusal tomake a counterr-proposal to the

union’s proposal for CBA negotiations is an indiction of bad fa i th. The CBA proposed in such case may be imposed on

the employer as -is . o By imposing upon the employer the provisions of

the draft CBA proposed by the union, the interests of equity and fa i r play were properly served and both parties regained equal footing.

(Gen. Mi l l ing Corp. v. CA) Featherbedding – refers to the practice of the union or i ts agents in caus ing or attempting to cuase an employer to pay or deliver or agree

to pay or deliver money or other things of va lue, in the nature of an exaction, for services which are not performed or not to be performed.

A union is guilty of featherbedding for declaring a s trike to

compel an employer to assign two persons to a job that can be performed by only one.

To avoid the poss ibi l i ty of the union’s decis ion being influenced by monetary doleouts from the employer to the union officers, i t is ULP to ask for or accept negotiation fees from the employer as part of the settlement of an i ssue in

col lective bargaining or any other dispute. For a violation of the CBA to be considered as ULP is must

be GROSS VIOLATION. o Gross violations of a CBA shal l mean flagrant

and/or mal icious refusa l to comply with the

economic provis ions of such agreement.

Relief of an illegally dismissed employee: 1. reinstatement to his former pos i tion

- without loss of seniori ty or any other rights .

2. payment of backwages Reinstatement – a restoration to a state4 from which one has been removed or separated. It i s the return to the position from which he was removed, and assuming again the functions of the office already

held.

- Presupposes that the previous position from which one had been removed s ti l l exis ts , or that there i s an un fi l led pos ition more or less of a similar nature as one previous ly

occupied by the employee.

An order of reinstatement with ful l backwages for an indefinite and prolonged period of time is viewed with

dis favor. It i s not only unjust for the employer but a lso fosters indolence on the part of the employee.

ULP is deemed to be purely an administrative offense when

the acts compla ined of hinges on the question of interpretation or implementation of ambiguous provis ions of an existing CBA. By reason of the ambiguity, good fa i th

may be set-up as a defense. Not a l l illegal dismissal constitutes ULP. Only when it results

from any of the acts speci fied in Art. 248 & 249. Seniority rights – rights of employees to certa in preferentia l

treatment based on the length of service. - An employee has no inherent seniority rights, this is based

on contract or s tatute or adminis trative regulation.

Officers of a corporation may be held jointly and severa l ly l iable with the latter for damages for the i llegal dismissal of an employee i f the former acted oppresively, willfully and in

bad faith. Their l iability i s based on Art. 19, 20, 21 and 1701, NCC.

Basis of Computation of Backwages and Separation Pay:

1. Bas ic Sa lary 2. Transporta ion and emergency a l lowances 3. Vacation or service i ncentive leaves 4. Sick leaves 5. Thirteenth month pay

Separation pay may not be awarded in l ieu of reinstatement

to an employee who was dismissed by reason of ULP. Otherwise, the employer would still get what he wants and the ULP is condoned.

Separation Pay Backwages

- Substi tute for immediate and continued re-

employment with the company

- To rel ieve the employee of loss of earnings that he

suffered during the period between his

dismissa l and his reinstatement.

- oriented towards the immediate future, transi tional period the dismissed employee

must undergo before locating a replacement job.

- a form of rel ief hat restores income that was lost by reason of unlawful dismissa l

Separation Pay, How Computed (Grol ier Int’l ., Inc. v. Amansec):

- Rate of 1 month for EVERY year of service from the s tart of his employment up to the time of termination.

- Includes the 3-year period in respect of which backwages are awarded a lthough the dismissed employee did not actual ly serve during the latter period.

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- The salary rate prevailing at the end of the 3-year period of putative service should be used in such computation.

ULP cases are not, in view of the publ ic interest involved, subject to compromise.

PENALTY FOR ULP: 1. Fine of not less that P1,000 2. Imprisonment of not less tha n 3 months nor more than 3

years . 3. Both at the discretion of the court.

CHAPTER XVI TERMINATION OF EMPLOYMENT

AND RETIREMENT

SECURITY OF TENURE Right of employee against unjust and arbi trary dismissal. Since work is property in a constitutional sense, he can not be deprived of i t without:

1. a just or authorized cause 2. benefi t of a hearing

- includes his rights against unwarranted transfers , demotion and diminution of his benefi ts . - this is enshrined under Article XIII sec 3 and reiterated in Article III of the Labor Code -does not guarantee perpetual employment, an employee may s till be terminated for just or authorized causes . UNION SECURITY CLAUSE vs. SECURITY OF TENURE (Art 280 LC) USC is a contractual limitation upon the ST of employee, pursuant to the pol ice power of the State, intended to make unions s trong, thereby becoming effective instruments for the worker’s protections.

The ST of an employee must yield to a va l id USC.

The following are the REGULAR EMPLOYEES: 1. Those engaged to perform services which are necessary and

des irable to the business of the ER, employement not for a

affixed project nor seasonal . 2. Casual EE’s- 1 year of service continuous or broken, regular

as to the activity they perform, and employment continues with the activi ty

CASUAL EMPLOYMENT EE i s engaged to perform tasks which are not necessary or des i rable to the bus iness of the or trade of the ER

-enjoys ST i f has already rendered at leats 1 yr of service continuous or broken

CONSEQUENCE OF VIOLATION OF ST EE unjustly dismissed shall be entitled to reinstatement w/o loss of

seniority rights and other priveleges , ful l back wages , and other benefits computed from the time his compensation was withheld

unti l he was reinstated. -may a lso recover moral and exemplary damages . Attorney’s fees

Right to NOTICE and HEARING: ART 277 LC:

1. written notice conta ining cause of termination 2. EE’s opportunity to be heard and defend himsel f

ART283 for authorized cause: Must serve a notice to the DOLE one month before the termination.

*The concept of casual and regular employment is designed to put an

end to the practice of ER’s of hiring casuals and deprive them of their regular employment. Bustamante v NLRC: The fact that Employment is only for a period of s ix months does not prevent a worker from be coming a regular

employment – services indespensible to the year round operation of the company. Philippine Fruit and Vegetable Company vs. NLRC: The employment

may be regular even i f the activi ties are not continuous . Ex: employment of seeders, operators, sorters sl icers and jani tors in a food processing company. Company continues operations through

out the year even though the frui ts are seasonal .

Perpetual Help Credit Cooperative vs. Faburada: One’s regulari ty of employment i s not determined by the hours of work but by the nature and length of time one has been in a particular job. Columbus Phil Bus vs. NLRC: Employment of bus drivers and conductors i s cons idered regular, render service necessary and des irable to the business, notwithstanding that they are compensated purely on commiss ion bas is . + Quitclaims and waivers are generally frowned upon as contrary to publ ic pol icy, EE and ER does not s tand on equal footing.

PROJECT has a reference to a particular job or undertaking that may or may not be within the regular or usual business of the ER. Must be

dis tinct, separate and identifiable from the ER’s bus iness , duration must be determined or determinable.

TEST to determine whether project employees or regular employees: WON the employees are assigned to carryout a speci fic project or undertaking the duration and scope of which are speci fied at the time the EE’s are engaged for that project.

PROBATIONARY EMPLOYMENT not exceeding 6 months to determine i f the EE’s can qual i fy for regular employment i n

accordance with reasonable standards prescribed by the employer.

PERIODS: APPRENTICES: 6 mos or less depending upon the nature of the job, the apprentice may not be under probationary employment for the

company where he tra ined LEARNER -may be 3 mos .

PROFERSSORS/ INSTRUCTORS/TEACHERS: (DOLE-DECS-CHED –TESDA Ord. No. 01 s1996): Elem and HS: 3 years Col lege: 6 consecutive semesters REQUIREMENTS for private school teacher to acquire security of

tenure: 1. ful l time teacher 2. rendered 3 consecutive years of service

3. satis factory service

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PAKYAO EE’s who are considered regular workers enjoy securi ty of tenure, as long as the owner of the establ ishment exercise control

over them. JUST CAUSESArt 282 LC)

1. Serious misconduct or wilful disobedience by the EE of the lawful order of the ER in connection with his work

2. Gross and habitual neglect by the EE of his duties 3. Fraud or wilful breach by the EE of the trust reposed in him

by his employer 4. commission of a crime by the EE ga inst the Er, his fami ly

5. other analogous causes( those characterized by fault or culpabi l i ty of EE ie inefficiency)

AUTHORIZED CAUSE: 1. Insta l lation of Labor saving device

2. Redundancy 3. Retrenchment to prevent losses 4. closure of establishment unless for a cause to obey the law 5. Disease

Almira et al. vs. Goodrich: Reluctance of Courts to allow the dismissal of a worker. The law regards the worker with compass ion. Where a penalty less punitive would suffice, whatever missteps may be committed by the worker should not be vis i ted with the supreme penalty of dismissa l . Instances when DISMISSAL was deemed HARSH:

1. Pioneer texturizing vs . NLRC: Dismissa l of reviser after 12 years of service after merely trimming the cloth negligently.

2. National Sugar Refineries vs . NLRC: 20 years service, negl igence as warehouse supervisor

3. Perez vs . Medical City: Pi l ferage of some office suppl ies

after 20 years of service. DISMISSAL not harsh: Jamer vs . NLRC: cashiers fa i led to report shortages to the manager- breach of fiduciary trust, regrettable lack

of loya l ty. * Cosep vs. NLRC: Misconduct, however serious must be in

connection with the employees work in order to consti tute a just cause for separation.

+ Clearance from DOLE prior to dismissal of employee except for just cause i s no longer necessary.

Twin requirement prior to dismissal: ( Neither can be dispensed

with) 1. Notice- to inform the employee concerned of the

employer’s intent to dismiss and the reason for the sa id dismissa l .

2. Hearing- affords the EE an opportunity to answer his Er’s charges

Batangas Laguna Tayabas Bus Co. vs. NLRC: Fi re now expla in later- NOT ALLOWED! Not in accordance with due process .

Seahorse Maritime Corp vs. NLRC: Notice and hearing apply to seamen. Before disembarking from the vessel, must be given notice

of charges against him and afford a formal investigation where he can defend himsel f personal ly.

+ Pending the resolution of the case by the labor arbi ter, the

dismissed EE may be ordered reinstated, i f there i s a prima facie finding by the appropriate official of DOLE that the termination may cause a serious labor dispute or an implementation of a mass lay off. + Employer has the burden of proving the exis tence of va l id or authorized cause.

CONSTRUCTIVE DISMISSALS:

a. EE quits work due to ER’s unreasonable, humi l iating and demeaning actuations which rendered continued work

impossible is deemed to have been illegally dismissed, w/o diminutions of sa lary.

b. …means quitting because continued employment i s

imposs ible, unreasonable or unl ikely, as an offer in diminution in rank and in pay

c. … is an involuntary resignation resorted to when continued employment rendered imposs ible.

d. Transfer amounts to constructive dismissa l when i t i s UNREASONABLE, UNLIKELY, INCONVINIENT, IMPOSSIBLE AND PRJUDICIAL TO THE EMPLOYEE

Elements of DISOBEDIENCE or INSUBORDINATION:

1. EE’s conduct must have been wi l ful and intentional , wil fulness being a wrongful and perverse mental atti tude

2. The rules instructions must be reasonable, lawful , made known to the EE and perta in to the duties which he has been engaged to discharge

GROSS NEGLIGENCE as a ground for dismissa l : negl igence

characterized by want of even the slight care, acting or omitting to act in a s ituation where there is duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences as far

as other persons may be affected. LOSS OF CONFIDENCE as a ground for dismissal- a va lid ground, proof beyond reasonable doubt i s not required to dismiss him in his charge.

It i s sufficient i f there i s some bas is for the loss of confidence. Requis i tes :

1. Should not be s imulated

2. should not be used as a subterfuge for i llegal or unjusti fied causes

3. should not be arbi trary and asserted in the face of overwhelming evidence to the contrary

4. must be genuine and not a mere afterthought to justi fy

earl ier action taken In bad fa i th

+ LOC applicable only to those EE’s who enjoy some degree of trust and confidence of the Er as that i s one of the reasons why he was employed in the fi rs t place.

CHAPTER 17 REMEDIES Art. 217. Labor Arbiters shall have original and exclusive jurisdiction

to hear and decide within thirty (30) working days after submission of the case by the parties for decision without extension the fol lowing cases involving workers, whether agricul tura l or non -agricul tura l :

1. Unfair labor practice (ULP) cases ; 2. Termination disputes ;

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3. If accompanied with a claim for reinstatement, those cases that workers may fi le involving wages, rates of pay, hours of

work and other terms and conditions of employment; 4. Cla ims for actual, moral, and exemplary and other forms of

damages arising from the employer-employee relations ; 5. Cases arising from violation of Art. 264 including questions

involving the lega l i ty of s trikes and lockouts ; and

6. Except claims for employee’s compensation, social securi ty, medicare and maternity benefits, al l other cla ims aris ing from employer-employee relations , including those of persons in domestic or household service, involving an

amount exceeding P5,000.00 whether or not accompanied with a cla im for reinstatement.

May lack of jurisdiction of the Labor Arbiter be raised for the first time on appeal?

YES. Jurisdiction over the subject matter is conferred by law. Estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. The defense may be interposed at any time, even on appeal, or even after final judgment. (Union Motors Corp. vs . NLRC, September 16, 1999) NO. Whi le jurisdiction may be assailed at any s tage, a party’s active participation in the proceedings before a court without jurisdiction wi l l estop such party from assailing lack of i t. (Ilocos Sur Electric Coop. vs . NLRC, February 1, 1995) NO. Where a party has voluntarily submitted to the jurisdiction of the court or tribunal , he cannot later on, i f he gets an unfavorable judgment, adopt an incons is tent posture and attack the latter’s

jurisdiction. (Ti jam vs . Sibonghanoy, August 18, 1988) However, where the tribunal has not yet decided the case, a party can

s ti ll raise the issue of lack of jurisdiction. (Vargas vs . Akai Phi l s ., Dec. 14, 1987)

The Labor Arbiter cannot acquire jurisdiction over the person of the respondent without the latter being served with summons. In the absence of service of summons or a va lid waive thereof, the hearings and judgment rendered by the Labor Arbiter are nul l and void .

Are technical rules of procedure and evidence prevailing in courts of law applicable to proceedings before labor arbi ters and the NLRC?

NO. It i s the spirit and intention of the Code that they shall use every and a ll reasonable means to ascertain the fa cts in each case speedi ly

and objectively, without regard to technicalities of law or procedure, a l l in the interest of due process .

Do Labor Arbiters have jurisdiction to hear and decide cla ims for damages aris ing from unfa ir labor practices? YES.

Does the Regional Director of the Department of Labor have jurisdiction to hear and decide money cla ims of workers? YES, through summary proceedings and after due notice. What are the requisites for the exercise of the power of the Regional Director to adjudica te employees ’ money cla ims? Under Art. 129, the ff. requis i tes must concur:

1. the claim is presented by an employee or person employed in domestic or household service or househelper;

2. the cla im arises from employer-employee relations ;

3. the claimant no longer being employed, does not seek reinstatement;

4. the aggregate money cla im of each employee or househelper does not exceed P5,000.00.

Even i f the claim exceeds P5,000.00, the Regional Director may s ti l l exercise the enforcement and visitorial powers vested in him by Art.

128. Is the decision of the Regional Director appealable? YES, to the NLRC on grounds provided in Art. 223, within five ca lendar days from receipt of a copy of sa id decis ion.

How are disputes aris ing from wage dis tortions settled? When there i s CBA, through the grievance procedure and, i f i t remains unsolved, through voluntary arbi tration. When there i s no CBA, the dispute shal l be settled through the

National Conciliation and Mediation Board (NCMB) and, if it remains unsolved after ten ca lendar days of conciliation, shal l be referred to the appropriate branch of the NLRC.

Some decisions on jurisdiction

Not every dispute between an employer and employee involves matters that only labor arbi ters and the NLRC can resolve. For example in a simple col lection sui t wherein the employer i s the creditor and the employee the debtor. The fact that they were employer and employee at the time of the transaction does not negate the civi l jurisdiction of the tria l court. The case does not involve adjudication of a labor dispute but recovery of a sum of money. If the relief sought has to do with the enforcement of the contract or the recovery of damages agreed upon in the contract, such cause of action i s within the rea lm of Civi l law, and jurisdiction over the controversy belongs to the regular courts .

The labor arbiter does not have jurisdiction over claims based on tort or quasi-delict that has no reasonable causal connection with any of

the claims provided for in Art. 127, other labor statutes, or CBAs . The employer-employee relation i s merely incidenta l .

It i s the RTC and not the NLRC which has origina l and exclus ive jurisdiction over cases involving the removal from employment of corporate officers . A corporate officer’s dismissa l i s a lways a corpporate act and/or an intra -corporate controversy.

The Labor Arbiter has no jurisdiction over a compla int for i l lega l dismissa l fi led against a branch, agency, subdivis ion and

instrumentality of the government, including GOCCs . It falls under the jurisdiction of the Civi l Service Commiss ion (CSC). However, only

GOCCs with origina l charters are embraced in the civi l service. The labor arbiter has jurisdiction over a termination and ULP case

fi led by workers who were dismissed, notwithstanding the fact that the CBA provides that “wages , hours of work, conditions of

employment and/or employer-employee relations shall be settled by arbitration.” The CBA must s tate in unequivocal language that the company and the union conform to the submiss ion of termination disputes and ULP to voluntary arbi tration. The labor arbiters, not the regular courts, have original and exclus ive jurisdiction to hear and decide questions involving the lega l i ty of

s trikes and lockouts . An employee cannot be permitted to prosecute his claims piecemeal .

He cannot be allowed to sue in two forums: one, before the Labor Arbiter for reinstatement and recovery of backwages , or for

separation pay, upon the theory that his dismissa l was i l lega l ; and two, before a court of justice for recovery of moral and other

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damages, upon the theory that the manner of his dismissa l was unduly injurious, or tortious. This is what in procedural law is known

as splitting causes of action, engendering multiplicity of actions . It i s such dupl ici ty which the RoC regard as ground for abatement or dismissal of actions, constituting either litis pendentia or res judicata. If the claim for damages is interwoven with a labor dispute exis ting

between the parties, it must be ventilated before the labor arbiter to avoid “spl i t jurisdiction” which i s obnoxious to the orderly adminis tration of justice.

If the a lleged injury i s di rectly related to the employer-employee relationship, the compla int i s barred by the “reasonable causes connection rule” which recognizes the jurisdiction of labor arbi ters

over cla ims for damages in connection with termination of employment. What is essential is the character of the principal rel ief

sought. Where such relief can be granted under the Labor Code, the case should fall within the juris diction of the Labor Arbiter, even though a claim for damages might be asserted as an incident to such cla im. Damages As a rule, moral damages are recoverable only where the dismissal of the employee was attended by bad faith or fraud or consti tuted an act oppressive to labor, or was done in a manner contrary to morals , good customs, or public policy, and that social humiliation, wounded feel ings , grave anxiety, etc. resulted therefrom. Al though his dismissal is based on just or authorized causes , he may

s ti ll recover moral and exemlary damages from the employer i f the latter effected the dismissal in an anti-social or oppress ive manner.

As regards exemplary damages , they may only be awarded i f the dismissal was shown to have been effected in a wanton, opp ress ive or malevolent manner, or where the party involved is enti tled to

moral or compensatory damages . In an action for recovery of wages or where an employee was forced to l i tigate and incur expenses to protect his rights and interest, he i s enti tled to an award of attorney’s fees .

May an employee be awarded 13th month pay and holiday pay even if he did not prove that he was not pa id theses benefi ts?

YES. The claimant’s allegation of non -payment is a negative allegation which need not be supported by evidence unless i t is an essential part

of the cause of action. The burden of proving that payment of sa id benefi ts has been made rests upon the employer.

May the labor arbi ter adjudicate on cla ims not a l leged in the compla int?

YES, provided the claims are made in the compla inant’s pos i tion paper. Is the labor arbi ter required to hold formal hearings? The holding of a formal hearing or trial i s discretionary with the labor arbi ter and is something that the parties cannot demand as a matter of right. It i s within his authority to decide the case before him, based

on the position papers and supporting documents of the parties , without a tria l or formal hearing.

Is the Rules of Court appl icable to proceedings before the labor arbi ter and NLRC?

YES, in the absence of any applicable provision in the NLRC Rules of Procedure.

The Ministry of Labor and Employment does not have jurisdiction

over an independent contractor’s cla im because no employer-employee relationship exis ts . If some of the workers of the independent contractor were not pa id their wages, the indirect employer will be jointly and severally l iable with the independent contractor for unpaid wages to the extent of

the work performed under the contract. Does the labor arbi ter have jurisdiction over a cla im for i l lega l dismissal filed by a pastor against the Seventh-Day Adventist Mission

Corporation, in view of the principle of separation of Church and State? YES. What i s involved here i s the relationship of the church as

employer and the minister as an employee. It i s purely secular and has no relation whatsoever with the practice of fa i th, worship or

doctrines of the church. The Med-Arbiter of the Bureau of Labor Relations has exclus ive and original jurisdiction over intra-union and inter-union controversies. An intra-union conflict i s within or inside a labor union. An inter-union confl ict is one occurring or carried on between or among unions. The decision of the Med-Arbiter is appealable to the Secretary of Labor. Labor Arbiters have no jurisdiction over inter-union or intra -union confl icts , except where the same a lso consti tute ULP. Ordinary notices usually published in the newspapers informing the publ ic that a certa in employee is no longer connected with an

employer are not libelous. This is necessary to protect the bus iness from loss or injury.

The labor arbiter does not have jurisdiction over a case that involves the interpretation of CBA. Matters involving the interpretation of a

CBA not resolved or settled through the grievance machinery must be referred to voluntary arbi tration. Matters that fall under the origina l and exclus ive jurisdiction of voluntary arbi trators provided for in a CBA:

1. Unresolved grievances arising from the interpretation or implementation of the CBA and those aris ing fro m the interpretation or enforcement of company personnel

pol icies . 2. Al l other labor disputes including ULP and bargaining

deadlocks submitted to them by agreement of the parties . 3. Al l wage distortion issues arising from the application of any

wage orders .

4. Al l unresolved grievances aris ing from the interpretation and implementation of the productivity incentive programs

under RA 6971. Only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbi trators . An actual termination case falls within the jurisdiction of the labor arbi ter. Within what period should (a) a compla int for ULP and (b) money

cla ims be fi led with the labor arbi ter? (a ) Within one year from accrual thereof, otherwise, it shall be

forever barred.

(b) Within three years from the time the cause of action accrues , otherwise, they shal l be forever barred.

When does the prescriptive period s tart to run?

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The prescriptive period for an action for reinstatement or for money cla ims starts to run only when the employer makes a categorica l

rejection of the cla im; mere inaction cannot be cons idered categorica l . How may the three year prescriptive period for money cla ims be interrupted?

By the fi ling of the claim with the appropriate judicial or quasi-judicial body or by a wri tten demand addressed to the employer (debtor). If the case i s fi led before the RTC and is dismissed for lack of jurisdiction, the claimant will be left in exactly the same position as i f

no civi l case had been fi led at a l l . Art. 292. Money claims shall be filed before the appropriate enti ty

independently of the criminal action that may be insti tuted in the proper courts . Pending the fina l determination of the meri ts of

money claims filed with the appropriate entity, no civil action aris ing from the same cause of action shal l be fi led with any court. A criminal case filed against an employee does not have the effect of suspending or interrupting the running of the prescriptive period for the fi ling of an action for i l lega l dismissa l . An action for i l lega l dismissal is an administrative case which is separate and distinct from a criminal action. The procedure followed by labor arbi ters in the hearing of cases : The labor arbiter shall first summon the parties for the purpose of amicable settlement, simplification of issues, and determination of

other preliminary i ssues. If no amicable settlement i s arrived at, he shall require the parties to submit verified position papers and then

determine whether there is a need for a formal trial or hearin g. The decision of the labor arbiter must be clear and concise and conta in a brief statement of facts, the issues and laws involved, the reasons

therefor, and the rel ief granted. Non-lawyers may appear before labor arbiters only i f they represent themselves or their organizations or members thereof.

The decisions of labor arbiters are appealable within ten ca lendar (not working) days from receipt of the decision, to the NLRC, on the

ff. grounds: 1. There is prima facie abuse of discretion on the part of the

labor arbi ter; 2. If the decision, order or award was secured through fraud

or coercion, including graft and corruption;

3. If made purely on questions of law 4. If serious errors in the findings of facts are ra ised which

would cause grave or irreparable damage or injury to the appel lant.

A peti tion for relief from the decision of the labor arbiter may be filed with the NLRC within 60 days from knowledge of the judgment and within six months from entry of the judgment. The reglementary period is reckoned from the time the party’s counsel receives notice of the decis ion.

How is the appeal perfected? By the fi ling by the appellant with the labor arbiter his memorandum

of appeal, copy furnished the appel lee, and the payment of the appeal fee. If the tenth day fa l l s on a Saturday, Sunday or a lega l

hol iday, the appeal may be filed on the next bus iness day. Where

there was a one day delay in the filing of the appeal occasioned by a typhoon, the appeal may s ti l l be a l lowed.

Even where the reglementary period for filing an appeal has a l ready lapsed, a peti tion for rel ief fi led by the workers may s ti l l be entertained in order to prevent deprivation of benefi ts which are rightful ly due them.

The law does not provide that payment of the appeal fee is necessary for the perfection of the appeal. Failure to pay the appeal fee docket i s not fatal. As a matter of fact, Art. 277 (d) provides that no docket fee shal l be assessed in labor s tandard disputes .

The legal effect of failure of the appel lant to furnish a copy of his memorandum appeal to the adverse party i s a mere formal lapse and

an excusable neglect. It does not justi fy dismissa l of the appeal .

General Rule: The perfection of an appeal in the manner and within the period prescribed by law should not only be cons idered mandatory but jurisdictional . Exception: When there is an acceptable reason to excuse tardiness .

1. fundamental cons iderations of substantia l justice 2. prevention of miscarriage of justice or of unjust enrichment 3. special ci rcumstances of the case combined with i ts lega l

meri ts 4. labor arbi ter’s lack of jurisdiction i s pa lpably clear

Is the order of reinstatement of a labor arbiter s tayed by an appeal? NO. The reinstatement aspect of the decis ion i s immediately

executory. The employee shall either be admitted back to work or at the option of employer merely reinstated in the payroll. The posting

of a bond shal l not s tay the execution for reinstatement. How is an appeal by an employer from a monetary award by the labor

arbi ter perfected? Upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.

The fi ling of a motion to reduce bond shall not stop the running of the period to perfect a ppeal .

When is posting of the bond not necessary? If the monetary award cons is ts solely or moral and exemplary

damages . Where the appellant employer is prepared to accept and comply with the monetary awards .

May the posting of a bond in order to perfect an appeal be dispensed

with? YES, i f the appellant is insolvent or a dismissa l of their appeal for fa i lure to post a bond wi l l be tantamount to violation of the constitutional guaranty that free access to courts shall not be denied to any person by reason of poverty. Does the amount of the bond include the award for moral and

exemplary dammages and attorney’s fees? NO. Genera l Rule: A party who has not appealed is not enti tled to

affi rmative relief other than the ones granted in the decis ion of the court below.

Exception: Errors may be considered, a l though unass igned, i f they involve:

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1. Errors affecting the lower court’s jurisdiction over the subject matter

2. Pla in errors not speci fied 3. clerica l errors

Rationale: The s trict and rigid application of Rules of Procedure would result in technicalities that tend to frustrate rather than promote substantia l justice.

Compos ition of the NLRC The NLRC is composed of a Chairman and 14 members. Five members each shall be chosen from among the nominees of the workers and

employer’s organizations respectively. The Chairman and the four remaining members shal l come from the publ ic sector. The Commission may s it en banc or in five divisions, each composed

of three members. The first and second divisions shall handle cases coming from the NCR, and the third, fourth and fifth divisions , cases

from other parts of Luzon, from the Visayas and Mindanao, respectively. Powers of the NLRC

1. Promulgate rules and regulations governing the hearing and dispos i tion of cases .

2. To administer oaths, summon the parties, issue subpoenas 3. To conduct investigation for the determination of a

question, matter or controversy within i ts jurisdiction; di rect parties to be joined or excluded from the proceedings, correct, amend, or waive any error, defect o r i rregulari ty whether in substance or in form

4. To hold any person in contempt directly or indirectly and impose appropriate penalties therefor.

5. To enjoin or restrain any actual or threatened commiss ion of any or a ll prohibited or unlawful acts or to requi re the performance of a particular act in any labor dispute.

Labor Arbiter Aquino found that PAL i llegally dismissed Singson. PAL appealed Aquino’s decision to the NLRC. Meanwhile, Aquino was appointed the pres iding commiss ioner of the second

division of the NLRC. The second division acted on PAL’s appeal , revers ing the decision of then Labor Arbiter Aquino. Is the NLRC decis ion revers ing the labor arbi ter’s decis ion va l id?

NO. There was a denia l of due process when Commiss ioner

Aquino participated in reviewing his own decis ion as a former labor arbi ter. Li tigants are enti tled to a review of three commissioners who are impartial from the s tart of the review

process . Commiss ioner Aquino can hardly be cons idered impartial since he was the arbiter who decided the case under

review. Is the NLRC or a Labor Arbiter empowered to conduct an ocular inspection? YES. Under Art. 219, at anytime during working hours and ask any employee or any person for any information or data concerning any matter relative to the object of the investigation.

May the NLRC cons ider evidence submitted for the first time on appeal?

YES, in order to avoid denia l of due process . But where the document submitted to the NLRC for the fi rs t time on appeal

was available during the proceedings before the labor arbi ter,

the appellant cannot offer any excuse for i ts non-submiss ion, and admission of such document by the NLRC is unwarranted.

During the pendency of the appeal before the NLRC, the parties entered into a compromise agreement. Is the co mpromise agreement which was approved by the NLRC va l id? YES. Under Art. 2041 of the Civi l Code, should a party fa i l or

refuse to comply with the terms of a compromise or amicable settlement, the other party could ei ther (1) enforce the compromise by a writ of execution, or (2) regard i t as rescinded and so ins is t upon his origina l demand.

Summons on the respondent shall be served on the respondent personally or by registered mail. If the party i s represented by

counselor or any authorized representative or agent, summons shal l be served on such person.

What i s the judicial remedy against decis ions of the NLRC and the Secretary of Labor and Employment? Peti tion for certiorari under Rule 65, for grave abuse of discretion amounting to lack or excess of juris diction. The peti tion should be fi led with the Court of Appeals . Within what period should the peti tion for certiorari be fi led with the Court of Appeals? Within 60 days from notice of the judgment or from notice of the resolution denying the peti tioner’s motion for recons ideration.

Is the failure of the petitioner to file a motion for reconsideration

before filing a petition for certiorari before the Court of Appeals a lways a fata l omiss ion? NO, in the interest of substantial justice, the procedura l laps e

may be dis regarded to afford protection to the dismissed employee. But an MR is not required when the questions ra ised in the petition for certiorari are those which have been squarely ra ised in and passed upon by the NLRC.

The decis ion of the Secretary of Labor i s subject to judicia l review only through a specia l civi l action for certiorari . The general rule i s that an MR is indispensable before resort to

the specia l civi l action for certiorari to afford the court or tribunal the opportunity to correct i ts error, i f any. Any party

cla iming exemption from this rule must show sufficient justi fication.

What weight should be given to the factual findings of the NLRC? Not only respect but at times even final i ty i f such findings are

supported by substantial evidence, especially so i f the findings are affirmed by the CA. Such findings of fact can only be set aside upon showing of grave abuse of discretion, fraud, or error of law. The contradictory findings of the NLRC and the CA provide sufficient justi fication for the SC to review the facts . How should the monetary award of the POEA against a recrui ter

be imposed? It should initially be enforced against the cash and surety bonds fi led with the POEA. These bonds answer for all sorts of liabilities

of the recruiter to the worker and to the POEA. The obl igations they guarantee are continuing; they are subject to

replenishment when they are garnished and failure to replenish

LABOR LAW REVIEW


shall cause the suspens ion or cancel lation of the recrui ter’s l i cense.

Who has the power to suspend or cancel the license or authority to recrui t employees for overseas employment? This power i s concurrently vested with the POEA and the Secretary of Labor under Art. 35.

Art. 36 empowers the Secretary of Labor to restrict and regulate the recrui tment and placement activi ties of agencies .

Remedies of a third party whose properties have been levied upon in a labor case: Fi le a third party claim with the Sheriff of the Labor Arbiter; and

If the thi rd party claim is denied, the third party may appeal the denia l to the NLRC.

The fi ling of a third party claim with the Labor Arbiter and the NLRC does not preclude the petitioner from filing a subsequent action for recovery of property and damages with the RTC. And the institution of such wi l l not make the peti tioner gui l ty of forum shopping. Is the order of execution of a fina l and executory judgment of the Labor Arbiter appealable? NO. Otherwise, there would be no end to a case. What i s voluntary arbi tration?

It i s the settlement of a controversy or disputed matter by the decision of arbitrator or arbitrators, freely selected or chosen by

the parties and to whom such controversy or disputed matter i s by agreement submitted for a fina l and binding decis ion.

What i s compulsory arbi tration? They may take place without or against the wi l l of the parties . They are compel led by law to submit their disputes to arbi tration.

May the Secretary of Labor exclude the union officers , shop s tewards and those with pending criminal charges from the

directive to the Company to accept back the s triking workers? NO. Once an assumption/certification order is issued, strikes are

enjoined, or i f one has a l ready taken place, a l l s trikers shal l immediately return to work. To exclude them without fi rs t determining whether they knowingly committed i l lega l acts

would be tantamount to dismissa l without due process .

May the Secretary of Labor order the execution of his order which is being questioned in a certiorari proceeding in the SC? YES, for as long as no writ of injunction or restra ining order i s i s sued in the special civil action for certiorari , no impediment exis ts and there i s nothing to prevent the lower court from exercising its jurisdiction and proceeding with the case pending before i t.

Are voluntary arbitration awards or decisions appealable to the labor arbi ter or the NLRC?

NO. Voluntary arbitration awards shal l be fina l and executor after ten days from receipt of the copy of the award or decis ion

by the parties. They may be executed when any interested party

fi les a motion for execution before the voluntary arbitrator or in his absence the labor arbi ter.

Do awards or decisions of voluntary arbi trators consti tute res judicata? YES, on the theory that the matter has been adjudged by the tribunal which the parties have agreed to make as tribunal of last

resort. Art. 262-B provides that awards of voluntary arbitrators are final and executor. May such awards be nevertheless subject to

judicia l review? YES. The errors of fact or law must be so potent and gross and prejudicia l as to amount to a grave abuse of discretion.

The proper remedy from an adverse decis ion of the voluntary arbi trator i s a peti tion for review under Rule 43 of the 1997

Rules of Civil Procedure, which must be filed with the CA within 15 days from notice of the decision of the voluntary arbi trator. Do Labor Arbiters or the NLRC have jurisdiction over criminal cases involving violations of the penal provisions of labor laws? NO. They do not adhere s trictly to the technica l rules of evidence. This is required in criminal cases where the guilt of the accused must be established beyond reasonable doubt. The regular courts have jurisdiction over criminal cases involving violations of the labor laws. Is P.D. 1508, the Katarungang Pambarangay Law, appl icab le to

labor cases? NO. The conci liation and mediation of labor disputes, grievances

or problems fa l l within the jurisdiction of the DOLE. Are uns igned print-outs presented by the employer before the

Labor Arbiter to show that the employee’s attendance was poor admiss ible in evidence? NO. The print-outs which were not s igned ei ther by the employer or by the employee afford no assurance of their

authentici ty. May the buyer of a business be held liable for the obligations of

the previous owner to the employees? As a GR, NO. But where before buying the bus iness

establishment, the new owner very well knew that the previous owner had outstanding obligations to the employees, the former may be held jointly and severally l iable with the latter for the

payment of the cla ims.

Liabi l i ty of corporate officers : Corporate officers and/or agents are not personal ly l iable for money claims of discharged employees absent any showing that they acted with evident malice and bad faith in terminating their employment. The employee or agent of a corporation engaged in unlawful bus iness natura l ly a ids and abets in the caring on of such

bus iness and will be prosecuted as principal i f, with knowledge of the bus iness , i ts purpose and effect, he conscious ly contributes his efforts to its conduct and promotion, however

s l ight his contribution may be.

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CHAPTER XVIII THE SOCIAL SECURITY LAW RA 1161 as am. RA 8282. March 24, 1997.

Social Security Law - enacted to establish, develop and perfect a social security system suitable to the needs of the people throughout the Phi lippines which shall provide the covered employees (members) and their families protection against the hazards of disability, s ickness, old age and death.

COMPULSORY

LEGITIMATE EXERCISE OF POLICE POWER

AFFORDS PROTECTION TO LABOR TAX EXEMPT

COVERAGE (COMPULSORY)

1. Employees, not over 60 years of age 2. Employers

3. Domestic Helpers earning not less than P1,000/month 4. Sel f-employed

(VOLUNTARY) 1. Spouses who devote full time to managing their

household and family affairs, unless engaged in other

vocation or employment (homemakers) 2. Overseas Filipino Workers

Employer – any person, natural/juridical, domestic/foreign, who

carries in the Philippines any trade, business, industry, undertaking or activi ty of any kind and uses the services of another who is under his orders as regards the employment Except: Government Includes religious organization

Self-employed – employer and employee at the SAME TIME

One whose income is not derived from employment, Including:

1. Professionals

2. Partners & s ingle proprietors of business 3. Actors/Actress, directors, scriptwriters who do not fall under

the definition of employee 4. Professional athletes, coaches, trainers and jockeys 5. Individual farmers and fishermen

Control Test determines whether there exists an employer-employee relationship for the purpose of coverage

Not necessary that the employer actually exercises the power to control the employee.

Sufficient that such power could have been exercised under the ci rcumstances.

EXEMPT FROM COVERAGE:

1. Purely casual employment 2. Service performed on or in connection with an alien vessel 3. Government employees

4. Service performed in the employ of foreign government or international organization

5. Temporary employees which may be excluded by regulation of the Commission

PURELY CASUAL – when the services rendered was not for the purpose of the occupation or business of the employer.

Dependent upon contingency

Coverage Starts: 1. Employees – fi rst day of employment 2. Employer – fi rst day of operation 3. Sel f-employed – upon registration with SSS

“Once a member, always a member” Rule: even after termination of employer-employee relationship, the member-employee shall be credited with all contributions paid on his behalf and entitled to benefits according to the SSS Law.

He may continue to pay the total contributions to maintain his ful l rights to the benefits.

A self-employed member i s not required to pay contributions for the month wherein he did not realize any income

May be a llowed to continue paying contributions under the same rules applicable to a separated covered employee

No retroactive payment of contributions a llowed

Employers are required to deduct and withhold from employees’ monthly salary, wage, compensation or earning and remit to the system (Sec. 18)

o Beginning as of the last day of the calendar month when an employee’s compulsory coverage s tarts

and every month thereafter during his employment.

Compensation – a l l actual remuneration for employment, including mandated CoLA, as well as the cash va lue of any remuneration in excess of the maximum salary credit provided for in Sec. 18

The employer shall not deduct directly or indirectly from his EMPLOYEES or otherwise recover from them the EMPLOYER’S contribution with respect to such employees.

Contributions of self-employed individuals covered by Sec. 18: Monthly net earnings shall be considered as his monthly compensation Shall pay both the employer and employee contribution Net earnings – net income before taxes + non-cash charges ,i .e., depreciation and depletion

The revenues of the SSS are used to meet current administrative and operational expenses and for payment of benefits under SSS Law.

SSS PREMIUM TAXES For the promotion of general

wel fare

Purpose is to ra ise revenues

Funds belong to the members

who wi ll receive benefits as a matter of right whenever

contingency provided in law occurs

Funds belong to the coffers of

the government

Benefits: 1. Sickness

2. Permanent Disability 3. Maternity 4. Retirement

5. Death & Funeral

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6. Loans Membership with the SSS is the basis for enjoyment of

benefits under the law

Sickness benefit – a da i ly allowance paid to a covered employee who becomes sick and is confined in an hospital for more than 3 days or

elsewhere with the Commission’s approval . 90% of da i ly salary credit shall be paid for not more than 120 days in one ca lendar year

Shall not be paid for more than 240 days on account of the same confinement Requirements:

1. Payment of at least 3 monthly contributions in the 12 month period immediately preceding the semester of s ickness

2. Sickness or injury and confinement for more than 3 days in a hospital or elsewhere with the Commission’s approval

3. Notice of the fact of illness by the Employee to the Employer within 5 ca lendar days after start of confinement, unless, Employee became sick or injured while working or

within the premises of the employer then NO NOTICE IS REQUIRED.

4. Exhaustion of sick leaves of absence with full pay to the credit of the Employee.

The Employer shall pay the a llowance promptly every regular payday subject to 100% reimbursement by the SSS

upon receipt of satisfactory proof of payment and legality thereof.

o Provided, Employer has notified the SSS within 5 days from receipt of notice from Employee

o If made after 5 ca lendar days shall be reimbursed only for each day of confinement s tarting from the 10th ca lendar day immediately preceding the

date of notice to the SSS.

NO REIMBURSEMENT: 1. Employer failed to notify the SSS of confinement 2. For Unemployed Member, failure to send the notice directly

to SSS except when the confinement is in a hospital 3. When claim is made after one year from confinement

PERMANENT DISABILITY: Permanent Total | Permanent Partial

Permanent Total: 1. Complete loss of sight of both eyes 2. Loss of 2 l imbs at/or above ankle/wrists 3. Permanent complete paralysis of 2 l imbs

4. Brain injury resulting to incurable imbecility or insanity 5. Such cases as determined & approved by SSS.

Permanent Disability Benefits: Sec. 13-A Upon the permanent total disability of a member who has paid at

least thirty-six (36) monthly contributions prior to the semester of disability, he shall be entitled to the monthly pension: Provided, That i f he has not paid the required thirty-six (36) monthly contributions,

he shall be entitled to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS or

twelve (12) times the monthly pension, whichever is higher. A member who (1) has received a lump sum benefit; and (2) is

reemployed or has resumed self-employment not earlier than one (1) year from the date of his disability shall again be subject to

compulsory coverage and shall be considered a new member. The monthly pension and dependents’ pension shall be suspended upon the reemployment or resumption of self-employment or the recovery of the disabled member from his permanent total disability

or his failure to present himself for examination at least once a year upon notice by the SSS. Upon the death of the permanent total disability pensioner, his

primary beneficiaries as of the date of disability shall be entitled to receive the monthly pension: Provided, That i f he has no primary beneficiaries and he dies within sixty (60) months from the start of his

monthly pension, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions

corresponding to the balance of the five-year guaranteed period excluding the dependents’ pension. MONTHLY PENSION (SEC. 12-A):

Dependents’ Pension. - Where monthly pension is payable on account of death, permanent total disability or reti rement, dependents’ pension equivalent to ten percent

(10%) of the monthly pension or Two hundred fifty pesos (P250.00), whichever is higher, shall also be paid for each dependent child conceived on or before the date of the

contingency but not exceeding five (5), beginning with the youngest and without substitution: Provided, That where there are legitimate or i llegitimate children, the former shall be preferred.

Average monthly salary credit (SEC. 8 (m))

The result obtained by dividing the sum of the last sixty (60) monthly salary credits immediately preceding the semester of contingency by s ixty (60), or the result obtained by

dividing the sum of a ll the monthly salary credits paid prior to the semester of contingency by the number of monthly

contributions paid in the same period, whichever i s greater: Provided, That the injury or s ickness which caused the disability shall be deemed as the permanent disability for

the purpose of computing the average monthly salary credit.

Average daily salary credit (SEC. 8 (n))

The result obtained by dividing the sum of the six (6)

highest monthly salary credits in the twelve-month period immediately preceding the semester of contingency by one

hundred eighty (180). DEPENDENTS:

1. Legal Spouse, dependent, living with the member 2. Chi ldren (legitimate, legitimated, illegitimate & adopted)

a . Unmarried b. Not ga infully employed

c. Not over 21 If over 21, congenitally or while s till a minor has

been permanently incapacitated or incapable of self-support, physically or mentally

3. parent who is receiving regular support from the member BENEFICIARIES:

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1. Primary a. Dependent spouse until he marries

b. Dependent children 2. Secondary

a. Dependent parents b. Any other person designated by the covered

employee

In case no beneficiary qualifies the death benefits shall be pa id to te legal heirs in accordance with the law on

succession Monthly pension may be suspended upon:

1. re-employment or resumption of self-employment 2. recovery of the disabled member from his PTD. 3. fa i lure to present himself for examination at least once a

year upon notice by SSS.

Retirement Benefits. (SEC. 12-B)

A member who has paid at least one hundred twenty (120) monthly contributions prior to the semester of retirement and who:

1. has reached the age of sixty (60) years and is already separated from employment or has ceased to be self-

employed 2. has reached the age of sixty-five (65) years, shall be

enti tled for as long as he lives to the monthly pension: Provided, That he shall have the option to receive his fi rs t eighteen (18) monthly pensions in lump sum

discounted at a preferential rate of interest to be determined by the SSS.

A covered member who is s ixty (60) years old at retirement and who does not qualify for pension benefits under

paragraph (a) above, shall be entitled to a lump sum benefit equal to the total contributions paid by him and on his behalf: Provided, That he is separated from employment and is not continuing payment of contributions to the SSS on his own.

Death Benefits: Upon the death of a member who has paid at least thirty-six (36) monthly contributions prior to the semester of death, his primary beneficiaries shall be entitled to the monthly pension.

Provided, That i f he has no primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to thi rty-s ix (36) times the monthly pension. If he has not paid the

required thirty-six (36) monthly contributions, his primary or secondary beneficiaries shall be entitled to a lump sum benefit

equivalent to the monthly pension times the number of monthly contributions paid to the SSS or twelve (12) times the monthly pension, whichever is higher. Funeral Benefits: P12,000 paid in cash/kind to help defray the cost of expenses upon the death of a member

Maternity Leave Benefit: need not be married

1. Female member 2. Paid at least 3 months contribution in immediately

preceding the 12-month period prior to the semester

of chi ldbirth or miscarriage 100% of average daily salary credit.

60 days – normal 78 days – caesarean delivery

Conditions: 1. Notice to the employer 2. Ful l payment shall be advanced by the employer within 30

days from the filing of the maternity leave

3. Payment of daily maternity benefit shall be a bar to recovery of s ickness benefit fromt eh same period daliy maternity benefit is received.

4. Paid for the first 4 deliveries/miscarriages 5. SSS shall immediately reimburse the employer 100% of the

amount of MB advanced upon receipt of satisfactory proof of such payment & legality thereof.

6. Employer shall pay SSS damages = to MB whi ch employee is

enti tled to i f the employer fails to remit the contribution or to noti fy.

LOANS:

1. Salary Loan 2. Educational Loan 3. Hous ing Loan 4. Community Hospital Loan

BENEFICIARIES DISQUALIFIED FROM RECEIVING BENEFITS UNDER SSS LAW:

- A national of a foreign country which does not extend benefits to a Filipino beneficiary residing in the Philippines or which is not recognized in Philippines

Provided, that notwithstanding the foregoing, where the best interest of the SSS will be served, the Commission may direct payments without regard to nationality or country of residence.

The benefit payments made by SSS are not subject to tax or attachments and similar processes. a ll benefit payments made by the SSS shall be exempt from all kinds of taxes, fees or charges, and shall not l iable to attachments, garnishments, levy or seizure by or under any legal or equitable process whatsoever, either before or after receipt by the person or persons entitled thereto, except to pay any debt of the member to the SSS.

No tax measure of whatever nature enacted shall apply to the SSS, unless it expressly revokes the declared policy of the State in Section 2 hereof granting tax-exemption to the

SSS. Any tax assessment imposed against the SSS shall be nul l and void.

LIABILITIES OF THE EMPLOYER FOR FAILURE TO REPORT THE

EMPLOYEES’ CONTRIBUTION: 1. It shall pay to the SSS damages equivalent to the benefits to

which the employee would have been entitled had his name been reported on time to the SSS, except that in case of pension benefits, the employer shall be l iable to pay the SSS

damages equivalent to 5 years monthly pension However, if the contingency occurs within the 30 days from

date of employment, the employer shall be relieved of his l iability for damages.

2. i t shall pay the corresponding unremiited contributions and penalties therein.

3. Criminal liability for failure to comply with the provisions of

the SSS law.

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A fine not less than P5,000 nor more than P20,000 and imprisonment for not less than 6 years and 1 day nor more than 12 years.

The Social Security Commission has the jurisdiction over settlement of disputes arising under this SSS Law with respect to

coverage, benefits, contributions or penalties or any matter related thereto.

The decision of the Commission shall become final within 15 days after the date of notification and is subject to judicial review by the Court of Appeals.

Benefits provided for in the SSS law are not transferable and no power of attorney or other document executed by those entitled

thereto, in favor of any agent, attorney, or any other person for the col lection thereof on their behalf shall be recognized except when they are physically unable to personally collect such

benefits. The benefits receivable under the SSS law are in the nature of

special privilege or an arrangement secured by the law pursuant to the policy of the State to provide social security to the

workingman. It cannot be considered as property earned by the member during his l ifetime.

The Social Security Act i s not a law of succession. The benefits due under the SSS law do not form part of the estate of the covered employee. Also, persons other than the heirs of the

deceased employee may be entitled to such benefits.

LIMITED PORTABILITY SCHEME: - A covered worker who transfers employment from one sector

to antoher or is empoloyed in both sectors hsall have his

reditable services or contributions in both Systems credited to his service or contribution record in each of the Systems and shall be totalized for purposes of benefits in case the cove red member does not qualify for such in either or both Systems

without totalization. - Overlapping periods of membership shall be credited only

once. PRESCRIPTION OF ACTION:

- the right to institute the necessary action against the employer within 20 years from the time: 1. del inquency i s known 2. assessment i s made by the SSS 3. the benefit accrues

The managing head, directors or partners of association,

partnership and corporation shall be held liable for any act or omission pertaining to the violation of the said law.

CHAPTER XIX THE REVISED GOVERNMENT SERVICE INSURANCE SYSTEM

CA 186, Nov. 14, 1936

P.D. 1146, May 31, 1977 RA 8291, 1977 COVERAGE

- compulsory for a ll employees receiving compensation who have not reached the compulsory age of retirement

EXCEPT: AFP members, BFP & BJMP (uni formed)

PNP (uni formed)

Contractuals who have no Employer-Employee relationship with the agencies they serve

Those who have separate retirement schemes under special laws. BENEFITS: All members are entitled to the ff:

1. Separation 2. Retirement

3. Permanent Disability 4. Temporary Disability 5. Funeral 6. Survivorship

7. Li fe Insurance EXCEPT: (Policyholders) members of the judiciary

members of constitutional commissions shall enjoy Li fe Insurance only

Employee (member) Any person receiving compensation while in the service of an employer as defined herein, whether by election, or appointment – i rrespective of status of appointment, including bgy & sang. Employer – the National Government, its political subdivisions, branches, agencies, or instrumentalities, government owned and control led operations and financial institutions or original charters, the constitutional commissions and the judiciary. CLASSIFICATION of MEMBERS:

1. Active – s ti ll in the service and are paying the integrated premiums

Covered by the entire package of benefits and privilege

2. Policyholders – covered for l ife insurance only and are

enti tled to specific benefits accruing from the life insurance coverage

Can avail of policy loan and privilege May apply for housing loans (subject to the same terms and

conditions applicable to non – members)

3. Separated Members – former active members who have

been separated from the service and are s till covered by the GSIS under the ‘once a member always a member’ rule

Enti tled to receive future benefits in the event of compensable contingency such as:

a . old age (60 years old & above)

b. disability c. survivorship

d. death not entitled to loan privileges may apply for housing loans (subjects to the same terms and conditions applicable to a non – member.

4. Retired – former active members who have retired from the service and are already enjoying the corresponding reti rement benefits applied for:

Not enti tled to loan privilege Except: s tock purchase loan SOURCES OF FUND OF GSIS:

employee contribution employer contribution

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contributions of the employee are deducted and withheld by the employer each month from the monthly salary of the former and are

remitted by the latter, with i ts own share to the GSIS within 10 days of the ca lendar month following the month to which the contributions apply. Penalty for non – remittance Unremitted collections shall earn such interest as the GSIS BOT may

prescribe, not exceeding 2%/month from the due date to the date of payment by the employer The Gov’t. of the Rep. of the Philippines shall pay the benefits due to i ts members in case the GSIS becomes INSOLVENT.

2 TYPES OF PERMANENT DISABILITY: 1. P. Total Disability – when recovery from any loss or impairment of

the normal functions of the physical and/ or mental faculty of a member which reduces or eliminates his/ her capacity to continue

with his current gainful occupation or enjoys in any other gainful occupation is medically remote. 2. P. Partial disability – when there i s irrevocable loss or impairment of certa in portion/s of the physical faculties despite which the member i s able to pursue a gainful occupation.

The disability must not be due to: 1. grave misconduct

2. notorious negligence 3. habitual intoxication 4. wil lful intention to kill himself or another

GENERAL CONDITIONS FOR ENTITLEMENT: PTD: He is in the service at the time of the disability i f separated from the service:

has paid at least 36 monthly contributions within the 5 year period immediately proceeding his disability or has paid a total of at least 180 monthly contributions, prior to his

disability Provided that in case of (1) and has paid a total of 180 monthly

contributions Shall receive a cash payment equivalent to 18 times his basic monthly pension, in addition to the monthly income benefit A member cannot enjoy the MIB for permanent disability and the old age retirement simultaneously. If the member does not satisfy the above conditions, but has rendered at least 3 years service at the time of his disability Shall be advanced the cash payment equivalent to 100% of his average monthly compensation for each year of service he paid contributions, but not less than Php 12,000 which should have been his separation benefit. Unless the member has reached the minimum retirement age,

disability benefit shall be suspended when: he i s re – employed

he recovers from his disability as determined by the GSIS whose decision shall be final and binding he fa ils to present himself for medical examination when required by

the GSIS. Total and Permanent Disability:

1. complete loss of sight of both eyes 2. less of two l imbs at or above the ankle or wrist 3. permanent complete paralysis of 2 l imbs 4. brain injury resulting in incurable imbecility or insanity 5. such other cases as may be determined by the GSIS

PPD same conditions as PTD.

BENEFIT: cash payment in accordance with a schedule of disabilities to be prescribed by the GSIS.

PERMANENT PARTIAL DISABILITY:

1. Complete and Permanent loss of use a . any finger b. any toe

c. one arm d. one hand e. one foot f. one leg

g. one or both ears h. hearing of both or one ear i . s ight of one eye

2. such other cases as may be determined by the GSIS

COMPENSATION – means the basic pay or salary received by an employee pursuant to his election/ appointment, excluding per diems, bonuses, overtime pay, honoraria, a llowances and any other emoluments received in addition to the basic pay which are not integrated into the basic pay under existing laws. COMPULSORY RETIREMENT:

65 year old With at least 15 years of service Provided, i f he has less than 15 years of service, he shall be

a l lowed to continue i n the service to complete the 15 years. Not to exceed (1) year

Separation Benefits, Condition: member resigns or separates from the service

has rendered at least 3 years but less than 15 payable upon reaching the age of 60 or upon separation whichever comes later

Voluntary Retirement RA 910 – reti rement of members of the judiciary RA 340 – reti rement of members of the AFP PD 1146 does not apply where separate retirement schemes are

established under special laws.

To a public servant, a person is not a gratuity but a form of

deferred compensation for services performed and his right to i t commences to rest upon his entry into the retirement

system and becomes an enforceable obligation in court upon fulfillment of all conditions under which i t is to be pa id.

UNEMPLOYMENT OR INVOLUNTARY SEPARATION

Occurs when an employee (permanent) i s involuntary separated from the service due to abolition of his office or position resulting from reorganization

May receive benefits provided he has been paying integrated contribution for at least one year prior to his separation.

Retirement laws are l iberally interpreted in favor of the retiree because their intention is to provide for

his sustenance and even comfort, when no longer has the stamina to continue

earning his l ivelihood.

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The GSIS has the original and exclusive jurisdiction to determine whether an

employee is entitled to benefits, and to settle any dispute arising under the Act.

Highest Basic Salary Rate – basis

computation of a government employee

the compensation or salary or pay which may be used in computing reti rement benefit. Highest salary rate actually received by an employee/ official as fixed by law and/or indicated in his duly approved appointment

Al l other compensation and/or fringe benefits sha ll not be considered

BENEFICIARIES: 1. Primary

a . legal dependent spouse until he/ she remarries b. dependent children 2. Secondary

a. dependent descendants (subject to restrictions on dependent children)

dependent spouse – shall receive benefits for l ife or until he/ she remarries

dependent children – shall receive benefits as long as they are dependent, thereafter, the dependent spouse shall receive the basic survivorship pension

SECONDARY BENEFICIARIES shall be entitled to benefits in the absence of primary beneficiaries

In their absence, benefits shall be paid to the legal heirs

FUNERAL BENEFIT – not less than Php 18, 000 payable upon the death of:

1. active member 2. separated members

3. pensioner 4. reti ree who at the time of his retirement was of

pensionable age under reason by 8291 PD1146 but opted to

reti re under RA 1616

LIFE INSURANCE COVERAGE Compulsory – a l l employees except members of the AFP and PNP shall under such terms and conditions as may be promulgated by the

GSIS be compulsorily covered which shall automatically take effect as fol lows: on the date of employment for those whose insurance will mature after the effectivity of this Act,

their insurance shall be deemed renewed on the day following the maturi ty or expiry date of their insurance For those without any l ife insurance as of the effectivity of this Act

their insurance shall take effect following said effectivity. Optional – subject to the rules and regulations prescribed by the GSIS

a member may apply for insurance and/or pre – needed coverage embracing life, health, hospitalization, education, memorial plans for himself or his dependents.

EMPLOYER may l ikewise apply for group insurance coverage for i ts employees

EXCLUSIVENESS OF BENEFITS

Similar benefits to the same contingency as provided for by other laws

The qualified member has the option to choose which benefits will be paid to him

If the benefits under the other law is less than the benefits under the GSIS, the latter shall pay only the difference

PRESCRIPTIVE PERIOD FOR CLAIMS: Four (4) years from the date of contingency

Appeal to the CA from the decision of the GSIS 15 days from notice of award or judgment

Rule 43, petition for review

RETIREMENT: COMPULSORY

65 years old

At least 15 years of service VOLUNTARY

At least 60 years old At least 3 years of service, not more than 15 years

CHAPTER XX NATIONAL HEALTH INSURANCE PROGRAM

NATIONAL HEALTH INSURANCE PROGRAM Shall provide health insurance coverage and ensure affordable,

acceptable and accessible health care services for all citizens of the Phi l., in accordance with the policies and specific provisions of this Acct

Al l ci tizens of the Philippines shall be covered by the NHIP – under the principle of universality and compulsory coverage.

Medicare Act i s repealed by RA 7875 MediCare funds, functions, assets,

equipment, records, operating systems and liabilities will be transferred to the NHIC

COVERAGE:

1. Employed (Government, Private) 2. Indigents 3. individually Paying

a . Sel f – employed b. OFW

c. Privately sponsored d. Others e. EE/ER of Int’l Org and Foreign Gov’t based in the

Phi l ippines 4. non – paying

Personal Health Services

1. Inpatient hospital care 2. Outpatient care

3. Emergency and transfer services

4. such other health care that the NHIC shall determine to be appropriate and cost effective

Legal Dependents: 1. Legitimate spouse who is not a member 2. unmarried and unemployed legitimate, legitimated,

i l legitimate, acknowledged children as appearing in the

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birth certificate, legally adopted and s top children BELOW 21 years

3. Chi ldren who are 21 y/o and above but suffering from congenital disability, either physical or mental, or any disability acquired that renders them totally dependent on the member for support.

4. parents who are 60 y/o and above whose monthly income

is below an amount to be determined by the NHIC EXCLUDED PERSONAL HEALTH SERVICES:

1. non prescription drugs and devices

2. outpatient psychotherapy and counseling for mental disorders

3. drug and alcohol abuse or dependency treatment

4. cosmetic surgery 5. home and rehabilitation services

6. optometric services 7. normal obstetrical delivery 8. cost – ineffective procedures

MEDICAL CASES:

1. Catastrophic – i l lnesses or injuries such as but not l imited to: cancer with metastasis and/or requiring chemo or radiation therapy, meningitis, encephalitis, cirrhosis of the l iver, myocardial infarction, cerebrovascular attack, renal disease, rheumatic heart disease grade III, other conditions with massive hemorrhage shock of any cause.

2. Intensive

- al l confinements requiring services in an ICU such as monitoring and respiratory support, cardiac/

hemodialysis monitoring and maintenance - other s imilar serious illnesses or injuries – such as

but not l imited to: cancer, pneumonia,

moderately or far advanced TB inc i ts compl ications, cardiovascular attack, disease of the heart, etc. or severe injuries.

- Surgical procedure or multiple surgical procedures

done iin one sitting with a total Relative Unit va lue of 8 but not exceeding 19 – 99

3. Ordinary

- i l lnesses or injuries other than those included in the above enumeration

CHAPTER XXI AGRARIAN REFORM AGRARIAN REFORM

- The State shall promote comprehensive rural development

and agrarian reform (Sec. 21, Art.11) - The State shall, by law, undertake an agrarian reform program

funded on the right of farmers and regular farmworkers, who are landless, to own directly or indirectly (collectively) the

lands they ti ll or, in the case of other farmworkers, to receive a just share of the fruits thereof.

PROPERTY OWNERSHIP as a SOCIAL FUNCTION - the owner has the obligation to use his property not only to

benefit himself but society as well.

- In the promotion of social justice, the s tate shall regulate the acquisition, ownership, use, and disposition of property

and i ts increments, and equitability diffuse wealth

AGRARIAN REFORM - more than restructuring of or change in the nature of the

property ownership - integral parts of the program are: services extended to the

farmers in the form of:

1. credit support 2. infrastructure 3. farm extension 4. legal assistance 5. electrification 6. development of rural institutions

des igned to uplift the farmers from poverty, ignorance and stagnation and to make them dignified, self – reliant, strong and responsible

ci ti zens, a source of genuine strength in our democratic society and active participants in nation – building

RA 3844 – Agricultural Land Reform Code ins tituted Land reforms in the Philippines

abolished tenancy channeling of capital into industry

OWNER CULTIVATORSHIP - the s tatus of a person who, providing capital and

management, personally cultivates his own land with the a id of his immediate family and household

- goal of AR to convert the tenant into O-C ECONOMIC FAMILY –SIZE FARM

an area of farm land that permits efficient use of labor and capital resources of the farm family and will produce an income

sufficient to provide a modest s tandard of living to me et a farm fami ly’s needs for food, clothing shelter and education with possible allowance for yearly payment of installments on the land, and reasonable reserve to absorb yearly fluctuations in income.

AGRICULTURAL LAND land devoted to any growth, including but not limited to crop

lands, flatbeds, fishponds, idle lands and abandoned lands as defined in the Code

lands intended by an industrial concern for expansion of i ts plants or factory facilities, although planted to some crops in the

meantime cannot be considered as agricultural devoted to agricultural activity as defined in the law and not

classified as mineral, forest, residential, commercial or industrial land.

AGRARIAN REFORM The redistribution of lands, regardless of crops or fruits

produced, to farmers and regular farmworkers who are landless, i rrespective of tenurial arrangement to include the tota l ity of factors and support services designed to l ift the economic s tatus of the beneficiaries and a ll other arrangements a lternative to the physical redistribution of lands

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AGRICULTURAL ACTIVITY The cul tivation of soil

Planting of crops Growing of fruit trees Including the harvesting of rich farm products and

other farm activities and practices performed by a farmer in conjunction with such farming operations

done by a person natural or juridical

AGRARIAN DISPUTE – any controversy relating to tenurial arrangements whether leasehold, tenancy, s tewardship or

otherwise, over lands dented to agriculture

Including farmworkers’ associations or representation of

person in negotiating, fixing, maintaining, changing or seeking to arrange terms and conditions of such tenurial

arrangements. Includes any controversy relating to compensation of lands

acquired under the Act and other terms and conditions of transfer of ownership from landowners to farmworkers, tenants and other agrarian reform beneficiaries, whether the disputants s tand in the proximate relation of farm operator and beneficiary.

FARMER – a natural person whose primary l ivelihood is cultivation of land or the production of agricultural products/ crops, either by himself, or primarily with the assistance of his immediate farm household.

FARMWORKER – a natural person who renders service for value as an

employee or laborer in an agricultural enterprise or farm regardless of whether his compensation is paid on a daily, weekly, monthly or “pakyaw” basis.

Regular – a natural person who is employed on a permanent bas is by an agricultural enterprise or farm

Seasonal – a natural person who is employed on a recurrent, periodic or intermittent basis, whether as a permanent or a

non – permanent laborer, such as “dumaan, ‘sacada’ LANDS COVERED BY THE CARP

1. Al l a lienable and disposable lands of the public domain devoted to or suitable for agriculture

2. Al l lands of the public domain in excess of the specific l imits as determined by congress

3. Al l other lands owned by the Government devoted to or

sui table for agriculture 4. Al l private lands devoted to or suitable for agriculture

regardless of the agricultural products raised or that can be ra ised thereon.

LANDS EXEMPTED OR EXCLUDED FROM THE COVERAGE OF THE CARP

1. Lands actually, directly and exclusively used for parks, wi ldlife, forest reserves, reforestation, fish sanctuaries and

breeding grounds, watersheds and mangroves 2. Lands actually, directly, and exclusively used for prawn

farms and fishponds. Provided, that said prawn farms and

fi shponds have not been distributed and certificate of Land ownership award issued to agrarian reform beneficiaries.

3. Lands actually, directly, and exclusively used and found to be necessary for national defense, school s ites and

campuses including experimental from situations for educational purposes, seeds and seedlings research and

pi lot production center, church sites and convenient appurtenant thereto, mosque site and Islamic centers, communal burial grounds and cemeteries, penal colonies and penal farms actually worked by inmates, government and private research and quarantine centers and all lands

with 18% s lope and over.

In no case shall the retention by the landowner exceed five (hectares)

Three (3) hectares may be awarded to each child of the landowner provided:

1. At least 15 y/o 2. actually ti lling the land, or directly managing farm.

The right to choose the area to be retained which shall be compact or contiguous, shall pertain to the landowner

LANDLESS BENEFICIARY

7. One who owns less than three hectares of agricultural land AGRARIAN REFORM = revolutionary expropriation Affects all private agricultural lands and is intended to benefit

the entire Filipino nation FACTS FOR CONSIDERATION IN LAND DISTRIBUTION

1. must be a just one 2. subject to l imitations of retention and priorities prescribed

by Congress 3. ecology 4. development

5. equity 6. payment of just compensation

WATERSHED – an area drained by a river and enclosed by a boundary

or divide which separates it from adjacent watershed

Tenants shall have the option to choose whether:

1. To remain in the landowner’s retained land 2. be a beneficiary in the same or another agricultural land

with comparable / s imilar features options are a lternative, election of one is the

forfei ture of the other

tenant must exercise this option within one year form the time the

landowner manifests his choice of area for retention

SUPPORT SERVICES UNDER CARL: Irrigation facilities infrastructure and public works Gov’t. subsidies for the use of irrigation facilities

Price support and guarantee for a ll agri. Produce credit and loans services promoting, developing and extending financial assistance to small and

medium scale industries Ass igning sufficient number of agricultural extension workers to

farmers’ organization

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Undertake, research, development and dissemination of information on agrarian reform and low – cost and ecologically sound farm inputs

Development of cooperative mgmt. skill through intensive tra ining Ass istance in the identification of ready market or agricultural produce and training in other various aspects of mktg. Administration, Operation, management and funding of support services programs

Lands may be acquired by DAR through:

voluntary sale compulsory mode

DAR send written offers to landowners If the landowner rejects or fa ils to make a

reply -2

Summary proceedings are conducted to determine the just compensation

MODES OF PAYMENT: Cash Payment

a . Above 50 hectares - 25% cash + 75% gov’t. b. 24 – 50 hectares – 30% cash + 70 % gov’t. financial inst.

Negotiable at anytime c. Less than 24 hectares – 35% cash + 65% gov’t. financial

ins titution negotiable at anytime Shares of s tock in GOCC, LBP pref. shares, physical assets or other qualified investments Tax credits which can be used against any tax l iability LBP bonds

a . market rates a ligned with 91 day T – bi ll b. Transferability – negotiability\

LBP bonds may be used: acquisition of land and other real properties of the Gov’t.

acquisition of shares of stocks of GOCC or those owned by the GOV’T. in private corp. Substitution for surety or bail bonds security for loans with any gov’t. financial institution

payment for various taxes and fees to the government payment for tuition fees of immediate family of the orig. bondholder in gov’t. universities, college, schools and other institutions

Payment for fees of the immediate family of the orig. bondholder in gov’t. hospitals

Such other uses as the PARC may a llow BENEFICIARIES:

Agri . Lessees and share tenants regular farmworkers

seasonal farmworkers other FW actual tillers or occupants of public lands col lectives or coops of 1-5 others directly working on the lands Basic Qualification:

wil lingness atti tude abi lity

- To cul tivate and make the land as productive as possible

LIMIT: 3 hectares of agricultural land

Manner of payment by beneficiary: payable in 30 annual amortizations (30 years)

6% interest per year LBP shall have a l ien by way of mortgage May be foreclosed for non – payment of an

aggregate 3 annual installments LBP shall inform DAR and the latter shall award

the landholdings to other qualified beneficiaries A beneficiary whose land has been foreclosed is

permanently disqualified from being a beneficiary

CONDITIONS FOR SALE, TRANSFER OR CONVEYANCE: may not be exercised within a period of 10 years, except:

a . hereditary succession

b. to the gov’t. c. to the LBP

d. other qualified bens, chi ldren or spouse has a right to repurchase within two years from the government or LBP. due notice of the availability of the land shall be given by the LBP to the BARC. The BARC – PARCOM If not yet fully paid, the rights may be transferred or conveyed with prior approval by DAR to any heir of the beneficiary or any other beneficiary who as a condition shall cultivate the land for himself QUASI – JUDICIAL POWERS OF DAR: Primary jurisdiction to determine and adjudicate AR matters involving the implementation of AR except those falling under the exclusive jurisdiction of the:

a . DA b. DENR

Shall have the power to: 1. summon witnesses 2. administer oaths

3. take testimony 4. require submission of reports 5. compel production of documents 6. i s sue subpoenas

7. punish for direct and indirect contempt Responsible farmer leaders shall be

a l lowed to represent:

i . themselves ii . fel low farmers

iii. their organization Decisions of DAR are immediately

executory

DISTRIBUTION OF FARMS OPERATED BY CORPORATIONS

Lands shall be distributed directly to the individual worker – beneficiary

If not economically feasible and sound to divide the land – owned collectively through a workers’ coop. or assoc. which wil l deal with the corp. or business assoc.

CONDITIONS FOR CONVERSION:

1. After the lapse of 5 years from award 2. The land ceases to be economically feasible and sound for

agricultural purposes, or

3. loca lity has become urbanized a . the land has greater economic va lue for residential,

commercial or industrial purpose 4. application beneficiary or landowner with the DAR

LABOR LAW REVIEW


5. with due notice to affected persons 6. Ben must have fully paid (full payment) his obligations

Prohibited acts and omissions under CARL:

1. ownership or possession for the purpose of circumventing the Act, except those under collective ownership

2. Forcible entry or i llegal detainer by persons who are not

qualified bens. 3. Convers ion with intent to avoid the application of this Act to

his landholdings of to disposes his tenant farmers of the lands ti l led by them.

4. wil lful prevention or obstruction by any person of the implementation of the CARP

5. sa le, transfer, conveyance or change of the nature of lands

outs ide of urban centers and city l imits. 6. sa le, transfer or conveyance by a ben. Of the right to use or

any usufructuary right over the land in order to ci rcumvent the provisions of this Act.

Requisites for DARAB Jurisdiction: tenancy relationship between the parties

a . parties are the land owner and the tenant or agri lessee b. subject matter i s an agri land c. consent between the parties to the relationship d. purpose of the relationship is to bring about agri – production e. personal cultivation on the part of the tenant or AL f. that the harvest is shared between LO and + or AL

Jurisdiction of DARAB: 1. Primary and exclusive (original and appellate) jurisdiction to

determine and adjudicate all agrarian disputes involving the implementation of the CARP. Include but not limited to:

2. rights and obligations of persons, whether natural or

juridical, engaged in the mgmt. cultivation and use of lands covered by the CARP and other agrarian reform laws

3. valuation of lands, prelim determination and payment of just compensation, fixing and collection of lease rentals,

dis turbance compensation, amortization payments and other s imilar disputes concerning the functions of the LBP

4. annulment or cancellation of lease contract or deeds of rate

or this amendments under DAR or LBP 5. cases arising from, or connected with membership or

representation in compact farms, farmers’ coop. and other registered farmers’ assoc. or org.

6. There involving sale, alienation , mortgage conveyance or

maintenance foreclosure, preemption and redemption of Agri Land covered by the CARP and agrarian laws

7. i s suance, connection, cancellation of CLOA and Emancipation Patents which are registered of the LRA

8. cases previously falling under the orig and exclusive jurisdiction pf the defunct court of Agrarian Relations

9. such other agrarian cases, disputes, matters or concerns referred to i t by the Sec. of DAR

DAR Secretary Exclusive Jurisdiction: 1. Classification and identification of landholdings for coverage

under the CARP

2. identification, qualification or do of potential farmer – ben. 3. subdivision surveys of lands under CARP

4. i s suance, recall, or cancellation of Certificates of Land Transfer and CARP Ben Certs, CLOA and EPs not yet

registered. 5. exercise of the right of retention by LO 6. application for exemptions 7. i s suance of cert. of exemption for lands subject of voluntary

offer to sell or compulsory acquisition found unsuitable

8. application for conversion 9. right of AR bens. To home lots 10. disposition of excess area of the F.B. of his farm holdings 11. transfer surrender or abandonment by the FB of his farm

holdings and i ts disposition 12. Increase of the awarded area by the F.B. 13. confl ict of claims in landed estates and settlements

14. Such other matters strictly involving the admin. Implementation of agrarian laws, rules and regulations