238379367 pre week chan labor

8/18/2019 238379367 Pre Week Chan Labor

1/78

PRE-WEEK NOTES

ON THE 2013 BAR EXAMINATION IN LABOR LAW

By: Prof. Jose!"o #$!%&%& '(%&

)T(ese Notes, *o&s!s"!&+ of , %r"s %re s$e/e&"%ry "o "(e %$"(ors oo e&"!"e “2012 Bar Reviewer

on Labor Law”455555555555555555555555555555555555555555555555555555555

PART ONE

67N8AMENTAL PRIN'IPLES AN8 POLI'IES

I. 'ONSTIT7TIONAL PRO9ISIONS.

Out of the several topics under Fundamental Principles and Policies, the following provisions should be given

primordial importance:

ARTI'LE II

8E'LARATION O6 PRIN'IPLES AN8 STATE POLI'IES

STATE POLICIES

Se*"!o& . T(e S"%"e s(% ro/o"e % ;$s" %& y&%/!* so*!% orer "(%"

Se*"!o& 10. T(e S"%"e s(% ro/o"e so*!% ;$s"!*e !& % (%ses of &%"!o&% e=eo/e&".

Se*"!o& 1,. T(e S"%"e %?r/s %or %s % r!/%ry so*!% e*o&o/!* for*e. I" s(% ro"e*" "(e

r!+("s of

LABOR 'ASES4.

Se*"!o& @. No %< s(% e %sse %r!+!&+ "(e freeo/ of see*( of eress!o& or of "(e

ress or "(e r!+(" of "(e eoe e%*e%y "o %sse/e %& e"!"!o& "(e +o=er&/e&" for

reress of +r!e=%&*es. )APPLI'ABLE TO PI'KETIN#4.

Section ! T"e ri#"t o$ t"e %eo%&e to in$or'ation on 'atters o$ %(b&ic concern s"a&& be

reco#ni)e*! Access to o+cia& recor*s, an* to *oc('ents an* %a%ers %ertainin# to o+cia&

acts, transactions, or *ecisions, as we&& as to #overn'ent researc" *ata (se* as basis $or

%o&ic *eve&o%'ent, s"a&& be a-or*e* t"e citi)en, s(b.ect to s(c" &i'itations as 'a be

%rovi*e* b &aw! )9ER IMPORTANT AS THIS IS NEWL A88E8 IN THE 2013 BAR EXAM

SLLAB7S4.

Se*"!o& ,. T(e r!+(" of "(e eoe !&*$!&+ "(ose e/oye !& "(e $!* %& r!=%"e

se*"ors "o for/ $&!o&s %sso*!%"!o&s or so*!e"!es for $roses &o" *o&"r%ry "o %< s(% &o"

e %r!+e.

Section 10! No &aw i'%airin# t"e ob&i#ation o$ contracts s"a&& be %asse*! )9ER

IMPORTANT AS THIS IS NEWL A88E8 IN THE 2013 BAR EXAM SLLAB7S4.

Section 1/! A&& %ersons s"a&& "ave t"e ri#"t to a s%ee* *is%osition o$ t"eir cases be$ore a&&

.(*icia&, (asi.(*icia&, or a*'inistrative bo*ies! )9ER IMPORTANT AS THIS IS NEWL


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A88E8 IN THE 2013 BAR EXAM SLLAB7S4.

Section 1! 324 No invo&(ntar servit(*e in an $or' s"a&& e5ist e5ce%t as a %(nis"'ent $or

a cri'e w"ereo$ t"e %art s"a&& "ave been *(& convicte*! )9ER IMPORTANT AS THIS IS

NEWL A88E8 IN THE 2013 BAR EXAM SLLAB7S4.

ARTI'LE XIII

LABOR

)9ER IMPORTANT AS THIS IS THE SO-'ALLE8 PROTE'TION-TO-LABOR 'LA7SE IN THE 'ONSTIT7TION4

Se*"!o& 3. T(e S"%"e s(% %Cor f$ ro"e*"!o& "o %or o*% %& o=erse%s or+%&!De %&

$&or+%&!De %& ro/o"e f$ e/oy/e&" %& e>$%!"y of e/oy/e&" oor"$&!"!es for

%.

I" s(% +$%r%&"ee "(e r!+("s of %

"(e!r r!+("s %& e&e"s %s /%y e ro=!e y %

re%so&%e re"$r&s "o !&=es"/e&"s %& "o e%&s!o& %& +ro


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stategovernment and not against a private part$ 5 the emplo$er:

a% 'o&s"!"$"!o&% 8$e Pro*ess since what applies is &tatutor$ 1ue Process under )rticle 26b7 of the 8abor

/ode% ["

b% -ight to 0'ual Protection of the 8aws% [2"

c% -ight to /ounsel% [*"

d% -ight )gainst &elf#9ncrimination% [4"

e% -ight )gainst nreasonable &earches and &ei;ures% [+oo. T(erefore s$*( *o&"r%*"s %re s$;e*" "o "(e se*!% %$% inter%retation o$ t"e %rovisions o$ t"is Co*e, inc&(*in# its i'%&e'entin# r(&es an*

re#(&ations , s"a&& be reso&ve* in $avor o$ &abor! )9ER IMPORTANT AS THIS IS NEWL

A88E8 IN THE 2013 BAR EXAM SLLAB7S4.

Artic&e 1//! Po&ic! T"e State s"a&& %ro'ote an* *eve&o% a ta5e5e'%t e'%&oees=

co'%ensation %ro#ra' w"ereb e'%&oees an* t"eir *e%en*ents, in t"e event o$ work-

connected disability or death , 'a %ro'%t& sec(re a*e(ate inco'e bene>t an* 'e*ica&

re&ate* bene>ts! )9ER IMPORTANT AS THIS IS NEWL A88E8 IN THE 2013 BAR EXAM

SLLAB7S4.

9n connection with this provision, please take note of the following:

a! T"e E'%&oees= Co'%ensation Pro#ra' 3ECP4!

3he 0mplo$ees= /ompensation Program 60/P7 mentioned in )rticle >> of the 8abor /ode is designed to provide

public and private sector emplo$ees and their dependents with income and other bene?ts in the event of a work#

connected injury, sickness, disability or death% 9t assures workers of total protection through the provision of a

comprehensive bene?t package encompassing preventive occupational safet$ and health aspects, curative or medical

and compensator$ grant, and rehabilitation of occupationall$ disabled workers%

b! Attrib(tes o$ t"e ECP!

3he 0mplo$ees= /ompensation Program 60/P7 is characteri;ed as follows:

% 9t is not sub@ect to taAB


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2% 9t is designed to ensure promptitude in cases of work#connected disabilit$ or death, in the award to

emplo$ees and their dependents of ade'uate income bene?ts and medical or related bene?tsB

*% 9t is funded b$ monthl$ contributions of all covered emplo$ersB

4% 9t is compulsor$ on all emplo$ers and their emplo$ees whose age is not over siAt$ 6>+7 $ears oldB

% 9t has its own ad@udicator$ machiner$ with original and eAclusive @urisdiction to settle an$ dispute with respect

to coverage, entitlement to bene?ts, collection and pa$ment of contributions and penalties thereon, or an$

other matter related thereto, independent of other tribunals, eAcept the &upreme /ourt 6and the /ourt of

)ppeals per e!ised "d#inistrati!e Circular $o. %-&'7% [>"

c! A*vanta#es an* *isa*vanta#es!

3he following advantages ma$ be cited:

% 3he coverage has been eApanded to include emplo$ers with at least one emplo$ee and irrespective of the

t$pe or nature of business or amount of business capitali;ation%

2% 3he processing of claims has been simpli?ed with the integration of compensation bene?ts with those of the

C&9& or &&&, as the case ma$ be%

*% 3he rates of income bene?ts and medical, rehabilitation and other services have been signi?cantl$ increased%

4% 3he procedure for settlement of claims has been simpli?ed% 3edious and cumbersome proceedings have

been eliminated%

2013 BAR EXAM SLLAB7S THIS IS THE STAT7TOR PRO'E87RAL 87E PRO'ESS WHI'H

SHO7L8 APPL IN 'ASE O6 8ISMISSAL O6 EMPLOEES4.

3b4 S(b.ect to t"e constit(tiona& ri#"t o$ wor?ers to sec(rit o$ ten(re an* t"eir ri#"t to

be %rotecte* a#ainst *is'issa& e5ce%t $or a .(st an* a(t"ori)e* ca(se an* wit"o(t

%re.(*ice to t"e re(ire'ent o$ notice (n*er Artic&e 27 o$ t"is Co*e, t"e e'%&oer


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s"a&& $(rnis" t"e wor?er w"ose e'%&o'ent is so(#"t to be ter'inate* a written

notice containin# a state'ent o$ t"e ca(ses $or ter'ination an* s"a&& a-or* t"e

&atter a'%&e o%%ort(nit to be "ear* an* to *e$en* "i'se&$ wit" t"e assistance o$

"is re%resentative, i$ "e so *esires, in accor*ance wit" co'%an r(&es an*

re#(&ations %ro'(ate* %(rs(ant to #(i*e&ines set b t"e ;e%art'ent o$ Labor an*

E'%&o'ent! An *ecision ta?en b t"e e'%&oer s"a&& be wit"o(t %re.(*ice to t"e

ri#"t o$ t"e wor?er to contest t"e va&i*it or &e#a&it o$ "is *is'issa& b >&in# a

co'%&aint wit" t"e re#iona& branc" o$ t"e Nationa& Labor Re&ations Co''ission! T"e

b(r*en o$ %rovin# t"at t"e ter'ination was $or a va&i* or a(t"ori)e* ca(se s"a&& rest

on t"e e'%&oer! T"e Secretar o$ t"e ;e%art'ent o$ Labor an* E'%&o'ent 'a

s(s%en* t"e e-ects o$ t"e ter'ination %en*in# reso&(tion o$ t"e *is%(te in t"e

event o$ a %ri'a $acie >n*in# b t"e a%%ro%riate o+cia& o$ t"e ;e%art'ent o$ Labor

an* E'%&o'ent be$ore w"o' s(c" *is%(te is %en*in# t"at t"e ter'ination 'a

ca(se a serio(s &abor *is%(te or is in i'%&e'entation o$ a 'ass &ao-!

3c4 An e'%&oee, w"et"er e'%&oe* $or a *e>nite %erio* or not, s"a&&, be#innin# on "is

>rst *a o$ service, be consi*ere* as an e'%&oee $or %(r%oses o$ 'e'bers"i% in

an &abor (nion! )THIS EN7N'IATES THE R7LE THAT THE RI#HT TO JOIN A 7NION

STARTS 6ROM 8A ONE O6 EMPLOMENT4.

)NOTE: T(e o"(er ro=!s!o&s of Ar"!*e 2FF %re o/!""e for "(ey %re $&!ey "o e +!=e& !& "(e %r e%/s4.

oooooooooOoOooooooooo

[" )gabon v% .8-/, C% -% .o% !*, .ovember , 2++4%

[2" 1uncan )ssociation of 1etailman#P3CO v% ClaAo elcome Philippines, 9nc% , C% -% .o% >2!!4, &eptember ,

2++4B Erasuegui v% Philippine )irlines, 9nc% , C% -% .o% >D+D, October , 2++D%

[*" Manuel v% .% /% /onstruction &uppl$, [C% -% .o% 2, !!, 2D+ &/-) *" &an Miguel /orporation v% .8-/, C% -% .o%


6/78

PRE-WEEK NOTES


By: Prof. Jose!"o#$!%&%& '(%&


on Labor Law”4

55555555555555555555555555555555555555555555555555555555PART TWO

RE'R7ITMENT AN8 PLA'EMENT

I. ILLE#AL RE'R7ITMENT AS 8E6INE8 7N8ER R. A. NO. 10022 MAR'H , 2010. 1

Ie+% re*r$!"/e&" means an$ act of canvassing, enlisting, contracting, transporting, utili;ing, hiring, or

procuring workers and includes referring, contract services, promising or advertising for emplo$ment abroad,

emplo$mentB

6e7 3o inIuence or attempt to inIuence an$ person or entit$ &o" "o e/oy %&y


7/78

&%&*!% *o&s!er%"!o&s, or for an$ other reasons, other than those authori;ed under the 8abor /ode

and its implementing rules and regulationsB

6l7 6%!$re "o %*"$%y eoy % *o&"r%*"e 6m76%!$re "o re!/$rse ee&ses incurred b$ the worker in connection with his documentation and

processing for purposes of deplo$ment, in cases

s*%e s(% e *o&s!ere %& oCe&se !&=o=!&+ e*o&o/!* s%o"%+eB and

6n73o allow a &o&-6!!!&o *!"!De& to (e% or /%&%+e % !*e&se re*r$!"/e&"/%&&!&+ %+e&*y%

II. OTHER PROHIBITE8 A'TS 7N8ER R. A. NO. 10022. 2

9t shall also be unlawful for an$ person or entit$ to commit the following prohibited acts:

67 Crant a o%& to an overseas Filipino worker with !&"eres" e*ee!&+ e!+(" er*e&" ),4 er %&&$/,

which will be used for %y/e&" of e+% %& %o$!re "o

%=%! of % o%& o&y fro/ se*!*%y es!+&%"e !&s"!"$"!o&s e&"!"!es or erso&s B

6*7 Ref$se to *o&o&e or re&e+o"!%"e a o%& incurred b$ an overseas Filipino worker after the latterJsemplo$ment contract has been re/%"$rey "er/!&%"e through &o f%$" of hisher ownB

647 9mpose a *o/$sory and e*$s!=e %rr%&+e/e&" whereb$ an overseas Filipino worker is re'uired to

undergo (e%"( e%/!&%"!o&s o&y fro/ se*!*%y es!+&%"e /e!*% *!&!*s !&s"!"$"!o&s

e&"!"!es or erso&s, e*e" in the case of a se%f%rer whose /e!*% e%/!&%"!o& *os" !s

s(o$ere y "(e r!&*!%s(!-o


8/78

licensee or holder of authority % 9t is clear that under this law, !& orer "o ro=e !e+% re*r$!"/e&" "(ere !s &o

&ee "o es"%!s(


9/78

2% &everance of relations between local agent and foreign principal does not a(ect liabilit$ of local recruiter%

X. THEOR O6 IMP7TE8 KNOWLE8#E.

3his theor$ refers to cogni;ance of a circumstance or fact attributed to a part$ because of its position, or

its relationship with or responsibilit$ for another part$%

3he relationship of the local recruitmentmanning agenc$ !is-a-!is its foreign principal is that of agent#principal,

the former being the agent and the latter, the principal% /onse'uentl$, the "(eory of !/$"e &o of -% )% .o% D+42 which de?ned illegal recruitment was amended b$ &ection < of -% )% .o% ++22 6March

D, 2++7%

[2" &ection > of -% )% .o% D+42, as amended b$ &ection < of -% )% .o% ++22 6March D, 2++7%

http://www.businessdictionary.com/definition/fact.htmlhttp://www.businessdictionary.com/definition/party.htmlhttp://www.businessdictionary.com/definition/party.htmlhttp://www.businessdictionary.com/definition/position.htmlhttp://www.businessdictionary.com/definition/responsibility.htmlhttp://www.businessdictionary.com/definition/responsibility.htmlhttp://www.businessdictionary.com/definition/fact.htmlhttp://www.businessdictionary.com/definition/party.htmlhttp://www.businessdictionary.com/definition/position.htmlhttp://www.businessdictionary.com/definition/responsibility.html


10/78

PRE-WEEK NOTES


By: Prof. Jose!"o#$!%&%& '(%&


on Labor Law”4

55555555555555555555555555555555555555555555555555555555PART THREE

LABOR STAN8AR8S

A. HO7RS O6 WORK.

1. 'o=er%+e. - )ll emplo$ees in all establishments, whether operated for pro?t or not, are covered b$ the law

on labor standards%

2. E*$e e/oyees. - 3he following are e*$e from the coverage of the law on labor standards:

a% Covernment emplo$eesB

b% Managerial emplo$eesBc% Other ocers or members of a managerial sta(B

d% 1omestic servants and persons in the personal service of anotherB

e% orkers paid b$ resultsB

f% .on#agricultural ?eld personnelB and

g% Members of the famil$ of the emplo$er%

3. Nor/% (o$rs of


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)4 A" re+$%r !&"er=%s $r!&+ s$*( %& %ss!+&/e&" %&

)*4 If "(ey eer!e&*e (e%"( roe/s $r!&+ s$*( %& %ss!+&/e&" e $se "o "(e!r e"r!/e&".

Ar"!*e 1. 9an*ator @aci&ities! S$!"%e rs"-%! f%*!!"!es s(% e /%e

%=%!%e for

%e>$%"e or re%so&%e f%*!!"!es s$*( %s see!&+ or res"!&+ >$%r"ers !& "(e

es"%!s(/e&" %& "r%&sor"%"!o& fro/ "(e

s(% e !=!e e"

)!!4A


12/78

%**ess "o ro/o"!o&

however, without pre@udice to an$ individual or collective agreement or compan$ practice or polic$ that

provides higher basis of computation of wages%

11. 'o&"r%*" for !e*e provides:

K)-3% 4>% ) contract for the deliver$ at a certain price of an article which the vendor in the

ordinar$ course of his business manufactures or procures for the general market, whether the same is

on hand at the time or not, is a contract of sale, $" !f "(e +oos %re "o e /%&$f%*"$re se*!%y

for "(e *$s"o/er %& $o& (!s se*!% orer %& &o" for "(e +e&er% /%re" !" !s % *o&"r%*"

for % !e*e of


13/78

the salar$, commission and other remuneration received b$ a managerial emplo$ee 6as distinguished from

an ordinar$ worker or laborer7 cannot be considered wages% &alar$ is understood to relate to a position or

oce, or the compensation given for ocial or other serviceB while wage is the compensation for labor%

2. M!&!/$/ F. 'o//!ss!o&s. - /ommission is the recompense, compensation or reward of an emplo$ee, agent,

salesman, eAecutor, trustee, receiver, factor, broker or bailee, when the same is calculated as a percentage

on the amount of his transactions or on the pro?t of the principal% 'o//!ss!o& e%r&e /%y or /%y &o"

e *o&s!ere %r" of %


14/78

wages ma$ be the sub@ect of attachment or eAecution but onl$ for debts incurred for food, clothing,

shelter and medical attendanceB

+% hen deductions from wages are ordered b$ the courtB

% &alar$ deductions of a member of a legall$ established cooperative%

. No&-!/!&$"!o& of e&e"s. G )ccording to J$s"!*e Ar"$ro 8. Br!o& *$rre&"y "(e '(%!r/%& of "(e

2013 B%r E%/!&%"!o& 'o//!""ee )rticle ++ is &o" the proper basis for the invocation of the non#

diminutionnon#elimination of bene?ts principle in his separate concurring opinion in the case of "rco Metal

Products, 3nc. !. 4a#ahang ng #ga Manggagawa sa "rco Metal-$"56 (4"M"M-$"56/, [C% -% .o%

+*4, Ma$ 4, 2++D"% e emphasi;ed therein that )rticle ++ refers solel$ to the non#diminution of

bene?ts en@o$ed at the ti#e of the pro#ulgation of the abor Code% e thus posited that the correct bases

of this principle are the following:

a% 0Apress terms of an emplo$ment agreementB

b% /ompan$ practice which refers to the i#plied terms of an emplo$ment agreement which the emplo$er

has freel$, voluntaril$ and consistentl$ eAtended to its emplo$ees and thus cannot be withdrawn eAcept

b$ mutual consent or agreement of the contracting partiesB

c% 3he /onstitution 6&ection D of )rticle 99 and &ection * of )rticle Q9997B and

d% )rticle 4 of the 8abor /ode%

10. 6%*!!"!es =s. S$e/e&"s. G 3he term “facilities” includes articles or services for the bene?t of the

emplo$ee or his famil$ but does not include tools of the trade or articles or services primaril$ for the bene?t

of the emplo$er or necessar$ to the conduct of the emplo$er=s business% 3he$ are items of eApense

necessar$ for the laborer=s and his famil$=s eAistence and subsistence which form part of the wage and

when furnished b$ the emplo$er, are deductible therefrom, since if the$ are not so furnished, the laborer

would spend and pa$ for them @ust the same%

3he term “supple#ents” means eAtra remuneration or special privileges or bene?ts given to or received b$

the laborers over and above their ordinar$ earnings or wages%

6%*!!"!es %& s$e/e&"s !s"!&+$!s(e. - 3he bene?t or privilege given to the

emplo$ee which constitutes an eAtra remuneration over and above his basic or ordinar$ earning or wage,

is supple#ent B and when said bene?t or privilege is part of the laborer=s basic wage, it is a facility % )s

earlier pointed out, the criterion is not so much with the kind of the bene?t or item 6food, lodging, bonus or

sick leave7 given but its purpose% 3hus, free meals supplied b$ the ship operator to crew members, out of

necessit$, cannot be considered as facilities but supplements which could not be reduced having been given

not as part of wages but as a necessar$ matter in the maintenance of the health and ecienc$ of the crew

personnel during the vo$age% Moreover, facilities are deductible from wage but not supplements%

11. W%+e !s"or"!o&. - )s de?ned b$ law and implementing rules, “wage distortion” contemplates a situation

where an increase in prescribed wage rates results in either of the following:

% 7li#ination of the 'uantitative di(erences in the rates of wages or salariesB or

2% 4e!ere contraction of intentional 'uantitative di(erences in wage or salar$ rates between and among

emplo$ee groups in an establishment as to e(ectivel$ obliterate the distinctions embodied in such wage

structure based on the following criteria:

a% skillsB

b% length of serviceB or

/% other logical bases of di(erentiation%

@ ee/e&"s of


15/78

salar$ rate of a higher oneB

6*73he elimination of the distinction between the two levelsB and

6473he eAistence of the distortion in the same region of the countr$%

6or/$% "o re*"!fy 7 consecutive normal work da$s% here the weekl$ rest is given

to all emplo$ees simultaneousl$, the emplo$er should make known such rest period b$ means of a written

notice posted conspicuousl$ in the workplace at least one 67 week before it becomes e(ective% here the

rest period is not granted to all emplo$ees simultaneousl$ and collectivel$, the emplo$er shall make known

to the emplo$ees their respective schedules of weekl$ rest da$ through written notices posted conspicuousl$

in the workplace at least one 67 week before the$ become e(ective%

E/oyees refere&*e of res" %y %se o& re!+!o$s +ro$&s. # 3he emplo$er is dut$#bound to

respect the preference of the emplo$ee if based on religious grounds%

2. E/er+e&*y res" %y


16/78

work on his scheduled rest da$ for the duration of the following emergenc$ and eAceptional conditions:

a% 9n case of %*"$% or !/e&!&+ e/er+e&*!es caused b$ ser!o$s %**!e&" re oo "y(oo&

e%r"(>$%e e!e/!* or o"(er !s%s"er or *%%/!"y, to prevent loss of life and propert$, or in case

of force #ajeure or imminent danger to public safet$B

b% 9n case of $r+e&" $!/e&" or !&s"%%"!o&s to %=o!

ser!o$s oss


17/78

date the emplo$ee started working, !&*$!&+ %$"(or!De %se&*es %& %! re+$%r (o!%ys, unless

the number of working da$s in the establishment as a matter of practice or polic$, or that provided in the

emplo$ment contract, is less than twelve 627 months, in which case, said period should be considered as

one 67 $ear for the purpose of determining entitlement to the service incentive leave bene?t%

2. M%"er&!"y e%=e. - 9t is the period of time which ma$ be availed of b$ a woman emplo$ee, married or

unmarried, to undergo and recuperate from childbirth, miscarriage or complete abortion during which she is

permitted to retain her rights and bene?ts Iowing from her emplo$ment% ) female member who has paid at

least three 6*7 monthl$ contributions in the 2#month period immediatel$ preceding the semester of her

childbirth or miscarriage shall be paid a dail$ maternit$ bene?t e'uivalent to one hundred percent 6++N7 of

her average dail$ salar$ credit for:

6a7 0 %ys for &or/% e!=eryB or

6b7 F, %ys in case of *%es%re%& e!=ery%

3. P%"er&!"y e%=e. G 9t covers a married male emplo$ee allowing him not to report for work for se=e& )F4

*%e&%r da$s but continues to earn the compensation therefor, on the condition that his spouse has

delivered a child or su(ered miscarriage for purposes of enabling him to e(ectivel$ lend support to his wife in

her period of recover$ andor in the nursing of the newl$#born child%

@. P%re&"% e%=e. G 9t is the leave bene?t of not be more than se=e& )F4


18/78

. Se*!% e%=e e&e" for her gross monthl$ compensation following surger$ caused b$ g$naecological disorders%

6. SER9I'E 'HAR#ES.

3he rules on service charges appl$ onl$ to establishments collecting service charges, such as (o"es

res"%$r%&"s o+!&+ (o$ses &!+(" *$s *o*"%! o$&+es /%ss%+e *!&!*s %rs *%s!&os %& +%/!&+

(o$ses %& s!/!%r e&"err!ses, including those entities operating primaril$ as private subsidiaries of the

government% )ll emplo$ees of covered emplo$ers, regardless of their positions, designations or emplo$ment status, and

irrespective of the method b$ which their wages are paid%

% Per*e&"%+e of s(%r!&+. )ll service charges collected b$ covered emplo$ers are re'uired to be

distributed at the following rates:

a% , to be distributed e'uall$ among the covered emplo$eesB and

b% 1 to management to answer for losses and breakages and distribution to emplo$ees receiving more

than P2,+++% ++ a month, at the discretion of the management%

2% 6re>$e&*y of !s"r!$"!o&. # 3he share of the emplo$ees referred to above should be distributed and paid

to them not less often than once ever$ two 627 weeks or twice a month at intervals not eAceeding siAteen 6>7

da$s%

#. 13TH MONTH PA.

nder the law, % r%&-%&-e emplo$ees are entitled% M%&%+er!% emplo$ees are &o" entitled thereto% owever,

there is nothing in the law which prohibits the grant of * th month pa$ to managerial emplo$ees%

%. E*$s!o&sEe/"!o&s fro/ *o=er%+e. - 3he following emplo$ers are not covered b$ P% 1% .o% D


19/78

closing or cessation of business operations under )rticle 2D*B

*% hen termination is due to the disease of an emplo$ee and his continued emplo$ment is pre@udicial to

himself or his co#emplo$ees under )rticle 2D4B

4% hen resignation pa$ or separation pa$ 6or sometimes called K=nancial assistanceL7 is re'uired under a

unilaterall$ promulgated voluntar$ polic$ or practice of the emplo$er or under an agreement such as a /G)B

7 months in cases involving bona-

=de suspension of the operation of business or undertaking under )rticle 2D>B

I. RETIREMENT PA.

1. E!+!!!"y. - -etirement applies to:

a% )ll emplo$ees in the private sector, regardless of their position, designation or status and irrespecti!e of

the method b$ which their wages are paid B

b% Part#time emplo$eesB

c% 0mplo$ees of service and other @ob contractorsB

d% 1omestic workers or persons in the personal service of anotherB

e% nderground mine workersB

f% 0mplo$ees of government#owned andor controlled corporations organi;ed under the /orporation /ode6without original charters7%

2. Re"!re/e&" %+e. - O"!o&% retirement age 5 0 'o/$sory retirement age 5

3. A/o$&". G &hould be e'uivalent to o&e-(%f )4 /o&"( s%%ry for e=ery ye%r of ser=!*e a fraction of

at least siA 6>7 months being considered as one 67 whole $ear% QO&e-(%f )4 /o&"( s%%ry means 22.

%ys comprised of the following:

6a7 1 %ys s%%ry of the emplo$ee based on his %"es" s%%ry r%"e% PL7S

6b7 3he cash e'uivalent of =e )4 %ys of ser=!*e !&*e&"!=e e%=eB PL7S

6c7 O&e-"


20/78

nullif$ing the recognition, en@o$ment, or eAercise b$ women, irrespective of their marital status, on a

basis of e'ualit$ of men and women, of human rights and fundamental freedoms in the political,

economic, social, cultural, civil, or an$ other ?eld%

6b7 )n$ act or omission, including b$ law, polic$, administrative measure, or practice, that directl$ or

indirectl$ eAcludes or restricts women in the recognition and promotion of their rights and their access to

and en@o$ment of opportunities, bene?ts, or privileges%

6c7 ) measure or practice of general application is discrimination against women if it fails to provide for

mechanisms to o(set or address seA or gender#based disadvantages or limitations of women, as a result

of which women are denied or restricted in the recognition and protection of their rights and in their

access to and en@o$ment of opportunities, bene?ts, or privilegesB or women, more than men, are shown

to have su(ered the greater adverse e(ects of those measures or practices%

6d7 1iscrimination compounded b$ or intersecting with other grounds, status, or condition, such as ethnicit$,

age, povert$, or religion%

3. S"!$%"!o& %+%!&s" /%rr!%+e. G 9t is an unlawful act of the emplo$er to re'uire as a condition for or

continuation of emplo$ment that a woman emplo$ee shall &o" +e" /%rr!e or to stipulate eApressl$ or

tacitl$ that $o& +e""!&+ /%rr!e % ” and

ii% when the child below ?fteen 6


21/78

onl$ members of the child=s famil$ are emplo$edB or

6b7 in “%(b&ic entertain'ent or in$or'ation” which refers to artistic, literar$, and cultural

performances for television show, radio program, cinema or ?lm, theater, commercial advertisement,

public relations activities or campaigns, print materials, internet, and other media%

3. Pro(!!"!o& of e/oy!&+ /!&ors !& *er"%!& $&er"%!&+s %& !& *er"%!& %=er"!se/e&"s. - .o

child below eighteen 6D7 $ears of age is allowed to be emplo$ed as a model in an$ advertisement directl$ or

indirectl$ promoting alcoholic beverages, intoAicating drinks, tobacco and its b$#products, gambling or an$

form of violence or pornograph$%

L. EMPLOMENT O6 HO7SEHELPERS )NOW KNOWN AS Q8OMESTI' WORKERS OR KASAMBAHA4,

1. Pre=%!!&+ %!*%e %, otherwise known as “;o'estic 8or?ers Act” or “Batas

Dasa'ba"a” approved on anuar$ D, 2+*%

2. Q8o/es"!*


22/78

)%4P200. 00 % 'ont" for those emplo$ed in the .ational /apital -egion 6./-7B

)4P2000. 00 % 'ont" for those emplo$ed in chartered cities and ?rst class municipalitiesB

and

)*4P100. 00 % 'ont" for those emplo$ed in other municipalities%

)ll kasambaha$ are entitled to:

6a7 13"( /o&"( %y%

6b7 -%y ser=!*e !&*e&"!=e e%=e after $ear of service%

6c7 &&&, Philealth and Pag#9G9C coverage who have rendered at least month of service%

6NOTE: Premium pa$ments or contributions shall be shouldered b$ the emplo$er% owever,

if the domestic worker is receiving a wage of P

eAceeding the e'uivalent < da$s work% 3he emplo$er ma$ recover the deploy#ent e;penses provided that the service has been terminated within > months from the domestic

worker=s emplo$ment%

6ii7If "er/!&%"e y e/oyer

working relationship %ys before the intended termination of the service%

6*7 #ro$&s "o "er/!&%"e e/oy/e&" *o&"r%*" y "(e %s%/%(%y. - 3he domestic worker ma$

terminate the emplo$ment relationship %" %&y "!/e efore "(e e!r%"!o& of "(e *o&"r%*" for an$

of the following causes:

6a7Rerbal or emotional abuse of the domestic worker b$ the emplo$er or an$ member of the

householdB

6b79nhuman treatment including ph$sical abuse of the domestic worker b$ the emplo$er or an$

member of the householdB

6c7/ommission of a crime or o(ense against the domestic worker b$ the emplo$er or an$ member of

the householdB

6d7Riolation b$ the emplo$er of the terms and conditions of the emplo$ment contract and other

standards set forth under this lawB6e7)n$ disease pre@udicial to the health of the domestic worker, the emplo$er, or members of the

householdB and

6f7 Other causes analogous to the foregoing%

6NOTE: T(e +ro$&s %re % *o/!&%"!o& of o"( ;$s" %& %$"(or!De *%$ses4.

647 #ro$&s "o "er/!&%"e e/oy/e&" *o&"r%*" y "(e e/oyer. -)n emplo$er ma$ terminate the

services of the domestic worker at an$ time before the eApiration of the contract, for an$ of the

following causes:

6a7Misconduct or willful disobedience b$ the domestic worker of the lawful order of the emplo$er in

connection with the former=s workB

6b7Cross or habitual neglect or inecienc$ b$ the domestic worker in the performance of dutiesB

6c7 Fraud or willful breach of the trust reposed b$ the emplo$er on the domestic workerB

6d7 /ommission of a crime or o(ense b$ the domestic worker against the person of the emplo$er or

an$ immediate member of the emplo$er=s famil$B


23/78

6e7 Riolation b$ the domestic worker of the terms and conditions of the emplo$ment contract and other

standards set forth under this lawB

6f7 )n$ disease pre@udicial to the health of the domestic worker, the emplo$er, or members of the

householdB and

6g7 Other causes analogous to the foregoing%

6NOTE: T(e +ro$&s %re % *o/!&%"!o& of o"( ;$s" %& %$"(or!De *%$ses4.

E/oy/e&" 'er"!*%"!o&. - 9t is the dut$ of the emplo$er to issue a certi?cate of emplo$ment to the

domestic worker within < da$s from the time it is re'uested%

M. EMPLOMENT O6 HOMEWORKERS.

1. QI&$s"r!% (o/e


24/78

3/4 'ont"s of practical training on the @ob%

% (a&i>cations% 3he law does not eApressl$ mention an$ 'uali?cations for learnersB while the following

'uali?cations are re'uired to be met b$ apprentices under )rticle

6a7 Ge at least fourteen 647 $ears of ageB

6b7Possess vocational aptitude and capacit$ for appropriate testsB and

6c7 Possess the abilit$ to comprehend and follow oral and written instructions%

D% Circ('stances .(sti$in# "irin# o$ trainees% nlike in apprenticeship, in learnership, the law, )rticle 4

of the 8abor /ode, eApressl$ prescribes the pre#re'uisites before learners ma$ be validl$ emplo$ed, to wit:

a% hen no eAperienced workers are availableB

b% 3he emplo$ment of learners is necessar$ to prevent curtailment of emplo$ment opportunitiesB and

c% 3he emplo$ment does not create unfair competition in terms of labor costs or impair or lower working

standards%

!% Li'itation on t"e n('ber o$ trainees% 9n learnership, a participating enterprise is allowed to take in

learners onl$ up to a maAimum of 2+N of its total regular workforce% .o similar cap is imposed in the case of

apprenticeship%

+% O%tion to e'%&o! 9n learnership, the enterprise is ob&i#e* to hire the learner after the lapse of the

learnership periodB while in apprenticeship, the enterprise is given onl$ an “o%tion” to hire the apprenticeas an emplo$ee%

% 8a#e rate% 3he wage rate of a learner or an apprentice is set at e* In*ivi*(a& wit" a ;isabi&it” means an individual with a disabilit$ who, with or without

reasonable accommodations, can perform the essential functions of the emplo$ment position that such

individual holds or desires% owever, consideration shall be given to the emplo$er=s @udgment as to what

functions of a @ob are essential, and if an emplo$er has prepared a written description before advertising

or interviewing applicants for the @ob, this description shall be considered evidence of the essential


25/78

functions of the @ob%

h% “Covere* Entit” means an emplo$er, emplo$ment agenc$, labor organi;ation or @oint#labor

management committee%

2. R!+("s of erso&s

%. E>$% oor"$&!"y for e/oy/e&".

. W%+e r%"e. ++N of the applicable minimum wage%

*. S(e"ere e/oy/e&" for erso&s

shall serve to develop the skills and potentials of persons with disabilit$ and enable them to compete

favorabl$ for available productive and remunerative emplo$ment opportunities in the labor market%

e. 9o*%"!o&% +$!%&*e %& *o$&se!&+. - 3he 1&1 shall implement measures providing and

evaluating vocational guidance and counselling to enable persons with disabilit$ to secure, retain and

advance in emplo$ment% 9t shall ensure the availabilit$ and training of counsellors and other suitabl$

'uali?ed sta( responsible for the vocational guidance and counselling of persons with disabilit$%

f. Perso&s

@. 8!s*r!/!&%"!o& o& e/oy/e&" ro(!!"e. - .o entit$, whether public or private, shall discriminate

against a 'uali?ed person with disabilit$ b$ reason of disabilit$ in regard to @ob application procedures, the

hiring, promotion, or discharge of emplo$ees, emplo$ee compensation, @ob training, and other terms,

conditions and privileges of emplo$ment% 3he following constitute acts of discrimination:

67 8imiting, segregating or classif$ing a @ob applicant with disabilit$ in such a manner that adversel$ a(ects

his work opportunitiesB

627 sing 'uali?cation standards, emplo$ment tests or other selection criteria that screen out or tend to

screen out a person with disabilit$ unless such standards, tests or other selection criteria are shown to be

@ob#related for the position in 'uestion and are consistent with business necessit$B

647 tili;ing standards, criteria, or methods of administration that:

6a7 have the e(ect of discrimination on the basis of disabilit$B or

6b7 perpetuate the discrimination of others who are sub@ect to common administrative control%

6


26/78

@. I&*e&"!=es for e/oyers with disabilit$ who meet the re'uired skills or 'uali?cations, e!"(er %s % re+$%r e/oyee %re&"!*e or

e%r&er shall be entitled to an %!"!o&% e$*"!o& fro/ "(e!r +ross !&*o/e e>$!=%e&" "o "

%**o//o%"!o& for erso&s

"(e!r &e" "%%e !&*o/e e>$!=%e&" "o f"y er*e&" )04 of "(e !re*" *os"s of "(e

!/ro=e/e&"s or /o!*%"!o&s.


[" -epublic )ct .o% +"-% )% .O% D!2, otherwise known as K30 &O8O P)-0.3&= 08F)-0 )/3 OF 2+++L [.OR0MG0- , 2+++"%

["-% )% .O% !2>2, otherwise known as K).39#R9O80./0 )C)9.&3 OM0. ).1 309- /981-0. )/3 OF 2!!4L

[M)-/ D, 2++4"%

[D" nder the 2013 Sy%$s for L%or L%


27/78

PRE-WEEK NOTES


By: Prof. Jose!"o#$!%&%& '(%&

)T(ese Notes, *o&s!s"!&+ of , %r"s %re s$e/e&"%ry "o "(e %$"(ors oo e&"!"e “2012 Bar

Reviewer on Labor Law”4

55555555555555555555555555555555555555555555555555555555

PART 6O7R

TERMINATION O6 EMPLOMENT

A. EMPLOER-EMPLOEE RELATIONSHIP.

1. @-fo "es":

a% &election and engagement of the emplo$eeB

b% Pa$ment of wages or salariesB

c% 0Aercise of the power of dismissalB or

d% 0Aercise of the power to control the emplo$ee=s conduct 5 the controlling test% 9t addresses the issue of

whether the emplo$er controls or has reser=e "(e r!+(" "o *o&"ro the emplo$ee not onl$ as to

the res$" of the work to be done but also as to the /e%&s %& /e"(os b$ which the same is to be

accomplished%

2. K!&s of e/oy/e&".

%. Pro%"!o&%ry e/oy/e&". - ) probationar$ emplo$ee is one who, for a given period of time, is on

observation, evaluation and trial b$ an emplo$er during which the emplo$er determines whether or not he

is 'uali?ed for permanent emplo$ment%

Pro%"!o&%ry er!o. G > months is neither the maAimum nor the minimum period% 3he emplo$er

ma$ provide for such period which ma$ either be less or more than > months%

Pro%"!o&%ry er!o (o< re*o&e %& *o/$"e. G 9f for eAample > months, it should be

reckoned “$ro' t"e *ate o$ a%%oint'ent (% to t"e sa'e ca&en*ar *ate o$ t"e / t" 'ont"

$o&&owin#! ”

8!s"!&*"!o& e"


28/78

T(ree )34


29/78

their contracts with other workers with the same emplo$ment status circumvents their right to

securit$ of tenure%

D% 0mplo$ment on a Kda$#to#da$ basis for a temporar$ periodL will result to regular emplo$ment%

!% 3ermination prior to lapse of ?Aed#term contract should be for a @ust or authori;ed cause%

So/e r!&*!es o& e-"er/ e/oy/e&" of O6Ws.

% OFs can never ac'uire regular emplo$ment% 9t is alwa$s on a ?Aed#term basis%

2% 0mplo$ment contracts of OFs for inde?nite period, not valid%

*% OFs do not become regular emplo$ees b$ reason of nature of work%

4% &eries of rehiring of OFs cannot ripen into regular emplo$ment

$!/e&" !/e/e&"s /%*(!&er!es %&

% 3he fact that the contractor has onl$ the principal as its single client indicates labor#onl$ contracting%

% 1irect relationship of the @ob, work or service contracted with the main business of the principal

indicates labor#onl$ contracting%

D% Riolation of the following rights of contractors= emplo$ees would make the principal the direct

emplo$er:

6a7&afe and healthful working conditionsB

6b7 8abor standards such as but not limited to service incentive leave, rest da$s, overtime pa$, holida$

pa$, *th month pa$, and separation pa$ as ma$ be provided in the &ervice )greement or under

the 8abor /odeB

6c7 -etirement bene?ts under the &&& or retirement plans of the contractor, if there is an$B

6d7 &ocial securit$ and welfare bene?tsB

6e7 &elf#organi;ation, collective bargaining and peaceful concerted activitiesB and

6f7 &ecurit$ of tenure%

!% -egistration of @ob contractors with the 1O80 is now mandator$% 6%!$re "o re+!s"er s(% +!=e r!se


30/78

"o "(e res$/"!o& "(%" "(e *o&"r%*"or !s e&+%+e !& %or-o&y *o&"r%*"!&+%

. 8e%r"/e&" '!r*$%r No. 01-12 M%r*( 13 2012. G 3his issuance:

% 0Acepted @ob contractors in the construction industr$ from the registration re'uirement under D. ?. $o.

%@-", 4eries of )*%%%

2% /lari?ed that D. ?. $o. %@-", 4eries of )*%% GPOs are not covered b$ the same Depart#ent ?rder $o.

%@-"does not contemplate information technolog$#enabled services involving an entire business

processes 6for eAample, $s!&ess ro*ess o$"so$r*!&+ &o


31/78

6e71isease%

3. 8$e ro*ess. G 1ue process in termination of emplo$ment refers to statutor$,[4" and not constitutional,

[$!re/e&". G -efers to the re'uirement that an emplo$ee who is dismissed for ;$s"

*%$se must be given at least two 627 notices described in Aing of Aings 9ransport, 3nc. !. Ma#ac, [C% -%

.o% >>2+D, une 2!, 2++", thus:

67 6!rs" written notice! # 3he ?rst written notice to be served on the emplo$ees should contain the

speci?c causes or grounds for termination against them, and a directive that the emplo$ees are given

the opportunit$ to submit their written eAplanation within the reasonable period of %" e%s" =e )4

*%e&%r %ys from receipt of the notice to give the emplo$ees an opportunit$ to stud$ the

accusation against them, consult a union ocial or law$er, gather data and evidence, and decide on

the defenses the$ will raise against the complaint% Moreover, in order to enable the emplo$ees to

intelligentl$ prepare their eAplanation and defenses, "(e &o"!*e s(o$ *o&"%!& % e"%!e

&%rr%"!o& of "(e f%*"s %& *!r*$/s"%&*es "(%"

"(e e/oyees% A +e&er% es*r!"!o& of "(e *(%r+e

627 He%r!&+ re(ire*! # )fter serving the ?rst notice, the emplo$ers should schedule and conduct

a (e%r!&+ or *o&fere&*e wherein the emplo$ees will be given the opportunit$ to: )14 e%!& %&

*%r!fy "(e!r efe&ses "o "(e *(%r+es %+%!&s" "(e/ )24 rese&" e=!e&*e !& s$or" of

"(e!r efe&ses %& )34 re$" "(e e=!e&*e rese&"e %+%!&s" "(e/ y "(e /%&%+e/e&".

1uring the hearing or conference, the emplo$ees are given the chance to defend themselves

personall$, with the assistance of a representative or counsel of their choice% Moreover, this

conference or hearing could be used b$ the parties as an opportunit$ to come to an amicable

settlement%

6*7 Se*o& written notice! # )fter determining that termination of emplo$ment is @usti?ed, the

emplo$ers shall serve the emplo$ees a


32/78

separated% 3he person reinstated assumes the position he had occupied prior to his dismissal or, if no longer

available, to a substantiall$ e'uivalent position%

%. Pe&!&+ %e% )Ar"!*e 223 L%or 'oe4. G 3his relief applies o&y to orders of reinstatement

issued b$ L%or Ar!"ers %& "o &o o"(er% 3he emplo$ee need not ?le a motion for the issuance of the

writ of eAecution since the 8abor )rbiter shall thereafter #otu proprio issue the writ% 3hus, if ordered b$

the .8-/, /) or &/, the same is not immediatel$ eAecutor$ since it is not covered b$ the rule under )rticle

22*B hence, there should be a writ of eAecution to e(ect reinstatement%

NOTE: See /ore !s*$ss!o& o& "(!s "o!* !& PART , e&"!"e QPRO'E87RE AN8

J7RIS8I'TION of L%or Ar!"ers.

. Se%r%"!o& %y !& !e$ of re!&s"%"e/e&". G 3he following circumstances @ustif$ the award of

separation in lieu of reinstatement:

% here the continued relationship between the emplo$er and the emplo$ee is no longer viable due to

the strained relations and antagonism between them%

2% hen reinstatement proves impossible, impracticable, and hardl$ in the best interest of the parties%

*% hen there has been long passage of time from the date of the incident to the ?nal resolution of the

case or due to certain realities of the situation%

4% here the dismissed emplo$ee=s position is no longer available at the time of reinstatement for reasonsnot attributable to the fault of the emplo$er%

% here the emplo$ee eApressl$ pra$ed for the award of separation pa$ instead of reinstatement

thereb$ e(ectivel$ foreclosing reinstatement as a relief%

% 9n case the establishment where the emplo$ee is to be reinstated has closed or ceased operations%

D% here the compan$ has been declared insolvent%

!% hen, b$ reason of compassionate @ustice or long $ears of service or lack of bad records in the past, an

emplo$ee is granted b$ the court separation pa$ in accordance with his entitlement under the law, or

under the /G) or compan$ rules or practice, whichever is higher, although there was a ?nding of

legalit$ of dismissal%

+% hen reinstatement is rendered moot and academic due to supervening events such as ?re%

% hen there is takeover of the business of the emplo$er b$ another compan$ and there is no

agreement regarding assumption of liabilit$ b$ the ac'uiring compan$%

2% hen the illegall$ dismissed emplo$ees are over#age and their reinstatement would un@ustl$ pre@udice

their emplo$er%

*% hen the general sales agenc$ contract between the emplo$er and its client has been terminated and

reinstatement is no longer feasible%

So/e r!&*!es o& se%r%"!o& %y !& !e$ of re!&s"%"e/e&".

a% 3he amount of separation pa$ should be e'uivalent to at least one 67 month salar$ or to one 67

month salar$ for ever$ $ear of service, whichever is higher, a fraction of at least siA 6>7 months being

considered as one 67 whole $ear% Re+$%r allowances should be included%

b% &eparation pa$ as a substitute remed$ is onl$ proper for reinstatement but not for backwages nor for

both reinstatement and backwages% &eparation pa$ in lieu of reinstatement and backwages, not

inconsistent with each other%

c% 3he law intended reinstatement to be the general rule% 9t is onl$ when reinstatement is no longer

feasible that pa$ment of separation pa$ is awarded to an illegall$ dismissed emplo$ee%

2. B%*


33/78

reinstatement is not possible, up to the &%!"y of the decision% Gackwages represent compensation that

should have been earned b$ the emplo$ee but were lost because of the un@ust or illegal dismissal%

%. 'o/$"%"!o&. G 3he backwages shall be computed on the basis of the + or >< $ears old,

as the case ma$ be%

. L!/!"e %*" the emplo$ee was terminated for her continuous

absence without permission% )lthough it was found that the emplo$ee was indeed guilt$ of breach of

trust and violation of compan$ rules, the &upreme /ourt still pronounced that the emplo$ee=s dismissal

was illegal on the basis of its ?nding that it was too severe a penalt$ considering that besides that fact

that she had served the compan$ for 2 $ears, it was her ?rst o(ense, and her leave to stud$ the French

language would ultimatel$ bene?t the emplo$er who no longer had to spend for translation services%

0ven so, other than ordering the emplo$ee=s reinstatement, the said emplo$ee was awarded backwages

limited to a period of two 627 $ears, given that the emplo$er acted without malice or bad faith in

terminating the emplo$ee=s services%

3he full backwages originall$ awarded in the 2++D case of Bictory iner, 3nc. !. ace, FG was reduced and

limited to onl$ ?ve 6


34/78

his wages and bene?ts during the eAtension% 9n such a case, the worker is not bound to reimburse the

amount paid to him during the eAtension if the emplo$er decides to dismiss him after the completion of

the investigation%

*% 9nde?nite preventive suspension amounts to constructive dismissal%

4% Preventive suspension does not mean that due process ma$ be disregarded%

**>, ul$ *, !D4, * &/-) *, anuar$ 24, !!2, 2+< &/-) *4D,

[" C% -% .o% >4D2+, 1ecember D, 2++D%

[D" Preventive suspension is not found in the 8abor /ode% 9t is provided in &ections D and !, -ules QQ999, Gook R, -ules

to 9mplement the 8abor /ode%

Po


35/78

PRE-WEEK NOTES


By: Prof. Jose!"o#$!%&%& '(%&


on Labor Law”4

55555555555555555555555555555555555555555555555555555555PART 6I9E

MANA#EMENT PRERO#ATI9ES

A. 8IS'IPLINE.

3he emplo$er=s prerogative to discipline includes the following rights:

% 3o dismissB

2% 3o promulgate disciplinar$ rules and regulationsB

*% 3o determine who to punishB

4% 3o impose proper penalt$ under the QRe%so&%e Proor"!o&%!"y R$e which means that infractions

committed b$ an emplo$ee should merit onl$ the corresponding sanction demanded b$ the circumstances%

3he penalt$ must be commensurate with the gravit$ of the o(ense, the act, conduct or omission imputed to

the emplo$ee and imposed in connection with the emplo$er=s disciplinar$ authorit$%

B. TRANS6ER O6 EMPLOEES.

) transfer means a movement:

% From one os!"!o& to another of e'uivalent rank, level or salar$, without a break in the serviceB or

2% From one o?*e to another within the same business establishment%

So/e r!&*!es o& "r%&sfer of e/oyees.

% 3he transfer of an emplo$ee ma$ constitute *o&s"r$*"!=e !s/!ss% when it amounts to an involuntar$

resignation resorted to when continued emplo$ment is rendered impossible, unreasonable or unlikel$B

when there is a demotion in rank andor a diminution in pa$B or when a clear discrimination, insensibilit$ or

disdain b$ an emplo$er becomes unbearable to the emplo$ee leaving him with no option but to forego with

his continued emplo$ment% More speci?call$, the following "(ree )34 *o&!"!o&s must concur in order for

the transfer to be considered as constructive dismissal:

6a7hen the transfer is unreasonable, inconvenient or pre@udicial to the emplo$eeB

6b7hen the transfer involves a demotion in rank or diminution of salaries, bene?ts and other privilegesB

and

6c7hen the emplo$er performs a clear act of discrimination, insensibilit$, or disdain towards the

emplo$ee, which forecloses an$ choice b$ the latter eAcept to forego his continued emplo$ment%2% 0ven if the emplo$ee is performing well in his present assignment, management ma$ reassign him to a

new post%

*% 3he refusal of an emplo$ee to be transferred ma$ be held @usti?ed if there is a showing that the transfer

was directed b$ the emplo$er under 'uestionable circumstances% For instance, the transfer of emplo$ees

during the height of their union=s concerted activities in the compan$ where the$ were active participants

is illegal%

4% )n emplo$ee who refuses to be transferred when such transfer is valid is guilt$ of insubordination or willful

disobedience of a lawful order of an emplo$er under )rticle 2D2 of the 8abor /ode% 6or e%/e: 3he

dismissal of a medical representative who acceded in his emplo$ment application to be assigned an$where

in the Philippines but later refused to be transferred from Manila to a provincial assignment, was held valid%

3he reason is that when he applied and was accepted for the @ob, he agreed to the polic$ of the compan$

regarding assignment an$where in the Philippines as demanded b$ his emplo$er=s business operation% ["


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held not valid% )n emplo$ee could not validl$ refuse lawful orders to transfer based on these grounds%

>% -efusal to transfer b$ reason of ro/o"!o& is valid%

'. PRO87'TI9IT STAN8AR8S OR 7OTA.

3he emplo$er has the prerogative to prescribe the standards of productivit$ which the emplo$ees should

compl$% 3he productivit$ standards ma$ be used b$ the emplo$er as:

% an incentive schemeB andor

2% a disciplinar$ scheme%

)s an !&*e&"!=e scheme, emplo$ees who surpass the productivit$ standards or 'uota are usuall$ given additional

bene?ts% )s a !s*!!&%ry scheme, emplo$ees ma$ be sanctioned for failure to meet the productivit$ standards or

'uota%

8. #RANT O6 BON7S.

1. #e&er% r$e o&$s !s &o" e/%&%e or e&for*e%e. - Gonus, as a general rule, is an amount

granted and paide; gratia to the emplo$ee% 9ts pa$ment constitutes an act of enlightened generosit$ and

self#interest on the part of the emplo$er rather than as a demandable or enforceable obligation%

2. Bo&$s


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Q10. o$ %+ree "o !s*ose "o /%&%+e/e&" %&y e!s"!&+ or f$"$re re%"!o&s(! yo$

/%y (%=e e!"(er y *o&s%&+$!&!"y or %?&!"y

r$+ *o/%&!es. S(o$ !" ose % oss!e *o&!*" of !&"eres" !& /%&%+e/e&" !s*re"!o&

yo$ %+ree "o res!+& =o$&"%r!y fro/ "(e 'o/%&y %s % /%""er of 'o/%&y o!*y.

3he &upreme /ourt ruled that this stipulation is a valid eAercise of management prerogative% 3he prohibition

against personal or marital relationships with emplo$ees of competitor#companies upon its emplo$ees is reasonable

under the circumstances because relationships of that nature might compromise the interests of the compan$% 9n la$ing

down the assailed compan$ polic$, the emplo$er onl$ aims to protect its interests against the possibilit$ that a

competitor compan$ will gain access to its trade secrets, manufacturing formulas, marketing strategies and other

con?dential programs and information%

QRe%so&%e $s!&ess &e*ess!"y r$e as applied to the prohibition against marriage polic$% G 3his rule

dictates that the re'uirement of reasonableness must be clearl$ established in order to make the polic$ against

marriage valid% 3he emplo$er has the burden to prove the eAistence of a reasonable business necessit$% 3he burden

was successfull$ discharged in above case of ;(ncan!

#. POST-EMPLOMENT BAN

%. 6reeo/ "o *o&"r%*". - 3he emplo$er and the emplo$ee are free to stipulate in an emplo$ment contract

prohibiting the emplo$ee within a certain period from and after the termination of his emplo$ment, from

starting a similar business, profession or trade or working in an entit$ that is engaged in a similar business

that might compete with the emplo$er% /ontracts which prohibit an emplo$ee from engaging in business in

competition with the emplo$er are not necessaril$ void for being in restraint of trade% 3he non#compete

clause is agreed upon to prevent the possibilit$ that upon an emplo$ee=s termination or resignation, he might

start a business or work for a competitor with the full competitive advantage of knowing and eAploiting

con?dential and sensitive information, trade secrets, marketing plans, customerclient lists, business

practices, upcoming products, etc% , which he ac'uired and gained from his emplo$ment with the former

emplo$er%

. P(!!!&e ;$r!sr$e&*e o& "(e &o&-*o/e"e *%$se. - 3he nature and eAtent to which a non#

compete clause is legall$ allowed usuall$ varies from one @urisdiction to another% 9n the Philippines, several

cases dating back to as earl$ as !+ have dealt with issues on @urisdiction and validit$ of Knon#competeL or

Knon#involvementL stipulations, also known as /ovenant .ot to /ompete 6/./7 in an emplo$ment contract%

3he rule is clear: % &o&-*o/e"e *%$se !s &o" &e*ess%r!y =o! for e!&+ !& res"r%!&" of "r%e %s

o&+ %s "(ere %re re%so&%e !/!"%"!o&s %s "o TIME TRA8E %& PLA'E.

9n order to appreciate the principles a(ecting this clause in our @urisdiction, the following cases of signi?cance

ma$ be cited and are worth looking into:

% Carlos *


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3he best case to illustrate the principles on non#compete clause is the 2++ case of ;ais B! Ti( v! P&atin('

P&ans P"i&i%%ines, Inc! , #. R. No. 1312 6er$%ry 2, 200F. 3he non#compete clause 6called K.on#

9nvolvement ProvisionL in this case7 provides as follows:

KD% .O. 9.RO8R0M0.3 P-OR9&9O. 5 3he 0MP8OE00 further undertakes that during hisher

engagement with 0MP8OE0- and in case of separation from the /ompan$, whether voluntar$ or for

cause, heshe shall not, for the neAt 3O 627 $ears thereafter, engage in or be involved with an$

corporation, association or entit$, whether directl$ or indirectl$, engaged in the same business or

belonging to the same pre#need industr$ as the 0MP8OE0-% )n$ breach of the foregoing provision shall

render the 0MP8OE00 liable to the 0MP8OE0- in the amount of One undred 3housand Pesos

6P++,+++% ++7 for and as li'uidated damages% L

&tarting on anuar$ , !!*, petitioner worked for respondent as &enior )ssistant Rice#President and 3erritorial

Operations ead in charge of its ongkong and )sean operations under a


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clause merel$ en@oined her from engaging in pre#need business akin to respondent=s within two $ears

from petitioner=s separation from respondent% &he had not been prohibited from marketing

other service plans%

K)s earl$ as !>, we alread$ had the occasion to discuss the validit$ of a non#involvement

clause% I& @erra))ini v! Hse&& s$r% ro(!!"s e"!"!o&er fro/ e&+%+!&+ !& %&y re-&ee $s!&ess %!& "o reso&e&"s.

KMore signi?cantl$, since petitioner was the &enior )ssistant Rice#President and 3erritorial

Operations ead in charge of respondent=s ongkong and )sean operations, she had been priv$ to

con?dential and highl$ sensitive marketing strategies of respondent=s business% 3o allow her to engage

in a rival business soon after she leaves would make respondent=s trade secrets vulnerable especiall$ in

a highl$ competitive marketing environment% I& s$/


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K9n an$ event, )rticle *+> of the /ivil /ode provides that parties to a contract ma$ establish

such stipulations, clauses, terms and conditions as the$ ma$ deem convenient, provided the$ are not

contrar$ to law, morals, good customs, public order, or public polic$%

K)rticle

force of law between the contracting parties and should be complied with in good faith% /ourts cannot

stipulate for the parties nor amend their agreement where the same does not contravene law, morals,

good customs, public order or public polic$, for to do so would be to alter the real intent of the parties,

and would run contrar$ to the function of the courts to give force and e(ect thereto% .ot being contrar$

to public polic$, the non#involvement clause, which petitioner and respondent freel$ agreed upon, has

the force of law between them, and thus, should be complied with in good faith%

K3hus, as held b$ the trial court and the /ourt of )ppeals, petitioner is bound to pa$

respondent P++,+++ as li'uidated damages% hile we have e'uitabl$ reduced li'uidated damages in

certain cases, we cannot do so in this case, since it appears that even from the start, petitioner had not

shown the least intention to ful?ll the non#involvement clause in good faith% L [0mphasis supplied"%


[" )bbott 8aboratories, 9nc% v% .8-/, C% -% .o% >!

Po


41/78

PRE-WEEK NOTES


By: Prof. Jose!"o#$!%&%& '(%&


on Labor Law”4

55555555555555555555555555555555555555555555555555555555

PART SIX

SO'IAL AN8 WEL6ARE LE#ISLATION

A. SSS LAW )R. A. No. ,2,24.

1. 'o/$sory *o=er%+e.

a% A e/oyees # not over siAt$ 6>+7 $ears of age and their emplo$ers%

b% 8o/es"!*


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d% 1eath bene?ts

e% Permanent disabilit$ bene?ts

f% Funeral bene?t

g% &ickness bene?t

h% Maternit$ leave bene?t

. Be&e*!%r!es.

%. 8ee&e&*y r$e $&er "(e SSS L%


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% 3emporar$ disabilit$ bene?ts

% .on#scheduled disabilit$

D% &urvivorship bene?ts

!% Funeral bene?ts

+% 8ife insurance bene?ts

6a7 /ompulsor$ life insurance

6b7 Optional insurance

@. Be&e*!%r!es.

%. 8ee&e&"s.

1ependents shall be the following:

6a7 the legitimate spouse dependent for support upon the member or pensionerB

6b7the legitimate, legitimated, legall$ adopted child, including the illegitimate child, who is unmarried,

not gainfully e#ployed, not over the age of ma@orit$, or is over the age of ma@orit$ but incapacitated

and incapable of self#support due to a mental or ph$sical defect ac'uired prior to age of ma@orit$B and

6c7 the parents dependent upon the member for support%

. Be&e*!%r!es.

3here are 2 kinds of bene?ciaries under the C&9& 8aw as follows:

% Pri'ar e&e*!%r!es S 3he legal dependent spouse until heshe remarries and the dependent

children%

2% Secon*ar e&e*!%r!es S 3he dependent parents and, sub@ect to the restrictions on dependent

children, the legitimate descendants%

'. LIMITE8 PORTABILIT LAW)R. A. No. F4. 2

%. P$rose of "(e %< !s "o es"%!s( % $&!"%ry so*!% se*$r!"y sys"e/. # 9t is the declared polic$ of the

&tate to institute a scheme for "o"%!D%"!o& and or"%!!"y of social securit$ bene?ts with the view of

establishing within a reasonable period, a $&!"%ry social securit$ s$stem%

. To"%!D%"!o& e&e. G 9t refers to the process of adding up the periods of creditable services or

contributions under each of the &$stems, for the purpose of eligibilit$ and computation of bene?ts%

*. Por"%!!"y e&e. G 9t refers to the transfer of funds for the account and bene?t of a worker who

transfers from one s$stem to the other%

. A!*%!!"y of !/!"e or"%!!"y s*(e/e. # 3he bene?ts provided under -% )% .o% >!! appl$

to %*"!=e or !&%*"!=e members of either &$stem 6C&9&&&&7 as of the date of its e(ectivit$ on Ma$ 2+, !!4%

e. 'o=er%+e. # 3he law applies to % worker#members of the C&9& andor &&& who transfer from the public

sector to the private sector or !ice-!ersa, or who wish to retain their membership in both &$stems% [*"

f. 're!"%!!"y %& "o"%!D%"!o& of *o&"r!$"!o&s %& e&e"s !& SSS %& #SIS. # ) covered worker

who transfers emplo$ment from one sector to another 6 i. e. , from private sector to public sector, or !ice

!ersa7, or is emplo$ed in both sectors, shall have his creditable services or contributions in both &$stems

6C&9& and &&&7 credited to his service or contribution record in each of the &$stems and shall be totali;ed for

purposes of old#age, disabilit$, survivorship and other bene?ts in case the covered member does not :ualify

for such bene=ts in either or both 4yste#s without totali0ation provided, however, that overlapping periods

of membership shall be credited onl$ once for purposes of totali;ation%

+. L!/!"e or"%!!"y of f$&s. # 3he processes involved in the prompt pa$ment of mone$ bene?ts to

eligible members are the @oint responsibilit$ of the C&9& and &&&% 3he &$stem or &$stems responsible for thepa$ment of mone$ bene?ts due a covered worker shall release the same within ?fteen 6


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(. To"%!D%"!o& of *o&"r!$"!o&s %& e&e"s (o< ro*esse.

1. 'o&"r!$"!o&s. - )ll contributions paid b$ such member personall$ and those that were paid b$ his

emplo$ers to both &$stems 6C&9& and &&&7 shall be considered in the processing of bene?ts which he can

claim from either or both &$stems, provided, however, that the amount of bene?ts to be paid b$ one

&$stem shall be in proportion to the number of contributions actuall$ remitted to that &$stem% 3he

term “contributions” refers to the contributions paid b$ the emplo$ee or worker to either the C&9& or the

&&& on account of the worker=s membership%

2. 're!"%e ser=!*es or er!os of *o&"r!$"!o&s. - )ll creditable ser!ices or periods of

contributions made continuousl$ or in the aggregate of a worker under either of the sectors shall be

added up and considered for purposes of eligibility and computation of bene?ts% 3he term Q*re!"%e

ser=!*es insofar as the public sector is concerned, refers to the following:

% )ll previous services rendered b$ an ocialemplo$ee pursuant to an appointment, whether

permanent, provisional or temporar$B

2% )ll previous services rendered b$ an ocialemplo$ee pursuant to a dul$#approved appointment to a

position in the /ivil &ervice with compensation or salar$B

*% 3he period during which an ocial or emplo$ee was on authori;ed sick leave of absence without pa$

not eAceeding one 67 $earB4% 3he period during which an ocial or emplo$ee was out of the service as a result of illegal termination

of his services as ?nall$ decided b$ the proper authoritiesB and


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. ECe*" of o=er%!&+ er!os of *re!"%e ser=!*es. # Overlapping periods of creditable services or

contributions in both &$stems shall be credited onl$ once for purposes of totali;ation% “Over&a%%in# o$

%erio*s” refers to the periods during which a worker simultaneousl$ contributes to both &$stems%

8. EMPLOEES 'OMPENSATION G 'O9ERA#E AN8 WHEN 'OMPENSABLE.

%. #e&er% *o=er%+e. - 3he following shall be covered b$ the 0mplo$ees= /ompensation Program 60/P7:

% )ll emplo$ersB

2% 0ver$ emplo$ee not over siAt$ 6>+7 $ears of ageB*% )n emplo$ee over >+ $ears of age who had been pa$ing contributions to the &$stem 6C&9&&&&7 prior to

age siAt$ 6>+7 and has not been compulsoril$ retiredB and

4% )n$ emplo$ee who is coverable b$ both the C&9& and &&& and should be compulsoril$ covered b$ both

&$stems%

. Se*"ors of e/oyees *o=ere y "(e E'P. # 3he following sectors are covered under the 0/P:

% )ll public sector emplo$ees including those of government#owned andor controlled corporations and

local government units covered b$ the C&9&B

2% )ll emplo$ees in the private sector covered b$ the &&&B and

*% Overseas Filipino workers 6OFs7, namel$:

a% Filipino seafarers compulsoril$ covered under the &&&%

b% 8and#based contract workers provided that their emplo$er, natural or @uridical, is engaged in an$ trade,

industr$ or business undertaking in the PhilippinesB otherwise, the$ shall not be covered b$ the 0/P%

*. S"%r" of *o=er%+e of e/oyees $&er "(e E'P. - 3he coverage under the 0/P of emplo$ees in the

private and public sectors starts on the >rst *a of their emplo$ment% 3he coverage is *o/$sory in

nature%

. E/oyees *o/e&s%"!o& e&e"s. - 3he following are the bene?ts provided under the 8abor /ode:

a% Medical bene?ts

b% 1isabilit$ bene?ts

% 3emporar$ total disabilit$

2% Permanent total disabilit$

*% Permanent partial disabilit$

c% 1eath bene?t

d% Funeral bene?t

e. Te/or%ry "o"% !s%!!"y. - ) total disabilit$ is te#porary if, as a result of the in@ur$ or sickness, the

emplo$ee is unable to perform an$ gainful occupation for a continuous period of not eAceeding 120

%ys, e5ce%t when such disabilit$ still re'uires medical attendance be$ond 120 %ys, but not to

e5cee* 2@0 %ys% 9f the disabilit$ is the result of an in@ur$ or sickness, the period of compensabilit$ shall be

counted from the ?rst da$ of such in@ur$ or sickness% )n emplo$ee who later had to stop working due to a

compensable illness is also entitled to te'%orar tota& *isabi&it bene?ts%

f. Per/%&e&" "o"% !s%!!"y. 9t is the inabilit$ of a worker to perform his @ob for /ore "(%& 120 %ys,

regardless of whether or not he loses the use of an$ part of his bod$%

QTo"% !s%!!"y on the other hand, means disablement of an emplo$ee to earn wages in the same kind of

work, or work of a similar nature that he was trained for, or accustomed to perform, or an$ kind of work which

a person of his mentalit$ and attainment could do% 9t is lack of abilit$ to follow continuousl$ some substantial

gainful occupation without serious discomfort or pain and without material in@ur$ to health and danger to life%

To"% disabilit$ does not mean a state of absolute helplessness% ) total disabilit$ does not re'uire that the

emplo$ee be absolutel$ disabled or totall$ paral$;ed% hat is necessar$ is that the in@ur$ must be such

that the emplo$ee cannot pursue his usual work and earn therefrom%

) disabilit$ is "o"% and er/%&e&" if, as a result of the in@ur$ or sickness, the emplo$ee is unable to perform

an$ gainful occupation for a continuous period e*ee!&+ 120 %ys% Moreover, the fact that the


46/78

permanentl$ and totall$ disabled emplo$ee continues to work after such disabilit$ does not deprive him of the

bene?ts provided under the law% For what is important consideration is the inabilit$ to do substantiall$ all

material acts necessar$ for the prosecution of a gainful occupation without serious discomfort or pain and

without material in@ur$ or danger to life% 9n disabilit$ compensation, it is not the in@ur$ per se which is

compensated but the incapacit$ to work%

+. 8e%"( e&e". - ithin the conteAt of the emplo$ees= compensation program, the term “death” means

loss of life resulting from an in@ur$ or sickness% Q'o/e&s%e e%"( refers to death which is the result of

a work#related in@ur$ or sickness%

(. 6$&er% e&e". - 3he funeral bene?t shall be P10000. 00 for the private sector and P3000. 00 for the

public sector%


[" &ection *+, )rticle 9R of -% )% .o% +*>, otherwise known as “Do#estic orkers "ct” or “8atas

Aasa#bahay” approved b$ President Genigno &% )'uino 999 on anuar$ D, 2+*%

[2" R. A. No. F [)n )ct 9nstituting 8imited Portabilit$ &cheme in the &ocial &ecurit$ 9nsurance &$stem b$ 3otali;ing

the orkers= /reditable &ervices or /ontributions in 0ach of the &$stems" approved on Ma$ , !!4%

[*" &ection , -ule 9, 9bid%

Po


47/78


48/78

3hese two 627 criteria are cumulative and both must be met if an emplo$ee is to be considered a

con?dential emplo$ee under the Q'o&e&"!% E/oyee R$e. 3hese con?dential emplo$ees ma$

either be r%&-%&-e or s$er=!sory emplo$ees but because the$ have access to con?dential

information in the ?eld of labor relations, the$ are not eligible to form, @oin or assist a labor organi;ation%

3he rationale is to avoid conIict of interest since the$ ma$ obtain advance information on the compan$=s

position with regard to collective bargaining negotiations, the disposition of grievances, or other labor

relations matters%

d% 9n the +o=er&/e&" se*"or, the following are &o" eligible to form emplo$ees= organi;ations:

a% igh#level emplo$ees whose functions are normall$ considered as polic$#making or managerial or

whose duties are of a highl$ con?dential nature are not eligible to @oin the organi;ation of rank#and#?le

government emplo$eesB

b% Members of the )rmed Forces of the PhilippinesB

c% Police ocersB

d% PolicemenB

e% FiremenB and

f% ail guards%

3. B%r+%!&!&+ $&!". G 9t refers to a group of emplo$ees sharing mutual interests within a given emplo$er unit,

comprised of all or less than all of the entire bod$ of emplo$ees in the emplo$er unit or an$ speci?c

occupational or geographical grouping within such emplo$er unit% 9t ma$ also refer to the group or cluster of

@obs or positions within the emplo$er=s establishment that supports the labor organi;ation which is appl$ing

for registration%

)%4 Tes"s "o e"er/!&e "(e *o&s"!"$e&*y of %& %ror!%"e %r+%!&!&+ $&!". G 3here is no hard and

fast rule to determine the valid formation of a bargaining unit% owever, the following fo$r )@4

o*"r!&es ma$ be used to determine its validit$:

67 S$s"%&"!% /$"$% !&"eres" o*"r!&e% # 3he emplo$ees sought to be represented b$ the collective

bargaining agent must have substantial mutual interest in terms of emplo$ment and workingconditions as evinced b$ the t$pe of work the$ perform% 9t is characteri;ed b$ similarit$ of

emplo$ment status, same duties and responsibilities and substantiall$ similar compensation and

working conditions%

627 #oe o*"r!&e. # 3he determination of the bargaining unit is based on the

modes:

%. 9o$&"%ry re*o+&!"!o&. G 9t refers to the process b$ which a legitimate labor union is voluntaril$

recogni;ed b$ the emplo$er as the eAclusive bargaining representative or agent in a bargaining unit% 9t is


49/78

proper onl$ in cases where there is o&y o&e e+!"!/%"e %or or+%&!D%"!o& eAisting and operating in a

bargaining unit% 9t cannot be done in case there are two or more unions in contention%

. 'er"!*%"!o& ee*"!o&. G 9t refers to the process of determining through secret ballot the sole and

eAclusive bargaining agent of the emplo$ees in an appropriate bargaining unit for purposes of collective

bargaining negotiations% ) certi?cation election is conducted onl$ upon the order of the Med#)rbiter of the

Gureau of 8abor -elations 6G8-7%

)!4 I& %& $&or+%&!De es"%!s(/e&". - 9n case of a petition ?led b$ a legitimate organi;ation

involving an (nor#ani)e* establishment, the Med#)rbiter is re'uired to immediatel$ order the

conduct of a certi?cation election upon ?ling of a petition for certi?cation election b$ a legitimate labor

organi;ation% 3he twent$#?ve percent 622% 3hat such petition is =er!eB and

*% 3hat the petition is supported b$ the $!re !& "(e ro*ess of *er"!*%"!o& ee*"!o&. # 3he process of

certi?cation election re'uires two 627 kinds of ma@orit$ votes, !i0 :

% To (%=e % =%! *er"!*%"!o& ee*"!o& at least a /%;or!"y of % e!+!e =o"ers in the

bargaining unit should cast their votesB and

2% To

ee*"!o& the union should garner the /%;or!"y =o"e of "(e =%! =o"es *%s".

*. R$&-oC ee*"!o&. G 9t refers to an election between the labor unions receiving the two 627 highest

number of votes in a certi?cation election or consent election with three 6*7 or more choices, where such a

certi?cation election or consent election results in none of the three 6*7 or more choices receiving the

ma@orit$ of the valid votes cast, provided that the total number of votes for all contending unions is at

least ?ft$ percent 6


50/78

&outhern Philippines Federation of 8abor 5 @ votesB &).19C). 5 votesB F 5 1 votesB .o nion

5 votesB and 9nvalid votes 5 13%

Private respondent#emplo$er P9 alleged that the certi?cation election was marred b$ /%ss!=e fr%$

%& !rre+$%r!"!es and that out of 12eligible voters, 13, representing @ of the rank#and#?le

workers of private respondent, were not able to vote, resulting in a failure of election% pon the order of

the 1O80 &ecretar$, the Med#)rbiter conducted an investigation on the compan$=s claim that


51/78

their votes because the$ were not properl$ noti?ed of the date% 3he$ could not therefore have

?led their protests within ?ve 6


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principall$ for the purpose of strengthening the collective bargaining leverage of the %?!%"e%

)n Q%?!%"e refers to 6a7 an in*e%en*ent (nion aliated with a federation or a national unionB or 6b7

a &oca& c"a%ter 6formerl$ known as Kchartered localL7 which has been subse'uentl$ granted !&ee&e&"

re+!s"r%"!o& but did not disaliate from the federation or national union which created it% 3echnicall$, a

local chapter created through chartering under )rticle 2*4#) of the 8abor /ode cannot be properl$ called

an Q%?!%"e of a federation or a national union if it has not ac'uired an$ !&ee&e&" re+!s"r%"!o& of its

own%

So/e r!&*!es o& %?!%"!o&.

% 3he relationship between the aliate union 6independent union7 and the mother union 6federation or

national union7 is that of r!&*!%-%+e&" re%"!o&s(!% T(e %?!%"e $&!o& !s "(e r!&*!% %&

"(e /o"(er $&!o& "(e %+e&". 3his principle applies in the case of a local chapter created b$ a

federation or a national union%

2% )liation does not give the mother federation the license to act independentl$ of the aliate union% 9t

onl$ gives rise to a contract of agenc$, where the former acts in representation of the latter%

*% 3he appendage of the federation=s acron$m to the aliate union=s name in the registration with the

Gureau of 8abor -elations does not change the principal#agent relationship between them% &uch

inclusion of the acron$m is merel$ to indicate that the local union is aliated with the federation or

national union at the time of the registration% 9t does not mean that the aliate union cannot

independentl$ stand on its own%

. 8!s%?!%"!o& of "(e o*% $&!o& fro/ "(e /o"(er $&!o&. G 3he right of the aliate union to disaliate

from its mother federation or national union is a constitutionall$#guaranteed right which ma$ be invoked b$

the former %" %&y "!/e% )n aliate union is a separate and voluntar$ association free to serve the interest of

all its members # consistent with the freedom of association guaranteed in the /onstitution%

So/e r!&*!es o& !s%?!%"!o&.

% 1isaliation should be approved b$ the ma@orit$ of the union members%

2% 1isaliation does not divest an aliate union of its legal personalit$%*% 1isaliation of an aliate union is not an act of dislo$alt$%

4% 1isaliation for purposes of forming a new union does not terminate the status of the members thereof

as emplo$ees of the compan$%

% 1isaliation does not a(ect /G)% 9t does not operate to amend it or change the administration of the

contract%

F. S$s"!"$"!o&%ry o*"r!&e. G A" %&y "!/e $r!&+ "(e -ye%r !fe"!/e of "(e 'BA the bargaining

agent ma$ lose its ma@orit$ status as when there eAists a $&!o& s*(!s/ or s!" which completel$ changes

the situation of the emplo$er and the bargaining agent in terms of the latter=s membership, structure and

others% 3o determine ma@orit$ support of the members of the bargaining unit being represented b$ the

bargaining agent, a petition for certi?cation election ma$ be ?led to determine which of the unions has the

ma@orit$ status% 3he union certi?ed as the new sole and eAclusive bargaining agent will thus s$s"!"$"e the

previous one as a part$ to the eAisting /G)% 3his is allowed under this doctrine%

,. 7&!o& $es %& se*!% %ssess/e&"s. - )ll unions are authori;ed to collect reasonable amounts

for /e/ers(! fees $&!o& $es %ssess/e&"s %& &es% 3his is done through Q*(e*-oC which is

the method of deducting b$ the emplo$er from the emplo$ee=s pa$ at prescribed periods, of an$ amount due

for such fees, ?nes or assessments%

Re>$!re/e&"s for =%!!"y. G 3o be valid, the following re'uisites should be complied with:

67 )uthori;ation b$ a


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3he law strictl$ prohibits the check#o( from an$ amount due an emplo$ee of an$ special assessment,

attorne$=s fees, negotiation fees or an$ other eAtraordinar$ fees

said %+e&" successfull$ negotiated and concluded with the emplo$er% 9t is called K%+e&*y feeL because it is

paid to such Kbargaining %+e&"L of which the$ are not members but which represented them in the /G)

negotiations% 3he e+% %s!s of the bargaining agent=s right to agenc$ fees is &e!"(er *o&"r%*"$% &or

s"%"$"ory $" >$%s!-*o&"r%*"$%, deriving from the established principle that non#bargaining union

emplo$ees ma$ &o" $&;$s"y e&r!*( "(e/se=es b$ bene?ting from emplo$ment conditions negotiated b$

the bargaining agent%

So/e r!&*!es o& %+e&*y fees.

% .o individual written authori;ation is re'uired to check#o( agenc$ fees% 3he fact of acceptance b$ the

non#bargaining agent members is all that is re'uired to @ustif$ such check#o( of agenc$ fees%

2% 0mplo$er has the dut$ to check#o( agenc$ fees%

*% .on#members of the bargaining agent need not become members thereof% 3heir acceptance of the

bene?ts Iowing from the /G) and their act of pa$ing the agenc$ fees do not make them members

thereof%

B. RI#HT TO 'OLLE'TI9E BAR#AININ#.

1. 8$"y "o %r+%!& *oe*"!=ey. - 3he dut$ to bargain collectivel$ means the performance of a /$"$%

o!+%"!o& "o /ee" and convene promptl$ and eApeditiousl$ !& +oo f%!"( for the purpose of &e+o"!%"!&+

%& %+ree/e&" with respect to wages, hours of work and all other terms and conditions of emplo$ment

including proposals for ad@usting an$ +r!e=%&*es or 'uestions arising under such agreement and eAecuting

a contract incorporating such agreements if re'uested b$ either part$ $" s$*( $"y oes &o" *o/e

%&y %r"y "o %+ree "o % roos% or "o /%e %&y *o&*ess!o&.

)%4 W(e& "(ere !s %se&*e of 'BA. - 9n the absence of an agreement or other voluntar$ arrangement

providing for a more eApeditious manner of collective bargaining, it shall be the dut$ of emplo$er and the

representatives of the emplo$ees to %r+%!& *oe*"!=ey in accordance with the provisions of the 8abor

/ode%

)4 W(e& "(ere !s % 'BA. - hen there is a /G), the dut$ to bargain collectivel$ shall mean that neither

part$ shall terminate nor modif$ such agreement during its lifetime% owever, either part$ can serve a

written notice to terminate or modif$ the agreement %" e%s" s!"y )04 %ys r!or "o !"s e!r%"!o&%"e% 9t shall be the dut$ of both parties to keep the s"%"$s >$o and to continue in full force and e(ect

the terms and conditions of the eAisting agreement during the >+#da$ period andor until a new

agreement is reached b$ the parties% 3he said >+ da$s is called the Qfreeo/ er!o Kbecause it is the

onl$ time when the law allows the parties to freel$ serve a notice to terminate, alter or modif$ the

eAisting /G)% 9t is also the time when the ma@orit$ status of the bargaining agent ma$ be challenged b$

another union b$ ?ling the appropriate petition for certi?cation election%

2. 'oe*"!=e B%r+%!&!&+ A+ree/e&" )'BA4. G 9t refers to the negotiated contract between a

dul$ re*o+&!De or *er"!e eAclusive bargaining agent of workers and the emplo$er concerning wages,

hours of work and all other terms and conditions of emplo$ment in the appropriate bargaining unit, including

mandator$ provisions for grievances and arbitration machineries% 1uring its lifetime, the /G) is considered

the %< e"


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)14 #r!e=%&*e Pro*e$re. G 9t refers to the internal rules of procedure established b$ the parties in their

/G) with voluntar$ arbitration as the terminal step, which are intended to resolve all issues arising

from 67 the interpretation or implementation of their /G) or 627 the interpretation or enforcement of

compan$ personnel policies% 9t is that part of the /G) which provides for a peaceful wa$ of settling

di(erences and misunderstanding between the parties%

)24 9o$&"%ry Ar!"r%"!o&. G

238379367 pre week chan labor

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