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UP L AW BAR REVIEWER
LABOR
LAW
Dean Danilo L. Concepcion Dean, UP College of Law Prof. Concepcion L. Jardeleza Associate Dean, UP College of Law Prof. Ma. Gisella D. Reyes Secretary, UP College of Law Prof. Florin T. Hilbay Faculty Adviser, UP Law Bar Operations Commission 2012 Ramon Carlo F. Marcaida Commissioner Eleanor Balaquiao Mark Xavier Oyales Academics Committee Heads Remy Rose Alegre Sandra M.T. Magalang Labor Law Subject Heads Graciello Timothy Reyes Layout
2012
UP L AW BAR REVIEWER
BAR OPERATIONS COMMISSION 2012
LABOR
EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Maria Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages
LABOR LAW TEAM 2012 Faculty Editor | Prof. Evelyn (Leo) Battad) Subject Heads| Remy Rose Alegre Sandra M.T. Magalang Contributors| Dana Genevieve Dela Cruz Henry Flordeliza Ricardo Jesus Gutierrez Ann Margaret Lorenzo Ellery Magbato Hannah Camille Marquez PJ Navarro Jill Te Andrew Velasco LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes
LAW
LABOR
LAW
Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law and the Student Editorial Team. The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the University of the Philippines College of Law. All Rights reserved.
LABOR
Labor Law
I. Fundamental Principles and Policies ........ 6 A. Constitutional provisions ................. 6 B. Civil Code ................................... 7 C. Labor Code.................................. 8 II. Recruitment and Placement............... 9 A. Recruitment of Local and Migrant Workers ............................................ 9 TOPIC A-I. DEFINITION OF TERMS .......... 9 TOPIC A-II: ILLEGAL RECRUITMENT ...... 10 TOPIC A-III: PRE-TERMINATION OF ....... 15 CONTRACT OF MIGRANT WORKER ........ 15 TOPIC A-IV: DIRECT HIRING ............... 16 B. Regulation and Enforcement .......... 16 TOPIC B-I. DISQUALIFIED ENTITIES ....... 16 TOPIC B-II. CITIZENSHIP REQUIREMENT . 16 TOPIC B-III. CAPITALIZATION REQUIREMENT ............................... 16 TOPIC B-IV. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY ................... 16 TOPIC B-V. REGISTRATION FEES AND BONDS......................................... 17 TOPIC VI. WORKERS FEES ................. 17 TOPIC B-VII. REPORTS/SUBMISSION ...... 17 TOPIC B-VIII. SUSPENSION ................. 17 TOPIC B-IX. PROHIBITED ACTIVITIES ..... 18 TOPIC X. REMITTANCE OF FOREIGN EXCHANGE EARNING ........................ 18 TOPIC B-XI. REGULATORY AND VISITORIAL POWERS OF THE LABOR SECRETARY ..... 18
III. Labor Standards .............................. 19 TOPIC I. COVERAGE ......................... 19 A. Hours of Work ............................ 20 TOPIC A-I COVERAGE/EXCLUSIONS....... 20 TOPIC A-II NORMAL HOURS OF WORK.... 21 TOPIC A-III. COMPENSABLE HOURS OF WORK ......................................... 21 TOPIC A-IV. MEAL BREAK .................. 24 TOPIC A-V. OVERTIME PAY ................ 24 TOPIC A-VI. NIGHT WORK.................. 26 B. Wages...................................... 26 TOPIC B-I. GENERAL CONCEPT............ 26 TOPIC B-II. WAGE DISTORTION ........... 27 TOPIC B-III. NON-DIMINUTION OF BENEFITS ................................................. 27 TOPIC B-IV. WORKERS PREFERENCE IN CASE OF BANKRUPTCY ..................... 28 TOPIC B-V. LABOR CODE PROVISIONS FOR WAGE PROTECTION ......................... 28 TOPIC B-VI. CRITERIA/FACTORS FOR WAGE SETTING ...................................... 30 C. Rest Day ................................... 31 D. Holidays ................................... 32
TOPIC D-I. EXCLUSIONS FROM COVERAGE ................................................. 32 TOPIC D-II REGULAR HOLIDAYS ........... 33 TOPIC D-III HOLIDAY PAY COMPUTATION 33 TOPIC D-IV. RIGHT TO HOLIDAY PAY .... 34 E. Leaves ..................................... 35 TOPIC E-1. Service Incentive Leave Pay 35 TOPIC E-II. MATERNITY LEAVE ............ 36 TOPIC E-III. PATERNITY LEAVE ............ 37 TOPIC E-IV. PARENTAL LEAVE............. 37 TOPIC E-V. LEAVES FOR VICTIMS OF VIOLENCE AGAINST WOMEN ............... 37 F. Service Charges .......................... 39 TOPIC F-I. COVERAGE ...................... 39 TOPIC F-II. EXCLUSION ..................... 39 TOPIC F-III. DISTRIBUTION ................. 39 TOPIC F-IV. INTEGRATION ................. 39 G. Thirteenth (13th) Month Pay and other bonuses .......................................... 39 TOPIC G-I. COVERAGE ...................... 40 TOPIC G-II. EXCLUSION/EXEMPTIONS FROM COVERAGE.................................... 40 TOPIC G-III. NATURE OF 13TH MONTH PAY ................................................. 40 TOPIC G-IV. 13TH MONTH PAY IN SPECIAL CASES ......................................... 40 TOPIC G-V. COMMISSIONS VIS--VIS 13TH MONTH PAY .................................. 41 TOPIC G-VI. CBA VIS--VIS 13TH MONTH PAY ............................................ 41 H. Women Workers ......................... 41 TOPIC H-I. DISCRIMINATION (ART. 135, LC) ................................................. 41 TOPIC H-II. STIPULATION AGAINSTMARRIAGE (ART. 136, LC) ....... 41 TOPIC H-III. PROHIBITED ACTS (Art. 137, LC) ............................................. 42 TOPIC H-IV. Classification of certain women workers (Art. 138, LC) ........... 43 TOPIC H-V. Anti-Sexual Harassment Act (RA 7877) ..................................... 43 I. Minor Workers (RA 7610, RA 9231) ... 44 J. Employment of Househelpers ......... 45 TOPIC J-I. Definition ....................... 45 TOPIC J-II. BENEFITS ACCORDED HOUSEHELPERS .............................. 45 TOPIC J-III. TERMINATION ................. 45 TOPIC J-IV. RELIEFS FOR UNJUST TERMINATION ................................ 46 K. Employment of Homeworkers ......... 46 TOPIC K-I. Definition ....................... 46 TOPIC K-II. RIGHTS AND BENEFITS ACCORDED HOMEWORKERS ................ 46 TOPIC K-III. CONDITIONS FOR DEDUCTION FROM HOMEWORKERS EARNINGS ........ 46 L. Apprentices and Learners .............. 47
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LABOR
M. Handicapped Workers (RA 7277) Differently-abled Workers .................... 50 TOPIC M-I. DEFINITION OF HANDICAPPED WORKERS.................................... 50 TOPIC M-II. RIGHTS OF DISABLED WORKERS ................................................. 50 TOPIC M-III. PROHIBITIONS ON Discrimination Against Disabled Persons 50 TOPIC M-IV. INCENTIVES FOR EMPLOYERS ................................................. 51 IV. Termination of Employment ............... 51 A. Employer-employee relationship ..... 51 TOPIC A-I. TESTS FOR DETERMINING ER EE RELATIONSHIP ............................... 51 TOPIC A-II. PROBATIONARY EMPLOYMENT ................................................. 52 TOPIC A-III. KINDS OF EMPLOYMENT ..... 54 TOPIC A-IV. JOB CONTRACTING AND LABOR-ONLY CONTRACTING .............. 57 B. Termination of employment ........... 60 TOPIC B-I. SUBSTANTIVE DUE PROCESS . 61 TOPIC B-II. Procedural Due Process ..... 65 TOPIC B-III. RELIEFS FOR ILLEGAL DISMISSAL..................................... 67 C. Retirement Pay Law .................... 69 TOPIC C-I. Coverage ........................ 70 TOPIC C-II. Exclusions from coverage ... 70 TOPIC C-III. Components of retirement pay ............................................ 70 TOPIC C-IV. Retirement pay under RA 7641 vis--vis retirement benefits under SSS and GSIS laws ................................ 70 V. Management Prerogative .................... 70 VI. Social Legislation ............................. 72 A. SSS Law (RA 8282) ....................... 72 1. Coverage ............................... 72 B. GSIS (RA 8291) ........................... 73 1. Coverage ............................... 73 2. Exclusions from coverage ........... 73 3. Benefits ................................ 74 4. Beneficiaries .......................... 75 C. Limited Portability Law (RA 7699).... 75 D. Employees Compensation Coverage and when compensable ....................... 75 VII. Labor Relations Law ........................ 76 A. RIGHT TO SELF-ORGANIZATION ....... 76 a. Who may unionize for purposes of collective bargaining (covered employees/workers) ....................... 76 b. Right To Self-Organization: Basis ..... 78 c. Right to Self-Organization: Extent and Scope.......................................... 79
d. Worker Qualification .................... 79 d. Bargaining Unit .......................... 79 B. Right to Collective Bargaining......... 91 1. Duty to Bargain Collectively ....... 91 2. Mandatory provisions of CBA ....... 97 3. Unfair Labor Practice in Collective Bargaining ................................... 101 4. Unfair Labor Practice (ULP) ....... 102 C. Right to Peaceful Concerted Activities 105 1. Forms of Concerted Activities .... 106 2. Who may declare a strike or lockout 109 3. Requisites of a valid strike ........ 109 4. Requisites of a valid lockout ...... 111 5. Requisites for lawful picketing ... 112 6. Role of Peace Officers during Strike and Picket ........................................ 113
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VIII. Procedure and Jurisdction ..............113 A. Labor Arbiter ............................ 113 B. National Labor Relations Commission (NLRC) ........................................... 114 C. Bureau of Labor Relations (BLR) Med Arbiters ......................................... 115 D. National Conciliation and Mediation Board (NCMB) .................................. 115 E. DOLE regional directors ............... 115 F. DOLE secretary.......................... 116 G. Voluntary Arbitrators .................. 116 H. Court of Appeals ........................ 117 I. Supreme Court .......................... 117 J. Prescription of Actions ................ 117
Labor Law
LABOR LAW I. Fundamental Principles and Policies II. Recruitment and Placement III. Labor Standards IV. Termination of Employment V. Management Prerogative VI. Social Legislation VII. Labor Relations Law VIII. Procedure and Jurisdiction
Article II, Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Article II, Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. Limits of Social Justice Social justice should be used only to correct an injustice. It must be founded on the recognition of the necessity of interdependence among diverse units of a society, and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life. As partners in nation-building, labor and management need each other to foster productivity and economic growth; hence, the need to weigh and balance the rights and welfare of both the employee and employer. (Agabon vs. NLRC, 2004) Liberty of Contract/Laissez Faire The prohibition to impair the obligation of contracts is not absolute and unqualified. In spite of the constitutional prohibition and the fact that both parties are of full age and competent to contract, it does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. (Leyte Land Transportation Co. vs. Leyte Farmers & Workers Union, 1948) The Constitution is primarily a document of social justice, and although it has recognized the importance of the private sector, it has not embraced fully the concept of laissez-faire or relied on pure market forces to govern the economy. (Employees Confederation of the Philippines vs. NWPC, 1991) 2. Article III, Secs. 1, 4, 8.
Article III, Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Due Process Due process requirements are two-fold substantive (dismissal should be for a valid and authorized cause as provided by law) and procedural (due notice and hearing). (Salaw vs. NLRC, 1991) Labor as Property Right Ones employment is a property right, and the wrongful interference therewith is an actionable wrong. (Sibal vs. Notre Dame of Greater Manila, 1990) Article III, Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to
Article XIII, Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. Article XIII, Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Article XIII, Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to selforganization, 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. Participation In Decision-Making Process Verily, a line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of the employees. In treating the latter, management should see to it that its employees are at least properly informed of its decisions or modes action. Indeed, industrial peace cannot be achieved if the employees are denied their just participation in the discussion of matters affecting their rights. (Phil. Airlines Inc. vs. NLRC, 1993)
B. Civil Code
1.Article 1700, New Civil Code Art. 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects. Contracts Under the Civil Code, contracts of labor are explicitly subject to the police power of the state
C. Labor Code
1. 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 selforganization, collective bargaining, security of tenure, and just and humane conditions of work. 2. Article 211 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 7 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; and (g) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements 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) 3. Article 212 Art. 212. Definitions. (a) "Commission" means the National Labor Relations Commission or any of its divisions, as the case may be, as provided under this Code. (b) "Bureau" means the Bureau of Labor Relations and/or the Labor Relations Divisions in the regional offices established under Presidential Decree No. 1, in the Department of Labor. (c) "Board" means the National Conciliation and Mediation Board established under Executive Order No. 126. (d) "Council" means the Tripartite Voluntary Arbitration Advisory Council established under Executive Order No. 126, as amended.
(r)
(s)
4. Article 255 Art. 255. Exclusive bargaining representation and workers participation in policy and decisionmaking. The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decisionmaking processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labormanagement councils: Provided, That the representatives of the workers in such labormanagement councils shall be elected by at least the majority of all employees in said establishment. (As amended by Section 22, Republic Act No. 6715, March 21, 1989)
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B.
Illegal recruitment is considered economic sabotage when the commission thereof is attended by the ff. qualifying circumstances: (1) By a syndicate - if carried out by a group of 3 or more persons conspiring and confederating with one another; (2) In large scale - if committed against 3 or more persons individually or as a group. [Art. 38(b), LC] Illegal recruitment by a syndicate (1) The offender undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code; (2) He has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and (3) The illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating with one another. (People v. Gallo, 2010) Illegal recruitment in large scale The acts committed by the accused constituted illegal recruitment in large scale, whose essential elements are the following: (1) The accused engages in acts of recruitment and placement of workers defined under Article 13(b) of the Labor Code or in any prohibited activities under Article 43 of the Labor Code; (2) The accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of license or an authority to recruit and deploy workers, either locally or overseas; and (3) The accused commits the unlawful acts against three or more persons individually or as a group. Labor Code, Art. 39 (b): Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.
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more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court; (c) If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings; (d) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives. B. Illegal Recruitment Involving Migrant Workers
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Labor Code
Local Workers
Migrant Workers
B.
Liabilities and Penalties for Illegal Recruitment A. Illegal Recruitment Involving Workers Local
RA 8042, Sec. 6 (as amended by RA 10022) (a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00). (b) The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority. (c) Any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00). If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings. In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic.
Labor Code, Art. 39. Penalties. The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; (a) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court; (b) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor
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Enforceability of the license - Licensed agencies are prohibited from conducting any recruitment activities of any form outside of the address stated in the license, acknowledged branch or extension office, without securing prior authority from the POEA. (People vs. Buli-e, 2003) Duration of Validity 4 years (POEA Rules of 2002)
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the conditions set forth herein: b. Managerial employees are covered (by the exemption) if they have the following characteristics: (1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof. (2) They customarily and regularly direct the work of two or more employees therein. (3) They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight. c. Officers or members of a managerial staff if they perform the following duties and responsibilities: (1) The primary duty consists of the performance of work directly related to management policies of their employer; (2) Customarily and regularly exercise discretion and independent judgment; and (3) (a)Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (b) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (c) execute, under general supervision, special assignments and tasks; and (4) Who do not devote more than 20 percent of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above. The definition of managerial employees in Article 82 covers more people than that in Article 212 (m) as Article 82 also includes managerial staff. In effect, managerial employees in Article 82 includes supervisors, but Article 212(m) does not. It follows that under Book V, supervisors are allowed to form, join or assist a labor union. Supervisors are not, however, entitled to the benefits under Book III Articles 83 through 96, being part of the exemption of managerial employees as defined in Article 82. (Azucena) (c) Field personnel Art. 82: xxx "Field personnel" shall refer to nonagricultural 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 certainty. Field Personnel are those whose performance of their job/service is not supervised by the employer or his representative, the workplace being away from the principal office and whose hours and days
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A. Hours of Work
TOPIC A-I COVERAGE/EXCLUSIONS
NOTE: Please see previous section (Coverage) which deals with the general rules of coverage and exclusions for the applicability of the Conditions of Employment provisions in Book III of the Labor Code.
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(2) Travel that is all in the days work Time spent by an employee in travel from jobsite to jobsite during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, the travel from the designated place to the workplace is part of the days work. (3) Travel away from home - Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is worktime when it cuts across the employees workday. The time is hours worked not only on regular working hours but also during the corresponding hours on non-working days. (Department of Labor Manual). Semestral Break of Private School Teachers Regular full-time teachers are entitled to salary during semestral breaks. These semestral breaks are in the nature of work interruptions beyond the employees control. As such, these breaks cannot be considered as absences within the meaning of the law for which deductions may be made from monthly allowances. (University of the Pangasinan Faculty Union v. University of Pangasinan, No. L-63122, Feb. 20, 1984). Work Hours of Seamen Seamean are required to stay on board of their vessels by the very nature of their duties, and it is for this reason that, in addition to their regular compensation, they are given free living quarters to be on board. It could not have been the purpose of the law to require their employers to pay them overtime pay even when they are not actually working. The correct criterion in determining whether or not sailors are entitled to overtime pay is not, therefore, whether they are on board and cannot leave ship beyond the regular eight working number of hours, but whether they actually rendered service in excess of said number of hours. (Cagampan, et. al. v. NLRC, G.R. Nos. 85122-24, March 2, 1991). Hours worked: Proof of work Entitlement to overtime pay must first be established by proof that said overtime work was actually performed, before an employee may avail of said benefit. (Lagatic v. NLRC, 1998) Hours worked: Burden of Evidence When an employer alleges that his employee works less than the normal hours of employment as provided for in the law, he bears the burden of proving his allegation with clear and satisfactory evidence. (Prangan v. NLRC, et. al., G.R. No. 126529, April 15, 1998).
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(3) Not unless a day is a rest day, the given day is considered an ordinary day. (4) Undertime does NOT offset overtime Art. 88: Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter. Jurisprudence: (1) NO Waiver of overtime pay - The right to overtime pay cannot be waived. Labor Code (Art. 87) requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. Consequently, such an agreement or "waiver" will not prevent an employee from recovering the difference between the wages paid the employee and the overtime compensation he or she is entitled to receive. (Cruz v. Yee Sing, G.R. No. L-12046. Oct. 1959). Exception: When the waiver of overtime pay is in consideration of benefits and privileges which may be more than what will accrue to them in overtime pay, the waiver MAY be permitted. (Meralco Workers Union v. MERALCo, G.R. No. L11876, May 29, 1959) (2) Composite or Package Pay NOT per se illegal
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B. Wages
TOPIC B-I. GENERAL CONCEPT
Definition Art. 97(f) (1) It is the remuneration or earnings, however designated capable of being expressed in terms of money, (2) whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, (3) which is payable by an employer to an employee (4) under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and (5) includes the fair and reasonable value, as
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Not subject to execution, garnishment or attachment except for debts related to necessities (Art. 1708)
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Rationale: Prohibition seeks to protect the employee against unwarranted practices that would diminish his compensation without his knowledge and consent. (Radio Communication of the Phil., Inc. v. Sec. of Labor, 1989) (3) Prohibition against requirement to make deposits for loss or damage (Art 114-115) General Rule: No deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer Exception: (1) Recognized industry practice or (2) When such is necessary or desirable determined by the DOLE Secretary appropriate rules and regulations. (Art. 114)
as in
Conditions for the deductions (1) EE is clearly shown to be responsible for the loss or damage; (2) The EE is given ample opportunity to show cause why deduction should not be made; (3) The amount of the deduction is fair and reasonable and shall not exceed the actual loss or damage; and (4) The deduction from the employees wage does not exceed 20% of the employees wages in a week. (Art. 115) Daily Deposits to Cover Shortage in Boundary Illegal The article providing the rule on deposits for loss or damage to tools, materials or equipment supplied by the employer does not apply to or permit deposits to defray any deficiency which the taxi driver may incur in the remittance of his "boundary." When employee stops working for employer, the alleged purpose for the unauthorized deposits no longer exists. Any balance due must be returned to employee with legal interest. (Five J Taxi vs. NLRC (1994)) (4) Prohibition against withholding of wages (Art. 116) It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent.
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(7) Prohibition against False Reporting (Art. 119) It shall be unlawful for any person to make any statement, report, or record filed or kept pursuant to the provisions of this Code knowing such statement, report or record to be false in any material respect. (8) Prohibition against keeping of employees records in a place than the workplace All employment records of the employees of an employer shall be kept and maintained in or about the premises of the workplace main or branch office or establishment, if any, depending upon where the employees are regularly assigned. The keeping of the employee's records in another place is prohibited. (IRR Book II Rule X Sec. 11) (9) Prohibition against garnishment/execution (Art 1708 of the Civil Code) General Rule: The laborer's wages shall not be subject to execution or attachment Exception: for debts incurred for food, shelter, clothing and medical attendance Article 1708 of the New Civil Code to operate in favor of any but those who are laboring men or women in the sense that their work is manual. Persons belonging to this class usually look to the reward of a day's labor for immediate or present
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C. Rest Day
NOTE: See IRR of Labor Code Book III, Rule III Every employee regardless of the nature of his work is entitled to at least one whole day every week as his rest day. The rest day or day off shall be determined by the employer. However, in cases where the employee is required by his religious belief to rest on certain days, such belief shall be respected by the employer. 1. Right to weekly rest day Art. 91 (a): It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days. 2. Preference of the employee Art. 94 (b): The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees
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D. Holidays
NOTE: Art. 94 (c) was superseded by E.O. 203, which was subsequently amended by RA 9177, 9256, and 9492. Holiday pay is a one-day pay given by law to an employee even if he does not work on a regular holiday. This gift of a days pay is limited to each of the eleven regular holidays.
Art. 93(d): Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate. IRR Book III, Rule III, Sec. 8: Nothing in this Rule shall justify an employer in reducing the compensation of his employees for the unworked Sundays, holidays, or other rest days which are considered paid-off days or holidays by agreement or practice subsisting upon the effectivity of the Code. Sec. 9.: Nothing herein shall prevent the employer and his employees or their representatives in entering into any agreement with terms more
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P.D. 1083 (Code of Muslim Personal Laws) SEE: Arts. 169-173 Muslim Holidays Specifically for the Muslim Areas P.D. 1083, in its Book V, Title, recognizes five (5) Muslim Holidays, namely: 1) Amun Jadid (New Year) which falls on the first (1st) day of the lunar month of Muharram; 2) Mauli-un-Nabi (Birthday of the Prophet Muhammad) which falls on the twelfth (12th) day of the third (3rd) lunar month of Rabi-ul-Awwal; 3) Lailatul Isra Wal Mi Rai (Nocturnal Journey and Ascencion of the Prophet Muhammand) which falls on the twenty-seventh (27th) day of the seventh (7th) lunar month of Rajab; 4. Id-ul-Fitr (Hari Raja Pausa) which falls on the first (1st) day of the tenth (10th) lunar month of Shawwal commemorating the end of the fasting season; and 5. Id-ul-Adha (Hari Raha Haji) which falls on the tenth (10th) of the twelfth (12th) lunar month of Dhul-Hijja. Note:
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Non-working/scheduled rest day IRR, Book III, Rule V, Sec 6 (c): Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working day or rest day. Example, If a holiday falls on Monday, and Sunday is a nonworking day in the establishment or is the scheduled rest day of the employee, the employee shall be entitled to holiday pay if he worked on Saturday (which is the day immediately preceding Sunday, the non-working day or rest day).
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E. Leaves
TOPIC E-1. Service Incentive Leave Pay
Right to service incentive leave Art. 95. Right to service incentive leave. A. Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. SIL DOES NOT apply to the following employees: (1) Those of the government and any of its political subdivisions, including GOCCs; (2) Domestic helpers and persons in the personal service of another; (3) Managerial employees as defined in Book 3 of this Code; (4) Field personnel and other employees whose performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof; (5) Those who are already enjoying the benefit herein provided; (6) Those enjoying vacation leave with pay of at least 5 days; (7) Those employed in establishments regularly employing less than 10 employees. (Sec. 1, Rule V, Implementing Rules and Regulations). Jurisprudence: (1) Teachers of private school on contract basis are entitled to service incentive leave. (Cebu Institute of Technology v. Ople, 156 SCRA 531). (2) Piece Rate Workers In the case of Makati Haberdashery v. NLRC (G.R. No. 83380-81, Nov. 15, 1989) the Court ruled that piece-rate employees are not entitled to service incentive leave. However, in the case of Labor Congress of
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b)
c)
b)
c) d)
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F. Service Charges
TOPIC F-I. COVERAGE
Sec 1, Rule VI, Book 3. This rule shall apply only to establishments which collect service charges such as: (1) Hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses and similar enterprises (2) Including those entities operating primarily as private subsidiaries of the Government Sec 2, Rule VI, Book 3. Shall apply to ALL employees of covered employers (1) Regardless of their positions, designations, or employment status, (2) Irrespective of the method by which their wages are paid
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H. Women Workers
TOPIC H-I. DISCRIMINATION (ART. 135, LC)
Art. 135. Discrimination prohibited. It shall 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 following are acts of discrimination: (1) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and (2) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. Criminal liability for the willful commission of any unlawful act as provided in this article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other.
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a.
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EMPLOYMENT OF THE CHILD IN PUBLIC ENTERTAINMENT NOTE: Please refer to the second exception in the preceding subsection. PROHIBITION OF EMPLOYING MINORS IN CERTAIN UNDERTAKINGS AND IN CERTAIN ADVERTISEMENTS NOTE: Please refer to the second exception.
J. Employment of Househelpers
TOPIC J-I. Definition
Art. 141: This Chapter shall apply to all persons rendering services in households for compensation. "Domestic or household services" shall mean service in the ER's home, which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the ER's household, including services of family drivers. IRR Rule XII Sec1b (b) The term househelper as used herein is synonymous to the term domestic servant and shall refer to any person, whether male or female, who renders services in and about the employers home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the persona comfort and enjoyment of the employers family. The term `househelper' is synonymous to the term `domestic servant' and shall refer to any person, whether male or female, who renders services in and about the ER's home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the ER's family. A househelper or a laundry woman, as well as a gardener, driver, or a houseboy who work in the staff house of a company are NOT househelpers. The criterion is not the nature of the work but the personal comfort and enjoyment of the family of the employer in the home of said employer. (Apex Mining Co. v. NLRC, 1991)
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K. Employment of Homeworkers
TOPIC K-I. Definition
Note: DO 5, DOLE (February 4, 1992), is now Rule XIV, Book III of the IRRI. Sec. 1, Rule XIV, Book III: [Homeworker] applies to any person who performs industrial homework for an employer, contractor, or sub-contractor. Sec. 2(a), Rule XIV, Book III: Industrial homework (1) Is a system of production under which work for an ER or contractor is carried out by a homeworker at his/her home. (2) Materials may or may not be furnished by the ER or contractor. (3) Decentralized form of production, where there is ordinarily very little supervision or regulation of methods of work. Definition of employer Art. 155: The employer means any person who (1) Acts as a contractor delivers 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 distributed in accordance with ERs direction; or (2) Sells any goods, articles, or materials to be processed or fabricated in or about a home and then rebuys them after. Note: Sec 2(d), Rule XIV, Book III is substantially similar to the above.
the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; o (2) Where a child's employment or participation in public entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and approval of the Department of Labor and Employment: and Provided, That the following requirements in all instances are strictly complied with: a. The employer shall ensure the protection, health, safety, morals and normal development of the child; b. The employer institute measures to prevent the child'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 supervision of competent authorities, a continuing program for training and skills acquisition of the child. In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this Section. Art. 59: Qualifications of Apprentice: (b) Possess vocational aptitude and capacity for appropriate tests; and (c) Possess the ability to comprehend and follow oral and written instructions. Integrating both the abovementioned provisions then the qualifications of an apprentice are as follows: (1) At least 15 years of age (as amended by R.A. 7610), provided that if he is below 18 years, he shall not be eligible for hazardous occupation; (2) Possess vocational aptitude and capacity for appropriate tests; (3) Possess the ability to comprehend and follow oral and written instructions. (Art. 59 of the LC, as amended by R.A. 7610). Allowed employment SEE: RA 7769, Sec. 4 (m) above LC Art. 60: Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Secretary of Labor and Employment. Employment of Apprentices: When applicable: (1) Only employers in highly technical industries may employ apprentices; and
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iii. Sheltered employment RA 7277, Sec. 6: If suitable employment for disabled persons cannot be found through open employment as provided in the immediately preceding Section, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production. iv. Apprenticeship opportunity RA 7277, Sec. 7: Disabled persons shall be eligible as apprentices or learners: Provided, that their handicap is NOT as much as to effectively impede the performance of job operations in the particular occupation for which they are hired; provided, further, That after the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment. v. Wages Sec 7 of Wage Order No. NCR-14, May 16, 2008: All qualified handicapped workers shall receive the full amount of the minimum wage rate prescribed herein. In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled EE should be given the same terms and conditions of employment as a qualified able-bodied person. Since the Magna Carta accords them the rights of qualified ablebodied persons, they are thus covered by Article 280 of the Labor Code. In the present case, the handicap of petitioners (deaf-mutes) is NOT a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. (Bernardo v. NLRC, 1999)
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General Rule: Probationary employment shall not exceed six (6) months from the date the employee started working. Exceptions: (1) When the parties to an agreement contract otherwise: (2) When the same is established by company policy; (3) When the same is required by the nature of the work performed by the employee; and (4) When it is covered by an apprenticeship agreement stipulating a longer period Question: May the employer and the employee validly agree to extend the probationary period beyond 6 months? If the extension was ex gratia, an act of liberality on the part of his employer affording him a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot now unjustly be turned against said employers account to compel it to keep on its payroll one who could not perform according to its work standards. (Mariwasa Manufacturing v. Leogardo, G.R. No. 74246, Jan. 26, 1989). Criteria for regularization must be disclosed In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. Conversely, an employer is deemed to substantially comply with the rule on notification of standards if he apprises the employee that he will be subjected to a performance evaluation on a particular date after his hiring. (Alcira vs. NLRC, 2004) Regular Status After Probation When the bank renewed the contract after the lapse of the six-month probationary period, the employees thereby became regular employees. No employer is allowed to determine indefinitely the fitness of its employees. (Bernardo vs. NLRC, 1999)
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b) Project employment
Employment fixed on a specific project or undertaking, completion or termination of which is determined at the time of engagement of the employee. Must have been forewarned of the nature/scope and duration of the project. Whether or not the project has a direct relation to the business of the ER is not important, BUT: EE must be informed of the nature and duration of project project and principal business of ER are two separate things no attempt to deny security of tenure to the worker Test of project employment The principal test for determining whether employees are properly characterized as "project employees," as distinguished from "regular employees," is whether or not the project employees were assigned to carry out a "specific project or undertaking," the duration and scope of which were specified at the time the employees were engaged for that project. As defined, project employees are those workers hired: (1) for a specific project or undertaking, and (2) the completion or termination of such project or undertaking has been determined at the time of the engagement of the employee. (PNOC Energy Devt Corp vs. NLRC, 2007) (i) Indicators of project employment (1) The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable; (2) Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of the hiring; (3) The work/service to be performed by the employee is in connection with the particular project/undertaking for which he is engaged; (4) The employee, while not employed and awaiting engagement, is free to offer his services to any other employer; (5) The termination of his employment in the particular project/undertaking is reported to the DOLE Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees terminations /dismissals /suspensions; (6) An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most
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Work pool employee A project EE or a member of a work pool may acquire the status of a regular employee when the following concur: (1) There is a continuous rehiring of project employees even after cessation of a project; and (2) The tasks performed by the alleged project employee are vital, necessary, and indispensable to the usual business or trade of the employer. However, the length of time during which the EE was continuously rehired is not controlling, but merely serves as a badge of regular employment. A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the business, provided, that the worker shall be available when called to report for a project. Although primarily applicable to regular seasonal workers, this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. (Maraguinot vs. NLRC, 1998) Members of a work pool from which a construction company draws its project employees, if considered employees of the construction company while in the work pool, are non-project employees, or employees for an indefinite period. If they are employed in a particular project, the completion of the project or any phase thereof will not mean severance of the employer-employee relationship. (Aguilar Corp. vs. NLRC, 1997) Rationale for project employment If a project has already been completed, it would be unjust to require the employer to maintain them in the payroll while they are doing absolutely nothing except waiting until another project is begun, if at all. In effect, these stand-by workers would be enjoying the status of privileged retainers, collecting payment for work not done, to be
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c) Seasonal employment
Work or services to be performed are seasonal in nature, employment is for the duration of the season. No continuing need for the worker. Regular Seasonal Employees After One Season Regular seasonal employees are those called to work from time to time. The nature of their relationship with the employer is such that during off season they are temporarily laid off but during summer season they are reemployed, or when their services may be needed. They are not, strictly speaking, separated from the service but are merely considered as on leave of absence without pay until they are reemployed. Their employment relationship is never severed but only suspended. As such those employees can be considered as in the regular employment of the employer. (Manila Hotel Co. v. CIR, G.R. No. L-18875, Sept. 30, 1963). Hacienda Bino vs. Cuenca (2005): For respondents to be excluded from those classified as regular employees, it is not enough that they
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d) Casual employment
When not regular, project or seasonal employee. Requirements to become Regular employees: (1) one (1) year service, continuous or broken (2) with respect to activity employed (3) employment shall continue while such activity exists Nature of work What determines regularity or casualness is not the employment contract, written or otherwise, but the nature of the job. If the job is usually necessary or desirable to the main business of the employer, then employment is regular. (A. M. Oreta and Co., Inc. vs. NLRC, 1989) One-year service Tabas vs. California Marketing Co., Inc. (1989): The fact that the petitioners have been hired on a "temporary or seasonal" basis merely is no argument either. As held in Philippine Bank of Communications v. NLRC, a temporary or casual employee, under Article 281 of the Labor Code, becomes regular after service of one year, unless he has been contracted for a specific project. And we cannot say that merchandising is a specific project for the obvious reason that it is an activity related to the day-to-day operations of California. The records show that the petitioners had been given an initial six month contract, renewed for another six months. Accordingly, under Article 281 of the Code, they had become regular employees of California and had acquired a secure tenure. Hence, they cannot be separated without due process of law.
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Art. 106 (par. 1 and 2): Whenever an employer enters into a contract with another person for the performance of the formers work, the employees of the contractor and of the latters subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. Art 107: The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. Art. 109: The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers. 2. When is there labor-only contracting?
Art 106 (par. 4): There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. DO No. 18-02, Section 5: Labor-only contracting is hereby declared prohibited. For this purpose, laboronly contracting shall refer to an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal, and any of the following elements are present: (1) The contractor or subcontractor does not have substantial capital or investment which relates
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Job contracting is permissible only if the following conditions are met: (1) the contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and (2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of the business. (Lakas vs. Burlingame Corp., 2007) Factors to determine existence of independent contractor relationship Mafinco vs. Ople (1976): (1) Whether the contractor is carrying on an independent business
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Art. 107: The provisions of the immediately preceding article shall likewise apply to any person, partnership, association, or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. Art. 108: An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same. Art. 109: The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers. If found to be labor-only contractor, it is equivalent to finding that there exists an employer-employee relationship between the owner of the project and the employees of the labor-only contractor since that relationship is defined and prescribed by the law itself. (Industrial Timber Corporation vs. NLRC, 1997) In legitimate job contracting, no employer-employee relation exists between the principal and the job contractor's employees. The principal is responsible to the job contractor's employees only for the proper payment of wages. But in labor-only contracting, an employer-employee relation is created by law between the principal and the labor-only contractor's employees, such that the former is responsible to such employees, as if he or she had directly employed them. (PAL vs. NLRC, 1998) The only time the indirect employer may be made solidarily liable with the contractor is when the contractor fails to pay his employees their wages and other benefits claimed. (Landazares vs. Amethyst Security, 2003) Eparwa Security, University (2006): Inc. vs Liceo de Cagayan
B. Termination of employment
SECURITY OF TENURE
Definition Right not be removed from ones job without valid cause and valid procedure. (Kiamco v. NLRC, 1999) Art. 279: in case of regular employment, the employer shall not terminate the services of an employee except for a. just cause (Art. 282) b. authorized cause (Art. 283-284) Nature It is a constitutionally protected right (Art. XIII Sec. 3, 1987 Constitution); it cannot be blotted out by an employment contract. It does not give the Employee an absolute right to his position; when a transfer is not unreasonable, nor inconvenient, nor prejudicial to an employee; and it does not involve a demotion in rank or diminution of his pay, benefits, and other privileges, the employee may not complain that it amounts to constructive dismissal. (Lanzadares vs. Amethyst Security, 2003) A finding of illegal dismissal entitles the Employee to: (1) reinstatement without loss of seniority rights and privileges, and (2) full backwages inclusive of allowances and to benefits or their monetary equivalent from the time withheld up to actual reinstatement (Art. 279) Separation pay in lieu of reinstatement: Doctrine of Strained Relations: If reinstatement is not feasible, expedient or practical, as where there is strained relations between the parties, particularly where the; illegally dismissed employee held a managerial or key position. (Quijano vs. Mercury Drug Corp., 1998) Coverage 1987 Constitution: all workers (Art. XIII Sec. 3)
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a) JUST CAUSES
No written notice to employer required (i) Serious misconduct or willful disobedience Misconduct improper or wrongful conduct transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. (Dept of Labor Manual, Sec. 4343.01; Hayuan Restaurant vs. NLRC, 2006) Requisites (1) Serious to be serious, misconduct must be: a. of such grave and aggravated character b. in connection with the employee's work. (Lakpue Drug, Inc. vs. Belga, 2005) (2) Shows that the Employee has become unfit to continue working for the Employer. (Philippine Aeolus Automotive United Corp. vs. NLRC) Willful disobedience: Requisites: (1) The employees assailed conduct has been willful or intentional, the willfulness being characterized by a wrongful and perverse attitude; and (2) The order violated must have been: a. Reasonable and lawful; b. Made known to the employee; and c. In connection to the duties which he has been engaged to discharge. (Acesite Corp. v. NLRC, G.R. No. 152308, January 26, 2005). (ii) Gross and habitual neglect of duties Gross negligence is want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
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Art. 283 and 284 are not exhaustive; other authorized causes are: total and permanent disability, disease incurable in 6 mos, valid application of union security clause, expiry of term employment period, completion of project, failure in probation, etc (vi) Totality of infractions doctrine The totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee. The offenses committed by petitioner should not be taken singly and separately. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct and ability separate and independent of each other. While it may be true that petitioner was penalized for his previous infractions, this does not and should not mean that his employment record would be wiped clean of his infractions. After all, the record of an employee is a relevant consideration in determining the penalty that should be meted out since an employee's past misconduct and present behavior must be taken together in determining the proper imposable penalty. (Merin v. NLRC, 2008)
b) Authorized causes
(1) Recognized right Uichico v. NLRC (1997): The law recognizes the right of every business entity to reduce its workforce if the same is made necessary by compelling economic factors which would endanger its existence or stability. The fundamental law itself guarantees, even during the process of tilting the scales of social justice towards workers and employees, the right of enterprises to reasonable returns of investment and to expansion and growth. Art. 283 and 284 are not exhaustive; other authorized causes are: total and permanent disability, disease incurable in 6 mos, valid application of union security clause, expiry of term employment period, completion of project,
In computing separation pay, a fraction of at least six (6) months shall be considered as one (1) year. (Art. 283)
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Reduction of work days may be considered constructive retrenchment (International Hardware v. NLRC, 1989) Temporary retrenchment or temporary cessation or suspension of operations (Art. 286) A specific period that employees may remain temporarily laid-off or in floating status. The temporary lay-off or bona fide suspension of operations of a business or undertaking wherein the employees likewise cease to work should not last longer than 6 months. After 6 months, the employees should either be recalled to work or permanently entrenched following the requirements of the law, and that failing to comply with this would be tantamount to dismissing the employees and the employer would thus be liable for such dismissal. (International Hardware v. NLRC, 1989) Closure Employer may close or cease his business operations or undertaking even if he is not suffering from serious business losses or financial reverses, as long as he pays his employees their termination pay in the amount corresponding to their length of service. (Catatista v. NLRC, 1995) It includes both the complete cessation of all business operations and the cessation of only part of a companys business (Coca-Cola Bottlers, Inc. v. NLRC, 1991) (b) Requirements Must de bona fide or in good faith (a) Procedural steps required At least 1 month before the intended date of termination, Employer is to serve written notice to: (1) Affected employees; and (2) DOLE (Art. 283) (b) Requirements for valid Retrenchment/redundancy Requisites: Redundancy (1) Written notice served on both the Employees and the DOLE at least 1 month prior to the intended date; (2) Payment of separation pay equivalent to one month pay or one month pay for every year of service, whichever is higher; (3) Good faith in abolishing the redundant positions; and
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Willful Disobedience
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Analogous auses
Redundancy
Disease
Retrenchment
General Standards: S I N S for when retrenchment is preventive rather than curative Losses expected are substantial and not merely de minimis in extent; Apprehended losses are reasonably imminent; Retrenchment must be reasonably necessary to prevent the expected losses; and Expected or actual losses must be proved by sufficient and convincing evidence. (Lopez Sugar Corp. vs. Federation of Free Workers, 1990) Must be done in good faith (bona fide) 1 month written notice to DOLE and Employee Separation pay equivalent to one month pay or 1/2 month pay for every year of service, whichever is higher. Employee is suffering from any disease; His continued employment is prohibited by law or is prejudicial to his health as well as as to the health of his co-employees. (Art. 284) Separation pay equivalent to at least one month pay or at least 1/2 month pay for every year of service, whichever is higher; and Medical certification by a competent public health authority that the disease cannot be cured within 6 mos even with proper medical treatment. (IRR Book VI Rule I Sec. 8)
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Hearing A formal or trial type hearing is not at all times and in all instances essential to due process; it is enough to that the parties are afforded fair and reasonable opportunity to explain their side of the controversy. (Mendoza vs. NLRC, 1991) Summary proceeding may be conducted; written explanations, affidavits, position papers or other pleadings may be used as well; what is essential is the ample opportunity to be heard. (Homeowners Savings and Loan Assoc. Inc. vs. NLRC, 1996) No formal hearing necessary when the Employee already admitted his responsibility for the act he was accused of. (Magos v. NLRC, 1998) Burden of Proof Upon the employer. Employer must comply with due process requirements before any termination is done. (Gothong Lines, Inc. v. NLRC, 1999) Unsubstantiated suspicions and baseless conclusions by employers are not legal justification for dismissing employees. (Maranaw Hotel and Resort Corp. v. NLRC, 1999) Degree of Proof Substantial evidence; proof beyond reasonable doubt not required. (Manila Electric Co., Inc. v. NLRC, 1991) Prescription Period An action for reinstatement by reason of illegal dismissal is one based on an injury which may be brought within 4 years from the time of dismissal. (Art. 1146 of the Civil Code) (c) Agabon doctrine Prior to 1989 Wenphil Corp. v. NLRC, 1989 - Belated Due Process Rule Serrano v. NLRC, 2000 Illegal dismissal Dismissal is valid (NO reinstatement and backwages) BUT Employer to indemnify Employee for damages Dismissal is valid. EE is entitled to the payment of full backwages - Computed from the time of dismissal until the Court finds the dismissal to be for just cause. Dismissal is valid (NO reinstatement and backwages) BUT Employer to indemnify Employee in the form of nominal damages indemnity stiffer than Wenphil Corp. vs.
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Dismissal invalid
Dismissal valid
(b) Guiding Principles in connection with the hearing requirements in dismissal cases Right to counsel A very basic requirement of substantive due process; it has to be observed. Indeed, the rights to counsel and to due process of law are two of the fundamental rights guaranteed by the 1987 Constitution to any person under investigation, be the proceeding administrative, civil, or criminal. (Salaw v. NLRC, 1991) Notice Notice not needed when Employee consented to the retrenchment or voluntarily applied for one. (International Hardware Inc. vs. NLRC, 1989)
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V. Management Prerogative
This Court held that the employers right to conduct the affairs of his business, According to its own discretion and judgment, is well-recognized. An employer has a free reign and enjoys wide latitude of discretion to regulate all aspects of employment. This is a management prerogative, where the free will of management to conduct its own affairs to achieve its purpose takes form. (Torreda vs. Toshiba, 2007)
A. Discipline
The employers right to conduct the affairs of his business, according to its own discretion and judgment, includes the prerogative to instill discipline in its employees and to impose penalties, including dismissal, upon erring employees. This is a management prerogative where the free will of management to conduct its own affairs to achieve its purpose takes form. The only criterion to guide the exercise of its management prerogative is that the policies, rules and regulations on work-related activities of the employees must always be fair and reasonable and the corresponding penalties, when prescribed, commensurate to the offense involved and to the degree of the infraction. (Consolidated Food Corporation vs. NRLC, 1999) (St. Michaels Institute vs. Santos, 2001) Right to dismiss or otherwise impose disciplinary sanctions upon an employee for just and valid cause, pertains in the first place to the employer, as well as the authority to determine the existence of said cause in accordance with the norms of due process. (Makati Haberdashery, Inc. v. NLRC, 1989)
B. Transfer of employees
Westin Phil. Plaza Hotel v. NLRC (1999): (1) An Employees right to security of tenure does not give him such a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where he will be most useful. (2) The Employer has the right to transfer or assign Employees from one area of operation to another, or one office to another or in pursuit of its legitimate business interest, (3) provided there is no demotion in rank or diminution of salary, benefits and other privileges and not motivated by discrimination or made in bad faith, or effected as a form of punishment or demotion without sufficient cause.
TOPIC C-IV. Retirement pay under RA 7641 vis--vis retirement benefits under SSS and GSIS laws
RA 7641 mandates payment of retirement benefits. All private sector employees regardless of their position, designation or status and irrespective of the method by which their wages are paid are entitled to retirement benefits upon compulsory retirement at the age of sixty-five (65) or upon optional retirement at sixty (60) or more but not 65.
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C. Productivity standard
The employer has the right to demote and transfer an employee who has failed to observe proper diligence in his work and incurred habitual tardiness and absences and indolence in his assigned work. (Petrophil Corporation vs. NLRC, 1986) In the consolidated cases of Leonardo vs. NLRC [G. R. No. 125303, June 16, 2000] and Fuerte vs. Aquino [G. R. No. 126937, June 16, 2000], the employer claimed that the employee was demoted pursuant to a company policy intended to foster competition among its employees. Under this scheme, its employees are required to comply with a monthly sales quota. Should a supervisor such as the employee fail to meet his quota for several consecutive months, he will be demoted, whereupon his supervisors allowance will be withdrawn and be given to the individual who takes his place. When the employee concerned succeeds in meeting the quota again, he is re-appointed supervisor and his allowance is restored. The Supreme Court held that this arrangement is an allowable exercise of company rights since an employer is entitled to impose productivity standards for its workers. In fact, non-compliance may be visited with a penalty even more severe than demotion.
F. Marital discrimination
In the recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome Philippines, Inc., we passed on the validity of the policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company. We held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors. We considered the prohibition against personal or marital relationships with employees of competitor companies upon Glaxos employees reasonable under the circumstances because relationships of that nature might compromise the interests of Glaxo. In laying down the assailed company policy, we recognized that Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures. (Star Paper Corp. vs. Simbol, 2006)
G. Post-employment ban
In cases where an employee assails a contract containing a provision prohibiting him or her from accepting competitive employment as against public policy, the employer has to adduce evidence to prove that the restriction is reasonable and not greater than necessary to protect the employers legitimate business interests. The restraint may not be unduly harsh or oppressive in curtailing the employees legitimate efforts to earn a livelihood and must be reasonable in light of sound public policy. (Rivera v Solidbank, 2006)
D. Grant of Bonus
A bonus is "a gratuity or act of liberality of the giver which the recipient has no right to demand as a matter of right" (Aragon vs. Cebu Portland Cement Co., 61 O.G. 4597). "It is something given in addition to what is ordinarily received by or strictly due the recipient." The granting of a bonus is basically a management prerogative which cannot be forced upon the employer "who may not be obliged to assume the onerous burden of granting bonuses or other benefits aside from the employee's basic salaries or wages" (Kamaya Point Hotel vs. National Labor Relations Commission, Federation of Free Workers and Nemia Quiambao, G.R. No. 75289, August 31, 1989). (Traders Royal Bank vs. NLRC, 1990)
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b. Benefits
Monthly pension Computation of monthly pension: the monthly pension shall be the highest of the following amounts: (1) P300 + [20% x (ave. monthly credit)] + [2% x (ave. monthy credit) x (# of cash credited years of service in excess of 10 years)]; or (2) 40% x (ave. monthly credit); or (3) P1,000; provided, that the monthly pension shall in no case be paid for an aggregate amount of less than 60 months. (4) Notwithstanding the abovementioned, minimum pension is P1,200 for members with at least 10 years credit service, P2,400 for those with 20 years. Dependents pension a. b. c. Paid when member dies, retires or with permanent total disability; Paid to each child conceived on or prior to contingency, but not exceeding 5, beginning with the youngest and preferring the legitimate; Amount is either P250 or 10% of the monthly pension as computed above, whichever is higher.
2)
Retirement benefits Eligibility requirements 1) 120 monthly contributions; 2) Age a. 65 years old; or b. a member who has reached 60 years may also avail if he is already separated from employ-ment or has ceased to be selfemployed. Benefit entitlement to monthly pension from retirement until death. Lump Sum Alternative Member may opt to receive his first 18 monthly pensions in lump sum but such is discounted at a preferential rate of interest.
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b) c)
c. Beneficiaries
1) Primary Dependent spouse until remarriage (see above); Dependent children (legitimate, legitimated, legally adopted, and illegitimate) (see above); illegitimate children are entitled only to 50% of the share of legitimate children unless there are no legitimate children, in which case, they get 100%.
Death benefits Eligibility requirement: 36 monthly contributions prior to the semester of death. Benefit monthly pension to primary or secondary beneficiaries. To those ineligible lump sum benefit which shall be the higher between the two: (monthly pension) x 12; or (monthly pension) x (# of monthly contributions) Funeral benefits P12,000 in cash or in kind, upon death of member Loan Social Security Commission Resolution No. 669. Moreover, several SSS-issued circulars such as Circular No. 21-P and No. 52 pertain to the treatment of salary loans, sometimes providing for more flexible payment terms or condonation for delinquent payers; Santiago v. CA and SSS, GR # L-39949 (1984) resolved an issue involving the treatment of salary loan repayments; SSS website also shows loans
2) Secondary shall only receive when the primary beneficiaries are absent Dependent parents 3) Others shall only receive when the primary and secondary beneficiaries are absent Any other person designated by member as his/her secondary beneficiary.
1. Coverage
Sickness benefits Eligibility requirements and other conditions (1) Inability to work due to sickness or injury (2) Confined for at least 4 days either in a hospital or elsewhere with SSS approval;
3. Benefits
Monthly pension The amount shall be: a) 37.5% x (revalued ave. monthly compensation) b) Plus 2.5 x (revalued ave. monthly compensation) x (years in service in excess of 15 years). The monthly pension shall not exceed 90% of the average monthly compensation. It shall not be less than P2,400 for those with 20 years of service and not less than P1,300 for everyone else.
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Retirement benefits Eligibility requirements (1) 15 years service; (2) 60 years of age; and (3) Not receiving pension benefit from permanent total disability. Note: Retirement is compulsory for employees 65 years of age who have rendered at least 15 years of service; if employee has less than 15 years of service, he may be allowed to continue in accordance with civil service laws. Benefit: choice between 60 x (basic monthly pension) lump sum payment at the time of retirement plus basic monthly pension payable monthly for life after expiry of the 5-year guaranteed period which is already covered by the lump sum; or Cash payment equivalent to 18 x (basic monthly pension) plus monthly pension for life immediately but with no 5-year guarantee Permanent disability benefits Eligibility requirements for Permanent Total Disability (1) Disability not due to employees own grave misconduct, notorious negligence, habitual intoxication, or willful intention to kill himself or another; (2) Employee is: in service at the time of disability; or b) even if separated, he has paid at least 36 monthly contributions within the 5-year period immediately prior to disability or has paid a total of at least 180 monthly contributions prior to disability; and (3) Member is not enjoying old-age retirement benefit. Benefit for Permanent Total Disability Monthly income benefit for life equal to basic monthly pension This is effective from date of disability; If member is in service at the time of disability and he has paid at least 180 monthly
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2) Secondary shall only receive when the primary beneficiaries are absent Dependent parents Legitimate descendants, subject to the restrictions on dependent children. (See Annex B for Comparison between the SSS law and the GSIS Law)
4. Beneficiaries
1) Primary Dependent spouse until remarriage;
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A. RIGHT TO SELF-ORGANIZATION
a. Who may unionize for purposes of collective bargaining (covered employees/workers)
(a) All Employees (General Rule) Right to Self-Organization: Coverage General Rule: ALL employees of all kind of employers public or private, profit or non-profit, commercial or religious. (Art. 243) Employee: Definition Who is an employee? Art. 212(f). Employee includes: (1) Any person in the employ of an employer.
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6.
The right to collective bargaining is not available to an employee of a cooperative who at the same time is a member and co-owner thereof. Exclusion: Fact of Ownership Controlling The fact of ownership of the cooperative and not the involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative. Exclusion: Rationale They cannot invoke the right to collective bargaining for "certainly an owner cannot bargain with himself or his co-owners." (Benguet Electric Cooperative v. Ferrer-Calleja) BUT Employees who withdrew their membership from the cooperative are entitled to form or join a labor union for the negotiations of a CBA. (CENECO v DOLE, 1991) 3. Employees of International Organizations
High-level Employee: Definition Is one whose functions are normally considered policy determining, managerial or one whose duties are highly confidential in nature. Managerial Functions (1) Effectively recommend managerial actions; (2) Formulate or execute management policies and decisions; or (3) Hire, transfer, suspend, lay-off, recall, dismiss, assign or discipline employees.
International organizations are endowed with some degree of international legal personality. They are granted jurisdictional immunity. A certification election cannot be conducted in an international organization which the Phil. Government has granted immunity from local jurisdiction. (International Catholic Migration Commission v. Calleja, 1990) 4. Non-Employees
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d. Worker Qualification
Art. 277. Miscellaneous Provisions c. Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union. Whether employed for a definite period or not, any employee shall be considered as such, beginning on his first day of service, for purposes of membership in a labor union. To become a union member, an employee must, as a rule, not only signify the intent to become one, but also take some positive steps to realize that intent. (UST Faculty Union v. Bitonio , 1999) (2) Executive Order No. 180 See previous page
d. Bargaining Unit (1) Test to determine the constituency of an appropriate bargaining unit
(W-A-P-E) (1) Will of the Employees (Globe Doctrine) (2) Affinity & unity of Employees interest, such as substantial similarity of works and duties or similarity of compensation & working conditions (3) Prior CB history (4) Employment status i.e. temporary, seasonal, & probationary. (UP v. Ferrer-Calleja, 1992 citing Democratic Labor Assoc v. Cebu Stevedoring Co.) Community or Mutuality of Interests FUNDAMENTAL TEST: [T]he basic test of an asserted bargaining units ACCEPTABILITY is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their CB rights. This is related to the policy of the law in ensuring the right to collective bargain. (UP v. Ferrer-Calleja, 1992) Mutuality of Interest: Rationale There are greater chances of success for the collective bargaining process. The bargaining unit is designed to maintain the mutuality of interest among the employees in such unit. Reason to dissolve, change or expand a certain bargaining unit: When THE INTEREST BETWEEN GROUPS HAS CHANGED OVER TIME
Collective Bargaining History The existence of a prior collective bargaining history is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. (San Miguel Corp. v. Laguesma, 1994) Geography Location Geography and location only play a significant role if: (1) The separation between the camps and the different kinds of work in each all militate in favor of the system of separate bargaining units; (2) When the problems and interests of the workers are peculiar in each camp or department; (3) The system of having one collective bargaining unit in each camp has operated satisfactorily in the past. (Benguet Consolidated Inc. and Balatok Mining Co. v. Bobok Lumberjack Assn.,1958) Size - Composition It bears noting that the goal of the DOLE is geared towards "a single employer wide unit which is more to the broader and greater benefit of the employees working force." The philosophy is to avoid fragmentation of the bargaining unit so as to strengthen the employees bargaining power with the management. To veer away from such goal would be contrary, inimical and repugnant to the objectives of a strong and dynamic unionism. (Phil. Diamond Hotel and Resort Inc v Manila Diamond Hotel and Employees Union, 2006) Since the confidential employees are very few in number and are by practice and tradition identified with the supervisors in their role as representatives of management vis--vis the rank and file employees, such identity of interest has allowed their inclusion in the bargaining of supervisors for purposes of collective bargaining in turn as employees in relation to the company as their employer. This identity of interest logically calls for their inclusion in the same bargaining unit and at the same time fulfills the laws objective of insuring to them the full benefit of their right to self organization and to collective bargaining, which could hardly be accomplished if the respondent associations membership were to be broken up into five separate ineffective tiny units. Creating fragmentary units would not serve the interest of industrial peace. The breaking up of bargaining units into tiny units will greatly impair their organizational value. (Filoil Refinery Corp. v Filoil Supervisory and Confidential Employees Union, 1972) Corporate Entities GENERAL RULE: Two companies having separate juridical personalities shall NOT be treated as a single bargaining unit. EXCEPTION: Pervasive Unitary Aspect of Management Doctrine. The cross-linking of the
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NO substantial support rule. WHY? Intention of law is to bring in the union, to implement policy behind Art. 211a.
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EMPLOYER as initiating party An employer may file a petition ONLY when it is requested to bargain collectively. Art. 258 Par. 1. When an employer may file petition. When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. Art 258-A Employer as by-stander. In all cases, whether the petition for certification election is filed by an employer or a legitimate labor
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Voting Turnout For the election to be valid, majority of all eligible voters must have cast their votes. (Art. 256)
7 2 Voter: Defined Eligible Book V, Rule 1, Sec 1(q). Eligible voter refers to a voter belonging to the appropriate bargaining unit that is the subject of a petition for certification election
Failure of Election Where the number of votes cast in a certification election is less than the majority of the number of eligible voters; AND there are NO material challenged votes. Book V, Rule IX sec 17 The election office shall declare a failure of election in the minutes of the election proceeding Failure of Election: Effect Book V, Rule IX sec 18 It shall NOT bar the filing of a motion for the immediate holding of another certification or consent election within six (6) months from the date of the declaration of failure of election. Valid Election: Certification of designated majority union Arts. 255, 256: The labor union designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. Book V Rule IX Sec 15 (as amended by D.O. 40-F03 Series of 2008, Nov. 8, 2008)The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five (5) days from the day of the election, provided no protest is recorded in the minutes of the election. Sec 19 (as amended by D.O. 40-F-03 Series of 2008, Nov. 8, 2008)(1) When: Within twenty-four (24) hours from final canvass of votes, there being a valid election (2) Who: the Election officer shall transmit (3) What: the records if the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and result of election, (i) issue an order proclaiming the results of the election and (ii) certifying the union which obtained a
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Run-Off Election: Illustration The CBU has 100 members and eighty of which voted. Union A= 30; Union B= 15; Union C=15 and No Union= 20. There were no invalid votes. Since none got the majority of the 80 valid votes and the contending unions obtained 60 votes, which even exceed one-half (), a run-off election is proper. The run-off will be between the labor unions receiving the two highest number of votes. The rematch is NOT between two unions but between two highest votes. Thus the run-off will be among Union A, B and C. (Azucena) At the expiration of the freedom period, the employer shall continue to recognize the majority status of incumbent bargaining agent where no petition for certification election is filed.
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Conduct
Voluntarily agreed upon by the parties, with or w/o intervention from DOLE
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Nature of Right of Disaffiliation A local union, being a separate and voluntary association, is free to serve the interests of all its members. It has the right to disaffiliate or declare its autonomy from the federation to which it belongs when circumstances warrant, in accordance with the constitutional guarantee of freedom of association, and such disaffiliation cannot be considered disloyalty. (Malayang Samahan ng mga Manggagawa vs. Ramos, 2000) The locals are separate and distinct units primarily designed to secure and maintain an equality of bargaining power between the employer and their employee-members; and the association of the locals into the national union was in furtherance of the same end. These associations are consensual entities capable of entering into such legal relations with their member. The essential purpose was the affiliation of the local unions into a common enterprise to increase by collective action the common bargaining power in respect of the terms and conditions of labor. (Tropical Hut Employees Union vs. Tropical Hut Food Market, Inc ,1990) Local unions remain the basic units of association , free to serve their own interests subject to the restraints imposed by the constitution and by-laws of the national federation, and free also to renounce the affiliation upon the terms laid down in the agreement which brought such affiliation into existence. (Phil. Skylanders Inc vs. NLRC, 2002) Disaffiliation: Must be by a Majority Decision Disaffiliation is a major policy question. Thus, it shall be made by a majority decision of the entire membership, after due deliberation, by secret ballot, unless, the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision. (Art. 241[d]) Disaffiliation: Effect on Legal Status If union is independently registered It retains its legal personality.
ART 241 (b) Members are entitled to full/detailed financial transaction reports (g) Collection of any fees, dues or other contributions in behalf of the labor org, or any disbursement of its money/funds allowed if duly authorized by CBL (h) Payment of fees, dues or other contributions by member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the org (i) Funds of the org shall not be applied for any purpose or object other than those expressly provided by the CBL or authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose (j) Every income or revenue of the org shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt (l) The treasurer shall render account (duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor)
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ART. 222 (b) Attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining negotiations or conclusion of the collective agreement shall NOT be imposed on individual member of contracting union, but 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 shall be null and void. (a) Requirements for validity (checkoff) (1) Authorization by written resolution of majority of ALL the members at the general membership meeting called for that purpose (2) Secretarys record of the minutes of the meetings attested to by the president. (3) Individual written authorization for checkoff duly signed by the employees concerned. A check-off is a process or device whereby the employer, on agreement with the Union, recognized as the proper bargaining representative, or on prior authorization from the employees, deducts union dues or agency fees from the latters wages and remits them directly to the Union. (Marino v Gamilla, 2009)
General Concepts Duty to Bargain: Constitutional Policies 1987 Constitution. Art. XIII, Sec. 3 The State shall guarantee the rights of workers to collective bargaining and negotiations. The State shall promote the principle of shared responsibilities 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. Duty to Bargain: Statutory Policy Labor Code, Art 211 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 setting labor or industrial disputes. Book V Rule XVI Sec. 1. Policy It is the policy of the State to promote and emphasize the primacy of free and responsible exercise of the right to self-organization and collective bargaining, either through single enterprise level negotiations or through the creation of a mechanism by which different employers and recognized certified labor unions in their establishments bargain collectively. Collective Bargaining: Definition Collective bargaining, which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation. So much so that Article 249, par. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment. (Kiok Loy v. NLRC, 1986) Collective Bargaining: Nature and Purpose The institution of collective bargaining is a prime manifestation of industrial democracy at work. The two parties to the relationship, labor and management, make their own rules by coming to terms to govern themselves in matters that really count. (United Employees Union of Gelmart Industries v. Noriel, 1975) Collective Bargaining: Waiver of Right The right to free collective bargaining includes the right to suspend it. (Rivera v. Espiritu ,2000) Duty to Bargain: Meaning Art. 252. Meaning of duty to bargain collectively.
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Private Procedure: Expediency as a Requirement The Labor Code authorizes parties to provide for their own procedures in Collective Bargaining but it must be more EXPEDITIOUS than that provided in Art. 250. If they are unable to agree they must follow procedure in the Labor Code (Art. 250). Private Procedure: Rationale It is the policy of the state to promote the primacy of FREE collective bargaining. (Art. 211a). B. Labor Code Procedure (Art. 250) Party desiring to bargain collectively shall serve written notice on other party with statement of proposals
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If dispute not settled, National Conciliation Mediation Board (NCMB) shall intervene on request or motu proprio & call parties to conciliation meetings
Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. Note: Whenever a party serves a written notice upon the employer making demands, the latter shall reply not later than 10 days. However, this condition is merely procedural, and non-compliance cannot be deemed to be an act of ULP. (National Union of Restaurant Workers vs. CIR, 1964) Compare with: More than a month after the proposals were submitted, the employer has not made any counter-proposals. The companys refusal to make a counter-proposal to the unions proposed CBA is an indication of its bad faith. Where the employer did not even bother to submit an answer to the bargaining proposals of the union, there is a clear evasion of the duty to bargain collectively. The employers actuations show a lack of sincere desire to negotiate, rendering it guilty of unfair labor practice. (Colegio de San Juan de Letran vs. Association, 2000)
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EO 251, Sec. 4. Section 22 of Executive Order No. 126 is hereby amended to read as follows: "Sec. 22. National Conciliation and Mediation Board. National Conciliation and Mediation Board Overview A National Conciliation and Mediation Board, herein referred to as the "Board", is hereby created and which shall absorb the conciliation mediation and voluntary arbitration functions of the Bureau of Labor of Relations. It shall be an attached agency under the administrative supervision of the Secretary of Labor and Employment. The Board shall have its main office in Metropolitan Manila and its Administrators shall exercise supervision over Conciliators-Mediators and all its personnel. Branches It shall establish as many branches as there are administrative regions in the country, with a many Conciliator-mediators as shall be necessary for its effective operation. Each branch of the Board shall be headed by an Executive Conciliator-Mediator.
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CBA Duration Political Aspect (representation): 5 years. This refers to the identity and majority status of the collective bargaining agent that negotiated the CBA. Non-political aspect: 3 years. This refers to other provisions in the CBA, economic or otherwise other than representational or political. Hold Over Principle Art. 253. In the absence of a new CBA, the parties must maintain the status quo and must continue in full force and effect the terms and conditions of the existing agreement during the sixty (60) day period and/or until a new agreement is reached. In this manner, the law prevents the existence of a gap in the relationship between the collective bargaining parties. The last sentence of Article 253, which provides for automatic renewal pertains only to the economic provisions of the CBA, and does not include representational aspect of the CBA. An existing existing CBA cannot constitute a bar to a filing of petition for certification election. When there is a representational issue, the status quo provision insofar as the need to await the creation of a new agreement will not apply. Otherwise, it will create an absurd situation where the union members will be forced to maintain membership by virtue of the union security clause existing under the CBA and, thereafter, support another union when filing a petition for certification election. If we apply it, there will always be an issue of disloyalty whenever the employees exercise their right to selforganization. The holding of a certification election is a statutory policy that should not be circumvented, or compromised. (PICOP Resources, Inc. v. Taneca et. al., 2010) Arbitrated CBA In the absence of an agreement between the parties, an arbitrated CBA takes on the nature of any judicial or quasi-judicial award. It operates and may be executed only prospectively unless there are legal
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Rights disputes: Claim for violation of a specific right (Arising from a contract, ex: CBA or company policies). Voluntary Arbitrator has original and exclusive jurisdiction over these matters. Interest Disputes: These ponder on the question what should be included in the CBA. Strictly speaking, the parties may choose a voluntary arbitrator to decide on terms and conditions of employment, but that is impracticable because it will be a value judgment of the arbitrator and not the parties. Voluntary Arbitrator Selection Art. 260. How Voluntary Arbitrator is selected 1) As stated in CBA (or selection procedure of a VA), preferably from a list of qualified VAs accredited by NCMB 2) If parties fail to select, the Board (NCMB) shall select VA pursuant to selection procedure as stated in CBA Art. 260 x x x. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement the procedure for the selection of such Voluntary Arbitrator or panel of voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed 82 upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as prescribed. Indeed, the Labor Code formerly provided that if the parties in collective bargaining fail to reach an agreement, the Bureau of Labor Relations should call them to conciliation meetings and, if its efforts were not successful, certify the dispute to a labor arbiter for compulsory arbitrarion. But this was changed by R.A.No. 6715 which took effect on March 21, 1989.
Art. 260. Grievance Machinery and Voluntary Arbitration. The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within 7 month calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. xxx Executive Order 251, Sec. 4: Sec. 4. Section 22 of Executive Order No. 126 is hereby amended to read as follows: "Sec. 22. National Conciliation and Mediation Board. A National Conciliation and Mediation Board, herein referred to as the "Board", is hereby created and which shall absorb the conciliation mediation and voluntary arbitration functions of the Bureau of Labor of Relations in accordance with Section 29 (c) hereof xxx A Tripartite Voluntary Arbitration Advisory Council is hereby created and attached to the National Conciliation and Mediation Board. The Tripartite Voluntary Arbitration Advisory Council shall advise the National Conciliation Board on matters pertaining to the promotion of voluntary arbitration as the preferred mode of dispute settlement. Voluntary Arbitration: Arbitrable Issues Disputes covered in Voluntary Arbitration: General Rule (Art. 261):
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We hold that regardless of any law anterior or posterior to the Arbitrator's award, the collective bargaining agreement in this case has been correspondingly amended in a manner that is unalterable, immovable and immutable like the rock of Gibraltar, during the lifetime of the said collective bargaining agreement. (Citibank Employees Union v. MOLE, 1980) Finality and Execution of Awards Art 262-A: Award or decision of the voluntary arbitrator shall be final and executory after 10 days from receipt of the copy of the award or decision by the parties. When the parties submitted their grievance to arbitration, they expressly agreed that the decision of the Voluntary Arbitrator would be final, executory and unappealable. In fact, even without this stipulation, the first decision had already become so by virtue of Article 263 of the Labor Code making voluntary arbitration awards or decisions final and executory. (Imperial Textile Miles, etc. Calica, 1992) In the case of The Consolidated Bank & Trust Corporation (SOLIDBANK) v. Bureau of Labor Relations, et al., the Court held that the Voluntary Arbitrator lost jurisdiction over the case submitted to him the moment he rendered his decision. Therefore, he could no longer entertain a motion for reconsideration of the decision for its reversal or modification. Thus by modifying the original award, respondent arbitrator exceeded his authority as such, a fact he was well aware of, as shown by his previous Resolution of Inhibition wherein he refused to act on the Union's motion for reconsideration of the award or decision. It is a hornbook rule that once a judgment has become final and executory, it may no longer be modified in any respect, even if the modification is meant to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land, as what remains to be done is the purely ministerial enforcement or execution of the judgment. The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice that at the risk of occasional errors, the judgment of adjudicating bodies must become final and executory on some definite date fixed by law. In the more recent case of DBP v. NLRC, the Supreme Court reiterated that the doctrine of immutability of final judgment is adhered to by necessity notwithstanding occasional errors that may result thereby, since litigations must somehow come to an end for otherwise, it would be even more intolerable than the wrong and injustice it is designed to correct. Rule VII, Section 1 of the Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings provides the key. Therein, what constitutes the
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3.
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GMCs failure to make a timely reply to the proposals presented by the union is indicative of its utter lack of interest in bargaining with the union. Its excuse that it felt the union no longer represented the workers, was mainly dilatory as it turned out to be utterly baseless. We hold that GMCs refusal to make a counter-proposal to the unions proposal for CBA negotiation is an indication of its bad faith. Where the employer did not even bother to submit an answer to the bargaining proposals of the union, there is a clear evasion of the duty to bargain collectively. Failing to comply with the mandatory obligation to submit a reply to the unions proposals, GMC violated its duty to bargain collectively, making it liable for unfair labor practice. Perforce, the Court of Appeals did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in finding that GMC is, under the circumstances, guilty of unfair labor practice. (General Milling Corp. v. Court of Appeals , 2004) The school is guilty of unfair labor practice when it failed to make a timely reply to the proposals of the union more than one month after the same were submitted by the union. In explaining its failure to reply, the school merely offered a feeble excuse that its Board of Trustees had not yet convened to discuss the matter. Clearly, its actuation showed a lack of sincere desire to negotiate. (Colegio de San Juan de Letran v. Association , 2000) (c) Individual bargaining It is an unfair labor practice for an employer operating under a CBA to negotiate with his employees individually. That constitutes interference because the company is still under obligation to bargain with the union as the bargaining representative. (The Insular Life Assurance Co. Ltd., Employees Assn. v. Insular Life Assurance Co. Ltd, 1971) (d) Blue sky bargaining Sky high economic demands or making exaggerated or unreasonable proposals are indicative of blue-sky bargaining. (Standard Chartered Bank Employees Union v. Confesor, 2004)
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d) Discrimination Unionism
Encourage/Discourage
Art. 248 (e) GENERAL RULE: It shall be unlawful 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. EXCEPTION: Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment EXCEPTION TO THE EXCEPTION: Those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such nonunion members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the nonmembers of the recognized collective bargaining agent; UNION SECURITY CLAUSE is a stipulation in the CBA whereby the management recognizes that the
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Arts. 248(a) and 249(a) are the general grant of protection. All other cases of ULP enumerated under the said provisions are derivatives of Arts. 248(a) and 249 (a).
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f) Exaction-Featherbedding (ULP of Labor Organizations. See next sub topic) g) Contracting out to discourage unionism
Art. 248 (c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization; The act of an employer in having certain services or functions being performed by union members contracted out is NOT per se an unfair labor practice act. It is only when the contracting out of the services or functions being performed by union members will interfere with, restrain or coerce employees in the exercise of their right to selforganization that it shall be unlawful and shall constitute ULP act. [Sec. 6 (f) DOLE Department Order No. 18-02, Series of 2002]
3) Exaction-Featherbedding
Art. 249 (d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations
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i. for the purpose of collective bargaining ii. through representatives of their own choosing, and (3) to engage in lawful concerted activities for the same purpose for their mutual aid and protection.
Right to Engage in Concerted Activities: Limitations The strike is a powerful weapon of the working class. Precisely because of this, it must be handled carefully, like a sensitive explosive, lest it blow up in the workers own hands. Thus, it must be declared only after the most thoughtful consultation among them, conducted in the only way allowed, that is, peacefully, and in every case conformably to reasonable regulation. Any violation of the legal requirements and strictures will render the strike illegal, to the detriment of the very workers it is supposed to protect. (Batangas Laguna Tayabas Bus Co. v NLRC, G.R. No. 101858, Aug. 21, 1992)
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b. Employer Lockout
Lockout: Definition Art. 212(p). Lockout: the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. Lockout: Grounds Art. 263 (c): Strikes, picketing and lockouts Bargaining Deadlocks: In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Department at least 30 days before the intended date thereof. ULP: a) In cases of unfair labor practice, the period of notice shall be 15 days. b) In the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. c) In case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. Lockout: Prohibitions Art. 263 (b), last sentence:
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c. Picketing
Picketing: Definition NCMB Manual of Procedures for Conciliation and Preventive Mediation Cases. Sec. 1: Definition of Terms Picketing the right of workers to peacefully march to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and display of signs, placards and banners intended to inform the public about the dispute. Picketing: Limitation Picketing, like other freedom of expression in general, has limits. To the extent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech. Equally so, there can be no indiscriminate ban on the freedom to disseminate the facts of a labor dispute and to appeal for public sympathy, which is the aim of peaceful picketing, without a transgression of the Constitution, sufficient to oust a court of jurisdiction, even on the assumption that it was originally possessed of such a competence. (Security Bank Employees Union v. Security Bank and Trust Co., 1968) Picketing and libel laws There is a unique aspect to this action for libel against the Philippine National Bank Employees' Association. It was filed by plaintiff PCIB as a result of placards and signboards along the PNB building in Escolta, Manila, containing the following: "PCIB BAD ACCOUNTS TRANSFERRED TO PNB-NIDC?"
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The result of the strike or lockout voting should be reported to the NCMB at least 7 days before the intended strike or lockout. The seven-day period is intended to give the DOLE an opportunity to verify whether the projected strike has the approval of the majority of the union members. Query: If the strike vote was reported within the cooling-off period, how should the 7-day period be computed? There are at least 2 interpretations: (1) The cooling off period and the 7-day period are mutually exclusive. Thus, in the case of Capitol Medical Center v. NLRC, the Court held that when the strike vote is conducted within the cooling-off period, the 7-day requirement shall be counted from the day following the expiration of the cooling off period. (2) The cooling-off period and the 7-day requirement may coexist. After all, the purpose of the 7-day requirement is to give time for the DOLE to verify if the projected strike is supported by the majority. There is no reason to add it to the cooling-off period. Strike: Test of Legality Legal strike Purpose and Means Test There must be concurrence between the validity of the purpose of the strike and the means of conducting it. A strike is a legitimate weapon in the universal struggle for existence. It is considered as the most effective weapon in protecting the rights of the employees to improve the terms and conditions of their employment. But to be valid, a strike must be pursued within legal bounds. The right to strike as a means for the attainment of social justice is never meant to oppress or destroy the employer. The law provides limits for its exercise. Among such limits are the prohibited activities under Art. 264, particularly paragraph (e), which states that no person engaged in picketing shall: - commit any act of violence, coercion, or intimidation or - obstruct the free ingress to or egress from the employer's premises for lawful purposes or
Art. 263 (f): A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds
Even if the strike is valid because its objective or purpose is lawful, the strike may still be declared invalid where the means employed are illegal. (Phil. Diamond Hotel and Resort, Inc. v. Manila Diamond Hotel Employees Union, 2006) Acts of violence in this jurisdiction, when committed in carrying on a strike are not to be overlooked in determining its legality or illegality. To overlook these acts of violence would encourage abuses and terrorism and subvert the purpose of the law which provides for arbitration and peaceful settlement of disputes. If a strike is unjustified as when it is declared for trivial, unjust or unreasonable purpose, the employer may not be compelled to reinstate the strikers to their employment. More so, when the strike is carried on illegally. (Philippine Marine Officers Guild v. Cia. Maritima, 1968) Guidelines and Balancing of Interest (1) A strike otherwise valid, if violent in character, may be placed beyond the pale. (2) Care is to be taken especially where an unfair labor practice is involved, to avoid stamping it with illegality just because it is tainted by such acts. To avoid rendering illusory the recognition of the right to strike, responsibility in such a case should be individual and not collective. (3) A different conclusion would be called for if the existence of force while the strike lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. It could be reasonably concluded then that even if justified as to ends, it becomes illegal because of the means employed'. (4) This is not by any means to condone the utilization of force by labor to attain its objectives. It is only to show awareness that in labor conflicts, the tension that fills the air as well as the feeling of frustration and bitterness could break out in sporadic acts of violence. (5) If there be in this case a weighing of interests in the balance, the ban the law imposes on unfair labor practices by management that could provoke a strike and its requirement that it be conducted peaceably, it would be, to repeat, unjustified, considering all the facts disclosed, to stamp the strike with illegality. It is enough that individual liability be incurred by those guilty of such acts of violence that call for loss of employee status. Such an approach is reflected in our recent decisions. (Shell Oil Workers Union v. Shell Co. of the Phils, 1971) Defense: Good faith-Strike GENERAL RULE: A strike based on non-strikeable grounds is illegal EXCEPTION: Where the employees believe in good faith that ULP acts exist so as to constitute a valid ground to strike.
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A. Labor Arbiter
a. Jurisdiction
Except as otherwise provided under the Code the Labor Arbiters shall original and exclusive jurisdiction to hear and decide: (1) Unfair labor practices cases; (2) Termination disputes;
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An order for reinstatement entitles an employee to receive his accrued backwages from the moment the reinstatement order was issued up to the date when the same was reversed by a higher court without fear of refunding what he had received. (Garcia v. Philippine Airlines, Inc., G.R. No.164856, January 20, 2009) c. Requirements to perfect appeal to NLRC
1 0 4if the order of reinstatement of the Labor Even Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court.
On the other hand, if the employee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. (Garcia v. Philippine Airlines, Inc., 2009) c. Requirements to perfect appeal to Court of Appeals
(1) The appeal should be filed within the reglementary period; (2) The Memorandum of Appeal should be under oath; (3) The appeal fee should be paid; (4) There should be posting of cash or surety bond, if judgment involves monetary award; and (5) There should be proof of service to the adverse party.
Requisites for Perfection of Appeal (1) The appeal shall be: Filed within the reglementary period; Verified by the appellant himself in accordance with Section 4, Rule 7 of the Rules of Court; In the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof,
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Conciliation An ADR mode of intervention by a neutral third party, the Conciliator-Mediator, wherein the CM takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties Mediation An ADR mode of intervention by a neutral third party, the Conciliator-Mediator, wherein the CM advises the parties or offers solutions or alternatives to the problems with the end in view of assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute. b. Preventive Mediation
Preventive mediation case refers to the potential or brewing labor dispute which is the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties in order to remedy, contain or prevent its degeneration into a full blown dispute through amicable settlement.
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xxx The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code.
F. DOLE secretary
1. Visitorial and enforcement powers Article 128. Visitorial and enforcement power. The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employers records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (As amended by Republic Act No. 7730, June 2, 1994). Article 37. Visitorial Power. The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title.
G. Voluntary Arbitrators
1. Submission Agreement Written agreement jointly submitted by parties to the voluntary arbitrator which contains: The parties statement/agreement to submit to arbitration, The issues to be resolved, The agreement to abide by the decision or award, the conduct of proceedings, payment of arbitrator's fees, etc. 2. Rule 43, Rules of Court The decision of a Voluntary Arbitrator or panel of Voluntary Arbitrators is appealable by ordinary appeal under Rule 43 of the Rules of Civil Procedure directly to the Court of Appeals. RULE 43, Appeals From the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals Section 1. Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration,
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H. Court of Appeals
1. Rule 65, Rules of Court
I. Supreme Court
Therefore, all references in the amended Section 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should hence forth be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. (St. Martin Funeral Home vs. NLRC, 1998) 1. Rule 45, Rules of Court
RULE 45, Appeal by Certiorari to the Supreme Court Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (1a, 2a) Appeal from CA to SC should be under Rule 45 (Petition for Review on Certiorari) and not Rule 65 (Special Civil Action for Certiorari). (Sea Power Shipping Enterprises, Inc. vs. CA, G. R. No. 138270, June 28, 2001) Since the Court of Appeals had jurisdiction over the petition under Rule 65, any alleged errors committed by it in the exercise of its jurisdiction would be errors of judgment which are reviewable by timely appeal and not by a special civil action of certiorari. If the aggrieved party fails to do so within the reglementary period, and the decision accordingly becomes final and executory, he cannot avail himself of the writ of certiorari, his predicament being the effect of his deliberate inaction. (Tirazona v Phil EDS Techno-Service Inc, 2009)
In illegal dismissal cases, the employee concerned is given a period of four years from the time of his dismissal within which to institute a complaint. This is based on Article 1146 of the New Civil Code which states that actions based upon an injury to the rights of the plaintiff must be brought within four years. (Victory Liner, Inc. v Race, 2007) Article 1146. The following actions must be instituted within four years: (1) Upon an injury to the rights of the plaintiff;
J. Prescription of Actions
Article 201. Prescriptive period. No claim for compensation shall be given due course unless
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Section 7. Prescription. Illegal recruitment cases under this Rule shall prescribe in five (5) years; Provided, however, that illegal recruitment cases involving economic sabotage shall prescribed in twenty (20) years. (RA 8042)
ANNEX A
CAUSE Serious Misconduct TERMINABLE EXAMPLES Teacher pressuring colleague to change a failing grade to a passing one plus misrepresentation. (Padilla vs. NLRC, 1997) Obscene, insulting or offensive words against superior. (Asian Design and Manufacturing vs. Hon. Deputy Minister of Labor, 1986) Sleeping in post, gross insubordination, dereliction of duty, challenging a superior to a fight. (Luzon Stevedoring vs. CIR, 1965) Immorality / Immoral Conduct: conduct which is so willful, flagrant or shameless as to show indifference to the opinion of good and respectable members of the community; such conduct must be grossly immoral so corrupt as to constitute a crime or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common decency. (Narag vs. Narag, 1998); to be a valid cause for dismissal, the immoral act must render incapable performance of duties/services or calculated at injuring employers business. When a teacher engages in extramarital relationship, especially when the parties are both married. (Santos v. NLRC, 1998) Willful Disobedience Violation of Company Rules: Company policies and regulations, unless shown to be grossly oppressive or contrary to law, are generally valid and binding on the parties and must be complied with until finally revised or amended, unilaterally or preferably through negotiation, by competent authority. (Aparente, Sr. v. NLRC, 2000) Disobeying a Valid Order to Transfer - test of validity: Not unreasonable Not inconvenient Not prejudicial No demotion in rank No diminution in salary, privileges or benefits (Blue Dairy vs. NLRC, 1999) - Mere inconvenience does not necessarily invalidate a transfer order; unreasonable inconvenience makes the order invalid. (Homeowners Savings and Loan Assoc. vs. NLRC, 1996) - Reasonableness pertains to the character of orders and to the manner NON-TERMINABLE EXAMPLES Borrowing Money: as a general rule, it is neither dishonest, nor immoral, nor illegal, much less criminal (Medical Doctors, Inc. [Makati Medical Center] v. NLRC) except it becomes a serious misconduct when reprehensible behavior such as the use of a trust relationship as a leverage for borrowing money is involved. (Pearl S. Buck Foundation, Inc. v. NLRC, 1990) Love: teacher falling in love with student without a showing that the former took advantage of her position to court her student. Yielding to this gentle and universal emotion is not to be so casually equated with immorality. The deviation of the circumstances of their marriage from the usual societal pattern cannot be considered as a defiance of contemporary social mores (Chua-Qua v. Clave, 1990)
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Assertion of employees right not to be made to work outside of what he had been hired to do. (Tierra International Production Corp. v. NLRC, 1996) Refusing a promotion, since promotion is in the nature of a gift or reward. (PT&TC vs. CA, 2003) Disobeying an Invalid Order to Transfer: an invalid transfer amounts to constructive dismissal; it is invalid when it fails test of validity. (refer to the adjacent column for the test)
Simple negligence (RDS Trucking v. NLRC, 1998) or unsatisfactory performance (Oreta vs. NLRC, 1989) Mere involvement in an accident, absent any showing of fault or recklessness on the part of the Employee, is NOT a valid ground for dismissal. (Paguio Transport Corp. v. NLRC, 1998) Filing a complaint of illegal dismissal is inconsistent with abandonment; Except when Employee prays for separation pay instead of reinstatement (Jo vs. NLRC, 2000) No Abandonment: - Mere absence from work (Mendoza v. NLRC, 1999) - Going home to have dinner; employees do not need to take their meals within the company premises. (PAL v. NLRC, 1999) - Leaving his workplace to relieve himself (Dimabayo v. NLRC, 1999) Employee is not in a position of trust and confidence.
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Analogous Causes
Dishonesty: Custodian of petty cash fund reimbursed another employee for services the latter did not render. (Naguit v. NLRC, 2003) Falsification of time cards. (San Miguel vs. NLRC, 1989) Theft of company property. (Firestone Tire and Rubber Co. vs. Lariosa, 1987) Theft; the employee here was convicted after she won her case for illegal dismissal. In view of the employees conviction, the decision of the NLRC which had already become final and executory calling for her reinstatement and the payment of back wages should not now be enforced. Otherwise, she would in effect be undeservedly rewarded when she should instead be punished for her offense. (Sampaguita Garments Corp. v. NLRC, 1994) Quarrelsome Bossy: an Employee's attitude problem is a valid ground for dismissal, equivalent to loss of trust and confidence; an Employee who cannot get along with his fellow co-EEs is detrimental to the company for he can upset and restrain the working environment. (Heavylift Manila, Inc. v. CA) Conviction Moral Turpitude: Violation of a company rule prohibiting the infliction of harm or physical injury against any person under the particular circumstances provided for in the same rule may be deemed analogous to serious
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Probable Cause: Although after preliminary investigation probable cause has been found and the accused has been detained, this is NOT legal basis for immediate termination of employment. (Standard Electric Manufacturing Corp. v. Standard Electric Union, 2005) Conviction Moral Turpitude: Conviction of a crime involving moral turpitude is not one of these justifiable causes. Not under fraud/willful breach since the crime was unrelated
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12 2
Employer National government, its political subdivisions, branches, agencies or instrumentalities, including government-owned or controlled corporations and financial institutions with original charters (GOCCs); constitutional commissions; and judiciary Employee any person receiving compensation while in service of an employer whether by election or appointment, irrespective of status of appointment; baranggay officials; and sangguniang officials Note: No counterpart for self-employed.
Definition Terms
of
Same except that RA 8291 does not distinguish share of legitimate and illegitimate children
Compensation basic pay received excluding per diems, bonuses, overtime, honoraria, allowances and other emoluments not integrated into the basic pay under existing laws.
Public sector employees below the compulsory retirement age of 65. Exceptions: a. AFP and PNP; b. Members of the Judiciary and Constitutional Commissions who are covered only by life insurance as they have separate retirement schemes; c. Contractual employees with no employee-employer relationship with the agency they serve.
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Coverage
Summary Benefits
of
a) b) c) d) e) f) g) h) i) j) k)
Monthly pension Retirement benefits Permanent disability benefits Death Benefits Funeral benefits Loan GSIS website provides for this Temporary disability benefits (similar to sickness) Separation benefits Unemployment benefits Sec 11 Survivorship benefits Life insurance benefits
Note: Judiciary and Constitutional Commissions are entitled to life insurance only. Continued membership for the unemployed member; and entitlement to whatever benefits he has qualified to in the event of any compensable contingency. GSIS CA (Rule 43) SC (Rule 45); appeal does not stay execution. 4 years