Labor Law

2005 CENTRALIZED BAR OPERATIONS
LABOR LAW
SELECTED QUESTIONS in LABOR LAW

LABOR STANDARDS
1. Differentiate labor standards law fro labor relations law. Are t!e two "t"all# e$%l"si&e'
Labor standards law is that labor law which prescribes terms and conditions of employment like Book III, Book IV, Title I and Book VI of the Labor Code. These books of the Labor Code deal with working conditions, wages, working conditions for women, minors, house helpers and homeworkers, medical and dental ser ices, occupational health and safety, termination and retirement. !n the other hand, labor relations law is that labor law which regulates the relations between employers and workers like Book V of the Labor Code which deals with labor organi"ations, collecti e bargaining, unfair labor practices and strikes and lockouts. Labor standards laws and labor relations laws are not mutually e#clusi e$ they complement to each other. Thus the law on strikes and lockouts which is and e#ample of labor relations law includes some pro isions on the security of tenure of workers who go on strike or who are locked out. These pro isions are clear e#amples of labor law relations. (.W!at is t!e Constit"tional basis of Arti%les )*11 re+ardin+ e an%i,ation of tenants' %The &tate shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collecti ely the lands they till or, in the case of other farmworkers, to recei e a 'ust share of the fruits thereof. To this end, the &tate shall encourage and undertake the 'ust distribution of all agricultural lands, sub'ect to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, de elopmental, or e(uity considerations, and sub'ect to the payment of 'ust compensation. In determining retention limits, the &tate shall respect the rights of small landowners. The &tate shall further pro ide incenti es for oluntary land-sharing.) (Article XIII, Section 4, 1987 Constitution) -. Is a %or,oration. of w!i%! se&ent# ,er%ent /)012 of t!e a"t!ori3ed and &otin+ %a,ital is owned and %ontrolled b# 4ili,ino %iti3ens. allowed to en+a+e in t!e re%r"it ent and ,la%e ent of wor5ers. lo%all# or o&erseas' E$,lain briefl#. NO. *rt. +, of the Labor Code e#plicitly re(uires that in order to (ualify for participation in the o erseas employment program, the corporation must at least possess se enty-fi e percent -,./0 of the authori"ed and oting capital stock of which is owned and controlled by 1ilipino citi"ens. 6. Can a re%r"iter be %on&i%ted of &iolatin+ a 7OEA Cir%"lar w!i%! was i ,le ented wit!o"t ,rior ,"bli%ation' NO. The 2!3* 434! Circular no. +, series of 5678 was oid. 9here the administrati e circular in (uestion is one of those issuances which should be published for its effecti ity, since its purpose is to enforce and implement an e#isting law pursuant to a alid delegation. Considering that 2!3* *dministrati e Circular :o. +, &eries of 5678 has not as yet been published or filed with the :ational *dministrati e ;egister, the same is ineffecti e and ma not be enforced (Philsa International Placement and Services Corp vs Secretar! o" #$%&, ' ( )o 1*+144, April 4, ,**1). 8. Is t!e absen%e of an e ,lo# ent a &alid defense in a %ase of ille+al re%r"it ent' E$,lain. NO. the law is clear on the matter. 2ri ate respondents further argue that they cannot be held liable by petitioner because no employment contract between him and &tep-<p *gency had been appro ed by the 2!3*. They also claim that the absence of a Special Power of Attorney and an Affidavit of Responsibility, as re(uired under &ections 5 and +, ;ule 5, Book III of the 2!3* ;ules and ;egulations only pro es that they did not deploy petitioner to &ingapore.
Red Notes in Labor Law

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College of Law LAW
San Beda LABOR
Their argument is far from persuasi e. &urely, they cannot e#pect us to utili"e their noncompliance with the 2!3* ;ules and ;egulations as a basis in absol ing them. To do so would be tantamount to gi ing premium to acts done in iolation of established rules. *t most, pri ate respondents= act of deploying petitioner to &ingapore without complying with the 2!3* re(uirements only made them susceptible to cancellation or suspension of license as pro ided by &ection +, ;ule I, Book VI of 2!3* ;ules and ;egulations. (-ornales v )%(C, ' ( )o 11894+, Septem.er 1*, ,**1). 9. Is t!ere a re:"ire ent t!at a ,!#si%ian attend to a si%5 sea an' "st be a%%redited b# t!e 7OEA before !e %an
This Court also finds no basis on -sic0 the petitioners= contention that the companydesignated >physician? must also be accredited with the 2!3* before he can engage in the medical treatment of a sick seaman. There is nothing in the &tandard 3mployment Contract that pro ides this accreditation re(uirement, and e en if there is, this would be absurd and contrary to public policy as its effect will deny and depri e the ailing seaman of his basic right to seek immediate medical attention from any competent physician. The lack of 2!3* accreditation of a physician who actually treated the ailing seaman does not render the findings of such physician -declaring the seaman permanently disabled0 less authoritati e or credible. To our mind, it is the competence of the attending physician, not the 2!3* accreditation, that determines the true health status of the patient-seaman, which in this instant case, is >sic? the attending physicians from the 4anila @octors Aospital ('erman /arine A0encies, Inc v )%(C, ' ( )o 14,*49, 1anuar! +*, ,**1). ). ;artina is a %ler5 t#,ist in <os,i%io de San =ose. a %!aritable instit"tion de,endent for its e$isten%e on %ontrib"tions and donations fro well wis!ers. S!e renders wor5 ele&en /112 !o"rs a da# b"t !as not been +i&en o&erti e ,a# sin%e !er ,la%e of wor5 is a %!aritable instit"tion. Is So%orro entitled to o&erti e ,a#' E$,lain briefl#. >ES. 4artina is entitled to o ertime compensation. &he does not fall under any of the e#ceptions enumerated under *rt. 7+ of the Labor Code. &aid pro ision e(ui ocally states that %Title I, Book III of the Labor Code dealing with hours of work, weekly rest periods, holidays, ser ice incenti e lea es and ser ice charges, co ers all employees in all establishments, whether for profit or not, e#cept the following employees? a. Bo ernment employees b. 4anagerial employees %. !fficers and members of the managerial staff d. 1ield personnel e. 4embers of the family of the employer who and dependent on him for support f. @omestic helpers +. 2ersons in the personal ser ice of another !. 9orkers paid by results. * co ered employee who works beyond eight -70 hours is entitled to o ertime compensation. @. Aris!na earns 7).00 for e&er# ani%"re s!e does in t!e barbers!o, of a friend w!i%! !as nineteen /1B2 e ,lo#ees. At ti es. s!e ta5es !o e 71)8.00 a da# and at ot!er ti es s!e earns not!in+. S!e now %lai s !olida# ,a#. Is Aris!na entitled to t!is benefit' NO. :emia is not entitled to holiday pay. *rt. 7+ of the Labor Code pro ide that workers who are paid by results are, among others, not entitled to holiday pay. :emia is a worker who is paid by results. &he earns 2,.CC for e ery manicure she does. B. As a tire an in a +asoline station. w!i%! is o,en twent# fo"r /(62 !o"rs a da# wit! onl# fi&e /82 e ,lo#ees. =oewa wor5ed fro 10?00 ,. . "ntil )?00 A.;. of t!e followin+ da#. <e %lai s to be entitled to ni+!t s!ift differential. Is !e %orre%t' NO. In the !mnibus ;ules Implementing the Labor Code -Book III, ;ule II, dealing with night shift differential0 it is pro ided that its pro isions on night shift differential shall :!T apply to employees of %retail and ser ice establishments regularly employing not more that fi e -.0
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workers). Because of this pro ision, Doewa is not entitled to night shift differential because the gasoline station where he works -being a ser ice establishment0 has only fi e employees. 10. A an"fa%t"rin+ fir wit! 800 e ,lo#ees s%!ed"les S"nda# as t!e latterCs rest da#. 4ift# wor5ers w!o were se&ent!*da# ad&entists and (00 wor5ers w!o belon+ to t!e I+lesia ni Aristo obDe%t and ,ro,ose t!at t!eir rest da#s be s%!ed"led on Sat"rda#s and T!"rsda#s. res,e%ti&el#. T!e %o ,an# %lai s t!at t!e ,ro,osed s%!ed"le will serio"sl# ,reD"di%e or obstr"%t its an"fa%t"rin+ o,erations and ref"ses to re*s%!ed"le t!e rest da# as re:"ested. a. Do t!e se&ent! da# ad&entists and t!eir own rest da#s' e bers of t!e I+lesia ni Aristo !a&e an# ri+!t to %!oose
LABOR LAW
>ES. The employer, under the law, is re(uired to respect the preference of the employee if the same is based on religious grounds. The employee shall make known his preference to the employer in writing at least -,0 days before the desired effecti ity of the initial rest day preffered -&ec.E, ;ule III, Book I, Implementing ;ules and ;egulations0. b. Ass" in+ t!at t!e %lai of t!e e ,lo#er is well*fo"nded. %an it le+all# ref"se to re*s%!ed"le t!e rest da# of t!e e ,lo#ees in&ol&ed' >ES. If the employer cannot resort to other remedial measures, it may schedule the rest days of the employees in ol ed on the days of their choice for at least + days in a month -&ec.E, ;ule III, Book III, Implementing ;ule and ;egulations0. 11. T!is #ear. National <eroes Da# /A"+"st (82 falls on a S"nda#. S"nda# is t!e rest da# of Bonifa%io w!ose dail# rate is 7800.00. a. If Bonifa%io is re:"ired b# !is e ,lo#er to wor5 on t!at da# for ei+!t /@2 !o"rs. !ow "%! s!o"ld !e be ,aid for !is wor5' E$,lain. 1or working on his scheduled rest day, according to *rt. 68-a0, Bonifacio should be paid 2.CC.CC -his daily rate0 plus 25.C.CC -8C/ of his daily rate F 2G.C.CC. This amount 2G.C.CC should be multiplied by + F 25,8CC.CC. this is the amount that Bonifacio as employee working on his scheduled rest day which is also a regular holiday should recei e. *rt. 6E-c0 of the Labor Code pro ides that an employee shall be paid a compensation e(ui alent to twice his regular rate for working on any regular holiday. The %regular rate) of Bonifacio on 4ay 5,+CC+ with an additional thirty percent because the day is also his scheduled rest day. 1ormulaH /a2 To +et rest da# ,a# Ste, 1H Bet hourly wage rate Daily Basic Wage Number of hours worked X special holiday wage rate
e 0 (P2** 3 8 hrs) 4 1+*5
6 P81 ,2 (rest da! 7a0e rate)
Ste, (H Compute wage between 7HCCpm I .HCC pm using rest day wage rate Number of hours worked e0 8hrs 4 X special holiday wage rate 6 P82*
P81 ,2
/b2 To +et re+"lar !olida# ,a# Rest day Wage rate X e0 P82* 4 Regular holiday ,**5 6 P1+**
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b. If !e wor5s for ten /102 !o"rs on t!at da#. !ow wor5' E$,lain.
"%! s!o"ld !e re%ei&e for !is
25,8CC.CC which is the amount that Bonifacio is to recei e for working on 4ay 5, +CC+ should be di ided by 7 to determine his hourly rate of 25G+... This hourly rate should be multiplied by + -the number of hours he worked o ertime0. Thus, the amount that Bonifacio is entitled to recei e for his o ertime work per hour on 4ay 5, +CC+ is 28+..CC. Aoliday wage rate J 8C/ of holiday rate -+CC/0 Ste, 1H Bet hourly wage rate Daily Basic Wage Number of hours worked e0 X special holiday wage rate
(P1+** 3 8 hrs ) 4 ,**5 6 P+,2
Ste, (H Compute !T 2remium 2ay between .HCC pm I 5Cpm [(30% X Wage Per Hour) + Wage Per Hour] No. of ! Hours = OT Premium Pay
e 0 (+* 5 4 P+,2) E P+,2 6 P4,, 2* no o" $9 hours (2pm : 1*pm) 6 ,hrs -----------P842 ** Ste, -? C!42<T*TI!: 8am;2pm , hours 8hrs 4 P,** ** ,hrs 4 P,8* ** 842 ;;;;;;;;;;;; 7(.168 P1+**
Total Ta5e <o e 7a#
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1(. Sia. t!e e ,lo#er. ad its t!at Da as%oCs wor5 starts at @?-0 in t!e ornin+ and ends ", at 9?-0 in t!e e&enin+ dail#. e$%e,t !olida#s and S"nda#s. <owe&er. Sia %lai s t!at Da as%oCs basi% salar# of 7160.00 a da# is ore t!an eno"+! to %o&er t!e Fone !o"r e$%ess wor5G w!i%! is t!e %o ,ensation t!e# alle+edl# a+reed ",on. W!at ot!er e&iden%es are re:"ired to warrant t!e award of o&erti e ,a#' Dudicial admissions made by parties in the pleadings, or in the course of the trial or other proceedings in the same case are conclusi e, no further e idence being re(uired to pro e the same, and cannot be contradicted unless pre iously shown to ha e been made through palpable mistake or that no such admission was made. In iew of &ia=s formal admission that @amasco worked beyond eight hours daily, the latter is entitled to o ertime compensation. :o further proof is re(uired. &ia already admitted she worked an e#tra hour daily. Thus, public respondent gra ely erred in deleting the award of o ertime pay to @amasco on the prete#t that the claim has no factual basis. &till, e en assuming that @amasco recei ed a wage which is higher than the minimum pro ided by law, it does not follow that any additional compensation due her can be offset by her pay in e#cess of the minimum, in the absence of an e#press agreement to that effect. 4oreo er, such arrangement, if there be any, must appear in the manner re(uired by law on how o ertime compensation must be determined. 1or it is necessary to ha e a clear and definite delineation between an employee=s regular and o ertime compensation to thwart iolation of the labor standards pro ision of the Labor Code (#amasco vs )%(C, ' ( )o 112722, #ecem.er 4, ,***). 1-. ;a# a Co ,an# ado,t wor5in+ !o"rs be#ond @ !o"rs a da#' If t!e wor5ers do not :"estion s"%! an arran+e ent. wo"ld t!at s%!e e be %onsidered &alid'
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>ES. In Interphil %a.oratories &mplo!ees <nion ==> v Interphil (' ( )o 14,8,4, #ecem.er 19, ,**1) it was held by the Court thatH &ection 5. ;egular 9orking Aours K * normal workday shall consist of not more than eight -70 hours. The regular working hours for the Company shall be from ,H8C *.4. to EH8C 2.4. The schedule of shift work shall be maintained$ howe er the company may change the pre ailing work time at its discretion, should such change be necessary in the operations of the Company. *ll employees shall obser e such rules as ha e been laid down by the company for the purpose of effecting control o er working hours. It is e ident from the foregoing pro ision that the working hours may be changed, at the discretion of the company, should such change be necessary for its operations, and that the employees shall obser e such rules as ha e been laid down by the company. In the case before us, Labor *rbiter Caday found that respondent company had to adopt a continuous +E-hour work daily schedule by reason of the nature of its business and the demands of its clients. It was established that the employees adhered to the said work schedule since 5677. The employees are deemed to ha e wai ed the eight-hour schedule since they followed, without any (uestion or complaint, the two-shift schedule while their CB* was still in force and e en prior thereto. The two-shift schedule effecti ely changed the working hours stipulated in the CB*. *s the employees assented by practice to this arrangement, they cannot now be heard to claim that the o ertime boycott is 'ustified because they were not obliged to work beyond eight hours. 16. E$,lain t!e ,rin%i,le of FA 4AIRS DA> WAHE 4OR A 4AIRS DA>CS LABORG The age-old rule go erning the relation between labor and capital, or management and employee of a Lfair dayMs wage for a fair dayMs laborL remains as the basic factor in determining employeesM wages. If there is no work performed by the employee there can be no wage or pay unless, of course, the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed, or otherwise illegally pre ented from working (Calte4 (e"iner! &mplo!ees Association (C(&A) vs ?rillantes, ,79 SC(A ,18), a situation which we find is not present in the instant case. It would neither be fair nor 'ust to allow pri ate respondents to reco er something they ha e not earned and could not ha e earned because they did not render ser ices at the Nalibo office during the stated period (A@lan &lectric Cooperative Incorporated v )%(C, ' ( )o 1,14+9, 1anuar! ,2, ,***). 18. A Co.. a toba%%o an"fa%t"rin+ fir . is owned b# ;r. I w!o also owned B Se%"rit# A+en%# /BSA2. W!en t!e e ,lo#ees of B for ed a "nion. ACs ana+e ent ,reter inated t!e se%"rit# %ontra%t between A and B fir s. W!en t!e +"ards filed a %ase of ille+al dis issal and UL7 a+ainst bot! A and B. t!e %o"nsel of A filed a ;otion to Dis iss. alle+in+ t!at t!at t!ere was no e ,lo#er*e ,lo#ee relations!i, between A and t!e +"ards. a. S!o"ld t!e ;OTION be +ranted' E$,lain.
LABOR LAW
NO. The 4otion should not be granted. The facts indicate a concerted effort on the part of respondents to remo e petitioners from the company and thus abate the growth of the union and block its actions to enforce their demands in accordance with the Labor &tandards laws. The Court held in Insular %i"e Assurance Co , %td , &mplo!ees Association;)A9< vs Insular %i"e Assurance Co , %td ,+7 SC(A ,44 (1971), that %the test of whether an employer has interfered with and coerced employees within the meaning of section -a0 -50 is whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free e#ercise of employeesM rights under section 8 of the *ct, and it is not necessary that there be direct e idence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union conduct of the employer does ha e an ad erse effect on selforgani"ation and collecti e bargaining.) b. a,,li%able !ereto' Is t!e do%trine of ,ier%in+ t!e &eil of %or,orate fi%tion

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It is a fundamental principle in corporation law that a corporation is an entity separate and distinct from its stockholders and from other corporations to which it is connected. Aowe er, when the concept of separate legal entity is used to defeat public con enience, 'ustify wrong, protect
College of Law LAW
San Beda LABOR
fraud or defend crime, the law will regard the corporation as an association of persons, or in case of two corporations, merge them into one. The separate 'uridical personality of a corporation may also be disregarded when such corporation is a mere alter ego or business conduit of another person. In the case at bar, it was shown that B&* was a mere ad'unct of * Company. B&*, by irtue of a contract for security ser ices, pro ided * Co. with security guards to safeguard its premises. Aowe er, records show that B&* and * Co. ha e the same owners and business address, and B&* pro ided security ser ices only to * Co. and other companies belonging to its owners. The purported sale of the shares of the former stockholders to a new set of stockholders who changed the name of the corporation appears to be part of a scheme to terminate the ser ices of B&*=s security guards posted at the premises of * Co. and bust their newly-organi"ed union which was then beginning to become acti e in demanding the companyMs compliance with Labor &tandards laws. <nder these circumstances, the Court cannot allow * Co. to use its separate corporate personality to shield itself from liability for illegal acts committed against its employees. (#e %eon vs )%(C, ' ( )o 11,881, /a! +*, ,**1) 19. Dis%"ss t!e do%trine on t!e Aeconomic realit! o" the relations o" partiesB test wit! res,e%t to t!e e$isten%e of e ,lo#er*e ,lo#ee relations!i,. The relationship of employer-employee, which determines the liability for employment ta#es under the &ocial &ecurity *ct was not to be determined solely by the idea of control which an alleged employer may or could e#ercise o er the details of the ser ice tendered to his business by the worker or workers. Control is characteristically associated with the employer -employee relationship, but in the application of social legislation, employees are those who as a matter of economic reality are dependent upon the business to which they render ser ice, taking into account permanency of the relations, the skills re(uired and the in estments in the facilities for work and opportunities for profit or loss from acti ities. It is the total situation that controls. /Investment Plannin0 Corp vs SSS, ,1 SC(A 9,4) The concept of independent contractor is interminably linked with the economic reality test when we consider the fact that such person is one who carries on a distinct and independent business and undertakes to perform the 'ob to do a piece of work on his own account and under his own responsibility, according to his own manner and methods and free from the control and direction of his principal, e#cept as to the result of the work. *mong the factors to be considered are whether the contractor is carrying on an independent business$ whether the work is part of the employerMs general business$ the nature and e#tent of the work$ the skill re(uired$ the term and duration of the relationship$ the right to assign the performance of the work to another$ the power to terminate the relationship$ the e#istence of a contract for the performance of a specified piece of work$ the control and super ision of the work$ the employerMs powers and duties with respect to the hiring, firing, and payment of the contractorMs ser ants-, the control of the premises$ the duty to supply the premises, tools, appliances, material and labor$ and the mode, manner, and terms of payment. (/A=I)C$ Corporation v $ple, 7* SC(A 1+9) 1). 7ando# was an ele%tri%ian w!o wor5ed wit!in t!e ,re ises of Us!ioJs %ar a%%essor# s!o,. in Banawe Street. Q"e3on Cit#. <e filed a %o ,laint for ille+al dis issal. non*,a# ent of o&erti e ,a#. !olida# ,a#. and ot!er benefits a+ainst Us!io. w!i%! o&ed to dis iss t!e %o ,laint %lai in+ t!at 7ando# was not an e ,lo#ee b"t a free lan%e o,erator w!o waited on t!e s!o,Js %"sto ers s!o"ld t!e latter re:"ire !is ser&i%es. Us!io ar+"es t!at in fine. t!e s!o, owner and t!e free lan%e o,erator. as an inde,endent %ontra%tor. were ,artners in trade. Kbot! benefitin+ fro t!e ,ro%eeds of t!eir Doint efforts.G It f"rt!er %lai ed t!at it was a re%o+ni3ed and a%%e,ted trade ,ra%ti%e ,e%"liar to t!e a"to s,are ,arts s!o, ind"str# o,eratin+ alon+ t!e stret%! of Banawe Street t!at s!o, owners wo"ld %olle%t t!e ser&i%e fees fro its %"sto ers and disb"rse t!e sa e to t!e inde,endent %ontra%tor at t!e end of a wee5. ;oreo&er. 7ando# was free to ,osition !i self near ot!er %ar a%%essor# s!o,s to offer !is ser&i%es to %"sto ers of said s!o,s. On t!e ot!er !and. 7ando# insists t!at !e is entitled to t!e benefits be%a"se !e was lo#al to Us!io. as !e did not ,erfor wor5 for an#one else. Is !e %orre%t'
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NO. In stark contrast to the Company=s regular employees, there are independent, freelance operators who are permitted by the Company to position themsel es pro#imate to the company premises. These independent operators are allowed by the Company to wait on Company customers who would be re(uiring their ser ices. In e#change for the pri ileges of fa orable recommendation by the Company and immediate access to the customers in need of their ser ices, these independent operators allow the Company to collect their ser ice fee from the customer and this fee is gi en back to the independent operator at the end of the week. In effect, they do not earn fi#ed wages from the Company as they earn their ariable fees from the customers of the Company. The Company has no control o er and does not restrict the methodology or the means and manner by which these operators perform their work. These operators are not super ised by any employee of the Company since the results of their work is controlled by the customers who hire them. Likewise, the Company has no control as an employer o er these operators. They are not sub'ect to regular hours and days of work and may come and go as they wish. They are not sub'ect to any disciplinary measures from the Company, sa e merely for the inherent rules of general beha ior and good conduct C<shio /ar@etin0 v )%(C, ,94 SC(A 87+ (1998)D. 1@. In t!e e ,lo# ent of wor5ers. is t!ere a differen%e between an ordinar# e ,lo#er* e ,lo#ee relations!i, and inde,endent Dob %ontra%tin+L s"b%ontra%tin+' >ES. In an ordinary employer-employee relationship, there are only two parties in ol ed the employer and the employee. This relationship is established through a four-fold test, under which the employerH a. @irectly e#ercises control and super ision o er the employee not only as to the results of the work but also as to the means employed to attain this result$ b. Aas the power to select and hire the employee$ %. Aas the obligation to pay the employees his or her wages and other benefits. d. Aas the power to transfer and dismiss or discharge employees. The power of control is the most important factor in determining the e#istence of an employer-employee relationship. The employer need not actually e#ercise this power. It is enough that the employer retains the right to e#ercise this power, as it may deem necessary or appropriate. In job contracting / subcontracting, there are three parties in ol edH a. The principal who decides to farm out a 'ob or ser ice to a subcontractor$ b. The 'ob contractor or subcontractor which has the capacity to independently undertake the performance of the 'ob or ser ice$ and %. The employees engaged by the 'ob contractor or subcontractor to accomplish the 'ob or ser ice. In 'ob contracting or subcontracting, the four-fold test of employer-employee relationship should be satisfied by the contractor or subcontractor in relation to the employee it engages to accomplish the contracted or subcontracted 'ob or ser ice. In such cases, the contractor or subcontractor is also referred to as an independent contractor. If the four-fold test is satisfied not by the 'ob contractor or subcontractor but by the principal, the principal then becomes the employer of the employees engaged to accomplish the 'ob or ser ice. 9hat e#ists is not 'ob contracting or subcontracting but a direct employer-employee relationship between the principal and the employees and the 'ob contractor becomes merely the agent of the principal or the subcontractor, the agent of his contractor, as the case may be. 1B. Is t!ere a differen%e between a Dob %ontra%tor or s"b%ontra%tor and a ,ri&ate re%r"it ent and ,la%e ent a+en%# /7R7A2' >ES. * 'ob contractor or subcontractor directly undertakes a specific 'ob or ser ice for a principal, and for this purpose employs its own workers. * 2;2* cannot be a subcontractor. It simply recruits workers for the purpose of placing them with another employer so that the workers recruited will not become the 2;2*Ms employees.
LABOR LAW

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* 'ob contractor or subcontractor is go erned primarily by *rticles 5CG-5C6 of the Labor Code. * pri ate recruitment and placement agency is go erned by *rticles +. to 86 of the Labor Code and the rules implementing these articles. * 'ob contractor or subcontractor does not need authority from the @epartment of Labor and 3mployment -@!L30 to undertake a subcontracted 'ob or ser ice. * 2;2* needs an authority or license from @!L3 to legally undertake recruitment and placement acti ities. (0. W!at law or r"les +o&ern Dob %ontra%tin+ or s"b%ontra%tin+' The basic law go erning 'ob contracting or subcontracting is the Labor Code, particularly *rticles 5CG to 5C6 thereof. These pro isions prescribe the conditions for the regulation of 'ob contracting or subcontracting and the rights and obligations of parties to this arrangement. @epartment !rder :o. 8, which took effect on +6 4ay +CC5 was the latest set of rules released by the @!L3 implementing *rticles 5CG to 5C6. The following laws and rules also apply in addition to *rticles 5CG to 5C6 of the Labor CodeH a. *rticle +E7 -c0 of the Labor Code, which disallows contracting out of ser ices or functions being performed by union members when such will interfere with, restrain or coerce employees in the e#ercise of their right to self-organi"ation$ b. *rticle +7C, Labor Code, which classifies employees into regular, pro'ect or seasonal employees$ %. *rticle +57C of the Ci il Code, under which the principal, in a ci il suit for damages instituted by an in'ured person, can be held liable for any negligent acts of the employees of a labor-only contractor$ d. ;epublic *ct :o. .E7,, which regulates the operation of security agencies, and its implementing rules$ e. Durisprudence interpreting the foregoing laws$ f. @.!. :o. 56, &eries of 5668, for subcontracting arrangements in the construction industry$ and !. Contractual stipulations pro ided these are not in conflict with Labor Code pro isions, 'urisprudence, and @.!. :os. 8 and 56. (1. W!at are t!e i ,ortant feat"res of D.O. No. -' The following are the important features of @.!. :o. 8H a. It re oked @epartment !rder :o. 5C, &eries of 566,, which was then the implementing rules on *rticles 5CG to 5C6$ b. It prohibits labor-only contracting$ %. It recogni"es the continuing alidity of contracts entered into when @.!. :o. 5C was still in force$ d. It is a temporary measure$ e. It sets the process and mechanism, which is through consultations through the Tripartite Industrial 2eace Council, by which a new set of rules shall be formulated. ((. Is Dob %ontra%tin+ or s"b%ontra%tin+ ille+al' NO. pro ided the re(uirements for legitimate 'ob contracting or subcontracting are satisfied and the prohibition against labor-only contracting or subcontracting is obser ed. In two recent cases decided by the &upreme Court, Eino! v )%(C, ' ( )o 1,8288, =e.ruar! *,,,***, and %im v )%(C, ' ( )o 1,48+*, =e.ruar! 19, 1999 , the definition of legitimate subcontracting is as followsH Contracting or subcontracting shall be legitimate if the following conditions concurH a. The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the 'ob, work or ser ice on its own account and under its own responsibility, according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work e#cept as to the results thereof$ b. The contractor or subcontractor has substantial capital or in estment$
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%. The agreement between the principal and the contractor or subcontractor assures the contractual employees entitlement to all occupational safety and health standards, free e#ercise of the right to self organi"ation, security of tenure, and social and welfare benefits. (-. W!at is s"bstantial %a,ital' Is s"bstantial %a,ital s"ffi%ient to establis! le+iti ate s"b%ontra%tin+' &ubstantial capital refers to such in estment, whether it is in the form of money, facilities, tools, e(uipment, machineries, work premises, or subscribed capital stock that would indicate the subcontractorMs capacity to undertake the contracted or subcontracted work or ser ice independently. 1or e#ample, a contractor or subcontractor with a capital stock of 25 4illion which is fully subscribed and paid for has been deemed by the &upreme Court to be a highly capitali"ed enture which satisfies the re(uirement of substantial capital. 9here a 'ob contractor or subcontractor is highly capitali"ed, the &upreme Court has held that it need not show e idence that it has in estment in the form of tools, e(uipment, machineries, work premises, among others, to be considered legitimate. Aowe er, it is still necessary for it to show that it has the capacity to be an independent contractor. That is, it can undertake the performance of the contract according to its own manner and method, free from the super ision of the principal in all matters e#cept as to the results of the work. (6. W!at is t!e basis of t!e State in ,ro!ibitin+ labor*onl# %ontra%tin+' W!at is t!e obDe%ti&e and t!e ,ro!ibition' The basis of the &tate in prohibiting labor-only contracting areH a. The Constitution, which pro ides that the &tate shall protect labor and promote its welfare, and shall guarantee basic labor rights including 'ust and humane terms and conditions of employment and the right to self-organi"ation. b. *rticle 5CG of the Labor Code, which allows the &ecretary of Labor to distinguish between labor-only contracting and 'ob contracting to pre ent any iolation or circum ention of the Labor Code. The ob'ecti e of the &tate in prohibiting labor-only contracting is to ensure that labor laws are followed and to pre ent the e#ploitation of workers. * labor-only contractor is one who presents itself as an employer e en if it does not ha e capital to run a business or capacity to ensure that its workers are paid their wages and other benefits as prescribed by law. *s such, it cannot independently undertake to perform a contracted or subcontracted 'ob or ser ice. To allow a labor-only contractor to operate is to gi e it an opportunity to circum ent the law and to e#ploit workers. (8. If #o" are t!e %o"nsel of an a+en%# w!i%! is bein+ %!ar+ed of LABOR*ONL> CONTRACTINH. w!at e&iden%e will #o" ,resent to ref"te t!e %!ar+e' E$,lain. I would present the same documents shown in the case of &scario vs )%(C, ' ( )o 1,4*22, 1une 8, ,***, to witH %@.L. *dmark is a legitimate independent contractor. *mong the circumstances which tend to establish the status of @.L. *dmark as a legitimate 'ob contractor areH a. The &3C registration certificate of @.L. *dmark states that it is a firm engaged in promotional, ad ertising, marketing and merchandising acti ities. b. The ser ice contract between C4C and @.L. *dmark clearly pro ides that the agreement is for the supply of sales promoting merchandising ser ices rather than one of manpower placement. %. @.L. *dmark was actually engaged in se eral acti ities such as ad ertising, publication, promotions, marketing and merchandising. It had se eral merchandising contracts with companies like 2urefoods, Corona supply, :abisco Biscuits and Licron. It was likewise engaged in the publication business, as e idenced by its maga"ine, the %2henomenon.) d. It had its own capital assets to carry out its promotion business. It then had current assets amounting to 2G million and is therefore a highly capitali"ed enture. It had an authori"ed capital stocks of 2.CC,CCC. It owned se eral motor ehicles and other tools, materials and e(uipment to ser ice its clients. It paid rentals of 28C,C+C for the office space it occupied.
LABOR LAW

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College of Law LAW
San Beda LABOR
(9. W!at are t!e effe%ts of a labor*onl# %ontra%tin+ arran+e ent' The following are the effectsH a. The contractor or subcontractor will be treated as the agent of the principal. &ince the act of an agent is the act of the principal, representations made by the contractor or subcontractor to the employees will bind the principal. b. The principal will become the employer as if it directly employed the workers engaged to undertake the contracted or subcontracted 'ob or ser ice. It will be responsible to them for all their entitlements and benefits under the labor laws. %. The principal and the contractor or subcontractor will be solidarily treated as the employer. d. The employees will become employees of the principal, sub'ect to the classifications of employees under *rticle +7 of the Labor Code. If the labor-only contracting acti ity is undertaken by a legitimate labor organi"ation, a petition for cancellation of union registration may be filed against it, pursuant to *rticle +86 -e0. (). If a le+iti ate inde,endent Dob %ontra%tor or s"b%ontra%tor %annot ,a# t!e wa+es of t!e e ,lo#ees it en+a+es to ,erfor t!e Dob or ser&i%e. will t!e ,rin%i,al a"to ati%all# be%o e t!e e ,lo#er of s"%! e ,lo#ees' NO. <nder *rticle 5CG, a principal has two types of liability in relation to the employees of the contractor or subcontractor. The first type of liability is limited, and is go erned by the first two paragraphs of *rticle 5CG. Thus, mere inability of the contractor or subcontractor to pay wages will not automatically make the principal the direct employer. It will only make the principal 'ointly and se erally liable with the contractor or subcontractor for payment of the employeesM wages to the e#tent of the work performed under the contract. The second type of liability, which arises from the third and fourth paragraphs of *rticle 5CG, is absolute and direct. This liability arises when there is labor-only contracting as defined in @.!. :o. 8. In such cases, the principal shall be held responsible to the workers in the same manner and e#tent as if it directly employed these workers. (@. W!i%! e ,lo#er s!o"ld be !eld liable for t!e wa+es of se%"rit# +"ards. t!e 7RINCI7AL E;7LO>ER or t!e AHENC>' E$,lain. There e#isted a contractual agreement between 2T&I and 3*BL3, wherein the former a ailed of the security ser ices pro ided by the latter. In return, the security agency collects from its client payment for its security ser ices. This payment co ers the wages for the security guards and also e#penses for their super ision and training, the guards= bonds, firearms with ammunitions, uniforms and other e(uipments >sic?, accessories, tools, materials and supplies necessary for the maintenance of a security force. 2remises considered, the security guards= immediate recourse for the payment of the increases is with their direct employer, 3*BL3. Aowe er, in order for the security agency to comply with the new wage and allowance rates it has to pay the security guards, the 9age !rders made specific pro ision to amend e#isting contracts for security ser ices by allowing the ad'ustment of the consideration paid by the principal to the security agency concerned. 9hat the 9age !rders re(uire, therefore, is the amendment of the contract as to the consideration to co er the ser ice contractor=s payment of the increase mandated. In the end therefore, the ultimate liability for the payment of the increases rests with the principal (Securit! and Credit Investi0ation Inc v )%(C, ' ( )o 114+18, 1anuar! ,8, ,**1).
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(B. W!en is an Fins"ran%e a+entG dee ed an inde,endent %ontra%tor of an ins"ran%e %o ,an#' *s held in Insular %i"e Insurance Compan!, %td vs )%(C, ' ( )o 84484, )ov 12, 1989, %There is no employer-employee relationship between a commission agent and an in estment company. The former is an independent contractor where said agent and others similarly placed areH a. paid compensation in the form of commissions based on percentages of their sales, any balance of commissions earned being payable to their legal representati es in the e ent of death or resignation$ b. re(uired to put up performance bond$ %. sub'ect to a set of rules and regulations go erning the performance of their duties under the agreement with the company and termination of the ser ices for certain causes$ d. not re(uired to report for work at any time, nor to de ote their time e#clusi ely to working for the company nor to submit a record of their acti ities, and who finally shouldered their own selling and transportation e#penses.) Logically, the line should be drawn between rules that merely ser e as guidelines toward the achie ement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fi# the methodology and bind or restrict the party hired to the use of such means. The first, which aims only to promote the result, create no employer-employee relationship unlike the second, which addresses both the result and the means used to achie e it. The distinction ac(uires particular rele ance in the case of an enterprise affected with public interest, as in the business of insurance, which on that account, is sub'ect to regulations by the &tate with respect, not only to the relations between insurer and insured, but also to the internal affairs of the insurance company. -0. W!en are Fsales enG %onsidered Fe ,lo#eesG of a b"siness establis! ent' inde,endent %ontra%tors rat!er t!an re+"lar
LABOR LAW
In, /A=I)C$ 9radin0 Corporation v $ple, '( )o %;+779*, /arch ,2, 1978, it was held where, as in the case at bar, a peddler formally entered into a peddling contract with petitioner for the purchase and sale of Cosmos softdrinks, indicating the manner of selling the goods, whereby the petitioner pro ides the peddler with deli ery truck and bears the cost of gasoline and maintenance ofM the truck$ while on the other hand the peddler employs the dri er and helpers and take care of the latterMs compensation and social security contributions, the peddlers are independent contractors and not employees of petitioner. -1. Is t!e Doint and se&eral liabilit# of t!e ,rin%i,al and t!e Dob %ontra%tor "nder Arti%les 10) and 10B. in relation to Arti%le 109 of t!e Labor Code. de,endent ",on t!e insol&en%# or "nwillin+ness to ,a# on t!e ,art of t!e %ontra%tor or dire%t e ,lo#ees' NO. :othing in *rticle 5CG indicates that insol ency or unwillingness to pay by the contractor or direct employer is a prere(uisite for the 'oint and se eral liability of the principal or indirect employer. This 'oint and se eral liability facilitates, if not guarantees, payment of the workers= performance of any work, task, 'ob or pro'ect, thus gi ing the workers ample protection as mandated by the 567, Constitution (#evelopment ?an@ o" the Philippines vs )%(C, 1une 17, 1994). -(. A ta$i%ab %o ,an# re:"ired its ta$i dri&ers to a5e de,osits to defra# an# defi%ien%# w!i%! t!e latter a# in%"r in t!e re ittan%e of t!eir Fbo"ndar#G and to %o&er %ar was! ,a# ents. Is t!is re:"ire ent a"t!ori3ed "nder Arti%le 116 of t!e Labor Code' E$,lain. The re(uirement for deposit to defray any deficiency in the remittance of dri ers %boundary) is not lawful. *rticle 55E, which pro ides the rule on deposits for loss or damage to tools, materials or e(uipment supplied by the employer, does not apply to or permit such kind of deposit. But the re(uirement for deposit for car wash payments is lawful. There is no dispute that as a matter of practice in the ta#i industry, after a tour of duty, it is incumbent upon the dri er to

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College of Law LAW
San Beda LABOR
restore the unit he has dri en to the same clean condition when he took it out. 1urthermore, the amounts doled out were paid directly to the persons who washed the units. 1inally, it will be noted that there was nothing to pre ent the dri ers from cleaning the ta#i units themsel es, if they wanted their car wash payments (=ive 1 9a4i vs )%(C, Au0ust ,,, 1994). --. Do dis,arit# in wa+es between e ,lo#ees !oldin+ si ilar ,ositions b"t lo%ated in different re+ions of t!e %o"ntr# %onstit"te wa+e distortion as %onte ,lated b# law' E$,lain. NO. Varying in each region of the country are controlling facts, such as the cost of li ing, supply and demand of basic goods, ser ices and necessities$ and the purchasing power of the peso. The wages in different regions are not uniform. *nd the fact that a person is recei ing more in one region does not necessarily mean that he or she is better off than a person recei ing less in another region. 9age distortion presupposes an increase in the compensation of the lower ranks in an office hierarchy without a corresponding raise for higher-tiered employees in the same region of the country, resulting in the elimination or the se ere dimunition of the distinction between the two groups (Prudential ?an@ Association vs Prudential ?an@ and 9rust Co , 1anuar! ,2, 1999). -6. Does a wa+e in%rease +ranted ,"rs"ant to a %olle%ti&e bar+ainin+ a+ree ent %onstit"te %o ,lian%e wit! a s"bse:"entl# iss"ed wa+e order' NO. * collecti e bargaining agreement is a contractual obligation. It is distinct from an obligation imposed by law. The terms and conditions of a collecti e bargaining contract constitute the law between the parties. Beneficiaries thereof are therefore, by right, entitled to the fulfillment of the obligation prescribed therein. 4oreo er, compliance with a collecti e bargaining agreement is mandated by the e#pressed policy to gi e protection to labor. <nless otherwise pro ided by law, said policy should be gi en paramount consideration. Increments to the laborersM financial gratification, be they in the form of salary increases or changes in the salary scale are aimed at one thing - impro ement of the economic predicament of the laborers. *s such, they should be iewed in the light of the &tateMs a owed policy to protect labor. Thus, ha ing entered into an agreement with its employees, an employer may not be allowed to renege on its obligation under a collecti e bargaining agreement should, at the same time, the law grant the employees the same or better terms and conditions of employment. 3mployee benefits deri ed from law are e#clusi e of benefits arri ed at through negotiation and agreement unless otherwise pro ided by the agreement itself or by law. (/e!caua!an Colle0e vs #rilon, ' ( )o 81144, /a! 7, 199*). -8. Can a wo an be e ,lo#ed in an# 5ind of o%%",ation or "nderta5in+' >ES. she can be employed in any occupation or undertaking allowable by law, pro ided it is not deleterious to her health and safety. &he should not be discriminated against in employment by reason of her age, marital status and pregnancy. -9. W!at are %onsidered as a%ts of dis%ri ination a+ainst wo en' The following are considered acts of discriminationH a. 2ayment of a lesser compensation, including wage, salary and fringe benefits, to a female employee as against a male employee, for work of e(ual alue$ b. 1a oring a male employee o er a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their se#es. -). <ow "%! aternit# lea&e benefit will a ,re+nant wo an re%ei&e' W!o will ,a# t!e aternit# lea&e benefits' The member shall recei e a maternity benefit e(ui alent to 5CC/ of her a erage daily salary credit multiplied by GC days for normal deli ery$ or by ,7 days in cases of caesarian section deli ery.
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The employer ad ances the maternity lea e benefit to the (ualified employee in full or in two e(ual installments, the first to be made upon receipt of maternity lea e application and the second not later than 8C-days after payment of the first installment. <pon receipt of satisfactory proof of such payment, the &&& will reimburse the employer after the contingency for the amount of maternity benefit legally ad anced to the employee.
LABOR LAW
-@. Can a
aternit# lea&e benefit be e$tended be#ond t!e allowable 7ERIOD'
>ES. a maternity lea e may be e#tended beyond GC days upon re(uest of the woman employee. &uch re(uest must be due to illness medically certified to arise out of her pregnancy, deli ery, complete abortion or miscarriage which renders her unfit to work. The e#tended lea e benefit shall be a hindrance to reco er sickness benefit for the same period of GC days for the same childbirth, abortion or miscarriage. -B. W!at is t!e stat"s of a wo an ,er itted or s"ffered to wor5 in an# ni+!t %l"b. bar. or ot!er si ilar establis! ent "nder t!e Labor Code' *ny woman who is permitted or suffered to work with or without compensation in any night club, cocktail lounge, massage clinic, bar, or similar establishment shall be considered as an employee of such establishment for purposes of labor and social legislation. 60. W!at ot!er stat"tor# benefits and ser&i%es s!all an e ,lo#er ,ro&ide t!e wo an e ,lo#ee' The employer shall pro ide the followingH a. 1ree family planning ser ices to employees and their spouses, if the establishment regularly employ more than +CC workers$ b. Aoliday pay during the period that the woman employee is recei ing maternity or disability benefits, e(ui alent to the same percentage as the benefit granted by &&&$ %. 1le#ible work schedule to any solo parent as defined in ;epublic *ct :o. 76,+$ d. 2arental lea e of not more than se en days e ery year to the solo parent who has rendered at least one-year ser ice. e. facilities for women such as seats, separate toilet rooms and nursery in the work place. f. to determine the appropriate minimum age and other standards for retirement in special occupations for women. 61. W!o are %onsidered #o"n+ wor5ers and wor5in+ %!ildren' Ooung workers are in different categories, namelyH a. The working youth who are between 5. and 8C years of age -;epublic *ct :o. 7CEE0$ b. 3mployed minors who are from 5. to below 57 years of age -Labor Code0$ %. 9orking children who are below 5. years of age, sub'ect to the e#ceptions specified by ;epublic *ct :o. ,G.7$ d. Those engaged in Child Labor, which is prohibited by law. 6(. W!at is t!e ini " e ,lo#able a+e for #o"n+ wor5ers'
The minimum employable age for young workers is 57 years old. Aowe er, any person between 5. and 57 years of age may be employed in undertakings not ha"ardous or deleterious in nature. 6-. W!at is a non*!a3ardo"s "nderta5in+' It refers to any kind of work or acti ity, in which the employee is not e#posed to any risk that constitutes an imminent danger to his or her life and limb, safety and health. 66. W!at are t!e !a3ardo"s wor5 and a%ti&ities to ,ersons below 1@ #ears of a+e'
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College of Law LAW
San Beda LABOR
Aa"ardous work and acti ities to persons below 57 years age includeH a. 9ork which e#poses children to physical$ psychological or se#ual abuse$ b. 9ork under ground, under water, at dangerous heights or at unguarded heights of two meters and abo e, or in confined spaces$ %. 9ork with ha"ardous machinery, e(uipment and tools, or which in ol es manual handling or transport of hea y loads$ d. 9ork in an unhealthy en ironment which may e#pose children to ha"ardous processes, to temperatures, noise le els or ibrations damaging to their health, to to#ic, corrosi e, poisonous, no#ious, e#plosi e, flammable and combustible substances or composites, to harmful biological agents, or to other dangerous chemicals including pharmaceuticals. e. 9ork under particularly difficult conditions such as work for long hours or during the night, or work where the child is unreasonably confined to the premises of the employer. 68. Can a %!ild below 18 #ears of a+e be e ,lo#ed or ade to wor5'
* child below 5. years old is :!T permitted to work in any public or pri ate establishment 3PC32T in these two situationsH 5. 9hen the child works directly under the sole responsibility of his or her parents or guardians or legal guardian and where only members of the employer=s family are employed, on the following conditionsH a. The employment does not endanger the child=s life, safety and health and morals$ b. The employment does not impair the child=s moral de elopment %. The employer parent or legal guardian pro ides the child with primary and Q or secondary education prescribed by the @epartment of 3ducation, Culture and &ports -@3C&0. +. 9here the child=s employment or participation in public entertainment or information through cinema, theater, radio or tele ision is essential, pro ided thatH a. The employment does not in ol e ad ertisement or commercials promoting alcoholic be erages, into#icating drinks, tobacco and its by-products or e#hibiting iolence$ b. There is a written contract appro ed by the @!L3$ %. The employment does not endanger the child=s life, safety, health and morals$ d. The employment does not interfere with his or her schooling.
San Beda Colle+e of
69. On%e a fir &alidl# e ,lo#s a #o"n+ ,erson. is !e or s!e entitled to t!e sa e ter s and %onditions of e ,lo# ent a%%orded to an e ,lo#ee of le+al a+e' >ES. *n employer is prohibited by the Labor Code to discriminate against any young person with respect to terms and conditions of employment on account of his or her being a minor. 6). Can a ,erson between 18 and 1@ #ears of a+e be allowed to en+a+e in do esti% ser&i%e' * minor, whether male or female, may be employed as a domestic ser ant to render ser ice in and about the employer=s home, which ser ices are usually necessary or desirable for the maintenance and en'oyment thereof, such as ministering to the personal comfort and en'oyment of the employer=s family. 6@. Can a #o"n+ wor5er be a e ber of t!e So%ial Se%"rit# S#ste se%"rit# /SS2 and E ,lo#ees Co ,ensation /EC2 benefits' /SSS2 and a&ail of t!e so%ial
Law
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>ES. The &ocial &ecurity Law pro ides that co erage in the &&& is compulsory upon all employees not o er GC years of age. This law defines an employee as any person who performs ser ices for an employer and who recei es compensation for such ser ices, where there is an employer-employee relationship. &elf-employed young persons can also be &&& members. 6B. W!o are %onsidered %!ild laborers'
LABOR LAW
Child laborers are persons aged below 1 , or from 1 to below 1! years, performing work or ser ice that is ha"ardous or deleterious in nature, or e#ploitati e, or unsuper ised by the child=s parent or guardian, or that interferes with normal de elopment, or depri es that child=s right to health and education. Aowe er, not all children who work are engaged in child labor. 9ork performed by any person below 5. years of age is not considered child labor if it falls under allowable situations under ;epublic *ct :o. ,G.7. Light work that is occasional, legal and respects the child=s right to health and education is not child labor. 80. >o" were as5ed b# a ,aint an"fa%t"rin+ %o ,an# abo"t t!e ,ossible e ,lo# ent as a i$er of a ,erson. a+ed se&enteen /1)2. w!o s!all be dire%tl# "nder t!e %are of t!e se%tion s",er&isor. W!at ad&i%e wo"ld #o" +i&e' E$,lain briefl#. I will ad ise the paint manufacturing company that it cannot hire a person aged se enteen -5,0. *rt. 586 -c0 of the Labor Code pro ides that a person below eighteen -570 years of age shall not be allowed to work in an undertaking which is ha"ardous or deleterious in nature as determined by the &ecretary of Labor. The &ecretary of Labor has classified paint manufacturing as ha"ardous work. 81. W!at are t!e benefits ,ro&ided b# law to #o"n+ and deser&in+ st"dents w!o want to wor5' ;epublic *ct :o. ,8+8 pro ides for employment assistance to students who are at least 5. but not more than +. years of age enrolled or intending to be enrolled in any secondary, tertiary, ocational or technological institutions. The (ualified and deser ing youth can be employed during the summer and Qor Christmas acation as aid to the pursuit of their education. *s incenti es for employers, they shall pay the students only GC/ of the basic wage and the remaining EC/ in the form of educational ouchers payable by the go ernment. *n employer, under this law, can be a national or local go ernment office or a pri ate establishment or undertaking. 8(. Are SSS benefits %onsidered ,ro,ert# earned b# t!e for ,art of !is estate' E$,lain. e ber d"rin+ !is lifeti e' Do t!e#
The benefits recei able under the &&& law are in the nature of a special pri ilege or an arrangement secured by the law pursuant to the policy of the &tate to pro ide social security to the workingman. &uch benefits cannot be considered as property earned by the member during his lifetime. Ais contributions to the fund, it may be noted, constitute only an insignificant portion thereof. Thus, the benefits are specifically declared not transferable and e#empt from ta# legal processes and liens. 1urthermore, in the settlement of claims, the procedure to be obser ed is go erned not by the general pro isions of law, but by rules and regulations promulgated by the &ocial &ecurity Commission. *nd it is not the probate or regular court but the Commission that determines the persons to whom the benefits are payable (Social Securit! S!stem vs #avac, ' ( )o %;,184,, 1ul! +*, 1988).

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8-. Does t!e dela# on t!e ,art of t!e &i%ti of se$"al !arass ent to %o ,lain said a%t i ,air !is %a"se of a%tion a+ainst !isL!er e ,lo#er' NO. The gra amen of the offense in se#ual harassment is not the iolation of the employee=s se#uality but the abuse of power by the employer. *ny employee, male or female, may rightfully cry foul pro ided the claim is well substantiated. &trictly speaking there is not time period within which he or she is e#pected to complain through the proper channels. The time to do so may ary depending upon the needs, circumstances, and more importantly, the emotional threshold of the employee (Philippine Aeolus Automotive <nited Corp vs )%(C, ' ( )o 1,4817, April ,8, ,***). 86. T!e owners of 4ALCON 4a%tor#. a %o ,an# en+a+ed in t!e asse blin+ of a"to oti&e %o ,onents. de%ided to !a&e t!eir b"ildin+ reno&ated. 4ift# /802 ,ersons. %o ,osed of en+ineers. ar%!ite%ts and ot!er %onstr"%tion wor5ers. were !ired b# t!e %o ,an# for t!is
College of Law LAW
San Beda LABOR
,"r,ose. T!e wor5 is esti ated to be %o ,leted in t!ree /-2 #ears. T!e e ,lo#ees %ontended t!at sin%e t!e wor5 wo"ld be %o ,leted after ore t!an one /12 #ear. t!e# s!o"ld be s"bDe%t to %o ,"lsor# %o&era+e "nder t!e So%ial Se%"rit# Law. Is t!eir %ontention %orre%t' NO. <nder &ection 7 -'0 of ;* 55G5, as amended, employment of purely casual employees, not for the purpose of the occupation or business of the employer are e#cepted from compulsory co erage. *n employment is purely casual if it is not for the purpose of occupation or business of the employer. In the problem gi en, 1alcon 1actory is a company engaged in the assembling of automoti e components. The fifty -.C0 persons -engineers, architects and construction workers0 were hired by 1alcon 1actory to reno ate its building. The work to be performed by these fifty -.C0 people is not in connection with the purpose of the business of the factory. Aence, the employment of these fifty -.C0 persons is purely casual. They are therefore e#cepted from the compulsory co erage of the &&& law.
LABOR RELATIONS
88. 7ICO7Js ain t!esis is t!at t!e ,ositions Se%tion <eads and S",er&isors. w!o !a&e been desi+nated as Se%tion ;ana+ers and Unit ;ana+ers. as t!e %ase a# be. were %on&erted to ana+erial e ,lo#ees "nder t!e de%entrali3ation and reor+ani3ation ,ro+ra it i ,le ented in 1B@B. Bein+ ana+erial e ,lo#ees. wit! alle+ed a"t!orit# to !ire and fire e ,lo#ees. t!e# are ineli+ible for "nion e bers!i, "nder Arti%le (68 of t!e Labor Code. 4"rt!er ore. 7ICO7 %ontends t!at no ali%e s!o"ld be i ,"ted a+ainst it for i ,le entin+ its de%entrali3ation ,ro+ra onl# after t!e ,etition for %ertifi%ation ele%tion was filed inas "%! as t!e sa e is a &alid e$er%ise of its ana+e ent ,rero+ati&e. and t!at said ,ro+ra !as lon+ been in t!e drawin+ boards of t!e %o ,an#. w!i%! was reali3ed onl# in 1B@B and f"ll# i ,le ented in 1BB1. 7ICO7 e ,!ati%all# stresses t!at it %o"ld not !a&e %on%e,t"ali3ed t!e de%entrali3ation ,ro+ra onl# for t!e ,"r,ose of Kt!wartin+ t!e ri+!t of t!e %on%erned e ,lo#ees to self* or+ani3ation.K Is 7ICO7Cs %ontention tenable' NO. The petition not being meritorious, must fail and the same should be as it is hereby dismissed. In <nited 2epsi-Cola &uper isory <nion -<2&<0 . Laguesma, we had occasion to elucidate on the term Lmanagerial employees.L 4anagerial employees are ranked as Top 4anagers, 4iddle 4anagers and 1irst Line 4anagers. Top and 4iddle 4anagers ha e the authority to de ise, implement and control strategic and operational policies while the task of 1irst-Line 4anagers is simply to ensure that such policies are carried out by the rank-and- file employees of an organi"ation. <nder this distinction, Lmanagerial employeesL therefore fall in two -+0 categories, namely, the LmanagersL per se composed of Top and 4iddle 4anagers, and the Lsuper isorsL composed of 1irst-Line 4anagers. Thus, the mere fact that an employee is designated managerL does not ipso facto make him one. @esignation should be reconciled with the actual 'ob description of the employee, for it is the 'ob description that determines the nature of employment (PIC$P vs %a0uesma, ' ( )o 1*17+8, April 1,, ,***). 89. Do labor arbiters !a&e D"risdi%tion o&er ille+al dis issal %ases t!at ,riests and inisters' a# be filed a+ainst
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San Beda Colle+e of
>ES. The fact that a case in ol es the church and its religious minister does not ipso facto gi e the case a religious significance. &imply stated, what is in ol ed in an illegal dismissal case is the relationship of the church as an employer and the minister as an employeeKa purely secular matter not related to the practice of faith, worship, or doctrines of the church (Austria vs )%(C, ' ( )o 1,4+8,, Au0ust 18, 1999). 8). Do Labor Arbiters or t!e NLRC !a&e D"risdi%tion o&er %ri inal %ases in&ol&in+ &iolations of t!e ,enal ,ro&isions of labor laws' E$,lain.

Labor *rbiters or the :L;C are not in ested with the 'udicial power$ they merely e#ercise (uasi-'udicial functions. In the hearing and disposition of cases brought before them, they do not adhere strictly to the technical rules of e idence. This is re(uired in criminal cases where the guilt of the accused must be established beyond reasonable doubt. The regular courts ha e 'urisdiction o er criminal cases in ol ing iolations of the labor laws. 8@. E$,lain t!e do%trine of "orum non;conveniens. ;a# t!is do%trine be in&o5ed a+ainst t!e e$er%ise of D"risdi%tion b# t!e labor arbiter' <nder the rule of forum non conveniens, a 2hilippine court or agency 4*O assume 'urisdiction o er the case if it chooses to do so, 2;!VI@3@H a. that the 2hilippine court is one to which the parties may con eniently resort to$ b. that the 2hilippine court is in a position to make an intelligent decision as to the law and the facts$ and %. that the 2hilippine court has or is likely to ha e power to enforce its decision. This doctrine may be in oked against the e#ercise of 'urisdiction of the labor arbiters as held in the case of /anila -otel Corporation and /anila -otel International limited vs )%(C and /arcelo Santos which ruled that the :L;C was a seriously incon enient forum on the following groundsH a. The :L;C is an incon enient forum gi en that all the incidents of the case- from the time of recruitment, to employment, and to dismissal occurred outside the 2hilippines. The incon enience is compounded by the fact that the proper defendants I the 2alace Aotel and 4AICL I are not nationals of the 2hilippines. :either are they doing business in the 2hilippines. Likewise, the main witnesses are non-residents of the 2hilippines. b. :either can an intelligent decision be made as to the law go erning the employment contract as such was perfected in foreign soil. This calls for the application of the principle of le" loci contractus -the law of the place where the contract was made0. %. 3 en assuming that the proper decision could be reached by the :L;C, such would not ha e any binding effect against the employer, the 2alace Aotel. The 2alace hotel is a corporation incorporated under the laws of China and was not e en ser ed with summons, hence 'urisdictions o er its person was not ac(uired. 8B. Does t!e ,rin%i,le of F="risdi%tion b# Esto,,elG a,,l# in labor %ases' >ES, the principle of Durisdiction by 3stoppel applies to labor cases as was held by the &upreme Court in the case of Prudential ?an@ and 9rust Compan! vs (e!es, ' (r )o 141*9+, =e. ,*, ,**1. <nder this principle, a party to a labor case is estopped from raising the issue of 'urisdiction of the labor arbiter when he has participated in the proceedings from start to finish. In this case the petitioner bank acti ely participated in the proceedings before the Labor *rbiter, :L;C and Court of *ppeals. It was only when the Court of *ppeals made an ad erse decision did it raise the issue of 'urisdiction. The &upreme Court held that it was already too late to raise the issue of 'urisdiction as the petitioner was already in estoppel. 9hile it is true that 'urisdiction o er the sub'ect matter of a case may be raised at any time of the proceedings, this rule presupposes that laches or estoppel has not super ened. 90. Does t!e Labor Arbiter !a&e D"risdi%tion o&er dis,"tes in&ol&in+ t!e wa+es and ter s and %onditions of e ,lo# ent of COO7ERATIME e ,lo#ees' E$,lain. >ES. In the case of Perpetual -elp Credit Coop Inc vs =a.urada, ' ( )o 1,1498, $cto.er 8, ,**1 it was clarified thatH *;T. 5+5. &ettlement of @isputes. K @isputes among members, officers, directors, and committee members, and intra-cooperati e disputes shall, as far as practicable, be settled amicably in accordance with the conciliation or mediation mechanisms embodied in
LABOR LAW

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College of Law LAW
San Beda LABOR
the by-laws of the cooperati e, and in applicable laws. &hould such a conciliationQmediation proceeding fail, the matter shall be settled in a court of competent 'urisdiction.L Complementing this *rticle is &ection 7 of ;.*. :o. G686 -Cooperati e @e elopment *uthority Law0 which readsH &3C. 7 4ediation and Conciliation. K <pon re(uest of either or both parties, the *uthority shall mediate and conciliate disputes within a cooperati e or between cooperati esH 2ro ided, That if no mediation or conciliation succeeds within three -80 months from re(uest thereof, a certificate of non-resolution shall be issued by the Commission prior to the filing of appropriate action before the proper courts. The abo e pro isions apply to members, officers and directors of the cooperati e in ol ed in disputes within a cooperati e or between cooperati es. There is no e idence that pri ate respondents are members of petitioner 2ACCI and e en if they are, the dispute is about payment of wages, o ertime pay, rest day and termination of employment. <nder *rt. +5, of the Labor Code, these disputes are within the original and e#clusi e 'urisdiction of the Labor *rbiter. 91. ;a# an e$e%"tion be sto,,ed erel# be%a"se of a t!ird ,art# %lai '
NO. The Labor Code grants the :ational Labor ;elations Commission -:L;C0 sufficient authority and power to e#ecute final 'udgments and awards. Thus, a third-party claim of ownership on a le ied property should not necessarily pre ent e#ecution, particularly where K as in the present case K the surrounding circumstances point to a fraudulent claim. In fact, the disputed contract of sale here is not merely rescissible$ it is simulated or fictitious and, hence, oid ab initio (9anon0on v Samson, ' ( )o 14**89, /a! 9, ,**,). 9(. ;a# a te ,orar# restrainin+ order in a labor dis,"te be iss"ed e4 parte' >ES. The issuance of an e" parte T;! in a labor dispute is not per se prohibited. Its issuance, howe er should be characteri"ed by care and caution for the law re(uires that it be clearly 'ustified by considerations of e#treme necessity, as when the commission of unlawful acts is causing substantial irreparable in'ury to company properties and the company is, for the moment, bereft of an ade(uate remedy at law (?isi0 n0 /an00a0a7a sa Concrete A00re0ates, Inc vs )%(C, Septem.er 18, 199+). 9-. In %ases in&ol&in+ onetar# award. w!# does t!e law re:"ire an e ,lo#er to ,ost a %as! or s"ret# bond as an indis,ensable %ondition for t!e ,erfe%tion of an a,,eal' *n appeal stays the e#ecution of an award. &uch decision could be in the form of a monetary award in fa or of an employee. Thus, an appeal will mean that a monetary award will not be e#ecuted. To ensure that an appealed monetary award is affirmed and has become final and e#ecutory, *rt. ++8 re(uires that as an indispensable condition for the perfection of an appeal by an employer, he must post a cash or surety bond issued by a reputable bonding company duly accredited by the :L;C in the amount e(ui alent to the monetary award in the 'udgment appealed from. 96. W!at is t!e re ed# in %ase t!e Re+ional Offi%e or BLR &erball# denies or ref"ses to a%t on an a,,li%ation for re+istration for a %onsiderable a o"nt of ti e' &ecure a notice of denial in order to a ail of the remedy of appeal. *fter all, the decision of the ;egional !ffice or the Bureau denying the application for registration shall be in writing, stating in clear terms the reasons for such a denial. * copy of the notice of denial should be furnished to the applicant union.
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San Beda Colle+e of

98. W!at is t!e effe%t of t!e filin+L,enden%# of interLintra "nion and ot!er related labor dis,"tes to t!e relations!i, of t!e ,art# liti+ants' 5 The rights, relationships and obligations of the parties-litigants against each other and other parties-in-interest prior to the institution of the petition shall continue to remain during the pendency of the petition and until the date of finality of the decision rendered therein. Thereafter, the rights, relationships and obligations of the parties-litigants against each other and other parties-in-interest shall be go erned by the decision so ordered. The filing or pendency of any interQintra-union dispute and other related labor relations dispute is not a pre'udicial (uestion to any petition for certification election and shall not be a ground for the dismissal of petition for certification election or suspension of proceedings for certification election (Sections + and 4, (<%& XI ?oo@ E, I(( ,**+) 99. Can t!ere be se&eral "nions in one enter,rise' >ES. There can be se eral bargaining units in one employer unit, and at least one legitimate labor organi"ation per bargaining unit. *lso, there can be se eral unions within one bargaining unit, since there is no law precluding such a situation. But there can only be one bargaining agent >to the e#clusion of others? which shall be designated either by certification or consent election, or by oluntary recognition as the case may be. 9). Can all ran5 and file e ,lo#ees Doin. assist. or for a labor "nion'
LABOR LAW
NO. Confidential employees who are *L&! rank and file employees cannot form, 'oin, or assist unions if they assist in a confidential capacity or ha e access to the confidential matters of persons who e#ercise managerial functions in the field of labor relations By the ery nature of their functions, they assist and act in a confidential capacity to, or ha e access to confidential matters of, persons who e#ercise managerial functions in the field of labor relations. *s such, the rationale for the ineligibility of managerial employees to form, assist or 'oin a labor union e(ually applies to them. In ?ulletin Pu.lishin0 Co , Inc vs -on Au0usta SancheF,144 SC(A 8,8 C1988D the Court elaborated on the rationale for such inhibition in that, if the managerial employees would belong to, or be affiliated with a <nion, the latter might not be assured of their loyalty to the <nion in iew of e ident conflict of interests. The <nion can also become company-dominated with the presence of managerial employees in <nion membership.L This also holds true for confidential employees such as accounting personnel, radio and telegraph operators, who ha ing access to confidential information, may become the source of undue ad antage. &aid employee-s0 may act as a spy -ies0 of either party to a collecti e bargaining agreement. This is especially true in the present case where the petitioning <nion is already the bargaining agent of the rank-and-file employees in the establishment. To allow confidential employees to 'oin the e#isting <nion of the rank-and file would be in iolation of the terms of the Collecti e Bargaining *greement wherein this kind of employees by the nature of their functionsQpositions are e#pressly e#cluded. (Philips vs )%(C, ' ( )o 88927, 1une ,2, 199,). 9@. In w!at for s is %o ,an# do ination of a labor "nion ade anifest'
a Initiation o" the compan! union idea, which may occur in three stylesH -50 !utright formation by the employer or his representati eR -+0 3mployee formation or outright demand or influence of the employer -80 4anagerially moti ated formation by employees. . =inancial support to the union *n employer commits unfair labor practice if he defrays the union e#penses or pays the fees of the attorney who drafted the union=s constitution and by-laws. &mplo!er encoura0ement and assistance
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College of Law LAW
San Beda LABOR
Immediately granting the union e#clusi e recognition as a bargaining agent without determining whether the union represents the ma'ority of employees is an illegal form of assistance amounting to unfair labor practice. d Supervisor! assistance This takes the form of soliciting membership, permitting union acti ities during working time or coercing employees to 'oin the union by threats of dismissal or demotion (Philippine American Ci0ar G Ci0arette =actor! >or@erHs <nion vs Philippine American Ci0ar G Ci0arette /"0 Co Inc , ' ( )o %;18+84 =e.ruar! ,8, 198+). 9B. I>N Co. was infor ed t!at a ,etition for %ertifi%ation ele%tion !as been filed b# ABC Union. a le+iti ate labor or+ani3ation wit!in I>N Co be#ond t!e 90*da# freedo ,eriod +ranted to t!e for er. B# &irt"e of said infor ation. I>N Co. "nilaterall# s"s,ended t!e on*+oin+ ne+otiations for a new CBA wit! I>N Co. E ,lo#ees Asso%iation /I>NEA2 and ref"sed to do an# f"rt!er ne+otiations and bar+ainin+. Was t!ere "nfair labor ,ra%ti%e on t!e ,art of I>N Co.' Oes. The duty to bargain collecti ely includes the mutual obligation to meet and con ene promptly and e#peditiously in good faith for the purpose of negotiating an agreement. In order to allow the employer to alidly suspend the bargaining process, there must be a alid petition for Certification 3lection raising a legitimate representation issue. 9hen a petition is filed !<T&I@3 the GC-day freedom period, there is no legitimate representation issue and the filing of said petition do not constitute a bar to an on-going negotiation (Cole0io de San 1uan de %etran v Association o" &mplo!ees and =acult! o" %etran, ' ( )o 14147, Septem.er 18, ,***). )0. W!at is t!e le+al D"stifi%ation of a UNION S<O7 ,ro&ision in t!e CBA' E$,lain. The Labor Code, as amended, recogni"es the alidity of a union shop agreement in *rticle +E7 thereof, &ection -e0 pro ides, to witH #to discriminate in regard to hire or tenure of employment or any term or condition of employment in order to encourage or discourage membership in any labor organi$ation% &othing in this 'ode or in any other law shall prevent the parties from re(uiring membership in a recogni$ed collective bargaining agent as a condition for employment, e"cept of those employees who are already members of another union at the time of the signing of the collective bargaining agreement. 9e affirm the ruling of the oluntary arbitrator for the inclusion of a union shop pro ision in addition to the e#isting maintenance of membership clause in the collecti e bargaining agreement. *s the &olicitor Beneral asserted in his consolidated Comment, the <ni ersityMs reliance on the case of )ictoriano vs% *li$alde Rope +or,ers- .nion is clearly misplaced. In that case, we ruled that L...the right to 'oin a union includes the right to abstain from 'oining any union. The right to refrain from 'oining labor organi"ations recogni"ed by &ection 8 of the Industrial 2eace *ct is, howe er, limited. The legal protection granted to such right to refrain from 'oining is withdrawn by operation of law, where a labor union and an employer ha e agreed on a closed shop, by irtue of which the employer may employ only members of the collecti e bargaining union, and the employees must continue to be members of the union for the duration of the contract in order to keep their 'obs (#%S< vs %a0uesma, ' ( )o 1*9**,, 1, April ,***). )1. Union I. a lo%alL%!a,ter of > 4ederation o&ed to disaffiliate fro t!e latter. T!e o&e was s",,orted b# al ost all of its e bers. D"rin+ t!e ,enden%# of t!e disaffiliation ,ro%eedin+. t!e %o ,an# entered into a %olle%ti&e bar+ainin+ a+ree ent wit! Union I. > federation filed an a%tion for UL7 a+ainst t!e %o ,an#. De%ide. If the local union=s mo e to disaffiliate is supported by almost all >ma'ority? the members of said union, and such fact is not disputed by the federation >mother union?, the company=s act of entering into a CB* with the local union does not constitute <L2. *s held in the case of Philippine S@!landers vs )%(C, ' ( )o 1,7+74, 1anuar! +1, ,**,, as 2&3* has alidly se ered itself from 2*1L<, there would be no restrictions which could
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San Beda Colle+e of

alidly hinder it from subse(uently affiliating with :C9 and entering into a CB* in behalf of its members. *pplying the principle of agency, the local union being the agent of the real principal Kthe union members$ and the federation being merely the agent of the agent K the local union, the former which has chosen to disaffiliate from the latter as willed by ma'ority of its members may alidly enter into a CB* with the employer without holding the employer liable for <L2. )(. W!at is a sweet!eart %ontra%t' *rticle +E6 considers it an unfair labor practice for a labor organi"ation to ask for or accept negotiation of attorney=s fees from the employer in settling a bargaining issue or a dispute. 9hen it happens, the resulting Collecti e Bargaining *greement -CB*0 will most likely be a sweetheart contract, a CB* that does not substantially impro e the employees= wages and benefits. <nder *rticle +86 -f0, one of the grounds for cancellation of union registration is entering into collecti e bargaining agreements which pro ide terms and conditions of employment below minimum standards established by law. )-. ;a# an ele%tri% %oo,erati&e be !eld liable to ,a# da a+es for t!e UL7 it !as %o a+ainst its e ,lo#ees' <ow "%!' itted
LABOR LAW
>ES. but the amount should be tempered. 1or this reason, we find it proper in this case to impose moral and e#emplary damages on pri ate respondent. Aowe er, the damages awarded by the labor arbiter, to our mind, are e#cessi e. In determining the amount of damages reco erable, the business, social and financial position of the offended parties and the business and financial position of the offender are taken into account. It is our iew that herein pri ate respondents had not fully acted in good faith. Aowe er, we are cogni"ant that a cooperati e promotes the welfare of its own members. The economic benefits filter to the cooperati e members. 3ither e(ually or proportionally, they are distributed among members in correlation with the resources of the association utili"ed. Cooperati es help promote economic democracy and support community de elopment. <nder these circumstances, we deem it proper to reduce moral damages to only 25C,CCC.CC payable by pri ate respondent :33C! I to each indi idual petitioner. 9e also deem it sufficient for pri ate respondent :33C! I to pay each indi idual petitioner 2.,CCC.CC to answer for e#emplary damages, based on the pro isions of *rticles +++6 and ++8+ of the Ci il Code ()&&C$ I v )%(C, ' ( )o 118*88, 1anuar! ,4, ,***). )6. W!at is OanP in*!o"se a+en%#' *n in-house agency is where a contractor or subcontractor is engaged in the supply of labor which is owned, managed, or controlled by the principal and operates solely for the principal owning, managing, and controlling it. It is prohibited by law. )8. W!at is t!e so*%alled <OLDOMER 7RINCI7LE in a CBA'

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In the case of )e7 Paci"ic 9im.er vs )%(C, the court had the occasion to rule that *rticle +.8 and +.8-* mandate the parties to keep the status (uo and to continue in full force and effect the terms and conditions of the e#isting agreement during the GC-day period prior to the e#piration of the old CBA* andQor until a new agreement is reached by the parties. Conse(uently, the automatic renewal clause pro ided by the law, which is deemed incorporated in all CB*=s pro ides the reason why the new CB* can only be gi en a prospecti e effect. Thus, employees hired after the stipulated term of a CB* are entitled to the benefits pro ided thereunder. To e#clude them would constitute undue discrimination and depri e them of monetary benefits they would otherwise be entitled to under a new collecti e bargaining contract to which they would ha e been parties.
College of Law LAW
San Beda LABOR
)9. W!i%! is t!e better baro eter of t!e tr"e finan%ial standin+ of a %o ,an# for ,"r,oses of resol&in+ an e%ono i% deadlo%5 in %olle%ti&e bar+ainin+. a ,ro,osed b"d+et or an a"dited finan%ial state ent. E$,lain. *s we ruled in the case of Calte4 (e"iner! &mplo!ees Association (C(&A) vs 1ose S ?rillantes, (,79 SC(A ,18, 1997) >w?e belie e that the standard proof of a companyMs financial standing is its financial statements duly audited by independent and credible e#ternal auditors.L 1inancial statements audited by independent e#ternal auditors constitute the normal method of proof of profit and loss performance of a company. The financial capability of a company cannot be based on its proposed budget because a proposed budget does not reflect the true financial condition of a company, unlike audited financial statements, and more importantly, the use of a proposed budget as proof of a companyMs financial condition would be susceptible to abuse by scheming employers who might be merely feigning dire financial condition in their business entures in order to a oid granting salary increases and fringe benefits to their employees. )). W!at is t!e %ontrollin+ do%trine on t!e iss"e of RETROACTIMIT> of CBA benefits' E$,lain. ;a# t!e Se%retar# of Labor order t!e retroa%ti&it# of a CBA' Labor laws are silent as to when an arbitral award in a labor dispute where the &ecretary had assumed 'urisdiction by irtue of *rticle +G8 -g0 of the Labor Code shall retroact. In general, a CB* negotiated within si# months after the e#piration of the e#isting CB* retroacts to the day immediately following such date and if agreed thereafter, the effecti ity depends on the agreement of the parties. !n the other hand, the law is silent as to the retroacti ity of a CB* arbitral award or that granted not by irtue of the mutual agreement of the parties but by inter ention of the go ernment. @espite the silence of the law, the Court rules herein that CB* arbitral awards granted after si# months from the e#piration of the last CB* shall retroact to such time agreed upon by both employer and the employees or their union. *bsent such an agreement as to retroacti ity, the award shall retroact to the first day after the si#-month period following the e#piration of the last day of the CB* should there be one. In the absence of a CB*, the &ecretaryMs determination of the date of retroacti ity as part of his discretionary powers o er arbitral awards shall control (/&(A%C$ v Iuisum.in0, ' ( )o 1,7298, =e.ruar! ,,, ,***). )@. ;a# t!e Labor Unions and t!e Co ,an# enter into a CBA t!at +rants a oratori" of ten #ears in %olle%ti&e bar+ainin+' Is t!is not a no&ation of t!e "nionCs ri+!t to %olle%ti&e bar+ainin+' E$,lain.
San Beda Colle+e of
!n the second issue, petitioners contend that the contro erted 2*L-2*L3* agreement is oid because it abrogated the right of workers to self-organi"ation and their right to collecti e bargaining. 2etitioners claim that the agreement was not meant merely to suspend the e#isting 2*L-2*L3* CB*, which e#pires on &eptember 8C, +CCC, but also to foreclose any renegotiation or any possibility to forge a new CB* for a decade or up to +CC7. It iolates the %protection to labor) policy laid down by the Constitution. <nder *rticle +.8-* of the Labor Code insofar as representation is concerned, a CB* has a term of fi e years, while the other pro isions, e#cept for representation, may be negotiated not later than three years after the e#ecution. 2etitioners submit that a 5C-year CB* suspension is inordinately long, way beyond the ma#imum statutory life of a CB*, pro ided for in *rticle +.8-*. By agreeing to a 5C-year suspension, 2*L3*, in effect, abdicated the workers= constitutional right to bargain for another CB* at the mandated time. 9e find the argument de oid of merit ((ivera v &spiritu, ' ( )o 1+2247, 1anuar! ,+, ,**,). )B. Is t!ere a %onfli%t between a CBA t!at +rants a 10*#ear oratori" one !and. and Art. (8-*A of t!e Labor Code. on t!e ot!er' E$,lain. on CBA bar+ainin+ on
Law
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The assailed 2*L-2*L3* agreement was the result of oluntary collecti e bargaining negotiations undertaken in the light of the se ere financial situation faced by the employer, with the peculiar and uni(ue intention of not merely promoting industrial peace at 2*L, but pre enting the latter=s closure. 9e find no conflict between said agreement and *rticle +.8-* of the Labor Code. *rticle +.8-* has a two-fold purpose. !ne is to promote industrial stability and

predictability. Inasmuch as the agreement sought to promote industrial peace at 2*L during its rehabilitation, said agreement satisfies the first purpose of *rticle +.8-*. The other is to assign specific timetables wherein negotiations become a matter of right and re(uirement. :othing in *rticle +.8-* prohibits the parties from wai ing or suspending the mandatory timetables and agreeing on the remedies to enforce the same. In the instant case, it was 2*L3*, as the e#clusi e bargaining agent of 2*L=s ground employees that oluntarily entered into the CB* with 2*L. It was also 2*L3* that oluntarily opted for the 5C-year suspension of the CB*. 3ither case was the union=s e#ercise of its right to collecti e bargaining. The right to free collecti e bargaining, after all, includes the right to suspend it ((ivera v &spiritu, ' ( )o 1+2247, 1anuar! ,+, ,**,). @0. Distin+"is! andLor e$,lain t!e followin+ ter s? /12 Dire%t Certifi%ationQ /(2 Certifi%ation Ele%tionQ and /-2 Consent Ele%tion. 4ed-*rbiter certifies that a certain <nion is the e#clusi e collecti e bargaining representati e of the employees of an appropriate bargaining unit without holding of a certification election, but merely on the basis of e idence presented in support of the <nion=s claim that it is the choice of the ma'ority of the employees. &uch e idence may consist of affida its made by a clear ma'ority of the employees stating that they are members of and are supporting the <nion petitioning for direct certification to be their e#clusi e collecti e bargaining representation -2rohibited by law under 3.!. 5550 * certification election is an election ordered by 4ed-*rbiter for the purpose of determining the sole and e#clusi e bargaining agent of the employees in an appropriate bargaining unit. * consent election is an election agreed upon by the parties to determine the issue of ma'ority representation of all workers of an appropriate collecti e bargaining unit not for the purposes of determining the sole and e#clusi e bargaining agent of the employees of the bargaining unit but only for the purpose of administering the e#isting CB* in case of massi e disaffiliation of union members.
LABOR LAW
Dire%t Certifi%ation
Certifi%ation Ele%tion Consent Ele%tion
@1. Can t!e B"rea" of Labor Relations %ertif# a "nion as t!e e$%l"si&e bar+ainin+ re,resentati&e after s!owin+ ,roof of aDorit# re,resentation t!ro"+! "nion e bers!i, %ards wit!o"t %ond"%tin+ an ele%tion' NO. The Bureau of Labor ;elations cannot certify a union as the e#clusi e collecti e bargaining representati e after a showing of proof of ma'ority representation through union membership cards without conducting a certification election. The Labor Code -in *rts. +.G and +.70 pro ides only for a certification election as the mode for determining e#clusi e collecti e bargaining representati e if there is a (uestion on representation in an appropriate bargaining unit. @(. W!en is %onsent ele%tion a bar to a ,etition for %ertifi%ation ele%tion' W!en is it not a bar' 9here a petition for certification election had been filed and upon the intercession of the med-arbiter, the parties agree to hold a consent election, the result thereof shall constitute a bar to the holding of a certification election for one year from the holding of such consent election. Aowe er, where the total number of alid otes cast in a consent election is less than the ma'ority of all the eligible employees in the bargaining unit, there shall be a failure of election. &uch failure will not bar the filing of a petition for the immediate holding of a certification election. 9here no petition for certification election had been filed but the parties themsel es ha e agreed to hold a consent election, the result thereof shall not constitute a bar to another certification election, unless the winning union had been e#tended oluntary recognition. @-. Union I. a le+iti ate labor or+ani3ation filed a ,etition for %ertifi%ation ele%tion d"rin+ t!e freedo ,eriod. Union >. anot!er "nion in t!e sa e %o ,an#. o&ed to dis iss t!e sa e

68
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alle+in+ a on+ ot!ers t!at Union I is %o ,osed of not onl# ran5 and file e ,lo#ees. b"t also of s",er&isor# e ,lo#ees. w!o "nder t!e law. a# not Doin a labor or+ani3ation %o ,osed of ran5 and file e ,lo#ees. W!at is t!e effe%t of s"%! alle+ation ",on t!e ,etition for %ertifi%ation ele%tion' There is no effect. *fter a certificate of registration is issued to a union, its legal personality cannot be sub'ect to a collateral attack. It may be (uestioned only in an independent petition for cancellation in accordance with &ection . of ;ule V, Book IV of the Implementing ;ules of the Labor Code -9a0a!ta! -i0hlands International 'old Clu., Inc vs 9a0a!ta! -i0hlands &mplo!ees <nion;P9'>$ '( )o 14,*** 1anuar! ,,, ,**+). Aa ing attained such status, the petition of the union stands unless the registration of the union is cancelled in accordance with the aforementioned rule. The infirmity in the membership of the respondent union can be remedied in the %preelection conference) thru the e#clusion-inclusion proceedings. 1urthermore, the status of being a super isory employee does not by itself dis(ualify an employee from 'oining a labor organi"ation composed of rank and file employee. * super isory employee to be dis(ualified must possess the powers similar to that of a managerial employee such as the complete discretion to decide on matters without being under the control of or sub'ect to the re iew of some other superior. @6. ;a# an e ,lo#ee w!o was i ,ro,erl# laid off be entitled to &ote in a %ertifi%ation ele%tion' >ES. The employees who ha e been improperly laid off but who ha e a present, unabandoned right to an e#pectation of reemployment, are eligible to ote in certification election. Thus, if the dismissal is under (uestion, whereby a case of illegal dismissal andQ or <L2 was filed, the employees could and should still (ualify to ote. (Phil =ruits G Ee0eta.les Industries, Inc vs 9orres) @8. Does a de%ision in a %ertifi%ation ele%tion %ase re+ardin+ t!e e$isten%e of an e ,lo#er* e ,lo#ee relations!i, fore%lose all f"rt!er dis,"tes between t!e ,arties as to t!e e$isten%e or non*e$isten%e of s"%! relations!i,' NO. Aowe er final it may become, the decision in a certification election case, by the ery nature of such proceeding, is not such as to foreclose all further dispute as to the e#istence, or non-e#istence of an employer-employee relationship. It is established doctrine that for res adjudicata to apply, the following re(uisites must concurH -50 the former 'udgment or order must be final$ -+0 the court which rendered said 'udgment or order must ha e 'urisdiction o er the sub'ect matter and the parties$ -80 said 'udgment or order must be on the merits$ and -E0 there must be between the first and second actions identity of parties, sub'ect matter and cause of action. Clearly, implicit in these re(uisites is that the action or proceedings in which is issued the %prior Dudgment) that would operate in bar of a subse(uent action between the same parties for the same cause, be ad ersarial, or contentious, as distinguished from an e" parte hearing or proceeding of which the party seeking relief has gi en legal notice to the other party and afforded the latter an opportunity to contest it, and a certification case is not such a proceeding. %* certification proceeding is not a Slitigation= in the sense in which this term is commonly understood, but a mere in estigation of a non-ad ersary, fact-finding character, in which the in estigating agency plays the part of a disinterested in estigator seeking merely to ascertain the desires of the employees as to the matter of their representation. The court en'oys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representati es by the employees (Sandoval Ship!ards vs Prisco Pepito, ' ( )o 14+4,8, 1une ,2, ,**1).) @9. W!at is t!e stat"tor# ,oli%# on %ertifi%ation ele%tions' <ow does t!e law treat ana+e entCs atte ,ts to t!wart initiati&es to !old %ertifi%ation ele%tion'
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The fact that 2IC!2 oiced out its ob'ection to the holding of certification election, despite numerous opportunities to entilate the same, only after respondent <ndersecretary of Labor affirmed the holding thereof, simply bolstered the public respondentsM conclusion that 2IC!2 raised the issue merely to pre ent and thwart the concerned section heads and super isory employees from e#ercising a right granted them by law. :eedless to stress, no obstacle must be placed to the holding of certification elections, for it is a statutory policy that should not be circum ented (PIC$P vs %a0uesma, ' ( )o 1*17+8, April 1,, ,***). @). W!at is t!e Do%trine of Union ;ono,ol#' It means that once a union is chosen as the collecti e bargaining agent of an appropriate bargaining unit through Certification election, it alone, can collecti ely bargain with management to the e#clusion of other competing unions. @@. Is t!ere a &iolation of t!e CBACs Fno stri5e no lo%5o"tG ,ro&ision w!en wor5ers Doin a de onstration a+ainst ,oli%e ab"ses' NO. The demonstration held by workers would be purely and completely an e#ercise of their freedom of e#pression in general and of their right of assembly and of petition for redress of grie ances in particular before the appropriate go ernment agency. To regard the demonstration against police officers, not against the employer as e idence of bad faith in collecti e bargaining stretches unduly the compass of the collecti e bargaining agreement (Phil ?loomin0 /ills &mplo!ees $r0 vs Phil ?loomin0 /ills Co , Inc 1une 2, 197+). @B. W!at is a "nion re%o+nition stri5e' * union recognition strike is calculated to compel the employer to recogni"e one=s union and not the other contending group, as the employees= bargaining representati e despite the striking union=s doubtful ma'ority status to merit oluntary recognition and lack of formal certification as the e#clusi e representati e in the bargaining unit. B0. Is t!e pari delicto r"le a,,li%able in stri5es and lo%5o"ts' >ES. 9hen the parties are in pari delicto I the employees ha ing staged an illegal strike and the employer ha ing declared an illegal lockout I such situation warrants the restoration of the status (uo ante and bringing back the parties to their respecti e positions before the illegal strike and illegal lockout through the reinstatement, without backwages, of the dismissed employees. (Philippine Inter;=ashion, Inc vs )%(C, ' ( )o 29847, $cto.er 18, 198,). B1. Wo"ld t!e UnionCs fail"re to s"b it t!e STRIAE MOTE RESULTS to t!e NC;B %a"se t!e ille+alit# of t!e stri5e' E$,lain. >ES. The &upreme Court said so in the case of Samahan n0 /an00a0a7a sa /olde4 v )%(C, ' ( )o 119487, =e.ruar! 1, ,***. It has been shown that the results of the strikeote were ne er forwarded to the :C4B, as admitted by petitioners themsel es and as attested to by a Certification of :on-&ubmission of &trike Vote issued by the :C4B. There is thus no need for additional e idence on the matter, as it would not change the fact that the results of the strikeote were not submitted to the :C4B. 9ithout the submission of the results of the strikeote, the strike was illegal, pursuant to *rticle +GE of the Labor Code B(. W!at is t!e le+al i ,li%ation of def#in+ t!e RETURN TO WORA ORDER in a stri5e %ase w!i%! is "nder ass" ,tion of D"risdi%tion' In the case of 9ele"un@en Semiconductors &mplo!ees <nion ==> v CA, ' ( )o 14+*1+;14, #ecem.er 18, ,***. the &upreme Court held that the strike of the <nion cannot be iewed as anything but illegal for ha ing been staged in open and knowing defiance of the assumption and return-to-work orders. The necessary conse(uence thereof are also detailed by the &upreme Court in its arious rulings. In /arcopper /inin0 Corp v ?rillantes (,24 SC(A 292), the Aigh Tribunal stated in no uncertain terms that -
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/by staging a stri,e after the assumption of jurisdiction or certification for arbitration, wor,ers forfeited their right to0 be readmitted to wor,, having abandoned their employment, and so could be validly replaced%1 Viewed in the light of the foregoing, we ha e no alternati e but to confirm the loss of employment status of all those who participated in the strike in defiance of the assumption order dated 7 &eptember 566. and did not report back to work as directed in the !rder of 5G &eptember 566.. B-. Define t!e followin+? a. Constr"%ti&e resi+nation Constructi e ;esignation is otherwise known as abandonment. It is present when the following re(uisites concurH -50 The worker has no intention to return to work, and -+0 The worker has manifested by o ert acts such an intention. b. Constr"%ti&e retren%! ent
*n employee whose number of working days was reduced to 'ust two -+0 days a week due to the financial losses suffered by the employer=s business, and who was rotated in such a way that the number of working days had been substantially reduced for more than si# months, and considering further that the business was ultimately closed and sold off, the &upreme Court upheld the ruling of the :L;C that the employee was thereby constructi ely dismissed or retrenched from employment (International -ard7are, Inc vs )%(C, et al , ' ( )o 8*77*, Au0ust 1*, 1989). B6. Is it wit!in t!e D"risdi%tion of t!e Labor Arbiter or t!e NLRC to ,ass D"d+ ent on t!e so"ndness of t!e ana+e ent de%ision to de%lare t!at a ,osition is no lon+er ne%essar#' W!#' &imilarly, in >iltshire =ile Co , Inc v )%(C petitioner company effected some changes in its organi"ation by abolishing the position of &ales 4anager and simply adding the duties pre iously discharged by it to the duties of the Beneral 4anager to whom the &ales 4anager used to report. In that case, we held that the characteri"ation of pri ate respondent=s ser ices as no longer necessary or sustainable, and therefore properly terminable, was an e#ercise of business 'udgment on the part of petitioner company. The wisdom or soundness of such characteri"ation or decision is not sub'ect to discretionary re iew on the part of the Labor *rbiter or of the :L;C so long as no iolation of law or arbitrary and malicious action is indicated (Ismael Santos v CA, ' ( )o 141947, 1ul! 2, 1997). B8. W!at are t!e +"idelines for t!e %orre%t inter,retation of t!e DOCTRINE O4 LOSS O4 CON4IDENCE' E$,lain. The Court, howe er, is cogni"ant of the fact that in numerous dismissal cases, loss of trust and confidence has been indiscriminately used by employers to 'ustify almost e ery instance of termination and as a defense against claims of arbitrary dismissal. In the case of 'eneral ?an@ and 9rust Compan! vs Court o" Appeals, 1+2 SC(A 289 the Court came up with the following guidelines for the application of the doctrine of loss of confidenceH -a0 loss of confidence which should not be simulated$ -b0 it should not be used as a subterfuge for causes which are improper, illegal or un'ustified$ -c0 it should not be arbitrarily asserted in the face of o erwhelming e idence to the contrary$ and -d0 it must be genuine, not a mere afterthought to 'ustify earlier action taken in bad faith. Aence, while an employer is at liberty to dismiss an employee for loss of trust and confidence, he cannot use the same to feign what would otherwise be an illegal dismissal (Concorde -otel v Court o" Appeals, ' ( )o 144*89, Au0ust 9, ,**1).
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B9. Is t!e one* ont! noti%e for se,aration for a"t!ori3ed %a"ses alwa#s re:"ired' NO. If an employee consented to his retrenchment or oluntarily applied for retrenchment with the employer due to the installation of labor sa ing de ices, redundancy, closure or cessation of operation or to pre ent financial losses to the business of the employer, the re(uired pre ious notice to the @!L3 is not necessary as the employee thereby acknowledged the e#istence of a alid cause for termination of his employment (Ismael E Santos vs CA, ' ( )o 141947 1ul! 2, ,**1). B). Is d"e ,ro%ess re:"ired before an e ,lo#ee a# be de oted'
LABOR LAW
>ES. @emotions, like dismissals, affect the employment of a worker whose right to continued employment, under the same terms and conditions, is also protected by law. 4oreo er, considering that demotion is, like dismissal, also a puniti e action, the employer being demoted should be gi en a chance to contest the same (%eonardo v )%(C '( )o 1,2+*+, 1une 18, ,***). B@. Is ;ISRE7RESENTATION of essential fa%ts eno"+! to &itiate t!e &ol"ntariness of a RESIHNATION' E$,lain. ;espondent companyMs lack of candor and good faith in informing B*;T<I: that he was being terminated due to a alid retrenchment and not because it sought to a oid compliance with the mandated wage increases amounted to a deception which led B*;T<I: to the mistaken belief that that there was legal ground for retrenchment and prompted him to ac(uiesce to his termination and sign the (uitclaim. 2etitioners correctly point out that such an act has been declared by this Court in the case of 9rendline &mplo!ees Association;Southern Philippines =ederation o" %a.or vs )%(C. as tainted with bad faith and should not be countenanced as being pre'udicial and oppressi e to labor.? Verily, had the respondent company not misled B*;T<I: into belie ing that there was a ground to retrench, it is not difficult to belie e that he would ha e thought twice before signing the (uitclaim inasmuch there was no reason for the termination of his employment. Contrary to the assumption of both the Court of *ppeals and the oluntary arbitrator, the mere fact that B*;T<I: was not physically coerced or intimidated does not necessarily imply that he freely or oluntarily consented to the terms of the (uitclaim. <nder *rticle 588C of the Ci il Code, consent may be itiated not only through intimidation or iolence but also by mistake, undue influence or fraud (?arJuin v Philippine Carpet /nu"acturin0 Corp , ' ( )o 14*,89, Septem.er 14, ,***). BB. a. Distin+"is! between ba%5 wa+es. "n,aid wa+es. and se,aration ,a#.
Backwages is the relief gi en to an employee to compensate him for lost earnings during the period of his dismissal. <npaid 9ages are wages earned prior to the illegal dismissal but are not yet paid to the employee.

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&eparation 2ay is monetary amount intended to pro ide the employee money during the period in which he will be looking for another employment. b.W!at e%ono i% %o ,onents %onstit"te ba%5wa+es for a ran5 and file e ,lo#ee' Are t!ese %o ,onents e:"all# a,,li%able to a ana+erial e ,lo#ee' The Labor Code -*rt. +,60 pro ides that an employee who is un'ustly dismissed from work is entitled to reinstatement and also to his full backwages, inclusi e of allowances, and to his other benefits or their monetary e(ui alent computed from the time his compensation was withheld from him up to his actual reinstatement. *n employee is entitled to all the abo e benefit regardless if he is a rank and file employee or a managerial employee. Aowe er, backwages may also include the 58th month pay which is paid to rank and file employees, as well as benefits arising from the CB* gi en only to the employees in
College of Law LAW
San Beda LABOR
the bargaining unit. 4anagerial employees cannot be gi en the same since they are ineligible to 'oin the labor organi"ation. 100. Does Re,"bli% A%t No. )961. t!e Retire ent Law. a,,l# to e ,lo#ees %o&ered wit! a &alid retire ent ,lan' Can it be +i&en a retroa%ti&e effe%t' Oes. The said law intends to gi e the minimum retirement benefits to employees not entitled thereto under collecti e bargaining and other agreements. Its co erage applies to establishments with e#isting collecti e bargaining, or other agreements or oluntary retirement plans whose benefits are less than those prescribed under the pro iso in (uestion. The said law is a curati e social legislation, which, by their nature, may be gi en retroacti e effect, unless it will impair ested rights. It has a retroacti e effect to include in its co erage the employees= ser ices to an employer rendered prior to its effecti ity. It applies to employees in the employee of employers at the time the law took effect and who are eligible to benefits under that statute (/%I< vs )%(C, ' ( )o 14187+, $cto.er 17, ,**1).
4REQUENTL> ASAED QUESTIONS

TO7IC? LABORQ SOCIAL =USTICE ;a# so%ial D"sti%e as a +"idin+ ,rin%i,le in labor law be so "sed b# t!e %o"rts in s# ,at!# wit! t!e wor5in+ an if it %ollides wit! t!e e:"al ,rote%tion %la"se of t!e Constit"tion' E$,lain. S"++ested Answer? Oes. The &tate is bound under the Constitution to afford full protection to Labor$ and when conflicting interests collide and they are to be weighed on the scales of social 'ustice, the law should accord more sympathy and compassion to the less pri ileged working man (=uentes v )%(C, ,88 SC(A ,4, 1997). Aowe er, it should be borne in mind that social 'ustice ceases to be an effecti e instrument for the %e(uali"ation of the social and economic forces) by the &tate when it is used to shield wrongdoing (CoraFan 1amer v )%(C, ,78 SC(A 8+,, 1997). Alternati&e Answer? :o. &ocial 'ustice as a guiding principle in law may not be used by the courts if it collides with the e(ual protection clause of the Constitution. &ocial 'ustice is not a magic wand applicable in all circumstances. :ot all labor cases may be automatically decided in fa or of the worker. 4anagement also has rights which are entitled to recognition and protection$ 'ustice must be dispensed according to facts and the law$ and social 'ustice is not designed to destroy or oppress the employer. Anot!er Alternati&e Answer? &ocial 'ustice as a guiding principle in Labor Law can be implemented side by side with the e(ual protection clause of the Constitution. In the implementation of the principle of social 'ustice, the Constitution commands that the &tate shall afford full protection to labor. Thus, Labor Law may be pro-labor in the sense that labor is gi en certain benefits not gi en to management. But this is not necessarily iolati e of the e(ual protection clause of the Constitution because said clause allows reasonable classification. TO7IC? CONSTITUTIONAL 7ROMISIONS RELATED TO LABOR LAW W!at are t!e salient feat"res of t!e ,rote%tion to labor ,ro&ision of t!e Constit"tion' The salient features of the protection to labor pro isions of the Constitution -*rticle PIII, &ection 80 are as followsH
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LABOR LAW
*"tent of Protection - 1ull protection to labor$ 'overage of Protection - Local and o erseas, organi"ed and unorgani"ed$ *mployment Policy - 1ull employment and e(uality of employment opportunities for all. 2uarantees .nionisms and 3ethod of 4etermination 'onditions of *mployment - ;ight of all workers to self-organi"ation, collecti e bargaining and negotiations. 'oncerted Activities - ;ight to engage in peaceful concerted acti ities, including the right to strike in accordance with law. +or,ing 'onditions - ;ight to security of tenure, humane conditions of work and a li ing wage. 4ecision 3a,ing Processes - ;ight to participate in policy and decision making process affecting their rights and benefits as way to pro ide by law. Share in 5ruits of Production - ;ecognition of right of labor to its 'ust share in fruits of production. ALTERNATIME ANSWER? The Constitution in -*rticle PIII, &ection 80 pro ides that the &tate shall afford protection to labor, local and o erseas, organi"ed unorgani"ed. The &tate shall afford protection to labor by promoting full employment and e(uality of employment opportunities for all. 9orkers are entitled to security of tenure, humane conditions of work and a li ing wage. The &tate shall guarantee the right of all workers to self-organi"ation, collecti e bargaining and negotiations, and peaceful concerted acti ities, including the right to strike, in accordance by law. 9orkers shall also participate in policy and decision-making processes affecting their rights and benefits as may be pro ided by law. The &tate shall promote the principle of shared responsibility between workers and employers and the preferential use of oluntary modes in setting labor disputes, including conciliation, and shall enforce mutual compliance therewith to foster industrial peace. The &tate shall regulate the relations between workers and employers recogni"ing the right to its 'ust share in the fruits of production and the right of enterprises to reasonable returns on in estments, and to e#pansion and growth.
1. LABOR STANDARDS
9$PICK &/P%$L&(;&/P%$L&& (&%A9I$)S-IP SU;;AR> O4 T<E RULE? 9hat determines employer-employee relationship is the power of the employer to control the employee regarding the manner of how the work should be done. Na,ato C"sto * ade a5e s!oes to %"sto er s,e%ifi%ations and re,aired t!e . As a ser&i%e to %"sto ers. a s!oe s!ine stand was o,erated on its ,re ises. T!ere were 10 s!oe s!ine bo#s at t!e stand. T!e# owned t!eir s!oe s!ine bo$es wit! %leanin+ a+ent ,olis!. br"s!es. and ra+s. Wal5*in %"sto ers willin+ to wait were led b# t!e s!oe s!ine bo#s to a seat at t!e stand w!ere !e waited w!ile t!e bo# as5ed t!e %"sto er to ,a# to t!e re%e,tionist. C"sto ers not willin+ to wait left t!e s!oes wit! t!e standCs re%e,tionist w!o +a&e a re%ei,t wit! t!e ,ri%e for t!e ser&i%e and ,i%5*", date and ti e indi%ated. T!e bo#s were free to +et s!oes to be s!ined for t!e re%e,tionist w!en t!ere were no waitin+ wal5*ins. 4or ea%! ,air s!ined. t!e bo#s +ot ar5ers %orres,ondin+ to t!e ,ri%e for t!eir ser&i%e. NaCSICs staff did not interfere wit!. nor s",er&ise. !ow t!e bo#s went abo"t t!eir tas5s. At da#Cs end. t!e ar5ers !eld b# ea%! bo# were tallied and ,aid for. T!e bo#s si+ned a re%ei,t to a%5nowled+e f"ll ,a# ent for wor5 done. A labor federation or+ani3ed NaCSI and filed a ,etition for a %onsent ele%tion. T!e bo#s. s# ,at!i3in+ wit! t!e wor5ers. Doined t!e "nion. At t!e ,re*ele%tion %onferen%e. t!e law#er for NaCSI o&ed to e$%l"de t!e bo#s as &oters. As ;ed*Arbiter !andlin+ t!e %ase. r"le on t!e obDe%tion. Wo"ld #o" r"lin+ be different if in t!is %ase. NaCSI ,ro&ided t!e bo#s wit! t!e s!oe s!ine bo$es and t!eir %ontents' E$,lain.

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*s 4ed-arbiter, I will rule that the shoe shine boys should be e#cluded as oters in the consent election. The shoe shine boys are not employees of UaC&I and thus could not be considered as employees belonging to bargaining unit who will designate or select a bargaining representati e. They are not employees of UaC&I because according to the gi en facts, they are not under the control of UaC&I which is an essential element for the e#istence of employer-employee relationship. In the statement of facts, it is said that %UaC&I=s staff did not interfere with, nor super ise how the boys went about their task.) 4y ruling will not be different e en if UaC&I pro ided the boys with the shoe shine bo#es and their contents. UaC&I, by this act, is not yet e#ercising control that is determinati e of the e#istence or non-e#istence of control o er them. It is the e#istence of employer-employee relationship. 9$PICK /A)A'&/&)9 P(&($'A9IE& SU;;AR> O4 T<E RULE? The management has the right to use its discretion and 'udgment in the determination of policies regarding the aspects of employment. Contracting out ser ices or functions being performed by union members becomes illegal only when it interferes with, restrains or coerces employees in the e#ercise of their right to self-organi"ation. <arbor Miew <otel !as an e$istin+ Colle%ti&e Bar+ainin+ A+ree ent /CBA2 wit! t!e "nion of ran5*and*file e ,lo#ees %onsistin+. a on+ ot!ers. of bartenders. waiters. roo bo#s. !o"se en and stewards. D"rin+ t!e lifeti e of t!e CBA. <arbor Miew <otel. for reasons of e%ono # and effi%ien%#. de%ided to abolis! t!e ,osition of !o"se en and stewards w!o do t!e %leanin+ of t!e !otelCs ,"bli% areas. O&er t!e ,rotest of t!e Union. t!e <otel %ontra%ted o"t t!e afore entioned Dob to t!e Cit# Ser&i%e =anitorial Co ,an#. a .ona"ide inde,endent %ontra%tor w!i%! !as a s"bstantial %a,ital in t!e for of Danitorial tools. e:"i, ents. a%!ineries and %o ,etent an,ower. Is t!e a%tion of t!e <arbor Miew <otel le+al and &alid' The action of Aarbor View Aotel is legal and alid. The alid e#ercise of management prerogati e, discretion and 'udgment encompasses all aspects of employment, including the hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, super ision of workers, working regulations, transfer of employees, work super ision, lay-off of workers, and discipline, dismissal and recall of workers, e#cept as pro ided for, or limited by special laws. Company policies and regulations are, unless shown to be gross oppressi e or contrary to law, generally binding and alid on the parties and must be complied with until finally re ised or amended unilaterally or preferably through negotiation or by competent authority - San 3iguel 'orporation vs% .baldo and 'ru$, 61! S'RA 6789% ALTERNATIME ANSWER? The action of the Aarbor View Aotel is legal and alid. Contracting out ser ices or functions being performed by union members is not illegal per se. In fact, it is the prerogati e of management to adopt cost-sa ing measures to ensure economy and efficiency. Contracting out ser ices or functions being performed by union members becomes illegal only when it interferes with, restrains or coerces employees in the e#ercise of their right to self-organi"ations. The action of Aarbor View Aotel would, at first glance, appear to be an unfair labor practice under *rticle +E7 -c0 e.g. %to contract out ser ices or functions being performed by union members if such will interfere with, restrain or coerce employees in the e#ercises of their right to self-organi"ation.) Considering, howe er, that in the case at bar, there is no showing that the hotel=s action is a alid e#ercises of its management prerogati es and the right to make business 'udgments in accordance with law. 9$PICK C$)9(AC9$(M >A'&S SU;;AR> O4 T<E RULE? * labor-only contract is a contract between an employer and a person who supplies workers and does not ha e substantial capital or in estment in the form of tools,
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San Beda Colle+e of

e(uipment, machineries, work premises. The employer who contracts the ser ices of the labor-only contractor is directly liable to the employees of the labor-only contractor as if such employees had been directly employed by the employer. In an independent contract, the employer who contracted out the 'ob is 'ointly and se erally liable with the contractor only to the e#tent of the workperformed under the contract. *n award of backwages is gi en to an employee who is un'ustly dismissed. !n the other hand, an award of unpaid wages is gi en to an employee who has not been paid his salaries or wages for ser ices actually rendered. The cause of action here is non-payment of wages or salaries. /a2 W!at is a Flabor*onl#G %ontra%t' %Labor-only) contract is a contract between an employer and a person who supplies workers and does not ha e substantial capital or in estment in the form of tools, e(uipments, machineries, work premises, among others, and the workers recruited and placed by such person are perfoming acti ities which are directly related to the principal business of such employer. -*rt. 5CG, Labor Code0
LABOR LAW
(b) Distin+"is! t!e liabilities of an e ,lo#er w!o en+a+es t!e ser&i%es of a .onaN"ide
Finde,endent %ontra%torG fro one w!o en+a+es a Flabor*onl#G %ontra%tor' * person who engages the ser ices of a bona:fide % independent contractor) for the performance of any work, task, 'ob or pro'ect is the indirect employer of the employees who ha e been hired by the independent contractor to perform said work, task, 'ob or pro'ect. In the e ent that the independent contractor fails to pay the wages of his employees, an indirect employer, in the same manner and e#tent that he is liable to employees directly employed by him, is 'ointly and se erally liable with the independent contractor to the employees of the latter to the e#tent of the work performed under the contract. *s for the person who engages the ser ices of a %labor only) contractor, the latter is considered merely as an agent of the former who shall be responsible to the workers hired by the %labor only) contractor in the same manner and e#tent as if the directly employed such workers. ALTERNATIME ANSWER? *n employer who engages the ser ices of a bona fide % independent contractor) is solidarily liable with his contractor or sub-contractor only for non-payment or under-payment of wages and other labor standards pro isions of the Labor Code, whereas an employer that it normally grants to its regular or direct employees. *n employer who deals with a bona-fide independent contractor shall only be subsidiary liable, if the contractor or sub-contractor fails to pay the wages to the workers in accordance with the Labor Code. <pon the other hand, an employer who deals with a %labor-only) contractor shall be primarily responsible to the workers in the same manner and e#tent as if the latter were directly employed by him. -*rt 5CG-5C,, Labor Code0 /%2 Distin+"is! between an award for ba%5 wa+es and an award for "n,aid wa+es. *n award for backwages is to compensate an employee who has been illegally dismissed, for the wages, allowances and other benefits or their monetary e(ui alent, which said employee did not recei e from the time he was illegally dismissed up to the time of his actual reinstatement. !n the other hand, an award for unpaid wages is for an employee who has actually worked but has not been paid the wages he is entitled to recei e for such work done. -*rts. +,6 and 6, -10, Labor Code0. ALTERNATIME ANSWER? *n award of backwages is gi en to an employee who is un'ustly dismissed. !n the other hand, an award of unpaid wages is gi en to an employee who has not been paid his salaries or wages for ser ices actually rendered. The cause of action here is non-payment of wages or salaries. ;2eneral <aptist <ible 'ollege vs% &=R' 617 S'RA >79% 9$PICK $E&(9I/& PAL

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College of Law LAW
San Beda LABOR
SU;;AR> O4 T<E RULE? <ndertime work on any particular day shall not be offset by o ertime work on any other day. Danilo 4lores a,,lied for t!e ,osition of dri&er in t!e otor,ool of Hold Co ,an#. a "ltinational %or,oration. Danilo was infor ed t!at !e wo"ld fre:"entl# be wor5in+ o&erti e as !e wo"ld !a&e to dri&e for t!e %o ,an#Cs e$e%"ti&es e&en be#ond t!e ordinar# ei+!t*!o"r wor5 da#. <e was ,ro&ided wit! a %ontra%t of e ,lo# ent w!erein !e wo"ld be ,aid a ont!l# rate e:"i&alent to -8 ti es !is dail# wa+e. re+"lar si%5 and &a%ation lea&es. 8 da#*lea&e wit! ,a# e&er# ont! and ti e off wit! ,a# w!en t!e %o ,an#Cs e$e%"ti&es "sin+ t!e %ars do not need DaniloCs ser&i%e for ore t!an ei+!t !o"rs a da#. in lie" of o&erti e. Are t!e abo&e ,ro&isions of t!e %ontra%t of e ,lo# ent in %onfor it# wit!. or &iolati&e of. t!e law' 3#cept for the pro ision that @anilo shall ha e time off with pay when the company=s e#ecuti es using the cars do not need @anilo=s ser ice for more than eight hours a day, in lieu of o ertime, the pro isions of the contract of employment of @anilo are not iolati e of any labor law because the instead impro e upon the present pro isions of pertinent labor laws. Thus, the monthly rate e(ui alent to 8. times the daily wage may be sufficient to include o ertime pay. There is no labor law re(uiring the payment of sick and acation lea es e#cept for a fi eday ser ice incenti e lea e in the Labor Code. The fi e-day lea e with pay e ery month has no counterpart in Labor Law and is ery generous. *s for the pro ision in @anilo=s contract of employment that he shall recei e time off with pay in lieu of o ertime, this iolates the pro ision of the Labor Code which states that undertime work on any particular day shall not be offset by o ertime work on any other day. 2ermission gi en to the employer to go on lea e on some other day of the week shall not e#empt the employer from paying additional compensation re(uired by the Labor Code. 9$PICK -$<S&-&%P&(SM >A'&S SU;;AR> O4 T<E RULE? :o house helper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than pro ided by law for agricultural or nonagricultural workers. * family dri er who dri es the family an to fetch merchandise from suppliers and deli ers the same to bouti(ue in a mall owned by the family for whom he works should be paid the minimum daily wage of a dri er in a commercial establishment.
San Beda Colle+e of
T!e wee5l# wor5 s%!ed"le of a dri&er is as follows? /onda!, >ednesda!, and =rida! R Dri&e t!e fa il# %ar to brin+ t!e and fet%! t!e %!ildren to and fro s%!ool. 9uesda!, 9hursda!, and Saturda! R Dri&e t!e fa il# &an to fet%! er%!andise fro s",,liers and deli&er t!e sa e to a bo"ti:"e in a all owned b# t!e fa il#. (a) Is t!e dri&er a !o"se !el,er'
Law
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The dri er is a house helper. * person is a house helper or is engaged in domestic or household ser ice if heQshe renders ser ices in the employer=s home which are usually necessary or desirable to the maintenance and en'oyment thereof and which includes ministering to the personal comfort and con enience of the members of the employer=s household including the ser ices of family dri ers. (b) T!e sa e dri&er %lai s t!at for wor5 ,erfor ed on T"esda#. T!"rsda# and Sat"rda#. !e s!o"ld be ,aid to t!e ini " dail# wa+e of a dri&er of %o er%ial establis! ent. Is t!e %lai of t!e dri&er &alid' * family dri er who dri es the family an to fetch merchandise from suppliers and deli ers the same to bouti(ue in a mall owned by the family for whom he works should be paid the minimum daily wage of a dri e in a commercial establishment.

The Labor Code -in *rticle 5E80 pro ides that no house helper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than pro ided by law for agricultural or non-agricultural workers. 9$PICK (&'<%A( &/P%$L&&S A)# P($1&C9 &/P%$L&&S SU;;AR> O4 T<E RULE? *n employment shall be deemed to be regular where the employee has been engaged to perform acti ities which are usually necessary or desirable in the usual business or trade of the employer, e#cept where the employment has been fi#ed for a specific pro'ect or undertaking the completion of which has been determined at the time of the engagement of the employee. A %onstr"%tion +ro", !ired En+ineer FAG as a 7roDe%t En+ineer in 1B@). <e was assi+ned to fi&e /82 Contra%ts of E ,lo# ent !e si+ned. s,e%ified t!e na e of t!e ,roDe%t. its d"ration and t!e te ,orar#*,roDe%t nat"re of t!e en+a+e ent of !is ser&i%es. U,on %o ,letion of t!e fift! ,roDe%t in A"+"st 1BB@. !is ser&i%es were ter inated. <e wor5ed for a total of ten /102 #ears /1B@)*1BB@2 in t!e fi&e se,arate ,roDe%ts. Si$ ont!s after !is se,aration. t!e Hro", won a bid for a lar+e %onstr"%tion ,roDe%t. T!e Hro", did not en+a+e t!e ser&i%es of En+ineer FAG as a 7roDe%t En+ineer for t!is new ,roDe%tQ instead. it en+a+ed t!e ser&i%es of En+ineer FB.G En+ineer FAG %lai s t!at b# &irt"e of t!e nat"re of !is f"n%tions. i.e.. En+ineer in a Constr"%tion Hro",. and !is lon+ #ears of ser&i%e !e !ad rendered to t!e Hro",. !e is a lon+ #ears of ser&i%e !e !ad rendered to t!e Hro",. !e is a re+"lar e ,lo#ee and not a ,roDe%t en+ineer at t!e ti e !e was first !ired. 4"rt!er ore. t!e !irin+ of En+ineer FBG s!owed t!at t!ere is a %ontin"in+ need for !is ser&i%es. Is t!e %lai of En+ineer FAG %orre%t' The claim of 3ngineer %*) that he is a regular employee and not a pro'ect employee is not correct. The Labor Code pro idesH *rt. +7C. ;egular and casual employment. - *n employment shall be deemed to be regular where the employee has been engaged to perform acti ities which are usually necessary or desirable in the usual business or trade of the employer, e#cept where the employment has been fi#ed for a specific pro'ect or undertaking the completion of which has been determined at the time of the engagement of the employee. In all the fi e -.0 successi e contracts of employment of 3ngineer %*) the name of the pro'ect, its duration, and the temporary pro'ect nature of the engagement of his ser ices are clearly stated$ hence, 3ngineer %*) falls within the e#emption of *rt. +7C. The fact that the petitioners worked for se eral pro'ects of pri ate respondent company is no basis to consider them as regular employees. By the ery nature of their employee=s business, they will always remain pro'ect employees regardless of the number of pro'ects in which they ha e worked (3anansag v% &=R', 61! S'RA ?66, 17789 2ro'ect employees are not considered regular employees, their ser ices, being needed only when there are pro'ects to be undertaken. The rationale for this rule is that if a pro'ect has already been completed, it would be un'ust to re(uire the employer to maintain them in the payroll while they are doing absolutely nothing e#cept waiting for another pro'ect ;4e @campo v% &=R', 1!A S'RA 8A1, 177B9. ALTERNATIME ANSWER? The claim of 3ngineer %*) is not correct. The fact that he has been working for Construction Broup for a total of ten -5C0 years does not make him a regular employee when it is ery clear from the Contracts of 3mployment that he signed that he has always been engaged as a pro'ect employee. The tenure of pro'ect employee is co-terminus with the pro'ect in connection with which his ser ices were engaged. Thus, after the end of the pro'ect, the employer-employee relationship ceases to e#ist. &uch pro'ect employee has no legal rights to insist that the Construction Broup for a subse(uent pro'ect of said Broup should employ him. 9$PICK -$<(S >$(O&#
LABOR LAW

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College of Law LAW
San Beda LABOR
SU;;AR> O4 RULE? *n employee who is re(uired to remain on call in the employer=s premises or so close thereto that he cannot use the time effecti ely and gainfully for his own purpose shall be considered as working while on call. *n employee who is not re(uired to lea e word at his home or with company officials where he may be reached is not working while on call. Lito A"lan+5"lan+ and Bon+ Uron+s"lon+ are e ,lo#ed as tr"%5 dri&ers of Line ;o&ers. In%. Us"all#. Lito is re:"ired b# t!e ,ersonnel ana+er to D"st sta# at t!e !ead offi%e after offi%e !o"rs be%a"se !e %o"ld be %alled to dri&e t!e tr"%5s. W!ile at t!e !ead offi%e. Lito erel# waits in t!e ana+erCs re%e,tion roo . On t!e ot!er !and. Bon+ is allowed to +o !o e after offi%e !o"rs b"t is re:"ired to 5ee, !is %ell"lar ,!one on so t!at !e %o"ld be %onta%ted w!ene&er !is ser&i%es as dri&er be%o e ne%essar#. Wo"ld t!e !o"rs t!at Lito and Bon+ are on %all be %onsidered %o ,ensable wor5in+ !o"rs' The hours of Lito and Bong while on call can be considered compensable hours. The applicable rule isH % *n employee who is re(uired to remain on call in the employer=s premises or so close thereto that he cannot use the time effecti ely and gainfully for his own purpose shall be considered as working while on call. *n employee who is not re(uired to lea e word at his home or with company officials where he may be reached is not working while on call.) Aere Bong is re(uired to stay at the office after office hours so he could be called to dri e the trucks of the Company. *s for Bong, he is re(uired to keep his cellular phone so that he could be contacted whene er his ser ices as dri er as needed. Thus, the waiting time of Lito and Bong should be considered as compensable hours. )oteK It could .e ar0ued that in the case o" ?on0 7ho is not reJuired to sta! in the o""ice .ut is allo7ed to 0o home, i" he is not actuall! as@ed .! cellular phone to report to the o""ice to drive a car, he can use his time e""ectivel! and 0ain"ull! to his o7n purpose, thus, the time that he is at home ma! mean that the! are not compensa.le hours 9$PICK 1$? C$)9(AC9I)' SU;;AR> O4 T<E RULE? There is %'ob contracting) where -50 the contractor carries on an independent business and undertakes the contract work on his own account, under his own responsibility according to his own manner and method, free form the control and direction of his employer or principal in all matters connected with the performance of the work e#cept as to the results thereof$ and -+0 the contractor has substantial capital or in estment in the form of tools, e(uipment, machineries, work premises and other materials which are necessary in the conduct of the business ;=im v &=R', 6B6 S'RA >A ,17719. Sta. ;oni%a 7l#wood Cor,oration entered into a %ontra%t wit! Arnold for t!e illin+ of l" ber as well as t!e !a"lin+ of waste wood ,rod"%ts. T!e Co ,an# ,ro&ided t!e e:"i, ent and tools be%a"se Arnold !ad neit!er tools and e:"i, ent nor %a,ital for t!e Dob. Arnold. on t!e ot!er !and. !ired !is friends. relati&es and nei+!bors for t!e Dob. T!eir wa+es were ,aid b# Sta. ;oni%a 7l#wood Cor,oration to Arnold. based on t!eir ,rod"%tion or t!e n" ber of wor5ers and t!e ti e "sed in %ertain areas of wor5. All wor5 a%ti&ities and s%!ed"les were fi$ed b# t!e %o ,an#' Is *rnold a 'ob contractorV 3#plain briefly. No. In two cases decided by the &upreme Court, it was held that there is %'ob contracting) when -50 the contractor carries on an independent business and undertakes the contract work on his own account, under his own responsibility according to his own manner and method, free form the control and direction of his employer or principal in all matters connected with the performance of the work e#cept as to the results thereof$ and -+0 the contractor has substantial capital or in estment in the form of tools, e(uipment, machineries, work premises and other materials which are necessary in the conduct of the business. In the problem gi en, *rnold did not ha e sufficient capital or in estment for one. 1or another *rnold was not free from the control and direction of &ta. 4onica 2lywood Corporation
69
Law
San Beda Colle+e of

-a0

because all the work acti ities and schedules were fi#ed by the company. Therefore, *rnold is not 'ob contractor Ae is engaged in labor-only contracting. /b2 W!o is liable for t!e %lai s of t!e wor5ers !ired b# Arnold' E$,lain briefl#. &ta. 4onica 2lywood Corp. is liable for the claims of the workers hired by *rnold. * finding that *rnold is a labor only contractor is e(ui alent to declaring that there e#ist an employeremployee relationship between &ta. 4onica 2lywood Corp. and workers hired by *rnold. This is so because *rnold is considered a mere agent of &ta. 4onica plywood Corp ;=im v &=R', 8B8 S'RA >86, 17770 <aguio et% al% v% &=R', 6B6 S'RA >A 17719. 9$PICK S$CIA% S&C<(I9L AC9 $= 1997M C$E&(A'& SU;;AR> O4 T<E RULE? Co erage under the &&& is compulsory where employer-employee relations e#ist. :e ertheless, %integration) of other benefits is allowed. T!e %olle%ti&e bar+ainin+ a+ree ent of t!e Holden Cor,oration In%. and t!e Holden Cor,oration Wor5ers Union ,ro&ides a ,a%5a+e of welfare benefits far s",erior in %o ,arison wit! t!ose ,ro&ided for in t!e So%ial Se%"rit# A%t of 1BB). T!e welfare ,lan of t!e %o ,an# is f"nded solel# b# t!e e ,lo#er wit! no %ontrib"tions fro t!e e ,lo#ees. Ad ittedl#. it is t!e best welfare ,lan in t!e 7!ili,,ines. T!e %o ,an# and t!e "nion Dointl# filed a ,etition wit! t!e So%ial Se%"rit# S#ste for e$e ,tion fro %o&era+e. Will t!e ,etition for e$e ,tion fro %o&era+e ,ros,er' :o, because co erage under the &&& is compulsory where employer-employee e#ists. Aowe er, if the pri ate plan is superior to that of &&&, the plan may be integrated with the &&& plan. &till it is integration and not e#emption from &&& law. ;Philippine <looming 3ills 'o% Cnc% v SSS, 1? S'RA 1B?9 9$PICK C$/P(&-&)SIE& A'(A(IA) (&=$(/ %A> 1.a. W!at is t!e fo"ndation of t!e a+rarian refor are t!e dire%t benefi%iaries of t!e ,ro+ra ' ,ro+ra "nder t!e 1B@) Constit"tion' W!o
LABOR LAW
The 567, Constitution enunciates in *rticle II as one of the state policies that the &tate shall promote comprehensi e rural de elopment and agrarian reform.) In *rticle PII of the Constitution, in dealing with the national economy and patrimony, it is also stated that %the &tate shall promote industriali"ation and full employment based on sound agricultural de elopment and agrarian reform.) Then in *rticle PIII of the Constitution, in dealing with social 'ustice and human rights, there is this pro ision, among othersH the state shall, by law, undertake an agrarian reform program founded on the right of framers and regular farm I workers, who are landless, to own directly or workers, to recei e a 'ust share of the fruits thereof. To this end, the state shall encourage and undertake the 'ust distribution of all agricultural lands, sub'ect to such priorities and reasonable retention limits as the congress may prescribe, taking into account ecological, de elopmental, or e(uity considerations, and sub'ect to the payment of 'ust compensation. In determining the retention limits, the state shall respect the right of small landowners. The state shall further pro ide incenti es for oluntary landsharing.) Taken together, the abo e pro isions could be considered as the foundation of the agrarian reform program. <nder the Comprehensi e *grarian ;eform Law, the lands co ered by the C*;2 shall be distributed as much as possible to landless residents of the same barangay, or in the absence thereof, landless residents of the same municipality in the following order of priorityH 1% agricultutral lessees and share tenants0 6% regular farmwor,ers0 8% seasonal farmwor,ers0 >% other farmwor,ers0 % actual tillers or occupants of public lands0 A% collectives or cooperatives of the above beneficiaries0 and ?% others directly wor,ing on the land%

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College of Law LAW
San Beda LABOR
The children of landowners, who are (ualified to be awardees of not more than three hectares, shall be gi en preference in the distribution of the land of their parents. *ctual tenant tillers in the landholding shall not be e'ected or remo ed therefrom. Beneficiaries under 2@ +, who ha e culpably sold, disposed of or abandoned their land are dis(ualified to became beneficiaries under the C*;2. * basic (ualification of a beneficiary shall be his willingness aptitude and ability to culti ate and make the land as producti e as possible. The @*; shall adopt a system of monitoring the record or performance of each beneficiary, so that any beneficiary guilty of negligence or misuse of the land or any support e#tended to him shall forfeit his right to continue as such beneficiary. The @*; shall submit periodic reports on the performance of the beneficiaries to the C*;2. If, due to the landowner=s retention rights or to the number o tenants, lessees, or workers on the land, there is not enough land to accommodate any or some of them, they may be granted ownership of other lands a ailable for distribution under the C*;L, at the option of the beneficiaries. 1armers already in place and those not accommodated in the distribution of pri ately owned lands will be gi en preferential rights in the distributions of lands from the public domain. 1.b. Distin+"is! D"st %o ,ensation "nder t!e CARL of 1B@@ for Bill of ri+!ts' <ow it is deter ined "nder t!e for er' D"st %o ,ensation "nder t!e
San Beda Colle+e of
In the Bill of ;ights it is pro ided that pri ate property shall not be taken for public use without 'ust compensation. In the pro isions of the 567, constitution on agrarian reform, it is pro ided that in the 'ust distribution of all agricultural lands, the same shall be sub'ect, among others, to the payment of 'ust compensation. The concepts of 'ust compensation in the Bill of ;ights and in agrarian reform are similar in the sense that in both situations, the person who is depri ed of his property should be gi en the fir and full e(ui alent alue of the property that is taken from him. In both situations, ultimately, it is the courts, which may determine ultimately 'ust compensation. <nder the C*;L, howe er, the Land Bank of the 2hilippines shall compensate the landowner in such amount as may agreed upon by the landowner and the @epartment of *grarian ;eform and the Land Bank of the 2hilippines. *lso, under the C*;L, compensation could be in cash and in go ernment financial instruments like Land Bank of the 2hilippines bonds. *t the option of the landowner, the compensation may be in shares of stock in go ernment owned and controlled corporations, or in ta# credits. The C*;L pro ides that in determining 'ust compensation, the cost of ac(uisition of the land the current alue of like properties, its nature, actual use of income, the sworn aluation by the owner, the ta# declarations, and the assessment made by the go ernment assessors shall be considered. The social and economic benefits contributed by the farmers and the farm-owners and by the go ernment to the property as well as the non-payment of ta#es or loans secured from any go ernment financing institution on the said land shall be considered as additional factors to determine its aluation. 9$PICK %A?$( S9A)#A(#SM C$)#I9I$)S $= &/P%$L/&)9 %A?$( (&%A9I$)SM I%%&'A% #IS/ISSA% SU;;AR> O4 T<E RULE? *ny woman who is permitted or suffered to work, with or without compensation in any nightclub, cocktail lounge, massage clinic, bar or other similar establishment, under the effecti e control and super ision of the employer for a substantial period of time as determined by the &ecretary of Labor shall be considered as an employee of such establishment for purposes of labor and social legislation. 2regnancy is not a alid cause for dismissal because, as pro ided under the Code, it shall be unlawful for an employer to discharge a woman employee on account of her pregnancy. Cl"b 7aris is an entertain ent entit# t!at o,erates a ni+!t %l"b alon+ Ro$as Bo"le&ard. T!e %l"b ,ro&ides food and drin5s w!i%! are ser&ed b# wo en w!o are dressed li5e 7la#bo# B"nnies. In t!e e ,lo# ent %ontra%t of ea%! wo an. t!e ff. ,ro&isions a,,ear? ACompensation ;; All tips, commissions and other "orms o" pa!ment received "rom customers minus 1*5
69
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-ours o" 7or@ : 8 pm to + am, dail!, includin0 Sunda!s and -olida!s $ther conditions : /ust remain sin0leM marria0e or pre0nanc! is valid cause "or dismissal B Bit"in a,,lied and was !ired b# t!e Cl"b. S!e si+ned t!e e ,lo# ent %ontra%t. %ontainin+ t!e aforesaid ,ro&isions. 9 ont!s later. s!e as5ed for a aternit# lea&e wit! ,a#. Instead of +rantin+ !er aternit# lea&e. t!e ana+e ent of t!e %l"b fired !er. Bit"in s"ed t!e Cl"b for ille+al dis issal. ba%5wa+es. OT ,a#. and !olida# ,a#. De%ide. Bituin is an employee of the Club. <nder *rt.587, / any woman who is permitted or suffered to wor,, with or without compensation in any nightclub, coc,tail lounge, massage clinic, bar or other similar establishment, under the effective control and supervision of the employer for a substantial period of time as determined by the Secretary of =abor shall be considered as an employee of such establishment for purposes of labor and social legislation%1 Bituin was illegally dismissed. 2regnancy is not a alid cause for dismissal because, as pro ided under the Code, it shall be unlawful for an employer to discharge a woman employee on account of her pregnancy. &he is entitled to backwages. The compensation gi en to Bituin was %all tips.) These can=t be considered compensation, at most, they could be considered as ser ice charges which Bituin can keep. &he is thus entitled to be paid at least the minimum wage. &ince her working hours are from G pm to 8 am, &he works 6 hours a day. &he is also entitled to !T pay, and also from 5C pm, to a night differential pay. &he is also entitled to premium pay since she works , days a week, and thus, works on her weekly rest day, and also on regular holidays. 1or the latter, she should be paid at +CC/ of her basic rate.
LABOR LAW
(. LABOR RELATIONS
TO7IC? ASSU;7TION ORDER In a labor dis,"te. t!e Se%retar# of Labor iss"ed an FAss" ,tion Order.G Hi&e t!e le+al i ,li%ations of s"%! an order. <nder *rt. +G8-g0 of the Labor Code, such assumption shall ha e the effect of automatically en'oining the intended or impending strike or lockout as specified in the assumption order. If one had already taken place at the time of assumption, all striking or lockout employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions pre ailing before the strike or lockout. The &ecretary of Labor and 3mployment may seek the assistance of law enforcement agencies to ensure compliance with this pro ision as well as he may issue to enforce the same. The mere issuance of an assumption order by the &ecretary of Labor automatically carries with it a return to work order, e en if the directi e to return to work is not e#pressly stated in the assumption order. Those who iolate the foregoing shall be sub'ect to disciplinary action or e en criminal prosecution. <nder *rt. +GE of the Labor Code, no strike or lockout shall be declared after the assumption of 'urisdiction by the &ecretary. TO7IC? STRIAELLOCAOUTQ CO;7ULSOR> ARBITRATION SU;;AR> O4 T<E RULE? The &ecretary of Labor may e#ercise the power of compulsory arbitration o er the labor dispute when such dispute may cause or likely cause a strike or lockout in an industry indispensable to national interest. ;4ivine +ord .niversity vs% Secretary of =abor, 618 S'RA ? 79% =enson S =enson /=S=2 is a do esti% %or,oration en+a+ed in t!e an"fa%t"rin+ of %ons" er ,rod"%ts. Its ran5*and*file wor5ers or+ani3ed t!e =enson E ,lo#ees Union /=EU2. a d"l# re+istered lo%al "nion affiliated wit! 7A4LU. a national "nion. After !a&in+ been %ertified as t!e e$%l"si&e bar+ainin+ a+ent of t!e a,,ro,riate bar+ainin+ "nit. =EUT7A4LU s"b itted its ,ro,osals for a Colle%ti&e Bar+ainin+ A+ree ent wit! t!e %o ,an#.

68
College of Law LAW
San Beda LABOR
In t!e eanti e. a ,ower*str"++le o%%"rred wit!in t!e national "nion 7A4LU between its National 7resident. ;ann# 7a5#ao. and its National Se%retar# Heneral. Habriel ;iro. T!e re,resentation iss"e wit!in 7A4LU is ,endin+ resol"tion before t!e Offi%e of t!e Se%retar# of Labor. B# reason of t!is intra*"nion dis,"te wit!in 7A4LU. =S= obstinatel# and %onsistentl# ref"sed to offer an# %o"nter*,ro,osal and to bar+ain %olle%ti&el# wit! =EU*7A4LU "ntil t!e re,resentation iss"e wit!in 7A4LU s!all !a&e been resol&ed wit! finalit#. =EU*7A4LU filed a Noti%e of Stri5e. T!e Se%retar# of Labor s"bse:"entl# ass" ed D"risdi%tion o&er t!e labor dis,"te. Can t!e Se%retar# of Labor de%ide t!e labor dis,"te b# awardin+ t!e =EU CBA 7ro,osals as t!e Colle%ti&e Bar+ainin+ A+ree ent of t!e ,arties' E$,lain briefl#. Oes. The &ecretary of Labor can decide the labor dispute by awarding the D3< CB* proposals as the Collecti e Bargaining *greement of the parties because when the &ecretary of Labor -*rticle +G8 >g?0 assumes 'urisdiction o er a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the &ecretary of Labor e#ercises the power of compulsory arbitration o er the labor dispute, meaning, that as an e#ception to the general rule, the &ecretary of Labor now has the power to set or fi# wages, rates of pay, hours of work or terms and conditions of employment by determining what should be the CB* of the parties ;4ivine +ord .niversity vs% Secretary of =abor, 618 S'RA ? 79. ALTERNATIME ANSWER? No. W!at is in&ol&ed in t!e %ase in :"estion is a %or,oration en+a+ed in t!e an"fa%t"rin+ of %ons" er ,rod"%ts. If t!e %ons" er ,rod"%ts t!at are bein+ an"fa%t"red are not s"%! t!at a stri5e a+ainst t!e %o ,an# %annot be %onsidered a stri5e in an ind"str# indis,ensable for t!e national interest. t!en t!e ass" ,tion of D"risdi%tion b# t!e Se%retar# of Labor is not ,ro,er. T!erefore. !e %annot le+all# e$er%ise t!e ,owers of %o ,"lsor# arbitration in t!e labor dis,"te. TO7IC? 7ROBATIONAR> E;7LO>EESQ CERTI4ICATION ELECTION SU;;AR> O4 T<E RULE? *ll rank-and-file employees, probationary or permanent, ha e substantial interest in the selection of the bargaining representati e. The Code makes no distinction as to their employment status as bases for eligibility to ote in the petition for certification election. ;Airtime Specialists, Cnc% vs% 5errer-'alleja, 1!B S'RA ?>79% Are ,robationar# e ,lo#ees entitled to &ote in a %ertifi%ation ele%tion' W!#' In a certification election, all rank-and-file employees in the appropriate bargaining unit are entitled to ote. This principle is clearly stated in *rticle +.. of the Labor Code which states that the %labor organi"ation designated or selected by the ma'ority of the employees in such unit shall be the e#clusi e representati e of the employees in such unit for the purpose of collecti e bargaining.) Collecti e bargaining co ers all aspects of the employment relation and the resultant CB* negotiated by the certified union binds all employees in the bargaining unit. Aence, all rankand-file employees, probationary or permanent, ha e substantial interest in the selection of the bargaining representati e. The Code makes no distinction as to their employment status as bases for eligibility to ote in the petition for certification election. The law refers to %all) the employees in the bargaining unit. *ll they need to be eligible to ote is to belong to the bargaining unit. ;Airtime Specialists, Cnc% vs% 5errer-'alleja, 1!B S'RA ?>79% ALTERNATIME ANSWER? 2robationary employees may not be entitled to ote in a certification election where only regular employees belong to a bargaining unit and probationary employees do not belong to such bargaining unit. It is the belonging to a bargaining unit that entitles an employee to ote in a certification election. ANOT<ER ALTERNATIME ANSWER?
69
Law
San Beda Colle+e of

Oes. *ny employee, whether employed for a definite period or not, shall, beginning on his first day of ser ice, be considered an employee for purposes of membership in any labor union. >*rticle +,, -c0?. 9$PICK S9(IO&S SU;;AR> O4 T<E RULE? 1or a strike to be legal, it should either be an economic strike, i.e., caused by a bargaining deadlock or an unfair labor practice strike, i.e., caused by the commission of an unfair labor practice by an employer. On ;a# (6. 1B@B. t!e UA; "r+ed its e ber*"nions to Doin a FWel+a n+ Ba#anG in s",,ort of its efforts to ,ress"re Con+ress to in%rease t!e dail# ini " wa+e. Union FIG is a e ber of t!e UA; and re,resents all t!e ran5 and t!e file e ,lo#ees of t!e 7"ritan ;inin+ Co ,an#. 4ollowin+ t!e %all for a nationwide stri5e. Union FIG sta+ed a stri5e and ,"t a ,i%5et t!e followin+ da#. As a res"lt. t!e %o ,an#Cs o,erations were ,aral#3ed alt!o"+! %o ,an# offi%ials and s",er&isor# e ,lo#ees were allowed in+ress and e+ress to and fro t!e %o ,an# ,re ises. T!e ,i%5et was li5ewise ,ea%ef"l. On ;a# (@. 1B@B. t!e UA; leaders!i, anno"n%ed t!e end of t!e FWel+a n+ Ba#an.G Union FIG i ediatel# %o ,an# so"+!t #o"r le+al ad&i%e on t!e le+alit# of t!e stri5e and t!e liabilit#. if an#. of t!e "nion offi%ers and t!e ,arti%i,atin+ e bers. W!at is #o"r o,inion' E$,lain. The strike was illegal. 1or a strike to be legal, it should either be an economic strike, i.e., caused by a bargaining deadlock or an unfair labor practice strike, i.e., caused by the commission of an unfair labor practice by an employer. The strike by <nion %P) was neither an economic strike or an unfair strike. Thus, it was an illegal strike. Because it was an illegal strike, any union officer who knowingly participated in it may be declared to ha e lost his employment status, meaning such union officer could be legally terminated. *s for the union members who participated in the strike, the facts show that no illegal acts were committed. They allowed ingress and egress to and from the company premises. The picket was peaceful. The mere participation of the union members, without their committing illegal acts, does not constitute sufficient ground for the termination of their employment. ALTERNATIME ANSWER? The strike is legal and the union officers and participating union members incur no liability for calling and participating in the strike respecti ely. *pplying the rule in 2hilippine Blooming 4ills to the effect that the workers only personally assembled to influence the decision making process of the go ernment which is a constitutionally guaranteed right. )oteK Credit should .e 0iven to ans7er that "ocus on the procedural reJuirement "or a stri@e to .e le0al, i e stri@e vote, notice, coolin0 o"" period 7orfirio. Estela. Crisosto o. ;arita. and =ose Ra ire3 were brot!ers and sisters. All were sto%5!olders. dire%tors and offi%ers of t!e 7a+as,as ;ar5etin+ Co.. In%. /7;CI2. 7;CI sold offi%e a%!ines and s",,lies. It e ,lo#ed (0 sales ,ersons. 10 deli&er# en. (0 ser&i%e ,ersonnel. and 10 ad inistrati&e e ,lo#ees. On De%e ber 10. 1B@). 68 ran5 and file wor5ers of t!e %o ,an# for ed and re+istered a labor "nion. T!e# sent a letter to 7a+as,as de andin+ re%o+nition as bar+ainin+ a+ent of all wor5ers. en%losin+ %!e%5*off a"t!ori3ation for s of t!e "nion e bers. and a set of e%ono i% de ands. 7;CI ref"sed to re%o+ni3e t!e "nion. T!e "nion ,resident went to #o". as labor ad&iser of t!e federation w!i%! t!e# were ,lannin+ to affiliate wit!. <e wants #o"r o,inion on w!at t!e "nion a# lawf"ll# do to %o ,el t!e bar+ainin+ table at t!at ,oint. W!at will #o"r ad&i%e be' ana+e ent to %o e to
LABOR LAW

68
T!e "nion ,resident tells #o" t!at t!e# ,refer to +o on stri5e. <e wants to 5now t!e le+al re:"ire ents t!at t!e "nion "st %o ,l# wit! so t!e stri5e will be le+al. W!at ad&i%e will #o" +i&e'
College of Law LAW
San Beda LABOR
I will ad ice the union president to file a petition for certification so that after being certified as the collecti e bargaining representati e, the union could go back to 24CI and ask it to bargain collecti ely with the <nion. If 24CI persists in its refusal to bargain collecti ely, I will ad ice the <nion to file a case of unfair labor practice against 24CI since a refusal to bargain collecti ely is a <L2. I will tell the union president that these are the re(uisites that should be complied with if a strike is to be legalH The union should file a notice of strike with the Bureau of Labor ;elations -assuming 24CI is in 4etro 4anila0. * copy of the notice should also be ser ed upon 24CI. The union should not actually go on strike until after 8C days -if the strike is because of the <L2 committed by 24CI, i.e., its refusal to bargain collecti ely0 after filing a notice of strike. There should be a strike ote, either at a meeting or through a referendum. * ma'ority of the union members on the bargaining unit should appro e the declaration of strike. The union should furnish the Bureau of Labor ;elations of the :otice of meeting where a strike ote will be taken. The union should also inform the Bureau about the result of the oting at least se en -,0 days before the intended strike. 9$PICK C$)#I9I$)S =$( A EA%I# (&9(&)C-/&)9 W!at %onditions "st ,re&ail and w!at re:"ire ents. if an#. D"stif# L effe%t a &alid retren%! ent ,ro+ra ' "st an e ,lo#er %o ,l# wit! to
San Beda Colle+e of
In the case of Asian Alcohol 'orporation vs% &=R', 2%R% &o% 1811B!, 3arch 6 , 1777, The &C stated that the re(uirements for a alid retrenchment must be pro ed by clear and con incing e idenceH -50 that the retrenchment is reasonably necessary and likely to pre ent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real or if only e#pected, re reasonably imminent as percei ed by ob'ecti ely and in good faith by the employer$ -+0 that the employer ser ed written notice both to the employees and to the @epartment of Labor and 3mployment at least one month prior to the intended date of retrenchment$ -80 that the employer pays the retrenched employees separation pay e(ui alent to one month pay or at least one month pay for e ery year of ser ice, whiche er is higher$ -E0 that the employer e#ercises his prerogati e to retrench employees in good faith for the ad ancement of its interest and not to defeat or circum ent the employee=s right of security of tenure$ and -.0 that the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status -i.e., whether they are temporary, casual, regular, or managerial employees0, efficiency, seniority, physical fitness, age, and financial hardship for certain workers. 9$PICK I%%&'A% #IS/ISSA%M #<& P($C&SS (&I<I(&/&)9S SU;;AR> O4 T<E RULE? To meet the re(uirements of due process, the law re(uires that an employer must furnish the workers sought to be dismissed with two written notices before termination of employment can be legally effected, that is, -50 a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought$ and -+0 subse(uent notice, after due hearing, which informs the employee of the employers decision to dismiss him. Ass" in+ t!e e$isten%e of &alid +ro"nds for dis issal. w!at are t!e re:"ire ents before an e ,lo#er %an ter inate t!e ser&i%es of an e ,lo#ee' The employer should gi e the employee being terminated due process. 1or termination of employment based on any of the 'ust causes for termination, the re(uirement of due process that the employer must comply with areH -50 * written notice should be ser ed on the employer specifying the ground or grounds for termination and gi ing to say employee reasonable opportunity within which to e#plain his side.
69
Law

-+0 * hearing or conference should be held during which the employee concerned, with the assistance or counsel if the employee so desires, is gi en opportunity to respond to the charge, present his e idence and present the e idence presented against him. -80 * written notice of termination, if termination is the decision of the employer, should be ser ed on the employee indicating that upon due consideration of all the circumstances, grounds ha e been established to 'ustify his termination. 1or termination of employment based on authori"ed causes, the re(uirements of due process shall be deemed complied with upon ser ice of a written notice to the @epartment of Labor and 3mployment at least thirty -8C0 days before the affecti ity of the termination specifying the ground or grounds for termination. ALTERNATIME ANSWER? *ssuming that there is a alid ground to terminate employment, the employer must comply with the re(uirement of procedural due processH written notice of intent to terminate stating the cause of termination$ hearing$ and notice of termination. *rt. +,, of the Labor Code readsH ### The employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representati e if he so desiresW. :ot only must the dismissal be for a alid or unauthori"ed cause as pro ided by law but the rudimentary re(uirements of due process I notice and hearing I must also be obser ed before an employee must be dismissed ;Salaw v% &=R', 6B6 S'RA ?9. To meet the re(uirements of due process, the law re(uires that an employer must furnish the workers sought to be dismissed with two written notices before termination of employment can be legally effected, that is, -50 a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought$ and -+0 subse(uent notice, after due hearing, which informs the employee of the employers decision to dismiss him ;Danala v% &=R', 6 6 S'RA 81>9. 9$PICK 1<(IS#IC9I$) SU;;AR> O4 T<E RULE? ;egular courts ha e 'urisdiction o er cases arising from slanderous language uttered against an employee by an employer. This is a simple action for damages for tortious acts allegedly committed by defendant-employer ;3edina vs% 'astro-<artolome, 11A S'RA 7?9. ;ariet De etrio was a %ler5*t#,ist in t!e Offi%e of t!e 7resident of a "ltinational %or,oration. One da# s!e was berated b# t!e 7resident of t!e %o ,an#. t!e latter s!o"tin+ in&e%ti&es at !er in t!e ,resen%e of e ,lo#ees and &isitors for a inor infra%tion s!e %o itted. ;ariet was red"%ed to tears o"t of s!a e and felt so bitter abo"t t!e in%ident t!at s!e filed a %i&il %ase for da a+es a+ainst t!e %o ,an# ,resident before t!e re+"lar %o"rts. Soon t!ereafter. ;ariet re%ei&ed a e orand" transferrin+ !er to t!e Offi%e of t!e Heneral ;ana+er wit!o"t de otion in ran5 or di in"tion in ,a#. ;ariet ref"sed to transfer.
LABOR LAW

68
<owe&er. wit! res,e%t to t!e %i&il s"it for da a+es. t!e %o ,an# law#er filed a ;otion to Dis iss for la%5 of D"risdi%tion %onsiderin+ t!e e$isten%e of an e ,lo#er*e ,lo#ee relations!i, and t!erefore. it is %lai ed t!at t!e %ase s!o"ld !a&e been filed before t!e Labor Arbiter. R"le on t!e ;otion to Dis iss. S!o"ld it be +ranted or denied. E$,lain briefl#. The 4otion to @ismiss should be denied. It is a regular court and not a Labor *rbiter that has 'urisdiction on the suit for damages. The damages did not arise from the employer-employee relations which would not ha e placed the suit under the 'urisdiction of a Labor *rbiter. The suit arises from the fact that the 2resident of the company shouted in ecti es at 4ariet @emetrio in the presence of employees and isitors. Aer complaint for damages is against an officer of the Company based on slanderous language alleged made by the latter. This falls under the 'urisdiction of the ordinary courts. There is here a simple action for damages for tortious acts allegedly committed by the defendant. &uch being the case, the go erning statue is the Ci il Code and not the Labor Code. -4edina s. Castro-Bartolome, 55G &C;* .6,0
College of Law LAW
San Beda LABOR
ALTERNATIME ANSWER? The 4otion to dismiss should be granted. *ccording to the Labor Code -*rticle +5, -a0E0, the Labor *rbiter has original and e#clusi e 'urisdiction to hear and decide, among others, claims for actual, moral and e#emplary and other forms of damages arising from the employer-employee relations. The claim for damages in the case in (uestion arose from the fact that the 2resident of the Company shouted in ecti es at 4ariet @emetrio in the presence of employees and isitors for a minor infraction she committed. If the infraction has something to do with her work, then, the claim for damages could be considered as arising from employer-employee relations. Thus, the claim is under the e#clusi e 'urisdiction of the Labor *rbiter. 9$PICK 1<(IS#IC9I$) SU;;AR> O4 T<E RULE? *rticle ++8 of the Labor Code pro ides thatH % @ecisions, awards, or orders of the Labor *rbiter are final and e#ecutory unless appealed to the Commission by any or both parties within 5C calendar days from the receipt of such decisions, awards, or orders.) T!e affe%ted e bers of t!e ran5*and*file e ,lo#ees ele&ated t!e Labor ArbiterCs de%ision to t!e NLRC &ia a ,etition for re&iew filed after t!e la,se of t!e 10*da# re+le entar# ,eriod for ,erfe%tin+ an a,,eal. S!o"ld t!e NLRC dis iss t!e ,etition o"tri+!t or a# t!e NLRC ta5e %o+ni3an%e t!ereof' The :L;C should dismiss the appeal outright because the same was filed beyond the reglementary period of appeal. *rticle ++8 of the Labor Code readsH % @ecisions, awards, or orders of the Labor *rbiter are final and e#ecutory unless appealed to the Commission by any or both parties within 5C calendar days from the receipt of such decisions, awards, or orders.) ALTERNATIME ANSWER? The :L;C could dismiss outright the appeal for being filed out of time. But if there are good reasons that may 'ustifiably e#plain why there was a delay in the filing of the appeal, substantial 'ustice may be the basis for the :L;C to take cogni"ance of the appeal.
-. SELECTED (006 BAR QUESTIONS AND ANSWERS

A. RS. a se%"rit# +"ard. filed a %o ,laint for ille+al dis issal a+ainst Star Se%"rit# A+en%#. <e alle+ed !e was %onstr"%ti&el# dis issed after ten #ears of ser&i%e to t!e a+en%#. <a&in+ been ,la%ed on Foff*detailG and Ffloatin+ stat"sG for 9 ont!s alread#. !e %lai ed t!e A+en%# D"st reall# wanted to +et rid of !i be%a"se it re:"ired !i to ta5e a ne"ro*,s#%!iatri% e&al"ation test b# ;a!"sa# ;edi%al Center. RS said !e alread# s"b itted t!e res"lt of !is e&al"ation test b# Brent ;edi%al Clini% as ,re%ondition to a new assi+n ent. b"t t!e re,ort was reDe%ted b# t!e A+en%#. RS added t!at ;a!"sa# ;edi%al Center !ad %lose ties wit! StarCs ,resident. It %o"ld ani,"late tests to fa&or oT!nl# +"ards w!o t!e A+en%# wanted to retain. Star defended its ,oli%# of relian%e on ;a!"sa# ;edi%al Center be%a"se it !as been d"l# a%%redited b# t!e 7!ili,,ine National 7oli%e. It is not one of t!ose d"bio"s testin+ %enters iss"in+ read#* ade re,orts. Star %ited its sad e$,erien%e last #ear w!en a +"ard ran a "%5 and s!ot an e ,lo#ee of a %lient*ban5. Star %lai ed ana+e ent ,rero+ati&e in assi+nin+ its +"ards. and ,ra#ed t!at RSC %o ,laint be dis issed. W!at are t!e iss"es' Identif# and resol&e t!e . &<BB3&T3@ *:&93;H The facts in the (uestion raise these issuesH 5. 9hen ;& was placed on off detail or floating status for more than G months, can ;& claim that he was terminatedV +. Is there a alid reason for the termination of ;&V
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!n the first issue, ;& can be considered as terminated because he has been placed on %off detail) or %floating status) for a period which is more than G months. !n the second issue, it is true that disease is a ground for termination. But the neuropsychiatric e aluation test by 4ahusay 4edical Center is not the certification re(uired for disease to be a ground for termination. The ;ules and ;egulations implementing the Labor Code re(uire a certification by a public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of G months e en with proper medical treatment. *:!TA3; &<BB3&T3@ *:&93;H The issues in ol ed are as followsH 5. Is there constructi e dismissalV +. Is there a alid e#ercise of management prerogati eV !n the first issue, there is constructi e dismissal. ;& cannot be placed on %off detail) or %floating status) indefinitely. If it lasts for more than G months, ;& shall be deemed to ha e been constructi ely dismissed thus entitling him to separation benefits. -&uperstar &ecurity *gency s. :L;C, 57E &C;* ,E0 !n the second issue, there is no alid e#ercise of management prerogati e. &tar=s claim of management prerogati e in assigning its guards cannot be e#ercised to defeat or circum ent ;&= right to security of tenure. B. A s,inster s%!ool tea%!er too5 ,it# on one of !er ,",ils. a rob"st and ,re%o%io"s 1(*#ear old bo# w!ose ,oor fa il# %o"ld barel# afford t!e %ost of !is s%!oolin+. S!e li&es alone at !er !o"se near t!e s%!ool after !er !o"se aid left. In t!e afternoon. s!e lets t!e bo# do &ario"s %!ores as %leanin+. fet%!in+ water and all 5inds of errands after s%!ool !o"rs. S!e +i&es !i ri%e and 7-0.00 before t!e bo# +oes !o e at )?00 e&er# ni+!t. T!e s%!ool ,rin%i,al learned abo"t it and %!ar+ed !er wit! &iolatin+ t!e law w!i%! ,ro!ibits t!e e ,lo# ent of %!ildren below 18 #ears of a+e. In !er defense. t!e tea%!er stated t!at t!e wor5 ,erfor ed b# !er ,",il is not !a3ardo"s. and s!e in&o5ed t!e e$%e,tion ,ro&ided in t!e D.O. of DOLE for t!e en+a+e ent of ,ersons in do esti% and !o"se!old ser&i%e. Is !er defense tenable' Reason. &<BB3&T3@ *:&93;H :o. Aer defense is not tenable. <nder *rt. 56 of the Labor Code on minimum employable age, no child below 5. years of age shall be employed e#cept when he works directly under the sole responsibility of his parents or guardian, the pro isions of the alleged @. !. of @!L3 to the contrary notwithstanding. * mere @epartment !rder cannot pre ail o er the e#press prohibitory pro isions of the Labor Code. >:.B. &ec. 8, ;* 6+85 allows a child below 5. years of age to work for not more than +C hours a week$ pro ided that the work shall not be more than E hours at any gi en day$ pro ided further, that he does not work between 724 and G*4 of the following day$ and pro ided, finally, that the work is not ha"ardous or deleterious to his health or morals. This is a law appro ed only on Duly +7, +CC8, which is beyond the cut-off period of the then +CCE Bar 3#aminations.? C. W!i%! of t!e followin+ a# be %onsidered a on+ ind"stries ost &ital to national interest as to be s"bDe%t of i ediate ass" ,tion of D"risdi%tion b# t!e Se%retar# of Labor or %ertifi%ation for %o ,"lsor# arbitration in %ase of stri5e or wor5 sto,,a+e arisin+ fro a labor dis,"te' 1. (. -. 6. 8. B"lletin dail# news,a,er ,"blis!in+ %o ,an# Lo%al fran%!ise of =olibee and Starb"%5s S!i,,in+ and ,ort ser&i%es in Ceb" and ;anila En%!anted Ain+do . Ele,!ant Island and Bora%a# Resort LBC. D<L and 4edEI %enters

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="stif# #o"r answer or %!oi%e.
San Beda LABOR
&<BB3&T3@ *:&93;H Certification of labor dispute for immediate assumption of 'urisdiction by the &ecretary refers to industries indispensable to national interestH 5. Bulletin @aily :ewspaper, since access to information is a re(uirement for an informed citi"enry. +. &hipping and port ser ices, since the country needs domestic sea transport due to our topography and for the smooth flow of business and go ernment operations. 8. LBC, @AL and 1ed3P centers, since couriers are essential to foreign and domestic business and go ernment operations. D. E ,lo#ees of ABC de%lared a stri5e after filin+ a Noti%e of Stri5e wit! t!e DOLE. T!e# barri%aded %o ,an# +ates and da a+ed &e!i%les enterin+ %o ,an# ,re ises. On t!e se%ond da# after t!e stri5e. ABC filed a ,etition wit! t!e DOLE Se%retar# to inter&ene t!ro"+! t!e iss"an%e of an ass" ,tion of D"risdi%tion order t!at t!e Se%retar# a# iss"e w!en a stri5e or lo%5o"t will ad&ersel# affe%t national interest. ABC f"rnis!ed t!e Se%retar# wit! e&iden%e to s!ow t!at %o ,an# &e!i%les !ad been da a+edQ t!at ele%tri% ,ower !ad been %"t offQ and e:"i, ent and aterials were da a+ed be%a"se ele%tri% ,ower was not i ediatel# restored. ABC fore%ast t!at t!e %o"ntr#Cs s",,l# of %!lorine for water treat ent /w!i%! t!e %o ,an# ,rod"%es2 wo"ld be affe%ted ad&ersel# if ABCCs o,erations were %losed down b# t!e stri5ers. Co"ld t!e DOLE Se%retar# inter&ene. ass" e D"risdi%tion and iss"e a TRO' Briefl# D"stif# #o"r answer.
&<BB3&T3@ *:&93;H Oes, the &ecreatry can assume 'urisdiction o er the dispute because *BC could be considered as an industry indispensable to the national interest since it produces the country=s supply of chlorine for water treatment. The assumption of 'urisdiction by the &ecretary has the effect of ending the strike. The strikers will be sub'ect to ;eturn to 9ork !rder by the &ecretary upon his assumption of 'urisdiction.
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E. Be%a"se of alle+ed F"nfair labor ,ra%ti%esG b# t!e ana+e ent of H4I s#ste . a +o&ern ent*owned and %ontrolled finan%ial %or,oration. its e ,lo#ees wal5ed o"t fro t!eir Dobs and ref"sed to ret"rn to wor5 "ntil t!e ana+e ent wo"ld +rant t!eir "nion offi%ial re%o+nition and start ne+otiations wit! t!e . T!e leaders of t!e wal5*o"t were dis issed. and t!e ot!er ,arti%i,ants were s"s,ended for 9o da#s. In ar+"in+ t!eir %ase before t!e Ci&il Ser&i%e Co ission. t!e# %ited t!e ,rin%i,le of so%ial D"sti%e of wor5ers and t!e ri+!t to self*or+ani3ation and %olle%ti&e a%tion. in%l"din+ t!e ri+!t to stri5e. T!e# %lai ed t!at t!e Constit"tion s!ielded t!e fro an# ,enalt# be%a"se t!eir wal5*o"t was a %on%erted a%tion ,"rs"ant to t!eir ri+!ts +"aranteed b# basi% law. Is t!e ,osition ta5en b# t!e wal5*o"t leaders and ,arti%i,ants le+all# %orre%t' Reason briefl#. &<BB3&T3@ *:&93;H :o. They are go ernment employees, and as such, they do not ha e the right to strike. &ec 8 of *rt PIII of the Constitution states, %The &tate shall guarantee the rights of all workers to self-organi"ation, collecti e bargaining and negotiations, and peaceful concerted acti ities including the right to strike in accordance with law.)

The last clause is ery clear$ the right to strike is not constitutional. It is statutory because the right should be in accordance with law. *nd there is as yet no law gi ing go ernment employees the right to strike. *:!TA3; &<BB3&T3@ *:&93;H :o. *ssuming that what we ha e is a originally chartered B!CC, they cannot, under 3o 57C and related 'urisprudence, stage such walk-out which is basically a case of strike. 3 en if B1I was organi"ed under the Corporation Code, still no such walk-out is allowed without complying with the re(uirements of a alid strike, among which is that said strike should be alidly grounded on a -a0 deadlock in collecti e bargaining, or -b0 <L2.
LABOR LAW
CASE DOCTRINES
BOOA ONE 7OEAQ 7OWERS AND 4UNCTIONS. *22;!V*L !1 !V3;&3*& C!:T;*CT& *n agreement that changes the employee=s pay and benefits to make them lesser than those contained in a 2!3*-appro ed contract is oid, unless such subse(uent agreement is appro ed by the 2!3* ;'have$ vs% <onto-Pere$9. ;3I4B<;&343:T !1 !V3;2*I@ 133& 2!3* has the power to order refund or reimbursement of fees fraudulently or illegally collected, or in e#cess of what is legally allowed. ;*astern Assurance E Surety 'orporation vs% Secretary of =abor9% I&&<*:C3 !1 &3*;CA *:@ &3IU<;3 !;@3;& <nder the Constitution, only a 'udge may issue warrants of search and arrest. The labor authorities must go through the 'udicial process. The &ecretary of Labor, not being a 'udge, may no longer issue search or arrest warrants. To that e#tent, *rticle 87, paragraph -c0, of the Labor Code, is declared of no force and effect ;Sala$ar vs% Achacoso and 3ar(ue$9. ILLEHAL RECRUIT;ENTQ CONCE7T. ILL3B*L ;3C;<IT43:T is-X- is 3&T*1*

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San Beda LABOR
* person con icted for illegal recruitment under the Labor Code can be con icted for iolation of the ;e ised 2enal Code pro isions on estafa pro ided the elements of the crime are present ;People vs% 'alon$o9. BOOA TWO A77RENTICES<I7 AHREE;ENTS? C$)C&P9. C!:C32T *n apprenticeship program needs prior appro al by the @epartment of Labor and 3mployment. If employed without a pre-appro ed apprenticeship program, the apprentice is not an apprentice but a regular employee ;&itto *nterprises v% &=R'9. *22;3:TIC3&AI2 is-X- is 342L!O3;-342L!O33 ;3L*TI!:&AI2 There is no employer-employee relationship between students on one hand, and schools, colleges or uni ersities, on the other, where there is written agreement between them under which the former agree to work for the latter in e#change for the pri ilege to study free of charge, pro ided, the students are gi en real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement.L ;Cmplementing Rules of <oo, CCC, Rule F, Sec% 1>9 If the student referred to in *rt. ,+ of the Labor Code, in the course of doing a task in behalf of the school, causes in'ury to a third person, the school can be held liable. The Implementing ;ules pro ision that there is no employer-employee relation between the school and the student pertains to obser ance of labor regulations, such as payrolls to be kept, working conditions or rest periods. It is not the decisi e law in a ci il suit for damages instituted by an in'ured third person. The applicable law is *rticle +57C of the Ci il Code ;5ilamer 'hristian Cnstitute v% 'A9. BOOA T<REE ;ANAHE;ENT 7REROHATIME. #&=I)&#. 3#cept as limited by special laws, an employer is free to regulate, according to his own discretion and 'udgment, all aspects of employment, including hiring, work assignments, working methods time, place and manner of work, tools to be used, processes to be followed, super ision of workers, working regulations, transfer of employees, work super ision, layoff of workers and the discipline, dismissal and recall of workers ;San 3iguel <rewery Sales vs% @ple9. CONDITIONS O4 E;7LO>;ENTQ C$E&(A'& I:&<;*:C3 *B3:T& *n insurance company may ha e two classes of agents who sell its insurance policiesH -50 salaried employees who keep definite hours and work under the control and super ision of the company$ and -+0 registered representati es who work on commission basis. The agents who belong to the first category are regular employees. Those who belong to the second category are not regular employees for they do not ha e to de ote their time e#clusi ely to or work solely for the company since the time and the effort they spend in their work depend entirely upon their own will and initiati e ;2reat Pacific =ife Cnsurance 'orporation vs% Gudico9% T3*CA3;& College teachers are regular employees. The principal consideration in determining whether a workman is an employee or an independent contractor is the right to control the manner of doing the work, and it is not the actual e#ercise of the right by interfering with the work, but
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the right to control, which constitutes the test ;5eati .niversity vs% Hon% Gose S% <autista, and 5eati .niversity 5aculty 'lub9% D332:3O @;IV3;& <:@3; B!<:@*;O &O&T34 3mployer-employee relationship e#ists between the owner of the 'eepneys and the dri ers e en if the latter work under the boundary system. :ot ha ing any interest in the business because they did not participate in the management thereof, their ser ice as dri ers of the 'eeps being their only contribution to the business, relationship of lessor and lessee cannot be sustained ;'iti$enIs =eague of 5ree +or,ers, et al% vs% Abbas, 2R &o% =-616169% 2I3C3-;*T3 9!;N3;& 2iece-rate workers who work inside the company premises under the close super ision and control of their employers are regular employees -=abor 'ongress of the Philippines vs% &=R'9% 2iece-rate workers who work outside the company premises and are unsuper ised or whose time spent in their work cannot be reasonably ascertained are :!T regular employees -4akati Aaberdashery, Inc. s. :L;C0. 1I&A3;43: 1ishermen who work not under the orders of the boat-owners as regards their employment$ that they go out to sea not upon directions of the boat-owners, but upon their own olition as to when, how long, and where to go fishing$ that the boat-owners do not in any way control the crew members with whom the former ha e no relationship whatsoe er$ that they simply 'oin the trip for which the pilots allow them, without any reference to the owners of the essel$ and that they only share in their own catch produced by their own efforts I are :!T regular employees ;Pajarillo vs% SSS9. 1ishermen who conduct fishing operations under the control and super ision of the boatowner=s operations manager are regular employees. 4atters dealing on the fi#ing of the schedule of the fishing trip and the time to return to the fishing port were the prerogati e of the boat-owner ;Ruga, et al% vs% &=R'9% CONDITIONS O4 E;7LO>;ENTQ -$<(S $= >$(O 9*ITI:B TI43 9aiting spent by an employee shall be considered as working time if waiting is considered an integral part of his work or if the employee is re(uired or engaged by an employer to wait ;Japanta v% &ational Alliance of Deachers and @ffice +or,ers Assoc, Sept% , 17!B9% 43*L TI43 4eal time is :!T working time if the employee is completely freed from duties during his meal period e en though he remains in the workplace ;Pan American +orld Airways System KPhil%L vs% Pan American *mployment Association9. 9here work is continuous for se eral shifts, the mealtime breaks should be counted as working time for purposes of o ertime compensation ;&ational 4evIt 'ompany vs% 'CR and the &ational De"tile +or,ers .nion9. 9!;NI:B 9AIL3 &L332I:B &leeping time may be considered working time if it sub'ect to serious interruption or takes place under conditions substantially less desirable than would be likely to e#ist at the employee=s home ;S,idmore vs% Swift and 'o%9.
LABOR LAW

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!: C*LL
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*n employee who is re(uired to remain on call on the employer=s premises or so close thereto that he cannot use the time effecti ely for his own purposes is working while %on call). The time he stays in the place of work is considered hours worked ;&ational =abor .nion vs% 2otamco =umber 'o% vs% 'CR9% :IBAT &AI1T @I113;3:TI*L *dditional compensation for nighttime work is founded on public policy, hence the same cannot be wai ed. It is argued that that laborer can rest during the day after ha ing worked the whole night. But can the repose by day produce to the human body the same complete recuperati e effects which only the natural rest at night can gi e himV It is belie ed that since time immemorial the uni ersal rule is that a man works at night due to some dri ing necessity rather than for reasons of con enience ;3ercury 4rug co%, Cnc% vs% &ardo 4ayao, et al%9% !V3;TI43 2*O The right to o ertime pay cannot be wai ed. The right is intended for the benefit of the laborers and employees. *ny stipulation in the contract that the laborer shall work beyond the regular 7 hours without additional compensation for the e#tra hours is contrary to law and null and oid ;'ru$ vs% Mee Sing9% 9*IV3; !1 !V3;TI43 2*O 9ai er may be permitted when it is in consideration of benefits and pri ileges which may be more than what will accrue to the employee in o ertime pay ;3eralco +or,ers .nion vs% 3anila *lectric 'ompany, et al%9. :IBAT &AI1T @I113;3:TI*L *:@ !V3;TI43 2*O The receipt of o ertime pay will not preclude the right to night differential pay. The latter is payment for work done during the night while the other is payment for the e#cess of the regular eight-hour work ;&aric vs% &aric +or,ers .nion9. !V3;TI43 2*O B*&3@ !: B*&IC 2*O
San Beda Colle+e of
In the computation of o ertime pay, premium pay for work done on &undays, holidays and at night and other fringe benefits which are occasionally, not regularly, recei ed and not by all employees, should not be added to the basic pay. CONDITIONS O4 E;7LO>;ENTQ -$%I#AL PAL A)# S&(EIC& I)C&)9IE& %&AE&S 3:TITL343:T !1 4!:TALO-2*I@ 342L!O33& T! A!LI@*O 2*O 4onthly-paid employees are not e#cluded from the benefits of holiday pay. The Labor Code clearly states that e ery worker shall be paid his or her regular holiday pay ;Cnsular <an, of Asia and America *mployees .nion vs% Hon% Amado Cnciong and Cnsular <an, of Asia and America9% 3:TITL343:T !1 2*;T-TI43 !; C!:T;*CT<*L 9!;N3;& T! &3;VIC3 I:C3:TIV3 L3*V3 ?ureau o" >or@in0 Conditions, Advisor! $pinion to Philippine Inte0rated &4porters, Inc on the Juer! a.out Conditions o" &mplo!ment o" Part;time >or@ers 2art-time workers are entitled to the full benefit of the yearly . days ser ice incenti e lea e with pay. The reason is that the pro isions of *rticle 6. of the Labor Code and its implementing rules, speak of the number of months in a year for entitlement to said benefit.
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Conse(uently, part-time employees are also entitled to the full fi e days ser ice incenti e lea e benefit and not on a pro-rata basis. CONDITIONS O4 E;7LO>;ENTQ WAHES &*L*;O 3PCL<@3& *LL!9*:C3& 3#isting laws e#clude allowances from the basic salary or wage in the computation of the amount of retirement and other benefits payable to an employee. The &upreme Court will not adopt a different meaning of the terms %salaries or wages) to mean the opposite, that is to include allowances in the concept of salaries or wages ;'ebu Cnstitute of Dechnology vs% @ple9. B*&IC 9*B3 *:@ C!44I&&I!:& If the commissions are in a wage-or sales- percentage type, they may properly be considered part of the basic salary. These commissions are not o ertime payments, nor profitsharing payments nor any other fringe benefit. Thus, the salesman=s commissions, comprising a predetermined percent of the selling price of the goods sold by each salesman, were properly included in the term %basic salary) for purposes of computing their 58 th month pay ;Philippine 4uplicators, Cnc% vs% &=R' and Philippine 4uplicators *mployees .nion9. In remunerati e schemes consisting of a fi#ed or guaranteed wage plus commission, the fi#ed or guaranteed wage is patently the %basic salary) for this is what the employee recei es for a standard work period. Commissions are gi en for e#tra efforts e#erted in consummating sales or other related transactions. They are, as such, additional pay, which the Court has made clear do not form part of the %basic salary) ;<oie-Da,eda 'hemicals, Cnc% vs% 4ionisio 4ela Serna9%
LABOR LAW
2;!2!;TI!:*T3 58th 4!:TA 2*O *n employee who has resigned or whose ser ices were terminated at anytime before the time of payment of the 58th month pay is entitled to 58th month pay in proportion to the length of time he worked during the year, reckoned from the time he started working during the calendar year up to the time of his resignation or termination from the ser ice ;Cnternational School of Speech vs% &=R' and 3' 3amuyac9. >A'&SM 7A>;ENT O4 WAHES :!:-L*9O3;& :!T 3:TITL3@ T! *TT!;:3O=& 133& *lthough the law allows, under certain circumstances, non-lawyers to appear before the :ational Labor ;elations Commission or any Labor *rbiter, howe er, this does not mean that they are entitled to attorney=s fees. Their act of representing, appearing or defending a party litigant in a labor case does not, by itself, confer upon them legal right to claim for attorney=s fees. 3ntitlement to attorney=s fees presupposes the e#istence of attorney-client relationship. This relationship cannot e#ist unless the client=s representati e is a lawyer ;5ive G Da"i, et al% vs% &=R'9% >A'&SQ 7RO<IBITION REHARDINH WAHES 9*B3 @3@<CTI!:&H &3TTI:B !11 !1 4!:3O CL*I4 !1 342L!O33 *B*I:&T :!:2*O43:T !1 &T!CN &<B&C;I2TI!:& *rticle 558 of the Labor Code allows such a deduction from the wages of the employees by the employer, only in three instances, to witH -a0 in cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance$ -b0 for union dues, in cases where the right of the workers or his union to check-off has been recogni"ed by the employer or authori"ed in writing by the indi idual

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9*B3 @I&T!;TI!:
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worker concerned$ and -c0 in cases where the employer is authori"ed by law or regulations issued by the &ecretary of Labor ;Apodaca vs% &=R', et a%9.
The Court summari"es the principles relating to wage distortion, namelyH -a0 The concept of wage distortion assumes an e#isting grouping or classification of employees which establishes distinctions among such employees on some rele ant or legitimate basis. This classification is reflected in a differing wage rate for each of the e#isting classes of employees. -b0 9age distortions ha e often been the result of go ernment-decreed increases in minimum wages. There are, howe er, other causes of wage distortions, like the merger of two companies -with differing classifications of employees and different wage rates0 where the sur i ing company absorbs all the employees of the dissol ed corporation. -c0 &hould a wage distortion e#ist, there is no legal re(uirement that, in the rectification of that distortion by read'ustment of the wage rates of the differing classes of employees, the gap which had pre iously or historically e#isted be restored in precisely the same amount. In other words, correction of a wage distortion may be done by reestablishing a substantial or significant gap -as distinguished from the historical gap0 between the wage rates of the differing classes of employees. (d) The reestablishment of a significant difference in wage rates may be the result of resort to grie ance procedures or collecti e negotiations ;&ational 5ederation of =abor vs% &=R'9. >$(OI)' C$)#I9I$)SQ S7ECIAL HROU7 O4 E;7LO>EES &TI2<L*TI!: *B*I:&T 4*;;I*B3 -*rticle 58G0 *rticle 58G is not intended to apply only to women employed in ordinary occupations, or it should ha e categorically e#pressed so. The sweeping intendment of the law, be it on special or ordinary occupations, is reflected in the whole te#t and supported by *rticle 58. that speaks of nondiscrimination on the employment of women ;'laudine de 'astro Jialcita, et al% vs% PA=9. A!<&3A3L23; The criterion is the personal comfort and en'oyment of the family of the employer in the home of said employer. 9hile the nature of work of a househelper, domestic ser ant or laundry woman in a home or in a company staff house may be similar in nature, the difference in their circumstances is that in the former instance they are actually ser ing the family while in the latter case, whether it is a corporation or a single proprietorship engaged in business or industry or any other agricultural or similar pursuit, ser ice is being rendered in the staff houses or within the premises of the business of the employer. In such instances, they are employees of the company or employer in the business concerned entitled to the pri ileges of a regular employee ;Ape" 3ining 'o%, Cnc% vs% &=R'9. BOOA 4IME 7OWERS AND DUTIESQ 1<(IS#IC9I$) $= 9-& %A?$( A(?I9&(S A)# 9-& C$//ISSI$) 43*:I:B !1 C!42<L&!;O *;BIT;*TI!:
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In its broad sense, arbitration is the reference of a dispute to an impartial third person, chosen by the parties or appointed by statutory authority to hear and decide the case in contro ersy. 9hen the consent of one of the parties is enforced by statutory pro isions, the proceeding is referred to as compulsory arbitration. In labor cases, compulsory arbitration is the process of settlement of labor disputes by a go ernment agency which has the authority to in estigate and to make an award which is binding on all parties ;Philippine Airlines, Cnc% vs% &=R'9. 7OWERS AND DUTIESQ P$>&(S $= 9-& C$//ISSI$) C!:T342T 2!93;
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The commission has the power to hold any person in contempt directly or indirectly. The procedures and penalties thereof are pro ided under paragraph -d0 of *rt. +57. &ection +, ;ule P of the :ew ;ules of 2rocedure of the :L;C pro ides that the Commissioner or any labor arbiter may cite any person for indirect contempt upon grounds and in the manner prescribed under &ec. 8-b0, ;ule ,5 of the 566, ;ules of Ci il 2rocedure. The said section pro ides that %Indirect contempt is to be punished after charge and hearing for any ### disobedience of or resistence to a lawful writ, process, order, or 'udgment of a court ###) ;Cndustrial and transport *(uipment, Cnc%, et al% vs% &=R'9. C!42;!4I&3 *B;3343:T& *:@ R*S G.4C'ADA It is true that a compromise agreement once appro ed by the court has the effect of res judicata between the parties and should not be disturbed e#cept for ices of consent and forgery. Aowe er, The :L;C may disregard technical rules of procedure in order to gi e life to the constitutional mandate affording protection to labor and to conform to the need of protecting the working class whose inferiority against the employer has always been earmarked by disad antage ;Principe vs% Philippine-Singapore Dransport Services, Cnc%,9. 7OWERS AND DUTIESQ APP&A(A)C&S A)# =&&S *223*;*:C3 !1 :!:-L*9O3;& :on-lawyers may appear before the commission or labor arbiter onlyH /a2 if they represent themsel es$ /b2 if they represent their organi"ation or members thereof$ or /%2 if he is a dulyaccredited member of the legal aid office duly recogni"ed by the department of 'ustice or integrated bar of the 2hilippines in case referred thereto by the latter. The appearance of labor federations and local unions as counsel in labor proceedings has been gi en legal sanction and we need only to cite *rt. +++ of the Labor Code allowing non-lawyers to represent their organi"ation or members thereof ;Radio 'ommunication of the Philippines, Cnc% vs% Dhe Secretary of =abor *mployment9. *TT!;:3O=& 133& There are only two kinds of cases where attorney=s fees may be assessed? /12 cases arising from unlawful withholding of wages and /(2 cases arising from collecti e bargaining negotiations ;Reahs 'orporation vs% &=R'9. 2;!AIBITI!: !1 2*O43:T !1 *TT!;:3O=& 133& *rt. +++ of the Labor Code prohibits the payment of attorneys fees only when it is effected through forced contributions from the workers from their own funds as distinguished from the union funds. The purpose of the pro ision is to pre ent imposition on the workers of the duty to indi idually contribute their respecti e shares in the fee to be paid the attorney for his ser ices on behalf of the union in its negotiations with the management. The obligation to pay the attorney=s fees belongs to the union and cannot be shunted to the workers as their responsibility ;<an, of the Philippine Cslands vs% &=R', et al%9. *TT!;:3O=& 133& *;I&I:B 1;!4 ;3C!V3;O !1 9*B3& *:@ !TA3; B3:31IT& *rt 555 of the Labor Code regulates the amount reco erable as attorney=s fees in the nature of damages sustained by and awarded to the pre ailing party. It may not be used therefore, as the lone standard in fi#ing the e#act amount payable to the lawyer by his client for the legal ser ices he rendered. 4oreo er, while it pro ides for the ma#imum allowable amount of attorney=s fees, it does not direct the instantaneous and automatic award of attorney=s fees in such ma#imum limit ;Draders Royal <an, *mployees .nion-Cndependent vs% &=R'9. 133& 1!; &3;VIC3& ;3:@3;3@ BO <:I!: !11IC3;& *rt. +++-b0 prohibits attorney=s fees, negotiation fees and similar charges arising out of the conclusion of a bargaining agreement from being imposed on any indi idual union member. The
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collection of the special assessment partly for the payment ser ices rendered by union officers, consultants and other may not be in the category of %attorney=s fees or negotiations fees.) But there is no (uestion that it is an e#action which falls within the category of a )similar charge) and therefore, within the co erage of the prohibition in the aforementioned article ;Palacol vs% 5errer'alleja9 A77EALQ &X&C<9I$) $= #&CISI$)S, $(#&(S A)# A>A(#S 1*IL<;3 T! C!42LO 9ITA * 9;IT !1 3P3C<TI!: If the employer fails or is unable to comply with a final and e#ecutory 'udgment for the reinstatement of an employee, the plain and ob ious remedy is simply the compulsion of the employer by writ of e#ecution to effect the mandated reinstatement and pay the amounts decreed in the 'udgment, and disregard or o errule the employer=s claim of inability to reinstate the employee. If there be alid and unsuperable cause for such inability to reinstate, this factor must be taken into account in the process of directing and effectuating the award of relief to the employee consistent with the 'udgment. The remedy is certainly not the institution of a separate action, whether in the regular courts or the labor arbiter=s branch. &uch recourse would iolate the well-settled principle of res judicata. It would gi e rise to multiplicity of actions which the law abhors and e#erts e ery effort to eschew ;3AC Philippines Cnc% vs% &=R' et al%9. The remedy for refusal of the employer to reinstate employee despite se eral writs of e#ecution is not the grant of additional backwages to ser e as damages but to cite the employer in contempt ;'hristian =iterature 'rusade v% &=R'9. 3P3C<TI!: !V3; 2;!23;TO !9:3@ !:LO BO TA3 D<@B43:T @3BT!; If the property under le y does not belong to the 'udgment debtor in the :L;C case, it could not be alidly le ied upon by the sheriff for the satisfaction of the 'udgment therein. 3 en upon a prima facie showing of the ownership by the third-party claimant, if the third-party claim does not in ol e nor grows out of, a labor dispute, a separate action for in'uncti e relief against such le y may be maintained in court ;Penalosa v% )illanueva9. :!TI1IC*TI!: In labor cases, both the party and its counsel must be duly ser ed their separate copies of the order, decision, or resolution, unlike in ordinary 'udicial proceeding where notice to counsel is deemed notice to the party ;P&@' 4oc,yard and *ngineering 'orp% vs% &=R'9. BUREAU O4 LABOR RELATIONSQ 1<(IS#IC9I$) N*T*;<:B*:B 2*4B*;*:B*O *:@ TA3 L*B!; C!@3 *rt ++G of the Labor Code grants original and e#clusi e 'urisdiction o er the conciliation and mediation of disputes, grie ances or problems in the regional offices of the @epartment of Labor and 3mployment. It is the aid bureau and its di isions and not the barangay lupong tagapayapa which are ested by law with original and e#clusi e authority to conduct conciliation and mediation proceedings on labor contro ersies before their endorsement to the appropriate labor arbiter ad'udication ;3ontoya vs% *scayo9. BUREAU O4 LABOR RELATIONSQ C$/P($/IS& A'(&&/&)9S !2TI!:& 9A3: C!42;!4I&3 *B;3343:T I& VI!L*T3@ <nder article +CE5 of the ci il code, should the party fail or refuse to comply with the terms of a compromise agreement or amicable settlement, the other party could eitherH -50 enforce the compromise by a writ of e#ecution, or -+0 regard it as rescinded and so insist upon his original demand ;3orales et al% vs% &=R'9.
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LABOR ORHANINATIONSQ (I'-9S A)# C$)#I9I$)S $= /&/?&(S-IP :*T<;3 !1 ;3L*TI!:&AI2 B3T933: <:I!: *:@ IT& 434B3;& The union has been e ol ed as an organi"ation of collecti e strength for the protection of labor against the un'ust e#actions of capital, but e(ually important is the re(uirement of fair dealing between the union and its members, which is fiduciary in nature, and arises out of two factorsH one is the degree of dependence of the indi idual employee on the union organi"ation$ and the other, a corollary of the first, is the comprehensi e power ested in the union with respect to the indi idual. The union to be considered but the agent for the purpose of securing for them fair and 'ust wages and good working conditions and is sub'ect to the obligation of gi ing the members as its principals all information rele ant to union and labor matters entrusted ;Heirs of Deodoro 'ru$ vs% 'ourt of Cndustrial Relations9. ;3LI31 9ITAI: TA3 <:I!: Benerally, redress must first be sought within the union itself in accordance with its constitution and by-laws ;Napisanan ng mga 3angagawa sa 3RR vs% Hernande$9. CA3CN-!11 *ttorney=s fees may not be checked-off or deducted from any amount due to an employee without his written consent, e#cept for mandatory acti ities under the Code%;)engco vs% Drajano9. @3@<CTI!:& 1!; <:I!: &3;VIC3 133 @eductions for union ser ice fee are authori"ed by law and do not re(uire indi idual checkoff authori"ations ;Radio 'ommunications of the Philippines Cnc% vs% Sec% of =abor9.
LABOR LAW
LABOR ORHANINATIONSQ (I'-9S $= %&'I9I/A9& %A?$( $('A)IPA9I$)S C!42;!4I&3 BI:@I:B <2!: 4I:!;ITO 434B3;& !1 <:I!: * compromise agreement between the union and the company, pursuant to which the complaint in an unfair labor practice case had been withdrawn and dismissed, is binding upon the minority members of the union ;4ionela vs% 'ourt of Cndustrial Relations9. RIH<T TO SEL4*ORHANINATIONQ C$E&(A'& 342L!O33-434B3;& !1 * C!!23;*TIV3 It is the fact of ownership of the cooperati e, and not the in ol ement in the management thereof, which dis(ualifies a member from 'oining any labor organi"ation within the cooperati e. Thus, irrespecti e of the degree of their participation I the actual management of the cooperati e, all members thereof cannot form, assist or 'oin a labor organi"ation for the purpose of collecti e bargaining ;<enguet *lectric 'ooperative vs% 5errer-'alleja9. UN4AIR LABOR 7RACTICESQ &/P%$L&(S *CC32T*:C3 !1 4*&& ;3&IB:*TI!: *cceptance of a oluntary resignation is not <L2. 9hen persons oluntarily terminate their employment relationship, they cannot claim that they were dismissed ;*nri(ue$ vs% Jamora9. 1!;C3@ V*C*TI!: L3*V3

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The forced acation lea e without pay in iew of the economic crisis, being neither malicious, oppressi e or indicti e, does not constitute <L2 ;Philippine 2raphic Arts, Cnc% vs% &=R<9. <L2 3V3: B31!;3 <:I!: I@ ;3BI&T3;3@ <nder *rt. +E7 of the Labor code of the 2hilippines, %to interfere with, restrain, or coerce employees in their e#ercise of the right to self-organi"ation) is an unfair labor practice on the part of the employer. 2aragraph d of said article also considers it an unfair labor practice for an employer to %initiate, dominant, assist or otherwise interfere with the formation or administration of any labor organi"ation, including the gi ing of financial %or other support to it.) ;Gudric 'anning 'orporation vs% Cnciong9 <L2 TA;!<BA VI!L3:C3 *:@ I:TI4I@*TI!: *n employer unlawfully coerced employers by directing two indi iduals to his office at gun point on the day of representation election after the indi iduals had informed the employer that they were on the premises to ote in the election and they did in fact ote ;Holly Hill =umber vs% &=R<9. <L2 TA;!<BA &<;V3ILL*:C3 9hen an employer engages in sur eillance or takes steps leading his employees to belie e it is going on, a iolation results because the employees come under threat of economic coercion or retaliation for their union acti ities ;Henri$ 3fg% 'o vs% &=R<9. <L2 TA;!<BA 3C!:!4IC I:@<C343:T& * iolation results from an employer=s announcement of benefits prior to a representation election, where it is intended to induce the employees to ote against the union ;ReO Hancoc, 5abric @utlet9. T!T*LITO !1 C!:@<CT @!CT;I:3 The letter, e#hibits * and B, should not be considered by themsel es alone, but should be read in the light of the preceding and subse(uent circumstances surrounding. The letter should be interpreted according to the %totality of conduct doctrine,) whereby the culpability of an employer=s remarks were to be e aluated not only on the basis of their implicit implications, but were to be appraised against the background of and in con'unction with collateral circumstances ;Dhe Cnsular =ife Assurance 'o%, =td%, *mployees Association-AD., et al% vs% Dhe Cnsular =ife Assurance 'o%, =td%9. L!CN!<T !; CL!&<;3 *4!<:TI:B T! <L2 The rule is that it is unlawful for the employer to threaten its employees with mo ing or shutting down the plant and conse(uent loss of employment, as the result of their support for the union ;&=R< vs% =ousiana 3529. <L2 TA;!<BA C!42*:O @!4I:*TI!: !1 TA3 <:I!: @omination of a labor union is usually manifested in the following formsH
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a. Cnitiation of the company union idea. This may further occur in three stylesH /12 outright formation by the employer or his representati es$ /(2 employee formation on outright demand or influence by employer$ and /-2 managerially moti ated formation by employees.

b. 5inancial support to the union. *n employer commits unfair labor practice if he defrays the union e#penses or pays the attorney=s fees to the attorney who drafted the constitution and bylaws of the union. c. *mployer encouragement and assistance. Immediately granting he union e#clusi e recognition as a bargaining agent without determining whether the union represents the ma'ority of the employees is an illegal form of assistance amounting to unfair labor practice. d. Supervisory assistance. This takes form of soliciting membership permitting union acti ities during working time or coercing employees to 'oin the ion by threats of dismissal or demotion ;Philippine American 'igar E 'igarette 5actory +or,ers .nion vs% Philippine American 'igar E'igarette 35g% 'o%, Cnc%9.
<L2 TA;!<BA @I&C;I4I:*TI!: I: &*L*;O *@D<&T43:T& There is unfair and un'ust discrimination in the granting of salary ad'ustments where the e idence shows that -a0 the management paid the employees of unioni"ed branch$ -b0 where the salary ad'ustments were granted to employees of one of its non-unioni"ed branches although it was losing in its operations$ and -c0 the total salary ad'ustments gi en one employee in the nonunioni"ed branch ;3anila Hotel 'ompany vs% Pines Hotel *mployees Association9. T3&T !1 @I&C;I4I:*TI!: 1or the purpose of determining whether or not a discharge is discriminatory, it is necessary that the underlying reason for the discharge be established. The fact that a lawful cause for discharge is a ailable is not a defense where the employee is actually discharged because of his union acti ities. If the discharge is actually moti ated by lawful reason, the fact that the employee is engaged in union acti ities at the time will not lie against the employer and pre ent him from the e#ercise of his business 'udgment to discharge an employee for cause ;&=R< vs% Ace 'omb 'o%9. <L2 TA;!<BA C!:&T;<CTIV3 @I&CA*;B3 *n employee was held to be constructi ely discharged when she (uit her 'ob because of the employee=s discriminatory assignment re(uiring hea y lifting work which the employer knew she was physically unable to perform ;&=R< vs% )acuum9.
LABOR LAW
V*LI@ITO !1 TA3 CL!&3@ &A!2 *B;3343:T * closed shop agreement is alid form of union security, and such a pro ision in a collecti e bargaining agreement is not a restriction of the right of freedom of association guaranteed by the Constitution ;3anila 3andarin *mployees .nion vs% &=R'9. *@V*:T*B3& *:@ @I&*@V*:T*B3& !1 CL!&3@-&A!2 *B;3343:T * closed-shop agreement is ad antageous because itK a. Increases the strength and bargaining power of labor organi"ations. b. 2re ents nonunion workers from sharing in the benefits of the union=s acti ities without also sharing its obligations. c. 2re ents the weakening of labor organi"ations by discrimination against union members. d. 3liminates the lowering of standards caused by competition with nonunion workers. e. 3nables labor organi"ations effecti ely to enforce collecti e agreements. f. 1acilitates the collection of dues and the enforcement of union rules. g. Creates harmonious relations between the employer and the employee ;&=. vs% AguinaldoIs *chague9. <L2 I: * BIV3: 23;I!@ &A!<L@ B3 I:CL<@3@ I: &I:BL3 CA*;B3

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9hen a labor union accuses an employer of acts of unfair labor practice allegedly committed during a gi en period of time, the charges should include all acts of unfair labor practice committed against any and all members of the union during that period. The union should not, upon the dismissal of the charges first preferred, be allowed to split its cause of action and harass the employer with subse(uent charges, and based upon acts committed during the same period of time ;4ionela vs% 'ourt of Cndustrial Relations9% COLLECTIME BARHAININH AHREE;ENTQ C$)C&P9 CB* @31I:3@ * collecti e bargaining agreement -CB*0, as used n *rt +.+ of the labor code, refers to a contract e#ecuted upon re(uest of either the employer or the e#clusi e bargaining representati e of the employees incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for ad'usting any grie ances or (uestions under such agreement ;4avao Cntegrated Port Stevedoring Services vs% Abar(ue$9. 2*;TI3& T! C!LL3CTIV3 B*;B*I:I:B The duty to bargain collecti ely arises only between the %employer) and its %employees.) 9here nether party is an %employer or employee of the other no such duty would e#ist. :eedless to add, where there is no duty to bargain collecti ely, the refusal to bargain iolates no rights ;Allied 5ree +or,ers .nion vs% 'ompania 3aritima9. D<;I&@ICTI!:*L 2;3C!:@ITI!:& !1 C!LL3CTIV3 B*;B*I:I:B *lthough bargaining is a mutual obligation of the parties, the employer is not under any legal duty to initiate contract negotiation. The mechanics of collecti e bargaining is set n motion only when the following 'urisdictional preconditions namelyH /12 possession of the status of ma'ority representation of the employees= representati e in accordance with any of the means of selection or designation pro ided for by the labor code$ /(2 proof of ma'ority representation$ and /-2 a demand to bargain under *rt. +.C, par. -a0 of the Labor Code ;=oy vs% &=R'9. 9*B3 *B;3343:T$ %S@=@3@&C') *22;!*CA I: 9*B3 @I&2<T3
San Beda Colle+e of
The %middle ground approach) employed by the secretary in this case which the &upreme Court does not necessarily find the best method of resol ing a wage. 4erely finding the midway point between the demands of the company and the union, and %splitting the difference) is a simplistic solution that fails to recogni"e that the parties may already be at the limits of the wage le els they can afford. It may lead to the danger too that neither of the parties will engage principled bargaining$ the company may keep its low position while the union presents an artificially high position, on the fear that a %&olomonic) solution cannot be a oided. Thus rather than encourage agreement, a %middle ground approach) instead promotes a %play safe) attitude that leads to more deadlocks than to successfully negotiated CB*s ;3anila *lectric 'o vs% Hon% Sec of =abor and 3ewa9. 9!;N ;<L3&
Law
Company rules relating to safety and work practices come within the meaning of the phrase %other terms and conditions of employment) as used in the *ct and, therefore, constitute a mandatory sub'ect of collecti e bargaining ;&=R< vs% 2ulf Power 'o%9. B*;B*I:I:B T! 2!I:T !1 I42*&&3 The (uestion as to what are mandatory and what are merely permissi e sub'ects of collecti e bargaining is of significance on the right of a party to insist on his position to the point of stalemate. * party may refuse to enter into a collecti e bargaining contract unless it includes a desired pro ision as to a matter which is a mandatory sub'ect of collecti e bargaining$ but a refusal
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to contract in good faith that the insistence on the disputed clause was not the sole cause of the failure to agree or that agreement was not reached with respect to other disputed clauses -Samahang 3anggagawa sa Dop 5orm 3anufacturing-.nited +or,ers of the Philippines vs% &=R'9. B*;B*I:I:B T! TA3 2!I:T !1 I42*&&3H B*@ 1*ITA ! er a non-mandatory sub'ect, on the other hand, a party may not insist on bargaining to the point of impasse, otherwise his insistence can be construed as bargaining in bad faith ;&=R< vs% +oorster 4ivision of <org-+arner 'orp%9. ;*TI1IC*TI!:$ 4*:@*T!;O ;3T<I;343:T& The rules re(uire posting of the CB* in two conspicuous places for fi e days. In one case, the CB* was not posted for at east fi e days in two conspicuous places n the establishment before ratification, to enable the workers to clearly inform themsel es of its pro isions. 4oreo er, the CB* submitted to the 4!L3 did not carry the sworn statement of the union secretary, attested by the union president, that the CB* had been duly posted and ratified, as re(uired by section 5, ;ule 6, Book V of the implementing ;ules and ;egulations. The court ruled that these re(uirements being mandatory, noncompliance there with rendered the CB ineffecti e -Associated Drade .nions vs% Drajano9. <:;*TI1I3@ B<T I42L343:T3@ CB* The parties to a collecti e agreement are re(uired to furnish copies to the appropriate ;egional !ffice with accompanying proof of ratification by the ma'ority of all the workers in the bargaining unit. This was not done in the case at bar. 9e do not declare the CB* in alid or oid considering that the employees ha e en'oyed from it. They cannot recei e benefits under the pro isions fa orable to them and later insist that the CB* is oid simply because other pro isions turn out not to the liking of certain employees. It is ini(uitous to recei e benefits from a CB* and later on disclaim its alidity ;Planters Products, Cnc% vs% &=R'9. C3;TI1IC*TI!: !1 TA3 CB* BO TA3 B<;3*< !1 L*B!; ;3L*TI!:& :either is the certification of the CB* by the bureau of labor relations re(uired to put a stamp of alidity to such contract. !nce it is duly entered into and signed by the parties, a collecti e bargaining agreement becomes effecti e as between the parties regardless of whether the same has been certified by the BL; ;=iberty 5lour 3ills *mployees vs% =iberty 5lour 3ills, Cnc%9. COLLECTIME BARHAININH AHREE;ENT? 9&(/S 3113CTIVITO !1 CB* C!:CL<@3@ *1T3; &IP 4!:TA& 1;!4 3P2I;*TI!: !1 TA3 !L@ CB* In the absence of a new CB*, the parties must maintain status (uo and must continue in full force and effect the terms and conditions of the e#isting agreement until a new agreement is reached. In this manner, the law pre ents the e#istence of a gap in the relationship between the collecti e bargaining parties. *nother legal principle that should apply is that in the absence of an agreement between the parties, then, an arbitrated CB* takes on the nature of any 'udicial or (uasi-'udicial award$ it operates and may be e#ecuted only prospecti ely unless there are legal 'ustifications for its retroacti e application ;3anila *lectric 'ompany vs% Puisumbing and 3*+A9. *B;33@ B<T <:&IB:3@ CB* 9ITAI: &IP 4!:TA& The renegotiated CB* retroacts if the parties reached agreement within si# months from e#piry date. The determining point is the date they agreed, not the date they signed -3indanao Derminal vs% 'onfesor and A=.-D.'P9. COLLECTIME BARHAININH AHREE;ENT? &XC%<SIE& ?A('AI)I)' (&P(&S&)9A9I$)
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342L!O33&= 2*;TICI2*TI!: I: 1!;4<L*TI:B TA3 C!@3 !1 @I&CI2LI:3 Verily, a line must be drawn between management prerogati es regarding business operations pers se and those which affect the rights of the employees. In treating the latter, management should see to it that its employees are at least properly informed of its decisions or modes of action. The collecti e bargaining agreement may not be interpreted as cession of employees= right to participate in the deliberation of matter which may affect their rights and the formulation of policies relati e thereto. *nd one such matter is the formulation of a code of discipline ;Philippine Airlines, Cnc% vs% &=R'9. BL!B3 @!CT;I:3 The desires of the employees are rele ant to the determination of the appropriate bargaining unit. The rele ancy of the wishes of the employees concerning their inclusion or e#clusion from a proposed bargaining unit is inherent in the basic right of self-organi"ation. 9hile the desires of employees with respect to their inclusion in the bargaining unit is not controlling, it is a factor which would be taken into consideration in reaching a decision ;2lobe 3achine E Stamping 'o9% &I:BL3 !; %342L!O3; <:IT) I& 1*V!;3@ The proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to selforgani"ation for purposes of collecti e bargaining ;Philtranco Service *nterprises vs% <ureau of =abor Relations9. 3PC32TI!:& T! !:3-<:IT 2!LICO The usual e#ception, of course, is where the employer unit has to gi e way to the other units like the craft unit, plant unit, or a subdi ision thereof$ the recognition of these e#ceptions takes into account the policy to assure employees of the fullest freedom in e#ercising their rights. !therwise stated, the one company-one union policy must yield to the right of the employees to form unions or associations for purposes not contrary to law, to self-organi"ation and to enter into collecti e bargaining negotiations, among others which the Commission guarantees ;<arbi$on Phil% )s% &ag,a,aisang Supervisor ng <arbi$on, et%al%9.
San Beda Colle+e of
T9! C!42*:I3& 9ITA ;3L*T3@ B<&I:3&& Two corporations cannot be treated as single bargaining unit e en if their businesses are related ;Cndophil De"tile 3ill +or,ers .nion-PD2+@ vs% )oluntary Arbitrator 'alica and CndoPhil De"tile 3ills, Cnc%9. &<B&I@I*;I3& *:@ &2<:-!11 C!;2!;*TI!:& In determining an appropriate bargaining unit, the test of grouping is mutuality or commonality of interests. The employees sought to be represented by the collecti e bargaining agent must ha e substantial mutual interests in terms of employment and working conditions as e inced by the type of work they performed. Considering the spin-offs, the companies would conse(uently ha e their respecti e and distincti e concerns in terms of the nature of work, wages, hours of work and other conditions of employment. Interests of employees in the different perforce differ. The employees of different companies see the need to group themsel es together and organi"e themsel es into distincti e and different groups. It would then be best to ha e separate bargaining units for the different companies where the employees can bargain separately according to their needs and according to their own working condition ;San 3iguel 'orp% *mployees .nion-PD2+@, etc vs% 'onfesor, San 3iguel 'orp%, 3agnolia 'orp%, and San 3iguel 5oods, Cnc%9. COLLECTIME BARHAININH AHREE;ENT? C&(9I=ICA9I$) &%&C9I$)
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Law
LABOR LAW
<L2 I: ;3L*TI!: T! 3L3CTI!: It is unfair labor practice for the company to suspend the workers on the ground of %abandonment of work on the day on which the pre-election had been scheduled. It is the employee=s right to hold a certification election, the e#ercise of which is their sole prerogati e ;'==' *% 2% 2ochonco +or,ers .nion, et al% vs% &=R'9. T93LV3-4!:TA B*; :o petition for a C3 maybe filed within one year from the date of a alid certification, consent, or run-off election or from the date of oluntary recognition. &uppose, for instance, that an election has been held but not one of the unions won. The ne#t election cannot be held within twel e-months. The prohibition presupposes that there was an actual conduct of election, i.e. ballots were cast and there was a counting of otes. In case where there was no certification election conducted precisely because the first petition was dismissed on the ground of a defecti e petition which did not include all the employees who should be properly included in the collecti e bargaining unit, the certification year bar does not apply ;R% Dranport 'orp% vs% =aguesma9. @3*@L!CN B*; ;<L3 The %@eadlock) rule simply pro ides that a petition for certification can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the sub'ect of a alid notice of strike or lockout. The principle purpose is to ensure stability in the relationship of the workers and the management ;&ational 'ongress of .nions in the Sugar Cndustry of the Philippinines-D.'P vs% Drajano9. @3*@L!CN ;<L3 9A3: :!T *22LIC*BL3 The deadlock rule does not apply where there is a certification of election ordered to be conducted ;Naisahan ng 3anggagawang Pilipino vs% Drajano9. 1;33@!4 23;I!@ <:@3; +.8-* *:@ +.G The freedom period under *rts +.8-* and +.G is different from and ought not to be mistaken for the other GC-day period mentioned in art. +.8. The latter speaks of the right of the parties to propose modifications in the e#isting CB*, as an e#ception of the rule that the CB* cannot be modified during its lifetime. This GC-day period under *rt. +.8 does not and cannot refer to the representati e status of the incumbent union since the ac(uisition or loss of representati e status of a union is to be resol ed through a certification election, and not through CB* negotiation with the employer. Therefore, the GC-day period under +.8 refers to modifying or renegotiating the CB* pro isions other than the representational. Those stipulations, in practice, are called %economic) or non-political. To clarify terms, the GC-days in +.8 may be called %renegotiation proposal period) or simply %proposal period,) while under *rts +.8-* and +.G is, as already established, the freedom period. The proposal period is the last GC days of the last year of the nonrepresentational pro isions$ the freedom period is the last GC days of the CB*=s fifth year ;San 3iguel 'orporation vs% Drajano9. CB* &<;;32TITI!<&LO ;3BI&T3;3@ 3 en if the e#isting CB* is registered surreptitiously, as alleged by the petitioner union, but no e idence is presented pro ing the alleged surreptitious registration, the petition for C.3. cannot be granted. The contract bar rule applies. 9hether or not the CB* was indeed surreptitiously registered is a factual matter whose determination is outside the ambit of a petition for certiorari ;Pambansang Napatiran ng mga Ana, Pawis sa 5ormey vs% Sec% of =abor9. CB* &IB:3@ B31!;3 !; 9ITAI: 1;33@!4 23;I!@

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* collecti e bargaining agreement which was prematurely renewed is not a bar to the holding of a certification election. &uch indecent haste in renewing the CB* despite an order en'oining them from doing so is designed to frustrate the constitutional right of the employees to self-organi"ation ;Associated =abor .nions vs% 'alleja9. V*LI@ITO !1 CB* &IB:3@ @<;I:B ;32;3&3:T*TI!: @I&2<T3 9hen a collecti e bargaining agreement is entered into at the time when the petition for certification election had already been filed by a union and was then pending resolution, the said collecti e bargaining agreement cannot be deemed permanent, precluding the commencement of negotiations by another union with the management. In the meantime, howe er, so as not to depri e the workers of the benefits of the said agreement, it shall be recogni"ed and gi en effect on a temporary basis, sub'ect to the results of the certification election. The agreement may be continued in force if the union that negotiated it is certified as the e#clusi e bargaining representati e of the workers or may be re'ected and replaced in the e ent the ri al union emerges as the winner ;Associated Drade .nions vs% Drajano9. CB* 9AICA I& :!T *<T!4*TIC*LLO ;3:393@ * bargaining contract which pro ides for automatic renewal in the absence of notice by one of the contracting parties to alter, modify or terminate it prior to a specified period preceding the terminating date, will usually operate as a bar to a certification election. Aowe er, this rule does not apply where the employer filed, with the Court of Industrial ;elations, reasonably prior to specified date for automatic renewal, a petition or manifestation of its intention to terminate such contract if and when it is found that the collecti e bargaining agency with whom the employer had the contract no longer represented the ma'ority of the employer=s workers ;P=4D *mployeesI .nion vs% P=4D 'ompany and 5ree Delephone +or,ersI .nion9. CB* TA*T @!3& :!T 1!&T3; &T*BILITO Basic to the contract bar rule is the proposition that the delay of the right to select representati es can be 'ustified only where stability is deemed paramount. 3#cepted from the contract-bar rule are certain types of contracts which do not foster industrial stability, such as contracts where the identity of the representati es is in doubt. *ny stability deri ed from such contracts must be subordinated to the employees= freedom of choice because it does not establish the type of industrial peace contemplated by the law ;Philippine Association of 5ree =abor .nions vs% *strella9. 3113CT !1 9ITA@;*9*L !1 &IB:*T!;I3& It appearing indisputably that the 8+5 union members had withdrawn their support to the petition. It would be otherwise if the withdrawal was made after the filing of the petition for it would then be presumed that the withdrawal was not free and oluntary. The presumption would arise that the withdrawal was procured through duress, coercion or for aluable consideration. In other words, the distinction must be that withdrawals made before the filing of the petition are presumed oluntary unless there is con incing proof to the contrary, whereas withdrawals made after the filing of the petition are deemed in oluntary. The reason for such distinction is that if the withdrawal or retraction is made before the filing of the petition, the names of employees supporting the petition are supposed to be held secret to the opposite party. Logically, any such withdrawal or retraction shows oluntariness in the absence of proof to the contrary. 4oreo er, it becomes apparent that such employees had not gi en consent to the filing of the petition$ hence the subscription re(uirement has not been met. 9hen the withdrawal or retraction is made after the petition is filed, the employees who are supporting the petition become known to the opposite party since their names are attached to the petition at the time of filing. Therefore, it would not be une#pected that the opposite party would use foul means for the sub'ect employees to withdraw their support ;=a Suerte 'igar and 'igarete 5actory vs% Drajano9.
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@I&4I&&3@ 342L!O33& In 2hilippine 'urisprudence it is now settled that employees who ha e been improperly laid off but who ha e a present, unabandoned right to an e#pectation of reemployment, are eligible to ote in certification elections. Thus, and to repeat, if the dismissal is under (uestion, as in the case now at bar, whereby the case of illegal dismissal andQor unfair labor practice is filed, the employees concerned could sill (ualify to ote in the elections ;Phil% 5ruits and )egetables Cndustries, Cnc% vs% Dorres9% 2;!B*TI!:*;O 342L!O33& In certification election all rank-and-file employees in the appropriate bargaining unit are entitled to ote. This principle is stated in *rticle +.. of the Labor Code, which states that the %labor organi"ation designated or selected by the ma'ority of the employees in an appropriate bargaining unit shall be the e#clusi e representati e of the employees in such unit for the purpose of collecti e bargaining) ;Airtime Specialists, Cnc% vs% 4irector of =abor Relations9. STRIAES AND LOCAOUTSQ C$)C&P9 !BD3CTIV3 !1 &T;IN3 *:@ L!CN!<T !rdinarily, a strike is a coerci e acti ity resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to ha e its production or acti ities interrupted, much less paraly"ed. *ny interruption or stoppage of production spells loss, e en disaster. The capital in ested in machinery, factory and other properties connected with the business would be unproducti e during a strike or stoppage of the business. !n the other hand, the o erheard e#penses consisting of the salaries of its officials, including real estate ta#es and licenses fees continue. Nnowing this, the strikers by going on strike seek to interrupt and paraly"e the business and production of the company. The employer company is on the defensi e. It almost in ariably wants the strike stopped and the strikers go back to work so as to resume and continue production. Because of the threat or danger of loss to the company, it does not infre(uently gi e in to the demands of the strikers, 'ust so it can maintain the continuity of its production ;Philippine 'an 'ompany vs% 'ourt of Cndustrial Relations and =iberal =abor .nion9. :*T<;3 !1 L!CN!<T Lockout means the temporary refusal of any employer to furnish work as a result of an industrial or labor dispute$ an employer=s act e#cluding employees who are union members from his plant ;Sta% 3esa Slipways *ngineering 'o% vs% 'CR9. T3;4& *:@ C!:@ITI!:& !1 B!V3;:43:T 342L!O43:T In go ernment employment, it is the legislature and, where properly gi en delegated power, the administrati e heads of go ernment, which fi# the terms and conditions of employment. *nd this is effected through statutes or administrati e circulars, rules, and regulations, not through collecti e bargaining ;Social Security System *mployees Association vs% 'ourt of Appeals9. &3C!:@ 1*CT!; I: L3B*LITO !1 &T;IN3H 2;!C3@<;*L ;3T<I;343:T& 9hen the law says %the labor union may strike) should the dispute %remain unsettled until the lapse of the re(uisite number of days -cooling-off period0 from the mandatory filing of the notice,) the unmistakable implication is that the union may not strike before the lapse of the cooling-off period. &imilarly, the mandatory character of strike ban after the report on the strike I ote is manifest in the pro ision that %e ery case,) the union shall furnish the 4!L3 with results of the oting %at least se en days before the intended strike, sub'ect to the -prescribed0 cooling-off period and ,-day strike ban must both be complied with, although the labor union may take a strike ote and report the same within the statutory cooling-off period ;&ational 5ederation of Sugar +or,ers vs% @vejera9. L3B*LITO !1 &T;IN3 :!T @323:@3:T <2!: *BILITO !1 4*:*B343:T
LABOR LAW

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College of Law LAW

T! B;*:T @34*:@&
San Beda LABOR
The demands that ga e rise to the strike may not properly be granted under the circumstances of this case, but the fact should not make said demands and the conse(uent strike illegal. The ability of the Company to grant said demands is one thing, and the right of the laborers to make said demands is another thing. The latter should be kept in iolate. There are ade(uate instrumentalities which may be resorted to in case of e#cesses ;'entral )egetable @il 3anufacturing vs% Philippine @il Cndustry +or,ers .nion9. &T;IN3 *B*I:&T 342L!O33=& <:1*I; L*B!; 2;*CTIC3& <nion busting, or interference with the formation of a union, constitutes an unfair labor practice act, hence a alid ground for the declaration of strike ;Jamboanga +ood Products, Cnc%, vs% &=R'9. T3&T& I: @3T3;4I:I:B TA3 3PI&T3:C3 !1 *: <:1*I; L*B!; 2;*CTIC3 &T;IN3 There are two tests in determining the e#istence of an unfair labor practice strikeH 5. !b'ecti ely, when the strike is declared in protest of unfair labor practice which is found to ha e been actually committed$ and 2. &ub'ecti ely, when a strike is declared in protest of what the union belie ed to be unfair labor practices committed by management, and the circumstances warranted such belief in good faith, although found subse(uently as not committed ;&orton and Harrison 'o% =abor .nion v% &orton and Harrison 'o%9. 4I:!;ITO <:I!: &T;IN3 By law, the right to be the e#clusi e representati e of all the employees in an appropriate collecti e bargaining unit is ested in the labor union %designated or selected) for such purpose %by the ma'ority of the employees) in the unit concerned. 9hen a union, after winning in an election, is certified as the e#clusi e bargaining representati e, any other union who participated in the election thereby becomes a minority union. * minority union cannot demand collecti e bargaining with the employer. &uch right properly belongs to the union that commands the ma'ority. 4oreo er, the defeated union cannot lawfully undertake a strike against the employer$ if one is being done, it must come to a halt. :either can it picket to compel bargaining. %To allow said union to continue picketing for the purpose of drawing the employer to collecti e bargaining table would ob iously be to disregard the results of the consent election. To further permit the union=s picketing acti ities would be to flaunt at the will of the ma'ority.) *fter a union has been certified as the bargaining representati e, a strike by a minority union t compel an employer to bargain with it is unlawful. :o labor dispute can e#ist between a minority union and an employer in such a case ;.nited RestaurorIs *mployees and =abor .nion v% Dorres and 4elta 4evelopment9. @31I*:C3 !1 ;3T<;:-T!-9!;N-!;@3; The return-to-work order should benefit not only those workers who comply with it and regardless of the outcome of the compulsory arbitration proceedings, are entitled to be paid for the work they ha e actually performed. Con ersely, those workers who refuse to obey said returnto-work order and instead wage a strike are not entitled to be paid for work not done or to reinstatement to the positions they ha e abandoned by their refusal to return thereto as ordered ;Sarmiento vs% Duico9. &T;IN3 !V3; *: <:1*I; L*B!; 2;*CTIC3 *CT @3&2IT3 * &@-SDRCN*/&@-=@'N@.D PR@)CSC@& I: TA3 CB* * no-strike prohibition in a collecti e bargaining agreement is applicable only to economic strikes. In other words, <L2 strike is not co ered and workers may go on strike based on <L2 despite the no-strike pro ision ;Philippine 3etal 5oundaries, Cnc% vs% 'CR9.
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The union brands as illegal the stipulation in the collecti e bargaining agreements that %in case of any unfair labor practice on the part of either party, there will be no strikes, lockouts, or any pre'udicial action ### until the (uestion or grie ance is resol ed by the proper court if not settled through a grie ance procedure therein outlined.) The authorities are numerous which hold that strikes held in iolation of the terms contained in a collecti e bargaining agreement are illegal, especially when they pro ide for conclusi e arbitration clauses. These agreements must be strictly adhered to and respected if their ends ha e to be achie ed ;2@P-''P +or,ers .&C@& vs% 'CR9. BOOA SII TER;INATION O4 E;7LO>;ENTQ 1<S9 A)# A<9-$(IP&# CA<S&S I:T;!@<CTI!: !1 L*B!; &*VI:B @3VIC3& ;eduction of the number of workers in a company=s factory made necessary by the introduction of machinery in the manufacture of its products is 'ustified. There can be no (uestion as to the right of the manufacturer to use new labor sa ing de ices with a iew to effecting more economy and efficiency in its method of production ;Philippine Sheet 3etal +or,ersI .nion vs% 'CR9. ;3T;3:CA43:T ;etrenchment is one of the economic grounds to dismiss employees. It is resorted to by an employer primarily to a oid or minimi"e business losses. The law recogni"es this under *rt +78 of the Labor Code. Aowe er, the employer bears the burden to pro e his allegation of economic or business re erses. The employer=s failure to pro e it necessarily means that the employee=s dismissal was not 'ustified ;Precision *lectronics 'orporation vs% &=R'9. ;3T;3:CA43:TH 9A!4 T! L*O-!11 There must be fair and reasonable criteria to be used in selecting employees to be dismissed, on account of retrenchment, such as -a0 less preferred status -i.e., temporary employees0$ -b0 efficiency rating, and -c0 seniority ;Asiaworld Publishing House, Cnc% vs% @ple9. L*CN !1 9!;N Lack of work is a 'ustifiable cause for termination of employment. 2rotection to labor does not mean oppression or self-destruction of capital. 9here the continuation of the men in ser ice is patently inimical to the interest of the employer, there is no alternati e but for the court to authori"e the employer to lay off such number of workers as the circumstances may warrant. But the court may impose the condition that the employer shall not admit any new laborer in case of a ailable work in the future before the laid-off men who are able, willing and a ailable to do the same shall ha e been recalled to work ;3ayon *ngineering +or,erIs .nion vs% 3ayon *ngineering and 3achine Shop9.
LABOR LAW
;3T;3:CA43:T *:@ C!:&3;V*T!;&AI2 The retrenchment of personnel as a conse(uence of conser atorship proceedings against an insurance company in financial difficulties is a cost-sa ing measure resorted to by the conser ator to preser e the assets of the company for the protection of not only the policyholders and creditors but also the in estors and the public in general. Conser atorship proceedings contemplate, not the li(uidation of the company in ol ed, but a conser ation of company assets and business during the period of stress by the commissioner of Insurance, who thereafter yields control to the regular officers of the company ;2arcia vs% &=R'9. 1!<; &T*:@*;@& !1 ;3T;3:CA43:T 5irstly, the losses e#pected should be substantial and not merely de minimis in e#tent. If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial
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and inconse(uential in character, the bona fide nature of the retrenchment would appear to be seriously in (uestion. Secondly, the substantial loss apprehended must be reasonably imminent, as such imminence can be percei ed ob'ecti ely and n good faith by the employer. There should, in other words, be certain degree of urgency for the retrenchment, which is, after all, a drastic recourse with serious conse(uences for the li elihood of the employees retired or otherwise laid-off. Dhirdly, there must be reasonably necessary and likely to effecti ely pre ent the e#pected losses. The employer should ha e taken other measures prior or parallel to retrenchment to forestall losses, i.e., cut other costs than labor costs. =astly, but certainly not the least important, alleged losses if already reali"ed, and the e#pected imminent losses sought to be forestalled, must be pro en by sufficient and con incing e idence. The reason for re(uiring this (uantum of proof is readily apparentH any less e#acting standard of proof would render too easy the abuse of this ground for termination of ser ices of employees ;=ope$ Sugar 'orporation vs% 5ederation of 5ree +or,ers, et al%9 ;3@<:@*:CO @I&TI:B<I&A3@ 1;!4 ;3T;3:CA43:T ;edundancy e#ists where the ser ices of an employee are in the e#cess of what is reasonably demanded by the actual re(uirements of the enterprise. * position is redundant where it is superfluous, a superfluity of a position or positions may be the outcome of a number of factors, such as o er hiring of workers, decreased olume of business, or dropping of a particular product line or ser ice acti ity pre iously manufactured or undertaken by the enterprise. ;etrenchment, on the other hand, is used interchangeably with the term %lay-off.) It is the termination of employment initiated by the employer through no fault of the employees and without pre'udice to the latter= resorted to by management during periods of business recession, industrial depression, or seasonal fluctuations, or during lulls occasioned by lack of orders, shortage of materials, con ersion of the plant machinery, or of automation. &imply put, it is an act of the employer of dismissing employees because of losses in the operation of a business, lack of work, and considerable reduction on the olume of his business a right consistently recogni"ed and affirmed by this court ;Sebuguero, et al% vs% &=R'9. CL!&<;3 !1 B<&I:3&& <nder *rticle +7E of the Labor Code, three re(uirements may be seen to be established in respect of cessation of business operations of an employer company not due to business re erses, namelyH a0 ser ice of written notice to the employees and to the 4!L3 at east one month before the intended date thereof$ b0 the cessation of or withdrawal from business operations must be bona fide in character$ and c0 payment to the employees of termination pay amounting to at east onehalf month pay for each year of ser ice, or one month pay, whiche er is higher ;3obil *mployees Association and Cnter-Csland =abor @rgani$ation9. T342!;*;O &A<T@!9: Temporary shutdown of one of the furnaces of a glass plant is not a good reason to terminate employees where operations continued after such repairs, and it is apparent that the closure of the company=s warehouse was merely a ploy to get rid of the employees who were then agitating the company for benefits, reforms and collecti e bargaining as a union. There is no showing that petitioners had been remiss in their obligations and inefficient in their 'obs to warrant their separation ;/<rotherhood1 =abor .nity 3ovement of the Philippines, et al% vs% Jamora9. 43;B3; By the fact of merger, succession of employment rights and obligations occurs between the absorbing corporation and the employees of the absorbed corporation. :ot only must the absorbing corporation retain the employees, it should likewise recogni"e the length of ser ice in the pre ious employer. In merger, like in sale in bad faith, the %successor employer) principle applies ;5ilipinas Port Services, Cnc% vs% &=R'9.
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*IL43:T !; @I&3*&3 * medical certificate issued by the company=s own physician, is not certificate by %competent public health authority) ;'ebu Royal Plant KSan 3iguel 'orporationL vs% 4eputy 3inister of =abor9. 2;3V3:TIV3 &<&23:&I!: *:@ I:V3&TIB*TI!: @! :!T ;32L*C3 %T9!-:!TIC3 ;3T<I;343:T) !1 @<3 2;!C3&& The notice of pre enti e suspension cannot be considered ade(uate notice since the ob'ecti es of the petitioner=s pre enti e suspension, as stated in the notice, were merely to ascertain the e#tent of the loss to the bank and to pinpoint responsibility of the arties in ol ed, and not to apprise the petitioner of the causes of is desired dismissal. Likewise, the subse(uent inter iew is not the %ample opportunity to be heard) contemplated by law. *mple opportunity to be heard is especially accorded to the employee sought to be dismissed after he is informed of the charges against him in order to gi e him an opportunity to refute the accusations le eled against him, and it certainly does not consist of an in(uiry conducted merely for the purpose of filing a criminal case against another person ;&orman de )era vs% &=R' and <an, of the Philippine Cslands9. The employer is mandated to furnish the employee sought to be dismissed two notices, the written charge, and, if, after hearing, dismissal is indeed warranted. I:&<11ICI3:T :!TIC3H C!:&<LT*TI!: 9ITA <:I!: The employer=s %prior consultation) with the union with which the employee is affiliated is legally insufficient. The rights of an employee whose ser ices are sought to be terminated to be informed beforehand of his proposed dismissal -or suspension0 as well as of the reasons therefore, and to be afforded an ade(uate opportunity to defend himself from the charges le eled against him, are rights personal to the employee. Those rights are not satisfied by the employer=s obtaining the consent of or consulting with the labor union. &uch consultation or consent is not substitute for actual obser ance of those rights of the employee. The employee can wai e those rights, if he chooses, but the union cannot wai e them for him ;'entury De"tile 3ills, Cnc% vs% &=R', et% al%9. @<3 2;!C3&& I: *<TA!;IU3@ C*<&3& In employment termination due to authori"ed causes, the due process re(uirement is not completely done away with. In estigation and hearing need not be done by the employer, but the one-month ad ance notices to the affected employee and to the @!L3 must be complied with, otherwise the termination is illegal ;+ittshire 5ile 'o% vs% &=R'9. B*&I& !1 C!42<T*TI!: !1 B*CN9*B3& The base figure to be used in the computation of backwages due to the employee should include not 'ust the basic salary, but also the regular allowances that he had been recei ing such as the emergency li ing allowances and the 58th- month pay mandated by the law ;Paramount )inyl Product 'orporation vs% &=R'9.
LABOR LAW
B*CN9*B3& <2 T! ;3TI;343:T *B3 !:LO If the ordered reinstatement is no longer feasible because he employee has reached retirement age, the court will not insist on reinstatement and e en the backwages will not e#tend beyond the employee=s retirement date ;*(uitable <an,ing 'orporation vs% &=R' and R%=% Salac9. I:1L*TI!: ;egarding the argument that the inflation that has super ened 'ustifies the imposition of interest, the Court has held that the effects of e#traordinary inflation are not to be applied without an agreement between the parties and without an official declaration thereof by competent authorities ;=antion, et al% vs% &=R'9. *22LIC*BILITO !1 TA3 &T;*I:3@ ;3L*TI!:& 2;I:CI2L3
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College of Law LAW
San Beda LABOR
The rule is that %strained relations) may be in oked only against employees whose positions demand trust and confidence, or whose differences with their employer are of such nature or degree as to preclude reinstatement ;3aranaw Hotels vs% 'A9. ;3I:&T*T343:T &A!<L@ A*V3 B33: !;@3;3@ BO L*B!; *;BIT3; If the labor arbiter has not ordered reinstatement of the employee, the :L;C cannot award backwages for the period when the appeal was pending at the :L;C. *n order for reinstatement must be specifically declared and cannot be presumed$ like backwages, it is separate and distinct relief gi en to an illegally dismissed employee. There being no specific order of reinstatement and the order being for complainant=s separation, there can be no basis for the award of salariesQ backwages during the pendency of appeal ;5ilfle" Cndustrial and 352% 'orp vs% &=R'9. @*4*B3& If the e idence adduced by the employee before the Labor *rbiter should establish that the employer did indeed terminate the employee=s ser ices without 'ust cause or without according him due process, the Labor *rbiter=s 'udgment shall be for the employer to reinstate the employee and him backwages, or e#ceptionally, for the employee simply to recei e separation pay. These are reliefs e#plicitly prescribed by the labor code. But any award of moral damages by the Labor *rbiter ob iously cannot be based on the labor code but would be grounded on the Ci il Code. &uch an award cannot be 'ustified solely upon the premise -otherwise sufficient for redress under the Labor Code0 that the employer fired his employee without 'ust cause or due process ;Suario vs% <an, of the Philippine Cslands9. 4!;*L @*4*B3& 4oral damages may be awarded to compensate one for di erse in'uries such as mental anguish, besmirched reputation, wounded feelings and social humiliation. It is howe er, not enough that such in'uries ha e arisen. It is essential that they ha e sprung from a wrongful act or omission of the defendant which was the pro#imate cause thereof ;Suario vs% <PC9. TER;INATION O4 E;7LO>;ENT? ?L &/P%$L&& ;3&IB:*TI!: *:@ ;3&IB:*TI!: :!TIC3
San Beda Colle+e of
;esignation is the oluntary act of an employee who %finds himself is a situation where he belie es that personal reason cannot be sacrificed in fa or of the e#igency of the ser ice, then he has no other choice but to disassociate himself from his employment) The employer has no control o er resignations and so the notification re(uirement was de ised in order to insure that no disruption of work would be in ol ed by reason of the resignation. ;esignation, once accepted and being the sole act of the employee may not be withdrawn without the consent of the employer ;Cntertrod 3aritime, Cnc% vs% &=R'9. ;3&IB:*TI!: 2*O The general rule is that an employee who oluntarily resigns from employment is not entitled to separation pay, unless there is a stipulation for payment in the employment contract or Collecti e Bargaining *greement, or payment of the amount is sanctioned by established employer practice or policy ;Dravelaire E Dours 'orp% vs% &% 3edelyn9.
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LABOR LAW
B*;-TO23 T<3&TI!:&
5. Does t!e ,enal ,ro&isions of RA @06( &iolate t!e e:"al ,rote%tion %la"se of t!e Constit"tion'

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The e(ual protection clause is directed principally against undue fa or and indi idual or class pri ilege. It is not to prohibit legislation which is limited to the ob'ect to which it is directed and by the territory in which it is to operate. It does not re(uire absolute e(uality, but merely all persons be treated under like conditions both as to pri ileges conferred and liabilities imposed. ;*F*'% S*'R*DARM )S% 'A, 3ay 6 , 6BB>9 +. Is e&er# %ontro&ers# or one# %lai b# an e ,lo#ee a+ainst t!e e ,lo#er or &i%e &ersa wit!in t!e e$%l"si&e D"risdi%tion of t!e labor arbiter' :o. :ot e ery contro ersy or money claim by an employee against the meployer or ice ersa is within the e#clusi e 'urisdiction of the labor arbiter. * money claim by a worker against the employer or ice ersa is within the e#clusi e 'urisdiction of the labor arbiter only if there is a reasonable causal connection between the claim asserted and the employer-employee relation.
College of Law LAW
San Beda LABOR
*bsent such link, the complaint will be cogni"able by the regular courts of 'ustice. ;*)C@DA )S% 'A, Guly 67, 6BB89 8. Nati&idad wor5s wit! TC; Colle+e as a liaison offi%er wit! a ran5 of FAssistant Re+istrar.G <e was arrested b# ,oli%e a"t!orities for &iolation of !e Dan+ero"s Dr"+s A%t wit!o"t warrant. and a %ri inal %o ,laint was filed a+ainst !i . TC; Colle+e sent a ;e orand" to Nati&idad infor in+ !i t!at !is e ,lo# ent is alread# ter inated. T!e %ri inal %ase was dis issed for la%5 of erit. Nati&idad did not. !owe&er. file an# %o ,laint to t!e NLRC a+ainst t!e %olle+e on a%%o"nt of !is dis issal. Nati&idad was arrested anew for &iolation of t!e sa e A%t. T!is ti e. !e filed wit! t!e NLRC a %o ,laint for ille+al dis issal. T!e Labor Arbiter and t!e NLRC denied Nati&idad b"t on %ertiorari. t!e CA affir ed. wit! odifi%ation. !oldin+ t!at alt!o"+! t!ere was a &alid %a"se for ,ri&ate res,ondentCs dis issal. t!e ,etitioner did not follow t!e ,ro%ed"re for t!e ter ination of !is e ,lo# ent. Was Nati&idad ille+all# dis issed so as to entitle !i to ba%5wa+es' The normal conse(uences of finding that an employee is illegally dismissed are, firstly, the employee becomes entitled to reinstatement without loss of seniority rights and second, payment of backwages to the period from his illegal dismissal up to actual reinstatement. The award of backwages is not conditioned on the employer=s ability or inability to pay. 9hile it may be true that :ati idad was detained, he was not con icted by final 'udgement in the Criminal Case. Indeed, he is presumed innocent until his guilt is pro ed beyond reasonable doubt. ;D@3AS '=A.4C@ 3*3@RCA= '@==*2*, C&'% )S% 'A, 5ebruary 1A, 6BB>9 E. Is an order of e$e%"tion of a final and e$e%"tor# D"d+e ent in a labor %ase still a,,ealable' :o. &ettled is the rule that after a 'udgemnt has become final, no additions can be made thereto, and nothing can be done therewith e#cept e#ecution$ otherwise, there would be no end to litigations, thus settling at naught the main role of courts of 'ustice, which is to assist in the enforcement of the rule of law and the maintenance of peace and order, by setting 'usticeable contro ersies with finality. ;NC&2 C&D*2RAD*4 S*'.RCDM S*R)C'*S, C&'% )S% 2A=@ S% 2ADA&, Guly ?, 6BB89 .. W!at e&iden%e is needed to s!ow t!at e ,lo#er %o itted UL7 "nder t!e Labor Code'
San Beda Colle+e of
&ubstantial e idence is re(uired to support the claim. &ubstantial e idence has been defined as such rele ant e idence as a reasonable mind might accept as ade(uate to support a conclusion. In the case at bar, the complaint was made only after a deadlock was declared by the <nion. It is clear that such <L2 charge was merely an afterthought. ;SDA&4AR4 'HARD*R4 <A&N *3P=@M**S .&C@& )S% '@&5*S@R, Gune 1A, 6BB>9
G. W!at is s"rfa%e bar+ainin+' It is defined as %going through the motions of negotiating) without any legal intent to reach an agreement. ;SDA&4AR4 'HARD*R4 <A&N *3P=@M**S .&C@& )S% '@&5*S@R, Gune 1A, 6BB>9 ,. 7etitioner and res,ondent "nion entered into and si+ned a CBA %o&erin+ t!e ,eriod of ="l# 10. 1B@@ to ="l# B. 1BB1. On Se,te ber (). 1BB0. t!e res,ondent "nion filed a noti%e of stri5e based on &iolation of CBA. a on+ ot!ers. On O%tober 19. 1BB0. t!e ,etitionerJs +eneral ana+er. wrote t!e A%tin+ Se%retar# of Labor and E ,lo# ent /SOLE for bre&it#2 infor in+ !i of t!e ,etitionerJs de%ision to retren%! 1)1 e ,lo#ees on a sta++ered basis. s,read o&er a ,eriod of 90 da#s. to lessen t!e dail# finan%ial losses bein+ in%"rred b# t!e ,etitioner. T!e ne$t da#. t!e res,ondent "nion infor ed t!e DOLE*NCR t!at t!e "nion will %ond"%t a stri5e &ote referend" . T!e e bers of t!e res,ondent "nion &oted to sta+e a stri5e. DOLE*NCR was t!ereafter infor ed of t!e res"lts of t!e stri5e &ote referend" . On O%tober -1. 1BB0. t!e SOLE iss"ed a stat"s :"o ante bell" order %ertif#in+ t!e %ase to t!e NLRC for %o ,"lsor# arbitration and enDoinin+ t!e ,arties fro en+a+in+ in an# stri5e or lo%5o"t.
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T!e ,etitioner wrote t!e SOLE of its de%ision to i ,le ent its retren%! ent ,ro+ra to ste its !"+e losses. S"bse:"entl#. t!e ,etitioner ter inated t!e e ,lo# ent of 16@ e ,lo#ees. T!e re ainin+ e ,lo#ees were also infor ed t!at it will %lose in si$ ont!s. T!e res,ondent "nion ,rotested t!e a%tions of t!e ,etitioner in&o5in+ Se%tion 18. Arti%le MI of t!e CBA. B# wa# of ri,oste. t!e res,ondent "nion filed on No&e ber 19. 1BB0 anot!er noti%e of stri5e be%a"se of w!at it ,er%ei&ed as t!e ,etitionerJs %ontin"in+ "nfair labor ,ra%ti%es /UL72. On t!e sa e da#. t!e offi%ers of t!e res,ondent "nion and so e e bers sta+ed a ,i%5et in t!e ,re ises of t!e !otel. obstr"%tin+ t!e free in+ress and e+ress t!ereto. T!e followin+ da#. ,etitioner ter inated t!e e ,lo# ent of t!e offi%ers and e bers of t!e res,ondent "nion. On No&e ber (@. 1BB0. t!e SOLE iss"ed an order %ertif#in+ t!e labor dis,"te to t!e NLRC. T!e SOLE iss"ed a ret"rn*to*wor5 order. w!i%! t!e res,ondent offi%ers and e bers %o ,lied. 7etitioner !owe&er filed a %o ,laint wit! t!e Re+ional Arbitration Offi%e of t!e NLRC for ille+al stri5e a+ainst t!e res,ondents on t!e +ro"nd t!at t!e latter failed to %o ,l# wit! t!e re:"ire ents ,ro&ided "nder Arts. (9- and (96 of t!e Labor Code. In t!eir answer. t!e res,ondents alle+ed t!at t!e ,etitioner %o itted UL7 ,rior to t!e filin+ of t!e No&e ber 19. 1BB0 noti%e of stri5e. <en%e. t!ere was no need for t!e res,ondent "nion to %o ,l# wit! Arts. (9- and (96 of t!e Labor Code. as t!e noti%e filed b# t!e "nion on Se,te ber (). 1BB0 was s"ffi%ient %o ,lian%e wit! t!e law. Is t!e stri5e sta+ed b# t!e res,ondent "nion on No&e ber 19 le+al' :!. The re(uisites for a alid strike are as followsH -a0 a notice of strike filed with the @!L3 thirty days before the intended date thereof or fifteen days in case of <L2$ -b0 strike ote appro ed by a ma'ority of the total union membership in the bargaining unit concerned obtained by secret ballot in a meeting called for that purpose$ and -c0 notice gi en to the @!L3 of the results of the oting at least se en days before the intended strike. The re(uisite se en-day period is intended to gi e the @!L3 an opportunity to erify whether the pro'ected strike really carries the appro al of the ma'ority of the union members. The notice of strike and the cooling-off period were intended to pro ide an opportunity for mediation and conciliation. The re(uirements are mandatory and failure of a union to comply therewith renders the strike illegal. * strike simultaneously with or immediately after a notice of strike will render the re(uisite periods nugatory. 4oreo er, a strike that is undertaken, despite the issuance by the &!L3 of an assumption or certification order, becomes a prohibited acti ity and, thus, illegal pursuant to *rt. +GE of the Labor Code, as amended. Conse(uently, the union officers and members are deemed to ha e lost their employment status for ha ing knowingly participated in an illegal act. In this case, the respondent union filed its notice of strike with the @!L3 on :o ember 5G, 566C and on the same day, staged a picket on the premises of the hotel, in iolation of the law. The respondents cannot argue that since the notice of strike on :o ember 5G, 566C were for the same grounds as those contained in their notice of strike on &eptember +,, 566C which complied with the re(uirements of the law on the cooling-off period, strike ban, strike ote and strike ote report, the strike staged by them on :o ember 5G, 566C was lawful. The matters contained in the notice of strike of &eptember +,, 566C had already been taken cogni"ance of by the &!L3 when he issued on !ctober 85, 566C a status (uo ante bellum order en'oining the respondent union from intending or staging a strike. @espite the &!L3 order, the respondent union ne ertheless staged a strike on :o ember 5G, 566C simultaneously with its notice of strike, thus iolating *rt. +GE-a0 of the Labor Code, as amended, which pro ides that % # # # :o strike or lockout shall be declared after assumption of 'urisdiction by the 2resident or the &ecretary or after certification or submission of the dispute to compulsory or oluntary arbitration or during the pendency of cases in ol ing the same grounds for the strike or lockout.) ;2RA&4 <@.=*)AR4 H@D*= )S% 2*&.C&* =A<@R @R2A&CJADC@& @5 +@RN*RS C& H@D*=, R*SDA.RA&D A&4 A==C*4 C&4.SDRC*S, Guly !, 6BB89 7. Res,ondents a,,lied for e ,lo# ent in Taiwan wit! ,etitioner. 7!il. E ,lo# Ser&i%es and Reso"r%es. In%. /7SRI for bre&it#2. T!e res,ondents were de,lo#ed in Taiwan. W!en t!e# en%o"ntered ,roble s. t!e# bro"+!t t!eir attention to t!e ana+er w!o told t!e to for+et abo"t it and refrain to air t!eir %o ,laints. Res,ondent Na&arra and anot!er e ,lo#ee. 7io Habito. were s" oned b# t!e ana+e ent and told t!at t!e# were to be re,atriated. wit!o"t s,e%if#in+ t!e +ro"nd or %a"se t!erefor. T!e# ,leaded t!at t!e# be infor ed of t!e %a"se or %a"ses for t!eir re,atriation. b"t
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t!eir re:"ests were reDe%ted. T!e ana+er of t!eir e ,lo#er s" oned t!e ,oli%e. w!o arri&ed and es%orted t!e to t!e air,ort. U,on res,ondent Na&arraJs arri&al in ;anila. t!e ,etitioner so"+!t to settle !is %o ,laints. After t!e ne+otiations. t!e ,etitioner a+reed to ,a# 76B.000 to t!e said res,ondent b"t. in %onsideration t!ereof. t!e latter e$e%"ted a :"it%lai releasin+ t!e ,etitioner fro an# or all liabilities for !is re,atriation. Were ,etitioners ille+all# dis issed w!en t!e# re,atriated b# t!eir Taiwan e ,lo#ers' Was Na&arraCs e$e%"tion of :"it%lai and re%ei,t of 7 6B. 000 s"ffi%ient to %on%l"de !is wai&er of ri+!t a+ainst ille+al dis issal' Oes. ;espondents= dismissal was not based on 'ust, alid and legal grounds. *s such, the rule le# loci contractus -the law of the place where the contract is made0 go erns. Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor, apply in this case. In order to effect a alid dismissal of an employee, the law re(uires that there be 'ust and alid cause as pro ided in *rticle +7+ and that the employee was afforded an opportunity to be heard and to defend himself. @ismissal may also be based on any of the authori"ed causes pro ided for in *rticles +78 and +7E of the Labor Code. The petitioner failed to substantiate its claim that respondent :a arraMs repatriation was based on a alid, legal and 'ust cause. 9e thus rule that the respondents were constructi ely dismissed from their employment. There is constructi e dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice by him e#cept to forego his continued employment. It e#ists where there is cessation of work because Lcontinued employment is rendered impossible, unreasonable or unlikely, as an offer in ol ing a demotion in rank and a diminution in pay.L 9e rule that the deed of release e#ecuted by respondent :a arra did not completely release the petitioner from its liability on the latterMs claim. *s a rule, (uitclaims, wai ers or releases are looked upon with disfa or and are commonly frowned upon as contrary to public policy and ineffecti e to bar claims for the measure of a workerMs legal rights. If -a0 there is clear proof that the wai er was wangled from an unsuspecting or gullible person$ or -b0 the terms of the settlement are unconscionable, and on their face in alid, such (uitclaims must be struck down as in alid or illegal. ;PHC= *3P=@M S*R)C'*S )S% PARA3C@, *D A=, April 1 , 6BB>9 6. T!e ,etitioner is a do esti% %or,oration en+a+ed in t!e b"siness of ,ro&idin+ tele+ra,! and %o "ni%ation ser&i%es t!r" its bran%!es all o&er t!e %o"ntr#. It e ,lo#ed &ario"s e ,lo#ees. a on+ w!o were ,ri&ate res,ondents. T!e ,etitioner %a e ", wit! a Relo%ation and Restr"%t"rin+ 7ro+ra . 7ri&ate res,ondents re%ei&ed se,arate letters fro t!e ,etitioner. +i&in+ t!e t!e o,tion to %!oose t!e bran%! to w!i%! t!e# %o"ld be transferred. T!ereafter. t!e ,ri&ate res,ondents and ot!er ,etitionerJs e ,lo#ees were dire%ted to Krelo%ateK to t!eir new 7TST Bran%!es. The petitioner offered benefits/allowances to those employees who would agree to be transferred under its new program. Moreover the employees who would agree to the transfers would be considered promoted. The private respondents re!ected the petitioner"s offer. #ence the petitioner sent letters to the private respondents re$uiring them to e%plain in writing why no disciplinary action should be ta&en against them for their refusal to be transferred/relocated. 'n their respective replies to the petitioner"s letters the private respondents e%plained that the transfers imposed by the management would cause enormous difficulties on the individual complainants. (issatisfied with this e%planation the petitioner considered the private respondents" refusal as insubordination and willful disobedience to a lawful order) hence the private respondents were dismissed from wor&. *ubse$uently the private respondents" bargaining agent +T,T -or&ers .nion/0123./4M. filed a complaint against the petitioner for illegal dismissal and unfair labor practice for and in behalf of the private respondents. 1re the respective transfers of the private respondents considered promotions5 'f so is the denial of a promotion a !ust and authori6ed cause for dismissal5 Oes. 9ith or without a corresponding increase in salary, the respecti e transfers of the pri ate respondents were in fact promotions, following the ruling enunciated in Aomeowners &a ings and Loan *ssociation, Inc. . :L;CH %2romotion, as we defined in 4illares . &ubido, is Sthe ad ancement from one position to another with an increase in duties and responsibilities as authori"ed by law, and usually accompanied by an increase in salary.= *pparently, the
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San Beda Colle+e of

indispensable element for there to be a promotion is that there must be an Sad ancement from one position to another= or an upward ertical mo ement of the employeeMs rank or position. *ny increase in salary should only be considered incidental but ne er determinati e of whether or not a promotion is bestowed upon an employee. However, *n employee cannot be promoted, e en if merely as a result of a transfer, without his consent. * transfer that results in promotion or demotion, ad ancement or reduction or a transfer that aims to Mlure the employee away from his permanent position cannot be done without the employeesM consent. There is no law that compels an employee to accept a promotion for the reason that a promotion is in the nature of a gift or reward, which a person has a right to refuse. Aence, the e#ercise by the pri ate respondents of their right cannot be considered in law as insubordination, or willful disobedience of a lawful order of the employer. *s such, there was no alid cause for the pri ate respondentsM dismissal. ;PDED )S% 'A, September 67, 6BB89 5C. T!e ,etitioner is a do esti% %or,oration en+a+ed in +ar ents an"fa%t"rin+ "sin+ t!e brand na e FAA;ISETA.G T!e ,etitioner e ,lo#ed ,ri&ate res,ondent Torno as tri er. T!e ,ri&ate res,ondent and a %o*e ,lo#ee. ;ari%ar B"an. were tas5ed to !andle t!e in&entor# of finis!ed ,rod"%ts. So eti e t!ereafter. t!e ,etitioner started to re%ei&e infor ation fro t!e !ead of its ,rod"%tion de,art ent t!at. a%%ordin+ to ot!er e ,lo#ees. B"an and t!e ,ri&ate res,ondent !ad been stealin+ FAA;ISETAG ite s fro t!e fa%tor#. On t!e basis of a re,ort. t!e ,etitioner iss"ed a dis%i,linar# a%tion for s"s,endin+ t!e ,ri&ate res,ondent indefinitel# wit!o"t ,a#. A noti%e of dis issal was addressed to t!e ,ri&ate res,ondent s,e%if#in+ t!e %!ar+e a+ainst !er. t!e fa%t"al basis t!ereof and t!e i ,osable ,enalties for t!e said %!ar+e if ,ro&en. T!e ,ri&ate res,ondent failed to a,,ear d"rin+ t!e s%!ed"led !earin+. Conse:"entl#. t!e ,etitioner de%ided to dis iss t!e ,ri&ate res,ondent fro !er e ,lo# ent. W!en notified of t!e ,etitionerCs de%ision. t!e ,ri&ate res,ondent filed a %o ,laint for ille+al dis issal wit! ,ra#er for reinstate ent and ,a# ent of ba%5wa+es. non*,a# ent of ser&i%e in%enti&e lea&e ,a# and 1-t!* ont! ,a# a+ainst t!e ,etitioner before t!e National Ca,ital Re+ional Arbitration Bran%!. LA rendered a de%ision !oldin+ t!at t!e res,ondent was ille+all# dis issed and dire%ted t!e ,etitioner to ,a# ba%5wa+es and se,aration ,a# to t!e ,ri&ate res,ondent. <owe&er. a%%ordin+ to t!e labor arbiter. reinstate ent %o"ld no lon+er be effe%ted. as t!e relations!i, between t!e ,ri&ate res,ondent and t!e ,etitioner !ad been strained and r",t"red. A++rie&ed. t!e ,etitioner a,,ealed t!e de%ision to t!e NLRC. alle+in+ t!at it was de,ri&ed of its ri+!t to a for al !earin+ before t!e labor arbiter rendered !er de%ision. LACs fail"re to %ond"%t a !earin+ de,ri&ed t!e ,etitioner of its &ested ri+!tQ %onse:"entl#. !er de%ision was n"ll and &oid. Does t!e absen%e of a for al !earin+ a o"nt to denial of ,etitionerCs ri+!t to d"e ,ro%ess' Is ter ination of t!e ,ri&ate res,ondentCs e ,lo# ent based on a D"st and &alid %a"se' 9e agree with the C* that the petitioner did not ha e a ested right to a formal hearing simply and merely because L* Tumanong granted its motion and set the case for hearing. 2ursuant to &ection ., ;ule V of the :ew ;ules of 2rocedure of the :L;C, the labor arbiter has the authority to determine whether or not there is a necessity to conduct formal hearings in cases brought before him for ad'udication. The holding of a formal hearing or trial is discretionary with the labor arbiter and is something that the parties cannot demand as a matter of right. It is entirely within his authority to decide a labor case before him, based on the position papers and supporting documents of the parties, without a trial or formal hearing. The re(uirements of due process are satisfied when the parties are gi en the opportunity to submit position papers wherein they are supposed to attach all the documents that would pro e their claim in case it be decided that no hearing should be conducted or was necessary. The pri ate respondent was illegally dismissed. In order to effect a alid dismissal, the law re(uires that -a0 there be 'ust and alid cause as pro ided under *rticle +7+ of the Labor Code$ and -b0 the employee be afforded an opportunity to be heard and to defend himself. *s stated by the C*, the petitioner had failed to show that it had complied with the two-notice re(uirementH -a0 a written notice containing a statement of the cause for the termination to afford the employee ample opportunity to be heard and defend himself with the assistance of his representati e, if he so desires$ -b0 if the employer decides to terminate the ser ices of the employee, the employer
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must notify him in writing of the decision to dismiss him, stating clearly the reason therefor. ;SH@PP*S 3A&C=A )S% &=R', Ganuary 1>, 6BB>9
69
Law
San Beda Colle+e of

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2005 CENTRALIZED BAR OPERATIONS

SELECTED QUESTIONS in LABOR LAW

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2005 CENTRALIZED BAR OPERATIONS

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Red Notes in Labor Law

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Red Notes in Labor Law

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Red Notes in Labor Law

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2005 CENTRALIZED BAR OPERATIONS

Red Notes in Labor Law

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aternit# lea&e benefit be e$tended be#ond t!e allowable 7ERIOD'

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Red Notes in Labor Law

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San Beda Colle+e of

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Red Notes in Labor Law

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Red Notes in Labor Law

College of Law LAW

San Beda LABOR

San Beda Colle+e of

2005 CENTRALIZED BAR OPERATIONS

Red Notes in Labor Law

College of Law LAW

San Beda LABOR

San Beda Colle+e of

(P1+ 3 8 hrs ) 4 ,5 6 P+,2