Pre Final Coverage Final

For Labor Review class: Coverage of Pre-final examination on October 20, 2018
1. Non-impairment clause of the 1987 Constitution in relation to the Labor Code
ANTONIO SERRANO V. GALLANT MARITIME SERVICES, INC.
FACTS:
Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., under
a POEA-approved contract of employment for 12 months, as Chief Officer, with the basic monthly salary of US$1,400, plus
$700/month overtime pay, and 7 days paid vacation leave per month.
On the date of his departure, Serrano was constrained to accept a downgraded employment contract upon the assurance and
representation of respondents that he would be Chief Officer by the end of April 1998.
Respondents did not deliver on their promise to make Serrano Chief Officer.
Hence, Serrano refused to stay on as second Officer and was repatriated to the Philippines, serving only two months and 7
days, leaving an unexpired portion of nine months and twenty-three days.
Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was declared illegal.
On appeal, the NLRC modified the LA decision based on the provision of RA 8042.
Serrano filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the last clause in the
5th paragraph of Section 10 of RA 8042.
ISSUE:
Does the subject clause violate Section 10, Article III of the Constitution on non-impairment of contracts
HELD:
No. Petitioner’s claim that the subject clause unduly interferes with the stipulations in his contract on the term of his
employment and the fixed salary package he will receive is not tenable.
The prohibition is aligned with the general principle that laws newly enacted have only a prospective operation, and cannot
affect acts or contracts already perfected; however, as to laws already in existence, their provisions are read into contracts and
deemed a part thereof. Thus, the non-impairment clause under Section 10, Article II is limited in application to laws about to
be enacted that would in any way derogate from existing acts or contracts by enlarging, abridging or in any manner changing
the intention of the parties thereto.
As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract
between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause,
impaired the employment contract of the parties. Rather, when the parties executed their 1998 employment contract, they
were deemed to have incorporated into it all the provisions of R.A. No. 8042.
The subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law
was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the
recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs
wherever they may be employed.
2. Elements of Ee-er relations and its effect and requirements
For this reason, in order to put the issue at rest, this Court has laid down in a formidable line of decisions the elements
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to be generally considered in determining the existence of an employer-employee relationship, as follows: a) selection
and engagement of the employee; b) the payment of wages; c) the power of dismissal; and d) the employers power to
control the employee with respect to the means and method by-which the work is to be accomplished. The last which is
the so-called control test is the most important element (Brotherhood Labor Unity Movement of the Phils. vs. Zamora, 147
SCRA 49 [1987]; Dy Ke Beng vs. International Labor and Marine Union of the Phil., 90 SCRA 162 [1979]; Mafinco Trading
Corp. vs. Ople, 70 SCRA 141 [1976]; Social Security System vs. Court of Appeals, 37 SCRA 579 [1971]).
Before a case for illegal dismissal can prosper, it must first be established that an employer-employee relationship existed
between petitioner and respondent.[27]
The elements to determine the existence of an employment relationship are: (a) the selection and engagement of the
employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee’s
conduct. The most important element is the employer’s control of the employee’s conduct, not only as to the result of the
work to be done, but also as to the means and methods to accomplish it.[28]
It is settled that no particular form of evidence is required to prove the existence of an employer-employee relationship.[29]
Any competent and relevant evidence to prove the relationship may be admitted.[30]
In this case, the documentary evidence presented by respondent to prove that he was an employee of petitioner are as follows:
(a) a document denominated as "payroll" (dated July 31, 2001 to March 15, 2002) certified correct by petitioner,[31] which
showed that respondent received a monthly salary of P7,000.00 (P3,500.00 every 15th of the month and another P3,500.00
every 30th of the month) with the corresponding deductions due to absences incurred by respondent; and (2) copies of petty
cash vouchers,[32] showing the amounts he received and signed for in the payrolls.
The said documents showed that petitioner hired respondent as an employee and he was paid monthly wages of P7,000.00.
Petitioner wielded the power to dismiss as respondent stated that he was verbally dismissed by petitioner, and respondent,
thereafter, filed an action for illegal dismissal against petitioner. The power of control refers merely to the existence of the
power.[33] It is not essential for the employer to actually supervise the performance of duties of the employee, as it is
sufficient that the former has a right to wield the power.[34] Nevertheless, petitioner stated in his Position Paper that it was
agreed that he would help and teach respondent how to use the studio equipment. In such case, petitioner certainly had the
power to check on the progress and work of respondent.
On the other hand, petitioner failed to prove that his relationship with respondent was one of partnership. Such claim was not
supported by any written agreement. The Court notes that in the payroll dated July 31, 2001 to March 15, 2002,[35] there
were deductions from the wages of respondent for his absence from work, which negates petitioner’s claim that the wages
paid were advances for respondent’s work in the partnership. In Nicario v. National Labor Relations Commission,[36] the
Court held:

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It is a well-settled doctrine, that if doubts exist between the evidence presented by the employer and the employee, the scales
of justice must be tilted in favor of the latter. It is a time-honored rule that in controversies between a laborer and his master,
doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the
former’s favor. The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the
law, which is in consonance with the avowed policy of the State to give maximum aid and protection of labor. This rule
should be applied in the case at bar, especially since the evidence presented by the private respondent company is not
convincing. x x x[37]
Based on the foregoing, the Court agrees with the Court of Appeals that the evidence presented by the parties showed that an
employer-employee relationship existed between petitioner and respondent.
In termination cases, the burden is upon the employer to show by substantial evidence that the termination was for lawful
cause and validly made.[38] Article 277 (b) of the Labor Code[39] puts the burden of proving that the dismissal of an
employee was for a valid or authorized cause on the employer, without distinction whether the employer admits or does not
admit the dismissal.[40] For an employee’s dismissal to be valid, (a) the dismissal must be for a valid cause, and (b) the
employee must be afforded due process.[41] Procedural due process requires the employer to furnish an employee with two
written notices before the latter is dismissed: (1) the notice to apprise the employee of the particular acts or omissions for
which his dismissal is sought, which is the equivalent of a charge; and (2) the notice informing the employee of his dismissal,
to be issued after the employee has been given reasonable opportunity to answer and to be heard on his defense.[42]
Petitioner failed to comply with these legal requirements; hence, the Court of Appeals correctly affirmed the Labor Arbiter’s
finding that respondent was illegally dismissed, and entitled to the payment of backwages, and separation pay in lieu of
reinstatement.
3. Recruitment, Liabilities and Illegal recruitment under the Migrant workers act and Labor Code
II. ILLEGAL RECRUITMENT

Sec. 6. DEFINITIONS. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, procuring workers and includes referring, contact services, promising or
advertising for employment abroad, whether for profit or not, when undertaken by a non-license or non-holder of
authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor
Code of the Philippines. Provided, that such non-license or non-holder, who, in any manner, offers or promises for a fee
employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts,
whether committed by any persons, whether a non-licensee, non-holder, licensee or holder of authority.
(a) To charge or accept directly or indirectly any amount greater than the specified in the schedule of allowable fees
prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually
received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the
purpose of securing a license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another
unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;
(e) To influence or attempt to influence any persons or entity not to employ any worker who has not applied for
employment through his agency;

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(f) To engage in the recruitment of placement of workers in jobs harmful to public health or morality or to dignity of
the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized
representative;
(h) To fail to submit reports on the status of employment, placement vacancies, remittances of foreign exchange
earnings, separations from jobs, departures and such other matters or information as may be required by the Secretary
of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the
Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the
period of the expiration of the same without the approval of the Department of Labor and Employment;
(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any
corporation engaged in travel agency or to be engaged directly on indirectly in the management of a travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial
considerations other than those authorized under the Labor Code and its implementing rules and regulations;
(l) Failure to actually deploy without valid reasons as determined by the Department of Labor and Employment; and
(m) Failure to reimburse expenses incurred by the workers in connection with his documentation and processing for
purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal
recruitment when committed by a syndicate or in large scale shall be considered as offense involving economic
sabotage.
Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring
or confederating with one another. It is deemed committed in large scale if committed against three (3) or more
persons individually or as a group.
The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical
persons, the officers having control, management or direction of their business shall be liable.
Sec. 5. Section 6 of Republic Act No. 8042, as amended, is hereby amended to read as follows: "SEC. 6. Definition. - For
purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing,
hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad,
whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of
Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such
non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall
be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a nonlicensee,
non-holder, licensee or holder of authority: "(a) To charge or accept directly or indirectly any amount greater than that
specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or
acknowledge any amount greater than that actually received by him as a loan or advance; "(b) To furnish or publish any false
notice or information or document in relation to recruitment or employment; "(c) To give any false notice, testimony,
information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the
Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers
through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different
employer whether registered or not with the POEA; "(d) To include or attempt to induce a worker already employed to quit
his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and
conditions of employment; "(e) To influence or attempt to influence any person or entity not to employ any worker who has
not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by
any union or workers' organization; "(f) To engage in the recruitment or placement of workers in jobs harmful to public
health or morality or to the dignity of the Republic of the Philippines; "(h) To fail to submit reports on the status of
employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other
matters or information as may be required by the Secretary of Labor and Employment; "(i) To substitute or alter to the
prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the
time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval
of the Department of Labor and Employment; "(j) For an officer or agent of a recruitment or placement agency to become an
officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the
management of travel agency; "(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial consider recruitment/manning agency. "Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in
large scale if committed against three (3) or more persons individually or as a group.cralaw "In addition to the acts
enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts: "(1) Grant a loan
to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal
and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation
party, postdated checks in relation to the said loan; "(2) Impose a compulsory and exclusive arrangement whereby an
overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons; "(3)
Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has
been prematurely terminated through no fault of his or her own; "(4) Impose a compulsory and exclusive arrangement
whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical
clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the
principal/shipowner; "(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required

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to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or
persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such
trainings; "(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the
processing of pending workers' applications; and "(7) For a recruitment/manning agency or a foreign principal/employer to
pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or
other insurance related charges, as provided under the compulsory worker's insurance coverage. "The persons criminally
liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having
ownership, control, management or direction of their business who are responsible for the commission of the offense and the
responsible employees/agents thereof shall be liable.cralaw "In the filing of cases for illegal recruitment or any of the
prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized
representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this
purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and
other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the
accused.cralaw "In the prosecution of offenses punishable under this section, the public prosecutors of the Department of
Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers
to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive
additional allowances as may be determined by the POEA Administrator.cralaw "The filing of an offense punishable under
this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations."
"Art. 38. Illegal Recruitment. — (a) Any recruitment activities, including the prohibited practices enumerated under Article
34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under
Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officers may initiate complaints
under this Article.
(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic
sabotage and shall be penalized in accordance with Article 39 hereof. chanroblesvirtualawlibrary
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring
and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under
this first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more
persons individually or as a group.
(c) The Minister of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest
and detention of such non-license or non-holder of authority if after investigation it is determined that his activities constitute
a danger to national security and public order or will lead to further exploitation of job-seekers. The Minister shall order the
search of the office or premises and seizure of documents paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies, establishment and entities found to be engaged in the recruitment of
workers for overseas employment, without having been licensed or authorized to do so.
"Art. 39. Penalties. — (a) The penalty of imprisonment and a fine of One Hundred Thousand Pesos (P100,000) shall be
imposed if illegal recruitment constitutes economic sabotage as defined herein;chanroblesvirtualawlibrary
(b) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its
implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two
years nor more than five years or a fine of not less than P10,000 nor more than P50,000 or both such imprisonment and fine,
at the discretion of the court;chanroblesvirtualawlibrary
(c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or
its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four
years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and
fine, at the discretion of the Court;chanroblesvirtualawlibrary

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(d) If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or
officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall,
in addition to the penalties herein prescribed be deported without further proceedings; chanroblesvirtualawlibrary
(e) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits
and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the
Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized
to use the same exclusively to promote their objectives.
4. Arts. 82-97 of the labor code
WORKING CONDITIONS AND REST PERIODS
Chapter I
HOURS OF WORK
Art. 82. Coverage. The provisions of this Title shall apply to employees in all establishments and undertakings whether for
profit or not, but not to government employees, managerial employees, field personnel, members of the family of the
employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers
who are paid by results as determined by the Secretary of Labor in appropriate regulations.
As used herein, “managerial employees” refer to those whose primary duty consists of the management of the establishment
in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial
staff.
“Field personnel” shall refer to non-agricultural employees who regularly perform their duties away from the principal place
of business or branch office of the employer and whose actual hours of work in the field cannot be determined with
reasonable certainty.
Art. 83. Normal hours of work. The normal hours of work of any employee shall not exceed eight (8) hours a day.
Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics
with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a
week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6)
days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent
(30%) of their regular wage for work on the sixth day. For purposes of this Article, “health personnel” shall include resident
physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians,
psychologists, midwives, attendants and all other hospital or clinic personnel.
Art. 84. Hours worked. Hours worked shall include (a) all time during which an employee is required to be on duty or to be at
a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work.

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Rest periods of short duration during working hours shall be counted as hours worked.
Art. 85. Meal periods. Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every
employer to give his employees not less than sixty (60) minutes time-off for their regular meals.
Art. 86. Night shift differential. Every employee shall be paid a night shift differential of not less than ten percent (10%) of
his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning.
Art. 87. Overtime work. Work may be performed beyond eight (8) hours a day provided that the employee is paid for the
overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof.
Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate
of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof.
Art. 88. Undertime not offset by overtime. Undertime work on any particular day shall not be offset by overtime work on any
other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer
from paying the additional compensation required in this Chapter.
Art. 89. Emergency overtime work. Any employee may be required by the employer to perform overtime work in any of the
following cases:
When the country is at war or when any other national or local emergency has been declared by the National Assembly or the
Chief Executive;
When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or
impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster
or calamity;
When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage
to the employer or some other cause of similar nature;
When the work is necessary to prevent loss or damage to perishable goods; and
Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or
prejudice to the business or operations of the employer.
Any employee required to render overtime work under this Article shall be paid the additional compensation required in this
Chapter.

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Art. 90. Computation of additional compensation. For purposes of computing overtime and other additional remuneration as
required by this Chapter, the “regular wage” of an employee shall include the cash wage only, without deduction on account
of facilities provided by the employer.
Chapter II
WEEKLY REST PERIODS
Art. 91. Right to weekly rest day.
It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of
not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days.
The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement
and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall
respect the preference of employees as to their weekly rest day when such preference is based on religious grounds.
Art. 92. When employer may require work on a rest day. The employer may require his employees to work on any day:
In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other
disaster or calamity to prevent loss of life and property, or imminent danger to public safety;
In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the
employer would otherwise suffer;
In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to
resort to other measures;
To prevent loss or damage to perishable goods;
Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss
to the employer; and
Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment.
Art. 93. Compensation for rest day, Sunday or holiday work.
Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at
least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work
performed on Sunday only when it is his established rest day.
When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be

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scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work
performed on Sundays and holidays.
Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the
regular wage of the employee. Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an
additional compensation of at least fifty per cent (50%) of his regular wage.
Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher
premium pay than that prescribed under this Article, the employer shall pay such higher rate.
Chapter III
HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES
Art. 94. Right to holiday pay.
Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments
regularly employing less than ten (10) workers;
The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent
to twice his regular rate; and
As used in this Article, “holiday” includes: New Year’s Day, Maundy Thursday, Good Friday, the ninth of April, the first of
May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day
designated by law for holding a general election.
Art. 95. Right to service incentive leave.
Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days
with pay.
This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave
with pay of at least five days and those employed in establishments regularly employing less than ten employees or in
establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the viability
or financial condition of such establishment.
The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative
action.
Art. 96. Service charges. All service charges collected by hotels, restaurants and similar establishments shall be distributed at
the rate of eighty-five percent (85%) for all covered employees and fifteen percent (15%) for management. The share of the
employees shall be equally distributed among them. In case the service charge is abolished, the share of the covered
employees shall be considered integrated in their wages.
Title II
WAGES

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Chapter I
PRELIMINARY MATTERS
Art. 97. Definitions. As used in this Title:
“Person” means an individual, partnership, association, corporation, business trust, legal representatives, or any organized
group of persons.
“Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and
shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled
corporations and institutions, as well as non-profit private institutions, or organizations.
“Employee” includes any individual employed by an employer.
“Agriculture” includes farming in all its branches and, among other things, includes cultivation and tillage of soil, dairying,
the production, cultivation, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock
or poultry, and any practices performed by a farmer on a farm as an incident to or in conjunction with such farming
operations, but does not include the manufacturing or processing of sugar, coconuts, abaca, tobacco, pineapples or other farm
products.
“Employ” includes to suffer or permit to work.
“Wage” paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in
terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the
same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or
to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the
Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the employer to the
employee. “Fair and reasonable value” shall not include any profit to the employer, or to any person affiliated with the
employer.
Art. 98. Application of Title. This Title shall not apply to farm tenancy or leasehold, domestic service and persons working in
their respective homes in needle work or in any cottage industry duly registered in accordance with law.
5. Arts. 110-111
Art. 110. Worker preference in case of bankruptcy. In the event of bankruptcy or liquidation of an employer’s business,
his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the
contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government
and other creditors may be paid. (As amended by Section 1, Republic Act No. 6715, March 21, 1989)
Art. 111. Attorney’s fees.
a. In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten
percent of the amount of wages recovered.
b. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the
recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered.

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6. Just and authorize causes and their effects
7. Effects of Illegal termination
Illegal Dismissal Benefits

In case of illegal dismissal, how much is a seafarer entitled to receive from his employers? His salaries for the unexpired portion of his
employment contract or his salaries for three (3) months for every year of the unexpired term, whichever is less?
The recent ruling of the Supreme Court in the case of Antonio M. Serrano vs. Gallant Maritime Services, Inc. and Marlow Navigation
Co., Inc. (G.R. No. 167614, March 24, 2009) has brought clarity and definitiveness to the issue of entitlement to benefits of a seafarer
in case he is illegallydismissed. It made certain that the seafarer should receive his salaries for the entire unexpired portion of his
contract, and not just for three months.
In the said Serrano case, the petitioner-seafarer was hired as Chief Officer for a period of 12 months. On the date of his departure
however, he accepted the downgraded post of Second Officer upon the assurance of his employers that he would be made Chief
Officer in less than two months. His employers however, reneged on their commitment, resulting to petitioner-seafarer’s refusal to stay
on as Second Officer. He was then repatriated to the Philippines after less than three months of work. Formally complaining to the
Labor Arbiter, the latter, among others, declared his dismissal as illegal but only awarded petitioner-seafarer a lump sum amount based
on his salary for three months of the unexpired portion of his contract.
On appeal, the petitioner-seafarer eventually questioned the constitutionality of the 5th paragraph of Section 10, Republic Act No.
8042 (otherwise known as the “Migrant Workers and Overseas Filipinos Act of 1995”) which took effect on July 15, 1995. It reads:
“Sec.10. Money Claims.-xxx In case of termination of overseas employment without just, valid or authorized cause as defined by law
or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per
annum, plus his salaries for the unexpired portion of his employment contract or FOR THREE (3) MONTHS FOR EVERY YEAR OF
THE UNEXPIRED TERM, WHICHEVER IS LESS” (underscoring supplied)The National Labor Relations Commission (NLRC)
sustained in principle the Labor Arbiter’s decision although it modified the computation of the award.
The Court of Appeals likewise affirmed the NLRC decision. The Supreme Court took the side of the petitioner-seafarer by affirming
the illegality of his dismissal and awarded him his salaries for the entire unexpired portion of his employment contract covering nine
months and 23 days.
Moreover, in an unparalleled initiative, exercising its power of judicial review of the acts of Congress, the Supreme Court declared the
5th paragraph of Section 10 of RA 8042 as violative of Section 1, Article III (right to due process and equal protection), Section 18,
Article II and Section 3, Article XIII (protection of rights of all Filipino workers, whether deployed locally or overseas) of the
Constitution. The High Court observed that the questioned clause has a discriminatory intent against overseas Filipino workers
(OFWs) at two levels, i.e., OFWs with employment contracts of LESS THAN 1 YEAR vis-à-vis OFWs with contracts of ONE YEAR
OR MORE, and OFWs vis-a-vis local workers with fixed-period employment. The clause only limits the monetary awards of OFWs,
whose contracts have an unexpired portion of one year or more, to their salaries for three months or for the unexpired portion thereof,
whichever is less, but does not bother OFWs with unexpired contracts short of one year.
The Court concluded “….the subject clause contains a suspect classification in that, in the computation of the monetary benefits of
fixed-term employees who are illegally dismissed, it imposes a three-month cap on the claim of OFWs with an unexpired portion of
one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject
clause singles out one classification of OFWs and burdens it with a peculiar disadvantage” (underscoring supplied). The Court
likewise added that the clause violates the petitioner-seafarer’s right to substantive due process for it deprives him of property,
consisting of monetary benefits without any existing valid governmental purpose. With the above ruling, the Supreme Court has
reverted to the old, simple, and logical manner by which claims of illegally dismissed OFWs are computed, i.e., their basic salaries
multiplied by the entire unexpired portions of their contracts, and accordingly disregarded any distinction relating to the OFWs’
contract periods or the unexpired portions thereof.

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8. Preventive suspension
To address your concern, it is important that we briefly discuss the nature and purpose of a preventive suspension. Preventive
suspension is generally a legally recognized measure used by an employer to suspend an employee during an investigation in relation
to an incident affecting the workplace.
The basis of issuing a preventive suspension is found in Section 8 of Rule XXIII, Book V of the Omnibus Rules Implementing the
Labor Code, as amended by Department Order No. 9, Series of 1997 which provides:
“Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued
employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.”
It is important to note that preventive suspension is not a penalty, but a part of a process to investigate a questioned action of an
employee. This is clarified in a decision of the Supreme Court, where the late Justice Florentino Feliciano stated then that preventive
suspension does not in itself prove that the employer already finds the employee guilty of the charges he is asked to answer and
explain (Soriano v. NLRC et. al., G.R. No. 75510, October 27, 1987).
This is further explained in another decision of the Supreme Court, wherein according to former Justice Alicia Austria-Martinez:
“Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged
malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension
if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. When,
however, it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the
payment of salaries during the time of preventive suspension.” ([Gatbonton vs. NLRC, G.R. No. 146779, January 23, 2006] (Emphasis
supplied)
Basing on this jurisprudence on preventive suspension, it can be seen that the issuance by an employer of a preventive suspension is a
reasonable and justifiable legal remedy given to him for the purpose of investigating and/or resolving workplace-related incidents that
affect his company’s operations.
With regard to your situation, it appears that the violent altercation you mentioned that occurred between your employees qualifies as
a threat to life and property in your workplace, which then justifies the issuance of a preventive suspension. But while you may issue
your employees a preventive suspension if the situation warrants, it is important to remember that the period of preventive suspension
is limited by law that states:
“Section 9. Period of suspension. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter
reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension
provided that during the period of extension, he pays the wages and other benefits due to the worker.” (Rule XXIII, Book V, Omnibus
Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997)
And lastly, with regard to salary during the period of the suspension, an employee placed under preventive suspension is not entitled to
the payment of wages. If. however, the basis for suspension is later proven to be unfounded or invalid, the said employee is entitled to
his salary during the whole period of his suspension. (Gatbonton vs. NLRC).
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the
same. The opinion may vary when the facts are changed or elaborated.
Dear Cel,
Under the law, an employer may put his/her employee under preventive suspension while the latter is the subject of an investigation
for an alleged violation or infraction of the employee’s policies or rules. This is to prevent the employee from causing further harm or
injury to the employer as well as to the other employees, as the case may be.
The employee shall not receive any pay during the period of suspension, but the same shall not exceed thirty (30) days. Should the
employer extend the period of suspension longer than that period, he/she must pay the salary and other benefits to which his/her
employee is entitled. This was explicitly explained by the Supreme Court in the case of Federito B. Pido vs. National Labor Relations
Commission, Cherubim Security and General Service Inc., and Rosario K. Balais (G.R. No. 169812, February 23, 2007), as follows:

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“(I)t is gathered that respondent intended to put petitioner under preventive suspension for an indefinite period of time pending the
investigation of the complaint against him. The allowable period of suspension in such a case is not six months but only 30 days,
following Sections 8 and 9 of Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code (Implementing Rules), viz:
SEC. 8. Preventive suspension. – The employer may place the worker concerned under preventive suspension if his continued
employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.
SEC. 9. Period of suspension. – No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter
reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension
provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not
be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss
the worker. (Emphasis, italics and underscoring supplied)
As above-quoted Section 9 of the Implementing Rules expressly provides, if the employer chooses to extend the period of suspension,
he is required to pay the wages and other benefits due the worker and the worker is not bound to reimburse the amount paid to him
during the extended period of suspension even if, after the completion of the hearing or investigation, the employer decides to dismiss
him.”
Also, directing an employee to undergo preventive suspension for more than thirty (30) days without being reinstated or being paid
his/her salary and other benefits due him/her after the thirty (30)-day period as mentioned above may ripen into constructive dismissal
9. Remedies from the Decision of the LA and NLRC
• What is the constitutional provision on protection to labor?
“The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and
equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of
tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting
their rights and benefits as may be provided by law.
“The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary
modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
“The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of
production and the right of enterprises to reasonable returns on investments, and to expansion and growth.”
• What rules govern the proceedings before the Labor Arbiters and the NLRC?
The proceedings before the Labor Arbiters and the NLRC are governed by the Labor Code, as amended, the 2011 NLRC Rules of
Procedure, and suppletorily, the Rules of Court.
• What is the nature of the proceedings before the Labor Arbiter?
The NLRC Rules describe the proceedings before the Labor Arbiter as non-litigious. Subject to the requirements of due process, the
technicalities of law and procedure in the regular courts do not apply in the labor arbitration proceedings.

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• What are the cases falling under the jurisdiction of the Labor Arbiters?
Under Article 217 of the Labor Code, Labor Arbiters have jurisdiction over the following cases:
1. Unfair labor practice (ULP) cases;

2. Termination disputes (or illegal dismissal cases);
3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and
other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations;
5. Cases arising from any violation of Article 264 of the Labor Code, including questions involving the legality of strikes and
lockouts;
6. Except claims for employees compensation not included in the next succeeding paragraph, social security, medicare and maternity
benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service,
involving an amount exceeding Five Thousand Pesos (P5,000.00), whether or not accompanied with a claim for reinstatement;
7. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to Republic Act No. 6627;
8. Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 227 of the Labor
Code, as amended;
9. Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for
overseas employment, including claims for actual, moral, exemplary and other forms of damages as provided by Section 10 of R.A.
No. 8042, as amended by R.A. No. 10022;
10.Contested cases under the exception clause of Article 128(b) of the Labor Code, as amended by R.A. 7730; and
11.Other cases as may be provided by law.
• May a non-lawyer appear in any of the proceedings before the Labor Arbiter or Commission?
Yes. A non-lawyer may appear in any of the proceedings before the Labor Arbiter or Commission only under the following conditions:
1. he/she represents himself/herself as party to the case;

2. he/she represents a legitimate labor organization, as defined under Article 212 and 242 of the Labor Code, as amended, which is a
party to the case: Provided, that he/she presents to the Commission or Labor Arbiter during the mandatory conference or initial
hearing: (i) a certification from the Bureau of Labor Relations (BLR) or Regional Office of the Department of Labor and Employment
attesting that the organization he/she represents is duly registered and listed in the roster of legitimate labor organizations; (ii) a
verified certification issued by the secretary and attested to by the president of the said organization stating that he/she is authorized to
represent the said organization in the said case; and (iii) a copy of the resolution of the board of directors of the said organization
granting him such authority;
3. he/she represents a member or members of a legitimate labor organization that is existing within the employer’s establishment,
who are parties to the case: Provided, that he/she presents: (i) a verified certification attesting that he/she is authorized by such
member or members to represent them in the case; and (ii) a verified certification issued by the secretary and attested to by the
president of the said organization stating that the person or persons he/she is representing are members of their organization which is
existing in the employer’s establishment;
4. he/she is a duly-accredited member of any legal aid office recognized by the Department of Justice or Integrated Bar of the
Philippines: Provided, that he/she (i) presents proof of his/her accreditation; and (ii) represents a party to the case;
5. he/she is the owner or president of a corporation or establishment which is a party to the case: Provided, that he/she presents: (i) a
verified certification attesting that he/she is authorized to represent said corporation or establishment; and (ii) a copy of the resolution
of the board of directors of said corporation, or other similar resolution or instrument issued by said establishment, granting him/her
such authority.
• Does the counsel or authorized representatives have the authority to bind their clients?
Yes. Counsel or other authorized representatives of parties shall have authority to bind their clients in all matter of procedure.

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However, they cannot, without a special power of attorney or express consent, enter into a compromise agreement with the opposing
party in full or partial discharge of a client’s claim.
• What is the purpose of mandatory conciliation and mediation conference?
The mandatory conciliation and mediation conference shall be called for the purpose of (1) amicably settling the case upon a fair
compromise; (2) determining the real parties in interest; (3) determining the necessity of amending the complaint and including all
causes of action; (4) defining and simplifying the issues in the case; (5) entering into admissions or stipulations of facts; and (6)
threshing out all other preliminary matters.
• What is the effect of non-appearance of the parties in the mandatory conciliation and mediation conference?
The non-appearance of the complainant or petitioner during the two (2) settings for mandatory conciliation and mediation conference
scheduled in the summons, despite due notice thereof, shall be a ground for the dismissal of the case without prejudice.
In case of non-appearance by the respondent during the first scheduled conference, the second conference as scheduled in the
summons shall proceed. If the respondent still fails to appear at the second conference despite being duly served with summons,
he/she shall be considered to have waived his/her right to file position paper. The Labor Arbiter shall immediately terminate the
mandatory conciliation and mediation conference and direct the complainant or petitioner to file a verified position paper and submit
evidence in support of his/her causes of action and thereupon render his/her decision on the basis of the evidence on record.
• What is the role of the Labor Arbiter in hearing and clarificatory conference?
The Labor Arbiter shall take full control and personally conduct the hearing or clarificatory conference and may ask questions for the
purpose of clarifying points of law or facts involved in the case. The Labor Arbiter may allow the presentation of testimonial evidence
with right of cross-examination by the opposing party and shall limit the presentation of evidence to matters relevant to the issue
before him/her and necessary for a just and speedy disposition of the case.
The Labor Arbiter shall make a written summary of the proceedings, including the substance of the evidence presented, in
consultation with the parties. The written summary shall be signed by the parties and shall form part of the records.
• What is the period within which to conduct clarificatory conference?
The parties and their counsels appearing before the Labor Arbiter shall be prepared for continuous hearing or clarificatory conference.
No postponement or continuance shall be allowed by the Labor Arbiter, except upon meritorious grounds and subject to the
requirement of expeditious disposition of cases. The hearing or clarificatory conference shall be terminated within thirty (30) calendar
days from the date of the initial clarificatory conference. In cases involving overseas Filipino workers, the aggregate period for
conducting the mandatory conciliation and mediation conference, including hearing on the merits or clarificatory conference, shall not
exceed sixty (60) days, which will be reckoned from the date of acquisition of jurisdiction by the Labor Arbiter over the person of the
respondents.
• What is the effect of non-appearance of the parties during clarificatory conference?
In case of non-appearance of any of the parties during the hearing or clarificatory conference despite due notice, proceedings shall be
conducted ex parte. Thereafter, the case shall be deemed submitted for decision.
• What is the period within which to file a motion for postponement?
No motion for postponement shall be entertained except on meritorious grounds and when filed at least three (3) days before the
scheduled hearing.

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1. What is the period within which to cause an amendment of the complaint or petition?
No amendment of the complaint or petition shall be allowed after the filing of position papers, unless with leave of the Labor
Arbiter.
• What are the prohibited pleadings and motions?
The following pleadings and motions shall not be allowed and acted upon nor elevated to the Commission: (a) Motion to dismiss the
complaint except on the ground of lack of jurisdiction over the subject matter, improper venue, res judicata, prescription and forum
shopping; (b) Motion for a bill of particulars; (c) Motion for new trial; (d) Petition for Relief from Judgment; (e) Motion to declare
respondent in default; (f) Motion for reconsideration of any decision or any order of the Labor Arbiter; (g) Appeal from any
interlocutory order of the Labor Arbiter, such as but not limited to, an order: denying a motion to dismiss, denying a motion to inhibit;
denying a motion for issuance of writ of execution, or denying a motion to quash writ of execution; (h) Appeal from the issuance of a
certificate of finality of decision by the Labor Arbiter; (i) Appeal from orders issued by the Labor Arbiter in the course of execution
proceedings; and (j) Such other pleadings, motions and petitions of similar nature intended to circumvent above provisions.
• May the Commission blacklist bonding companies?
Yes. The Commission through the Chairman may on justifiable grounds blacklist a bonding company, notwithstanding its
accreditation by the Supreme Court. Upon verification by the Commission that the bond is irregular or not genuine, the Commission
shall cause the immediate dismissal of the appeal, and censure the responsible parties and their counsels, or subject them to reasonable
fine or penalty, and the bonding company may be blacklisted.
• May a party file a motion to revive and re-open a case dismissed without prejudice?
Yes. A party may file a motion to revive or re-open a case dismissed without prejudice, within ten (10) calendar days from receipt of
notice of the order dismissing the same; otherwise, the only remedy shall be to re-file the case. A party declared to have waived his/her
right to file position paper may, at any time after notice thereof and before the case is submitted for decision, file a motion under oath
to set aside the order of waiver upon proper showing that his/her failure to appear was due to justifiable and meritorious grounds.
• What is the effect of rehabilitation receivership on monetary claims of workers?
Rehabilitation receivership of a company has the effect of suspending all proceedings – at whatever stage it may be found - in all
judicial or quasi-judicial bodies. The NLRC may not proceed with hearing of monetary claims. If already decided, the monetary
awards cannot be executed. If due for execution, no such execution may be had. Only when there is liquidation that the monetary
claims may be asserted. The suspension of the proceedings is necessary to enable the rehabilitation receiver to effectively exercise its
powers free from any judicial or extra-judicial interference that might unduly hinder the rescue of the distressed company. Once the
receivership proceedings have ceased and the receiver/liquidator is given the imprimatur to proceed with corporate liquidation, the
SEC order becomes functus officio. Thus, there is no legal impediment for the execution of the decision of the Labor Arbiter for the
payment of separation pay by presenting it with the rehabilitation receiver and liquidator, subject to the rules on preference of credits.
• What are the two kinds of jurisdiction of the NLRC?
The National Labor Relations Commission exercises two (2) kinds of jurisdiction: (1) Original jurisdiction; and (2) Exclusive
appellate jurisdiction.
1. Original jurisdiction:
1. Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful
acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may
cause grave or irreparable damage to any party;
2. Injunction in strikes or lockouts under Article 264 of the Labor Code; and
3. Certified labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest, certified

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to it by the Secretary of Labor and Employment for compulsory arbitration.
2. Exclusive appellate jurisdiction:
1. All cases decided by the Labor Arbiters including contempt cases; and
2. Cases decided by the DOLE Regional Directors or his duly authorized Hearing Officers (under Article 129) involving recovery of
wages, simple money claims and other benefits not exceeding P5,000 and not accompanied by claim for reinstatement.
• What is the power to assume jurisdiction or certify “national interest” labor disputes to NLRC?
When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the
national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to
the Commission for compulsory arbitration.
• In case of conflict, who has jurisdiction over termination disputes, Labor Arbiter or Voluntary Arbitrator?
Jurisdiction over termination disputes belongs to Labor Arbiters and not with the grievance machinery or Voluntary Arbitrator. Under
Article 262, the Voluntary Arbitrator may assume jurisdiction only when agreed upon by the parties. Policy Instructions No. 56 issued
by DOLE Secretary Confesor clarifying the jurisdiction of Labor Arbiters and Voluntary Arbitrations does not apply. It reiterated the
ruling that dismissal is not a grievable issue.
• What is the mode of appeal from the decision of the Labor Arbiters?
Appeal from the decision of the Labor Arbiter is brought by ordinary appeal to the NLRC within ten (10) calendar days from receipt
by the party of the decision. From the decision of the NLRC, there is no appeal. The only way to elevate the case to the Court of
Appeals is by way of the special civil action of certiorari under Rule 65 of the Rules of Civil Procedure. From the ruling of the Court
of the Appeals, it may be elevated to the Supreme Court by way of ordinary appeal under Rule 45 of the Rules of Civil Procedure.
• What are the grounds for appeal?
There are four (4) grounds, to wit:
(a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;
(b) If the decision, order or award was secured through fraud or coercion, including graft and corruption;
(c) If made purely on questions of law; and
(d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant.
• What are the requisites for perfection of appeal?
The appeal shall be: (1) filed within the reglementary period provided in Section 1 of the Rule; (2) verified by the appellant
himself/herself in accordance with Section 4, Rule 7 of the Rules of Court, as amended; (3) in the form of a memorandum of appeal
which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date
the appellant received the appealed decision, award or order; (4) in three (3) legibly typewritten or printed copies; and (5)
accompanied by proof of payment of the required appeal fee and legal research fee, posting of a cash or surety bond as provided in
Section 6 of this Rule, and proof of service upon the other parties.
• What is the reinstatement aspect of the Labor Arbiter’s decision?

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If reinstatement is ordered by the Labor Arbiter in an illegal dismissal case, it is immediately executory even pending appeal. Such
award does not require a writ of execution.
• Is posting a bond stay the execution of immediate reinstatement?
No. The posting of a bond by the employer does not have the effect of staying the execution of the reinstatement aspect of the decision
of the Labor Arbiter.
• Can the Labor Arbiter issue a partial writ pending appeal?
Yes. In case the decision includes an order of reinstatement and the employer disobeys it or refuses to reinstate the dismissed
employee, the Labor Arbiter should immediately issue a writ of execution, even pending appeal, directing the employer to
immediately reinstate the dismissed employee either physically or in the payroll, and to pay the accrued salaries as a consequence of
such reinstatement at the rate specified in the decision. The Sheriff should serve the writ of execution upon the employer or any other
person required by law to obey the same. If he disobeys the writ, such employer or person may be cited for contempt. While the
perfection of appeal will stay the execution of the decision of a Labor Arbiter, the partial execution for reinstatement pending appeal is
not affected by such perfection.
• Is the award of reinstatement pending appeal by the Labor Arbiter self-executory?
Yes. An award or order of reinstatement is self-executory and, therefore, does not require a writ of execution to implement and enforce
it. To require the application for and issuance of a writ of execution as pre-requisite for the execution of a reinstatement award would
certainly betray and run counter to the very object and intent of Article 223, i.e., the immediate execution of a reinstatement order. The
reason is simple. An application for a writ of execution and its issuance could be delayed for numerous reasons. A mere continuance
or postponement of a scheduled hearing, for instance, or an inaction on the part of the Labor Arbiter or the NLRC, could easily delay
the issuance of the writ thereby setting at naught the strict mandate and noble purpose envisioned by Article 223.
• What is the period within which to conduct pre-execution conference?
Within two (2) working days from receipt of a motion for the issuance of a writ of execution which shall be accompanied by a
computation of a judgment award, if necessary, the Commission or the Labor Arbiter may schedule a pre-execution conference to
thresh out matters relevant to execution including the final computation of monetary award. The pre-execution conference shall not
exceed fifteen (15) calendar days from the initial schedule, unless the parties agreed to an extension. Any order issued by the Labor
Arbiter in the pre-execution conference is not appealable, subject to the remedies available under Rule XII (Extraordinary Remedies).
• Is writ of execution necessary in case reinstatement is ordered by the NLRC on appeal?
Yes. While it is now well-settled that a writ of execution is not necessary to implement the reinstatement order issued by a Labor
Arbiter upon a finding of illegality of dismissal since it is self-executory, however, if the reinstatement order is issued by the NLRC on
appeal, there is a need to secure a writ of execution from the Labor Arbiter a quo to enforce the reinstatement of the employee.
• What is the lifetime or effectivity of the writ of execution?
Five (5) years. In case of partial satisfaction of judgment during the lifetime of the writ, the Labor Arbiter shall motu proprio issue an
updated writ reflecting the amount collected and the remaining balance.
• What is the effect of refusal of the bonding company or bank holding the cash deposit of the losing party to release the
garnished amount?
If the bonding company refuses to pay or the bank holding the cash deposit of the losing party refuses to release the garnished amount
despite the order or pertinent processes issued by the Labor Arbiter or the Commission, the president or the responsible officers or
authorized representatives of the said bonding company or the bank who resisted or caused the non-compliance shall be either cited
for contempt, or held liable for resistance and disobedience to a person in authority or the agents of such person as provided under the

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pertinent provision of the Revised Penal Code. This rule shall likewise apply to any person or party who unlawfully resists or refuses
to comply with the break open order issued by the Labor Arbiter or the Commission.
• What is the power of the DOLE Secretary to assume jurisdiction over a labor dispute or certify it to the NLRC for compulsory
arbitration?
The DOLE Secretary may assume jurisdiction over a labor dispute, or certify it to the NLRC for compulsory arbitration, if, in his
opinion, it may cause or likely to cause a strike or lockout in an industry indispensable to the national interest. The President may
also exercise the power to assume jurisdiction over a labor dispute.
• What is the effect of such assumption or certification of labor dispute to the NLRC?
The following are the effects: (a) on intended or impending strike or lockout– automatically enjoined even if a Motion for
Reconsideration is filed; (b) on actual strike or lockout– strikers or locked out employees should immediately return to work and
employer should readmit them back; and (c) on cases filed or may be filed – all shall be subsumed/absorbed by the assumed or
certified case except when the order specified otherwise. The parties to the case should inform the DOLE Secretary of pendency
thereof.
• May an injunction be issued in strike or lockout cases?
As a general rule, strikes and lockouts validly declared, enjoy the protection of law and cannot be enjoined unless illegal acts are
committed or threatened to be committed in the course of such strikes or lockouts. Ordinarily, the law vests in the NLRC the authority
to issue injunctions to restrain the commission of illegal acts during the strikes and pickets. This policy applies even if the strike
appears to be illegal in nature. The rationale for this policy is the protection extended to the right to strike under the constitution and
the law. It is basically treated as a weapon that the law guarantees to employees for the advancement of their interest and for their
protection.
• What is the effect of defiance of assumption or certification order or return-to-work order?
Non-compliance with the assumption/certification order of the Secretary of Labor and Employment or a return-to-work order issued
pursuant thereto by either the Secretary or the NLRC to which a labor dispute is certified, is considered an illegal act committed in the
course of the strike or lockout.
• What is the prescriptive period for offenses penalized under the Labor Code?
As a rule, the prescriptive period of all criminal offenses penalized under the Labor Code and the Rules to Implement the Labor Codeis
three (3) years from the time of commission thereof. However, criminal cases arising from ULP which prescribe within one (1) year
from the time the acts complained of were committed; otherwise, they shall be forever barred. The running of the 1 year period,
however, is interrupted during the pendency of the labor case.
• What is the prescriptive period for money claims?
Prescriptive period is three (3) years from accrual of cause of action.
• What is the prescriptive period for claims for allowances and other benefits?
In cases of nonpayment of allowances and other monetary benefits, if it is established that the benefits being claimed have been
withheld from the employee for a period longer than three (3) years, the amount pertaining to the period beyond the three-year
prescriptive period is barred by prescription. The amount that can only be demanded by the aggrieved employee shall be limited to the
amount of the benefits withheld within three (3) years before the filing of the complaint.

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• What is the prescriptive period for illegal dismissal?
An action for illegal dismissal prescribes in four (4) years from accrual of cause of action.
• What is the remedy of the party aggrieved by an order or resolution of the Labor Arbiter?
A party aggrieved by any order or resolution of the Labor Arbiter including those issued during execution proceedings may file a
verified petition to annul or modify such order or resolution. The petition may be accompanied by an application for the issuance of a
temporary restraining order and/or writ of preliminary or permanent injunction to enjoin the Labor Arbiter, or any person acting under
his/her authority, to desist from enforcing said resolution or order.
• What are the grounds of the petition for extraordinary remedies?
The petition filed under this Rule may be entertained only on any of the following grounds: (a) if there is prima facie evidence of
abuse of discretion on the part of the Labor Arbiter; (b) if serious errors in the findings of facts are raised which, if not corrected,
would cause grave or irreparable damage or injury to the petitioner; (c) if a party by fraud, accident, mistake or excusable negligence
has been prevented from taking an appeal; (d) if made purely on questions of law; or (e) if the order or resolution will cause injustice
if not rectified.
• What are the requisites of the petition for extraordinary remedies?
The petition for extraordinary remedies shall: (a) be accompanied by a clear original or certified true copy of the order or resolution
assailed, together with clear copies of documents relevant or related to the said order or resolution for the proper understanding of the
issue/s involved; (b) contain the arbitral docket number and appeal docket number, if any; (c) state the material date showing the
timeliness of the petition; (d) be verified by the petitioner himself/herself in accordance with Section 4, Rule 7 of the Rules of Court,
as amended; (e) be in the form of a memorandum which shall state the ground/s relied upon, the argument/s in support thereof and the
reliefs prayed for; (f) be in three (3) legibly written or printed copies; and (g) be accompanied by certificate of non-forum shopping,
proof of service upon the other party/ies and the Labor Arbiter who issued the order or resolution being assailed or questioned; and
proof of payment of the required fees.
• What is unfair labor practice?
An unfair labor practice act violates the right of workers to self-organization, is inimical to the legitimate interests of both labor and
management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual
respect, disrupts industrial peace and hinders the promotion of healthy and stable labor-management relations.
• May elimination or diminution of benefits constitute demotion?
Yes. The illegal and unjustified elimination or diminution of certain benefits may result in illegal demotion. Under established
jurisprudence, there is demotion where the act of the employer results in the lowering in position or rank or reduction in salary of the
employee. It involves a situation where an employee is relegated to a subordinate or less important position constituting a reduction to
a lower grade or rank with a corresponding decrease in duties and responsibilities and usually accompanied by a decrease in salary.
• May elimination or diminution of benefits constitute constructive dismissal?
Yes. Elimination or diminution of certain benefits may result in the constructive dismissal of an employee. Constructive dismissal is
an involuntary resignation resorted to when continued employment is rendered impossible, unreasonable or unlikely; when there is a
demotion in rank and/or a diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes
unbearable to the employee that it could foreclose any choice by him except to forego his continued employment.

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10. Jurisdiction of LA, BLR and VA
11. Check-off, requisites of special and extraordinary assessment
12. Forms of ULP by the employer
What are some of the ULPs committed by an employer?

ULP by management are as follows:
a) Requiring as a condition of employment that a person or an employee shall not join a labor organization or shall
withdraw from one to which he belongs;
b) Contracting out services or functions being performed by union members when such will interfere with, restrain, or
coerce employees in the exercise of their right to self-organization;
c) Discrimination as regards to wages, hours of work, and other terms and conditions of employment in order to
encourage or discourage membership in any labor organization; and
d) Dismissal, discharge, prejudice or discrimination against an employee for having given or being about to give testimony
under the Labor Code. (Art. 248, 249 of the Labor Code, as amended)
4. What are some ULPs committed by labor organizations?
A labor organization commits ULP by any of the following violations:
a) Restraint or coercion of employees in the exercise of their right to self-organization: However, the labor organization
shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; and
b) Causing or attempting to cause an employer to discriminate against an employee, including discrimination against an
employee with respect to whom membership in such organization has been denied or terminating an employee on any
ground other than the usual terms and conditions under which membership or continuation of membership is made
available to other members.
5. What are ULPs committed by both employers and labor organizations?
ULPs by both management and labor organizations are as follows:
a) Interference, restraint, or coercion of employees in the exercise of their right to self-organization;
b) Violation of a collective bargaining agreement, when circumstances warrant;
c) Initiating, dominating, assisting or otherwise interfering with the formation or administration of any labor organization,
including the giving of financial or other support to it or its organizers or supporters;
d) Violation of the duty to bargain collectively; and
e) Payment by employer of negotiation or attorney’s fees and acceptance by the union or its officers or agents as part of
the settlement of any issue in collective bargaining or any other dispute (Art. 248, 249 of the Labor Code, as amended).
13. Participating in a lawful and illegal strike and its effects
10. What are the periods to be observed before going on strike?

If the ground of the notice of strike is CB deadlock, the cooling-off period is 30 days. If ULP, 15 days. During these
periods, the NCMB shall exert all efforts at the mediation and conciliation to effect voluntary settlement. If Union Busting,
the cooling-off period is dispensed with but the mandatory 7-day Strike Ban period must be complied with.
11. When may a strike or lockout be declared illegal?
A strike or lockout may be declared illegal if any of the requirements for a valid strike or lockout is not complied with. It
may also be declared illegal if it is based on non-strikeable issues or if the issues involved are already the subject of
arbitration. During a strike or lockout, when either of the parties commits prohibited acts or practices, the strike or lockout
may be declared illegal.
12. Who has jurisdiction to determine the legality of strike or lockout?
In general, the Labor Arbiter in the appropriate Arbitration Branch of the NLRC has the power to determine questions
involving the legality or illegality of a strike or lockout upon the filing of a proper complaint and after due hearing.
Where the matter of legality or illegality of a strike is raised in the dispute over which the Secretary assumed jurisdiction or
in compulsory arbitration, the same may be resolved by the Secretary or the Commission, respectively. (IPI vs. Sec. of

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Labor and Associated Labor Unions, G.R. No. 92981-83, January 9, 1992.)
20. What is the consequence of an illegal strike?

When the strike is held illegal, only the union officers who knowingly participated will be considered to have lost their
employment status. The union members who knowingly participated in the commission of illegal acts during the strike may
be held liable.
14. Kinds of Union Security clause
A collective bargaining agreement clause that is used to ensure that employees are excluded from a bargaining unit if
they either:
• Do not support the union.
• Do not wish to pay union dues associated with union membership.
• Do not want to pay fees associated with a union representing the employees' bargaining unit.
Historically, the three most common types of union security clauses include:
• Closed shop clauses.
• Union shop clauses.
• Agency shop clauses.
A workplace where there is no union security clause requiring membership in, or payments to, a union as a condition of
hiring or continued employment is often called an open shop.
15. Kinds of Certification election
16. Jurisdictional pre-conditions to set in motion the mechanics of CBA
The mechanics of collective bargaining are set in motion only when the following jurisdictional preconditions are
present, namely: 1) possession of the status of majority representation of the employees representative in
accordance with any of the means of selection and designation provided for by the Labor Code, 2) proof of
majority representation, and 3) a demand to bargain under Article 250, par. (a) of the Labor Code
17. Grounds to deny Certification election
18. Requirements of CBA and its lifetime
1. What is Collective Bargaining?

It is a process where the parties agree to fix and administer terms and conditions of employment which must not be below
the minimum standards fixed by law, and set a mechanism for resolving their grievances.
2.What is Collective Bargaining Agreement (CBA)?
It is a contract executed upon request of either the employer or the exclusive bargaining representative 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 adjusting any grievances or questions under such agreement.
3.Is the ratification of the CBA by the majority of all the workers in the bargaining unit mandatory?
Yes. The agreement negotiated by the employees’ bargaining agent should be ratified or approved by the majority of all
the workers in the bargaining unit.
4.Is there any exception to the requirement of mandatory ratification by the majority of all the workers in the
bargaining unit?
Yes. Ratification of the CBA by the employees in the bargaining unit is not needed when the CBA is a product of an
arbitral award by appropriate government authority or by a voluntary arbitrator.
5.What constitutes CBA registration?
It is a process of determining whether the application for registration of a Collective Bargaining Agreement complies with
the Rules on CBA registration specifically Rule XVII of the Department Order No. 40-03 or the Rules amending the

Page 22 of 25
Implementing Rules of Book V of the Labor Code of the Philippines.
6.What is the effect of the CBA registration?
The registration of the CBA will bar a certification election except within the last sixty days (freedom period) before the
expiration of the five-year CBA.
7.What is the lifetime of a CBA?
With respect to representation aspect, the CBA lasts for 5 years. However, not later than 3 years after the execution of the
CBA, the economic provisions shall be renegotiated.
8.What is the freedom period?
It refers to the last sixty days immediately preceding the expiration of the five-year CBA. A petition for certification election
may be filed during the freedom period.
9.Where to file the application for CBA registration?
The application for CBA registration shall be filed at the Regional Office that issued the certificate of registration or
certificate of creation of chartered local of the labor union-party to the agreement.
10.When to file the application for CBA registration?
The application for registration of the CBA shall be filed within thirty (30) days from the execution of such CBA.
11.What are the requirements for CBA registration?
The following are the requirements for CBA registration (original and two (2) duplicate copies which must be certified
under oath by the representative of the employer and labor union concerned):
a) The Collective Bargaining Agreement;
b) A statement that the Collective Bargaining Agreement was posted in at least two (2) conspicuous places in the
establishment concerned for at least five (5) days before its ratification; and
c) A statement that the Collective Bargaining Agreement was ratified by the majority of the employees in the bargaining
unit of the employer concerned.
12.Is registration fee required?
Yes. The certificate of CBA registration shall be issued by the DOLE Regional Office only upon payment of the prescribed
registration fee.
13.How long will it take to process the CBA registration?
The application for CBA registration shall be processed within one day from receipt thereof.
14.What is the ground for denial of the CBA registration?
Failure of the applicant to complete the requirements for CBA registration but such denial is without prejudice for the filing
of another application for registration.
19. Termination of OFW and its effect
One of the many perils OFWs are exposed to is illegal dismissal. This happens when their foreign employers
prematurely put an end to their employment without any sufficient and legal ground. To deter such unfair practice,
our lawmakers enacted the Migrant Workers Act of 1995. It provided OFWs a relief. Section 10 of the same Act
provides that in cases when overseas employment is pre-terminated without just, valid, or authorized cause, the
OFW is entitled, among others, to “his salaries for the unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever is less.”
At first glance, nothing seems to be problematic about the relief provided under the Act.
However, in the 2009 case of Serrano v. Gallant Maritime Services, Inc., the Supreme Court (SC) declared as
unconstitutional the part which states “or for three (3) months for every year of the unexpired term, whichever is
less.” As a result, when an OFW is illegally terminated, the latter is entitled to his or her salary for the unexpired
portion of his or her employment contract. No more, no less.
In Serrano, the SC ruled that the quoted provision unfairly discriminated against OFWs in direct violation of the
equal protection clause under the 1987 Philippine Constitution.
First, it created an unfair classification between OFWs with employment contracts of less than one year in relation
to those with one year or more. In other words, in case of illegal dismissal, OFWs with employment contracts of
less than one year will be entitled to the entire unexpired portion of their contract while those with one year or
more will only be entitled to a monetary award amounting to three months for every year of the of the unexpired

Page 23 of 25
portion of their contracts. Second, it also created an unfair classification among OFWs with employment contracts
of more than one year.
To illustrate, among OFWs under contracts of more than one year, those illegally dismissed with less than one
year left in their contracts will be entitled to the entire unexpired portion of said contract while those with more
than one year remaining shall only be entitled to an award equivalent to their salary for three months for every
year of the unexpired portion of their contract.
Third and finally, it created an undue benefit in favor of local workers employed under a fixed duration to the
detriment of OFWs. Simply stated, in case of illegal dismissal, local workers are entitled to the unexpired portion
of their employment contracts while OFWs will only be entitled to three months for every year of the unexpired
portion of their contracts.
Surprisingly, however, our legislature enacted Republic Act No. 10022 (RA 10022) -- a law amending the Migrant
Workers Act of 1995. In this amendatory law, it re-enacted the very same provision previously declared
discriminatory and unconstitutional in Serrano.
In fact, in similar cases decided by the SC after the enactment of RA 10022 such as the 2012 cases of Skippers
United Pacific, Inc. v. Doza and Pert/CPM Manpower Exponent Co., Inc. v. Vinuya, the SC refused to reinstate its
former ruling in Serrano and applied the law as worded. Consequently, illegally dismissed OFWs were, once
again, placed in a precarious position and awarded monetary benefits amounting to only three months’ salary for
every year of the unexpired term of their employment contracts rather than the whole unexpired portion thereof.
Fortunately for the OFWs, in the 2014 case of Sameer Overseas Placement Agency, Inc. v. Cabiles, all the
Justices of the SC unanimously reverted to the Serrano ruling.
In an erudite and eloquent fashion, speaking for the SC, Justice Leonen expressed in no uncertain terms that
“[n]o branch or office of the government may exercise its powers in any manner inconsistent with the Constitution,
regardless of the exercise of any law that supports such exercise. The Constitution cannot be trumped by any
other law. All laws must be read in light of the Constitution. Any law that is inconsistent with it is a nullity.” Further,
he concluded that “when a law or a provision of law is null and void because it is inconsistent with the
Constitution, the nullity cannot be cured by reincorporation or re-enactment of the same or a similar law or
provision. A law or provision of law that was already declared unconstitutional remains as such unless
circumstances have so changed as to warrant a reverse conclusion.” For that reason, even though RA 10022 re-
enacted into law what has previously been struck down as unconstitutional, this will not serve to cure what has
otherwise been considered invalid and illegal.
Therefore, as it stands, OFWs found to have been illegally dismissed are once again entitled to the unexpired
portion of their employment contracts. This is in full accord with our country’s policy to afford full protection to
labor, whether local or overseas.
20. Instances to pay Separation pay
Separation Pay Meaning

Separation pay, as generally understood, refers to the amount due to the employee who has been terminated from service for causes
authorized by law (not due to employees fault or wrong-doing) such as installation of labor-saving devices, redundancy, retrenchment
to prevent losses or the closing or cessation of operation of the establishment or undertaking.
Separation pay is intended to provide the employee with the wherewithal during the period he is looking for another employment.
(See Gabuay v. Oversea Paper Supply, G.R. No. 148837, August 13, 2004.)
Five Instances when Separation Pay is due to Employee
There are at least five instances in which an employee is entitled to payment of separation pay upon severance of employment:
1. When the termination of employment is due to causes authorized by law, such as installation of labor-saving devices, redundancy,
retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking. This is provided under Art.
283, Labor Code of the Philippines. The provision states, viz.:
Article 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee
due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of
the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this title, by serving a written
notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof. In case of
termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation
pay equivalent to at least one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of
retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious
business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay
for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.
2. When the severance of employment is cause by a disease, particularly when the employee is found to be suffering from any disease and
whose continued employment is prohibited by law or is prejudicial to his health as well as the health of his co-employees. This is

Page 24 of 25
found in Art. 284, ibid., the full text states, viz.:
Article 284. Disease as ground for termination. An employer may terminate the services of an employee who has been found to be
suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as the health of
his co-employees: Provided, That he is paid separation pay equivalent to at least one month salary or to one-half month salary for
every year of service, whichever is greater, a fraction of at least six months being considered as one whole year.
3. When the termination from service of the employee has been declared illegal, but his reinstatement to his former position is no longer
feasible for some valid reason, e.g., when reinstatement is rendered impossible due to subsequent closure of business, or when the
relationship between employer and employee has become strained (doctrine of strained relations). (See Gabuay v. Oversea Paper
Supply, G.R. No. 148837, August 13, 2004.)
4. In case of pre-termination of employment contract in job-contracting arrangement. (See Department Order 18-02, Rules Implementing
Article 106 to 109 of the Labor Code.)
5. In exceptional cases, where separation pay is awarded as a measure of social or compassionate justice. Here, payment of separation pay
may be ordered by the court even if the dismissal from service is found to have been for valid or just cause, i.e., even if the employee
is found to have been at fault. (See PLDT vs. NLRC, No. L-80609, August 23, 1988.)
Distinguished from Retirement Pay
Separation pay should not be confused with retirement pay. Separation pay is the amount due to the employee where the cessation of
employment is due to causes authorized by law (or for any of the other causes stated above). Retirement pay, on the other hand, is the
amount to be paid to the employee who has reached the compulsory retirement age or who availed of voluntary retirement.
21. Requirements to declare a strike
Valid Grounds for Strike or Lockout
5. The law recognizes two grounds for the valid exercise of the right to strike or lockout, namely:
a. unfair labor practice
b. bargaining deadlock
6. In order to be valid, the notice of strike or lockout on grounds of unfair labor practice, shall state the specific acts
complained of. In case of bargaining deadlock, the notice must specify the unresolved issues and must show proof that the
parties have exhausted all efforts to resolve the deadlock.
7. If on the face of the notice, the issues raised are non-strikeable, the Regional Office shall dismiss motu-proprio the
notice without prejudice to conciliation upon request of either or both parties.

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For Labor Review class: Coverage of Pre-final examination on October 20, 2018

1. Non-impairment clause of the 1987 Constitution in relation to the Labor Code

ANTONIO SERRANO V. GALLANT MARITIME SERVICES, INC.

2. Elements of Ee-er relations and its effect and requirements

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II. ILLEGAL RECRUITMENT

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4. Arts. 82-97 of the labor code

WORKING CONDITIONS AND REST PERIODS

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WEEKLY REST PERIODS

Art. 91. Right to weekly rest day.

To prevent loss or damage to perishable goods;

Art. 93. Compensation for rest day, Sunday or holiday work.

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HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES

Art. 94. Right to holiday pay.

Art. 95. Right to service incentive leave.

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Art. 97. Definitions. As used in this Title:

“Employee” includes any individual employed by an employer.

“Employ” includes to suffer or permit to work.

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7. Effects of Illegal termination

Illegal Dismissal Benefits

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9. Remedies from the Decision of the LA and NLRC

• What is the constitutional provision on protection to labor?

• What is the nature of the proceedings before the Labor Arbiter?

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1. Unfair labor practice (ULP) cases;

1. he/she represents himself/herself as party to the case;

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• What is the purpose of mandatory conciliation and mediation conference?

• What is the period within which to conduct clarificatory conference?

• What is the effect of non-appearance of the parties during clarificatory conference?

• What is the period within which to file a motion for postponement?

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• What are the prohibited pleadings and motions?

• May the Commission blacklist bonding companies?

• What is the effect of rehabilitation receivership on monetary claims of workers?

• What are the two kinds of jurisdiction of the NLRC?

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2. Exclusive appellate jurisdiction:

• What are the grounds for appeal?

There are four (4) grounds, to wit:

• What are the requisites for perfection of appeal?

• What is the reinstatement aspect of the Labor Arbiter’s decision?

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• Is posting a bond stay the execution of immediate reinstatement?

• Can the Labor Arbiter issue a partial writ pending appeal?

• Is the award of reinstatement pending appeal by the Labor Arbiter self-executory?

• What is the period within which to conduct pre-execution conference?

• What is the lifetime or effectivity of the writ of execution?

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• May an injunction be issued in strike or lockout cases?

• What is the effect of defiance of assumption or certification order or return-to-work order?

• What is the prescriptive period for money claims?