LABOR REVIEW REVALIDA vi.

Failure of local/chapter or national union/federation to

submit a duly issued Charter Certificate upon filing of the
ATTY. USITA petition for certification election;
1. Constitutional provision of right to self-organization? (page 3) vii. Absence of employer-employee relationship between all the
members of the petitioning union and the establishment where
Article 3 Section 8 The right of the people, including those employed in the the proposed bargaining unit is sought to be represented; and
public and private sectors, to form unions, associations, or societies for viii. Non-appearance of the petitioner for two consecutive
purposes not contrary to law shall not be abridged scheduled conferences before the mediator-arbiter despite due
notice
2. Limited Portability Law and Totalization. (page 121)

Under R.A. 7699 in an Act instituting Limited Portability Scheme in the

Social Security Insurance Systems by Totalizing the workers Creditable 4. Who is a solo parent? (page 55)
Services or Contributions in Each of the Systems (RaDe-DISNA-UnOF)
i. A woman who gives birth as a result of Rape and other crimes
Totalization refers to the process of adding up the periods of creditable against chastity even without final conviction of the offender:
services or contributions under each of the systems, for purposes of Provided that the mother keeps and raises the child;
eligibility and computation of benefits ii. Parent left solo or alone with the responsibility of parenthood due
to Death of spouse;
Portability refers to the transfer of funds for the account and benefit of a iii. Parent left solo or alone with the responsibility of parenthood while
worker who transfers from one system to the other the spouse is Detained or is serving sentence for a criminal
conviction for at least 1 year;
3. Certification Election, when denied? (page 199) iv. Parent left solo or alone with the responsibility of parenthood due
(UCC-NeD-SCAN) to physical or mental Incapacity of spouse as certified by a public
medical practitioner;
i. Petitioner is not listed in the department’s registry of v. Parent left solo or alone with the responsibility of parenthood due
legitimate labor unions or that its legal personality has been to legal Separation or de facto separation from spouse for at least 1
revoked or cancelled with finality; (Unregistered Union) year, as long as he/she is entrusted with the custody of the
ii. Petition was filed before or after the freedom period of a duly children;
registered CBA; provided that the 60-day period based on the vi. Parent left solo or alone with the responsibility of parenthood due
original CBA shall not be affected by any amendment, to declaration of Nullity or annulment of marriage as decreed by a
extension or renewal of the CBA; (Contract Bar Rule) court or by a church as long as he/she is entrusted with the
iii. Petition was filed within 1 year from entry of voluntary custody of the children;
recognition or a valid certification, consent or run-off election vii. Parent left solo or alone with the responsibility of parenthood due
and no appeal on the results thereof is pending; (Certification to Abandonment of spouse for at least 1 year;
Year) viii. Unmarried mother/father who has preferred to keep and rear
iv. A duly certified union has commenced and sustained her/his child/children instead of having others care for them or
Negotiations with the employer or there exists a bargaining give them up to a welfare institution
Deadlock which had been submitted to conciliation or ix. Any Other person who solely provides parental care and support
arbitration to a child or children provided he/she is duly licensed as a foster
v. In case of an organized establishment, failure to submit the parent by the DSWD or duly appointed guardian by the court;
25% Support requirement for the filing of the petition for x. Any Family member who assumes the responsibility of head of
certification election; family as a result of the death, abandonment, disappearance or
prolonged absence of the parents or solo parent for at least 1 year
5. Labor law provision that should be observed for due process for termination There is no law, jurisprudence or rule which mandates that an employee
of employment should be assisted by counsel in an administrative case. On the contrary,
jurisprudence is in unison in saying that assistance of counsel is not
Article 294 of the Labor Code provides – In cases of regular employment, the indispensable in administrative proceedings.
employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly The right to counsel, which cannot be waived unless the waiver is in writing
dismissed from work shall be entitled to reinstatement without loss of and in the presence of counsel, is a right afforded a suspect or accused
seniority rights and other privileges and to his full backwages, inclusive of during custodial investigation. It is not an absolute right and may be
allowances, and to his other benefits or their monetary equivalent computed invoked or rejected in a criminal proceeding and, with more reason, in an
from the time his compensation was withheld from him up to the time of his administrative inquiry. While investigations conducted by an administrative
actual reinstatement. body may at times be akin to a criminal proceeding, the fact remains that
under existing laws, a party in an administrative inquiry may or may not be
6. Bargaining collectively (page 187) assisted by counsel,  irrespective of the nature of the charges and of
respondents capacity to represent himself, and no duty rests on such body to
Article 263 of the Labor Code provides – the duty to bargain collectively is furnish the person being investigated with counsel. Thus, the right to
an obligation to meet and convene promptly and expeditiously in good faith counsel is not imperative in administrative investigations because such
for the purpose of negotiating an agreement with respect to wages, hours of inquiries are conducted merely to determine whether there are facts that
work and all other terms and conditions of employment including proposals merit disciplinary measures against erring public officers and employees,
for adjusting any grievances or questions arising under such agreement and with the purpose of maintaining the dignity of government service.
executing a contract incorporating such agreements if requested by either
party but such duty does not compel any party to agree to a proposal or to There is nothing in the Constitution that says that a party in a non-litigation
make any concession proceeding is entitled to be represented by counsel and that, without such
7. Grievance Machinery (page 299) representation, he shall not be bound by such proceedings. The assistance of
lawyers, while desirable, is not indispensable. The legal profession was not
Grievance Machinery is a mechanism for the adjustment of controversies or engrafted in the due process clause such that without the participation of its
disputes arising from the interpretation or implementation of the CBA and members, the safeguard is deemed ignored or violated. The ordinary citizen
the interpretation of company personnel policies is not that helpless that he cannot validly act at all except only with a lawyer
at his side. (ZENON R. PEREZ v. PEOPLE OF THE PHILIPPINES and
8. Non-impairment clause in the Constitution in relation to labor SANDIGANBAYAN; G.R. No. 164763; February 12, 2008)
11. Rights of an illegally dismissed employee and when is separation pay
Article 3 Section 10 No law impairing the obligation of contracts shall be awarded in lieu of Reinstatement? (page223-224)
passed

9. Unfair labor practices and acts to collective bargaining (page 191) Rights of an illegally dismissed employee (RBD
(BE-GF)
i. Reinstatement without loss of seniority rights and other privileges;
i. Bad faith in bargaining (boulwarism), including failure or refusal to ii. Full Back wages, inclusive of allowances and other benefits or their
execute the CBA, if requested monetary equivalent computed from the time his compensation
ii. Evading the mandatory subjects of bargaining; was withheld from him up to the time of his actual reinstatement;
iii. Gross violation of the CBA; and
iv. Failure or refusal to meet and convene iii. Recovery of moral and exemplary Damages and attorney’s fees

10. Can employee invoke the right to counsel in administrative proceedings? Doctrine of Strained Relations- Under the circumstances the relationship of
employer to employee is so strained and ruptured as to preclude a
harmonious working relationship should reinstatement be decreed, the
 latter should be afforded the right to separation pay so that he can be spared i. Surface Bargaining – going through the motion of negotiating
the agony of having to work anew with the employer under an atmosphere without any legal intent to reach an agreement
of antipathy and antagonism and the employer does not have to endure the ii. Boulwarism - occurs when:
continued services of the employee in whom it has lost confidence (Sealand
Services, Inc. v. NLRC) a. When the employer directly bargains with
the employee disregarding the union
Instances where Separation pay is awarded in lieu of reinstatement b. The aim was to deal with the union through
the employees, rather than with the
i. Reinstatement cannot be effected in view of the long passage of employees through the union
time or because of the realities of the situation c. Employer submits its proposals and adopts a
ii. That it would be inimical to the employer’s interest “take it or leave it” stand.
iii. Reinstatement may no longer be feasible
iv. It will not serve the best interest of the parties involved 15. Constitutional basis of right to picket and the right to strike (page 3)
v. Company will be prejudiced by the reinstatement
vi. It will not serve a prudent purpose Article 13 Section 3 The State shall afford full protection to labor, local and
vii. There is a resultant strained relations overseas, organized and unorganized, and promote full employment and
viii. When the former position of the illegally dismissed employee no equality of employment opportunities for all.
longer exists
ix. When employer’s business has closed down It shall guarantee the rights of all workers to self-organization, collective
x. Business recession bargaining and negotiations, and peaceful concerted activities, including the
xi. Attainment of retirement age right to strike in accordance with law.
xii. Injury or disability of employee
xiii. Dissolution of the company 16. Explain the no work no pay rule and the non dimunition of benefits (page
xiv. Merger of companies 58) (page 60)
xv. Sale of the company
xvi. Insolvency of the company No work no pay - If there is no work performed by the employee, there can
xvii. Abolition of the position be no wage or pay unless the laborer was able, willing, and ready to work
xviii. Difficulty in enforcing reinstatement but was illegally locked out, suspended or dismissed or otherwise illegally
prevented from working

12. Agabon Doctrine (page 231) Non dimunition of benefits – Benefits given to employees cannot be taken
back or reduced unilaterally by the employer because the benefit has become
When dismissal is for a just or authorized cause but due process was not part of the employment contract, written or unwritten
observed, the dismissal should be upheld. However, the employer should be
held liable for non-compliance with the procedural requirements of due 17. Voluntary Recognition vs. Consent Election (page 196 and 197)
process
Voluntary Recognition is the process whereby the employer recognizes a
13. Resignation of employee anytime he wishes allowed? labor organization as the exclusive bargaining representative of the
employees in the appropriate bargaining unit after showing that the labor
Yes. An employee may terminate without just cause the employer-employee organization is supported by at least a majority of the employees in the
relationship by serving a written notice on the employer at least one (1) bargaining unit
month in advance. The employer upon whom no such notice was served
may hold the employee liable for damages. (Article 300 Labor Code) Consent Election is determining the issue of majority representation of all
the workers in the appropriate collective bargaining unit mainly for the
14. Give 2 examples of bad faith bargaining (page 187) purpose of determining the administrator of the CBA when the contracting
union suffered massive disaffiliation but not for the purpose of determining
 the bargaining agent for purposes of collective bargaining. It is voluntarily
agreed upon by the parties with or without intervention of DOLE 21. Compulsory Arbitration vs Voluntary Arbitration; Jurisdiction of Voluntary
Arbitrators (page 301-302)
18. Wage Distortion and how it is rectified? (page 67)
Compulsory Arbitration is the process of settlement of labor disputes by a
Wage distortion is a situation where an increase in prescribed wage rates government agency which has the authority to investigate and make award
results in the elimination or severe contraction of intentional quantitative binding on all the parties. Under the Labor Code, it is the Labor Arbiter who
differences in wage or salary rates between and among employee groups in is clothed with the authority to conduct compulsory arbitration on cases
an establishment as to effectively obliterate the distinctions embodied in involving termination disputes.
such wage structure based on skills, length of service or other logical bases
of differentiation Voluntary Arbitration refers to the mode of settling labor-management
disputes by which the parties select a competent, trained and impartial
Correction of Wage Distortion persons who shall decide on the merits of the case and whose decisions are
A. Organized Establishment (Establishment with union) final, executory and unappealable.
i. Employer and union shall negotiate to correct the distortion
ii. Any dispute arising therefrom should be resolved through Jurisdiction of Voluntary Arbitrator under Article 274 of the Labor Code
grievance procedure under their CBA
iii. If the dispute remains unresolved, it shall be resolved through i. All unresolved grievances arising from the interpretation or
voluntary arbitration implementation of CBA;
ii. All unresolved grievances arising from the implementation or
enforcement of company personnel Policies
B. Unorganized Establishment iii. Violations of the CBA which is not gross in character
i. The employers and workers shall endeavor to correct the iv. Other labor disputes, including unfair labor practices and
distortion bargaining deadlocks, upon agreement of the parties
ii. Any dispute arising therefrom shall be settled through the v. National interest cases
NCMB vi. All Wage distortion issues arising from the application of any wage
iii. If it remains unresolved after 10 days of conciliation, it shall be orders in organized establishments; and
referred to the NLRC vii. All unresolved grievances arising from the interpretation and
implementation of the Productivity incentive programs under RA
19. Right to Equal protection clause applicable to labor (page 3) 6971

Article 13 Section 3 The State shall afford full protection to labor, local and 22. Explain whether or not individual or group can bring issues without the
overseas, organized and unorganized, and promote full employment and participation of their bargaining unit (Article 267 Labor Code) (yes they may
equality of employment opportunities for all. participate)

The labor organization designated or selected by the majority of the

20. Yupangco Doctrine employees in an appropriate collective bargaining unit shall be the exclusive
representative of the employees in such unit for the purpose of collective
A third party whose property has been levied upon by a sheriff to enforce a bargaing. HOWEVER, an individual or group of employees shall have the
decision against a judgment debtor is afforded with the following alternative right at any time to present grievances to employer.
remedies to protect his interests: (1) File a third party claim with the Sheriff
of the LA; (2) If the third party claim is denied, the third party may appeal 23. Retirement and when employee be compulsorily retired (page 239) (Article
the denial to the NLRC; and (3) If the third party claim was denied, the third 302 Labor Code)
party may file a proper action with a competent court to recover ownership
of property illegally seized by the sheriff. (Yupangco Cotton Mills, Inc. v. CA Retirement is the result of a bilateral act of the parties, a voluntary
G.R. No. 126322; January 16, 2002) agreement between the employer and the employees whereby the latter,
 after reaching a certain age, agrees and/or consents to sever his employment
with the former
27. Serrano vs. Gallant Maritime Services on pretermination of a contract of a
In the absence of a retirement plan or agreement providing for retirement migrant worker on police power vis-à-vis non-impairment clause
benefits of employees in the establishment, an employee upon reaching the
age of sixty (60) years or more, but not beyond sixty-five (65) years which is Does the subject clause violate Section 10,
hereby declared the compulsory retirement age, who has served at least Article III of the Constitution on non-impairment
five (5) years in the said establishment, may retire. (in case of a mining of contracts?
employee 60 years old is the compulsory retirement age) No. The prohibition is aligned with the general principle that laws newly
enacted have only a prospective operation,58and cannot affect acts or
24. Property rights in ER-EE relationships contracts already perfected;59 however, as to laws already in existence, their
provisions are read into contracts and deemed a part thereof.60 Thus, the
Once an employer-employee relationship is established, such employment is non-impairment clause under Section 10, Article II is limited in application
treated, under our constitutional framework, as a property right. When a person to laws about to be enacted that would in any way derogate from existing
has no property, his job may possibly be his only possession or means of acts or contracts by enlarging, abridging or in any manner changing the
livelihood and those of his dependents. When a person loses his job, his intention of the parties thereto.
dependents suffer as well. The worker should, therefore, be protected and
insulated against any arbitrary deprivation of his job. (Philips Semiconductors As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995
[Phils.], Inc. vs. Fadriquela, G. R. No. 141717, April 14, 2004; Philippine preceded the execution of the employment contract between petitioner and
Geothermal, Inc. vs. NLRC, 189 SCRA 211 [1990]). respondents in 1998. Hence, it cannot be argued that R.A. No. 8042,
particularly the subject clause, impaired the employment contract of the
25. Kiok loy v. NLRC (Lock, Stock and Barrel Rule) (page 193) 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.
Under this rule, the CBA proposed by the union may be imposed lock, stock 8042.
and barrel on employer who refused to negotiate a CBA. The employer
which violates the duty to bargain collectively, loses its statutory right to But even if the Court were to disregard the timeline, the subject clause may
negotiate or renegotiate the terms and conditions of the draft CBA proposed not be declared unconstitutional on the ground that it impinges on the
by the union. Hence, the proposals of the union may be adopted as the CBA impairment clause, for the law was enacted in the exercise of the police
and, consequently, imposed on the employer, lock, stock and barrel 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
26. Just cause vs Authorized Cause ensuring respect for the dignity and well-being of OFWs wherever they may
be employed.61Police power legislations adopted by the State to promote the
health, morals, peace, education, good order, safety, and general welfare of
Dismissal for Just Cause Termination for authorized causes the people are generally applicable not only to future contracts but even to
The employee is dismissed for causes The employee is dismissed for causes those already in existence, for all private contracts must yield to the superior
which are attributable to his fault or independent of his fault or culpability and legitimate measures taken by the State to promote public welfare.
culpability
As a rule, a dismissed employee is not An employee terminated for authorized 28. Due process clause application to labor law (page 232)
entitled to separation pay cause is entitled to separation pay
Requirements for termination:
Before an employee is dismissed for Employer must give the employee to be 1. Substantive Due Process: The employer shall not terminate the services
just cause, he must be given ample terminated a written notice at least one of an employee except for just cause or when authorized by law. When
opportunity to be heard and defend (1) month before the intended day of
there is no showing of a clear, legal, and valid termination of
himself termination
employment, the law considers the case a matter of illegal dismissal
2. Procedural Due Process:
i. For termination based on just causes under Art. 297
 and subsistence or benefits given to or received by
a. Notice (Twin Notice Rule) the laborers over and above their
i. Pre-Notice – a written notice served on the employee ordinary earnings and wages
specifying the materials dates and acts committed by him As to deductibility
which may constitute as a ground for termination Part of the wage Independent of the wage
ii. Post-Notice – a written notice of termination served on the Deductible from the wage Not wage deductible
employee indicating that upon due consideration of all the
circumstances, grounds have been established to justify
31. Legitimate job contracting vs Labor only contracting (page 156; page 158)
his termination (which comes only after the employee is
given reasonable period from receipt of the first notice to
Job contracting or Subcontracting – an arrangement whereby a principal
answer the charge)
agrees to farm out to a contractor the performance or completion of a
b. Hearing or Conference – during which the employee concerned,
specific job or work within a definite predetermined period, regardless of
with the assistance of counsel, should he so desire, is given the
whether such job or work is to be performed or completed within or outside
opportunity to respond to the charge, present evidence, or rebut the
the premises of the principal
evidence presented against him
Labor-Only Contracting – refers to an arrangement where the contractor or
ii. For termination based on Authorized cause, compliance with
subcontractor recruits, supplies or places workers to perform a job or work
due process means service of a written notice to the employee
for a principal and the contractor: (i) does not have substantial capital; or (ii)
AND the appropriate Regional Office of DOLE at least 30 days
does not have investments in the form of tools, equipment, machineries,
before the effectivity of the termination, specifying the grounds
supervisions, work premises; or (iii) the contractor’s employees recruited
for termination
and placed are related to the main business operation of the principal; or (iv)
the contractor or subcontractor does not exercise the right to control over the
29. State Insurance fund when liable, Factors that bar compensability (page 99)
performance of the work of the employee

Article 170. Limitation of liability. — The State Insurance Fund shall be liable

for compensation to the employee or his dependents, except when the Job Contracting Labor-Only Contracting
disability or death was occasioned by the employee's intoxication, willful As to nature of employer/principal
intention to injure or kill himself or another, notorious negligence, or The employer or principal is The employer/principal is treated as
otherwise provided under this Title. merely an indirect employer, by direct employer of the contractor’s
operation of law, of his employees in all instances
Factors that bar compensability contractor’s employees
(WINO) As to existence of ER-EE relationship with employer/principal
i. Willful intention to injure or kill himself or another The creates an ER-EE relationship The statute creates an ER-EE
ii. Intoxication for a limited purpose (to ensure relationship for a comprehensive
iii. Notorious Negligence that employees are paid their purpose (to prevent circumvention
iv. Otherwise provided by the Labor Code wages) of laws)
As to liability of the principal
The principal becomes solidarily The principal becomes solidarily
30. Facilities vs. Supplements (page 59)
liable with the contractor in the liable with the contractor not only for
event the latter fails to pay the unpaid wages but for all the rightful
employee’s wages and for claims of the employees under the
violation of labor standard laws. labor code and ancillary laws
Facilities Supplements
The liability does not extend
As to nature
however to the payment of
backwages or separation pay of
Items of expense necessary for the Items which constitute extra
employees illegally dismissed
laborer’s and his family’s existence remuneration or special privileges
As to validity
 Permissible Prohibited by law or deployed an underage migrant worker shall be automatically revoked
As to capital and shall be imposed a fine of not less than Five hundred thousand pesos
There is a presence of substantial There is an absence of substantial (Php 500,000.00) but not more than One million pesos (Php 1,000,000.00). All
capital or investment capital or investment fees pertinent to the processing of papers or documents in the recruitment or
deployment shall be refunded in full by the responsible
32. In an administrative hearing, does the employer have the duty to advise the recruitment/manning agency, without need of notice, to the underage
employee or his witness of their right against self-incrimination? migrant worker or to his parents or guardian. The refund shall be
The right against self-incrimination is accorded to every person who gives independent of and in addition to the indemnification for the damages
evidence, whether voluntary or under compulsion of subpoena, in any civil, sustained by the underage migrant worker. The refund shall be paid within
criminal or administrative proceeding. The right is not to be compelled to be thirty (30) days from the date of the mandatory repatriation as provided for
a witness against himself. It secures to a witness, whether he be a party or in this Act." – RA 10022
not, the right to refuse to answer any particular incriminatory question, i.e.,
one the answer to which has a tendency to incriminate him for some crime. 35. Learnership vs. Apprenticeship (page 28)
However, the right can be claimed only when the specific question,
incriminatory in character, is actually put to the witness. It cannot be Apprenticeship is a practical training on the job supplemented by related
claimed at any other time. It does not give a witness the right to disregard a theoretical instruction, for a highly skilled or technical occupation for a
subpoena, decline to appear before the court at the time appointed, or to period of not less than 3 months but not more than 6 months
refuse to testify altogether. The witness receiving a subpoena must obey it,
appear as required, take the stand, be sworn and answer questions. It is only Learners are persons hired as trainees in semi-skilled and other industrial
when a particular question is addressed to which may incriminate himself occupations which are non-appreticeable and which may be learned through
for some offense that he may refuse to answer on the strength of the practical training on the job and not to exceed 3 months
constitutional guaranty.
(Still unsure if employer has the duty to inform) 36. Substantive due process in termination

33. Illegal recruitment, when is it considered economic sabotage (page 18) 1. Just causes
a. Serious Misconduct
a. Large-Scale illegal recruitment – illegal recruitment by 1 person or b. Willful disobedience or insubordination
with another person against 3 or more persons individually or as a c. Gross and habitual neglect of duties
group d. Fraud and willful breach of trust
b. Illegal recruitment by a Syndicate – illegal recruitment committed e. Commission of a crime or offense
by a syndicate or a group of 3 or more persons conspiring and f. Analogous causes
confederating with one another in carrying out the act
circumscribed by the law commits the fourth type of illegal 2. Authorized Causes
recruitment by the law a. Automation/ Robotics
b. Redundancy
34. OFW under RA 10022, when may they be repatriated? c. Retrenchment
d. Closure or Cessation of Operation of the Establishment or
Undertaking
"SEC. 16. Mandatory Repatriation of Underage Migrant Workers. - Upon e. Disease
discovery or being informed of the presence of migrant workers whose ages f. Closure due to an act of government
fall below the minimum age requirement for overseas deployment, the
responsible officers in the foreign service shall without delay repatriate said 37. How to determine ER-EE relationship (page 148)
workers and advise the Department of Foreign Affairs through the fastest
means of communication available of such discovery and other relevant 1. Four-Fold Test-
information. The license of a recruitment/manning agency which recruited a. Selection and engagement of the employee
b. Payment of wages
 c. Power of dismissal; and d. Represent union members for collective bargaining
d. Power to control e. Furnished by employers of audited financial statements
f. Own properties
Control Test – Refers to the employer’s power to control or g. Exemption from taxes
right to control the employee not only as to the result of the
work to be done but also as to the means and methods by COMMINGLING NOT A GROUND FOR CANCELLATION OF
which the same is to be accomplished REGISTRATION OF THE UNION

2. Two-tierred approach Article 256 – The inclusion as union members of employees outside the
a. The putative employer’s power to control employee with bargaining unit shall not be a ground for the cancellation of the registration
respect to the means and methods by which the work is to of the union. Said employees are deemed automatically removed from the
be accomplished list of the membership of the union.
b. The underlying economic realities of the activity or
relationship
40. ER a mere by-stander
Economic Dependence or Economic Reality Test- Refers to
whether the worker is dependent on the alleged employer for Art. 271 – In all cases, whether the petition for certification election is filed by the
his continued employment on that line of business employer or a legitimate labor organization, the employer shall not be
considered a party thereto with a concomitant right to oppose a petition for
38. Constructive Dismissal, Requisites of valid preventive suspension (page 239) certification election. The employer’s participation is limited to:
(page 231)
1. Being notified of petitions of such nature and
Constructive dismissal is an act of clear discrimination, insensibility, or 2. Submitting the list of employees during the pre-election
disdain by an employer becomes so unbearable on the part of the employee conference should the Med-Arbiter act favorably upon the
that it could foreclose any choice by him except to forego his continued petition
employment; Demotion in rank/ diminution of pay; Floating status for more
than six months 41. Duration of CBA, when does it take effect (page 193)

An employee may be placed under preventive suspension, if: Duration of CBA

1. With respect to the representation aspect, the same last for 5 years.
a. The evidence of guilt is strong and the employer or head of
establishment is convinced that the continued stay of the employee A petition for certification election, which resolves the representation
during the period of investigation constitutes a distraction to the aspect, may be entertained and a certification election may be
normal operations of the company conducted within the 60-day period immediately prior to the expiration
b. His continued employment poses a serious and imminent threat to of the CBA’s first 5 years
life or property of the employer co-workers.
2. With respect to other provisions (economic and non-economic), the
It shall be for a maximum period of 30 days, during which period same may last for a maximum period of 3 years after the execution of
the employee placed under preventive suspension is not entitled to the CBA. Hence, may be renegotiated not later than 3 years.
any wages Effectivity

39. Rights of LLO and commingling (page 176) 1. If the CBA is the very first for the bargaining unit, the parties have to
(USER-FOE) decide the CBA’s effectivity date
a. Undertake activities for the benefit of the organization and its 2. Those made within 6 months after the date of expiry of the CBA are
members subject to automatic retroaction to the day immediately following such
b. Sue and be sued date of expiry
c. Certified as Exclusive representative of all employees
 3. Those not made within 6 months, the parties may agree on the date of the intended or impending strike or lockout as specified in the assumption
retroaction. This rule applies if there is an existing agreement, there is or certification order.
no retroactive effect because the date agreed upon shall be the start of
the period of agreement Hence, any strike declared in violation of the injunction is illegal.

42. DOLE SEC power of assumption and certification A no-strike prohibition in a CBA is applicable on to economic strikes. In
Article 278 (G) other words, ULP strike is not covered and workers may go on strike based
When, in his opinion, there exists a labor dispute causing or likely to cause a on such ground despite a no-strike provision.
strike or lockout in an industry indispensable to national interest, the SOLE
may assume jurisdiction over the dispute and decide it, or certify the same
to the Commission for compulsory arbitration. Such assumption or
45. Disease as authorized cause
certification shall have the effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption or certification Art. 299 – An employer may terminate the services of an employee who has
order. If one has already taken place at the time of the assumption or been found to be suffering from any disease and continued employment is
certification, all striking or locked out employees shall immediately return to prohibited by law or prejudicial to his health, PROVIDED: that he is paid
work and the employer shall resume operations and readmit all workers separation pay equivalent to at least 1 month salary or ½ month salary for
under the same terms and conditions prevailing before the strike or lockout. every year of service, whichever is greater, a fraction of at least 6 months
The SOLE or the Commission may seek the assistance of law enforcement being considered as one year.
agencies to ensure compliance with this provision as well as with such
orders as he may issue to enforce the same. Requisites:

1. The employee is suffering from a disease

43. Perfection of Appeal from LA to NLRC
2. The continued employment of the employee is prohibited by law or
prejudicial to his/her health or his co-employees
1. Proof of service upon the other parties
3. There is a certification by a competent public authority that the disease
2. Filing a verified Memorandum of Appeal containing the grounds,
is of such nature or at such stage that it cannot be cured within 6
issues raised and arguments propounded and relief(s) sought within the
months even with proper medical treatment.
required period of appeal and with a statement of the date appellant
received the appealed decision, award, or order; The requirement of medical certificate cannot be dispensed with.
3. In 3 legibly typewritten or printed copies;
4. Proof of payment of the required appeal fee and legal research fee;
otherwise, it will be dismissed but the dismissal is only discretionary
BAR QUESTIONS
5. In case of monetary award, an appeal by the employer may be perfected
only by the posting of a Bond (cash deposit or surety bond) equivalent 1. Sympathetic Strike
in amount to the monetary award exclusive if damages
6. Must be filed within 10 days from the decision of the Labor Arbiter It is a work stoppage of workers of a company to make common cause
with other strikers of other companies without demand or grievances of
their own against the employer. It is considered illegal because there is
no labor dispute between the workers who are joining the strike and the
44. Illegallity or legality of strike as determined by agreement and injunction
latter’s employer.
Art. 278 (G) - When, in his opinion, there exists a labor dispute causing or
2. Jurisdiction of the Voluntary Arbitrator and Labor Disputes
likely to cause a strike or lockout in an industry indispensable to national
1. All unresolved grievances arising from the interpretation
interest, the SOLE may assume jurisdiction over the dispute and decide it, or
and implementation of the CBA
certify the same to the Commission for compulsory arbitration. Such
2. Unresolved grievances arising from interpretation and
assumption or certification shall have the effect of automatically enjoining
enforcement of company personnel policies
 3. Violations of the CBA which are not gross in character mean seeking the Commission’s approval. What needs prior
4. Other labor disputes approval is not the wage order but its IRRs, hence approval is not
5. National interest ases required.
6. Wage distortion issues arising from the application of any
wage orders in organized establishments
7. Unresolved grievances arising from Productivity Incentive 6. As a rule, direct hiring of migrant workers is not allowed. What
Programs are the exceptions?
1. A: Direct hiring by members of the (DION)
3. Participation of union officers and members in strikes and 2. Diplomatic corps
lockouts 3. International organizations
Article 279 – Any union officer who knowingly participates in an 4. Other employers as may be allowed by DOLE
illegal strike and any worker or union officer who knowingly 5. Those provided in a, b, c who bear a lesser rank, if
participates in the commission of illegal acts during the strike may endorsed by the POLO, or Head of the Mission in the
be declared to have lost his employment status PROVIDED that absence of a POLO
mere participation of a worker in a lawful strike shall not constitute 6. Professionals/skilled workers with duly authenticated
as sufficient ground for termination of his employment , even if a contracts containing terms and conditions over and above
replacement had been hired by the employer during such lawful the standards set by the POEA. The number of workers
strike. hired for the first time shall not exceed 5, but workers
hired as a group is considered as one.
4. Characteristics of Sec. 255, managerial, supervisory and rank and 7. Workers hired by relatives/family member who is a
file? State whether they can organize and form unions? permanent resident of the host country.
7. Are there differences between house-helper and homeworker?
Managerial Employees – Top Management – responsible for the overall
management of the organization, which establishes the operating A homeworker is any person who performs in or about his home
policies and guides of the organization’s interactions with its any processing of goods or materials, in whole or in part, which
environment have been furnished directly or indirectly by an employer and
thereafter to be returned to the latter, while
Middle Management – direct the activities of other managers and
sometimes also those of operating employees. A house-helper is a domestic worker or “Kasambahay” who refers
to any person engaged in domestic work within an employment
They are absolutely prohibited from organizing and forming unions, as relationship such as, but not limited to, the following: general
there is a conflict of interest present. Managerial employees are househelp, nursemaid or “yaya”, cook, gardener, or laundry
supposed to be on the side of the employer to act as its representatives person, but shall exclude any person who performs domestic work
and see to it that its interests are well protected. only occasionally or sporadically and not on an occupational basis.
Supervisors – first line managers direct operating employees only, they
do not supervise other managers. They are entitled to organize and
form unions. 8. Floating Status

Rank and file – employee who doesn’t occupy a high-ranking position Should last only for a legally prescribed period of time. When the
floating status lasts for more than 6 months, he may have been
5. Regional tripartite wages and productivity board issued a wage considered constructively dismissed from service. Thus, he is
order fixing minimum wages, is the order subject to approval of entitled to corresponding benefits for separation.
the National Wages and Productivity Commission Board?
9. Is right to counsel mandatory?
No. The RTWBPs are empowered to determine and fix minimum
wage rates applicable in their regions and issue the corresponding No. Per the prevailing Lopez doctrine (see 2011 case of Lopez v.
wage order. Furnishing the NWPC of the wage order does not Alturas Group of Companies), the right to
 counsel is neither indispensable nor mandatory. It becomes EMPLOYER. IT CAN ONLY BE ASSERTED AGAINST THE STATE OR
mandatory only in two (2) situations: GOVERNMENT.

(1) When the employee himself requests for counsel; or HENCE, THE EMPLOYEE BEING INVESTIGATED CANNOT
INVOKE
(2) When he manifests that he wants a formal hearing of the
charges against him, in which case he may be assisted by counsel CONSTITUTIONAL DUE PROCESS BUT ONLY STATUTORY AND
CONTRACTUAL DUE
10. When can an employee invoke constitutional due process and right
to equal protection of the laws? PROCESS.

As distinguished from company-level investigation conducted by (2) Procedural due process that may be invoked once a case has already
the employer where only STATUTORY and CONTRACTUAL DUE been filed in the labor court, such
PROCESS can be invoked, a dismissed employee can invoke constitutional
due process only when he files an illegal dismissal case in the labor court as the Labor Arbiter or the NLRC, and/or brought to higher courts:
and he is deprived due process by a government functionary like the Labor a. Constitutional due process under Section 1, Article III of the
Arbiter or the Commission (NLRC), or Court of Appeals on Rule 65 Constitution since this right cannot be
certiorari petition. The reason is that, at this stage, the government is now
involved through said labor tribunals. invoked against the private employer but only against the State or
government as represented by
11. What are the kinds of procedural due process that may be asserted
in labor cases? Labor Arbiters, NLRC, CA and SC.

The following are the kinds of procedural due process that may be The rule since Agabon is that compliance with the statutorily-prescribed
invoked in labor cases, to wit: procedural due process under

(1) Procedural due process that may be invoked against the employer Article 292(b) [277(b)] of the Labor Code would suffice. It is not
during the investigation of the important in determining the validity of the

employee’s administrative case at the company-level that may lead to termination whether there is an existing company policy which also
his dismissal: enunciates the procedural due process in

a. Statutory due process per Agabon doctrine which refers to the due termination cases. However, under the latest doctrinal en banc ruling in
process provision in the Labor the 2013 case of Abbott Laboratories,

Code (Article 277[b]); and Philippines v. Pearlie Ann F. Alcaraz, it is now required that in addition
to compliance with the statutory due
b. Contractual due process per Abbott Laboratories doctrine which
refers to the due process process, the employer should still comply with the due process
procedure prescribed in its own company rules now
prescribed in the Company Rules and Regulations or Code of Conduct
or Code of Discipline. called CONTRACTUAL DUE PROCESS. The employer’s failure to
observe its own company-prescribed due
NOTE: CONSTITUTIONAL DUE PROCESS UNDER ARTICLE III,
SECTION 1 OF THE process, IN ADDITION TO STATUTORY DUE PROCESS, will make it
liable to pay an indemnity in the form
CONSTITUTION CANNOT BE INVOKED AGAINST A PRIVATE
PARTY LIKE THE of nominal damages, the amount of which is similar to the P30,000.00
awarded under the Agabon doctrine.